author: CLEMENS, Commissioner.

text:
    L. E. PAULING, d/b/a L. E. Pauling Decorating Company, Plaintiff-Respondent, v. William ROUNTREE, Defendant-Appellant.
    No. 32375.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.

      Paul Taub, Overland, for appellant.
    Derrick & Holderle, Tyree C. Derrick, St. Louis, for respondent.
   CLEMENS, Commissioner.

In this breach of contract action the plaintiff got a $5,025 verdict and judgment for loss of profits. The defendant appeals.

Plaintiff pleaded a written agreement by which the defendant hired him to paint 91 apartment units at $323 each; that plaintiff had painted and been paid for 24 units when the defendant hired another painter who painted the remaining 67 units, this resulting in plaintiff’s loss of $5,561 profits. By his counterclaim the defendant admitted the written agreement but claimed $10,000 damages for defective workmanship on the 24 completed units.

The verdict-consistent evidence: Plaintiff Lester E. Pauling is a painting contractor, and defendant William Rountree a builder of apartments. Early in 1959 Roun-tree was planning and developing two apartment areas, one in St. Charles and one in Overland. The St. Charles development was for 24 four-apartment units and the Overland development was for 67 identical four-apartment units. Rountree asked Pauling to bid on painting the interior doors and frames and the exterior trim and gutters of all 91 units. At that time construction of the 24 units in the St. Charles development was in process; the Overland development was still on paper. Rountree showed Pauling the detailed plans of a model unit, gave him the details of the painting he wanted, and described the locations of both developments. On May 12, 1959, Pauling submitted — and Rountree accepted — this bid:

“Dear Mr. Rountree:
“We quote as follows to furnish labor, material and equipment for interior and exterior painting of ninety-one four-family apartment buildings:
“Apply two coats of Miniwax to 40 interior doors, paint 40 metal door frames two coats. Apply two coats of lead and oil paint to all exterior wood trim, and gutters. Each four family building, as listed above — $323.00.
“Terms of Contract: Fifty per cent payment on each building after first coat has been applied and balance on completion of each building.
Respectfully submitted,
L. E. PAULING DECORATING CO.
/s/ L. E. Pauling
L. E. Pauling
“If accepted, please sign copy and return for our files, /s/ B. E. Rountree”

As the St. Charles construction progressed, Pauling’s painters began the painting specified in the agreement. (This did not include painting the interior walls; that was done by another contractor, Butler Painting Company.) From time to time Rountree complained of omissions and imperfections, and Pauling corrected them. In addition, Pauling put prime coats on some of the lumber that was to be used later in the Overland job; Rountree never paid Pauling for this additional priming work, but that was not an issue in the case. While the St. Charles painting progressed, Rountree paid Pauling the agreed installments, and at the end Rountree expressed his satisfaction with the completed work on the 24 units.

The Overland development lagged. Meanwhile, Rountree made minor changes in his building plans, so there was a bit more painting to be done in each of the. 67 Overland units. Nevertheless, when Pauling learned the Overland construction had progressed to a stage where his painting could be resumed, he went there to plan his work, only to find painters employed by the Butler Painting Company doing the work Pauling had contracted to do. Pauling confronted Rountree. Rountree said Butler was doing the work for less money, and when Pauling accused Rountree of breaking their contract Rountree said: “Let’s assume we threw it open for re-bid.” He refused to let Pauling finish the work on the 67 Overland units. Pauling’s cost for painting each unit was $248.75 — $74.25 less per unit than the contract price.

On trial of his counterclaim Rountree testified he had entered into the agreement with Pauling, but that Pauling had not done the St. Charles work properly. Although Rountree had no evidence of damages, the court submitted his counterclaim to the jury.

The jury found the submitted issues in favor of plaintiff Pauling and against defendant Rountree, and assessed Pauling’s damages at $5,025. Judgment was rendered accordingly. The trial court denied Roun-tree’s after-trial motions for judgment and a new trial, and he appealed.

Before ruling defendant’s challenges we call attention to Civil Rule 83.05 (a) and (e), V.A.M.R. Subsection (a) requires an appellant’s brief to contain the “points relied on,” which shall state what actions or rulings of the trial court are sought to be reviewed and wherein and why they are claimed to be erroneous. Subsection (e) emphasizes this, declaring that the points relied on shall concisely state why the trial court was wrong in any ruling or action sought to be reviewed. In effect, the rule says the points relied on should be used as a target pistol firing at a bull’s-eye, not as a shotgun firing at clay pigeons. Much of the defendant’s brief fails to comply with the rule.

Point II of the brief says the trial court erred in denying defendant’s motions to dismiss and for judgment “because Plaintiff’s Petition fails to state facts constituting a claim upon which relief .may be granted plaintiff; even after trial, plaintiff failed to make a case.” This is an abstract assertion: it fails to state what essential elements were omitted from the pleading and proof, or why the trial court erred. Such a sweeping challenge to the sufficiency of a plaintiff’s petition and evidence does not comply with Civil Rule 83.05(e) and presents nothing for review. See Jones v. Farm Bureau Mutual Ins. Co., Mo.App., 284 S.W.2d 11 [3], and State ex rel. P. W. Finger Roofing Co. v. Koch, Mo.App., 272 S.W.2d 22[3].

Point I of defendant’s brief challenges the plaintiff’s verdict directing instruction. It says, the instruction errs in telling the jury a contract existed between the parties. Assuming, arguendo, that defendant’s point on the instruction complies with Civil Rule 83.05 by stating wherein and why it is claimed to be erroneous, still there is nothing preserved for our review. This, because defendant’s brief does not set forth the challenged instruction. In simple words Civil Rule 83.05(a) declares that when a point relied on relates to the giving or refusal of an instruction, the instruction shall be set forth in the argument portion of appellant’s brief. Failure to comply carries the penalty of refusal to review. See Brown v. Thomas, Mo.App., 316 S.W.2d 234[9], and Lynch v. Rosenthal, Mo.App., 396 S.W.2d 272 [7]. We have, however, examined the instruction in the transcript. But we also note that by his pleading, his evidence and his instructions the defendant admitted the written agreement with plaintiff. We see no error requiring review.

In this Point I the defendant also complains of the court’s refusal of his Instruction B. The instruction is not set out in the brief, no page reference is given, nor does the point relied on say why this was error. The failure to comply with Civil Rule 83.05 prevents us from reviewing the point.

Point III of the defendant’s brief challenges the giving of plaintiff’s damage Instruction 7 and the refusal of defendant’s damage Instruction C. The first complaint is that plaintiff’s damage instruction “is erroneous in law as a measure of damages instruction in a case where plaintiff claims loss of profits.” This is an abstract statement and preserves nothing for review. Civil Rule 83.05(e). The defendant also claims error because the instruction authorized the jury “to find damages without causal relationship to any alleged breach.” The instruction:

“If you find in favor of the plaintiff, then you will assess his damages at whatever sum you believe he lost by reason of his not being able to complete the contract according to its terms and conditions.”

We emphasize the words that refute defendant’s point that the instruction authorized the jury “to find damages without causal relationship to any alleged breach.” We are not called upon to approve or condemn this modification of MAI 4.01 to fit a loss-of-profits case. Enough that it is not erroneous on the ground defendant assigns.

The second part of defendant’s Point III says the court erred in refusing his Instruction C. It read:

“If, according to other instructions, you find the issues in favor of Plaintiff Pauling on his petition herein, you will award to Plaintiff nominal damage of one dollar, unless you believe that Plaintiff has proven a larger amount of damage with reasonable definiteness and certainty, and not by speculation and conj ecture.”

Defendant’s point relied on says the refusal of this instruction was erroneous “because the same was well founded in law, and properly stated the burden of proof of damages on plaintiff, and because the court thereby removed from the case an issue of credibility of plaintiff’s testimony.” Liberally construed, the gist of this point is that defendant was entitled to an instruction conversing plaintiff’s damage Instruction 7, quoted above, and also the jury should have been told the burden of proving damages rested on the plaintiff.

The defendant was entitled to and got an instruction conversing the plaintiff’s verdict directing instruction. That converse instruction told the jury to find for defendant Rountree if they did not believe plaintiff was damaged by the breach. The defendant was not entitled to an additional instruction conversing the plaintiff’s damage instruction. Nor do we find merit in defendant’s complaint about the plaintiff’s burden of proving damages. Plaintiff’s verdict directing and damage instructions each required the jury to believe plaintiff was damaged. The word “believe” was explained by Instruction 6, MAI 3.01. Thus, the plaintiff’s burden of proving damages was stated twice.

For the reasons given we have declined to review several of defendant’s complaints. In doing this we follow the time-honored principle that the purpose of rules of appellate procedure is to enable counsel and the court to get down to the hard-core issues of the case. This can be done only when the appellant’s brief precisely informs the respondent and the appellate court just what those issues are." The rules must be enforced or abandoned, for when an appellate court does not enforce its rules it unjustly penalizes those who labor to obey them. See Sullivan v. Holbrook, 211 Mo. 99, 109 S.W. 668[2], That case was followed in the landmark case of Ambrose v. M. F. A. Co-Operative Assn. of St. Elizabeth, Mo. (banc), 266 S.W.2d 647, where appellants were again warned of the results of violating rules of appellate procedure. Since 1954, appellate courts have cited the Ambrose case an average of six times a year. We cannot, in good conscience, ignore the failures of defendant’s brief to comply with our rules.

In following this course we have not ignored Civil Rule 79.04, V.A.M.R. That rule declares that plain errors affecting substantial rights may be considered on appeal even though defectively preserved for review if manifest injustice or miscarriage of justice has resulted. We find no reason here to invoke this rule.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Marvin FINE and Rosalind Fine, Plaintiffs-Appellants, v. WALDMAN MERCANTILE COMPANY, a Corporation, and Esther Miller, Defendants-Respondents.
    No. 32540.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.

      Adolph K. Schwartz, St. Louis, for appellants.
    Gray & Sommers, C. Marshall Friedman, St. Louis, for respondents.
   CLEMENS, Commissioner.

On this appeal two principles of appellate procedure come into conflict: the presumption that the trial court acted correctly, and the presumption that the transcript is correct and complete.

The defendants filed motions to dismiss plaintiffs’ petition, charging that a prior action concerning the same subject matter was pending and that the plaintiffs could get relief only by counterclaims in the prior action. The trial court granted the motions and dismissed the petition. Plaintiffs appeal from that order.

By their petition, filed November 18, 1965, plaintiffs Marvin Fine and Rosalind Fine asked for damages arising from a collision with an automobile owned by defendant Waldman Mercantile Company and driven by its agent, defendant Esther Miller. The defendants filed separate motions to dismiss the petition because the Fines had failed to comply with the compulsory counterclaim rule (Civil Rule 55.45 [a], V.A.M.R.). Defendant Miller’s motion to dismiss asserted:

“1. A suit arising out of the same occurrence as that alleged in plaintiffs’ petition has been previously commenced by this defendant in the Circuit Court of the County of St. Louis, State of Missouri, on October 30, 1965, with summons served on plaintiff, Rosalind Fine, on November 9, 1965, both prior to the filing of this petition.”

Defendant Waldman’s motion to dismiss asserted the same ground and added:

“2. Pursuant to V.A.M.R. Civil Rule 55.45(a), jurisdiction of this plaintiff’s claim is vested in the Circuit Court of the County of St. Louis, State of Missouri, in which jurisdiction of this defendant can be obtained, and therefore, if filed at all, must be filed as a counterclaim in that action.”

On January 4, 1966, the parties appeared in court by counsel and the motions — to quote from the record — “were presented to the Court, argued, heard [leave granted to file memoranda, and thereupon] taken as submitted.” Then, on February 8, 1966, the trial court entered this order:

“The Court having heard and duly considered defendant Miller and Waldman Mercantile Company’s separate motions to dismiss, heretofore filed, presented and submitted, and now being sufficiently advised of and concerning the premises, doth order that said motions be and the same are hereby sustained.”

On this appeal, the plaintiffs claim the trial court erred in dismissing their petition because defendants had failed to show there was another action pending that would bring plaintiffs’ action within the compulsory counterclaim rule.

We have quoted substantially from the transcript, approved by all parties. We note that defendants’ motions to dismiss are unverified; there are no supporting affidavits or exhibits; and the transcript does not show any stipulations, admissions or evidence of the alleged prior action. We further note that in its order dismissing plaintiffs’ petition the trial court made no finding about the alleged prior action. (And since it was alleged to be pending in another court, it could not have been judicially noticed. State v. Moreland, Mo., 351 S.W.2d 33 [6].)

The defendants’ motions to dismiss are authorized by Civil Rule 55.31, V.A.M. R., which says that certain defenses, including the pendency of another action, “and other matters” may be raised by motion. This kind of motion may go beyond the face of the pleadings; it has been called a “speaking motion.” Randall v. St. Albans Farms, Inc., Mo., 345 S.W.2d 220 [2]; Locasio v. Ford Motor Co., 240 Mo.App. 269, 203 S.W.2d 518 [1, 2], But unless the grounds for the motion are un-controverted, they must be supported by affidavits, records or other evidence. In other words, the motion does not prove itself; the movant has the burden of proving its substance. Glick v. Ballentine Produce Inc., Mo., 396 S.W.2d 609 [2]; Hall v. Smith, Mo., 355 S.W.2d 52 [4]; Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69 [7-8]; Meisel v. Mueller, Mo.App., 261 S.W.2d 526, 1. c. 531-532.

The defendants here did not carry that burden; the record is void of evi-dentiary support that would authorize the court to grant the motion. It seems incredible to us that the trial court dismissed plaintiffs’ petition without having before it some documentary evidence of the prior action. We suspect that it did. The defendants, however, did not make a record of facts upon which we can say the trial court was correct in dismissing the petition. We must take the transcript as we find it; it may not be padded with extraneous material. Baker v. Missouri Nat. Life Ins. Co., Mo.App., 372 S.W.2d 147 [11, 12], (For this reason we do not consider the certified copies of pleadings that defendants recently lodged with our clerk— deposited without notifying opposing counsel and without asking for leave to file.)

As said, we are confronted with conflicting principles: the presumption of correct action by the trial court and the presumption of the verity of the transcript. We often read: “Where there is no showing to the contrary, the presumption is in favor of correct action by the trial court.” 3 Mo.Digest, Appeal and Error ®=»907(1). But we also often see the statement: “A transcript, duly approved, is presumed to contain everything pertinent to the issues presented.” 3 Mo.Digest, Appeal and Error 939. Where the propriety of granting a motion depends on evidence but no evidence appears in the transcript, we cannot presume that proper evidence was adduced. McDaniel v. Lovelace, Mo.App., 392 S.W.2d 422 [6-7]. To the contrary, if the transcript fails to show evidence was adduced, we must presume evidence was not adduced. Rippe v. Sutter, Mo., 292 S.W.2d 86 [6],

Reconciling these two principles, we say that for us to presume correct action by the trial court in dismissing the plaintiffs’ petition we would have to assume — contrary to the transcript — that evidence was introduced and, further, we would have to speculate what that evidence was. This we may not do. Rippe v. Sutter, supra; State ex rel. Southwest Nat. Bank of Kansas City v. Ellison, 266 Mo. 423, 181 S.W. 998 [4-5].

The case before us is not unique. In Randall v. St. Albans Farms, supra, and Rippe v. Sutter, supra, it was held erroneous to grant a “speaking motion” to dismiss where the transcript did not show evidence to support the motion.

To summarize: Defendants’ motions to dismiss did not attack the merits of plaintiffs’ petition; they raised a jurisdictional issue. The grounds of the motions — the pendency of another action — were matters that were capable of unassailable proof. Therefore, the motions were authorized by Civil Rule 55.31, V.A.M.R., and gave the trial court jurisdiction to dismiss the petition. But the trial court had no authority to dismiss the petition until the defendants did present unassailable proof that there was a prior action pending that would bring the plaintiffs within the scope of the compulsory counterclaim rule. The defendants did not present that unassailable proof, so it was error to grant their motions to dismiss.

The judgment is reversed and the cause remanded with instructions to reinstate plaintiffs’ petition and to grant defendants leave to amend and resubmit their motions to dismiss if they so desire.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment is reversed and the cause remanded with instructions to reinstate plaintiffs’ petition and to grant defendants leave to amend and resubmit their motions to dismiss if they so desire.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


author: TITUS, Judge.

text:
    Arnold MADISON, Plaintiff-Appellant, v. Dixie DODSON, Defendant-Respondent.
    No. 8599.
    Springfield Court of Appeals. Missouri.
    Jan. 17, 1967.
    Motion for Rehearing or to Transfer Denied Feb. 13, 1967.
    Application to Transfer Denied April 10, 1967.

      John Alpers, Jr., Cabool, for plaintiff-appellant.
    Hiett & Becker, Houston, for defendant-respondent.
   TITUS, Judge.

This action, filed June 25, 1965, in the Circuit Court of Texas County, Missouri, is the second suit brought by plaintiff, Arnold Madison, on a $9,500 promissory note admittedly executed at Salinas, California, on June 20, 1961, by Doyle and Dixie Dodson (husband and wife). The note, due December 1, 1961, obligated the makers jointly and severally and represented money loaned by plaintiff so Mr. Dodson (who died in August 1964) could buy a half-interest in the Hogan Department Store at Salinas which he and plaintiff thereafter, for a time at least, operated as a partnership. Plaintiff asserts only $500 principal had been paid on the note before either suit was instituted and here appeals from a judgment entered May 13, 1966, on a verdict returned in favor of defendant.

Labeled “Retirement of Partner,” an agreement signed by plaintiff and Doyle Dodson January 3, 1962, provided plaintiff was retiring from the partnership effective January 13, 1962, and was to be paid $19,-000 for his interest in the business. Handwritten at the end of the contract and above the signature appears: “This agreement becomes effective the day of transfer of the nineteen thousand and no/100 to me.” Plaintiff testified that after execution of the agreement he had nothing to do with the store management, but worked “for a period under a salary.” The store was closed in February or March 1962 and its assets sold for the benefit of creditors.

Plaintiff first filed suit on the note February 21, 1962, in the Superior Court of Monterey County, California, against “Doyle Dodson, Dixie Dodson, Doe One, Doe Two and Doe Three, Defendants.” Mr. and Mrs. Dodson were personally served and the sheriff’s return recites Mr. Dodson was being sued both “individually and doing business as Hogans Department Store, a sole proprietorship.” On September 13, 1962, a “Default Judgment (By Court)” was entered by the California Court against “defendant Doyle Dodson [in] the sum of $9,000, plus interest thereon at the rate of 61/2% per annum from and after June 20, 1961; for attorneys’ fees in the sum of $2,500; together with costs in the sum of $791.08.” The record is totally void of evidence as to what disposition, if any, was made of the claim against Dixie Dodson in the California law suit.

To avoid liability defendant pleaded the note had been fully paid by Doyle Dodson and that the California judgment against him “is a bar to this action against this Defendant; that said Judgment is res ad-judicata to this cause of action against this Defendant and that this Defendant was discharged and released from all liability on said Note.” Attached to and incorporated in defendant’s answer was a copy of the “Retirement of Partner” agreement and an authenticated copy of the California court records. Plaintiff’s reply denied the affirmative defenses of the answer.

The equivocalness in defendant’s testimony is best illustrated per ipsissima verba: “Q. Now, the consideration in this [Retirement of Partner] agreement is nineteen thousand dollars, is that correct? A. Yes * * Q. Did you and your husband acquire the money to pay this nineteen thousand dollars? A. Yes, we did. * We borrowed it from the Bank of America [and] it was turned over to my husband to pay Mr. Madison. * * * Q. Mrs. Dodson, I will ask you: Was this note paid? A. Yes. * * * Q. * * ⅝ [H]ow was it paid? A. It was paid with this agreement and the twenty thousand we borrowed from the Bank of America. * * Q. You didn’t pay him. And if he was paid he would have been paid by someone else, right? A. Yes. * * Q. How much money did Mr. Madison [say he] receive^] from your husband, according to the conversation that you overheard? A. He said he received ten thousand dollars. Q. Now, did you ever hear Mr. Madison state that he received the other nine thousand dollars, the payment of this note ? A. No, I understood this ten thousand dollars paid the note.”

Four checks, totaling $9,000 drawn on the account of Hogan’s Department Store at the Salinas Branch of the Bank of America, and each payable to plaintiff, were received in evidence. Plaintiff testified the checks were given him the latter part of January 1962 “postdated” in an attempt to pay the note balance. None of the checks were paid because of “Not Sufficient Funds.” Two of the checks are dated February 7, 1962, signed by Dixie Dodson, and are in the amount of $2,000 each. Written on the face of both these checks is: “Note Amer Trust Bank.” Defendant says these checks were given plaintiff because of a note he and her husband had at the American Trust Bank for borrowing “some money to buy some property, I believe it was * * * it has nothing to do with this other note.” Mrs. Dodson did not testify regarding the third check dated February 20, 1962, in the amount of $2,500, nor as to the fourth check drawn to a like amount dated February 27, 1962.

Instruction number 5 (not in MAI) offered by the defendant was given by the trial court, as follows:

“Your verdict must be for defendant if you believe:
“First, that the promissory note sued on has been paid in full by Doyle Dodson or Dixie Dodson, or both, or
“Second, that plaintiff sued Dixie Dodson as a defendant, along with Doyle Dodson, in the Superior Court of the State of Califonia, Monterey County, for payment of the note in question in this case, and
“Third, that no court judgment was rendered against Dixie Dodson in said California Court, nor was said case dismissed against Dixie Dodson, who was and is the same person as the defendant in this case.”

The trial court of its own initiative gave instruction number 6 (MAI No. 3.01) as follows"

“In these instructions you are told that your verdict depends on whether or not you believe certain propositions submitted to you. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. The burden is upon plaintiff to cause you to believe the propositions necessary to support his claim against defendant. If the evidence in the case does not cause you to believe a particular proposition submitted or if you are unable to form a belief as to any such proposition, then you cannot return a verdict requiring belief of that proposition.”

On this appeal plaintiff claims the trial court erred by giving instruction number 6 without including in the charge that defendant had the burden of proving her affirmative defenses. Plaintiff objects to instruction number 5 because the affirmative defense of payment and “the second affirmative defense contained in said instruction [were] not supported by the evidence and because the instruction does not properly define the affirmative defense of res adjudicata.”

Payment is an affirmative defense and the burden of proof was on defendant to establish payment of the note. Proof of payment may come from inferences drawn from facts and circumstances, yet “to authorize such an inference the facts and circumstances should ‘all point one way (to payment) and be inconsistent with any other reasonable hypothesis than that payment was made.’ ” Dorroh v. Wall, Mo.App., 297 S.W. 705(2); Wolfberg v. State Mut. Life Assur. Co. (8CCA), 36 F.2d 171, 174(2).

The recitation by defendant the note was paid “with this [Retirement of Partner] agreement and the twenty thousand [dollars] we borrowed from the Bank of America,” suggests an amalgamation of the note with the contract into a resulting $19,000 alloy. Plaintiff conceded during oral argument before us the $19,000 figure stated in the agreement did, in fact, include the $9,000 balance due on the note, even though the contract itself does not so provide. Regardless of this most unusual blending, the parties consider the note and agreement as separable entities, which results in placing a $10,000 valuation on plaintiff’s interest in the partnership. Defendant’s was the only testimony offered to prove payment, and her alludement to the borrowed $20,000 implied, at least, the entire $19,000 obligation (which included the note) had been satisfied. Pressed further, however, defendant revealed she had no personal knowledge of payment and was basing her testimony entirely on what plaintiff had told her. Plaintiff, according to defendant, did not tell her “the other nine thousand dollars, the payment of the note” had been made, and the $10,000 plaintiff allegedly admitted being paid was merely “understood” by defendant to have paid the note.

Except for what defendant said she “understood,” there was no evidence concerning application of the $10,000 payment. Generally, if a debtor, owing the same creditor two or more obligations, fails to specify the account to which a payment is to be applied, the creditor may make the application. Herrman v. Daffin, Mo.App., 302 S.W.2d 313, 315(1); St. Paul Fire & Marine Ins. Co. v. United States (8CCA), 309 F.2d 22, 24, and authorities there cited. A reasonable hypothesis possible from the evidence is that plaintiff applied the $10,-000 to pay his $10,000 interest in the partnership. This assumption is augmented by plaintiff’s relinquishment of all management in the partnership, the fact that after the contract was signed and he allegedly was paid $10,000, he worked as an employee in the store, and in February 1962 filed suit on the note in California against defendant and Doyle Dodson, the latter then being described as the sole proprietor of Hogan’s Department Store. In any event, it cannot be said the mere fact $10,-000 was paid to plaintiff points only towards payment of the note and is inconsistent with any other reasonable hypothesis. Since defendant’s testimony tends to both prove and disprove payment of the note, no case was made on payment. Also, examining the contexture of defendant’s testimony resolves her assertion the note had been paid into a presumptuous pronouncement amounting to nothing more than a conclusion. A submissible case is dependent upon proof of facts. Mere conclusions do not satisfy that standard, and a witness can so dilute and qualify a positive assertion with other testimony as to render it of no probative value.

“The practice of submitting dual or multiple theories of recovery or defense in the conjunctive is prohibited.” MAI No. 1.02, Excluded Areas. The Committee’s Comment on this is “that the jury should not be instructed on a theory of recovery or defense not supported by the evidence and that any such submission, whether in the conjunctive or disjunctive, should be reversible error. A theory of recovery or defense should not be submitted unless it can stand alone.” Missouri Approved Jury Instructions, p. 7. This is the same rule previously and often applied to disjunctive or alternative submissions. Ashton v. Buchholz, 359 Mo. 296, 221 S.W.2d 496, 502(10); Beckwith v. Standard Oil Co., Mo., 281 S.W.2d 852, 856-857(8); 88 C.J.S. Trial § 327c, pp. 855-856. Instruction number 5 herein is further erroneous because it allowed the jury to find the note had “been paid in full by Doyle Dodson or Dixie Dodson or both.” There was no evidence whatsoever Dixie Dodson had paid the note or any part thereof. Her testimony specifically refutes such a theory.

We are not required to be a nomenclátor of the various defenses suggested in defendant’s answer, and are concerned only with plaintiff’s objections to the instruction. Defendant’s complaint instruction number 5 does not properly define the affirmative defense of res judicata has merit. Broadly speaking, res judicata refers to a matter previously litigated between the parties and settled by a final judgment. Instruction number 5 specifically negates any California judgment on the claim against defendant and makes no reference to the judgment rendered against Doyle Dodson. There is nothing in the record, as previously stated, to indicate what, if anything, occurred as to the claim against defendant in the California action. Consequently, there was no evidence upon which the jury could base a finding that suit had not been “dismissed against Dixie Dodson.” “There is no presumption of law that a suit once begun is still pending until the contrary appears, and the fact must be affirmatively shown.” 1 Am.Jur.2d Abatement, Survival, and Revival § 39, pp. 77-78, § 38, p. 77; Phelps v. Winona & St. P. Ry. Co., 37 Minn. 485, 35 N.W. 273, 276.

It occurs to us paragraphs Second and Third of instruction number 5 smack of a plea in abatement or an attempt by instruction to apply the doctrine of “another action pending.” Such a plea seeks a judgment pro hac vice and, if sustained, merely tends to interrupt or suspend the action without going to the merits of the cause. 1 C.J.S. Abatement and Revival §§ 1 and 2, pp. 27-30. It is not a proper subject to submit to a jury for determination of the relative substantive rights or liabilities of the parties. 1 C.J. Abatement and Revival § 166, p. 107. “That there is another action pending between the same parties for the same cause in this state” (V.A.M.R. 55.31 [a] [8]; V.A.M.S. § 509.290-1 [8]) may sustain a plea in abatement, but it does not necessarily follow the plea will succeed where the prior action is pending in a court of a different state. Cutten v. Latshaw, Mo.App., 344 S.W.2d 257, 259(2, 3); Draper v. Louisville & N. R. Co., 348 Mo. 886, 156 S.W.2d 626, 627-628(2); 1 C.J.S. Abatement and Revival § 63, p. 97.

When this appeal was argued, counsel for both parties acknowledged awareness of Hartley v. Oitdman, 410 S.W.2d 537, decided November 15, 1966, by the St. Louis Court of Appeals. That opinion emphasizes V.A.M.R. 70.02 relieved plaintiff of making a trial objection to instruction number 6 when his objections to same were made specific in his motion for new trial. As the parties are cognizant of what was said in Hartley, supra, concerning the trial court’s failure to alter its burden of proof instruction (MAI No. 3.01) to charge that defendant had the burden of proving all affirmative defenses, we express confidence the same error of which plaintiff here complains will not be repeated in a retrial of this matter.

For the reasons aforesaid, the judgment is reversed and the cause is remanded for a new trial.

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

      . V.A.M.R. 55.10; V.A.M.S. § 509.090; Bonnot v. Tackitt, Mo.App., 265 S.W.2d 748, 752-753(7); Silvey v. Herndon, Mo.App., 234 S.W.2d 335, 340(7).

      . Machctinger v. Grenzebach, Mo.App., 282 S.W.2d 200, 202(4); Alimon v. Alimon, Mo.App., 306 S.W.2d 651, 655(3); Hubbard v. Happel’s Estate, Mo.App., 382 S.W.2d 416, 424(5); 70 C.J.S. Payment § 93, pp. 298-300.

      . Adelsberger v. Sheehy, 332 Mo. 954, 961, 59 S.W.2d 644, 647(6, 7); Stephens v. Thompson, Mo., 293 S.W.2d 392, 394(1, 2); Corder v. Pruitt, Mo., 361 S.W.2d 659, 661.

      . Zeigenbein v. Thornsberry, Mo., 401 S.W.2d 389, 393-394(5, 6); Andrews v. Raiber, Mo.App., 270 S.W.2d 529, 532(2); Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69, 76(9); Oglesby v. Missouri Pacific Ry. Co., 177 Mo. 272, 296, 76 S.W. 623, 627-628.

      . Ratermann v. Ratermann Realty & Investment Co., Mo.App., 341 S.W.2d 281, 290-291(7, 9); Smith v. Smith, Mo.App., 299 S.W.2d 32, 35(5); 50 C.J.S. Judgments § 620, pp. 43-47; 77 C.J.S., pp. 274-275.


author: TOWNSEND, Commissioner.

text:
    Duane HINDERLITER, Employee, Plaintiff-Respondent, v. WILSON BROTHERS, Employer, and Transamerica Insurance Company (Group), Insurer, Defendants-Appellants.
    No. 32501.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 21, 1967.
    Application to Transfer Denied April 10, 1967.

      Luke, Cunliff, Wilson, Herr & Chavaux, Sweet, Schwarz & McGhee, Robert R. Schwarz, St. Louis, for defendants-appellants.
    Harry J. Nichols, St. Louis, for plaintiff-respondent.
   TOWNSEND, Commissioner.

Respondent’s claim for benefits under the Workmen’s Compensation Act was rejected by the Referee. Upon review by the Industrial Commission the award of the Referee was affirmed by a divided vote of that tribunal, upon the stated ground that the claimant did not sustain an accident within the meaning of the act. Respondent appealed to the Circuit Court of St. Louis County where the decision of the Industrial Commission was reversed and the case remanded for further proceedings. Employer and insurer have appealed to this Court.

The claimant was employed as a collector of trash and garbage for appellants Wilson Brothers. He was the only witness testifying as to the circumstances of his injury. The award of the Referee recites:

“ * * * I find that the employee testified that his job was putting garbage and trash from residences into a large tub and carrying the tub to the garbage truck to be emptied. He had to do this many times a day and this was the only job that he had to do. The weight of the tub to be carried to the garbage truck would vary depending upon the amount and the kind of garbage which he had put into the tub. The tub was awkward to lift and difficult to balance and had to be swung from the ground up to the employee’s left shoulder. On the occasion of his injury he stated that this was a heavy load, 75 to 100 pounds, and that he had difficulty in balancing it. I find that on the occasion in question the employee’s lifting the tub did not constitute an accident since it was essentially the same job which he did all day long. It should be noted the employee himself testified that on the one occasion when he hurt his back, he was lifting as he always did lift the tub and that the only thing different from this incident [sic] is that he felt a pain in his back.”

On the issue of whether there was an “accident” within the meaning of the statute, claimant’s entire case was made to rest upon the theory of abnormal strain. His argument advanced in the Application for Review and in his brief before the Commission points up and emphasizes those portions of his testimony which, according to his contentions, support the proposition that his injury resulted from an abnormal strain. Thus, he directed the attention of the Commission specifically to the variation in weight and contents from tub to tub, to the shifting of the material within the tub in the course of the lift, to the tilt of the tub, to the spilling of a small portion of the contents, to the twist of the employee in raising the tub — all matters set out in the transcript.

The Commission made these findings:

“We further find from all of the evidence that the employee’s feet did not slip, that he did not fall, nor was he thrown off balance while lifting the tub of garbage referred to in the evidence; that he was not subjected to an unusual or abnormal strain or exertion; that no unforseen event occurred (other than the commencement of pain in employee’s back); and we conclude that he did not sustain an accident within the meaning of the Missouri Workmen’s Compensation Law as alleged.”

Judicial review of an award of the Industrial Commission is limited by Section 287.490, RSMo 1959, V.A.M.S., in this manner: “Upon appeal no additional evidence shall be heard and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law * * *.” Here the Commission has found that claimant was not subjected to an unusual or abnormal strain. Claimant has failed to convince the trier of fact of the existence of that fact upon which his claim was made to rest. The finding negates the whole basis of the claim.

In the face of the finding of no abnormal strain and the statutory command that the Commission’s findings of fact shall be conclusive, claimant’s brief in this court is in large part directed to the same considerations of the testimony as were urged upon the Commission in the endeavor to persuade that body that an abnormal strain had occurred.

Upon appeal from an award of the Commission, the appellate court “shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: * * * (3) That the facts found by the commission do not support the award; (4) That there was not sufficient competent evidence in the record to warrant the making of the award.” (Section 287.-490, RSMo 1959, V.A.M.S.). Here the Circuit Court had before it the award of the Commission that claimant did not sustain an accident, a conclusion of law. Obviously, the facts found by the Commission support the award and the quoted ground (3) has no application. Consideration must then be given to the fourth ground set out in the section although it is not referred to in terms by claimant’s brief. Claimant says: “The Industrial Commission erred in ruling that the employee failed to prove that he sustained an abnormal or unusual strain * * We take this as an assertion that there was not sufficient competent evidence in the record to warrant the finding of no abnormal strain, or that the finding was clearly contrary to the overwhelming weight of the evidence, (Enyard v. Consolidated Underwriters, Mo.App., 390 S.W.2d 417), and proceed to a consideration of the pertinent evidence.

Asked to illustrate the manner in which he regularly performed his operation of lifting the tub, the claimant demonstrated and at the same time explained:

“You take the tub like this, dump your container into it, put your hand underneath of it and as you come up you got your knee like this and come up and from there you go back and the tub is turned like that, and I was going up and bringing it back on my shoulder and I had a sharp pain in my shoulder in back.”
“Q You said you twisted your back?
A As you throw it up on your shoulder you swing and it could go over to the side.
Q What did happen?
A It tipped and went over to the side, and to keep from spilling it you level it and balance it to keep the stuff from spilling out.”

The Referee intervened to clarify and record the demonstration with the following questions to which claimant responded:

“THE REFEREE: Now, with regard to the demonstration the employee has been giving, I think the record should reflect the employee has to get down close to the ground, grab one of the handles with his right hand, the handle being near the top of the tub, and lift this tub up so his left hand was under the right —near the middle of the tub ?
A Yes, sir.
THE REFEREE: And then you swing the tub up that way until the top is about shoulder level, and at this point you felt pain in your back?
A Yes, sir.
THE REFEREE: And then you pull it up over your left shoulder and at that time your back makes a slight turn to the left; correct?
A Yes, sir.
THE REFEREE: And in the meantime you are trying to balance that tub in such a way your left hand is more or less in the middle of the tub on the handle, and your left hand is under the middle of the tub on the bottom. Looks to me it would be pretty easy to get something like that off balance.
A Yes, sir.
THE REFEREE: In addition to heavy, it is pretty difficult to balance it?
A Yes, sir.
THE REFEREE: That is obvious from seeing this demonstration.”
Claimant then testified:
“Q (Mr. Nichols) Do you recall if you slipped or tripped when you did this ?
A I don’t recall, sir.
Q Did you spill anything out of the tub?
A Yes, sir, a little bit.
Q Which way did it spill?
A Away from me.
Q How much spilled ?
A I would say about a gallon.
Q Why did you spill it?
A Because the solution was a white solution of slop and garbage and it was over-balanced as I got it toward my shoulder and it spilled over the edge of it, and you have to keep from doing that or you get complaints from City Hall.”

Upon cross-examination claimant testified:

“Q (Mr. Schwarz) Now, this work you do day in and day out you told us entails taking this trash tub, Exhibit A, filling it with garbage and picking it up as you demonstrated, and you go down to the knee, get it on one knee, shift the weight to the hand, raise it up and shift it to your shoulder?
A Yes, sir.
Q And day in and day out, and in doing work you did, there is some tilting of that tub and shifting of that tub ?
A Yes, sir.
Q That is the normal and usual way?
A Yes, sir.
Q And there is always a little shifting in the weight, isn’t there?
A Well, I don’t know how to explain it. You have got to keep it from spilling out and it’s got to be kept flat, and that was water, and if you get it on the yard or something you get a complaint from City Hall, and so many lose their contracts, and that’s what they themselves tell you, and if you do that they get mad at you.
Q But in just doing what you described, you start out and you tilt the tub on edge when you go to lift it up, you tilt it then, don’t you?
A It is not tilted unless it would be full, because you balance it on the center of your hand.
Q But when you first go and put it on your knee you have to raise it to this level to get it on there ?
A I don’t have any like that.
Q But you have to squat and tilt the tub to get it on that knee, don’t you ?
A Yes, sir.
Q And then again when you shift it from the knee to the hand you have some tilting and motion in that tub ?
A Yes, sir.
Q And then when it is shifted from the hand to the shoulder at a higher level you get some motion, don’t you?
A You are not supposed to have.
Q And when you swing it on your shoulder you also get some motion in that tub itself, don’t you ?
A. Yes, sir.
******
Q One hundred and twenty pounds would not be unusual to lift weights in the garbage hauling business, would it, that amount of weight ?
A No.
******
Q And when you got this pain you were doing the same thing you do day in and day out ?
A Yes, sir.
Q Actually, really the only different thing in this case is when you did it this time you get a pain in your back; isn’t that about right?
A Yes, sir.”

The finding of no abnormal strain was another way of saying that the strain, if any, in the course of claimant’s operation was a normal strain. Consideration must then be given to the question of whether there was sufficient competent evidence from which to find that claimant’s exertions constituted only a normal strain. No doubt there was straining of muscles, legs, arms and back in lifting the tub. But straining was part of the job. From the claimant’s own testimony the Commission could reasonably find that the type of work undertaken necessarily involved straining every time a tub was lifted and that the degree of strain varied according to the weight lifted and that that weight could vary according to the kind of material placed in the tub. Hence it could well be said that variation in content was a normal characteristic of the job, as was variation in weight. Likewise it could reasonably be found from the evidence that shifting or moving of the contents of the tub in the course of elevating the tub was a normal consequence of the operation which claimant undertook, just as was the shifting of the pork loins in Baker v. Krey Packing Co., Mo.App., 398 S.W.2d 185. Nothing is seen in the actual maneuvers of the claimant upon the occasion in question which constituted a departure from his wonted method of accumulating and transporting the garbage.

From such a record it must be found that there was sufficient competent evidence from which the Commission could reasonably conclude that the claimant sustained no abnormal strain. There is no overwhelming evidence to the contrary. The legal conclusion that he did not suffer an accident within the meaning of the Workmen’s Compensation Law must be approved.

The judgment of the Circuit Court should be reversed and the cause remanded with directions to enter a new judgment affirming the final award of the Industrial Commission.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is reversed and cause remanded with directions to enter a new judgment affirming the final award of the Industrial Commission.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.

       Grounds 1 and 2, set out in this section, are not here relevant.


author: CLAY, Commissioner.

text:
    Luther CHAFFIN, Appellant, v. Harry ADAMS et al., Appellees.
    Court of Appeals of Kentucky.
    March 10, 1967.
    M. J. See, C. F. See, III, See & See, Louisa, for appellant.
    Eldred E. Adams, Louisa, for appellees.
   CLAY, Commissioner.

This suit was brought by appellees to eject appellant from a farm they claimed to own, of which appellant had taken possession. On a motion for summary judgment made by both parties, the court adjudged title in ap-pellees but reserved the assessment of damages. (The judgment was made final for the purposes of appeal.)

Appellant contends that he was frustrated by the turn the case took when both parties moved for summary judgment, but since there was no issue of fact on the question of title or liability, no valid objection to the procedure appears. Appellees contend appellant does not “possess the right of appeal” because he was a trespasser, but since that was the ultimate issue in the case and since appellant has a judgment against him, we find no reason why he has no right of appeal.

We reach the real controversy. It involves the construction of a holographic will of Laura Adams. If it devised the farm to her husband in fee simple, appellees properly prevailed. If it devised only a life estate, then appellant should prevail.

After providing, “I make my will to my husband Lum Adams”, the will provides:

“ * * * at my death I will to him my real estate * *

After unrelated other provisions, the will provides:

“ * * * at my husband Lum Adamses death I will my real estate to-.”

Clearly the first part of the will devised to the husband a fee simple estate in the farm. The question is whether the subsequent uncompleted devise reduced it to a life estate.

A controlling principle is thus stated in Clay v. Chorn’s Ex’r, 152 Ky. 271, 153 S.W. 425, 426:

“An estate once given in fee will not be defeated by a subsequent provision in the same instrument limiting it to a smaller estate, unless the language of the instrument or the intention of the testator requires it, and when, upon the consideration of the whole instrument, the mind is in doubt as to what estate was intended to pass, that construction will be adopted which passes the fee. Burnam v. Suttle, 148 Ky. 495, 147 S.W. 3; Edwards v. Cave, 150 Ky. 272, 150 S.W. 369.”

Another principle of significance here is that the law favors the vesting of a fee. Clay v. McNabb, 286 Ky. 751, 151 S.W.2d 1027. Another is that in the absence of contrary language in the will the law presumes a testator does not intend to die intestate. Cuddy v. McIntyre, 312 Ky. 606, 229 S.W.2d 315.

It is evident from reading the will as a whole that the testator clearly intended to make a testamentary disposition of all her property. The husband, Lum, is the only named beneficiary in the will. (He was bequeathed all the personal property.) No reason appears why the testatrix would wish to reduce his interest in the realty to a life estate unless she intended to benefit a secondary object of her bounty. Her failure to name a remainderman indicates that at the time she wrote her will she had no fixed idea what person or persons, other than her husband, would share in her estate.

Perhaps the testatrix intended at some time to make up her mind and fill in the blank space. (There is a hint of a domestic threat here.) Until she did so, however, her purpose was unknown and unexecuted. Her indecision about the remainderman impairs the certainty of her intention to take the property from her husband at his death. We seriously doubt that the testatrix, for no apparent purpose, meant by this incomplete provision to derogate the estate of her husband, the only designated and natural object of her bounty. Applying the principles heretofore stated, in our opinion the Chancellor properly adjudged that the husband was devised a fee.

In our research we have considered a case not cited by either party which we believe should be distinguished. In McKee v. Hedges, Ky., 297 S.W.2d 45, the testator devised and bequeathed to his wife his real and personal property, immediately providing thereafter, “at her death to be given to some fund that she may see fit”. It was held that the wife took only a life estate even though the attempted disposition of the remainder interest was too uncertain to be given effect.

A distinguishing feature in McKee was that the limitation on the estate was an integral part of the provisions creating the estate. Perhaps a more significant distinction is there the testator had specifically designated a recipient of the remainder interest. Though the remainderman could not be determined, the testator had a fixed and complete intention with respect to the ultimate disposition of his property. As we have above pointed out, that cannot be said in the present case.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    Prince VINSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 10, 1967.

      James L. Cobb, Jr., Covington, Eugene D. Smith, Cincinnati, Ohio, for appellant.
    Frank Benton, III, Commonwealth’s Atty., Campbell County, John Diskin, Asst. Commonwealth’s Atty., Campbell County, Newport, Robert Matthews, Atty. Gen., Charles Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   OSBORNE, Judge.

The appellant, a 58 year old man, is a bondsman in Cincinnati, Ohio. On the morning of February 11, 1966, at about two o’clock, he came to Newport, Kentucky, according to him, for the purpose of purchasing some Barbecue. After stopping at the Barbecue shop, he proceeded to the Orbit Room, located on Mammoth street and parked his automobile across the street from the Room. At the door of the Orbit Room he was met by Sherman Simpson, the deceased, who was approximately 30 years of age and made his home in Newport. Simpson advised the defendant that the Orbit Room was closed and that he could not enter. Some heated discussion took place at this time and Simpson used what is described as “aggressive language.” Later, after talking to Buddy Parker, whom he had come to visit, appellant proceeded to his automobile across the street whereupon Parker suggested to him that he' should apologize to Simpson. Appellant then went to an automobile which Simpson had entered, to make the apologies. He made the apologies and started back across the street toward his own automobile. Simpson got out and followed appellant, intercepting him at the left front door of his automobile, while appellant was attempting to unlock the door. At this point a fight ensued and resulted in appellant’s shooting Simpson in the groin, from which shooting Simpson died. Appellant’s version of the actual fight, as contained in the Transcript, reads as follows:

“ * * * At the time I turned around Mr. Simpson was as close as right here. I went back on the front fender and Mr. Simpson hit me. I threw up this hand and when I threw up this hand he stabbed me here and that’s when I lost my keys.
“Q Did he hit you or cut you with a knife at that time ?
“A He stabbed me in this hand. At that point I didn’t have no other alternative than to try to keep him from hurting me. He is a much larger man than I am, because I had to look up like that (witness demonstrates), and when he stabbed me here we started scuffling, Mr. Simpson and I. There had not been a shot fired at that time. I was bleeding here. I put my hand up like this (witness demonstrates). I started bleeding. He busted my lip and I was trying to get away from him, and in desperation I went to my pocket. Mr. Simpson was never that far away from me (witness indicates distance) from the time he stabbed me the first time in my hand. After he stabbed me and I am trying to get my hand in my pocket, when I came out, when I fired down, I don’t know where the first shot went but they were all down to the side. Evidently when I came out of my pocket I didn’t know which one hit him, or which one didn’t hit him. At that time I do know I was near. dying because he bruised me all across here (witness indicates location of bruise). I didn’t know that until I went home and was examined. I was bruised all across here, sometime when he tore my shirt I imagine. * * * ”

Appellant was found guilty of involuntary manslaughter and sentenced to ten years in the penitentiary. He now alleges three grounds for reversal. First, that he was not furnished a transcript of the testimony of the witnesses before the grand jury. Second, that a material witness remained in the court room during the course of the trial even though the rule had been requested and allowed by the court. Third, error was committed by the court in giving instructions on involuntary manslaughter. As we are of the opinion that the instructions were incorrect and that the case will have to be reversed upon this ground and since the first two problems might not arise again in a retrial, we will only deal with the instructions.

The court properly instructed the jury upon the offenses of murder and voluntary manslaughter. The latter being the common law offense of killing under the influence of “passion” and “heat of blood.” See 26 Am.Jur. Homicide, section 19. This offense is punishable under KRS 435.020 which provides for a punishment of not less than two nor more than twenty-one years. The court then, under instructions # 5 and # 6, proceeded to instruct the jury concerning the offense of involuntary manslaughter as defined in KRS 435.022. This was error. Prior to 1962 when KRS 435.-022 was enacted we followed a common law definition of involuntary manslaughter and as it only provided for a fine and jail sentence we were rather liberal in permitting its use in homicide cases. See Spriggs v. Commonwealth, 113 Ky. 724, 68 S.W. 1087. For a definition of accidental killing and involuntary manslaughter as it existed at that time, see Hunt v. Commonwealth, 289 Ky. 527, 159 S.W.2d 23. The offense of involuntary manslaughter now carries the penalty of not less than one nor more than fifteen years and is, therefore, an important offense in its own right in our law of homicide. For this reason, we believe it should not be viewed or used as an appendage to the offenses of murder and voluntary manslaughter.

The latest case decided by this court on the use of the involuntary manslaughter instruction was Cowan v. Commonwealth, Ky., 407 S.W.2d 695. In that case an altercation took place on Union Street in Shelbyville when Willie Cowan was insulted by a fellow named Shouse. Shouse was a large and powerful man. He hit Willie on and about the head and face and knocked him to his knees. Willie attempted to scramble away and retreated across the street, but Shouse followed him. Willie drew a pistol from his pocket and fired twice in close sequence. The second shot hit Shouse with terminal effects. We pointed out in this case that Cowan made no attempt to suggest that he did not intend to kill Shouse. Therefore, there was neither occasion nor justification for an instruction on involuntary manslaughter. The next case in sequence before the Cowan case was Martin v. Commonwealth, Ky., 406 S.W.2d 843. Here Martin shot and killed one Augustine Redmon in an argument arising during the course of a crap game. He was indicted and convicted of the offense of involuntary manslaughter in the first degree and sentenced to three years in prison. When he was asked why he shot Augustine, his answer was, “to get him off of me” and when asked what Augustine was doing, he said, “he was biting me and choking me.” In holding that an involuntary manslaughter instruction should not have been given, we said:

“The argument that there was no justification for an instruction or instructions on involuntary manslaughter is well taken. In the recent case of Shanks v. Commonwealth, Ky., 390 S.W.2d 888 (1965), under evidence more suggestive of accident vis-a-vis intentional killing than in this instance, it was held that the defendant was not entitled to such an instruction. Where a deadly weapon was used, and where the accused admits that he was attempting to defend and protect himself with the deadly weapon, there is no room for argument that he did not intend the result of the action taken by him.’ ”

In the case of Shanks v. Commonwealth, Ky., 390 S.W.2d 888, Shanks, when fighting with one Henry, stabbed and killed Henry. The court instructed on murder, voluntary manslaughter and self-defense. The defendant insisted that he was entitled to an instruction on involuntary manslaughter. In affirming the judgment, we pointed out that where the killing is done in such manner and under such circumstances as to exclude the idea that it was not intended, the crime is either murder or voluntary manslaughter, as the case may be, and no instruction on involuntary manslaughter should be given. Pointing out that where a deadly weapon is used and where the accused admits that he was attempting to defend and protect himself with the weapon, there is no room for the argument that he did not intend the results of the actions taken by him. For an act to be covered by the statute on involuntary manslaughter it must be wanton or reckless and this by definition excludes intentional acts.

In Lambert v. Commonwealth, Ky., 377 S.W.2d 76, the defendant Lambert and one Smith were incarcerated in the same cell block. Smith accosted Lambert and cut him severely below the ear. Lambert then started to the front of the jail and Smith accosted him again stating that he was going to cut his head off. Lambert then attacked and beat Smith with his fists and stomped him with his feet until he killed him. The court instructed on murder and voluntary manslaughter, but did not give an involuntary manslaughter instruction. We reversed the Lambert case and directed that an involuntary manslaughter instruction should be given. We stated that under the circumstances of this case, where, according to appellee’s theory, there was extreme aggravation, where appellant was suffering from the effects of alcohol, where he was cut and bleeding and in a state of shock, that an instruction on involuntary manslaughter was justified. We now doubt the correctness of this opinion and wish to point out and make absolutely clear that where the intent to kill is the gravamen of the offense and where the person who is ultimately killed is the one toward whom the intent is directed an involuntary manslaughter instruction should not be given. For these reasons the Lambert case, to the extent that it holds otherwise, is hereby overruled.

In these situations of mutual combat where one of the participants shoots, knifes, bludgeons or mauls his adversary to death, his acts being intentional and his victim known, an involuntary manslaughter instruction should not be given. Only when one acts wantonly and recklessly and death follows, not intentionally but incidentally, from the acts do we have the crime of involuntary manslaughter. There can be no doubt from the facts contained in the record but what Prince Vinson intended to defend himself against the acts of Sherman Simpson and that he intended the consequences which would naturally flow from his actions. Therefore an instruction on the offense of involuntary manslaughter was improper.

The judgment is reversed.

All concur.


author: STEINFELD, Judge.

text:
    James L. WELLS et al., Appellants, v. Lucia R. WELLS (now Monti), Appellee.
    Court of Appeals of Kentucky.
    March 10, 1967.

      See also Ky, 406 S.W.2d 157.
    William A. Young, James L. Williams, Young & Williams, William E. Johnson, Morris E. Burton, Johnson & Burton, Frankfort, for appellants.
    E. Gaines Davis, Jr., Smith, Reed, Yes-sin & Davis, Frankfort, for appellee.
   STEINFELD, Judge.

The only question before the Court is whether the custody of Henry Paul Wells, born August 8, 1961, shall be in his father and paternal grandparents or in his mother. The learned chancellor adjudged that it should be in the mother. From that judgment the father and the grandparents appeal.

James L. Wells and Lucia R. Wells (now Monti) were husband and wife. The only child of this marriage was Henry Paul Wells. During almost all of their married life they lived in the home of James’ parents, Henry H. Wells and Thelma Wells. On August 1, 1964, when it was apparent to this couple that their marriage was unsuccessful and a divorce imminent they entered into an agreement which, among other things provided “That in view of the fact that both of these parties have no definite place of abode and feel that it would be to the best interest of the child, Henry Paul Wells, age 3, to have the custody of said child granted to Mr. and Mrs. Henry H. Wells, 222 Birchwood Avenue,’ Frankfort, Kentucky, the paternal grandparents of said infant child * * * It also stated that both parents should have visitation rights. The agreement was followed by the parties and was incorporated in the divorce judgment which was entered on September 8, 1964. Henry Paul remained with his father and paternal grandparents after that date, except for several visits to his mother. Lucia moved to Steubenville, Ohio where she found employment as a waitress in a restaurant.

On August 11, 1965, Lucia petitioned for custody of the child. After a hearing her demand was granted, but because the trial court improperly considered certain confidential reports we reversed, (Wells v. Wells, Ky., 406 S.W.2d 157) and directed that the custody of Henry Paul be reconsidered. After hearing additional testimony which revealed that Lucia remarried on May 7, 1966, the chancellor entered an order awarding the custody of Henry Paul to his mother. James L. Wells, Henry Wells and Thelma Wells (the paternal grandparents) appeal, which is their right. Gates v. Gates, Ky., 412 S.W.2d 223 (decided January 27, 1967).

It is claimed that the agreement above referred to, which was signed by Lucia prevents her from claiming the child. The lower court found that it “was not intended * * * to be an absolute relinquishment of her preferential right to the custody of her son but was entered into under conditions of temporary distress or discouragement, without advice of counsel, as a temporary solution to the problem of what to do with the boy at a time when both parties had no definite place of abode.” We agree. Mullins v. Mullins, 314 Ky. 178, 234 S.W.2d 680; Morell v. Morell, 291 Ky. 686, 165 S.W.2d 351.

“The fact that the parties made an agreement for the custody and support of children and that the court approved it in the original decree does not effect the power to modify the decree.” 17 Am. Jur. 36, Sec. 844 Divorce and Separation. 73 A.L.R.2d 1444.

There is no claim that any of the parties is unfit to raise the child. He is the object of many persons’ love and desire. To whom shall he go is the only question. Courts or their counterparts have tried to solve similar perplexing questions since the days of King Solomon. There is no mathimatical formula and no engineering data or standard to guide. In these situations the trial court must weigh the intents of nature against man made conditions and situations. These are difficult questions. McReynolds v. Hughes, Ky., 398 S.W.2d 482.

The fundamental and dominant question is what is best for the child. Gates v. Gates, supra; Brengle v. Hurst, Ky., 408 S.W.2d 418. In seeking the correct answer, the court must ignore the anticipated unhappiness of disappointed litigants. Wells v. Wells, supra; Lewis v. Lewis, Ky., 343 S.W.2d 146.

The chancellor, a learned jurist, heard testimony before the first appeal and concluded that Henry Paul should be with his mother. After our decision he heard other witnesses among whom were Vincent Monti, (Lucia’s husband) and a social worker. Vincent Monti expressed his affection for and desire to have Henry Paul as a part of his family. He testified as to his financial ability and willingness to provide for his family. The trial court said that he “was favorably impressed with his general demeanor.” It appears that the child would have suitable environment and opportunity of education if he remained in his present home or was removed to the new home of his mother. In this regard Henry Paul has two domiciles offered to him, each occupied with people offering love and care. Few children are equally blessed.

It was found below that “The natural father remains on the outskirts of the controversy, passively seconding the application of his parents to retain exclusive custody of his son. He exhibited no real affection for his son and no desire to have custody of him (although he, too, has remarried and could offer his son a home) the main force of his brief testimony being that the place for the boy was with his present custodians.”

The nature of the work in which the grandfather is engaged is such that he is in the home only on part of the weekends. The chancellor wrote:

“A boy needs a Dad. Mr. Monti appears to be ready to supply that deficiency and the court feels that young Henry Paul will fare better on his journey down life’s road if he has the loving care of his natural mother, for which there is no substitute (Stapleton v. Poynter, 111 Ky. 264, 62 S.W. 730 [53 L.R.A. 784]) and the daily companionship of his young and apparently devoted stepfather.”

The appellants rely upon Horn v. Dreschel, 298 Ky. 427, 183 S.W.2d 22 to support their contention that the child should remain with the grandparents. In Horn the children, then 10 and 13 years of age respectively, expressed their desire to remain with the Horn family. The court concluded that the children appeared to have a better future if they remained where they were. Williams v. Neumann, Ky., 405 S.W.2d 556 and Lee v. Thomas, et ux., 297 Ky. 858, 181 S.W.2d 457, also cited by appellants were adoption cases. While in each of those cases there were facts similar to the one now before us, nevertheless “The welfare of the (child) is the determinative consideration in light of the peculiar facts of the case” under consideration. Hall v. Hall, Ky., 386 S.W.2d 448.

The trial court heard the evidence and saw the witnesses. It is in a better position than the appellate court to evaluate the situation. Gates v. Gates, supra; McCormick v. Lewis, Ky., 328 S.W.2d 415. The court below made findings of fact which may be set aside only if clearly erroneous. Hall v. Hall, supra; CR 52.01, 7 Kentucky Practice, Clay 103. We do not find that they are. They are not “manifestly against the weight of evidence.” Ingram v. Ingram, Ky., 385 S.W.2d 69; Craddock v. Kaiser, 280 Ky. 577, 133 S.W.2d 916. A reversal may not be predicated on mere doubt as to the correctness of the decision. Buckner v. Buckner, 295 Ky. 410, 174 S.W.2d 695. When the evidence is conflicting, as here, we cannot and will not substitute our decision for the judgment of the chancellor. Gates v. Gates, supra; Renfro v. Renfro, Ky., 291 S.W.2d 46. We do not doubt that the chancellor was correct, however, we recognize the very close question which was presented. We hope that wisdom has been provided so that the decision reached will prove to be correct.

The judgment is affirmed.

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


author: DAVIS, Commissioner.

text:
    Robert M. LOWE, Jr., Administrator of the Estate of Willie Lewis, deceased, Appellant, v. James Ralph McMURRAY and Fleet Transport of Kentucky, Appellees,
    Court of Appeals of Kentucky.
    March 10, 1967.

      John E. Wise, Louisville, for appellant.
    Carl L. Wedekind, Jr., Stites, Peabody & Helm, Louisville, for appellees.
   DAVIS, Commissioner.

Willie Lewis died as the result of injuries sustained by him when a passenger car he drove was in collision with a tractor-trailer outfit operated by appellee McMurray. A jury returned its verdict for appellee Mc-Murray upon the trial of the wrongful death action. Appellant maintains that the judgment should be reversed because of asserted erroneous rulings relating to evidence and instructions offered by appellant.

The accident occurred November 11, 1963, at approximately 7:38 p. m. The site of the accident was the intersection of Crittenden Drive and Phillips Lane in Louisville. Crittenden Drive runs in a north-south direction. Lewis was operating his car southwardly on Crittenden, and undertook to turn to his left into Phillips Lane. McMurray was driving northwardly on Crittenden and intended to maintain his direct course on that street. Lewis turned left across the path of McMurray.

There are five traffic lanes on Crittenden north of its intersection with Phillips Lane; there are only three traffic lanes on Crit-tenden south of its intersection with Phillips Lane. The evidence reflects that Mc-Murray was driving in the extreme right (easternmost) lane as he travelled north-wardly on Crittenden, while Lewis was using the middle of the five lanes as he approached the intersection. The five lanes were provided with “pinball” traffic lights at the time of the accident. These lights were so activated as to afford two “go” or green southbound lanes (the westernmost lanes). The middle lane presented an amber or “caution” light to traffic, and the two easternmost lanes were designated as “red” for southbound traffic, affording two lanes for northbound traffic. It was shown that it is normal for southbound drivers intending to turn left off Critten-den to utilize the middle lane as Lewis was doing. McMurray testified that he was familiar with that practice, but that Lewis gave no visible signal of his intention to turn left.

The testimony fixed the point of impact within the intersection of Crittenden and Phillips. The impact point was in the path which McMurray’s tractor-trailer unit would have travelled as it proceeded directly in the easternmost lane. The Lewis car was struck in its right side, and was carried by the tractor-trailer unit in a northeasterly direction until it came to rest against a store building on the northeast corner of the intersection; a telephone booth was demolished as the vehicles struck it before coming to rest. Some chips were knocked from the concrete curbing by one or both of the vehicles.

An officer who investigated the accident related that he found skid marks at the scene, which he was able to trace to the tractor-trailer unit, and identify as having been laid down by that vehicle. He said the skid marks were approximately 78 feet long “* * * from the point where they began to the point where the truck ended up.” The officer said that the point of impact was 54 feet from the corner of the building against which the Lewis car came to rest. He said that he found 30 feet of skid marks from the point of impact to the front wheels of the tractor-trailer; he measured the marks as 48 feet from their point of origin to the point of impact. The officer fixed the starting point of the skid marks as three or four feet south of the southern crosswalk at the intersection of Crittenden and Phillips.

McMurray was the only eye witness to testify. His evidence substantially corroborates the points and distances as explained by the officer. McMurray said that he had been travelling at about 35 mph and that when he first noticed the Lewis car it was about as far north of the intersection as he was south of it. He estimated that each vehicle was about 150-200 feet from the intersection. The weather was clear and the roadway was dry. Although it was dark, visibility was good and the intersection was well lighted. An automatic electric traffic signal at the intersection was in the “go” position for traffic on Crit-tenden; there was no special turning arrow provided by the signal. McMurray testified that he was within 5 or 10 feet of the intersection .when Lewis turned left suddenly across his path. McMurray said he was about 50 feet from the point of impact when Lewis turned in front of him. Mc-Murray’s trailer was loaded with liquid latex. It was not a full load, but only about 75-85% full.

The appellant presented three witnesses who gave avowal testimony relating to skid marks and chips or gouge marks on the concrete curbing. The trial court rejected the proffered testimony. It was shown that one of the three witnesses had visited the accident scene shortly after the collision, but had made no inspection of the area at that time. Then the same witness, with two others, returned to the scene some four to six hours later. At this time they located some tire marks of which they offered to testify. They were not able to trace- these marks to the McMurray tractor-trailer, nor could they say that the marks had not been laid down by some other vehicle. Photographs used on avowal, and marked by one of the witnesses as reflecting his opinion of the marks, indicate that the witness was undertaking to assign marks to McMurray’s vehicle which had no plausible connection with that vehicle. It was shown that much traffic used the roadways at the accident site between the time of the accident and the time of the inspection by the three avowal witnesses. We hold that the trial court correctly excluded the proffered evidence. See Mountain Petroleum Company v. Howard, Ky., 351 S.W.2d 178, 180; 3 Ky.Digest, Automobiles, 243(14).

These same witnesses sought to testify about some chips out of the concrete curbing. They were not able to positively say that the chips had resulted from the force of either of the vehicles. But we need not decide whether the trial court should have admitted their testimony on this point, because its rejection could not have been prejudicial. At best, their evidence about the chipping of the concrete would have been cumulative of the evidence of the police officer. Moreover, the testimony would have tended only to show something of the force of the collision; that physical fact was abundantly demonstrated by the demolition of the Lewis car, the destruction of the telephone booth, the damage to the store building, and the extensive and fatal injury to Lewis. If the court erred in rej ecting the evidence, which we do not decide, it was not prejudicial and may not be made the ground for reversal. CR 61.01.

Appellant presented a witness whom he sought to qualify as an expert in the matter of the braking of tractor-trailer units partially loaded with liquid cargo. The witness avowed that a unit comparable to McMurray’s would not lay down a skid mark when its brakes were applied at 35 mph; he modified this to say that the skid mark would be very short. He testified that he had made no experiments in this field, nor had he ever looked to see whether skid marks were laid down in such circumstances. The trial court was of the view that the witness failed to evince sufficient training, special knowledge or skill as would qualify him to speak as an expert. We think the court was correct in this ruling. The witness failed to present adequate qualifications to entitle him to speak as an expert in the field at hand. But even if he had, it seems to us that the evidence would have been irrelevant. Supposedly the purport of the tendered evidence would be to raise an inference of excessive speed on McMurray’s part. But even if it had been shown that McMurray was violating the speed limit that fact would not suffice to absolve Lewis from contributory negligence in turning in front of him — unless it could have been shown that Lewis had no reasonable opportunity to realize the speed of the oncoming vehicle. There was no showing that such a situation prevailed here. Cf. Wandling v. Wandling, Ky., 357 S.W.2d 857; Rankin v. Green, Ky., 346 S.W.2d 477.

The final assault upon the judgment is based upon appellant’s contention that the trial court should have affirmatively instructed the jury that the decedent was presumed not to voluntarily do or fail to do anything to put his life in jeopardy. The question of such presumptions was fully discussed in Louisville & Nashville Railroad Co. v. Fisher, Ky., 357 S.W.2d 683, 688. We are cited to no authority which suggests that the court should instruct on such a presumption. The presumption rule would not be applicable in the present case in any event, as there was an eye witness to Lewis’ negligent conduct; the eye witness was strongly corroborated by the physical facts. But in any event, it is never proper to instruct the jury as to presumptions of law or of fact. See Pacific Mut. Life Ins. Co. v. Meade, 281 Ky. 36, 134 S.W.2d 960, 965; Massachusetts Mut. Life Ins. Co. v. Bush, 236 Ky. 400, 33 S.W.2d 351, 353.

Having this view of the case, it becomes unnecessary to consider the propriety of the rejection of evidence offered by ap-pellees.

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    Cecil Lee LONG, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 10, 1967.
    Gerry L. Calvert, Lexington, for appellant.
    Donald Moloney, Lexington, Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of armed robbery and sentenced to imprisonment for ten years. KRS 433.140. He appeals on the ground that the trial court erred in overruling his motion for a new trial based on newly discovered evidence. RCr 10.06.

This evidence was presented in three affidavits, two of which were signed by employees of a night club and supported appellant’s alibi that he was in this club when the robbery was committed elsewhere. The third affidavit was signed by the former wife of the victim of the robbery and she stated that he was an ex-convict and would not tell the truth.

No motion for a continuance was filed nor does the motion for a new trial or the supporting affidavits contain an allegation that appellant exercised diligence to obtain the so-called newly discovered evidence before the trial began. Ordinarily, the failure to show that proper diligence has been exercised will be fatal. Wheeler v. Commonwealth, Ky., 395 S.W.2d 569; Boyd v. Commonwealth, Ky., 394 S.W.2d 934; Hatfield v. Commonwealth, 248 Ky. 342, 58 S.W.2d 634. The record reveals that appellant announced ready for trial when he knew that the testimony of certain employees of the night club, who had not been subpoenaed as witnesses, would tend to support his alibi.

Appellant’s court-appointed attorney informs us by his brief that on two occasions he visited the night club before the trial in an effort to obtain the names of witnesses who knew material facts about the case. Nevertheless these efforts would not satisfy the requirement of diligence. Under the facts of this case appellant, his family and his friends had a duty to timely acquaint appellant’s attorney with the whereabouts of persons who could testify in the case. (The motion for a new trial reflects that such persons were located at the night club soon after appellant’s conviction.)

Since the record fails to show the exercise of proper diligence we are unwilling to hold that the trial court abused its discretion by overruling the motion for a new trial.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Kenneth BALLINGER, Appellee.
    Court of Appeals of Kentucky.
    March 10, 1967.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, James S. Chenault, Richmond, Marcus C. Redwine, Commonwealth Atty., Winchester, for appellant.
    Guy K. Duerson, Jr., Berea, for appellee.
   CLAY, Commissioner.

This case presents the novel question of whether a circuit court may, as a form of probation, remit a fine imposed by a jury on a verdict of guilty to a misdemeanor charge. The Commonwealth seeks a certification of the law on appeal from the judgment entered.

Appellee was tried for unlawfully detaining a female against her will. The jury found him guilty of assault and battery and fixed his penalty at a fine of $1200.

The pertinent part of the judgment entered on this verdict is as follows:

“It is adjudged that the defendant is guilty as charged and convicted, and is hereby fined the sum of twelve hundred dollars ($1200.00); and it further appearing that the defendant having heretofore made motion for probation and suspension of the fine, it is hereby adjudged that said fine be and the same is hereby probated and suspended in full.”

It is the contention of the Commonwealth that the circuit court lacked authority to enter so much of this judgment as effectively remitted the fine in the guise of probation. We agree.

The only source of power to enter such a judgment inheres in the statutory provisions relating to probation of convicted defendants. (KRS 439.260 to KRS 439.-300.) The significant provisions of these statutes are:

KRS 439.260:

“(1) A circuit court, subject to the provisions and conditions provided in KRS 439.250 to 439.560, may postpone the entering of a judgment and the imposing of sentence and place the defendant on probation. This order shall only be made on motion of such defendant.”
“(2) A judgment of a circuit court convicting a person for a criminal offense pursuant to a verdict of a jury shall be a final judgment from which an appeal may be prosecuted but the court on motion of the defendant may withhold issuing separately or incorporating in such judgment a directive that the defendant be taken by the chief law enforcement officer of the county to the penitentiary, there to be confined for the period set forth in the judgment.”
“(4) In placing any defendant on probation, the court shall direct that such defendant be under the supervision of the Division of Probation and Parole.”

KRS 439.270:

“(1) The period of probation shall be fixed by the court and at any time may be extended or shortened by the court by order duly entered. * * *.”

It may be observed that even if these statutes confer authority upon circuit courts to place on probation a defendant whose sentence could be only the payment of a fine, there was a rather substantial failure to comply therewith. For example, KRS 439.260(1) authorizes the court to postpone the entering of judgment and the imposing of sentence, which was not done. That subsection also provides that the court may “place the defendant on probation”. (Emphasis added.) There is just no such thing as the probation of a fine. Additionally, subsection (4) of KRS 439.260 requires the court to place the defendant under the supervision of the Division of Probation and Parole. This the judgment did not do.

To the extent the judgment before us remitted a fine, the circuit court improperly assumed executive authority vested in the Governor by section 77 of the Kentucky Constitution.

Another question which has been somewhat obliquely raised in this proceeding merits comment. It concerns the power of a circuit court to invoke probationary procedure where the sentence to be imposed is the payment of a fine. The statute does not define probation, and it could be argued that it means a substituted sentence of controlled liberty in lieu of 'imprisonment. See Webster’s New International Dictionary, Second Edition; Herlands’, “When and How Should a Sentencing Judge Use Probation”, 35 F.R.D. 487, 492; Lovelace v. Commonwealth, 285 Ky. 326, 147 S.W.2d 1029, 1033; United States v. Murray, 275 U.S. 347, 357, 48 S.Ct. 146, 149, 72 L.Ed. 309 (1928); and People v. Robinson, 253 Mich. 507, 235 N.W. 236, 237.

However, KRS 439.260(1) refers to “imposing of sentence”. A “sentence” may be either a fine or imprisonment, or both. Since the governing statutes do not limit probation to those cases where the punishment is imprisonment, we believe the procedure may be invoked when the punishment is the imposition of a fine.

There are several reasons for this. A substantial fine might well constitute as serious a punishment as the serving of a prison sentence. Also, a person unable to pay a fine may be subject to imprisonment under KRS 431.140, KRS 441.180 and KRS 441.190. It would be an anomalous situation if an indigent who could be sentenced to imprisonment might merit probation, whereas if the sentence were a fine (which he could not pay) he could not avoid imprisonment.

Furthermore, under KRS 439.550 inferior courts are authorized to place defendants on probation. In many inferior courts the normal sentence would be the payment of a fine, and this statute apparently contemplates the possibility of probation where such a sentence could be imposed.

Finally, considering the salutary purpose of probation, there appears no sound reason why a person convicted of a crime for which the sentence is a fine should not be relieved of satisfying it, under proper conditions, the same as a person may be relieved of serving a prison sentence.

In our opinion the circuit court could have placed the appellee on probation even though his sentence would be only the imposition of a fine, but as above discussed, the judgment entered did not comply with the provisions of the applicable statutes. The law is so certified.

All concur.


author: MILLIKEN, Judge.

text:
    Charles Edward THOMAS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 10, 1967.

      John W. Palmore, George T. Ross, Thomas D. Shumate, Richmond, for appellant.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MILLIKEN, Judge.

This is an appeal from the conviction of appellant, Charles Edward Thomas, of voluntary manslaughter and as an habitual criminal.

On June 26, 1965, appellant, age 28, cut and mortally wounded William Boyd Reynolds with a knife while they were engaged in a fight near a beer tavern in Richmond.

This appeal is predicated on several grounds, the first of which is that the evidence of appellant’s convictions of prior felonies should not have been injected into his trial for voluntary manslaughter. Appellant contends that he should have been tried solely on the merits of the substantive charge of voluntary manslaughter and then, if a verdict of guilty were returned, be tried on the habitual criminal charge — that the latter should affect the penalty, not the issue of guilt or innocence. This question has been settled recently in favor of the Commonwealth in Wilson v. Commonwealth, Ky., 403 S.W.2d 705 (1966), and by a five to four opinion of the U. S. Supreme Court in Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), where the majority opinion said in part: “To say that the two-stage jury trial on the English-Connecticut style is probably the fairest, as some commentators and courts have suggested, and with which we might well agree were the matter before us in a legislative or rule-making context, is a far cry from a constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment.” The four dissenting justices thought that the present Texas (and Kentucky) method of trying recidivist cases went to the very heart of fair trial and violated constitutional due process.

It is argued that the evidence does not support the verdict of voluntary manslaughter since the prosecution offered no evidence to controvert appellant’s claim of self-defense. While it is true that un-contradicted positive testimony may not be arbitrarily disregarded, such proof may be overcome by circumstantial evidence. Montague v. Commonwealth, Ky., 332 S.W.2d 543 (1960). Here the circumstantial evidence is sufficient. Appellant testified that the deceased was unarmed, and it is well established that even if deceased had hit appellant first, appellant should not strike back with a knife unless he had reasonable grounds to believe that it was necessary in order to protect his life or prevent great bodily injury. Shepperd v. Commonwealth, Ky., 322 S.W.2d 115 (1959).

Appellant testified that deceased was choking him with one hand while hitting him with the other. A jury might well infer that deceased was not trying to choke appellant to death and that appellant, instead of trying to break away, was busy getting out his pocket knife. It might be noted that a police station was 75 to 100 feet away from the fight. At least one of appellant’s friends was at the scene of the fight, and apparently he didn’t think that appellant’s life was in immediate danger for he did not go to his aid. The same friend also testified to the effect that deceased was choking appellant for only a few seconds before appellant stabbed him, which indicates that appellant’s life at the time was not in danger. Appellant testified that he had black marks all the way around his neck from the choking, but he did not introduce any pictures to substantiate his allegation. Pictures of his swollen jaw taken the next day also showed that his neck was swollen but showed no signs of any marks. Testimony that the deceased had been cut and stabbed seven times was also considered by the jury.

Appellant contends that it was error for the court to admit two dying declarations allegedly made by the decedent to two police officers. Since these declarations showed only that appellant stabbed deceased, and appellant had admitted that fact, he was not prejudiced even if their admission should have been denied.

The Commonwealth, in attempting to establish guilt under the Habitual Criminal Act, KRS 431.190, alleged that appellant had been convicted and sentenced for five felonies. Appellant argues that he was convicted and sentenced on four of the counts on the same day; that only one of the convictions and sentences should have been read to the jury since they were not progressive, and that the reading of all four was redundant and intended only to prejudice the minds of the jury. There is no limit on the number of prior progressive felony convictions that may be introduced. McGill v. Commonwealth, Ky., 365 S.W.2d 470 (1963). Since the jury was instructed to consider prior convictions only for the purpose of fixing punishment, and it found that appellant had been convicted of two prior progressive felonies, the allegations of the other non-progressive felonies were mere surplusage.

Appellant also contends that since he was convicted of the fifth felony on October 27, 1958, but not sentenced until February 1960, the delay deprived the court of jurisdiction and, therefore, the conviction and sentence were void and thus not usable by the Commonwealth for the purpose of the Habitual Criminal Act. Even if the delay in sentencing were unreasonable the validity of the conviction would not be affected, although the court might have lost jurisdiction over the prisoner to sentence him. Green v. Commonwealth, Ky., 400 S.W.2d 206 (1966); 97 A.L.R. 802 (1934). Since the Habitual Criminal Act calls for a showing of prior convictions, the evidence in regard to the 1958 conviction was admissible.

Appellant urges that the court erred in allowing the court reporter to go home after the case was submitted to the jury. During their deliberations the jury had requested that the record be read as to how one of appellant’s witnesses testified in regard to a time element. Since the reporter had left, the court told them that they would have to work that out for themselves. Appellant could not have been prejudiced by this since the particular time element was insignificant, and the witness had not testified one way or the other in regard to it.

It is alleged that after the jury had returned the verdict they were then excused and they started leaving the jury box. The court then called the jury back to fix a sentence, which they did, sentencing appellant to life in prison. Even if this procedure were improper, since the jury had already found appellant guilty under the Habitual Criminal Act which calls for mandatory life sentence, appellant was not prejudiced. Mercer v. Commonwealth, Ky., 330 S.W.2d 734, 99 A.L.R.2d 1 (1960).

Appellant contends that each instruction should have contained a “beyond reasonable doubt” clause. Instruction No. 6 is quoted as follows:

“6. Unless the defendant has been proved guilty beyond a reasonable doubt, you will find the defendant not guilty.”

Instructions are sufficient if, when read together and considered as a whole, they submit the laws applicable to the facts in a form capable of being clearly and easily understood. Turner v. Commonwealth, Ky., 328 S.W.2d 536 (1959). The instructions as given were satisfactory.

The judgment is affirmed.

All concur.