author: TITUS, Judge.

text:
    Lee COONIS, Plaintiff-Appellant, v. Johnie E. ROGERS and Joroco Enterprises, Inc., a corporation, Defendants-Respondents, v. SPRINGFIELD CITY REFUSE COLLECTION, INC., a corporation, Third-Party Defendant-Appellant.
    No. 8633.
    Springfield Court of Appeals. Missouri.
    March 10, 1967.

      O. J. Taylor, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for plaintiff-appellant and third-party defendant-appellant.
    Edmund C. Forehand, Lincoln, Haseltine, Forehand & Springer, William A. Moon, Springfield, for defendants-respondents.
   TITUS, Judge.

This court-tried action was introduced in the Circuit Court of Greene County, Missouri, when obtainers of orts of sorts got on the outs over a written contract made the ides of March, 1964. Springfield City Refuse Collection, Inc., by the agreement, sold Johnie E. Rogers an established trash collection route in the southern section of Springfield, together with trash containers the use of its name and a refuse dump, access to a repair shop, and the loan of a substitute vehicle when necessary. A truck was also leased to Rogers which was to become his when the contract sale and purchase price was fully paid. The seller agreed not to compete within the designated area for ten years and was to be paid twenty-five per cent of the buyer’s receipts until a total of $14,500, plus six per cent interest, had been paid. Plaintiff-appellant Lee Coonis is the assignee of Springfield City Refuse Collection, Inc., the third-party defendant-appellant herein. Joroco Enterprises, Inc., is the assignee of Rogers and they are the defendants-respondents in this action. Although not technically accurate in each instance, we hereafter for simplicity and brevity refer to the parties collectively as appellants and respondents.

Appellants’ three-count petition first sought to enjoin respondents from operating the trash route, from representing to the public they were jointly engaged in business with appellants, and from using the name “Springfield City Refuse Collection.” Count Two was to replevin property described in the contract and for $1,000 damages for its alleged wrongful detention. If appellants were denied the relief asked in Counts One and Two, then appellants asked for an accounting by Count Three and for a money judgment in an unspecified amount for the unpaid sum due under the agreement.

Respondents, after denying the essential elements of the petition, counter-attacked with a nine-count counterclaim. Counts One and Two, respectively, asked $10,000 damages for appellants’ wrongful interference with respondents’ business and $2,-000 punitive damages therefor. Counts Three and Four each prayed $23,172 damages because of appellants’ failure to furnish a truck lease title and to provide a substitute vehicle. Count Five asked damages of $1,514 because appellants refused use of their dump, and $6,323.50 was claimed in Count Six on account of appellants’ activities in the exclusive area described in the contract. Appellants’ averred wrongful appropriation of trash containers was said by Count Seven to have damaged respondents $1,360. Count Eight requested a restraint to be put on certain activities of appellants. V.A.M.R. 99.11 was invoked by respondents in Count Nine of the counterclaim wherein they asked judgment (no amount stated) for the value of chattels wrongfully replevied by appellants and for damages incurred during the time the property was illegally detained.

The trial court rendered judgment as follows:

“JUDGMENT
“All matters and issues having come on for hearing before the court without a jury on the 26th day of April, 1966, and the court having heard all the evidence and taken the matter under advisement, and the court having since read and considered the briefs submitted by both sides, and now being fully advised in the premises, the court finds as follows:
“1. On Count I and II of Plaintiff’s Amended Petition the court finds for defendants, Johnie E. Rogers and Joroco Enterprises, Inc., and against the plaintiff.
“2. On Counts I, II, VIII and IX of Defendants’ Amended Counterclaim the court finds the issues in favor of defendants, Johnie E. Rogers and Joroco Enterprises, Inc., and against Plaintiff and Third-Party Defendant, and assesses the damages as follows:
“(a) On Count I of Defendants’ Amended Counterclaim the court awards damages to defendants Johnie E. Rogers and Joroco Enterprises, Inc., in the amount of $10,000 against which sum is set off and deducted the amount of $7,281.86 due and owing Plaintiff and Third-Party Defendant by said defendants as balance due on sale price under the contract in question, leaving a net finding of damages by the court in the amount of $2,718.14.
“(b) On Count II of Defendants’ Amended Counterclaim the court awards damages in the amount of $2,000 to defendants Johnie E. Rogers and Joroco Enterprises, Inc.
“(c) Under Count IX of Defendants’ Amended Counterclaim the court awards damages in the amount of $7,500.00 to defendants Johnie E. Rogers and Joroco Enterprises, Inc.
“3. On Counts III, IV, V, VI and VII of Defendants’ Amended Counterclaim the court finds issues in favor of the plaintiff and Third-Party Defendant and against Defendants, Johnie E. Rogers and Joroco Enterprises.

“NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that the defendants, Johnie E. Rogers and Joro-co Enterprises, Inc., recover from the plaintiff Lee Coonis, and Third-Party Defendant, City Refuse Collection, Inc., the sum of TWO THOUSAND SEVEN HUNDRED EIGHTEEN DOLLARS and 14 CENTS ($2,718.14) actual damages on Count I of Defendants’ Amended Counterclaim; that the defendants, Johnie E. Rogers and Joroco Enterprises, Inc., recover from the plaintiff, Lee Coonis, and Third-Party Defendant, City Refuse Collection, Inc., the sum of TWO THOUSAND DOLLARS ($2,000.-00) punitive damages on Count II of their Amended Counterclaim; that an Injunction Order and Decree be issued under Count VIII of Defendants’ Amended Counterclaim against Plaintiff, Lee Coonis, Third-Party-Defendant, City Refuse Collection Company, Inc., and filed herein; that defendants, Johnie E. Rogers and Joroco Enterprises, Inc., have and recover of plaintiff, Lee Coonis the sum of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) on Count IX of Defendants’ Amended Counterclaim and have execution therefor together with defendants, Johnie E. Rogers and Joroco Enterprises, Inc., costs and charges in this behalf expended.”

Although on this appeal appellants only claim trial court error in awarding respondents damages in the sums stated in Counts One, Two and Nine of the counterclaim, the penetrating peruser of the judgment will quickly note the Circuit Court made no finding or judgment as to Count Three of the petition.

The right to appeal is purely statutory and, ordinarily, a judgment to be appealable must be final and dispose of all the issues raised by the pleadings. Regardless of whether the litigants pose the inquiry an appellate court has the duty to ascertain if a final appealable judgment has been rendered and to dismiss the appeal sua sponte if it be found no such judgment was rendered. It should be initially noted there was no effort in this instance to proceed under V.A.M.R. 66.02, and the failure of the judgment here to make specific disposition of Count Three of the petition is not cured by any of the exceptions or categories outlined in Collier v. Smith, Mo.App., 292 S.W.2d 627 at page 630.

While the trial court may have intended to find for appellants and against respondents on Count Three of the petition due to its pronouncement the $10,000 awarded respondents on Count One of the counterclaim was subject to a $7,281.86 set off (the balance due appellants under the contract), the fact remains there was neither a finding nor a judgment rendered on Count Three of the petition. Had there been a finding on Count Three of the petition, this alone would not substitute for a judgment. Mid City Wholesale Grocers, Inc. v. Bischoff, 327 Ill.App. 268, 64 N.E.2d 234, and cases collected in Section 5(a), Annotation, 73 A.L.R.2d, pp. 291-295. Compare Magee v. Mercantile-Commerce Bank and Trust Co., 339 Mo. 559, 98 S.W.2d 614, where the judgment recited: “ * * * [A]t the close of all the evidence, the Court * * * gave and read to the jury instruction number four in the nature of demurrers to the evidence as to counts Number 2, 3, 4 and S of plaintiff’s amended petition. Thereupon the trial * * * progressed as to the remaining count number 1 [and the jury found for plaintiff in the sum of $15,722.-94]. Wherefore, it is considered and adjudged by the Court that plaintiff have and recover of defendant on count one of his petition, the sum of * * * $15,722.-94,” etc. Dismissing the appeal for being premature the court said (1. c. 615-616, 98 S.W.2d 1. c. 615): “The record contains * * no judgment even purporting to dispose of [counts 2, 3,4, and 5] * * * A judgment, to be final and appealable, must dispose of all parties and all issues in the cause * * A judgment is not considered final which settles part only of several issues of law or fact * * * [T]he judgment here does not merely omit matters of form or show defectively that a final result was reached. The trouble is that it grants no relief to either party on four of the five counts tried, and shows that no rights were determined at all except on one count only. Therefore, it is clear there is no final judgment in this case.” To the same effect see: Russell v. St. Louis and Suburban R. Co., 154 Mo. 428, 55 S.W. 454; Severs v. Williamson, Mo.App., 198 S.W.2d 368; Deeds v. Foster, supra, 235 S.W.2d 262; Hance v. St. Louis-San Francisco Ry. Co., Mo.App., 283 S.W.2d 879; Nokes v. Nokes, Mo.App., 8 S.W.2d 879; Brandt, Ltd. v. Morris, supra, 400 S.W.2d 417.

Except as to Count Three of the petition, we avoid discussion or determination whether the judgment accommodated all •counts of the petition and counterclaim as formality requires. These problems can be ■decided by the trial court when revested with jurisdiction. The fashion in which this case was tried and presented required the entry of one judgment which finally •disposed of all the issues and counts in the •cause. As rendered, the judgment was entirely devoid of any mention of Count Three of the petition. Not being a final appealable judgment, appellants’ appeal was therefore premature and must be dismissed.

It is so ordered.

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

      . V.A.M.R. 82.01; Steffan v. Steffan, Mo.App., 390 S.W.2d 587, 590(1); Robinson v. Clements, Mo.App., 409 S.W.2d 215, 218(1); Goldstein v. Floridian Homes, Inc., Mo.App., 331 S.W.2d 124, 126(2); State ex rel. State Highway Commission v. Malion, Mo.App., 350 S.W.2d 111, 114 (9).

      . V.A.M.S. §§ 511.020 and 512.020: V.A.M.R. 74.01; Glick v. Glick, Mo., 372 S.W. 2d 912, 915(2); Brandt, Ltd. v. Morris, Mo., 400 S.W.2d 417, 418(1); Scheid v. Pinkham, Mo., 395 S.W.2d 166, 168(2).

      .Pizzo v. Pizzo, 365 Mo. (Banc) 1224, 295 S.W.2d 377, 379(1); Coyne v. Southwestern Bell Telephone Co., 360 Mo. 991, 232 S.W.2d 377-378(1); Deeds v. Foster, Mo., 235 S.W.2d 262, 265(1, 2); Anderson v. Metcalf, Mo., 300 S.W.2d 377, 378 (1); Cantrell v. Republic National Life Ins. Co. of Dallas, Texas, Mo., 397 S.W.2d 612, 615(1).


source: Caselaw Access Project

author: HOGAN, Judge.

license: Public Domain

text:
    John R. LEWIS, Plaintiff, v. Guy WOLFE, Maudie Wolfe, Ernest Lafferty and Lucy Lafferty, as Trustees for the Pentecostal Tabernacle Church, Defendants-Appellants, and Matthew D. Sims, Ethel Sims, also any successor Trustees of the Pentecostal Tabernacle Church, Clarence Fausett and Ernest Yates, as Trustees for the Church of God, Defendants-Respondents.
    No. 8538.
    Springfield Court of Appeals. Missouri.
    Jan. 11, 1967.

      William A. R. Dalton, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendants-appellants.
    Rolland L. Comstock, Springfield, for defendants-respondents.
   HOGAN, Judge.

This is an interpleader action brought to determine who is entitled to surplus funds realized from the sale of church property under the power of sale in a statutory deed of trust. Section 443.410, RSMo 1959, V.A.M.S. Mr. Lewis, as successor trustee, brought the action, but he is merely a stakeholder; the adversaries in the case are the two groups of interpleaded defendants, each of which claims the right to the funds.

At the beginning of the time involved here, the Pentecostal Tabernacle was a small congregational church, meeting in rented quarters. The church was entirely self-governing and had no constitution or by-laws. Over a period of years, part of the church offerings were set aside as a building fund, and finally the congregation undertook to build a church of its own, but found it necessary to obtain a loan for that purpose. In order to secure the loan, it was necessary to vest the title to the real estate in trustees, and in September 1963, defendants Guy Wolfe, Ernest Lafferty and Matthew Sims were elected trustees for that purpose by the congregation. The record indicates that payments on the building loan were regularly made from February 20, 1964, through August 19, 1964, in sums sufficient to keep “the payments current to December 25, 1964.

Some sort of dispute arose between two of the trustees, Wolfe and Lafferty, and Mrs. Fausett, the pastor of the church, in the summer and early fall of 1964. Whether or not this was a personal or doctrinal dispute is not entirely clear, but in any event factions developed and the trustees found it impossible to work in harmony. In the fall of 1964, defendants Wolfe and Lafferty attempted to secure the adoption of by-laws, which, as we read them, would incidentally have disqualified Mrs. Fausett as pastor, but the congregation rejected them. After this, depending upon whose view one takes, one faction or the other left the church and no further payment was made on the loan. Matters drifted until October 1964, when Mrs. Fausett and Mr. Sims, perhaps with the assent of the congregation, called a special meeting to discuss and consider affiliation with the Church of God, a national church group.

On October 10, 1964, pursuant to notice given by Mrs. Fausett, the congregation assembled; officials of the Church of God presented that organization’s denominational teachings and government, and offered the assembly the opportunity to affiliate. The congregation unanimously voted to do so. During the course of the meeting, the congregation declared all the church offices vacant and elected new officers. Defendants Matthew Sims (one of the original trustees), Clarence Fausett and Ernest Yates were elected as successor trustees. Records offered by defendants Wolfe and Lafferty indicate that they and their associates subsequently met and rented quarters in which to conduct worship services, and that in March 1965, the Wolfe-Lafferty group appointed a Mr. Carpenter to replace Mr. Sims. There was evidence on the part of defendants Wolfe and Lafferty that, at trial time, a congregation was meeting regularly in the rented quarters as the Pentecostal Tabernacle Church, and that a number of members of the congregation are people who formerly belonged to the other church prior to its affiliation with the Church of God. Each group, as we have noted, claims to be the lawful successor to the original set of trustees.

The trial court found, among other things, that the present Church of God organization is the lawful successor to the original Pentecostal Tabernacle, and ordered the surplus funds paid to defendants Sims, Fausett and Yates, as trustees for the Church of God. The appellants — that is, defendants Wolfe and Lafferty — have assigned error to this judgment in two principal respects. First, they maintain that they were not given proper notice of the meeting at which the congregation voted to affiliate with the Church of God, and therefore the action taken at that time was not binding as to them; further, they claim that in affiliating with the Church of God the Sims-Fausett faction departed from the faith, doctrine and established practices of the Pentecostal Tabernacle, and that they, as a faithful minority, are entitled to receive the proceeds remaining after foreclosure.

In dealing with the merits of the case, we must put it in proper perspective. Though many of the witnesses’ answers are monosyllabic responses to long, pointed and suggestive questions by counsel, and much of the testimony is made up of con-clusory statements, the result, fundamentally, represents a choice between conflicting versions of the facts. As the appellants point out, Rule 73.01(d), V.A.M.R., requires us to consider the case de novo upon both the law and the evidence, and we are not required, either by the constitution or by statute, to defer to the trial court’s judgment if, upon consideration of the whole record, we find it to be clearly erroneous. Cross v. Gimlin, Mo., 256 S.W. 2d 812, 813[2, 3]; Redden v. Boehmer, Mo.App., 223 S.W.2d 127, 129[1, 2], At the same time, where the evidence is conflicting and close, and particularly when the decision depends upon conflicting oral testimony and the credibility of witnesses, the appellate court should generally defer to the findings of the trial court unless it is satisfied they should have been otherwise. Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 850[2]; In re Petersen’s Estate, Mo., 295 S.W.2d 144, 148[3]. We may also again point out that we are not particularly concerned with the reasons assigned by the trial court, so long as the correct result was reached. Edgar v. Fitzpatrick, Mo., 377 S.W.2d 314, 318[12]; Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1004, 291 S.W.2d 166, 170[1].

The appellants’ contention that they received insufficient notice of the meeting at which affiliation was voted is based in part upon the assumption that the set of by-laws which Mr. Wolfe and Mr. Lafferty proposed were actually adopted. We think this assumption is unwarranted. When the proposed by-laws were presented to the assembled congregation on August 24, 1964, they were rejected. It is true that on August 29, 1964, Mr. Wolfe and Mr. Lafferty met with the church secretary-treasurer and a Mr. Keck, and that the minutes of that meeting recite that “ * * the By-laws were voted in by two members of the trustee board, Guy Wolfe and Ernest Lafferty.” But in our view, it was beyond the authority of the trustees to bind the congregation in such manner, even had they voted unanimously to do so. Generally speaking, an officer or director of a religious society has powers analogous to those exercised by the managing directors of private corporations, Coates v. Parchman, Mo.App., 334 S.W.2d 417, 423[4], but the power to adopt by-laws resides in the membership, and not in the trustees, unless the charter or constitution of the church provides to the contrary. Klix v. Polish Roman Catholic St. Stanislaus Parish, 137 Mo.App. 347, 358, 118 S.W. 1171, 1174. No such charter, or constitutional provision appears in this case.

The appellants further develop their assignment touching the sufficiency of notice by arguing that even if the bylaws were not validly enacted, the notice given them was deficient because it was not timely and because it failed to specify the nature of the business to be transacted at the congregational meeting of October 10. In the view we take of this case, it is unnecessary to examine all these arguments in detail. A basic premise of appellants’ argument that they received insufficient notice of the congregational meeting of October 10, 1964, is that as members of the church entitled to vote they had a right to such notice. We think it could reasonably have been found otherwise. Ultimately, what amounts to a voluntary withdrawal from or abandonment of a voluntary religious association like the Pentecostal Tabernacle is a question of law, once the facts are established. Kuhl v. Meyer, 42 Mo.App. 474, 482; Perry v. Tupper, 74 N.C. 722, 731. But at the same time, a member’s right to vote, and hence his right to be notified of a meeting at which voting will take place, may be lost by voluntary withdrawal, 76 C.J.S. Religious Societies § 19b, p. 767, and in this instance it could reasonably be inferred from the record that the appellants abandoned the Pentecostal Tabernacle after the proposed by-laws were rejected in August 1964. Of course, it was Mrs. Lafferty’s testimony, and her records indicated, that after the congregational meeting on August 26 at which the by-laws were rejected, Sims “stated he was quittin’ and wouldn’t be back,” and that Sims refused to attend the trustees meeting of August 29; however, Mrs. Fausett’s testimony was that Wolfe and Lafferty “left the church” in August of 1964 and did not thereafter function as trustees. Therefore, if the trial court chose to accept Mrs. Fausett’s testimony and to reject the account given by the other defendants, it could have found that Mr. Wolfe and Mr. Lafferty dissociated themselves from the Pentecostal Tabernacle sometime before the association with the present organization was voted on, and that they had thereby deprived themselves of the right to notice as members entitled to vote. In our view, the appellants’ point concerning insufficient notice is without merit.

The appellants’ other point is that, as a faithful minority, they are entitled to possession and control of the church property, and consequently the money involved here, because affiliation with the Church of God constituted a real and substantial departure from the basic faith of the Pentecostal Tabernacle prior to the schism or division. They argue here that the Pentecostal Tabernacle did not have a formalized government, nor did it believe in affiliation with any other church group, while the Church of God is highly organized, with a national headquarters and state and district superintendents, and that this difference is in fact a fundamental and substantial difference in doctrine, and distinguishes one church from the other.

We must say in candor that there was really no evidence of the substantive beliefs of either church. Mr. Lafferty, one of the original trustees, said, “Yeah,” when asked if “ * * * at the time that you contributed to this building fund, was it your understanding that you were contributing on the basis that this church would never affiliate with any national, state or county organization of churches,” but that answer is the strongest evidence we can find that there was a doctrinal belief in the Pentecostal Tabernacle which inhibited association with other church groups. Mrs. Edna Mae King, who at the time of affiliation had been a member of the Pentecostal Tabernacle for fifteen years, was unable to recall any such “fact of belief,” as counsel put the matter, and added that it was customary for the members of the Pentecostal Tabernacle to “go to lots of other churches’ services.” Mrs. Fausett, when asked about a theological belief forbidding association with a national organization, said that the matter “ * * * wasn’t brought up in the church at all,” “ * * * was never mentioned.” One witness stated that the Pentecostal Tabernacle had no written articles of faith whatever.

We think it would be a distortion of the law involved to say that the congregation’s act of affiliation with the Church of God constituted a basic departure from the faith of the Pentecostal Tabernacle. The appellants invoke the well-established principle that in the event of a schism or division within a church, that faction which continues to adhere to the basic faith is entitled to possession and control of church property, regardless of whether it is a majority or minority faction, Mills v. Yount, Mo.App., 393 S.W.2d 96, 100[1]; Annos., 70 A.L.R. 75, 83, Section VI b (1931); 8 A.L.R. 105, 113, Section VI b (1920), but for this rule to apply to the action of a congregational church, where there is no ecclesiastical hierarchy or church judicatory with power to determine disputes, the will of the majority must show a real and substantial departure from the essential theological doctrine of the church, Mertz v. Schaeffer, Mo.App.. 271 S.W.2d 238, 241 [2], and in general, changes which affect only the business management or temporal control of the church, or the mere form of worship, are not departures within the meaning of the rule that a majority will forfeit its property rights by departing from the fundamental beliefs of the church. Bunnell v. Creacy, Ky.App., 266 S.W.2d 98, 100[3]; Mattson v. Saastamoinen, 168 Minn. 178, 209 N.W. 648[1]; Anno., 32 L.R.A. 92, 98. We can discover no substantial departure from the essential theological doctrine of the Pentecostal Tabernacle in the mere act of affiliation with a national church group, and in our view this point is also without merit.

For the reasons indicated, the judgment is affirmed.

STONE, P. J., and TITUS, J., concur.


text:
    Janie Marie HAYMES, Plaintiff-Respondent, v. Hilda R. SWAN, Defendant-Appellant.
    No. 8558.
    Springfield Court of Appeals. Missouri.
    March 1, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 28, 1967.

      Church & Jones, Donald W. Jones, Lin-dell R. Church, Springfield, for plaintiff-respondent.
    Allen, Woolsey & Fisher, Raymond E. Whiteaker, Russell G. Clark, Springfield, for defendant-appellant.
   TITUS, Judge.

Plaintiff Janie Marie Haymes sued defendant Hilda R. Swan in the Greene County Circuit Court for damages allegedly sustained because of an encounter of the parties at the intersection of Kellett and High Streets in Springfield, Missouri, near 1:30 p. m., May 24, 1965. Defendant counterclaimed. The jury, in the form suggested by MAI 32.03, returned a $5,000 verdict for plaintiff. Defendant’s motion to the trial court for judgment in accordance with her trial motions for directed verdict or for a new trial as to all issues was overruled. Defendant has appealed.

No traffic control signs or signals were present at the intersection of the two streets, each measuring 30 feet from curb to curb. Kellett Street, running north and south, is paved and intersects at right angles High Street which travels east and west. High Street is graveled. Pictorial evidence indicates the weather was clear and the road surfaces dry when the collision occurred. Contrary to her deposition testimony (more to be said of this later) plaintiff testified a low hedge obstructed her view at the intersection. The location of the hedge is not shown in the record but we assume it is at or near the northwest corner of the intersection.

Plaintiff was driving a Chevrolet station wagon south on Kellett and defendant was operating her Pontiac Tempest east on High when the front of the Pontiac collided with the right “two doors” of the Chevrolet. An investigating police officer located dirt and debris caused by the impact in the intersection “approximately 20 feet south of the north curbline on High [and] approximately 8 feet east of the west curbline of Kellett.” No tire or skidmarks were observed. After impact the Chevrolet stopped wheels up, headed south near the east curb of Kellett, with the rear of the vehicle 50 or 60 feet south of the intersection. Without upsetting, the Pontiac came to rest 20 or 25 feet south of the intersection headed northwest with its rear wheels onto the east parkway.

Accompanied by her daughter who was sitting with her back to the right front door facing her mother, plaintiff testified she was operating the Chevrolet 25 miles per hour while driving south on Kellett. “One or two car lengths from High, the intersection,” she slowed to 20 miles an hour. “I looked to the right and to the left and I didn’t see anything. And I proceeded on through the intersection about twenty miles an hour and just before I left the intersection, I felt an impact and that’s all I know.” The daughter who likewise never saw the Pontiac, asserted plaintiff was driving 20 miles an hour, “slowed down about a car length and a half from High and looked to her right and to her left and went on through.” This witness agreed “it’s a pretty open intersection.”

Plaintiff had testified in her deposition “it is a clear, open intersection,” there is not “anything to obstruct westward vision,” and that she could see west down High Street “at least two blocks.” Responding to a deposition query if she looked but once to her right before driving into the intersection, plaintiff said, “I tell you, I made the second look then * * * probably [at] the middle of the intersection.” Attesting she was “wrong” and “confused” when she deposed, at the trial plaintiff testified “I’m not going to say I looked [to the right] the second time.” Plaintiff told the jury that a week before trial she had revisited the scene and seated in an automobile placed the length of two cars north of the intersection on Kellett, she made observations of another vehicle which was headed east and placed in the center of High Street west of the intersection. When the latter vehicle was entirely visible to plaintiff, measurements disclosed its front end was ninety-six and one-half feet west of the intersection. Plaintiff was familiar with the accident scene by reason of having traveled the route she was taking on the day of the accident for fourteen years.

Defendant said she was driving east on High 20 to 25 miles per hour but slowed to 15 or 20 upon nearing the intersection. Admitting she is “not a very good guesser,” defendant testified as she was just coming up to the intersection she looked left (north on Kellett) and then to her right and saw no approaching traffic. “Then when I looked back to the left I saw this blue station wagon coming at a very high rate of speed * * * just roughly sixty miles an hour.” The Pontiac, according to defendant, was into the intersection “by the time this station wagon ran in front of me.” Her “first impulse [was] to put on my brakes [but] I didn’t have time to do anything. * * * I put my foot on the brake but how far I got it, I don’t know.” Answering written interrogatories, defendant had said ten feet separated the two vehicles when she first saw the Chevrolet, that she had applied her brakes and the Pontiac had slid or skidded prior to the moment of impact.

A woman who did not witness the actual impact said she observed the station wagon “come up the street * * * and I seen a lot of dust cornin’ on High Street.” The last she saw of the Chevrolet it was “halfway in the intersection” traveling at a “slow rate [of speed], I would say. * * * I just heard a sound of a car cornin’ up High fast and the dust blowin’.” Another witness did not see the pre-impact developments but noticed the cars just as they collided. “It looked like the blue car [Chevrolet] was almost through the intersection from where I was sittin’ [and] there was quite a bit of dust on High Street back west, on west from where the crash were.”

A police lieutenant testified for plaintiff as a reconstruction expert and his opinions and conclusions are noted in full by us simply because they encountered no objections from defendant. The lieutenant stated the Chevrolet outweighed the Pontiac, by one thousand pounds and had the Pontiac been traveling at a slower speed than the Chevrolet when it struck the station wagon broadside, the Pontiac would “have been flipped back to the right side of the Chevrolet * * * in other words on the west side of Kellett Street * * *. In this case, instead of following this pattern * * * there was still enough inertia left [in the Pontiac] that it swung completely around, back up over the parkway and followed the Chevrolet * * * about 25 feet.” Assuming the Chevrolet was going 20 miles an hour and the Pontiac 35 to 45 miles an hour at impact, the witness concluded, without objection, the Pontiac “would have landed up where it did in this, particular case.” His reconstruction of the accident indicated to the lieutenant the Chevrolet “was going at a relatively low rate of speed” when the collision occurred.

A car being driven 20 miles per hour, the lieutenant testified, would travel approximately 30 feet per second and would require one and three-fourths seconds to travel 50 feet. In the same one and three-fourths seconds a vehicle would have to travel 37 to 38 miles per hour to cover 90 to 100 feet. Concerning “how long are cars,” the witness conceded, “Some of them can be 15, some of them can be 16, some of them can be 20 feet.” In an experiment conducted by this officer at plaintiff’s behest, he placed himself in an automobile facing south on Kellett. When the front of the car was 30 feet north of the intersection he could see west along the curbing of High Street a distance of “approximately 95 feet.” Moving the front of the car to within 20 feet of the intersection, his sight distance was increased to “approximately 100 to 110 feet.” When asked: “One to two car lengths north of the curbline, how far down High Street can you see?” the lieutenant answered “approximately 95 feet.”

There was no evidence as to the stopping distance requirements of either vehicle at any given speed. Subsections (a) and (b) of Section 22-63 of the General Ordinances of the City of Springfield, as read into evidence, are practically identical to subsections 1 and 2 of V.A.M.S. § 304.021, and have to do with intersection rights of way.

Defendant contends she was entitled to a directed verdict on plaintiff’s claim because (1) plaintiff was guilty of contributory negligence as a matter of law in failing to maintain a proper lookout, and (2) defendant’s negligence, if any, was not the direct and proximate cause of the accident. In attending to our review of these claims by defendant where plaintiff has been successful with the jury, we must inspect the evidence in the light most favorable to plaintiff, augmented by the best inferences reflected therefrom. Except where it may aid plaintiff, defendant’s evidence is ignored. Dressier v. Louvier, Mo. (Banc), 408 S.W.2d 852, 853—854(1); Price v. Seidler, Mo., 408 S.W.2d 815, 819(1); Thomas v. Jones, Mo., 409 S.W.2d 131, 134(2). Even if reasonable minds might conclude both plaintiff and defendant were at fault in producing the collision, as the record here suggests, yet we are not at liberty to hold plaintiff guilty of contributory negligence as a matter of law unless the evidence and inferences favorable to plaintiff’s submission permit no other reasonable conclusion. Otherwise, plaintiff’s contributory negligence is a jury question. Bischoff v. Dodson, Mo. App., 405 S.W.2d 514, 517 (2,3).

To support her claim plaintiff was contributorily negligent as a matter of law in failing to maintain a proper lookout, defendant cites six cases. All authorities to which we are referred repeat well-established precepts that “where one is charged with the duty to look and to look is to see, he must be held to have seen what looking would have revealed,” and “the failure on the part of a plaintiff, where a duty to look exists, to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law.” We cannot say the cited or similar cases aid defendant’s case, for in cases ruling plaintiff guilty of contributory negligence as a matter of law in failing to see defendant, there was cogent evidence defendant was actually visible when plaintiff looked or that defendant could have been seen had plaintiff looked, or there was un-contradicted, precise evidence of distances and speeds from which calculations disclosed with certainty defendant was, in fact, within plaintiff’s range of vision (e. g., Bracken v. Koch, Mo.App., 404 S.W.2d 201, 203). The jury was not obliged to accept defendant’s testimony her speed was 15 to 20 miles an hour and was free, under the testimony in this case, to determine she was traveling at the greater rates of speed indicated by the evidence. Without repeating our own adventures in arithmetic, which any interested reader may undertake if so inclined, we cannot say defendant’s vehicle was actually visible or within the range of plaintiff’s vision when she looked right onto High when the Chevrolet was one or two car lengths north of the intersection. The jury had the right to believe plaintiff was “wrong” or “confused” in her deposition testimony and that her sight distance west on High from where she looked was 96 to 110 feet instead of two blocks. Cox v. Moore, Mo.App., 394 S.W.2d 65, 67(1); Douglas v. Farrow, Mo., 334 S.W.2d 234, 238(1). This does not imply plaintiff was excused from maintaining a lookout ahead and laterally as she approached the intersection. Unfortunately, especially in this motor vehicle age, Homo sapiens are not constructed to permit simultaneous looks in opposite directions and plaintiff was under no duty to maintain a constant look laterally ahead to the right. Pitts v. Garner, Mo., 321 S.W.2d 509, 517-518(9). Her failure to continuously look only to her right and observe what such single-direction looking would reveal, does not constitute negligence as a matter of law. Slaughter v. Myers, Mo., 335 S.W.2d 50, 54(6). It also is subject to jury determination whether plaintiff was negligent in failing to look to her right a second time before entering this intersection. Combellick v. Rooks, Mo.(Banc), 401 S.W.2d 460, 463(5). We decline to rule plaintiff was contribu-torily negligent as a matter of law in failing to maintain a proper lookout.

Defendant’s additional contention she was entitled to a directed verdict because of the lack of evidence showing her negligence to be the direct and proximate cause of the accident, is allegedly supported by cited cases which involve lookout failure, failure to warn in a humanitarian situation, and whether burn injuries suffered by a youth of tender years naturally and probably resulted from defendant’s sale of gasoline to a twelve year old boy. Ere failure to keep a lookout or to warn can be the proximate cause of a casualty, an additional showing must be made that defendant possessed the ability and time to discharge the positive duty to avert or avoid. The absolute duty imposed upon a defendant by ordinance or statute to yield the right of way is negative in character. The only issue of defendant’s negligence submitted to the jury on plaintiff’s claim was defendant’s alleged failure to yield the right of way. If plaintiff’s car was the first to reach and enter the intersection, it then became defendant’s duty not to enter, and if the collision resulted from defendant’s breach of this negative duty, such facts alone establish a basis for recovery. Harrellson v. Barks, Mo.App., 326 S.W.2d 351, 362-363(17-19) and cases there cited. Whether or not plaintiff was contributorily negligent in entering the intersection at a time when it appeared or should have appeared to a reasonably prudent person that to do so would probably result in an accident would not obviate the primary duty of defendant to permit plaintiff, first into the intersection, to pass in safety. Creech v. Blackwell, Mo., 298 S.W.2d 394, 400(5). We cannot consider as sound defendant’s argument her negligence was not the cause of the accident as a matter of law simply because she had no ability (or because the evidence revealed no ability) to avoid the accident because of the speed of the Pontiac and her failure to see plaintiff until an instant before impact. “Certainly the fact that one who by statute is to yield the right of way approaches and enters the intersection at a speed which prevents him from observing the mandate of the statute, does not constitute a sub-missible circumstance to support a finding of valid excuse for nonobservance.” Lay v. McGrane, Mo., 331 S.W.2d 592, 599-600(9,10); Highfill v. Maier, Mo.App., 379 S.W.2d 191, 193-194(4,5).

Especial note should be taken the foregoing has resulted because, as in our duty, we have indulged plaintiff with the evidence and inferences most pleasing to her cause. In considering defendant’s assignment of trial court error instructing the jury, plaintiff is not entitled to such pampering. Specifically defendant asserts the trial court erred by giving instruction numbered 9 without requiring the jury to find plaintiff was exercising due care at the time and because the instruction, when read with the others, was confusing and misleading.

MAI 14.02 (which is the same as instruction number 9, except the instruction as given omits the bracketed clause) reads:

“The phrase ‘right of way’ as used in these instructions, means the right of one vehicle to proceed ahead of the other.

“When two vehicles do not reach an intersection at approximately the same time, the vehicle which enters the intersection first has the right of way [provided a very careful person would so proceed under the same or similar circumstances].”

Notes on Use, following this instruction, state: “The bracketed clause must be added where there is evidence that the party entitled to the right of way failed to use such care. * * * This definition will also be appropriate where city ordinances give the same fight of way at intersecting streets * * In the section devoted to “How to Use This Book” (MAI XXXI-XXXV) we .are specifically admonished, 1. c. XXXIV, “The notes on use following each instruction dictate the circumstances under which the instruction may be used. These imist be followed." Kratzer v. King, Mo., 401 S.W. 2d 405, 408. V.A.M.R. 70.01 requires: “ * * * (b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject, (c) The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.” (All emphasis ours).

Plaintiff’s instruction on her claim (MAI 17.01 and 17.08), as previously noted, submitted only defendant’s averred failure to yield the right of way. Defendant’s instruction on contributory negligence (MAI 28.01) submitted plaintiff’s alleged failure to yield the right of way and her failure to keep a careful lookout. At defendant’s request instruction number 10 (MAI 14.03) was given, as follows:

“The phrase ‘right of way,’ as used in these instructions, means the right of one vehicle to proceed ahead of the other.
“When two vehicles reach an intersection at approximately the same time the vehicle on the right has the right of way provided a very careful person would so proceed under the same or similar circumstances.”

(The Notes on Use under MAI 14.03 are the same as those under MAI 14.02, previously stated, as they relate to the bracketed clause).

Even though it is said plaintiff, if she reached the intersection first, had a superior right to cross the intersection, this right and the right to assume defendant would yield the right of way is not absolute. Plaintiff was still subject to the basic commandment to use and exercise the highest degree of care and to drive the Chevrolet at such rate of speed so as not to endanger the property of another or the life or limb of any person. V.A.M.S. § 304.010; Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, 583(14). The right of way “does not give an absolute and unqualified right to proceed regardless of then existing circumstances and conditions, although many motorists apparently entertain that mistaken notion.” James v. Berry, supra, Mo.App., 301 S.W.2d at 533 (3); Douglas v. Whitledge, supra, Mo.App., 302 S.W.2d at 298-299(4). Neither does the fact plaintiff entered the intersection first nor the right of way statute excuse the duty of maintaining a proper lookout while approaching an intersection. Dixon v. Kinker, Mo.App., 410 S.W.2d 347, 351(5); Lamfers v. Licklider, Mo., 332 S.W.2d 882, 887-888(3) The right to enter depends on many circumstances and is governed by the facts peculiar to each case. Montgomery v. Petrus, Mo.App., 307 S.W. 2d 24, 28.

While the jury was at liberty to believe none, part, or all of the testimony of any witness (Mayer v. Orf, Mo., 404 S.W.2d 733, 734-735 (3,4), our instant concern is not with what the jury believed or disbelieved but whether there was evidence plaintiff failed to use the care of a very careful person in proceeding to command the right of way. Notes on Use, MAI 14.02, supra. There was evidence defendant was driving 20 to 25 miles an hour but slowed to 15 or 20 as she neared the intersection. Acceptance of such testimony would place the Pontiac within plaintiff’s range of vision when she looked west down High, even assuming plaintiff could see to her right but 95 to 110 feet. There was evidence by plaintiff’s daughter it was “a pretty open intersection” and plaintiff’s own deposition testimony she could see west on High without obstruction for “at least two blocks” when she looked in that direction before entering the intersection. In either event and whether defendant’s evidence or the police lieutenant’s surmise as to the Pontiac’s speed be accepted, “the fact that plaintiff reached and entered the [intersection] first would not justify her in attempting to cross in front of defendant’s [car] if by the exercise of the highest degree of care she saw or could have seen that to do so would bring their vehicles in danger of collision.” Cooksey v. Ace Cab Company, Mo., 289 S.W.2d 40, 44(2). While it is true, as we have said, it was for the jury to decide whether plaintiff’s failure to look right a second time constituted negligence, nevertheless such failure was evidence of negligence even though not negligence as a matter of law. Without detailing all other facets of the testimony that could be recited in this regard, we rule there was evidence which would permit reasonable minds to conclude plaintiff was not exercising the care of a very careful person by proceeding into the intersection as she did under the circumstances in this case. For that reason it was error to omit the bracketed portion required by MAI 14.-02 from instruction number 9. V.A.M.R. 70.01(c), supra.

Plaintiff urges that even if the omission of the bracketed clause from instruction 9 be error, it was not prejudicial error. With this we cannot agree. The gist of instructions 9 and 10 was to charge the jury that the vehicle which enters the intersection first has the right of way, whereas it is only when a very careful person would proceed into an intersection under existing circumstances that the vehicle on the right is to be given the right of way. The facts indicate plaintiff reached the intersection first, even though but a second or fraction of a second before defendant. It appears to us instruction number 9 (especially when read in connection with instruction number 10) had the effect of informing the jury the first vehicle to enter the intersection invariably and unqualifiedly has the right of way provided the automobiles do not arrive at the intersection at approximately the same time. “While the instruction does not in express terms direct a verdict for the [plaintiff], its effect is that under the stated facts nothing else would follow.” McCombs v. Ellsberry, 337 Mo. 491, 85 S.W. 2d 135, 140(14); cf., Anthony v. Jennings, Mo.App., 368 S.W.2d 533, 538(9). Undoubtedly the learned trial judge doubted plaintiff was entirely free from negligence and was exercising the highest degree of care by undertaking to preempt the intersection under the existing conditions and evidence; else he would not have been justified in instructing the jury on plaintiff’s failure to yield the right of way or to keep a lookout. Hawkeye-Security Ins. Co. v. Thomas Grain Fum. Co., Mo.App., 407 S. W.2d 622, 625(2).

Left turn rights of way as governed by subsections 3 and 6, V.A.M.S. § 304.021, were subjects involved in George v. Wheeler, Mo.App., 404 S.W.2d 426. MAI 14.07 (modified) was given without the bracketed part and when defendant won a verdict the trial court granted plaintiff a new trial because of the omission. In holding the omission was not prejudicial to plaintiff, the appellate court notes the instruction pertains to plaintiff’s contributory negligence and it was not necessary the instruction require the jury to find defendant was entirely free of negligence and acted only as a very careful person because claimed contributory negligence on plaintiff’s part presupposes defendant’s negligence. This, of course, is not the situation we have or with which the jury was presented. If plaintiff is to be permitted to recover, the jury should be instructed and must believe plaintiff was acting as a very careful person would act under the circumstances when she proceeded into the intersection. Cf., Ross v. Wilson, 236 Mo.App. 1178, 163 S.W.2d 342, 346-347(5,6); Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 979-980(10). The trial court’s omission of the bracketed portion of MAI 14.02 from instruction number 9 was error prejudicial to defendant and her motion for a new trial on all issues should have been sustained.

The case is reversed and remanded.

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

      . Major v. Davenport, Mo.App., 306 S.W.2d 626; Douglas v. Whitledge, Mo.App., 302 S.W.2d 294; Roux v. Pettus, Mo. App., 293 S.W.2d 144; James v. Berry, Mo.App., 301 S.W.2d 530; Ely v. Parsons, Mo.App., 399 S.W.2d 613; Branscum v. Glaser, Mo., 234 S.W.2d 626. Branscum, unlike the instant matter, was submitted on humanitarian negligence.

      . Bracken v. Koch, Mo.App., 404 S.W.2d 201; Zalle v. Underwood, Mo., 372 S.W. 2d 98; Thaller v. Skinner and Kennedy Company, Mo.App., 307 S.W.2d 734; Vietmeier v. Voss, Mo., 246 S.W.2d 785; and Tharp v. Monsees, Mo., 327 S.W.2d 889.


author: DAVIS, Commissioner.

text:
    Joe GREEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.
    Rehearing Denied April 28, 1967.
    Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Joe Green has been convicted and sentenced to imprisonment for two years for violation of KRS 242.230 (illegal traffic in intoxicating liquor in local option territory). The penalty was based upon the Commonwealth’s accusation and evidence that Green had committed two prior offenses under KRS 242. See KRS 242.-990(1). The appellant undertakes to present several questions on appeal, but we conclude that some of them have not been properly preserved for appellate review. The chief question upon appeal is whether the proof of the first of the two prior convictions was legally sufficient.

The indictment charged appellant with unlawful sale of alcoholic beverage in local option territory on the _ day of June, 1965; that offense was the “prime offense” charged. The indictment then alleged that appellant had been duly convicted of a violation of KRS 242 in the Pulaski Quarterly Court on May 31, 1950, pursuant to his plea of guilty in that forum. It was alleged in the indictment that appellant had been found guilty in the quarterly court on the 1950 charge, fined $100 and sentenced to imprisonment for 30 days. The indictment averred that the judgment of 1950 had never been modified or vacated.

The same indictment contained a charge that appellant had been convicted of another violation of KRS 242 by judgment of the Pulaski Circuit Court entered February 6, 1964, and that the offense and conviction in that proceeding were subsequent to the offense and conviction in 1950. Green tested the 1964 conviction here with negative result. Green v. Commonwealth, Ky., 383 S.W.2d 118. That was a misdemeanor conviction:

Pulaski County Judge John W. Garner was a witness for the prosecution and presented the quarterly court records relating to the 1950 proceedings in the Pulaski Quarterly Court. It developed that although an appropriate judgment reflecting the conviction appeared on the official order book, that judgment had never been signed by the judge of the Pulaski Quarterly Court who rendered it. In fact, it is undisputed that the quarterly court record was not signed until May 23, 1966, the date of the jury trial in the present proceeding. The judgment bears the signature of Judge Garner in this language: “John W. Garner, May 23, 1966, Judge of Pulaski County Quarterly Court succeeding C. I. Ross, Judge of Pulaski County Quarterly Court on order of Judge R. C. Tartar.” Judge Tartar was and is the circuit judge before whom the instant case was tried.

Appellant takes the position that the record demonstrates on its face that the purported 1950 conviction was void for want of the signature of the presiding judge of the Pulaski Quarterly Court. He points out that the indictment necessarily charged that the 1950 conviction was in full force and effect, when in any circumstance it had no possible validity until the signing by Judge Garner, which occurred several months after the indictment was returned. In support of his position appellant calls attention to KRS 28.050 which requires that orders of a quarterly court shall be signed by the presiding judge. Of like import are decisions of this court relied upon by appellant: Johnson v. Com., 80 Ky. 377, 4 K.L.R. 210; Kitchner v. Com., 206 Ky. 707, 268 S.W. 285; Com. v. Clarke, Ky., 340 S.W.2d 442; Com., Dept. of Highways v. Daly, Ky., 374 S.W.2d 497; and Com., Dept. of Highways v. Howard, Ky., 402 S.W.2d 853.

We do not quarrel with those precepts, but are persuaded that they do not rule this case. It is apparent that KRS 242.990(1), in providing increased penalties for individuals who have committed prior offenses denounced by KRS 242, has as one salutary purpose the deterrence of repeated offenses against the local option law. Here we do not deal with whether the quarterly court judgment was procedurally perfect, or whether it was final. We think there can be no doubt that Judge Garner had the legal authority to sign the order as he did, and that when he did the order became valid for all purposes. See Montgomery v. Viers, 130 Ky. 694, 114 S.W. 251, in which is contained a scholarly and illuminating discussion of the question at hand. The following excerpt from that opinion succinctly states the rule:

“If the relief desired by the plaintiff is the signature of the orders embracing the alleged judgment in his behalf, and if it appears that there is such a record in the quarterly court that would have justified the entering of the judgment then, the judge of the quarterly court now in office ought to sign the record in order to complete it. The court does not die, or fail, whatever may become of the incumbent. So when one incumbent dies, leaving unfinished an official act, his successor may complete it.” Id., 114 S.W. at 254.

The same authority points up the significance of the court records in this language :

“Common-law courts have from earliest times exercised the prerogative of correcting their own judgments by their own records so as to make them conform to the original fact. In this they have exercised the inherent power of supplying their lost or defaced records. It must be manifest that the record is not the judicial act. It is only historical. Its principal practical use is evidential. * * * Necessarily, the giving of the judgment must precede its historical engrossment.” Id., 114 S.W. 252.

Thus, it is seen that Judge Garner’s act in signing the 1950 judgment furnished official verification that the Pulaski Quarterly Court had been the scene of Joe Green’s conviction in 1950 of a violation of KRS, Chapter 242. In light of the principles enunciated above, we hold that the 1950 conviction was properly admitted as a link in the requisite chain of progressive offenses prescribed in KRS 242.990(1). The view here expressed finds support, by parity of reasoning, in Com. v. Reynolds, Ky., 365 S.W.2d 853.

The appellant contends that even if the 1950 conviction was properly admitted the proof failed of reflecting the required progressive sequence of offense and conviction, followed by offense and conviction. Heavy reliance is placed upon Marcum v. Com., Ky., 398 S.W.2d 886. In Marcum we did observe that the evidence relating to the sequence of events should be specific, although we recognized that the dates involved in Marcum did “leave an inference that such was the case.” It will be observed that the basis for the court’s ruling in the Marcum case was error in the instructions, and the comment concerning “specific” evidence as to progressive sequence looked toward another trial. In the present case the first conviction—for a misdemeanor—occurred in 1950. The second conviction was shown to have occurred in 1964, and was also a misdemeanor conviction. Prosecutions for misdemeanors are barred in Kentucky unless commenced within one year after the misdemeanor was committed. KRS 431.-090. This fact, coupled with the passage of 14 years between the first and second convictions, furnished abundant circumstantial evidence and inference of the required progressive sequence.

The appellant asserts that there was not sufficient evidence to identify him as the individual convicted in 1950 and 1964. We have recently adhered to the principle announced in earlier decisions that “[ijdentity of name[s] is prima facie evidence of identity of person [s].” See Foster v. Commonwealth, Ky., 415 S.W. 2d 373 (Decided October 28, 1966); Sullivan v. Commonwealth, 222 Ky. 771, 2 S.W.2d 666. We have no disposition to depart from that precept.

Appellant undertakes to present claimed ei rors in the instructions as grounds for reversal, but these claimed errors are not available for appellate review; they were not preserved in any manner in the trial court. Kaenzig v. Commonwealth, Ky., 390 S.W.2d 648. Although appellant here did move for a new trial, no reference was made in that motion to any claimed error in the instructions. In this state of case we decline to review the instructions.

A final contention is made that one of the jurors who served on the trial had served on the grand jury which returned the indictment in the case. The record is devoid of any substantive evidence reflecting that the juror was indeed a member of both the grand and petit juries in the case. The record contains nothing of the voir dire examination, so it may not be discerned whether inquiry was made about the point at hand. Finally, the record recites that a “hearing” was had on appellant’s motion for new trial, as amended, but it is silent as to what occurred at the “hearing.” In this situation we have no reviewable question.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    George A. HOFFMAN et al., Appellants, v. DOW CHEMICAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 31, 1967.

      Robert G. Hunt, King, Deep, Branaman & Hunt,' Henderson, for appellants.
    Ridley Sandidge, Sandidge, Holbrook, Craig & Hager, Owensboro, Sam Jarvis, Jarvis, Cornette, Payton & Paxton, Green-ville, George S. Wilson III, Wilson & Wilson, Owensboro, for appellees.
   WADDILL, Commissioner.

This action was instituted by the appellants, joint owners of an oil and gas lease in McLean County, to recover damages to their leasehold allegedly resulting from a hydrafracking operation performed by ap-pellee Dow Chemical Company on the adjoining leasehold of appellee Fred Rowe. Upon notice by Rowe under CR 26 et seq. the nonresident appellants were directed to appear for the taking of their depositions. Their motion for a protective order (CR 30.02) to relieve them of the need to appear was denied. Four of the seven nonresidents did not appear and on appellees’ motion the trial court struck the pleadings of these four nonresidents and dismissed their claims. CR 37.05. The trial court then dismissed the action as to the remaining appellants (residents and nonresidents) on the ground the previously dismissed nonresidents were indispensable parties.

The dispositive question presented on this appeal is whether the trial court abused its discretion in refusing to issue a protective order for the nonresidents.

Our Civil Rules, like the Federal Rules, give the trial court broad power to control the use of the discovery process and to prevent its abuse. Armstrong v. Biggs, Ky., 302 S.W.2d 565.

In 2A Barron and Holtzoff Federal Practice and Procedure, Rule 30, page 212, it is stated:

“As a normal rule plaintiff will be required to make himself available for examination in the district in which he has brought suit. Since he has selected the forum, he will not be heard to complain about having to appear there for a deposition. * *

The nonresidents had the burden of convincing the trial court that their depositions should not be taken. 4 Moore, Federal Practice, Section 30.06 (2nd Ed., 1948).

Each of the nonresident appellants owns either one or two/thirty-seconds interest in this lease. The resident operator of the lease, appellant George Hoffman, owns fifteen/thirty-seconds and appellant Marhill Oil and Gas Company, a Kentucky Corporation, owns the remaining six/thirty-seconds. The nonresidents’ motion for a protective order avers that all conceivably pertinent information which they might have is available from Hoffman; that they had never physically been on the leasehold, and that the appellees had not attempted to get this information from Hoffman. This motion was supported by two affidavits.

In response to this motion the appellees stated no reason for denying a protective order but merely concluded that it was “imperative” they orally examine the nonresidents. Appellees assert that they were •entitled to learn the price paid for the fractional shares and the information which a well operator normally sends the owners of a lease so as to check Hoffman’s subsequent examination. Obviously the price paid for an interest in a lease has little bearing on the damage done to operating oil wells by hydrafracking. Hence, appellees were not entitled to information of this character. Nor was the allegation timely made that lease holders “normally” receive reports sufficient to justify denying the protective order since Hoffman’s deposition was not taken and it had not been established that he had made reports about the operation of the wells to the joint owners. Moreover, if such information were available it could have been obtained by other means, such as by interrogatories. Gevedon v. Grigsby, Ky., 303 S.W.2d 282.

We believe that under the circumstances presented the refusal to grant the protective order (CR 30.02) constituted a denial of the safeguard against the improper use of discovery procedure and an abuse of discretion. Mullenax v. Lighthouse Realty Corporation, Ky., 402 S.W.2d 437; Armstrong v. Biggs, Ky., 302 S.W.2d 565.

Furthermore, when the depositions of the three nonresidents who did appear are read it becomes apparent that appellees did not expect to obtain any relevant information from the nonresidents. Therefore it was error for the trial judge to dismiss this action as to the four nonresidents for their failure to appear. The resulting dismissal of the remaining appellants was likewise error.

Appellants contend the trial court erred in ruling on motions to produce the chemical formula of substances used by Dow. in its hydrafracking, to produce a laboratory analysis of a sample of well water and to strike twelve separate questions propounded under CR 33. Since we are reversing the judgment for further proceedings, these rulings are not final (KRS 21.060; CR 54.01) and, therefore, not reviewable. The correctness of these rulings is specifically reserved.

The judgment is reversed with directions to set it aside and for further proceedings in conformity with this opinion.

All concur.


author: NOLAN CARTER, Special Commissioner.

text:
    Eura Nall SONNER and J. C. Nall, Appellants, v. Eugene NALL et al., Appellees.
    Court of Appeals of Kentucky.
    March 31, 1967.

      John D. Miller, Owensboro, Kenneth N. Ragland, Calhoun, for appellants.
    W. Mallam Lake, Lake & Bratcher, Hartford, for appellees.
   NOLAN CARTER, Special Commissioner.

Mrs. J. T. Nall, who was the same person as Verna Nall, died on or about December 8, 1963, a resident of McLean County, Kentucky.

Several numbered handwritten sheets of tablet paper, the first of which bears the date October 10, 1960, and subscribed “Mrs. J. T. Nall”, were offered for probate in the McLean County Court, and were admitted to probate as the will of Mrs. J. T. Nall on December 21, 1963.

After the purported will of decedent was admitted to probate, appellants, Eura Nall Sonner and J. C. Nall, children of decedent, filed this action in the McLean Circuit Court against Eugene Nall, Gates Nall, Emogene Nall Atherton, also children of decedent, Marvin Eugene Carter, an infant and grandchild of decedent, and Gates Nall, the executor named in the purported will, seeking a judgment declaring the purported will null and void and of no effect because “it is so ambiguous and indefinite that it fails to disclose a meaning or the intentions of the testator in any realistic sense.”

The parties to the action are all named as beneficiaries in the purported will, and we assume are all the heirs at law of the decedent.

By agreed order, the case was submitted to the court upon the record, and briefs of counsel. The circuit court entered judgment on March 29, 1966, adjudging “that the paper offered for probate in the McLean County Court as the holographic will with codicils of Mrs. J. T. Nall, deceased, was properly admitted to probate by said court.” From this judgment, appellants have prosecuted this appeal.

From reading the record, it appears that there is some misconception upon the question of when a purported will may or may not be admitted to probate. The rule as to admissibility of a writing to probate is thus stated in Moss et al. v. Hodges et al., 294 Ky. 677, 172 S.W.2d 584:

“Any writing executed with the formalities of a will, no matter in what form, if intended as a will, and not to take effect until the maker’s death, may be construed as testamentary and admitted to probate, if revocable at any time at the pleasure of the maker.”

See also DeLapp v. Anderson, 305 Ky. 333, 203 S.W.2d 388; Howard’s Executor v. Dempster, 246 Ky. 153, 54 S.W.2d 660.

Matters of construction or interpretation of the instrument, as well as the validity of particular devises, are not to be considered by the probate court in determining whether an instrument should be admitted to probate. Wells v. Lewis, 190 Ky. 626, 228 S.W. 3.

The writing is admittedly wholly in the handwriting of decedent. It was intended by Mrs. Nall to be her will, for at its beginning she states, “This is my last will”. The document is subscribed as required by statute, except as to some writing on the back of page 3. It is clear from a reading of the instrument that it is not intended to take effect until Mrs. Nall’s death, and it is revocable at any time. It follows, therefore, that the writing was properly admitted to probate.

But the admission of the instrument to probate does not preclude an attack upon its validity by an action filed in the circuit court. Whether the purported will should be held void in toto because it is so uncertain, vague, ambiguous or illegible that the intention of decedent cannot be ascertained without resort to guesswork or speculation, or because one or more of its provisions violates the rule against perpe-tuities, or because one or more of its provisions are invalid for any reason, is the real question to be determined upon this appeal.

The original of the purported will is filed with the record. The court has read the several pages which are written in pencil, and while the instrument is by no means a model of penmanship, punctuation or grammar, the court does not find the document illegible. It is true, as contended by appellants, that where the entire purported will is so vague and indefinite that the decedent’s intent as to all of the bequests and devises attempted to be made cannot be ascertained from the instrument itself without resort to speculation, then the court will declare the entire instrument void. Such a document was under consideration in the case of Johnson v. Johnson, 312 Ky. 773, 229 S.W.2d 743, cited and relied on by appellants.

But there are many wills which the courts have decided are partially valid and partially invalid. The following: Futrell v. Futrell’s Extr., 224 Ky. 814, 7 S.W.2d 232; Winn v. William, 292 Ky. 44, 165 S.W.2d 961 and Batts v. Fugate, Ky., 317 S.W.2d 856, cited and relied on by appellants, are such cases.

Where a will contains both valid and invalid provisions, the will is never held null and void in its entirety, but is adjudged to be the will of testator, and is executed as to all of the provisions which are valid. In 57 Am.Jur., Wills, paragraph 38, it is said:

“The failure of one part of a will for invalidity or other cause does not affect those portions of it which are valid. * * Clearly, where a will has at least one valid clause bequeathing a plain and definite legacy, it may be entitled to probate notwithstanding the invalidity of the other provisions.” .

At three places in the purported will, Mrs. Nall undertakes to devise a life estate in all her property to appellee, Eugene Nall. At page 1, she writes: “I want Eugene Nall to have everything his lifetime.” At page 3, she states: “Eugene is to have everything his lifetime.” And on the back of page 3: “The land all goes to Eugene Nall his lifetime.”

It is thus made abundantly clear that the paramount concern of Mrs. Nall was the welfare of Eugene Nall, and the court finds no difficulty in holding that the above-quoted writings constitute a valid and binding devise of a life estate to Eugene Nall.

This is not an action seeking a construction of the purported will, but is an action to have the whole instrument declared void for uncertainty. Since a portion of the purported will is valid, and without determining the validity or invalidity of the remaining provisions of the instrument, we hold that the purported will under discussion is the true last will of Mrs. J. T. Nall.

The judgment is affirmed.

All concur.


author: PALMORE, Judge.

text:
    H. K. BEALIEU, d/b/a Bealleu Insurance Agency, Appellant, v. Byron KUTH, Appellee. Byron D. KUTH, Appellant, v. HARTFORD LIVESTOCK INSURANCE COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    March 31, 1967.

      C. W. Swinford, Stoll, Keenon & Park, Lexington, for H. K. Bealieu and Hartford Livestock Ins. Co.
    Alvin B. Trigg, Joe C. Savage, Wallace, Turner & Trigg, Lexington, for Byron Kuth.
   PALMORE, Judge.

These consolidated appeals arise out of a complaint by Byron D. Kuth . against Hartford Livestock Insurance Company and H. K. Bealieu, an insurance agent, seeking recovery of $10,000 from one or both defendants in connection with an insurance transaction.

After hearing the evidence without a jury the trial court dismissed Hartford and entered judgment against Bealieu in the amount sought. Bealieu appeals from the judgment against him, and Kuth appeals from the judgment insofar as it absolves Hartford.

Bealieu was an agent for Hartford and was in the business of insuring horses. He had authority to bind Hartford up to $50,000 on one animal, and could do so by oral contract pending issuance of a binder. Kuth had a fine standardbred 2-year-old mare named Merrie Annabelle. On or about September 29, 1958, during the evening hours after closing time of the telegraph office Bealieu agreed to and did insure Merrie Annabelle for $40,000, and on the next morning he telegraphed the information to Hartford. A day or so later Merrie Annabelle won another race in record time, which increased her value, and on October 1 Kuth and Bealieu had a conversation in which Kuth indicated that he thought the mare was worth $150,000 and wanted her insured for $75,000. Bea-lieu advised Kuth that Hartford’s limit was $50,000 and that he would have to go to Lloyds of London in order to get $75,000 coverage.

At this point there is a conflict in the evidence. Bealieu says the understanding was that he would endeavor to procure $75,000 coverage from Lloyds. Since it is not possible under the customary terms of this kind of insurance to have contracts with two different companies on the same animal without special permission, Bea-lieu’s intention was to cancel the $40,000 if and when he got the $75,000 coverage from Lloyds. Kuth, on the other hand, testified that when he learned Hartford’s limit was $50,000 he told Bealieu to cover him for that and try to get an additional $25,000, to which Bealieu agreed.

Bealieu did not represent Lloyds, so he contacted Klair and Scott, an agency that did, and on October 2 an application for $75,000 coverage was cabled to London, England. Tentative approval was received from London on October 3, but on that morning Merrie Annabelle sustained an injury that rendered her uninsurable and resulted in her eventual destruction.

Hartford paid Kuth $40,000 but denied any additional coverage. Kuth sued both Hartford and Bealieu, claiming against Hartford that Bealieu had bound the company by oral contract for the additional $10,000 and claiming against Bealieu that he had agreed to procure an additional $10,000 coverage and negligently failed to do so.

The “Findings of Fact” entered by the trial court are a combination of both factual and legal determinations. They recite in substance that in undertaking to procure insurance additional to the initial $40,000 covered by Hartford, Bealieu became a broker, and in that capacity failed to exercise ordinary diligence because, among other things, he did not attempt to obtain $10,000 more coverage from Hartford.

According to the findings, Bealieu “represented that * * * Hartford * * * would not write the additional insurance, but in fact the proof showed that special permission from Hartford was required and the defendant, Bealieu, failed to use ordinary care, skill and judgment in attempting to secure the additional insurance from * * * Hartford,” etc. (Emphasis ours.)

The evidence on which it was found that special permission would have been necessary to obtain $10,000 additional coverage from Hartford is contained in the following passage from Bealieu’s testimony:

Q. “At any time had you told Mr. Kuth that he was insured for an additional $10,000 on Mary [sic] Annabelle?”
A. “No, I had not.”
Q. “At any time did you tell Mr. Kuth that he would get the additional $25,000 policy at Lloyds on Mary [sic] Annabelle?”
A. “No, I did not.”
Q. “Could you have written through Clarence Scott [the Lloyds agent] or anybody else an additional $25,000 policy on top of the policy with Hartford?’’ [Emphasis ours.]
A. “Not without getting special permission.”
Q. “Did you attempt to get any sort of special permission ?”
A. “I did not.”
Q. “If you had gotten the $75,000 policy would you have had to cancel the $40,000 existing policy ?”
A. “I would have had to cancel the binder.”
Q. “Hartford then won’t let successive policies be written on the same animal?”
A. “That is correct.”
Q. “Then * * *
MR. TRIGG: “I object, that’s not what he said.”
THE COURT: “I think that is rather leading. I believe his testimony was that they wouldn’t let him take additional coverage without special permission.”

If it were true that Bealieu could not have committed Hartford for a $10,000 increase under the existing contract without special permission, and that he did not have ostensible authority to do so, then Hartford is not liable. Although the findings do not so specify, obviously that is the basis on which Hartford was found not liable. It seems to us, however, that the finding of a necessity for special permission is clearly erroneous. As we understand the evidence, special permission would have been necessary in order to have additional insurance with another company, but not to increase the amount of coverage within the agent’s limit with the same company.

Our view of the case is that one of three things happened: (1) Bealieu covered Merrie Annabelle for $50,000 with Hartford or knowingly led Kuth to think so; (2) Bealieu did not purport to increase the coverage with Hartford, but undertook to procure, if possible, the desired amount of coverage elsewhere; or (3) there was a genuine misunderstanding. If (1) is true, Hartford is liable and Bealieu is not liable, since Kuth got what he says he thought he was getting. If (2) is true, neither Hartford nor Bealieu is liable. Bealieu certainly acted with reasonable dispatch in attempting to insure with Lloyds. And if (3) is true, of course neither Hartford nor Bealieu is liable.

There is no room in this case for finding Bealieu personally liable to Kuth. He had the authority from Hartford to do what Kuth said he did. So if Kuth’s word is taken, Hartford and Hartford only is bound. There was no reason for any undertaking on the part of Bealieu which would embrace his applying for a $10,000 increase with Hartford, because he could have effected the increase on the spot. In this respect it is significant, we think, that neither Kuth nor Bealieu contended that Bealieu agreed to find $35,000 more coverage. Kuth said he agreed to find $25,000 more; Bealieu insisted he was to look for $75,000 from one company.

The findings of fact are insufficient in that they do not determine whether Bealieu did or did not purport to cover the mare for $50,000 with Hartford. That is necessary, and all that is necessary, to a disposition of the case.

The judgment is reversed and the cause remanded with directions that the action be dismissed as to Bealieu, the findings of fact and conclusions of law revised, and a new judgment entered with respect to Hartford on the basis of the revised findings and conclusions.

All concur except:

MONTGOMERY, J., not sitting.


author: SCOTT REED, Special Commissioner.

text:
    Myrtle PATRICK, Appellant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 31, 1967.

      Cordell H. Martin, Hindman, Rudy Yes-sin, Smith, Reed, Yessin & Davis, Frankfort, for appellant.
    Earl R. Cooper, Salyersville, E. Preston Young, Jack Q. Heath, Louisville, for ap-pellee.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Robert Rieckhoff, Dept, of Highways, Frankfort, for amicus curiae.
   SCOTT REED, Special Commissioner.

Appellant, Myrtle Patrick, appeals from a judgment denying her recovery upon a fire insurance policy issued to her by ap-pellee insuring real estate owned by her against destruction by fire. Fire destroyed the insured property, but the trial court ruled that at the time of the loss appellant did not have an insurable interest in the property destroyed.

The problem posed by this appeal is one of first impression in this jurisdiction and requires determination of whether or not the owner of property destroyed by the element insured against has an insurable interest in such property where condemnation proceedings have been brought against the insured property and have been completed through the county court level and the award paid prior to the loss.

Since we deem time to be a very relevant factor in the determination of this appeal, we give the following brief chronology:

July 27, 1960 — Policy issued covering property subsequently destroyed, for a period of five years.
May 31, 1962 — Commonwealth of Kentucky, Department of Highways, properly instituted condemnation proceedings against property insured in the Magoffin County Court pursuant to KRS, Chapter 177.
June 2, 1962 — Duly appointed commissioners in county court reported a value and damage figure of $7,500.00 for insured property.
July 3, 1962 — County court entered order and judgment by the terms of which it was ordered and adjudged that the Commonwealth of Kentucky, Department of Highways, may take possession of “said land and materials” upon pay-merit of costs of action and award of the commissioners in the amount of $7,-500.00. Commonwealth of Kentucky, Department of Highways, paid the award to the clerk of the Magoffin County Court. This judgment of county court further provided that the owners of the insured property must vacate it and deliver full and complete possession upon the payment of the award by the Commonwealth and authorized a sheriff to evict owners upon their failure to vacate on or after date of payment of county court judgment.
July 7, 1962 — Appellant received the payment made by the Commonwealth from the clerk of the Magoffin County Court.
July 22, 1962 — The insured property was destroyed by fire.

The appellant sued the appellee insurance company in the Magoffin Circuit Court demanding recovery for the amount of the policy which was $4,000.00. The appellee contended that at the time of the loss, appellant had no insurable interest in the property. Proof was taken by deposition and upon submission of the case, the trial court filed findings of fact and conclusions of law upon which judgment was entered denying appellant recovery under the policy for the reason that she had no insurable interest in the property at the time of the loss.

The Commonwealth of Kentucky, Department of Highways, was not named a party to the action. It has filed an amicus curiae brief.

Appellant contends that it was error to deny her recovery under this policy because she held legal title to the property at the time of its destruction and, according to her contention, the condemnor had the right to wholly abandon the condemnation proceedings after the fire occurred.

The appellee maintains that the determination made by the trial court is correct upon the ground that at the time of the loss of the property, the appellant had no interest in it so as to sustain pecuniary benefit from its preservation or incur pecuniary loss as a result of its destruction. It further contends that under the facts herein presented, the condemnor could not have abandoned the eminent domain proceedings.

In its amicus curiae brief, the Commonwealth of Kentucky, Department of Highways, points out that it may abandon a condemnation proceeding, in the absence of a statutory prohibition, at any time, even after judgment, so long as possession has not been taken or the award paid. It further takes the position that the insurance proceeds resulting from appellant’s insurable interest in the property inure to it and that it was an indispensable party to the action and should have been joined as a party by the trial court.

In all fairness, it should be pointed out that after the county court judgment referred to herein was entered, both the appellant and the condemnor appealed the issue of the proper amount of compensation for the property taken to the Magoffin Circuit Court. Therefore, it is true that at the time of the destruction of the insured property, appellant held legal title to it, but the fact that the named insured held legal title to the insured property is not conclusive of the existence of an insurable interest as the trial court correctly discerned as evidenced by its citation of Cook’s Adm’r v. Franklin Fire Insurance Company, 224 Ky. 360, 6 S.W.2d 477.

Appellant relies upon cases from foreign jurisdictions, among them, Pennsylvania, Illinois, New York and Virginia. Ap-pellee also relies upon cases from foreign jurisdictions, among them, New Jersey, Alabama, Florida and Missouri. An annotation collecting foreign cases on the general subject presented may be found in 29 A.L.R.2d 888.

We have considered the cases cited and have concluded that it would be pointless to extend this opinion by detailed discussion of them. It is apparent that the statutory provisions relating to eminent domain of the particular state involved are largely responsible for the results reached in these cases and, therefore, it is necessary that we consider the problem in the light of the Kentucky Statutes which are peculiar to the problem presented and contribute, in large measure, to the result reached.

KRS 177.086(2) (c) authorizes the county court judgment which was made and entered in this case and was to the extent of payment of compensation carried into effect prior to the destruction of the insured property. It authorizes the condemnor to take possession of the property which is the subject of the condemnation action and further authorizes eviction of the owner from such property upon the payment of the county court award.

KRS 177.087(6) authorizes conveyance of the title by action of the circuit court upon determination of an appeal. It is undisputed, in the instant case, that the pending appeal to the circuit court was confined only to the issue of the amount of compensation to be paid for the taking, and the right of the condemnor to pay the county court award and take possession of the property was unaffected by this appeal.

Thus, it appears that prior to the destruction of the property, appellant had been paid an amount of money which represented a judicial determination of the fair market value of the insured property. This judicial determination was subject to appeal as to its amount, but it is also true that appellant was entitled to and was assured by operation of law that she would receive a judicially determined amount of money representing the fair market value of the property insured.

Insurable interest is that interest in the subject matter insured by virtue of which the person insured will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction or injury by the happening of the event insured against. See Crabb v. Calvert Fire Insurance Company, Ky., 255 S.W.2d 990. Also see KRS 304.651(2).

Since appellant had received a judicially determined amount of money representing the fair market value of the property prior to its destruction or loss and was not entitled to possession of the property at the time of its loss, then it would appear that she did not have an insurable interest in the property unless the condemnor had the right to abandon the condemnation proceedings and recover back from her that which it had paid and she had accepted, or refused to pay a higher award which might be assessed by later judicial proceedings.

It is the settled law in this state that a condemnor may abandon a condemnation proceeding, in the absence of a statutory prohibition, at any time, even after judgment, so long as possession has not been taken or the award paid. See Commonwealth, Department of Highways v. Fultz, Ky., 360 S.W.2d 216; Commonwealth, Department of Highways v. Holloman, Ky., 390 S.W.2d 666; Handy v. City of Hazard, Ky., 408 S.W.2d 455.

We are of the opinion that the use of the word “award” in our cases just cited has reference to either the “award” in the county court or the amount determined by a judgment of circuit court if a county court award has not been previously paid. In other words, once the con-demnor pays its right to abandon the condemnation proceedings ceases. Cf. Kentucky Hydro-Electric Co. v. Woodard, 216 Ky. 618, 287 S.W. 985; Knox Fiscal Court v. Phipps, Ky. 261 S.W.2d 441.

We have carefully considered all of the cases cited by appellant and it appears that in each case on which she relies the facts showed either that no award had been paid by the condemnor or the condemnor, by reason of the particular eminent domain statutes of the jurisdiction involved, was not irrevocably committed to take the property at the time of its destruction. In the case of Heidisch et al. v. Globe Republic Insurance Company of America, 368 Pa. 602, 84 A.2d 566, 29 A.L.R.2d 884, on which appellant places principal reliance, at the time of the destruction of the property the condemnor had neither paid compensation for the property nor taken possession of it.

It is, therefore, our opinion that at the time of the destruction of the property insured in the instant case, the condemnor did not have the right to abandon these condemnation proceedings and appellant had been paid the amount of the county court award which divested her of the right of possession but assured her of receiving a judicially determined amount of money for the property representing its fair market value. Under this state of the case, appellant, of course, did not have an insurable interest in the property and the risk of the destruction of such property at the time of its loss was on the condemnor.

We cannot accept the argument of the Commonwealth of Kentucky, Department of Highways, that it was an indispensable party to this action. The action was upon a policy of insurance to which it was not a named party. The only issue raised by the pleadings and proof was whether or not appellant was entitled to recover upon her contract of insurance with appellee.

Therefore, the Commonwealth of Kentucky, Department of Highways, did not meet the requirements prescribed for indispensable parties to litigation. See Clay, CR 19.01, pages 317-319. It is elementary that as the Commonwealth was riot a party to this action, it is not bound by the judgment herein nor are its rights prejudiced.

The judgment is affirmed.

All concur.


author: MONTGOMERY, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Mary Irene SHELTON, Appellee.
    Court of Appeals of Kentucky.
    March 31, 1967.

      John B. Anderson, Owensboro, for appellant.
    Gwin & Her, Owensboro, for appellee.
   MONTGOMERY, Judge.

This is a second appeal. See State Farm Mutual Automobile Insurance Company v. Shelton, Ky., 368 S.W.2d 734. On that appeal the court reversed the judgment and held that an insurer may show fraud and collusion to escape the general rule that an insurer who has a right to defend an action and has had timely notice of the action is bound by the judgment (when later sued by the injured person) as to those issues which were or might have been litigated in the original suit.

On re-trial verdict and judgment were rendered against the insurance company for $10,500, with 6% interest per annum thereon from February 25, 1964, the date of the last judgment. It has appealed and urges that the trial court erred in several instances in the admission or rejection of testimony and that appellee’s counsel was guilty of misconduct in argument to the jury. By cross-appeal, Mary Irene Shelton urges that the trial court erred in denying her interest from the date of the original judgment against the insured.

In this action Mary Irene Shelton sued State Farm upon a judgment against Bernard Dowell, the insured, for $12,500, with 6% interest per annum from November 13, 1959, until paid. Originally appellee sued Dowell, I. M. Onstott, and Roy Sisk in the Daviess Circuit Court for injuries received when Sisk’s truck struck the rear end of Onstott’s car in which Onstott, Dowell, and appellee, together with one James Cooksey, were riding. Judgment of $12,500 was obtained against Dowell and Onstott. State Farm had refused to defend this action. The action was dismissed as to Sisk although judgment for $2,250 was obtained against him in Tennessee in another action. The collision occurred in Tennessee.

The fraud and collusion issue in the second trial of this action was based on appellant’s contention that Onstott, not Dowell, was driving the car and that ap-pellee and Dowell fraudulently claimed that Dowell was the driver in order for the appellee to collect from appellant, Dowell’s insurer.

Appellant contends that it should have been permitted to ask appellee concerning her testimony taken by discovery deposition in this action. The gist of the testimony in the deposition is that Sisk was at fault in the accident and that Dowell and Onstott did nothing to contribute to her injuries. She was then asked concerning her statements made in the deposition: “I wasn’t suing them, I was suing the insurance company. * * * I just sued them for the insurance.”

It is the position of appellant that such testimony shows fraud and collusion. The trial court held that this was an attempt to relitigate the issue of liability of Dowell and Onstott and that it had already been determined, as was held in the first appeal of this case. Obviously the first ■part of the statement dealt with fault. The second part, about suing Dowell and On-stott for the insurance, does not show fraud or collusion. It contains statements apt to be made by one unlearned in legal matters. The trial court correctly rejected such tes7 timony as immaterial.

Likewise, the testimony concerning the injuries and the extent thereof suffered by appellee and offered by appellant was immaterial to the issue of fraud and collu•sion being tried.

The trial court refused for the same reason the offer of appellant to introduce a certified copy of a judgment obtained by appellee against Roy Sisk in 'Tennessee. This judgment was unsatisfied at that time. A person injured may proceed either jointly or severally against the tort feasors. Penrod v. Devine, 301 Ky. 629, 192 S.W.2d 817; Daniel v. Turner, Ky., 320 S.W.2d 135; 52 Am.Jur., Torts, Section 127, page 464.

Appellant complains that it was error to admit testimony by Dowell that he had told a state trooper investigating the accident that he (Dowell) was driving the car. It is insisted that such statement was inadmissible as hearsay. Before any objection was made, Dowell earlier had testified that he was driving the car. Further, it was not hearsay since it was a statement made by Dowell, of which he had knowledge and about which he could be cross-examined. See Preston v. Commonwealth, Ky., 406 S.W.2d 398, for authorities and discussion of principles. Gainesboro Telephone Company v. Thomas, 234 Ky. 373, 28 S.W.2d 34, is not applicable because there the witness was not speaking of his own knowledge but was repeating something told him. The trial court correctly admitted the testimony.

It is contended that the trial court could not take judicial notice of a Tennessee statute of which it was not apprised. Appellant moved for a directed verdict because the statute had not been read into evidence. The same answer is available to this objection as has been made to other claims of error. The statute may have been pertinent on the issue of liability but was not material on the issue of fraud.

Appellant’s last contention is that appellee’s counsel was guilty of misconduct in his argument before the jury in making these statements: “That State Farm Insurance Company through one or the other of their representatives paid to Cooksey and to his family the sum of Four Hundred Dollars to come into this Court and lie,” and that appellee’s counsel said to appellant’s counsel, “Shame on you, John, for obtaining the lies of Cooksey on this witness stand and permitting him on this stand to lie.”

The question of timeliness of objection to such argument is not considered. There was evidence to the effect that Cooksey had made inconsistent statements concerning whether Dowell was driving the car and that Cooksey had received $400. Under the circumstances the testimony gave rise to a legitimate inference that Cooksey may have received the money to .change his statement. The argument was permissible. Elliott v. Drury’s Adm’x, 309 Ky. 814, 219 S.W.2d 3.

On cross-appeal, appellant insists that she is entitled to interest on the amount of the original judgment against Dowell from its date until paid. Interest was allowed on the amount of the judgment entered on February 25, 1964, only. In reply, appellant undertakes to re-argue the question of who was driving the car and to insist that it should pay interest from the date of the later judgment only.

The policy issued by appellant to Dowell provided, so far as is pertinent, for “coverage A, $10,000 for all damages arising out of bodily injury sustained by one person in any one accident” and for coverage C, $508 for medical payments.

Section (2) (b) is as follows:

“As respects the insurance afforded under coverages A and B and in addition to the applicable limits of liability ******
“(b) to pay costs taxed against the insured in any such suit and, after entry of judgment, all interest accruing on the entire amount thereof until the company has paid or tendered such part of such judgment as does not exceed the limit of the company’s liability thereon;”

Section (2) also provides for defense of the action and for payment of bond premiums and other items of expense.

Appellee bases her claim for interest on the full amount of the first judgment on Section (2) (b). It is argued that until the appellant has paid or tendered the amount for which it is liable it should be held liable for interest on the whole amount of the judgment against its insured. Appellant did not make the required tender or payment. It is to be noted that under Section (2) (b) the payment of costs, tax, and interest shall be “in addition to the applicable limits of liability,” indicating payments to be made over and above the limits of liability.

The language of the provision provides for the payment of interest on the entire amount of the judgment instead of the limit of the policy coverage. To relieve itself from such burden, appellant, by the same provision, is permitted to pay or tender payment of “such part of such judgment as does not exceed the limit of the company’s liability thereon.”

It is a fundamental rule in the construction of insurance policy contracts that the contract shall be liberally construed and any doubts resolved in favor of the insured. Weaver v. National Fidelity Insurance Company, Ky., 377 S.W.2d 73; The Travelers v. Humming Bird Coal Company, Ky., 371 S.W.2d 35; Rash v. North British & Mercantile Insurance Company, Ky., 246 S.W.2d 990.

To apply the rule to this case, appellant could have protected itself by payment or tender of the policy limits of coverage in the original action and, thus, could have stopped the running of interest. It is no answer to say that appellant claimed no liability by reason of an exclusion or by reason of fraud and collusion as is claimed here. The recovering party is entitled to compensation for the loss of use of money recovered, and the loss of enjoyment thereof must be compensated by the payment of interest. Appellant is entitled to litigate such issues as it may desire, but it cannot litigate at the expense of appellee after her claim against the insured has been reduced to judgment. The remedy is tender of the policy limits of coverage as is provided in appellant’s contract.

For these reasons the trial court should have amended the judgment to include interest in appellee’s favor on $12,500 from November 13, 1959, until the date the revised judgment is paid.

Affirmed on appeal and reversed on cross-appeal.

All concur.