author: STANLEY, Commissioner.

text:
    Thomas Scott SILER, Appellant, v. Elsie WILLIFORD, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.

      Robert J. Watson, Middlesboro, for appellant.
    Wm. S. Tribell, Middlesboro, John James Tribell, Pineville, for appellee.
   STANLEY, Commissioner.

This is an appeal from a judgment for $6,741 for personal injuries and hospital and medical expenses resulting from an automobile collision. The grounds for a reversal appear in the course of the opinion.

The plaintiff, now appellee, Mrs. Elsie Williford, an employee at the Miners Memorial Hospital in Middlesboro, went off duty about 12:30 a. m. October 5, 1959. Her husband was waiting for her at the employees’ entrance to take her home. She got into the automobile driven by her husband, Hugh Williford. A two-lane curving and upgrade driveway from the hospital enters the north side of Cumberland Avenue at right angles. The night was “medium foggy,” as one witness described it. The plaintiff testified her husband stopped the car before entering the street. They saw the headlights of a car coming from the east. “When we drove out almost onto the highway, or it seems to me like it was, we were facing these headlights,” then there was a crash. Hugh Williford testified he saw the headlights of the approaching car and stopped before entering the street. The defendant’s car “looked to be 1,500 or 1,600 feet away and I pulled out and the crash happened.” The witness estimated the car was traveling 80 or 90 mph but qualified the estimate by saying that when he entered the avenue “I couldn’t tell then but just before we crashed I seen it was coming awfully fast and I couldn’t do nothing then.”

The defendant, Siler, was a policeman driving a city cruiser car. Another officer, Eugene Harold, was with him. They testified that their car was traveling on the right side of the street 50 or 55 mph, and when they were 600 feet from the hospital entrance or exit they saw the plaintiff’s car in the driveway when it was 300 feet from the avenue. It never stopped. The defendant’s car was about the middle of the intersection when plaintiff’s car crashed into the side of it. Both witnesses testified positively that the plaintiff’s car did not stop before entering the street but came right out in front of their automobile.

We conclude the issue of the defendant’s negligence was for the jury to resolve under proper instructions

The instruction submitting the question of the defendant’s negligence defined his duties in regard to exercising ordinary care, control of the machine and lc-okout. A paragraph stated his duty to operate the automobile in a reasonable and prudent manner, having regard for the traffic and condition of the highway, weather conditions and visibility “and in no event in excess of 35 mph” subject to an “unless” provision.

The appellant contends there was no evidence warranting the qualification of speed of 35 mph, hence, the inclusion of that rate in the instruction was error. The accident happened on a city street at a hospital exit. The applicable statute, KRS 189.390, declares that for an ordinary automobile any speed in excess of 35 mph in any business or residential district shall be unlawful. That part of the instruction is correct. Roberts v. Taylor, Ky., 339 S.W.2d 653.

There was no evidence whatever that at the time of the accident the police car was responding to an emergency call. Nevertheless, the court conditioned the instruction on speed by an “unless” provision that if the jury believed that at the time of the collision the defendant was responding to an emergency call, the speed limit of 35 mph did not apply, but in such circumstance the driver was subject to the duties prescribed by subsection (6) of KRS 189.-390. This qualification of the speed instruction ought not to have been given, for there was no evidence on which to base it. The qualification was probably not prejudicial to the defendant’s substantial rights, but in view of the reversal of the judgment on another point we need not decide whether it was or not.

Following the instruction defining the duties of the driver of the automobile in which the plaintiff was an occupant the court instructed that his negligence, if any, should not be imputed to the plaintiff unless the jury believed her husband was her agent, or “that there was community of interest and equal right, express or implied, to control the management and the automobile in which they were riding.” The conclusion of the instruction was a converse. The verdict found the husband was also negligent but the plaintiff was not responsible.

The form of this instruction is bad. It does not give any guide for the jury to determine agency or what is “community of interest.” But greater error than the form is the error in submitting an issue of agency at all.

In the course of her testimony Mrs'. Wil-liford stated, “We had my son’s automobile.” She gave his name, Daniel Monty Williford, and said he was in the armed forces in Korea. On cross-examination she testified the car had been purchased from the Dalton Motor Company. Hugh Williford testified his son was the owner, but the bill of sale was to his wife. At that time the son, he “believed,” was seventeen years old.

The defendant proved by the proprietor of the motor company that he had sold the car “directly to Mrs. Elsie Williford.” The witness had no memory of having talked with her son about the sale. The county clerk testified that Mrs. Williford’s conditional sales contract was filed in the clerk’s office on June 29, 1957, and that the car was licensed in her name.

The registration of an automobile is prima facie but not conclusive evidence of title in the party in whose name the car is registered. The same may be said in regard to the licensing of the car for operation on the public ways. Wright v. Clausen, 263 Ky. 298, 92 S.W.2d 93; Vansant v. Holbrook’s Adm’r, 285 Ky. 88, 146 S.W. 2d 337; Lever Brothers Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002. Like all presumptive evidence, the matter of ownership in another person may be refuted. When there is competent and sufficient rebuttal evidence, ownership becomes a question of fact for the jury to determine. Wright v. Clausen, supra; 5A Am.Jur., Automobiles and Highway Traffic, §§ 63, 1008, 1009; 60 C.J.S Motor Vehicles § 42, p. 179. The decisions of the various courts are lacking in harmony as to the type or quality of evidence sufficient to overcome the presumption of ownership or to raise the issue, as is reflected in the texts cited and in Annotations 7 A.L.R.2d 1347; 27 A.L.R.2d 167.

KRS 186.020 denies the right of the “owner” of a motor vehicle (other than certain immaterial classes) to “operate it or permit its operation upon a highway” until he shall have had it registered with the county clerk of bis resident county. The statute provides that the owner’s bill of sale and other evidence of ownership and title must accompany the application or registration. KRS 186.200 provides that no person “shall sell, trade, transfer or deliver any motor vehicle without at the same time making a bill of sale” to the purchaser. KRS 186.190(3) prohibits the sale or purchase or transfer of a motor vehicle without the endorsement of the owner and delivery to the purchaser of the clerk’s receipt for the registration fee for the current year. Subsection (S) makes it the duty of the purchaser to have the endorsed original registration receipt and a copy of the bill of sale filed with the county clerk. Since these statutes are police measures and regulatory in character, neither compliance nor noncompliance with their terms, although persuasive, is regarded as conclusive of the question of title. Moore v. Wilson, 230 Ky. 49, 18 S.W.2d 873.

In Wright v. Clausen, supra, 263 Ky. 298, 92 S.W.2d 93, 94, where a plaintiff was injured while riding in an automobile, shown by the bill of sale and license registration to have been owned by her, the plaintiff’s “bare statement that she did not own the car,” without any facts or explanation tending to show she was not vested with title to the car, was held not sufficient to contradict the records. We held it was proper for the court to rule as a matter of law that the plaintiff was the owner and to decline to submit the issue of ownership to the jury.

In the present case we have the mere statements of the husband and wife that the car “belonged to” their son. No evidence was offered that the son ever had possession of the automobile or had exercised domain over it or how he came to have title. We deem this testimony so lacking in probative force as not to refute the presumption arising from the documentary records of ownership by the plaintiff.

We are of opinion the court should have so ruled and have 'predicated the contributory negligence instruction upon the ownership of the car by the plaintiff, as was done in the Wright case.

We come to the question of responsibility of the plaintiff for any contributory negligence of her husband. In Marsee v. Bates, 235 Ky. 60, 29 S.W.2d 632, a wife had gone in her husband’s automobile and was taking him home from work when an accident occurred. The court held that as the husband was in the car with her, he was liable for her negligence, if any, in driving the automobile, for she was acting in his presence and by his authority in taking him home. In Challinor v. Axton, 246 Ky. 76, 54 S.W.2d 600, a wife, who was the owner and an occupant of the car being driven by her husband, was injured when the car turned into a driveway of their home and was struck by another automobile traveling on the highway. As in the instant case, the defendant pleaded contributory negligence on the part of both the wife and the husband in the wife’s action for damages. We held that as the car was being driven by the husband with her consent and acquiescence on a mission as much for her benefit as for her husband’s, the instruction which imputed his negligence to her was correct. Several supporting authorities are cited. As above recited, Wright v. Clausen, supra, recognizes the same rule of liability. These cases are in accord with the general holding that the doctrine of respondeat superior applies where the owner is present and the automobile is being operated in and about the owner’s business or pleasure or for the mutual benefit of the owner and the driver. 60 C.J.S. Motor Vehicles § 428, p. 1054.

Instruction No. 4 submitted the question of the negligence of Hugh Williford in failing to stop before entering upon a through highway and yield the right of way to a vehicle approaching so closely as to constitute an immediate hazard. This is in accordance with KRS 189.330(4). The defendant maintains that this was too favorable to the plaintiff, for the instruction should have followed the terms of KRS 189.330(7) (formerly KRS 189.330(6) before the 1960 amendment). That subsection requires that a driver about to enter a highway from “a private road or driveway shall yield the right of way to all vehicles approaching on the highway.” Thus, there is no condition as to an “immediate hazard” as in subsection (4), which relates to inferior and superior public ways. Prima facie subsection (7) imposes the absolute duty upon a motorist about to enter from a private driveway to yield the right of way. Some of our cases involving collisions of cars emerging from private driveways have not noted the distinction between subsection (4) and (7). But in Thomas v. Dahl, 293 Ky. 808, 170 S.W.2d 337, 339, where a bicyclist coming out of a driveway was struck by an automobile in a public alley, we noted that the matter of who has the right of way is relative, notwithstanding the literal language of the statute. We wrote:

“The preferred driver has the right to assume, although not with implicit impunity, that the other driver about to enter his path of travel from a private driveway will yield to him; yet there remains the duty at all times to exercise reasonable care to avoid collision with other vehicles, and he cannot ignore their presence or possible presence.”

This is in accord with the construction of KRS 189.570(2) providing that the operator of an automobile shall yield the right of way to a pedestrian within a marked cross walk or at an intersection. See Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498; Fields’ Adm’x v. Snelling, Ky., 266 S.W.2d 302.

It was held in Thomas v. Dahl, supra, that the instruction defining the bicyclist’s duty to yield the right of way to the automobile as being an absolute duty was too favorable to the defendants. The same interpretation of the statute was recognized in McCoy v. Clark, 309 Ky. 841, 219 S.W.2d 50; Brumbach v. Day, Ky., 260 S.W.2d 939; Couch v. Hensley, Ky., 305 S.W.2d 765.

The defendant offered an instruction based upon subsection (7), that it was the duty of the driver of the plaintiff’s car to yield the right of way to vehicles approaching “and not to proceed into Cumberland Avenue until they could do so with reasonable safety to traffic moving in either direction on said Cumberland Avenue.” This followed the language used in McCoy v. Clark, supra. (See § 116, Stanley’s Instructions to Juries.) In that case Clark, who had come out of his driveway, sued McCoy, who was driving on the highway, and McCoy counterclaimed for damages. The instruction which the court held was “in keeping with the statutes” related to the duty which Clark owed McCoy.

It was admitted by the plaintiff and her driver that they had seen the defendant’s automobile as it was coming at a rapid speed 1,500 feet or more before it would reach the driveway exit. Williford was, therefore, bound to yield the right of way to the automobile until in the exercise of ordinary care there was no danger of a collision. Woods v. Jaglowicz, 235 Ky. 637, 32 S.W.2d 1; Bettis v. Rickett, Ky., 310 S.W.2d 775. Upon another trial, if the evidence is substantially the same, we believe an instruction on this point in the following form will be proper: It was the duty of the driver of the plaintiff’s automobile, Hugh Williford, before entering Cumberland Avenue to yield the right of way to the defendant’s approaching car and not attempt to enter the street if the car was so near that Williford could not by the exercise of ordinary care avoid the collision. If you find from the evidence that Williford failed to observe that duty and thereby contributed to bring about the collision and but for such failure it would not have occurred, you will find for the de> fendant, Siler.

The judgment is reversed.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Larry Dale DUNN, Indicted by the Name of Larry Dale Barrnett, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1961.
    Rehearing Denied Dec. 1, 1961.

      William E. Johnson, Darnell & Johnson, Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., William A. Watson, Asst. Atty. Gen., for ap-pellee.
   STEWART, Judge.

On April 13, 1960, appellant, who was then 20 years of age, and two others were indicted by the Franklin County grand jury for the crime of housebreaking. On May 21, 1960, all three were arraigned and entered pleas of guilty, and on the following June 18th each was sentenced to the penitentiary for two years. Up to this time none of these persons was represented by counsel.

Appellant, immediately after he was sentenced, obtained the services of attorneys and on June 21, 1960, moved to stay the judgment and sentence and also filed a motion and grounds for a new trial. He filed an affidavit in which, briefly stated, he said he did not understand he was to have been arraigned for the purpose of making a plea; he had never been asked if he desired counsel; and it had been his intention to employ counsel to defend himself against the charge. On June 27, 1960, the Honorable William B. Ardery, the then circuit judge of the Franklin Circuit Court, entered an order which stated, in part: “That there is some doubt in the court’s mind that the defendant (appellant) entered a plea of guilty to the charge * * *;” and thereupon directed that the judgment and the sentence of June 18, 1960, be set aside, and that appellant’s motion for a new trial be sustained.

Appellant was thereafter tried by a jury on November 18, 1960, and found guilty. On November 25, 1960, judgment was rendered on the verdict, sentencing him to serve two years in the state penitentiary. He appeals, urging these grounds for reversal :

The lower court erred (1) in not sustaining the demurrer to the indictment; (2) in not arraigning appellant prior to trial or at the time of trial so that he might plead to the indictment; (3) in not granting a continuance because of the absence of two witnesses; (4) in not permitting defense counsel to cross-examine a person testifying as an accomplice concerning prior statements which contradicted the testimony of this person at the trial; (5) in not giving a directed verdict in behalf of appellant because it is claimed a case was not made out against him; and (6) in not instructing the jury on all the law of the case.

Appellant sought to abate the prosecution instituted against him by demurring to the indictment on the grounds: (a) That it accused Larry Dale Barrnett of committing the offense of which he, appellant, was convicted, whereas the latter’s name in truth and in fact is Larry Dale Dunn; and (b) that it did not mention the owner or occupant of the house appellant was charged with breaking into. The demurrer was overruled, the indictment was ordered amended on its face to show appellant’s real name, Larry Dale Dunn, and, over appellant’s objection, the trial was directed to proceed at once.

Section 125 of the Criminal Code of Practice provides that an error as to the name of the defendant shall not vitiate the indictment. In Combast v. Commonwealth, 137 Ky. 495, 125 S.W. 1092, it was held that, upon discovery, such an error may be corrected at any stage of the proceedings. Then, too, it is well established in the law that a person may be indicted by other than his true name, so long as he is commonly known by the name used in the charge preferred against him. See Blockman v. State, 149 Miss. 212, 115 So. 399; Johnson v. State, 126 Tex.Cr.R. 356, 71 S.W.2d 280; People v. Mellon, 171 Misc. 171, 11 N.Y.S.2d 786; Romans v. State, 178 Md. 588, 16 A.2d 642.

Appellant did not at any time state to the trial court he had never been known by the name under which he was indicted; and it has been held that a failure to do this is a ground for disallowing a claim of misnomer. See Wharton’s Criminal Law and Procedure, Vol. 4, sec. 1894, p. 705, citing United States v. Janes, D.C., 74 F. 543, and other cases. See also Ward v. State, 242 Ala. 307, 6 So.2d 394; Livingston v. State, 108 Fla. 193, 145 So. 761, corrected 113 Fla. 391, 152 So. 205; Waldron v. State, 41 Fla. 265, 26 So. 701; Stinchcomb v. State, 119 Ga. 442, 46 S.E. 639.

The record discloses that, following the indictment which resulted in his arrest on a bench warrant, appellant executed bond for his appearance before the Franklin Circuit Court at a specified future date, and in affixing his signature to the recognizance employed the name, Larry Dale Barrnett. This act, whatever the reason that prompt1 ed it, leads us to believe he may have bfeen sometimes known by the surname Barrnett or may have used it on occasions as an alias.

In the final analysis a plea in abatement, not a demurrer, is the proper means of pleading a misnomer. In Bishop’s New Criminal Procedure, Vol. 2, sec. 677, it is stated: “The purpose of requiring the name of the defendant is identification. Hence, only by a plea in abatement, wherein the defendant states his true name, can he take advantage of an error therein; in the absence whereof he will be conclusively presumed to be the one meant, whatever the real fact.” (Emphasis added.) On this same point we stated in Medley v. Commonwealth, 207 Ky. 83, 268 S.W. 820, 822, that a demurrer interposed to an indictment in a criminal case “is never applicable when, in order to determine the objection, evidence must be heard and collateral investigations made.”

Nor is there any merit in appellant’s contention that the indictment was also defective because it did not state the name of the householder living in the dwelling he allegedly broke into. The indictment accused him and two other persons jointly with “breaking and entering into the dwelling of another,” etc. Even a casual reading of KRS 433.180, the law he was said to have violated, will reveal that there is no requirement imposed on the Commonwealth by this statutory provision to allege or prove the name or names of the owner or occupant of the house forcibly entered. Clearly the premises in question were sufficiently described to apprise appellant of the specific charge made against him. Appellant cites no authority for the position taken, and we have found none to support the point he attempts to substantiate.

At the trial on November 18, 1960, appellant requested a re-arraignment, which was denied, and he claims this was a prejudicial error amounting to a denial of due process. The record recites that appellant was formally arraigned on May 21, 1960, on which day, as we have shown, he entered a plea of guilty to the charge of housebreaking. Later, a judgment sentencing him to two years in the penitentiary was entered. On June 27, 1960, as noted above, this judgment was set aside and a new trial granted. He was not arraigned again after the last-mentioned date, and was retried on the date first above mentioned on the same indictment after it had been amended on its face.

The purpose and necessity of an arraignment is to fix the identity of the accused, to inform him of the nature of the charge preferred against him, and to give him an opportunity to plead thereto. See 14 Am.Jur., Criminal Law, sec. 249, p. 939; Bishop’s New Criminal Procedure, Vol. 2, sec. 728, p. 574. The record indicates these requirements were observed, even though the judgment embracing a two-year sentence, entered after appellant pled guilty, was subsequently set aside and a new trial was awarded. Although the trial judge, in acting to pave the way for a new trial, stated in his order he maintained some doubt that appellant had entered a plea of guilty, such a statement is contrary to other language contained in the record. This shows unequivocally that appellant entered a plea of guilty at his arraignment on May 21, 1960. Unquestionably, when the trial judge declared he was uncertain in his own mind “that he defendant (appellant) entered a plea of guilty to the charge” we believe he intended to imply that appellant may not have understood the significance of his action in so pleading. The plea of guilty previously noted makes any other interpretation of this statement of the trial judge illogical.

In setting aside the judgment and sentence of June 18, 1960, no new charge was brought against appellant which would necessitate his being arraigned a second time. Furthermore, the effect of the arraignment of May 21, 1960, was not nullified by the action of the circuit court in taking the steps required to allow appellant a jury trial on the same charge at a later date. Therefore, we conclude appellant answered the charge once by a plea of guilty after identifying himself as the man indicted and learning the nature of the accusation. Another arraignment under the circumstances would have been nothing more than a meaningless gesture.

Complaint is next made that the trial court erred in failing to grant a continuance due to the absence of two witnesses of appellant’s whose evidence, it was averred, would have been material. Affidavits were filed in support of the motion for a continuance which alleged in substance that these witnesses, if present, would testify appellant was taken to his home by them on the evening of the crime at 10:30. As the offense of which appellant was convicted occurred at midnight, ninety minutes after he was supposedly brought to his home by the absent witnesses, their evidence would have had little if any probative value as to his whereabouts when the dwelling house was illegally entered. Although the record fails to show the distance from appellant’s home to the scene of the break-in, it is located in Franklin County and it may not be reasonably supposed it could not be reached in ninety minutes driving time.

It has been consistently held by this Court that the granting of a continuance in criminal cases is within the sound discretion of the trial judge and that this discretion will not be interfered with unless it has been plainly abused. See Toler v. Commonwealth, 295 Ky. 105, 173 S.W.2d 822, and the many cases cited therein on this point. It seems to us the evidence appellant claims was important to his defense, as set forth in his affidavits, can scarcely be considered relevant. The vital thing in this connection would have been for him to have procured witnesses who were able to testify he was at home when the crime was perpetrated. Had he found such witnesses, and they had been subpoenaed but were absent, there would have been a valid reason for granting a continuance. We see no error, therefore, in the refusal of a continuance under the facts presented.

Appellant contends it was improper for the trial court to deny appellant’s counsel the right to cross-examine Willie Lee Carrier, a prosecution witness, as to prior inconsistent statements made by him to appellant’s counsel while said counsel was representing Carrier. The latter had also been charged with the same offense as appellant but had confessed to complicity in the crime and had taken the stand to testify in behalf of the Commonwealth. It was brought out before the trial judge out of the presence of the jury that Carrier had previously told appellant’s counsel, who were then acting as his attorneys, that he had not been involved in and had no knowledge of the alleged entry. At appellant’s trial, Carrier testified he had participated in breaking in the dwelling and that appellant was present also. The court held these prior communications were privileged under KRS 421.210(4), which reads:

“No attorney shall testify concerning a communication made to him, in his professional character, by his client, or his advice thereon, without the client’s consent.”

Appellant cites as controlling an annotation in 51 A.L.R.2d 528, wherein it is stated : “Although there is some authority to the contrary, it has been held or recognized in a number of cases that where an accomplice turns state’s evidence and attempts to convict others by testimony which also convicts himself, he thereby waives the privilege against disclosing communications between himself and counsel.” Cases-, from Michigan, Mississippi and New York, are cited.

This Court has said that KRS 421.210(4) is declaratory of the common law rule and hence applies to criminal as well as civil matters. Cummings v. Commonwealth, 221 Ky. 301, 298 S.W. 943. The communication likewise remains privileged after the attorney-client relationship ceases. Standard Fire Ins. Co. v. Smithhart, 183 Ky. 679, 211 S.W. 441, 5 A.L.R. 972. Our search has failed to reveal any case of this forum which holds that a client cannot be cross-examined on a privileged communication; however, the implication that this cannot be done seems obvious, since the protection afforded by the statutory provision is for the client’s exclusive benefit and if the privileged communication, which is precluded in the attorney’s direct testimony, can be obtained indirectly by cross-examination of the client, then the privilege afforded by the statute would be worthless. We do find a federal case decided in this state which held that the client’s own testimony was just as privileged as the attorney’s himself. See In Re Turner, D.C., 51 F.Supp. 740, citing other authorities. See also Herman v. Schlesinger, 114 Wis. 382, 90 N.W. 460, 91 Am.St. Rep. 922; Myles E. Reiser Co. v. Lowe’s, Inc., 194 Misc. 119, 81 N.Y.S.2d 861. We believe the correct rule should be that immunity extends to the client as well as to the attorney.

Appellant argues that the trial court erred in failing to direct a verdict for him at the close of the prosecution’s case since there was no showing of a breaking as required by law to sustain the indictment. Lt. Rollie Johnson of the Kentucky State Police, who assisted in investigating the case, testified there was no evidence of a forcible entry. Mrs. Ronald Brooks, the householder whose dwelling was entered, testified she “locked” the door upon leaving the premises by removing the door knobs. There was also evidence that the door was standing open far enough to permit passage through it without its being opened further. Carrier entered the house after appellant, he claims, but did not see appellant open the door.

In Little v. Commonwealth, 151 Ky. 520, 152 S.W. 569, a prosecution for housebreaking, which is relied upon by appellant as sustaining the position taken by him, there was no evidence whatsoever to show how an entrance was effected and because of this lack of proof, the judgment of conviction was reversed. In Wallace v. Commonwealth, 162 Ky. 85, 172 S.W. 118, which is also cited by appellant, this Court held that the defendant in a housebreaking case was entitled to a directed verdict, when the only evidence the householder could supply was that the house was closed up when she left it and that she had no idea how burglars could have gained entry into it.

In a case such as the one before us, it has been held that merely pushing an already open door to open it further and thus enable a person to effect an entrance is all the force requisite to constitute a breaking within the meaning of the law. Gibson v. Commonwealth, 204 Ky. 748, 265 S.W. 339. In the case of Rains v. Commonwealth, 293 Ky. 429, 169 S.W.2d 41, a housewife, in leaving her home, locked her door by winding a string attached to the door around a nail, and, upon returning found the string twisted around the nail in a different fashion from the way she had wound it. These facts were held sufficient to show a housebreaking. From the evidence given by Mrs. Brooks that she locked the door of the house and removed the door knobs, the jury could reason that a door which was closed in such a manner, and later found open, must necessarily have been forced.

Appellant takes the position that, aside from the confession made by him to Lt. Rollie Johnson of the Kentucky State Police, no evidence was introduced which would conclusively prove his guilt, and that the lack of such other evidence in this respect made it error for the trial court not to instruct pursuant to Section 240 of the Criminal Code of Practice.

In Rains v. Commonwealth, supra, it was held that finding stolen property in the possession of the defendant, or producing the evidence of a person who stated he obtained such property from the defendant, plus the showing of a breaking and entering into a dwelling and taking property therefrom, makes out a prima facie case of housebreaking against a defendant.

In this case the breaking into the dwelling was established through the testimony of an occupant. It was also proven appellant had possession of and sold certain property stolen from the dwelling. In addition, the testimony of an accomplice placed appellant at the scene of the crime when it was committed. Obviously, there was strong substantive evidence, independent of the confession, which would support the conviction.

This Court has consistently held that where the corpus delicti has been established by evidence other than the alleged confession of the defendant, which was done in this case, it is unnecessary to instruct under the foregoing Code section. See Gilliam v. Commonwealth, 263 Ky. 342, 92 S.W.2d 346; Herron v. Commonwealth, 247 Ky. 220, 56 S.W.2d 974, and Tappan v. Commonwealth, 245 Ky. 750, 54 S.W.2d 333. The trial court properly refused to give the instruction under the facts presented.

A final complaint is that appellant’s offered instruction concerning the weight to be given the testimony of the accomplice, Willie Lee Carrier, should have been submitted to the jury. See Section 241 of the Criminal Code of Practice. We do not agree. If there is, apart from the evidence of the accomplice, doubt as to whether the crime has been committed the question should be left to the jury under an instruction as provided by this Code section. However, under our authorities it is not error to fail to give the accomplice instruction where, as here, the accused’s guilt has been proven by ample material evidence which, standing alone, would tend to convict him. See Combs v. Commonwealth, Ky., 341 S.W.2d 774; Chaney v. Commonwealth, Ky., 307 S.W.2d 770; Magruder v. Commonwealth, Ky., 281 S.W.2d 716; and Sizemore v. Commonwealth, Ky., 262 S.W.2d 817.

Wherefore, the judgment is affirmed.


author: PER CURIAM.

text:
    P. M. PERKINS and Vincel Pruitt, etc., Appellants, v. Porter SIMS, James B. Milliken, Brady M. Stewart, John R. Moreman, etc., Appellees.
    Court of Appeals of Kentucky.
    Aug. 17, 1961.
    Rehearing Denied Nov. 30, 1961.
    Jesse K. Lewis, Lexington, for appellants.
    John B. Breckinridge, Atty. Gen., James W. Stites, Louisville, Ben B. Fowler, Frankfort, for appellees.
   PER CURIAM.

The regular members of the Court of Appeals having declined to sit in these cases, such fact was certified to his Excellency, the Honorable Bert Combs, Governor of the Commonwealth, who thereupon appointed and commissioned as Special Judges of the Court of Appeals to hear the appeals, D. Bernard Coughlin, as Chief Justice, and Neville Moore, Robert M. Coleman, Bernard B. Davis, Leo T. Wolford, Victor A. Bradley, and Fred G. Francis, as Associate Justices.

These are suits by taxpayers to recover sums from four regular judges of the Court of Appeals. The taxpayers contend that the judges were improperly granted increases in compensation during the term for which they were elected in violation of Kentucky Constitution, Section 235.

The actions were consolidated and the defendants’ motions to dismiss the complaints were sustained.

Judge Porter Sims was elected for an eight-year term in November, 1942 and took office on January 4, 1943. He was a candidate for re-election in 1950. Judges James B. Milliken, Brady M. Stewart and John R. Moremen were candidates for the first time in 1950. Judge Sims was re-elected and the other three were elected for eight-year terms. These taxpayers’ suits were all brought in the summer of 1958 while these four defendants were candidates for re-election.

When Judge Sims was first elected in 1942, the maximum annual compensation for any public official, except the Governor, was $5,000 (Ky.Const. § 246). In November 1943, an amendment was submitted to the voters to amend Kentucky Constitution, Section 246, by removing the constitutional limitation on salaries. The amendment was not adopted.

In November 1949, there was again submitted to the voters a proposed amendment to Section 246, which was adopted, and which is now in effect. The amendment provides maximum annual compensation for certain public officials. The maximum annual compensation for judges of the Court of Appeals is $12,000. That section provides

“Compensation within the limits of this amendment may be authorized by the General Assembly to be paid, but not retroactively, to public officers in office at the time of its adoption, or who are elected at the election at which this amendment is adopted”.

In Hatcher, Secretary of State v. Meredith, Attorney General, 295 Ky. 194, 173 S. W.2d 665, the Court held that the amendment submitted in 1943, if adopted, would impliedly repeal Sections 161 and 235 of the Constitution as to those in office at the time of its adoption. These sections provide restrictions on increasing or decreasing compensation during any officer’s term.

The 1949 amendment to Section 246 became effective March 6, 1950.

By an Act approved March 24, 1950, the compensation of judges of the Court of Appeals was fixed at $9,000 per annum, beginning with July, 1950 (Acts 1950, Ch. 123, p. 528).

By an Act of 1952 (Acts 1952, Ch. 23), the Legislature provided that

“Sec. 1. (1) Commencing, as to each position of Judge of the Court of Appeals, when the next regular terms of office respectively begin, the compensation of Judges of the Court of Appeals, payable out of the State Treasury shall be $12,000 per annum.”

By an Act approved March 22, 1954 (Acts 1954, Ch. 234, Sec. 1, p. 643; KRS 64.496), which is under attack here, the annual compensation of all judges of the Court of Appeals was fixed at $12,000 per annum. In that Act the Legislature provided that the compensation of $12,000 per annum for each judge should take effect on January 1, 1955. The preamble to that Act is as follows:

“Whereas, it is required by Section 112 of the Constitution of Kentucky that the judges of the Court of Appeals be paid an adequate compensation for their services; and . •
“Whereas, this provision of the Constitution means that the compensation of the judges shall be equal, and it was so held in the case of Stone v. Pryor, [20 Ky. 312] 45 S.W. 1053, and
“Whereas, the General Assembly previously has determined that $12,000 is an adequate compensation for the services of judges of the Court of Appeals, but existing legislation provides for the payment of such compensation only upon the commencement of new terms; with the result that one judge of the Court of Appeals is now receiving the compensation so determined to be adequate, and commencing January 1, 1955, another judge would commence to receive such compensation, but the other judges with longer experience on the court would continue for a period of years to receive an unequal and inadequate compensation.
“Now, Therefore, * * * ”

The taxpayer plaintiffs contend that Act is unconstitutional in that it violates Section 235 of the Kentucky Constitution, which provides

“The salaries of public officers shall not be changed during the terms for which they were elected * * *

Clearly, Section 235 would forbid increases in the compensation during the term •of officials if that section stood alone, but it must be read in the light of other requirements of the Constitution which require that ■compensation which is both adequate and equal shall be paid to those officials.

Section 112 provides

“They [judges of the Court of Appeals] shall at stated times receive for the services an adequate compensation to be fixed by law”.

'The Legislature had determined prior to 1954 that adequate annual compensation for ¡these judges should be $12,000 per annum.

In Stone, Auditor v. Pryor, 103 Ky. 645, 45 S.W. 1053, 1057, the Court held that the payment of adequate compensation to judges of the Court of Appeals was mandatory under Section 112, and that the Constitution required equality in the compensation of Court of Appeals judges. The Court said

“It was not contemplated by the framers of the constitution, or the people that adopted it, that old and experienced judges should have a less salary than the new judges to be elected in November, 1894, and who were to form a part of the new court on the 1st day of January, 1895. The spirit and the intent of the people in adopting this new constitution was equality — equality in salaries, equality in taxation, equality in rights; and it certainly would be unequal and unjust that these old judges, Pryor and Lewis, who had served on the bench for years, should receive a less salary than new judges to be elected, who were without experience in this court of last resort”.

The Court said in that case that its views were further fortified by Section 133, which expressly required equality in the compensation to be paid circuit judges.

In Wright v. Oates, Ky., 314 S.W.2d 952, the Court considered an Act of 1958, KRS 64.498, which provided for increasing the compensation of circuit judges, including those who were then in office. It said that Section 235 of the Constitution standing alone would forbid the increase to judges in office at the time with the result that the newer judges would receive more than those older in point of service. The lower court had held that in order to maintain equality the newer judges could not receive the increase provided in the statute until the older judges were eligible. This Court reversed. It said the Constitution requires judges to be paid adequately, which requirement does not appear in the Constitution with reference to any other public officer, and that the uniformity could be provided by giving the higher compensation instead of the lower to all of the judges. In that case it was held that Section 235 must be read in connection with the other constitutional requirements for (a) adequate compensation, which the Legislature had found to be the higher amount, and (b) the requirement for uniformity.

We are not unmindful that in Shamberger v. Duncan, Ky., 253 S.W.2d 388, the Court permitted inequality to exist in the compensation of county commissioners. That case did not involve judicial salaries which are required to be adequate and equal. The reasoning as tó judicial salaries in the later case of Wright v. Oates, supra, sufficiently distinguishes the Shamberger case.

It is significant that the wording of the 1949 amendment to Section 246 contemplates the necessity for simultaneous increases in judges’ salaries because it ex-préssly authorized the General Assembly to increase the salaries of “public officers in office at the time of its adoption”.

Judges of the Court of Appeals are elected for eight-year, terms. They are not all elected at the same time. If the increase in their compensation to an amount found to be adequate can only go into effect at the beginning of subsequent terms, then there is bound to be inequality for several years among the several judges and the lower salaries will be paid to those of greater experience. The framers of the Constitution did not contemplate that this should happen or they would not have required adequate and equal compensation to be paid to these judges. Certainly there would be no equality if one judge is receiving annual compensation of $9,000, while other judges are receiving annual compensation of $12,-000. And in view of the legislative finding that less than $12,000 is not adequate, those receiving the smaller amount would not be receiving what the Constitution requires unless there can be equality in the compensation at an amount not less than the Legislature has found to be adequate.

In addition to the claim of excessive salaries, the taxpayer plaintiffs charge that Judge Sims should not have been paid any salary while the Court was in vacation, and that each of the four judges was reimbursed for certain traveling and other expenses incurred in and out of the State “upon authorization and approval by the Department of Finance”. There is no claim that the expenses were not actually incurred or that there was any misrepresentation or fraud with respect thereto, but merely the conclusion that they were “illegal and void”, and that the payment was “improper”.

There are elaborate statutory provisions for the auditing and approval of expenses by the Commissioner of Finance, the State Treasurer, and the Auditor of Public Accounts (ICRS 41.110, 43.050, 45.180 and 45.-190), all of which were manifestly complied with. There is no claim that they were not.

The orderly system which vests discretionary power in the administrative and executive officers for the payment of expenses may not be interfered with by the courts unless the discretionary power is exercised in a fraudulent or arbitrary manner (Standard Printing Co. v. Miller, 304 Ky. 49, 51, 199 S.W.2d 731, 732).

What we have said disposes of the cases, but some mention should also be made of two other questions raised on motions.

The record on appeal was filed on-March 11, 1959. Judge Sims died two days later, and his executor was appointed ora April 1, 1959. A motion to revive the case against his estate was not filed until February, 1961. This was too late (ICRS 395.276; CR 25.01; Ison v. Wolfe, 150 Ky. 34, 149 S.W. 1124).

The appellees moved to dismiss the appeal on the ground that the appellants’ brief was. not filed until almost exactly two years from the time the record was filed in this Court. The excuse offered by the appellants for the unreasonable delay is that they requested the regular judges to vacate the bench. This is no excuse. The Clerk’s office is always open and the brief for the appellants was long overdue (RCA 1.230).

It is unnecessary to pass on other questions raised in the briefs, and they are reserved.

The judgment of the Franklin Circuit Court is affirmed.

      . The amendment submitted in 1943 which was not adopted authorized the General Assembly to regulate the compensation of public officers, “including those in office and those elected to office at the time of the adoption of this amendment”, and that, “thereafter, the compensation of public officials shall not be increased, or decreased during the terms for which they are elected or appointed”. The words italicized are not in the 1949 amendment.


author: CLAY, Commissioner.

text:
    John Irvine GERARD, Executor, et al., Appellants, v. Elizabeth Irvine GERARD, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1961.
    As Modified on Denial of Rehearing Dec. 1, 1961.
    Coleman, Harlin & Orendorf, Bowling Green, for appellants.
    Milliken & Milliken, Bowling Green, for appellee.
   CLAY, Commissioner.

In this will contest suit brought by a daughter of the testator, the jury found the latter lacked sufficient mental capacity to make a will. The executor and the other beneficiaries appeal. We need consider only appellants’ contention they were entitled to a directed verdict because of insufficiency of the contestant’s proof.

The testator, John M. Gerard, died in 1958 at the age af 82, leaving an estate valued somewhere between $100,000 and $200,000. On October 2, 1951 he had executed a will drafted by his lawyer. He bequeathed to appellee, his only living daughter, $5,000. The remainder of his estate was left in three equal parts to his two sons and the children of a deceased daughter. In view of the size of the estate it is apparent appellee will not share equally with her brothers. This discriminatory treatment is the basis of appellee’s claim that her father was insane for 50 years.

At the outset it may be observed that the law extends to the citizen a valuable privilege of disposing of his property at death as he sees fit, and the courts jealously guard this right. Langford’s Ex’r et al. v. Miles et al., 189 Ky. 515, 225 S.W. 246. By nature a will expresses the discriminating wishes of the testator. Inequality in the distribution of an estate by will is not in itself evidence of mental incapacity. Wigginton’s Ex’r v. Wigginton, 194 Ky. 385, 239 S.W. 455; Parks v. Moore’s Ex’r, 265 Ky. 678, 97 S.W.2d 579.

The testator was blessed with good health all of his life. He died a natural death. No one questions his ability and capacity to transact business affairs. There is abundant evidence he had mental capacity to execute a will. The question before us is whether or not appellee presented sufficient evidence of the lack of such mental capacity to authorize submission of that issue to the jury. We will assume, without deciding, that all of the evidence introduced on her behalf was competent.

Our story begins in 1902 when the testator was 26 years of age and appellee was three years of age. That year he was apparently adjudged insane and committed to the Western Kentucky State Asylum in Hopkins-ville. The records indicate his mental disorder as “paresis,” although they fail to show he had any disease, bodily disorder or defect. He stayed for five months and was discharged as “improved.” On February 3, 1903, by judgment of the Warren County Court, he was adjudged restored to his senses and of sound mind. While there is some indication he may subsequently have entered other sanitariums, there is no evidence of any further commitments or investigations into his sanity.

In 1902 the testator was in the undertaking business with his father and his uncle Gene in Bowling Green (where the testator lived all of his life). For many years after 1903 the testator continued in the undertaking business, although the partnership with his father and uncle was dissolved. Though there is some reflection on his capabilities in the conduct of this particular activity, he was apparently quite successful in other business enterprises, particularly the buying and renting of real estate.

After 1931, with the help of an inheritance from his father the testator was able to accumulate the very substantial estate he owned at the time of his death. There is not a line of evidence in this record reflecting on the ability of the testator up until the day of his death (seven years after executing his will) to transact his business affairs in a perfectly competent manner. He had one attribute which cannot be considered abnormal. He did not like to spend money, or particularly, to give it away. (He did on occasion advance his two sons various sums.)

Two tragic events involving each of his two daughters took place during the testator’s lifetime. In 1931, after his own father had died, the appellee (who had left home in 1915 and whose history will be briefly summarized later) brought legal proceedings to probate a will of her grandfather which had been destroyed. This was in effect a lawsuit against her own father, which carried with it at least an intimation of his wrongdoing. It was an unfortunate family fight. Her principal and most favorable witness, the brother Paul, branded this act of hers “a terrible mistake.” This lawsuit, not unnaturally, severely strained the relationship between father and daughter. From that time forth he disowned her. He made statements to the effect that she was no longer his daughter and according to her testimony he refused to recognize she even existed.

The other tragic event was the suicide of his other daughter in 1938. For approximately 10 years thereafter the testator secluded himself at his home during the daytime. After 1948 he resumed his normal way of living and thereafter visited regularly various public places in Bowling Green and renewed his former friendships. This ten years of relative seclusion throws little light on the issue of mental capacity to make a will, particularly since this period ended three years before he executed it.

We will now turn to the testimony of appellee. She starts with her very early childhood and tells a story of mistreatment. She said her father was sick, that one time he bit her nose when she was in bed with him, and at least once kicked her. (This happened over 55 years ago.)

In 1917, because of domestic difficulties (they are not too clear although she does allude to “mistreatment” and “violence”) appellee left home for good at the age of 18. During the next 34 years (up until the date of the will) appellee returned to her home on very few occasions. As we read the evidence, she never returned for a normal visit to her family. She was brought home one time by her mother because of illness and on other occasions she would stop briefly at the hotel at Bowling Green. She testified that her father would refuse to let her in the house, or would fail to recognize her, or would threaten to leave town when she arrived on the scene. (We think it significant that while appellee attempts to prove her father insane because of his coldness toward her, no explanation is given of the fact that neither her mother nor her two brothers showed her any more sympathetic consideration.)

Except for the incidents of her childhood, which are so remote as to have little bearing on our problem, the substance of appellee’s testimony is that her father refused to recognize her as his daughter, did not want her in his home, and refused to give her financial assistance. It is apparent from this record that on most occasions when appellee returned to Bowling Green, or communicated with her father directly or through one of her friends, she sought to obtain money from him. This was a most sensitive subject with the testator.

Other witnesses support appellee’s testimony that she may have been mistreated in her youth, that her father did not assist her financially, and that he refused to recognize his daughter in the manner some might think a parent properly should. It must be borne in mind, however, that the testator’s actions, feelings or motives are not on trial, except to the extent they show he lacked mental capacity to make a will on October 2, 1951. It is true that throughout his lifetime the normal father-daughter relationship did not exist, that he developed an aversion for her, and even animosity. However, his actions show a rational consistency flowing from circumstances which could support his convictions. Neither we nor the jury may sit in judgment on the justness of his position.

There are other bits of evidence indicating peculiarities and eccentricities of the testator. At one time he developed a habit of taking newspapers and not paying for them. Another time he looked through a neighbor’s window, and another time he walked into somebody’s house without knocking. These isolated acts, and others, fall short of establishing lack of mental capacity to make a will. Bickel v. Louisville Trust Co., 303 Ky. 356, 197 S.W. 2d 444. The same is true of the opinion expressed by the brother Paul, who had practically no contact with the testator for the last 20 years of his life and whose conclusion concerning absence of mental capacity lacks sufficient factual support.

Finally we reach the testimony of two expert witnesses. They were psychiatrists who had never examined or even known the testator. They were each asked a long hypothetical question as to the testator’s mental capacity based upon his 1902 commitment and selected subsequent events in his lifetime. Only one of these witnesses would say the testator lacked mental capacity to make a will. This opinion has no probative value whatsoever for the reason that the hypothetical question included a distortion of the facts proven, a conclusion concerning the issue in controversy, and more particularly, it omitted certain very significant matters. For example, the witness was not advised that the testator had been restored shortly after his commitment in 1902; that the father and daughter had been involved as adversaries in a bitter lawsuit; that the testator was not prone to give money to anyone (including his daughter) ; and that the testator did remember his daughter in his will. The expert opinion was based upon a wholly inadequate representation of the significant circumstances and had no value as proof. Rueff v. Light, 272 Ky. 449, 114 S.W.2d 506.

The hypothetical question asked the other expert witness, while omitting several significant facts, did include a reference to the testator’s will. This witness refused to testify the testator lacked mental capacity. The substance of his opinion was that possibly the testator could have been suffering from an “insane delusion.” Even assuming that the hypothetical question asked this witness adequately presented all material facts (which it did not), the opinion of the witness was so equivocal and speculative as to have no probative value.

The issue of the “insane delusion” was submitted to the jury by instructions and has been discussed at length in the briefs. The contention of the appellee is that her father was laboring under the insane delusion that he had never had a daughter by the name of Elizabeth. This argument is destroyed by her own testimony. She relates several incidents in which her father clearly recognized her as his daughter. It is clear from this record that the testator, in alluding to the non-existence of his daughter, was using a figure of speech and meant simply that he was not going to accord to her the rights and privileges that a parent normally accords his child. Even if this was not true however, there is one item of documentary evidence in this case which completely wrecks the entire “insane delusion” theory. That is the will itself. Therein the testator did recognize his daughter as a proper object of his bounty, specifically named her, and bequeathed to her the substantial sum of $5,000. If he previously had an “insane delusion” on this subject, the will itself dispelled it.

We believe the true nature of this lawsuit has now emerged. The key is found in appellee’s brief wherein it is stated that the jury verdict invalidating the will corrected “the most flagrant violation of the principles of justice.” This same idea of injustice appears in the testimony of several of appellee’s witnesses, whose opinions were that because of his prejudice against his daughter the testator would not be capable of making a will that would be “fair and equitable.” The only case made for appellee was that it may have been unjust and unfair for him to be prejudiced against his daughter and to discriminate against her in the disposition of his property. That is not the issue involved in this lawsuit. Wigginton’s Ex’r v. Wigginton, 194 Ky. 385, 239 S.W. 455.

After adding together all the peculiarities, eccentricities and prejudices of the testator and giving full effect to all of ap-pellee’s evidence concerning events in his life from 1902 until the date of his death in 1958, we are unable to find in this record any substantial evidence that on October 2, 1951 the testator lacked mental capacity to make a will. The statutorily given right to dispose of one’s property at death would be unstable indeed if the testator’s deliberate act could be invalidated upon proof of a preference between his children or a disposition of his property which some might think unjust. The case of Purdy’s Adm’r v, Evans, 156 Ky. 342, 160 S.W. 1071, 1075, has many aspects similar to the one before us. Therein the testator left his daughter nothing in his will. In deciding a directed verdict should have been given against her as contestant, the court observed:

“The very purpose of the statute of wills was to recognize and create a right in the owner, having testamentary capacity, to make disposition of his property according to his own choice and pleasure, and in variance, if need be, to the usual rules of inheritance as fixed by the statute of descent and distribution. And, if by reason of such conduct, as has been shown in this case, on the part of Thomas C. Purdy, his will shall be made the subject of attack, and its determination dependent upon the whims and caprices of a jury, then it may as well be said by one who wishes to devise his property, T desire that my property be distributed in the following manner, and I hope that a jury will think upon this subject as I do, and confirm my act.’ ”

A will may not be subjected to such appraisal by a jury. See Kentucky Trust Co. v. Gore, 302 Ky. 1, 192 S.W.2d 749.

Appellee’s evidence was insufficient to make a jury issue on the question of mental incompetence and a verdict should have been directed for the will. This not having been done, appellants’ motion for judgment notwithstanding the verdict should have been sustained.

The judgment is reversed with directions to enter judgment upholding the will of John M. Gerard.


author: LEEDY, Judge.

text:
    Leona PINKSTON, Appellant, v. Patrick McCLANAHAN and Robert McClanahan, Respondents.
    No. 48117.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.
    Thomas A. Mathews, Farmington, Roberts & Roberts, by J. Richard Roberts, Farmington, for appellant.
    Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for defendants-respondents Patrick McClanahan and Robert Mc-Clanahan.
   LEEDY, Judge.

Action by Leona Pinkston to recover $25,000 damages for personal injuries sustained by her when struck by an automobile owned by defendant Robert McClana-han and driven by his 17-year-old son Patrick, the other defendant. The jury returned a verdict (signed by ten members) finding the issues in favor of plaintiff and against both defendants, and assessing plaintiff’s damages in the sum of $2,000. Neither defendant sought a new trial, but both joined in filing a timely motion to have the verdict (and the judgment entered thereon) set aside, and to have judgment entered in accordance with their motion for a directed verdict, as offered at the close of all the evidence. Plaintiff filed a motion for new trial (but asking that the same be restricted to the issue of damages alone) alleging as the single ground therefor, the following: “Under the law and the evidence said verdict is inadequate.” Both motions were overruled, and plaintiff alone has appealed.

This court has jurisdiction of the appeal because in this instance the “amount in dispute, exclusive of costs” is represented by the difference between the amount sued for and the sum awarded, and hence exceeds $15,000. Art. V, § 3, Const. of Mo., V.A.M.S., and § 477.040, RSMo 1959, V.A. M.S.; Hemminghaus v. Ferguson, 358 Mo. 476, 481, 215 S.W.2d 481, 482; Conner v. Neiswender, 360 Mo. 1074, 1076, 232 S.W. 2d 469, 470; Combs v. Combs, (Mo.) 284 S.W.2d 423, 424

The single issue presented on this appeal is that of the inadequacy of the amount of the verdict, as raised in plaintiff’s motion for a new trial. The facts going to the question of liability are therefore not material, and will not be stated further than to say that the casualty out of which this action arose was “an automobile-pedestrian collision” occurring on Division Street in Bonne Terre during the noon hour on May 15, 1958. The defendant-■driver was called as a witness for plaintiff, and he testified directly to the fact that the car he was driving struck plaintiff as she was walking in the street carrying a sack of groceries.

As a result of the collision, plaintiff was knocked down and severely injured. She was taken by ambulance to the Bonne Terre Hospital where she was attended by her physician, Homer Appleberry, M.D., and X-rays were taken. Later that day she was removed to Barnes Hospital in St. Louis where she remained about two weeks, or until May 31, on which day she was taken by ambulance to the Thomas Dell Nursing Home at Farmington. She was confined in the latter institution as a patient until discharged on or about Jan. 3, 1959.

Dr. Appleberry testified as to plaintiff’s condition and the nature of her injuries when he saw her at the Bonne Terre Hospital on the day she was injured, as follows : That “she had a lot of pain”; that she had multiple bruises and cuts on her face; that she had multiple fractures — one of her left leg, and she had a fractured pelvis, and a fractured right leg and knee. On arrival at Barnes Hospital about 8 p. m., plaintiff was attended by Dr. Herbert Spady, an orthopedist, who testified in her behalf by deposition. His examination disclosed the following: She was an elderly, white woman, markedly obese, and was suffering from an acute injury. She had a laceration over the right eye with some crepitus over the nose — “crepitus” meaning, “Oh, kind of a crunchy feeling like you might feel if you squeezed a bag of popcorn.” There was pain to pressure over the area of the right pubic bone; there was pain on motion of the right knee, and there was swelling and blueness or bruised look around the right knee. There was also a bruise of the left knee, and there was a false motion, that is, motion in the mid-portion of the thigh and pain in the left thigh, whereas there shouldn’t have been any motion in any of the mid-portion of the thigh. Following the examination, she was put in traction to relieve her pain and to keep the bones in line so they wouldn’t damage tissue pending surgery, which was performed the next afternoon. This witness identified numerous X-ray photographs of plaintiff, among which was one showing a spiral fracture of the mid-portion of the shaft of the left femur; he assisted in performing an operation for that fracture, which he described as follows: “Well, the patient was, of course, put to sleep and an incision was made over the outer part of the left thigh and carried down to the bone at the fracture site. Then a reamer was passed towards, up through the bone towards the patient’s head until it passed out of the skin in the area of the hip. The reamer was then passed through the bone towards the patient’s feet until it was thought that the canal was reamed enough for the passage of a nail. Then a one-half inch in diameter nail was driven up the shaft of the bone out through the skin and then driven back down through the,, the fragment towards the feet. The wound was then closed in the usual manner and the skin was closed in the usual manner.”

Dr. Spady further testified that unless there is another operation the nail will remain in place the rest of the patient’s life. Interpreting other X-rays taken following the surgery just mentioned, the witness stated one of the photographs showed "the femoral nail in place in the canal of the femur bridging the fracture site and holding it in good position and alignment”; that another showed “the fracture site with the nail bridging across it with formation of callus at the fracture site.” Not having examined plaintiff since, the witness was unable to give an opinion as to whether the fact that the nail is through the upper part of the femur would affect the use of the joint where the femur joins onto the body. He further stated that a nail in the position of this particular nail (the upper end sticking out of the bone into the adjacent soft tissue) may cause pain, but it does not necessarily do so.

He also said the X-rays revealed and that he found fractures of both the tibia and the fibula of the right leg, that of the tibia being just below the knee and extending into the knee joint and associated fracture about four inches down on the fibula. (This was placed in a cast extending from the groin to the toes.) The same X-rays showed considerable joint disease which, in the opinion of the witness, antedated the trauma. X-rays of the right knee taken Nov. 14, 1958, showed no change in the degenerate condition previously found in the knee joint, but did show “considerable healing of the fractures of the knee with considerable new bone formation around the fractures.” The witness-could not tell whether there was any stiffness in that knee joint. In addition, plaintiff had a fracture of the right pubis and a fracture of the right ischium, the pubis- and ischium being portions of the pelvic bone. X-rays taken Aug. 29, 1958, showed these fractures healed. From his examination, this witness was of the opinion that plaintiff had a fractured nose (but for which no treatment was given). His other findings were that she had a small laceration of the face and multiple bruises, one in the area of the left knee, and another on the right knee in the area of the fracture. The patient was conscious on arrival at the hospital, but in pain. During-the first three or four days the patient complained of pain and nausea and she vomited a good deal. She had pains in her chest, and the witness suspected she might have a fractured rib, but no X-rays were taken of the chest.

Cross-examination developed that witness did not find any injury to plaintiff’s spine, but that X-rays taken on the day she entered the hospital showed extensive osteoarthritic changes in the lumbar spine, which condition had existed for years, and that it was the feeling of the witness that it would be expected that this condition would cause more pain in a large, obese woman such as plaintiff than in a thinner patient, although he could not say from his experience that such was true. The X-rays also showed preexisting osteoarthritic changes in both the hip and knee joints. The treatment plaintiff received was the usual and customary kind for the type of fractures involved; in fact, the technique of nailing of the femur was stated to be one of the newest and most modern methods used in the reduction of a fracture of the femur, and holding the fractured bone in place. Plaintiff’s fractures healed and callus developed around them.

Dr. Appleberry did not see plaintiff from May 15, 1958, (the date of the accident) until the 31st of that month, and he saw her at that time at the Thomas Dell Nursing Home in Farmington. She was in bed and “had a cast on her legs from above her waist down to and including her feet.” He continued to treat and prescribe for her until the time of trial; this included pain medicine and medicine for her high blood pressure (a pre-existing condition for which he had treated her since 1950); the latter condition had remained “about the same” practically up to the date of trial. Flexion (that is, her ability to bend the knee back) is about 30 degrees in the right knee, and about 40 in the left, the right knee being the worst one. That condition is permanent. The patient was in pain when he saw her at the Bonne Terre Hospital, as well as subsequently at the nursing home, but less so at the latter. She required pain medicine at intervals. The last time he saw her at the nursing home was Sept. 8, 1958, and she still had the cast on at that time. He did not know when the cast was removed. He saw her in her home on Feb. 17, 1959, and again on Apr. 14, 1959. On these occasions she was on crutches. The last time he saw her before the trial was Oct. 24, 1959, when she came to his office — “she walked in then,” using a cane. The witness described plaintiff’s movements as hobbling around — “she doesn’t get around very good.” She was still receiving medication for pain at the time of trial, and in the opinion of the witness her pain will continue. Plaintiff had complained of pain in her knees, legs, and back before the accident, but she has complained more since. It was his further opinion that the injuries he found and described were permanent. On cross-examination, he stated that considering plaintiff’s age and weight, she had “done very well” in the matter of recovering from the accident. From the complaints she made, he had assumed she had had arthritis before the accident, although no X-rays were taken; those that were taken subsequent to the date of the accident did show arthritis “of the joints.” She had been coming to him in regard to the pain in her back and knees since 1950 — a condition thought at that time to be a “type of arterial sclerotic heart disease.” At various intervals she complained of pain in her arms, legs, and back along with the chest pain.

Dr. Hugh Hartung, a radiologist associated with the hospital at Bonne Terre (and others), and a specialist in the interpretation of X-ray films, also testified on the part of plaintiff. Without developing the details of his testimony, it may be said that he interpreted numerous X-rays taken of plaintiff’s affected parts, and his testimony coincided with that of the other medical witnesses as to the numerous fractures suffered by plaintiff. In addition, he also pointed out that at the markedly com-minuted or fragmented fracture of the proximal end of the tibia “there is some depression of the lateral portion of the articulating surface, the part that goes to make up the [knee] joint is depressed [and] generally speaking, this attributes to a painful joint because the joint is abnormal.” (Resulting stiffness, or not, depending more on soft tissue injury than on bone injury.) He stated that X-rays made Nov. 6, 1959, showed “a marked hyperthropic arthritic change involving the edges of the femur and the edges of the tibia * * * also a marked deformity of the tibia * * that this lateral outside portion of the tibia has been depressed.” This is a permanent situation but the fractures are well healed.

In the interest of brevity, and because not vitally affecting the question to be decided, though having some relevance, we omit delineation of other medical testimony in relation to the spurring of certain bony structures of plaintiff’s body and the effect of trauma as aggravating pre-exist-ing arthritic conditions as distinguished from predisposition to more serious injury because of such pre-existing conditions.

Plaintiff, a widow, was 64 years of age at the time of trial. She testified as to her then condition about as follows: That her right leg is stiff, and she cannot move her right knee as well as she could before the accident; that she has trouble in her knees and back, and the lower part of her back hurts “a lot”; that she has some swelling in her ankles and legs, but did not before the accident, except when she was on her feet ; they swelled a little, but nothing like following the accident when it has been “just all the time”; that she has trouble in getting around, and walks with a cane, although she can walk some without it, but cannot go up and down stairs without it; prior to the injury she walked without a cane' — never used one — and walked wherever she wanted to go — up to the store and places of that kind, but cannot do so now, and hasn’t been to the store since the accident; she manages to do a little housework, but cannot get up and down and scrub floors (her daughter does that for her) ; a neighbor gets the groceries for her; sometimes she has headaches, a lot more than before the accident; she cannot sit down on anything low and get up.

Plaintiff was confined to bed from May 15, 1958 to Nov. 1 of the same year; thereafter she was in a walker for at least two months, and used crutches until at least Apr. 14, 1959. Her bill at Barnes Hospital was $614.45 (admittedly reasonable); the charge of one doctor was $84; the nursing home bill amounted to $1,012.75 and, according to the owner, this was a reasonable charge. These aggregate $1,711.20. There was no showing of any lost wages.

The determination of the amount of damages in a personal injury case is, of course, primarily for the jury. Donahoo v. Illinois Terminal R. R. Co., (Mo.) 300 S. W.2d 461, 469; Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 212 S.W.2d 915, 918. But we are committed to the proposition that where the jury has by its verdict found liability, it is bound to award plaintiff damages commensurate with the nature and extent of the injuries suffered. Coghlan v. Trumbo, (Mo.) 179 S.W.2d 705, 706. In that connection, that case declares that “the test is and the fact of inadequacy is made to appear when the verdict is so meager as to be shocking and can be accounted for or justified only on the hypothesis that it resulted from passion and prejudice on the part of the jury.” But many cases recognize hypotheses other than passion and prejudice alone as accounting for, and as a ground of relief against either excessively large or shockingly inadequate awards. Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050, 1056, enumerates “passion, prejudice or misconduct of the jury." Vogrin v. Forum Cafeterias of America Inc., (Mo.) 308 S.W.2d 617, 622, says this: “As to inadequacy of damages, the rule is that the jury’s discretion is conclusive on appeal unless the verdict is so grossly or shockingly inadequate as to indicate that their discretion has been arbitrarily exercised and abused or is the result of passion and prejudice.” (Emphasis supplied.) See, also, Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 212 S.W.2d 915; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W. 2d 115.

In passing on plaintiff’s motion for a new trial, the trial court weighed the evidence, and by approving the amount of the award found it not against the weight of the evidence. Unlike the trial court, this court on plaintiff’s appeal from the order overruling her motion for new trial based on inadequacy, does not weigh the evidence, but determines only whether the trial court abused its discretion in ruling as it did. Rousch v. Alkire Truck Lines, (Mo.) 245 S.W.2d 8, 10. To the end just mentioned, inquiry is limited to whether there is substantial evidence to support the jury’s verdict. Glore v. Bone, (Mo.) 324 S.W.2d 633; Spica v. McDonald, (Mo.) 334 S.W.2d 365. And by the phrase “substantial evidence to support the verdict,” as here used, is meant and it includes whether the amount of the verdict is responsive to the evidence on the issue of damages, for it has been said, “[Tjhere can in reason be no difference between a verdict which is not supported by the evidence as to the amount thereof, and one which is not supported by the evidence at all.” State ex rel. Atchison, T. & S. F. Ry. Co. v. Ellison, 268 Mo. 225, 186 S.W. 1075, 1077.

It is the further rule that in instances where the trial court has approved the amount of a verdict by overruling plaintiff’s motion for new trial based on inadequacy, the appellate court will consider the evidence favorable to the verdict returned, this for the reason that the credibility, weight and value of the testimony is for the jury. We have detailed the uncontradicted evidence concerning plaintiff’s injuries, which were obviously severe and permanent. Such evidence, of course, was not conclusive as a matter of law, but it appears to be fair on its face. The injuries included six separate fractures : The femur of the left leg, the tibia and the fibula of the right leg, two separate ones of the pelvic bone, and a broken nose, to say nothing of bruises and lacerations. The effect of the verdict is to allow plaintiff’s medical and doctor bills and expenses ($1,711.20) in full, plus $288.80 as compensation for her pain and suffering, past and future, and for the numerous permanent and serious physical injuries inflicted upon her person and the resulting damages.

We find a striking analogy between the case at bar and Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618 (decided 1930), where an award of $1,000 chiefly for multiple fractures of the pelvis, was held so inadequate as to require a new trial. The difference in the value of a dollar at that time as compared with the present creates substantially parallel situations. Upon a consideration of the whole record, we are constrained to hold that the amount of the verdict is so shockingly inadequate as to require a new trial. While plaintiff has asked that the new trial be ordered on the issue of damages alone, we deny that request and, in our discretion, order a new trial of the whole case, this because there was such a sharp conflict in the evidence on the liability issue that the defendants are as much entitled to have that question redetermined as is plaintiff on the issue of damages. We think both should be reconsidered together. The judgment is, therefore, reversed and the cause remanded for new trial

All concur.


author: HOUSER, Commissioner.

text:
    Rhoda GATES, Administratrix of the estate of George Tashkoff, deceased, Pete Tashkoff, Toni Hagelin, Helyn Bellavance, Thomas Tashkoff and Rhoda Gates, Respondents, v. Aline ROBERTS, Appellant.
    No. 48509.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      William R. Ross, Gene R. Martin, Ennis, Browne & Martin, Kansas City, for appellant.
    John C. Pohlmann, William H. Costello, Kansas City, for respondents.
   HOUSER, Commissioner.

Suit to quiet title to Lot 18, Doherty’s Addition, Kansas City. Plaintiffs claimed title by inheritance from their father, George Tashkoff, deceased, and that George Tash-lcoff obtained title by tax deed and adverse possession. Defendant, denying plaintiffs’ title, claimed title by virtue of a warranty deed from the record owner.

The case was tried to the court without a jury. The trial court found the issues for plaintiffs, sustained their plea of adverse possession, and declared defendant’s warranty deed a nullity. Defendant has appealed, and now seeks a reversal of the judgment on the ground that the court erred in decreeing title in plaintiffs because (1) the tax deeds purchased by plaintiffs’ father were void, and (2) there was no evidence that the possession of plaintiffs’ father was exclusive or hostile.

A jury having been waived, we review the case upon both the law and the evidence as in suits of an equitable nature, not setting aside the judgment unless clearly erroneous, giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses, Supreme Court Rule 73.01(d), V.A.M.R.; Section 510.310, subd. 4, RSMo 1959, V.A.M.S.; Ennis v. Korb, Mo.Sup., 347 S.W.2d 671, reversing or affirming the trial court or giving such judgment as seems agreeable to law. Supreme Court Rule 83.13(c), V.A.M.R.; Carlisle v. Keeling, Mo.Sup., 347 S.W.2d 191.

We find these to be the facts: In 1922 John H. Doherty, his wife Irene, and his mother Sarah, the joint owners of a tract of land in Kansas City, subdivided the land. The subdivision included Lot 18, the subject of the present controversy. John Doherty died in 1928, and Sarah died thereafter, thus leaving Irene Doherty as the sole surviving record owner. Sometime prior to 1937 one L. V. Churchman commenced the construction of a house on Lot 18. Nothing in the record indicates that Churchman had any interest in the land or what, if any, contractual arrangements he may have had with Irene Doherty for the construction of the building. After putting in the foundation and erecting the walls, subfloor and roof Churchman abandoned the project and disappeared. The house remained vacant, in this unfinished condition, without partitions, doors, windows, finished floor, utilities or even entrance steps, for a year or two. It was referred to in the community as “the empty shack,” and was reputed to be “a haunted house.” It was just a “shell ■of a house” on a 25-foot lot. At that time the house and lot were worth somewhere between $300 and $1,000. On September 11, 1937 George Tashkoff was about to lose his home on nearby Hughes Street for inability to meet the payments. Tashkoff’s family consisted of himself, his wife and four children. When Tashkoff saw the house on Lot 18, a place he had “found for his family to go,” he said it was “an answer to a prayer” — a “miracle,” and he and his family moved in. No one in the family seemed to know who- the owner was; no arrangements were made with Irene Doherty, the record owner; the family “just moved in.” Tashkoff “put himself into possession.” On September 11, 1937 Irene Doh-erty lived nearby, within sight of and not more than 150 or 200 feet distant from, Lot 18. Irene Doherty was “tax poor.” She “owed a lot of taxes” during the depression and was losing other properties on account of tax delinquencies. Finally she was forced by circumstances to let the taxes become delinquent on Lot 18. After moving in, Tash-koff cleared the property of underbrush, cut the grass and planted fruit trees. He was an industrious, hard-working man. Slowly, by degrees, and as he could afford it, Tashkoff installed flooring, ceilings, partitions, windows, doors, electricity, water, plumbing fixtures, and built two large additional rooms and a bathroom. Tashkoff and his family devoted all available funds to the repair and additions to the house. Within a year “they were fairly comfortable.” In 1938 Tashkoff went to the City Hall and secured from the City Treasurer a tax deed to Lot 18 for unpaid city taxes for the year 1932. The consideration was $8.48. On November 19, 1939 Tashkoff caused the issuance of a second such tax deed to Lot 18 for unpaid city taxes for the year 1934. The consideration was $8.63. In 1938, 1939 and 1940 Tashkoff paid the delinquent city, county, school district and state taxes on Lot 18, some of which ran back to 1934. Thereafter and until the date of his death Tashkoff kept the taxes paid. The tax bills were made out to George Tashkoff or to “John H. Doherty % Geo. Tashkoff.” George Tashkoff died on November 9, 1958. Thereafter one of the plaintiffs paid the taxes. George Tashkoff and his family, and no one else, occupied and controlled the premises from September 11, 1937 to November 9, 1958. A daughter testified, “It was always our property; our house.” After 1938 Irene Doherty always referred to the property as “the Tashkoff property.” Irene Doherty continued to live in view of “the Tashkoff property” through the years, with full knowledge that Tashkoff was there and what he was doing with the property. Tashkoff claimed title to the property from the time he moved in. He stayed there, possessing and occupying the property, making it his home continuously for more than 20 years, raising his family there, making all the repairs and paying the taxes on the property. He continued to claim title and to claim the property “as his own” until he died. On July 13, 1959 Irene Doherty made a warranty deed to Lot 18 to the defendant Aline Roberts. Irene Doherty died in September, 1959. After her death this suit w'as instituted.

With respect to appellant’s contention that the tax deeds were void, suffice it to say that the trial court did not base its judgment and respondents do not rest their claim, upon the tax deeds. Respondents say the tax deeds are immaterial, and that even if they are void, they were “sufficient color of title to support an action of adverse possession.”

Appellant claims that respondents’ evidence fails to establish the necessary element of “hostile” possession; that there is no evidence that Tashkoff entered the property under any claim of right; that he did not enter under color of title; and that the circumstances under which he entered are more consistent with a permissive possession than an adverse possession. She argues that a possession permissive in its inception continues to be permissive in character until transformed into an adverse possession by a distinct and positive assertion of a right hostile to the owner and brought to the knowledge of the owner; that there was no positive assertion of this kind “brought home to Irene Doherty” during Tashkoff’s occupancy, and that it was not until after Tashkoff’s death that Irene Doherty “had any knowledge of an adverse claim inconsistent with the permissive character of the possession granted to George Tashkoff.”

Was the possession exclusive and hostile ? “Exclusive possession” means that the claimant must hold the possession of the land for himself, as his own, and not for another. 2 C.J.S. Adverse Possession § 47, p. 566; 1 Am.Jur. Adverse Possession § 141. “Hostile possession” means possession opposed and antagonistic to the claims of all others, Bradbury Marble Co. v. Laclede Gas Light Co., 128 Mo.App. 96, 106 S.W. 594, 599; adverse, Weller v. Wagner, 181 Mo. 151, 79 S.W. 941, 943; and imports the occupation of land by the possessor with the intent to possess the land as his own. Landers v. Thompson, 356 Mo. 1169, 205 S.W.2d 544; Agers v. Reynolds, Mo.Sup., 306 S.W.2d 506, 511.

All of the evidence, without contradiction, shows that Tashkoff entered the possession of the property, claiming it as his own, holding the possession for himself as owner, and not for another, appropriating the land to his own use and benefit, exercising exclusive dominion over it, performing acts of ownership such as the making of extensive improvements, all of which were consistent with an intention to occupy as the owner and inconsistent with any theory of permissive use. Although defendant’s counsel cross-examined plaintiffs’ witnesses vigorously in an attempt to elicit some indication that the entry of Tashkoff into the possession was permissive in character, there was not the slightest intimation that this was the fact, and defendant introduced no evidence in support of her theory of permissive use. It is unrealistic to contend that Irene Doherty had no knowledge of any adverse claim to her property. This is not a “gradual, unrebuffed intrusion upon the premises and rights of the record owner,” as in Carlisle v. Keeling, supra. Here, George Tashkoff and his family descended upon the property, moved in right under the nose of the record owner, cleaned up the place, completed the construction of the building and made substantial additions thereto, planted an orchard and lived in actual, open and notorious, continuous, and exclusive possession of the property, under claim of right, as against the whole world including the record owner, who lived only a stone’s throw from Lot 18, for a period of more than 20 years. While it is true that Tashkoff did not enter under color of title it is the general rule, in the absence of statutory requirement, that color of title is not a necessary element in order to originate and perfect title by adverse possession. Cullen v. Johnson, 325 Mo. 253, 29 S.W.2d 39, 47. The adverse possession in this case, commenced without color of title, was later fortified by color of title, and possession under color of title continued for many years more than the period necessary to perfect title by adverse possession.

The record is amply sufficient to sustain the trial court’s finding in favor of the plaintiffs, and the judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.

All of the Judges concur.


author: HOLMAN, Commissioner.

text:
    Thelma RICHMAN, Respondent, v. Murlen Arthur RICHMAN, Appellant.
    No. 48084.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Kelso Journey, Clinton, for appellant.
    William J. Cason, Clinton, for respondent.
   HOLMAN, Commissioner.

In this action the trial court granted plaintiff a final decree of divorce together with custody of two minor children and an allowance of $50 per month for their support. The decree was entered by default after defendant’s pleadings had been stricken. Defendant’s motion to vacate the judgment or, in the alternative, for a new trial was overruled and he has duly appealed. We have jurisdiction because the appeal involves the construction of the Constitutions of Missouri and of the United States. Section 3, Article V, Constitution of Missouri 1945, V.A.M.S.

A brief statement of facts will suffice. Within the time provided by statute defendant filed a motion to dismiss and a motion to make plaintiff’s petition more definite and certain. Thereafter, on October 8, 1958, plaintiff’s motion for child support, pendente lite, and attorney fees was sustained and she was allowed $25 per month for support of a child and $100 for attorney fees. Defendant paid only a small portion of these allowances. On September 14, 1959, the court sustained plaintiff’s motion striking the motions defendant had filed in the cause because of his failure to pay the judgment for child support and attorney fees. On the next day defendant filed an answer. Thereafter, plaintiff filed a motion to strike defendant’s answer for the reason that (1) defendant had failed to pay the allowances heretofore mentioned and (2) the answer was filed without leave. The court sustained the motion on October 7, 1959, and ordered the answer stricken. On the same day the court heard plaintiff’s evidence and entered the default decree from which defendant has appealed.

The main contention of the defendant upon this appeal is that the action of the trial court in striking his pleadings because of his failure to pay the allowances for attorney fees and temporary child support was a denial of due process of law in violation of Section 10, Article I of the Missouri Constitution, and the Fourteenth Amendment to the Constitution of the United States. For reasons that will hereinafter appear we are in full agreement with that contention.

While it is difficult to give a precise definition of the' phrase “due process of law,” it is generally agreed that “The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause.” 12 Am. Jur., Constitutional Law, § 573, pp. 267, 268. More specifically applicable to the question before us is the following: “Courts have no inherent power to punish contempt by denying a hearing to the contemner, and striking his pleadings or entering default judgment or dismissal against him, since one of the fundamental conceptions governing a court of justice is condemnation only after a hearing, and an order of this nature denying the contemner a right, as distinguished from a favor, is void for want of due process of law in violation of the Fourteenth Amendment to the Federal Constitution or a comparable provision of the applicable state constitution. * * * In Hovey v. Elliott (1897), 167 U.S. 409, 42 L.Ed. 215, 17 S.Ct. 841, it was held that a decree pro confesso entered after striking defendant’s answer from the files as a punishment for his contempt in refusing to obey an order of the court to pay money into the court was void for want of due process of law. The court said: ‘ * * * The fundamental conception of a court of justice is condemnation only after hearing. To say that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends.’ ” Annotation 14 A.L.R.2d 580, 589, 590.

The precise situation here involved was before the Kansas City Court of Appeals in the case of McMakin v. McMakin, 68 Mo.App. 57. Therein it was held that the failure of the defendant to discharge a judgment for alimony pendente lite did not authorize the striking of his answer. The court relied upon the decisions from a number of other states and appeared to stress the interest of the public in divorce actions, saying that “unless the defendant is permitted to plead his defense, and offer proof thereof, how can the conscience of the court be satisfied of the justice of the plaintiff’s complaint? The defendant’s answer and evidence may call to the court’s attention a state of facts that would show that to grant the plaintiff a divorce would be not only contra bonos mores, but a subversion of the rights of third parties not before the court. * * * If the defendant has property which can be taken in execution in satisfaction of the judgment, the plaintiff has only to cause the writ to issue for that purpose, but whether he has or has not such property, we are not of the opinion that a failure on his part to discharge the judgment, authorizes the court to strike out his answer * * 68 Mo.App. 62, 63. While we are in full accord with the opinion in the McMakin case we think an additional and more fundamental reason for the result therein was that the striking of defendant’s answer constituted a denial of “due process” as guaranteed by the state and federal constitutions.

The result in the McMakin case is in accord with the great weight of authority. “A majority of the authorities hold that, as a rule, a court has no power, when the defendant in a divorce action is in contempt in disobeying an order to pay alimony, to strike out his answer, or otherwise prevent him from interposing a defense on the merits; for such a course not only deprives the defendant of his day in court, but it ignores the public interest in the preservation of the marriage relation.” Annotation 62 A.L.R. 660, 667. The cases supporting the quoted rule are cited and discussed in said annotation and need not be cited here.

In harmony with the foregoing authorities it is our view that the defendant, who was summoned into court to answer the petition of plaintiff, could not legally be deprived of the right to defend the action. To do so is contrary to our fundamental concept of justice. The striking of his answer resulted in an omission from the proceedings of an essential element of due process of law, i. e., “an opportunity to be heard and to defend.” 12 Am.Jur. p. 267, supra. We accordingly rule that the trial court erred in striking the various pleadings filed by defendant.

In support of the action of the trial court plaintiff has cited State ex rel. Dawson v. Rombauer, 99 Mo. 216, 12 S.W. 661, and State ex rel. Couplin v. Hostetter, 344 Mo. 770, 129 S.W.2d 1. These cases hold that the court may require the payment of an alimony award as a condition to the granting of affirmative relief in favor of the husband. That has long been the established rule in this state. In Waters v. Waters, 49 Mo. 385, 388, this court stated that “the allowance may be enforced by attachment or execution; or, when the husband is plaintiff, the court may make its payment a condition to the further prosecution of the suit.” However, the situation where payment is made a condition to the granting of affirmative relief and one where it is made a prerequisite to the right to defend are quite clearly distinguishable. The early cases refer to the former as the withholding of a favor while the latter involves a fundamental constitutional right. We therefore conclude that the cases cited do not support the action of the court in this case.

There is also no merit in plaintiff’s suggestion that the court was justified in striking defendant’s answer because it was filed without leave of court. The transcript discloses that in the discussion following the order striking defendant’s motions his counsel asked leave to plead to the petition and such was denied. An additional reason for disallowing this contention is that the striking of defendant’s motions was equivalent to a denial thereof and hence defendant had a right to file an answer without leave of court within ten days thereafter under the provisions of Section 509.260(3) RSMo 1959, V.A.M.S.

The judgment is reversed and cause remanded for a new trial.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion .by PIOLMAN, C., is adopted as the opinion of the court.

All concur.