author: HUGHES, Justice.

text:
    Vicente GARZA, Appellant, v. Santiago T. GARZA, Appellee.
    No. 11122.
    Court of Civil Appeals of Texas. Austin.
    Oct. 23, 1963.

      Ed Idar, Jr., San Angelo, for appellant.
    O’Neal Dendy, San Angelo, for appellee.
   HUGHES, Justice.

Santiago T. Garza sued his brother, Vicente Garza, to foreclose a vendor’s lien on a city lot in San Angelo, Tom Green County. The lien was originally given to secure a note in the sum of $4,490.00. The amount alleged to be due on the note at the time of trial was $1,000.00 plus interest and attorneys fees. Vicente Garza alleged that he had paid the note in full.

Trial to the Court resulted in judgment for the plaintiff as pleaded.

The property involved was a filling station which was operated by appellee. He testified that he agreed to sell the filling station and its equipment, not including merchandise, to his brother for $5,500.00, $1,000.00 of which was to be paid in cash.

The two brothers went to an attorney’s office to close the trade. The attorney was informed that the trade was as stated and he drew the deed to the realty reciting the consideration to be “four thousand and five hundred ($4,500.00) Dollars, to us paid, and secured to be paid, by Vicente Garza as follows: Ten Dollars in cash, receipt of which is acknowledged, and one Vendor’s Lien note in the principal sum of four thousand four hundred and ninety ($4,490.00) dated August 5, 1954 * * * ”, the date of the deed. A cancelled check, of the same date from appellant to appellee for $1,000.00 was introduced in evidence.

The attorney who drew the papers testified :

“They [the brothers] discussed with me the transaction they were making, and I put down for my information, in order to draw the note and the deed, these figures: the figure of $5,500; then the figure of $1,000 here, which they told me was cash paid on it. That left for me to draw a note for $4,500; and then the deed having recited — it seems that I drew the deed before I did the note —the deed having recited $10.00 cash, in order to make it all come out exactly correct, I made the note for $4,490, so that the note and the deed would fit; and this $1,000 was paid cash, and that left the sum of $4,500 to be paid, and that is what I put in the note and the deed, because the $1,000 was already eliminated.”

Appellant testified that he agreed to pay $4,500.00 only for the filling station.

The Trial Court resolved all fact issues against appellant, and we overrule his assignment that such findings are against the weight of the evidence.

During the trial appellee offered in evidence a portion of his 1955 federal income tax return showing that he had reported the sale price of the filling station as $5,500.00. This was admitted in evidence over appellant’s objection that the return was not a certified copy and that it was not the best evidence. Appellee testified that it was a “correct copy.”

Appellant does not brief the point relating to the admission of this evidence except to say that it was self serving and not admissible. No objection was made that it was self serving, and we cannot consider this ground in our ruling.

The evidence admitted was cumulative of the oral testimony of appellee and, if there was error in its admission, we are of the opinion that it is harmless error. Rule 434 T.R.C.P.

Similarly appellant briefs a point relating to the admission in evidence of a notation made by the attorney who drew the deed and note, made by the attorney at such time, reading, “5,500.00; $4,500.00; 10.00; $1,000.00; $4,500.00; all 0-$40.00 a mo; Maria Garza; Vicente.” The objection made to this memorandum was:

“We object to the introduction of that in evidence. There is no proof here other than the Defendant’s word here that these were actually made at the time they alleged they were made. There is no explanation of what these figures indicate on the paper that is sought to be introduced, what they stand for; there is no description of the property involved or the different items in question, or whether this was to be incorporated in one written instrument, or whether, whatever is supposed to be represented by this was more than one agreement, and whether one of those could have been in oral agreement or not.”

The memorandum was fully explained by the testimony, and, in our opinion, the objection made was properly overruled.

Appellant’s remaining points question the admissibility of evidence to vary the consideration stated in the deed. The recited consideration, as distinguished from the contractual consideration, stated in the deed was “Ten Dollars in Cash.” The rule is, as stated in Sec. 1613, p. 458, Texas Law of Evidence, McCormick and Ray, 2d Ed., that, “It is doubtless true, as explained above, that a recital as to past consideration received, like any other recital in a written instrument, is a mere statement of fact and subject to dispute or contradiction. It may be shown that the money or property mentioned was not actually received, or that other or additional money or property was in fact received. * * * This is true where the instrument expresses promises given as consideration in addition to the recital of executed transactions, as well as where it recites only the latter; no distinction should be made on this ground.”

The transaction between the parties involved both real and personal property. The Contract as to the personal property was verbal only; the Contract relating to the realty is evidenced by the deed, note and check. We do not understand the parol evidence rule to exclude the admission of extrinsic evidence of a prior or contemporaneous but collateral agreement which although related to the written instrument does not contradict it and whose subject matter is one with which the parties might naturally deal separately. 32 C.J.S. Evidence, § 997, pp. 970, 971, Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30.

The evidence reflects a single transaction in the sale of the filling station and its equipment for $5,500.00. This evidence does not, in our opinion unlawfully vary or contradict the terms of the deed and note. The deed, the note, and the $1000.00 check all coincide to establish the truth of the agreed sale price of the station and its equipment as found by the Trial Court.

The judgment of the Trial Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: STANLEY, Commissioner.

license: Public Domain

text:
    DARTMOUTH-WILLOW TERRACE, INC., et al., Appellants, v. Kathleen B. MacLEAN et al., Appellees.
    Court of Appeals of Kentucky.
    May 10, 1963.
    As Modified on Denial of Rehearing Nov. 1, 1963.
    Henry A. Triplett, Boone & Triplett, Louisville, for appellants.
    S.J. Stallings, Robert L. Durning, Jr., Robert L. Sloss, David A. Jones, Wyatt Grafton & Sloss, Stuart Handmaker, Louisville, for appellees.
   STANLEY, Commissioner.

The question is whether or not an apartment house may be erected on certain lots in Louisville because of building restrictions contained in former conveyances thereof.

The appellee, H. G. Whittenberg, has contracted to buy the property from his coap-pellee, Kathleen B. MacLean, conditioned upon a right to erect an apartment house on it. They instituted this action for a declaratory judgment to determine the question. The defendants were the appellants, Dartmouth-Willow Terrace, Inc. and Sam B. Weakley, Jr. and wife, and a number of other owners of property in what was originally a subdivision lying between Bards-town Road and Cherokee Park, developed in 1907 by the Baringer Land Company. The court accepted the suit ás a class action. Some of the defendants did not answer, and four others merely joined issue. The appellants joined issue, asserted an affirmative defense and asked the court to adjudge and declare that no apartment house can be built on the property. The judgment declared the plaintiffs’ land not to be subject to restrictions against the construction of an apartment house. Only two of the parties defendant have appealed from the judgment

The subdivision covered a large area. It was divided into five or six irregularly shaped blocks and more than 200 lots. Some of the lots were conveyed with no restriction at all as to use. Others had indefinite restrictions, and many of them were restricted “for resident purposes only.” The lots along Bardstown Road have long been used for commercial purposes. The rest of the area has been pretty well built up with fine homes and a number of large apartment houses. We agree with the court’s conclusion that if it could be said there was a general plan of restrictions, it “falls far short of being in any way uniform.” The lots involved are designated on the plat as lots No. 3, 4, and 5 in Block 3. They front on Cherokee Road where it is intersected by Willow Avenue, and are now known as 1412 Cherokee Road and 1400-1402 Willow Avenue. The Weakley property is across Willow Avenue and is occupied as a single family residence. The property of Dartmouth-Willow Terrace, fronting on Willow and Baringer Avenues, consists of two large apartment buildings, one of which is eight stories high.

Two types of restrictive covenants are involved.

There was no specific restriction against the erection of apartments on any of the lots in the entire subdivision except as follows: Conveyances by Baringer Land Company of two lots in Block 3 provided that no apartment should be built on three adjoining lots. These three are the lots involved. When they were conveyed to plaintiffs’ predecessor in title, the deed contained a restriction against the construction of apartments on them. But the present owners of the two adjacent lots have executed quit claim deeds to Mrs. MacLean, releasing any rights which they might have to enforce the restrictions against apartment houses on her lots.

This restriction on the particular property was not a part of any general scheme or plan of development of the subdivision. It was for the special benefit of the grantees of the two adjacent lots and their privies. The restriction did not extend to the grantees of other lots in the tract or their successors in title. Feinberg v. Board of Education, City of Louisville, 210 Ky. 737, 276 S.W. 823; Bagby v. Stewart’s Ex’r, Ky., 265 S.W.2d 75; 14 Am.Jur., Covenants, Conditions and Restrictions, §§ 311, 312; 26 C.J.S. Deeds § 167(3).

By mutual agreement, the owners of the particular lots for which alone the restriction was imposed have, by deed, released and relinquished their right to enforce the same and thereby abrogated the servitude. Eaton v. Trautwein, 288 Ky. 97, 155 S.W.2d 474; 14 Am.Jur., Covenants, Conditions and Restrictions, § 292. We concur, therefore, in the conclusion of the trial court that this particular restriction does not prevent the erection of the apartment upon the lots.

The original conveyances of the three lots contained covenants restricting the building on each lot to “only one house, which shall * * * be for residence purposes only.” Apparently, with some doubt, the circuit court concluded that there was a general plan of the subdivision that all lots in Block 3 should be restricted as thus described; therefore, that any lot owner affected had the right to enforce the restriction. The court pointed out that the defendant Dartmouth-Willow Terrace, Inc. was in no position to claim that the covenant against apartments on plaintiffs’ land was to protect its land against the construction of an apartment house, for it has erected two large apartment buildings within a distance of 200 or 300 feet.

On the lots in Block 2 in this same subdivision, on which an apartment building has been erected, the deed contained, among other provisions, a restriction that any improvements placed thereon “shall consist of only one building which shall be used for residence purposes only.” The court held in Struck v. Kohler, 187 Ky. 517, 219 S.W. 435, that this restriction permitted the right to build apartment houses and construed the provision as not barring the erection of one of them upon more than one lot. In the present case we have the word “house” instead of “building.” We see no distinction.

It has been said that “house” is all inclusive and may include any and every kind of structure, depending upon the context in which it is used and the purpose sought to be effected. 26 C.J.S. Deeds § 164(2) ; 14 Am.Jur., Covenants, Conditions and Restrictions, § 217. Undoubtedly, in the present restriction the term “house” meant a dwelling house or residence. As stated in Parrish v. Newbury, Ky., 279 S.W.2d 229, “ ‘Apartments’; in this relation, has a well-known meaning as a type of plural residences.” The building is often called an “apartment house.”

In Ratkovich v. Randell Homes, Inc., 403 Pa. 63, 169 A.2d 65, the court construed a restrictive covenant in a deed prohibiting the erection of more than one “house” on each lot in a subdivision as not forbidding the erection of a multiple family residence. We may say, as the court said in that case, had the creator of the restriction desired to restrict the use of these lots to single family dwellings or to prohibit multiple family dwellings, i. e., apartment houses, it would have been easy to so word the restriction.

The trial court pointed out that the appellants, the Weakleys, are the owners of a single family residence, but that they and their predecessors in title had not objected when an apartment house was built next door and other such structures were erected in the immediate neighborhood on lots with similar restrictions.

The decision of the court might well have been rested on the language of the restriction, but it was really planted upon the ground that there has been such a great, change of conditions in the Baringer Subdivision, brought about by the construction of numerous duplex and multiple dwellings and many large apartment houses on the tract, that the restriction in the present deed, if it was intended to limit the lots to one-family dwellings, has been extinguished insofar as it may have excluded an apartment house. Anness v. Freeman, Ky., 294 S.W. 2d 77. The pleadings and many exhibits upon which the court based the summary judgment confirm this conclusion.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    George W. RATTERMAN, Petitioner, v. Paul J. STAPLETON, Judge, Division No. 2, Campbell Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Nov. 1, 1963.

      Henry J. Cook, Moebus, Cook, Kirchhoff & Neisch, Newport, for petitioner.
    Howell W. Vincent, Covington, for respondent.
    N. Mitchell Meade, Lexington, amicus curiae.
   MONTGOMERY, Judge.

The right of a circuit court to disbar permanently an attorney from the practice of law in the several courts of the Commonwealth is involved. The matter is here on petition filed by George W. Ratterman to prohibit Paul J. Stapleton, Judge, Division No. 2, Campbell Circuit Court, from proceeding further in a disbarment action against him. It is the contention of the petitioner that the Court of Appeals possesses the sole authority to disbar an attorney from practice in the courts of this state. A temporary writ of prohibition has been granted.

The proceeding before Judge Stapleton is by information filed in which it is alleged that Ratterman, a duly licensed attorney at law residing in Campbell County, on four occasions had made false and malicious statements purportedly reflecting upon the character and integrity of Ray L. Murphy, Judge, Division No. 1, Campbell Circuit Court, and that Ratterman, as a witness in a trial presided over by Judge Murphy, had knowingly sworn falsely. The information was assigned to Judge Stapleton to be heard.

The general rule is that any court authorized to admit an attorney has inherent jurisdiction to disbar him for sufficient cause, and that such jurisdiction does not necessarily depend on any express constitutional provision or statutory enactment, and conversely a court that has no jurisdiction to admit attorneys to practice has no jurisdiction to disbar them, the jurisdiction to admit and disbar being deemed correlative. 7 C.J.S. Attorney And Client § 18b, page 730; Louisville Bar Association ex rel. Drane v. Yonts, 270 Ky. 503, 109 S.W.2d 1186; Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646.

The power to disbar is an incident of the power to admit. Underwood v. Commonwealth, 32 Ky.Law Rep. 32, 105 S.W. 151; In re Rudd, 310 Ky. 630, 221 S.W.2d 688. See also In re Spicer, 6 Cir., 126 F.2d 288; Wilbur v. Howard, D.C., 70 F.Supp. 930. The right to prescribe such rules as are necessary to qualify, regulate, and control attorneys as officers of the court is a right of self-preservation. Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552.

The principle was stated in Capps v. Gore, 231 Ky. 185, 21 S.W.2d 266, and quoted in In re Sparks, 267 Ky. 93, 101 S.W.2d 194, as follows:

“The right of self-preservation is inherent in the court, and is not derived from, or dependent upon, any act of the Legislature, or any express provision of the Constitution. It inheres in the court as such, and is necessary to vindicate its authority and to maintain its integrity. In re Woolley, 11 Bush, 95.”

See also Commonwealth v. Roe, 129 Ky. 650, 112 S.W. 683, 19 L.R.A.,N.S., 413; Chreste v. Commonwealth, 171 Ky. 77, 186 S.W. 919.

Prior to 1892, admission to the bar was by examination before a circuit judge. Later, two members of the bar assisted the circuit judge in the examination. 1902 Acts, Chapter 17, page 45 (1903 Carroll’s Kentucky Statutes, Section 98); 14 Ky.Law Journal, page 38. The admission procedure was changed in 1918 so that the sole method of licensing attorneys was by the Court of Appeals after successful completion of an examination given by the Court-appointed Board of Bar Examiners. 1918 Acts, Chapter 131, page 559 (1930 Carroll’s Kentucky Statutes, Section 98a-l et seq.). The enactment of the 1918 statute impliedly repealed the 1903 statute which authorized admission by a circuit judge.

The method first authorized by the 1918 statute was continued after the passage of the so-called Integrated Bar Act in 1934. The Integrated Bar Act and subsequent similar legislation have provided that the disbarment of attorneys shall be handled by the Court of Appeals, acting through the Kentucky State Bar Association as its administrative agency. KIRS 30.170. Thus, by statute, admission and disbarment were recognized as the responsibility of the Court of Appeals.

Such legislative enactments have been held to amount to recognition by the legislative branch of the government of the inherent power of the judicial branch to prescribe such rules as are necessary to qualify, regulate, and govern attorneys as its officers. In re Stump, 272 Ky. 593, 114 S.W.2d 1094; In re Rudd, 310 Ky. 630, 221 S.W.2d 688.

From time to time, the Court of Appeals has adopted rules governing admission and disbarment of attorneys. The most recent rules governing the procedure in disciplinary cases, including disbarment, were adopted by order of the Court dated June 27,1963, pursuant to KRS 30.170. See RCA 3.160-3.600. The new rules adopted did not include former RCA 3.580, which provided :

“Nothing in these Rules shall be construed as limiting or altering the power of the Circuit and other Courts of this State to discipline members of the Bar as that power at the present exists.”

Respondent argues that RCA 3.580 remains in effect by reason of failure to repeal it specifically, and affords the basis for the circuit court to entertain disbarment proceedings. KRS 30.170(2) provides that the rules of the Court adopted and promulgated under this section, KRS 30.170, shall supersede all laws or parts of law in conflict therewith to the extent of the conflict. RCA 3.580 is construed as not recognizing any authority on the part of a state court to disbar or to discipline an attorney except the inherent power of every court to discipline for contempt. Under this construction it was unnecessary to retain RCA 3.580 since it merely recognized the inherent power to punish for contempt. Assuming that the rule embraced the right to disbar, it should now be considered as having been superseded by the new rule and statute.

In summary, the circuit court originally had the right to admit attorneys to practice and also the correlative right to disbar. The Court of Appeals since 1918 has assumed and exercised the sole right to admit, with its correlative right to disbar, as a part of its inherent power. The Court of Appeals’ authority operating in the light of legislative recognition has superseded any inherent power of the circuit court.

Some confusion may have arisen in the transition period. Respondent relies on Louisville Bar Association ex rel. Drane v. Yonts, 270 Ky. 503, 109 S.W.2d 1186, decided in 1937, and Harrison v. Commonwealth, 305 Ky. 379, 204 S.W.2d 221, decided in 1947, to sustain the right of the circuit court to disbar. In the Yonts case, the proceeding was in the Court of Appeals after refusal of the Commonwealth’s attorney to act. In the Harrison case, the question of the sole jurisdiction of the Court of Appeals to entertain a disbarment proceeding was not raised or decided. Of the other authorities cited, all but three were decided prior to the enactment of the Integrated Bar Act. In each of those three cases, the disciplinary procedure originated with the Bar Association and was considered by the Court of Appeals alone. None of the cases cited by the respondent sustains either proposition that the circuit court now has authority to disbar or that the Court of Appeals does not have the sole authority to disbar.

No one now questions the sole authority of the Court of Appeals to admit attorneys to the practice of law in the several courts of the Commonwealth. Only by having the authority to admit and to disbar in the same court can there be any orderly regulation or control. The regulation and control of the legal profession is a matter of public interest and concern as well as judicial administration. The power should be exercised uniformly so far as it is humanly possible. This would be impossible if every court in the Commonwealth should attempt to exercise the same authority and it would lead to interminable confusion. It is concluded that the Court of Appeals, acting through the State Bar Association as its agency, has the sole authority to disbar an attorney.

The Campbell Circuit Court, acting through the respondent, has no jurisdiction to entertain or hear the information seeking the disbarment of the petitioner. To permit such proceeding would cause irreparable injury to the petitioner for which there is no adequate remedy other than the prohibition sought here. Jones v. Murphy, Ky., 314 S.W.2d 545.

Writ of permanent prohibition is granted.


author: J. L. HAYS, Special Commissioner.

text:
    BLEVINS & MONTGOMERY BUILDERS, INC., Appellant, v. Leslie W. GREGORY et al., Appellees.
    Court of Appeals of Kentucky.
    June 21, 1963.
    Rehearing Denied Nov. 1,1963.

      Hamm, Taylor & Milby, London, for appellant.
    William E. Allender, Bowling Green, George R. Smith, L. T. Grant, Lexington, John C. Fogle, Mt. Sterling, Boehl, Sto-pher, Graves & Deindoerfer, Lexington, for appellees.
   J. L. HAYS, Special Commissioner.

This is an appeal from the judgment of the Fayette Circuit Court affirming an award of the Workmen’s Compensation Board.

Appellant, Blevins and Montgomery' Builders, Inc., is the principal contractor. Appellee, Reese L. Litten, is the subcontractor, and appellee, Leslie W. Gregory, is the injured employee of Litten.

The accident out of which this litigation arises occurred on May 7, 1958, and resulted in the loss of the left eye of Gregory who filed a claim for compensation benefits jointly against Litten, his employer as subcontractor, and George B. Montgomery and Malcolm Blevins, d/b/a Montgomery and Blevins, as principal contractor. It was adjudged by the Board that Gregory recover maximum benefits from Litten and that, in the event full recovery could not be obtained from him, appellant would be liable for any unpaid balance.

From this judgment Blevins and Montgomery Builders, Inc., is the only party who has filed an appeal. Consequently, the only question involved on this appeal is whether or not Gregory can recover from the appellant in the event that he cannot collect from Litten.

Appellant contends that it is not liable to Gregory because under KRS 342.-060 the claim should have first been filed against the immediate employer only, and that upon Gregory’s failure to do so the claim against it should have been dismissed. To support its contention reference is made to that portion of KRS 342.060 which reads:

“A principal contractor, intermediate or subcontractor shall be liable for compensation to any employe injured while in the employ of any one of his intermediate or subcontractors and engaged upon the subject matter of the contract, to the same extent as the immediate employer. Any principal, intermediate or subcontractor who pays such compensation may recover the amount paid from any subordinate contractor through whom he has been rendered liable under this section. Every claim to compensation under this section shall in the first instance be presented to and instituted against the immediate employer, but such proceedings shall not constitute a waiver of the employe’s rights to recover compensation under this chapter from the principal or intermediate contractor. * * * ”

The appellant also cites as authority for its contention McEvilly v. L. E. Myers Co., 211 Ky. 31, 276 S.W. 1068, but a careful study of that case shows that the facts and issues involved are entirely different from those in the instant one. In fact that case could be cited with considerable import for appellees. Whatever application it may have to the instant case, we are thoroughly convinced that the right of the injured person to file a claim against both the subcontractor and the principal contractor was settled by this Court in Burt v. Clay, 207 Ky. 278, 269 S.W. 322, wherein it was stated as follows:

“The trial court refused to review the finding made by the Workmen’s Compensation Board, by which the appellee, Harry B. Clay, was awarded compensation at the rate of $12 per week for a period of 100 weeks, for the loss of sight of one eye. Appellant H. J. Burt and appellee Jesse Whiting were both defendants before the Workmen’s Compensation Board. This award was made against both of them, and Burt has appealed.”
“By section 4891 (342.060) of the Statutes, Burt, the principal contractor, is made liable for an injury sustained by an employee of a subcontractor, who in this case is Whiting, to the same extent as the immediate, or subcontractor. The Board’s action in making this award against both Whiting and Burt is approved.”

This case is cited with approval in Ruth Brothers v. Roberts, 270 Ky. 339, 109 S.W.2d 800.

Appellant’s second contention is that the claim against it should be dismissed because of misdesignation and delay in sustaining motion to correct such misdesignation.

The application for adjustment of the claim originally named the principal contractor as George B. Montgomery and Malcolm Blevins, d/b/a Montgomery and! Blevins, but was later, by amendment,, changed to Blevins and Montgomery Builders, Inc. The proof clearly shows that George B. Montgomery was president of the principal contractor; that Malcolm Blevins was vice president; that Montgomery’s-wife was secretary-treasurer; that all the stock was held by Montgomery and Blevins and their wives; that they were not associated in any business ventures other than-the corporation, Blevins and Montgomery” Builders, Inc.; that when they filed Form No. 1, election to operate under the Act, it was filed with the Board at least a year prior to Gregory’s injury and conforms in every respect to the statutory requirements-for acceptance of the Act; that they intended to subject the corporate operation-to the Act when Form No. 1 was executed! and filed. The facts were sufficient to support the finding of the Board that appellant was operating under the Act.

The appellant and its insurance carrier were duly notified by the Board of the nature and pendency of the claim and it further appears that the appellant took steps to defend. Under these conditions we are convinced that there is no merit to-appellant’s contention that the misdesignation was fatal to the application. George H. Rommel Co., Inc. v. Greenwell, Ky., 273 S.W.2d 46.

It is our opinion that the judgment should’ be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


author: CLAY, Commissioner.

text:
    Retha COX et al., Appellants, v. Ray HARDY et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 1, 1963.
    Jesse S. Hogg, Winchester, D. L. Pendle-ton, Jr., Stanton, for appellants.
    H. M. Shumate, Irvine, for appellees.
   CLAY, Commissioner.

Appellants (landlords) brought suit to recover rental allegedly due under a lease. Appellees (tenants) defended on the ground the landlords’ breach of a covenant to repair caused them to abandon the premises and terminated their obligation to pay rent. The jury sustained this defense in returning a verdict for the tenants. The landlords contend they were entitled to a directed verdict and that an instruction was erroneous.

The leased premises consisted of a building suitable for the conduct of the mercantile business. The lease was executed in 1954 for a term of 20 years at a rental of $50 per month. The landlords covenanted to keep the property in substantially the same condition as it was when leased by making necessary repairs. In 1956 the floor began to give way. One of the tenants testified he notified the landlords of this condition and was assured something would be done about it. Nothing was, and the tenants put in a rough floor. There was evidence that later that year or early in 1957 the floor was sagging badly and some of the windows at the rear of the building fell out due to the rotting of the frames. Apparently the landlords were again notified but advised they could not make the necessary repairs. The tenants made some attempt to rectify the condition and continued in possession of the building for approximately two more years. They then moved out, having paid all rent due up to that time.

The landlords contend that the obligations to pay rent and to repair are independent, and unless the lease expressly provides for forfeiture in the event of failure to repair, the tenants must still pay rent (with the possible right to set off against the rent a proper claim for damages). While this general proposition is sound, under certain circumstances a superseding legal principle is applicable. If the failure to repair results in the premises becoming un-tenantable, uninhabitable, or unfit for the purpose for which they were leased, and the tenant is thereby forced to leave, the landlord’s dereliction will constitute “constructive eviction” of the tenant. This terminates the lease and the obligation to pay rent.

Although the landlords contend that constructive eviction has not been recognized in Kentucky and that the majority view is opposed to it, we find the contrary to be true. See Harthill v. Cooke’s Ex’r., 19 Ky. L.Rep. 1524, 43 S.W. 705; Estes v. Gatliff, 291 Ky. 93, 163 S.W.2d 273; Venters v. Reynolds, Ky., 354 S.W.2d 521; 32 Am.Jur., Landlord and Tenant, section 514 (page 419); 28 A.L.R. 1477; 116 A.L.R. 1235; 28 A.L.R.2d 446; 91 A.L.R.2d 638.

In order to have constructive eviction two conditions must exist: (1) an act or omission of the landlord which substantially interferes with the tenant’s beneficial enjoyment of the leased premises, and (2) the tenant’s abandonment of the premises by reason thereof. See 52 C.J.S. Landlord and Tenant § 455 (page 171). The timeliness of the tenant’s departure, as in this case, may be a controlling consideration.

The landlords contend as a matter of law the tenants waived their right to claim they were constructively evicted because they did not abandon the premises within a reasonable time after the breach of the covenant to repair. This doctrine of “waiver” has had wide acceptance. See 52 C.J.S. Landlord and Tenant § 459 (page- 180); 91 A.L.R.2d 638. There are several objections to that theory as applied to the present facts.

The basic issue in a constructive eviction case is whether the tenant abandoned the premises because of an intolerable situation created by the landlord. A substantial delay by the tenant in leaving the premises after the development of a particular condition would indicate he had not been ousted by the landlord rather than that he had waived his right to make such a claim. It must also be borne in mind that “waiver” is the “voluntary surrender of a known right”. Jones v. Rayborn, Ky., 346 S.W.2d 743. Particularly where the condition created by the landlord is a continuing one, as here, it is difficult to say that failure to leave the leased premises at the earliest opportunity constitutes a voluntary relinquishment of the tenant’s right to claim constructive eviction. The mere fact that the tenant continues to live for a while with a deteriorating condition of the premises does not in itself constitute a waiver.

Where there is a continuing breach with cumulative effect, the tenant does not lose his right to claim constructive eviction because he does not leave the premises promptly after the creation of the first objectionable condition. See Lynder v. S. S. Kresge Co., 329 Mich. 359, 45 N.W.2d 319, 28 A.L.R.2d 440; Sewell v. Hukill, 138 Mont. 242, 356 P.2d 39; Marks v. Dellaglio, 56 App.Div. 299, 67 N.Y.S. 736; New York State Investing Co. v. Woolf, 84 Misc. 66, 145 N.Y.S. 945; Batterman v. Levenson, 102 Misc. 92, 168 N.Y.S. 197; E. Esarsee, Inc. v. Holland, 241 App.Div. 736, 269 N.Y.S. 745; 91 A.L.R.2d 638, 658.

It is thus apparent that the “waiver” doctrine, for which the landlords contend, does not adequately afford a solution to the problem here presented. The more direct approach is to consider the time of abandonment in its relationship to the other circumstances on the issue of whether the tenants were evicted by the landlords. In other words, instead of invoking the backhanded theory that the tenant may have waived his right to claim constructive eviction, the most logical and sensible approach is to determine if there was in actuality a constructive eviction in the first place. This would avoid the legal gymnastics involved in declaring that the tenant’s rights had been violated, that the violation had been waived, but that subsequent violations of the same nature revived the tenant’s rights. See Re Consumers World, Inc., D.C.Mass., 160 F.Supp. 238.

The significant issues developed in this case were (1) whether the leased premises became untenantable because of the landlords’ failure to repair, and (2) whether the tenants abandoned the premises because of this condition or for some other reason. The evidence affords some basis for the conclusion that the cumulative effect of the landlords’ failure to repair was to create a gradually deteriorating condition which may or may not have finally induced the tenants to leave the premises. Since the facts were in dispute and differing reasonable inferences could be drawn from them on these issues, the decision was a matter for the jury and the landlords were not entitled to a directed verdict.

The landlords further contend the instruction to the jury concerning the right of the tenants to terminate the lease was erroneous. It authorized a finding of constructive eviction if the landlords with knowledge of the need of repairs failed to maintain the leased building in substantially the same condition as it was when rented. From our discussion above it is obvious this instruction did not fully state the law of constructive eviction. On its face it was deficient because it did not require the jury to find that the plaintiffs’ breach of the covenant to make necessary repairs caused the leased premises to become untenantable, uninhabitable, or unfit for use, nor did it require the jury to find that the defendants abandoned the premises because of the creation of such a condition, both of which are necessary elements of constructive eviction. However, the landlords neither offered an instruction on this issue nor did they object to the instruction as given. Clearly under CR 51 they are not in the position to assign as error the giving of this instruction. Sams v. Sigmon Ikerd Co., Ky., 280 S.W.2d 515; Young v. De Bord, Ky., 351 S.W.2d 502.

The justification for CR 51 is exemplified by this record. In essence that Rule requires the lawyers in a case to assist the judge in giving correct instructions and disallows an ex post facto objection as a means of obtaining a reversal of the judgment on appeal. (The same principle applies when a party fails to object to evidence or to make known his position on a ruling of the court. See CR 46.) In this case at the very outset, by answer, the appellees made it clear their whole defense was constructive eviction. The principal issue tried- was that of constructive eviction. When the case was submitted to the jury all parties knew this issue would be submitted. The appellees offered an instruction, which, as we have observed, did not fully encompass the applicable law.

Appellants did object to this offered instruction on the single ground it did not recite the appellants were entitled to notice of the need for repairs. The trial judge thereupon modified it to incorporate the only objectionable feature which they had called to his attention. With no further objections, the judge could assume the parties had accepted the instruction as correctly stating the law for the jury. Under these circumstances appellants could not justly urge a later discovered error in the instruction as a ground of reversal. See Clay, Kentucky Practice, Vol. 7, CR 51, Comment 5 (page 91); 91 A.L.R.2d 836.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. H. D. CHENAULT et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 1, 1963.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Larry C. West, Frankfort, for appellant.
    Jesse S. Hogg, Winchester, for appellees.
   PALMORE, Judge.

In Commonwealth of Kentucky, Department of Highways v. Wilkins, Ky., 320 S.W.2d 125 (1959), it was held that if one party, in appealing to the circuit court from a county court judgment pursuant to KRS 177.087, has filed a certified copy of the county court judgment, failure of the other party to file a copy of the same judgment with his separate appeal thereafter filed is not fatal to the latter appeal.

In this case the landowners appealed first, but failed to file with their statement of parties and exceptions a copy of the county court judgment as required by KRS 177.087. Thereafter and within thirty days following the date of the county court judgment the condemnor also appealed. The condemnor’s appeal was sufficient in all respects, including the filing of a certified copy of the county court judgment. The sole question is whether the filing of the copy by the condemnor as a part of its appeal cured the defect in the landowners’ appeal. Our conclusion is that it did.

It is suggested that the condemnor could have nullified the appeal of the landowners by dismissing its own, a stratagem that ought not be required or encouraged. But we do not accept the premise. That one party may cure another’s omission does not imply a converse conclusion that he may later “uncure” it. In any event, the con-demnor did not in fact dismiss its appeal, and we express this dictum only because it may serve to clarify the matter in future -cases.

The judgment is affirmed.


text:
    Ewing WILDER et al., Appellants, v. Clarence BOATRIGHT et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 1, 1963.
    E. B. Wilson, Pineville, for appellants.
    Helton & Dillman, Farmer Helton, Pine-ville, for appellees.
   MACAULEY L. SMITH, Special Commissioner.

This was an action by First Federal Savings and Loan Association foreclosing a $20,000 first mortgage on Bell County residence property. The parties agreed to a judicial sale, postponing the determination of the relative priority of liens until after the result of the sale should be known. The original mortgagor-defendant-appellant Wilder bought the property in at the sale for some $22,000, and paid the full purchase price and interest into Court, leaving a surplus proceeds of sale of some $2,000 over the amount necessary to satisfy the first mortgage and costs.

As the result of a trial, the Court below awarded this surplus to defendants Boat-right, et al., creditors of Carl Leonard, and dismissed Wilder’s claim thereto based on a $2,800 second mortgage hereinafter mentioned. It is this action of the Court from which Ewing Wilder and Myrtle, his wife, as sole appellants, appeal. See Notice of Appeal filed August 16, 1962, R. 37.

In order to properly dispose of this appeal it is necessary to list chronologically the significant transactions with respect to the property involved, and other litigation, as follows:

First Step: April 20, 1959, Wilder and Wife mortgaged the property to First Federal Savings & Loan Assn, for $20,000; mortgage recorded April 21, 1959.
Second Step: April 22, 1959, Wilder and wife conveyed to Marjorie Leonard, wife of Carl Leonard. Marjorie assumed the $20,000 mortgage.
Third Step: April 22, 1959, Marjorie and Carl Leonard gave second mortgage back to Myrtle Wilder to secure $2,800 note.
Fourth Step: December 6, 1960, complaint in separate action filed by Andrew Lee and other alleged creditors of Carl Leonard, later amended to claim the transfer to Marjorie was fraudulent as to Carl’s creditors.
Fifth Step: January 13, 1961, Lis Pen-dens filed against this property.
Sixth Step: January 25, 1961, Myrtle Wilder’s second mortgage on this property filed for record in County Clerk’s office.
Seventh Step: June 15, 1961, Marjorie and Carl Leonard reconveyed to Ewing and Myrtle Wilder.
Eighth Step: October 31, 1961, Wilder et ux. conveyed to Charles and Irene Farmer, who assumed plaintiff’s first mortgage.
Ninth Step: November 2, 1961, Myrtle Wilder released on the margin, attested by Deputy County Clerk, the aforesaid 2nd mortgage. (Exhibit filed in separate volume, “Depositions on Behalf of Plff.,” filed as part of record.)

It seems clear beyond doubt that appellants Wilder have no standing to complain of or appeal from the trial Court’s decision awarding the surplus proceeds of sale to others, because:

(a)Myrtle Wilder’s $2,800 second mortgage lien was merged in appellants’ title by Seventh Step when Carl and Marjorie Leonard reconveyed to appellants Wilder. One cannot have a lien on property one owns.
(b) Myrtle Wilder released of record said (nonexistent) lien by Ninth Step on November 2, 1961.
(c) By Eighth Step, conveyance on October 31, 1961, from appellants Wilder to Charles and Irene Farmer, the Farmers became the owners of the “equity” in said property subject to first mortgage of plaintiff Savings & Loan Assn., and only the Farmers could complain of or appeal from an adverse ruling with respect to the surplus proceeds of sale, over the balance due on first mortgage, and costs.

It is our opinion that the judgment below should be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


text:
    L. M. ABSHER et al., Appellants, v. ILLINOIS CENTRAL RAILROAD COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 1, 1963.

      W. Pelham McMurry, Earle T. Shoup, Paducah, for appellants.
    Wheeler & Marshall, Paducah, for Illinois Cent. R. Co.
    Terrell, Schultzman & Hardy, Paducah, for Illinois Cent. R. R. Hospital Dept.
   PALMORE, Judge.

In 1901 the appellee Illinois Central Railroad Company (hereinafter called the Railroad) leased its hospital in Paducah to the Illinois Central Railroad Hospital Association, a corporation whose legal existence has since expired. The lease was cancelled in 1913 by an instrument which in effect substituted the appellee Illinois Central Railroad Company Hospital Department (hereinafter called the Department), an unincorporated association, as lessee of the hospital for the remainder of the term provided in the cancelled lease. We have held that this term ended on November 23, 1950, and that the Railroad had the right thereafter to dispose of the hospital property. Absher v. Illinois Central Railroad Company, Ky., 339 S.W.2d 874 (1960). This appeal concerns remaining aspects of the same case.

Appellants instituted the suit as a class action in which they purport to represent employes of the Railroad residing in western Kentucky and Tennessee, southern Illinois and Indiana, and southeastern Missouri, or the “Paducah area.” They claim that the Railroad and the Department have a contractual obligation to provide them “medical care, services, treatment and hospitalization,” and that this obligation has been breached through a reduction in services and benefits since the discontinuance of the hospital. They seek a declaration of rights, KIRS 418.040 et seq., to the effect that there has been such a breach and demand various consequential relief. Motions of both defendant appellees for summary judgment and a motion by the Railroad for judgment on the pleadings were sustained and the complaint dismissed. Appellants contend that there were genuine issues of material fact requiring a trial and that the judgment of dismissal was erroneous.

At the very outset it is apparent that the interlocutory order of the trial court overruling the Department’s motion to dismiss on the ground that it is not a suable entity was in error. See Clay’s Kentucky Practice, CR 4.04(4), Note 3; Business Realty, Inc., v. Noah’s Dove Lodge #20, Ky., - S.W.2d - (decided Oct. 25, 1963). However, the point seems to have been abandoned on appeal, and in view of our conclusions on the merits it is unnecessary to consider whether the defect can be waived.

The Department is a nonprofit association organized in 1911 for the principal purpose of providing medical care and treatment to employes of the Railroad. Its two main sources of financial support are contributions from the employes and payments received from the Railroad for services such as those rendered to passengers and to employes injured on the job. According to the complaint, and for our purposes here it may be so assumed, the Railroad requires its employes, as a condition of their employment, to contribute to the support of the Department and submit to the latter’s regulations. The contributions are collected through monthly payroll deductions at rates fixed by the Department.

Although the Department may originally have been “established” by the Railroad, and whatever may be their practical working relationship, from a legal standpoint the Department is not a creature of or subject to domination by the Railroad. The composition and government of the Department are prescribed by a constitution of rules and regulations (hereinafter called the regulations) under which its affairs are managed' by a board of nine persons, of whom the Railroad’s Vice President in Charge of Operation is chairman ex officio, four other designated officers of the Railroad serve ex officio, and the remaining four qualify through election by the Railroad employes. The chairman has no vote unless, in case of tie, a majority of the other board members so request. Except to the extent that the Railroad designates ex officio some of the board members and the employes elect the others, no vestige of control exists in the Railroad, the employes, or any person or group but the board itself, which alone is-empowered to amend the regulations.

It is clear from the pleadings that the obligations alleged to have been breached do not arise from any written instrument other than the Department’s regulations. There is no separate contract between the railroad' and the Department, the Railroad and its employes, or the employes and the Department except insofar as the collection of contributions through payroll deductions, raises a duty on the part of the Railroad to-pay the funds so collected over to the Department and the acceptance thereof by the-Department creates a duty on its part to use the funds in the manner provided in its-regulations and to perform for the contributors the services those regulations say/ it will perform. The allegation of the complaint to the effect that the combined cir•cumstances result in an obligation on the part of the Railroad to provide medical care to the contributing employes is a legal con•clusion with which we do not agree. Only the Department has that duty.

There are several legal issues in this case, but only one substantial issue of fact, which is, whether the services and benefits secured to the complainants have become “so diffi■cult to obtain as to be inaccessible and unobtainable for all practical purposes.”

We concur in the apparent con■clusion of the trial court that the factual issue is not material, because whichever way it might be resolved, for the reasons hereinafter set forth the judgment must be the •same. Hence summary judgment was appropriate, though it should have been in the form of a declaration of rights instead of a dismissal. Cf. Hedden v. Hedden, Ky., 312 S.W.2d 891, 895 (1958); Moore v. Morris, Ky., 258 S.W.2d 908, 910 (1953). The right to a declaratory judgment, of course, does not depend on the existence of factual issues. There is in this case a very real and justiciable controversy with respect to the contractual relationship of the parties and the right of appellants to recover past contributions, to have future contributions discontinued or reduced, or to enforce better performance by the Department For this reason paragraph IV of the complaint should not have been stricken, because in setting forth the alternative forms of relief to which appellants claimed to be entitled it served the legitimate purpose of describing the legal controversy. Nevertheless, in order to obviate further proceedings that must come to the same result we shall construe the judgment as declaring the rights of the parties in conformity with this opinion and denying consequential relief accordingly. Cf. Hedden v. Hedden, supra.

That an employer requires its employes to make certain contributions is a circumstance over which courts can have no control unless it is shown to be in violation of law or the contract of employment. The parties are free to contract as they wish. If the employe accepts employment on the condition that he will subscribe to the services of a relief organization, and without a guarantee by the employer that the relief organization will fulfill its obligations, we see no basis for a cause of action against the employer upon default of the relief organization. If the employer chooses to continue enforcement of the contributions as a condition of the employment bargain, it is up to the employe to accept or reject further employment on that basis. A court of law cannot make the terms of an employment contract. Regardless, therefore, of any failure by the Department to perform the services prescribed by its regulations, there is no breach of contract, express or implied, on the part of the Railroad, and no consequential relief the trial court could properly have allowed against it.

With respect to the Department, the regulations provide specific procedures for claims and complaints. It is the general rule that such procedures must be followed before resort may be had to the courts. 56 C.J.S. Master and Servant § 169c., p. 833. This is the settled law in Kentucky. Pennsylvania Co. v. Reager’s Adm’r, 152 Ky. 824, 154 S.W. 412, 52 L.R.A.,N.S., 841, Ann. Cas.1915B, 312 (1913); Carmody v. Pennsylvania Co., 206 Ky. 219, 266 S.W. 1083 (1924).

The complaint alleges that all employes of the Railroad are required to contribute to the support of the Department and subject themselves to its regulations. As the Department itself is bound and governed by the regulations, so therefore are the appellants also bound. They do not claim to have presented their grievances, individually or collectively, to the Department in the manner provided for that purpose by its regulations. They seek to justify this failure to avail themselves of the grievance procedure on the theory that because, as they allege, the Department has breached its own obligations under the regulations it is not in a position to require compliance by appellants, citing Dalton v. Mullins, Ky., 293 S.W.2d 470, 476 (1956). The rule referred to in that case is that if one party has substantially breached a contract the other party’s subsequent nonperformance of it will not prevent recovery by the latter. 12 Am.Jur. 894 (Contracts, § 338). We do not believe the principle would apply to a contract that expressly requires claimed defaults to be submitted to a stated remedial procedure. If it did, no person with a valid and substantial complaint ever would be required to assert it within the framework of the agreement

It is our conclusion that because the appellants did not exhaust the remedy provided by the regulations they are not entitled to a declaration that the Department has breached its obligations toward them.

Appellants object to the trial court’s having permitted an amendment to the Department’s answer after disallowing a tendered amendment of their complaint. Suffice it to say that neither the accepted nor the rejected amendment did more than present theories and conclusions of law that were fully cognizable under the pleadings as they stood before.

As herein construed, the judgment is affirmed.

      . They did not secure permission of the court to sue for the class. See Olay’s Kentucky Practice, CR 23.01, Note 2. However, the point was not raised in defense, nor is there any issue as to whether the rights of the individual members of the class are sufficiently identical to authorize common relief.

      . The only remaining hospitals operated by the Department are located in Chicago and New Orleans. It continues to retain or employ a number of physicians and surgeons at Paducah, and their services are available as before, but patients requiring hospitalization must now go, except as otherwise authorized in cases of emergency, to the Chicago or New Orleans hospital. To some extent the transportation charges for this purpose are borne by the Department, as in the case of other employes of the Railroad who do not reside in the immediate; vicinity of either hospital.


author: BARRETT, Commissioner. PER CURIAM.

text:
    FEDERAL MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. Milton CARPENTER, Successor of Mount Etna Morris, as State Treasurer of Missouri, Defendant-Appellant.
    No. 49874.
    Supreme Court of Missouri, Division No. 2.
    Nov. 11, 1963.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Benjamin J. Francka, Sp. Asst. Atty. Gen., Springfield, for defendant-appellant.
    Glenn A. Burkart, Mann, Walter, Powell, Burkart & Weathers, Springfield, for respondent.
   BARRETT, Commissioner.

This action for a declaratory judgment arose in these circumstances: In September 1956, Paddy Miles was employed by Lloyd Brooks, an employer subject to the workmen’s compensation law. Brooks’ liability under the law was insured in the plaintiff’s predecessor American Farmers Mutual Insurance Company. On September 11, 1956, Paddy sustained an accidental injury arising out of and in the course of his employment by Brooks and in November 1957 a referee of the Division of Workmen’s Compensation made separate “Findings of Fact” and an “Award on Hearing.” In his findings of fact the referee found, as stated, that Paddy had sustained a com-pensable accidental injury while working for Brooks. The referee further found that Paddy had sustained “a prior disability to the exent of fifty (50) per cent to the body as a whole” and that by reason of the accidental injury of September “together with the prior disability, the employee is permanently and totally disabled.” Therefore, under the provisions of the workmen’s compensation law, being totally and permanently disabled, Paddy was entitled to compensation benefits of 66⅜% of his average weekly earnings for 300 weeks and thereafter to 40% of his average weekly earnings for life. RSMo 1959, Sec. 287.200, V.A.M.S. And “(i)n addition to all other compensation” he was entitled to have medical, surgical and hospital treatment furnished. RSMo 1959, Sec. 287.140, V.A.M.S. Since the referee found that Paddy had suffered a prior disability to the extent of 50% of the body as a whole and that his September 1956 injury rendered him totally and permanently disabled, the referee awarded him 200 weeks’ compensation at $35 a week from his employer and $35 a week for 100 weeks from the second injury fund and thereafter $17.60 a week for the remainder of his life also from the second injury fund. RSMo 1959, Secs. 287.200, 287.220, V.A. M.S. As to medical, surgical and hospital treatment the referee, partially in the language of the statute, made this finding of fact and ruling of law: “The employer and insurer shall provide employee with such medical, surgical and hospital treatment as may be necessary to cure and relieve him from the effects of his injuries.” RSMo 1959, Sec. 287.140 V.A.M.S. These are the only facts in the record as to Paddy’s employment, injuries, claim for compensation and the award by the referee.

In this action for a declaratory judgment instituted in August 1960 by Brooks’ compensation insurer these additional facts appear: Brooks’ insurer has paid Paddy 200 weeks’ compensation at $35 a week and during that period has furnished the necessary medical attention. It is now asserted that as to future medical payments the referee’s award is ambiguous, that the State Treasurer as custodian of the second injury fund asserts that the plaintiff, Brooks’' insurer, is obligated to furnish Paddy’s-necessary future medical treatment. On the other hand, the employer’s insurer asserts that in addition to the second injury fund’s payments of 66⅜% of Paddy’s weekly wages for 100 weeks and thereafter 40% of his wages for life, it is also obligated to pay his medical expense. As indicated, in these circumstances and because of the alleged ambiguity in the referee’s award as to medical expense it is said that a justiciable controversy exists within the meaning of the declaratory judgment act.

Upon the hearing and submission of this the declaratory judgment action the circuit court found the facts as they have been outlined in this opinion. In addition the court found and concluded as a matter of law that in so far as the referee’s award' concerned medical expense it was ambiguous. The court then construed the applicable statutes and found that after its payment of compensation and medical expense for 200 weeks the employer’s insurer was no longer obligated to pay medical expense. The court found and decreed therefore that after the expiration of the 200 weeks’ compensation and medical expense the second’ injury fund was thereafter liable for all necessary future medical payments. It is from this final judgment in the declaratory judgment action that the State Treasurer of Missouri has appealed.

The parties have briefed and' argued whether the referee’s 1956 award with respect to medical treatment is ambiguous, whether, since there was no application for review or an appeal, his award became final and is therefore not subject to attack in this collateral proceeding. In support of these claims and the question of the circuit court’s jurisdiction in this action the parties have cited lists of cases construing judgments and statutes, res judicata and kindred matters. It is not necessary, however, to consider these auxiliary rules of construction, it is sufficient to say that the awards and findings of workmen’s compensation referees are to be construed as a whole (100 C.J.S. Workmen’s Compensation §§ 636-637, pp. 935, 942), that their unap-pealed, unambiguous awards are res judi-cata and are not subject to collateral attack, as in a suit for declaratory relief. RSMo 1959, Sec. 287.490, V.A.M.S.; 100 C.J.S. Workmen’s Compensation §§ 655-659, pp. 982, 997; Crites v. Missouri Dry Dock & Repair Co., (Mo.App.) 348 S.W.2d 621. The problem here is not so much the adequacy or inadequacy of the referee’s unap-pealed decision, had there been a bona fide complaint or lack of understanding on that score the parties undoubtedly would have availed themselves of the right of review and appeal. RSMo 1959, Secs. 287.480-287.-490, V.A.M.S. The essence of this case is whether in view of the applicable statutes and the circumstances of this record the employer-insurer or the second injury fund is obligated to furnish Paddy’s future medical and hospital treatment.

For their inferential bearing on the problem at hand it is well to note certain established general rules relating to the workmen’s compensation law. In the absence of a special statute in some manner, for some specific reason, limiting or cutting down his liability the employer and his insurer are obligated by law to pay the totally and permanently injured employee the full compensation benefits of 66⅜% of weekly wages for 300 weeks and 40% of weekly earnings “for life.” RSMo 1959, Sec. 287.-200, V.A.M.S. And this entire liability and this general rule is not affected by the fact that the employee may have had some physical handicap or the fact that he may have sustained a previous loss or permanent mutilation in some other employment resulting in partial disability. Annotations, 30 A.L.R. 979, 67 A.L.R. 794 ; 99 C.J.S. Workmen’s Compensation § 298, p. 1047. The purpose of second injury fund legislation is to encourage the employment of the partially handicapped (2 Larson, Workmen’s Compensation, Sec. 59.31, p. 58) but it does not follow as a matter of course from the mere enactment of the legislation that the employer of the partially disabled is relieved of all obligations under the compensation law to an employee who in the course of his last employment becomes totally and permanently disabled. As stated, in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compen-sable injury and this of course may include lifelong medical payments. 2 Larson, Workmen’s Compensation, Sec. 61.14, p. 85.

It has been said that “the rendition of medical aid” is “a payment of compensation” (Parker v. St. Louis Car Co., (Mo.App.) 145 S.W.2d 482, 485), or that expenditures for medical aid and hospitalization “constitute payments of compensation” (Sommers v. Hartford Accident & Indemnity Co., (Mo.App.) 277 S.W.2d 645, 648) and in a manner of speaking that is true. Nevertheless provisions for compensation benefits and medical benefits are spelled out in separate statutes and the one governing medical benefits provides without limitation that “In addition to all other compensation, the employee shall receive and the employer shall provide such medical, surgical and hospital treatment * * * as may reasonably be required * * * to cure and relieve from the effects of the injury, and thereafter such additional similar treatment as the commission by special order may determine to be necessary.” RSMo 1959, Sec. 287.140(1), V.A.M.S. But as indicated, these general principles are of only inferential force and it is believed that the legislative intention is fairly manifest from a consideration of the provisions of the relevant statutes.

It may be noted in passing that in some jurisdictions, New York for illustration, the second injury fund or comparable laws explicitly provide that the employer or insurer shall be reimbursed for “all compensation and medical benefits subsequent to those payable” for the first 104 weeks of disability. Matter of Mastrodonato v.. Pfaudler Co., 307 N.Y. 592, 123 N.E.2d 83; Wason v. Moyer & Pratt, 274 App.Div. 313, 84 N.Y.S.2d 371. Admittedly, there is no such unambiguous statute in this jurisdiction.

The Missouri statutes, for the purpose of providing funds for the expense of administering the workmen’s compensation law and “for the maintenance of the second injury fund,” levy a 2% tax on the net premiums collected by insurance carriers for workmen’s compensation coverage. RSMo 1959, Sec. 287.690, V.A.M.S. Nine-tenths of this tax is credited to the support of the Division of Workmen’s Compensation, and one-tenth of the sum is credited to the second injury fund. RSMo 1959, Sec. 287.710(3), V.A.M.S. In certain contingencies there are provisions for partial abatement of the tax (Sec. 287.710(5)) and there are provisions for additional revenue not to exceed ¼ of 1% “of total compensation (including medical costs)” to be credited to the second injury fund. RSMo 1959, Sec. 287.715, V.A.M.S. In providing for abatement in certain eventualities Sec. 287.710(5) includes this statement: “To assure prompt compensation and medical attention due injured workers and to provide physical rehabilitation of such workers where it is indicated this specific statute shall prevail, any general law to the contrary notwithstanding.”

While these statutes relating to taxes, their collection, distribution and abatement mention “medical attention” and “total compensation (including medical costs),” when it comes to the statutes creating the second injury fund and specifically apportioning compensation in applicable cases there is no mention of medical expense. In cases of permanent disability, “when there has been a previous disability,” the employer at the time of the last injury is liable “only for the disability resulting from the last injury considered alone and of itself” and “the employee shall be paid the remainder of the compensation” out of the second injury fund and “special weekly benefits” in rehabilitation cases under Sec. 287.141. RSMo 1959, Sec. 287.200(1), V.A. M.S. The statute relating to medical benefits, although amended at the same time Sec. 287.220 was amended and the second injury fund created, does not provide in the case of total and permanent disability for apportionment of such expense and neither does it explicitly relieve the employer and insurer of any part of such expense. It is only in so far as the statute relates to the specific subject of rehabilitation that medical expense is mentioned. The medical expense statute provides that all fees and charges shall be reasonable and subject to regulation “by the commission, or the board of rehabilitation in rehabilitation cases” and “(t)he commission, or the board of rehabilitation in rehabilitation cases, shall also have jurisdiction to hear and determine all disputes as to such charges.” RSMo 1959, Sec. 287.140(3), V.A.M.S. This is not a rehabilitation case but in the section of the statute creating the board of rehabilitation and giving the employee who seeks rehabilitation an additional $10 weekly benefit for 20 weeks from the second injury fund it is provided that the employer and insurer shall be entitled to credit for compensation paid the employee during the period of his physical rehabilitation “except for payments made out of the second injury fund, and for liability under subsection 1 of section 287.140” (the medical payment statute). And those provisions relating to rehabilitation provide that “(a)s used in this section, the term physical rehabilitation shall be deemed to include medical, surgical and hospital treatment in the same respect as required to be furnished under subsection 1 of section 287.140.” (Emphasis supplied.) RSMo 1959, Sec. 287.141(7) (8), V.A.M.S. The compellingly significant fact as to all these provisions is that they plainly demonstrate on the part of the legislature, as it created the second injury fund and correspondingly amended the compensation statutes, an acute awareness of medical expense and the incidence of its burdens. Since these provisions were enacted in full knowledge of the prior statutory law and years of legislative experience with the compensation law, it would have been (and is now) an easy matter for the legislature to have specifically changed or relieved the employer and his insurer of the payment of medical benefits after the expiration of 200 weeks. Christy v. Petrus, 365 Mo. 1187, 1194, 295 S.W.2d 122, 127-128. In short, in cases within the second injury fund, there is no express provision relieving employers or their insurers from the obligation to pay medical expense to totally and permanently disabled employees and their release from that duty is not a fair implication upon consideration of all the statutes. In accordance with these views the judgment is reversed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: DALTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Leon D. CURRY, Appellant.
    No. 49810.
    Supreme Court of Missouri, Division. No. 1.
    Nov. 11, 1963.

      James A. Bell, St. Louis, attorney for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, James J. Sauter, Special Asst. Atty. Gen., St. Louis, attorneys for respondent.
   DALTON, Presiding Judge.

Defendant was charged and convicted of the offense of manslaughter and the jury assessed his punishment at two years’ imprisonment in the state penitentiary. See Sections 559.070 and 559.140 RSMo 1959. He has taken an appeal to this Court.

The offense in question is a felony and not a degree of murder, but a distinct offense in which malice and premeditation are not involved. State v. Foster, Mo.Sup., 338 S.W.2d 892, 896; State v. Dill, Mo.Sup., 282 S.W.2d 456, 462. In determining the sufficiency of the evidence to support a conviction we consider only the evidence favorable to the State and such favorable inferences as may be reasonably drawn therefrom, disregarding evidence that may be unfavorable to the State. State v. Fuller, Mo.Sup., 302 S.W.2d 906, 908[1].

The evidence tended to show that Mrs. Jewel Wheeler, a divorcee and the mother of several children, resided with her parents at 5726 Chamberlain, in the City of St. Louis; and that she was employed at the Stix “Riverroads” Store. For three or four years she had been keeping company with the defendant, who was employed at the United States Post Office in said city as a special delivery messenger, working from 3:30 p. m. until midnight. Defendant was 42 years of age and resided with his wife and six children at 5869 Julian, only a few blocks from Mrs. Wheeler’s residence. Mrs. Wheeler had also been keeping company for some years with James Blanks, a school teacher. His age and residence do not appear but there was testimony that he weighed from 200 to 210 pounds, and was a rather chunky fellow — five feet eight inches tall. Defendant and James, prior to the date in question here, had had some personal difficulties with reference to their respective relationships with Mrs. Wheeler.

Some weeks before Christmas, 1961, Mrs. Wheeler advised defendant that she was not going to see him any more because she was going to marry James. At that time defendant told her that she was not going to stop seeing him (defendant) until he was ready to stop seeing her. He thereafter continued to take her to work three or four times per week, and during the Christmas holidays, when she was a part-time employee at the United States Post Office, defendant regularly took her to work there. Defendant gave Mrs. Wheeler a hundred dollars in money at Christmas, 1961, and he continued to be a frequent visitor in her home and he had New Year’s dinner with her family. During this same period, Mrs. Wheeler continued to “keep company” with James and he frequently picked her up at her place of work and took her to her house.

On February 6, 1962, defendant took Mrs. Wheeler, at her request, from her home to her place of employment at the “riverroads” store and he asked to see her that night. She told him she could neither see him nor go with him to a mentioned social gathering that evening on account of the illness of one of her children. However, that evening she left her place of work about 9:45 p. m. and returned to her home with a near neighbor, and, immediately after arrival, she called James» and, subsequently, made arrangements to meet him that evening at the corner of Clara and Chamberlain. James, however, failed to meet her at that point and she had started back to her home when James arrived and picked her up. He was then driving a new car, a Thunderbird, that he had just purchased. The parties then visited several taverns, including the Leopard Room and Al’s Sportsman’s Lounge, on Union Avenue and had several drinks. Thereafter, about 12:30 a. m., they parked about a block away from her home and were seated in the automobile talking, when defendant drove by in his automobile.

When defendant left his place of employment at midnight on February 6, 1962, he visited several taverns, looking for Mrs. Wheeler but had failed to locate her. Fie also noted that there were no lights on at her home. On seeing Blanks’ car parked on Chamberlain, and noting that Mrs. Wheeler was seated therein with James, the defendant backed his car, turned off the lights and drove up immediately behind Blanks’ car. Thereupon, James advised Mrs. Wheeler that defendant was “acting awfully suspicious” and she suggested that she be taken to her home. James then drove to her home and stopped in front of it and both had gotten out and had started to the house when defendant drove up, pulled his car to the curb and again parked immediately behind Blanks’ car. He then shouted to the parties, “Don’t go in the house.” He got out of his car and ran rapidly toward them and said to Mrs. Wheeler, “I told you to keep him off this street.” He then immediately started to fight James and struck him with his fists. James began backing up, trying to fight back and to protect himself from defendant. Mrs. Wheeler endeavored to separate them, but was pushed away and the fighting continued into the adjoining yard, when James stumbled or tripped on something and fell to the ground on his hack. One of his legs was extended and thé other one was up, and defendant fell on top of him. While defendant was on top of James he was hitting him with both fists. Mrs. Wheeler grabbed the defendant by the collar and pulled him off and, as she did so, she saw that defendant had a knife in his right hand. She struck defendant with her pocketbook and told him to get away. He went and got in his car and, shortly thereafter, left. James got up off the ground and started to walk, but before Mrs. Wheeler could reach him, he fell and although she tried to get him up again, she could not do so. A neighbor came and helped, but they could not get him up. He was weak and bleeding, there was blood on the ground where he was lying and he kept saying he was cold and was choking. The police were called, and an ambulance secured and James was taken to the Homer Phillips Hospital, where he was found to be dead. A postmortem examination of his body was made by the coroner’s physician who found that the deceased had a stab wound in his right thigh. The point of entrance was posteriorly in the middle third of the right thigh and the point of exit was on the medial aspect of the thigh at about the same level. The wound extended across the leg and cut completely through the femoral artery, which is a major artery of the lower extremity and carries a great amount of blood. There was testimony that, as a result of its severance there would be a tremendous amount of hemorrhage, and if not immediately stopped it would produce death within five or six minutes. There was also evidence that the hemorrhage had produced death.

A police laboratory serologist, to whom deceased’s clothes were delivered, found an open pocket knife with blood on it in deceased’s overcoat. The knife was found at the bottom and right front of the coat, between the lining and the cloth of the coat itself. Below the second button of the coat, there was a cut or puncture mark through both sides of 'the coat and there were two holes in the bade of the coat below the belt, also a cut on the left sleeve. The L-shaped smaller cut penetrated both sides of the coat, “the coat and the lining.” This hole was seven inches from the bottom edge of the coat. There was much blood on the coat and on the knife. There was also’ a cut or hole in the shirt six inches above the bottom hem, corresponding to the hole in the coat. The shorts also had a slit hole five inches below the waistband in the center of the back.

Defendant, testifying in his own behalf, admitted that he stopped James and Mrs. Wheeler as they approached her home. He claimed that James advanced toward him and placed his hand in his coat pocket and defendant then pulled his knife and swung it in front of himself to keep James away. He said they struggled and locked together, moving approximately forty to fifty feet; that James stumbled and they fell to the ground and defendant fell on him; and that James took his feet and pushed him (defendant) off; also, that Mrs. Wheeler pulled defendant off of James. He admitted swinging the knife at James, but denied stabbing him. He said that if he cut James he didn’t know it; that there was no blood on his knife. He claimed that he feared deceased because he had been told on several occasions that James carried a gun and James had previously threatened him.

We construe appellant’s first and second assignments under Points and Authorities to assign error on the court’s failure to direct a judgment of acquittal at the close of all the evidence. See Supreme Court Rule 26.10, V.A.M.R. Under these points appellant contends that the State failed to sustain its burden of proof and failed to show that deceased’s death resulted from the wilful and felonious acts of defendant. Section 559.070 RSMo 1959 provides that: “Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.” Manslaughter has also been defined as the unjustifiable, inexcusable and intentional killing of a human being without deliberation, premeditation and malice. State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, 927. On the record presented here, insofar as the State’s case is concerned, no legal justification appears for the killing of James Blanks, and the evidence was entirely sufficient to show that appellant “wilfully and unlawfully” killed him. State v. Fuller, supra, 302 S.W.2d 906, 908; State v. Reeves, Mo.Sup., 195 S.W. 1027, 1029; State v. Holliday, 353 Mo. 397, 182 S.W.2d 553, 554; State v. Foster, supra; State v. Dill, supra; State v. McNew, Mo.Sup., 353 S.W.2d 571, 575.

Appellant further contends that the court unreasonably limited defendant in his cross-examination of the State’s witness Wheeler. He first says that the court erred in refusing to allow him to cross-examine said witness as to whether or not she had testified before the grand jury. It had previously been shown that she had talked to the police officers and had given them a statement of her version of the facts. She had also testified at the coroner’s inquest and it was subsequently shown that she had given a statement to the circuit attorney and that her deposition had also been taken by defendant. When defendant’s counsel asked her if she testified before the grand jury, the State objected on the ground that it was irrelevant and immaterial, and the objection was sustained. Counsel then made what he calls an offer of proof by stating that he was laying a foundation for leave to file a subpoena duces tecum for her statement, saying that he had a right to look at the statement “for certain inconsistencies that she may have given.” The court asked if counsel knew of any inconsistencies and he replied that “he had no way of knowing” because the court had refused to let him ask whether or not she had testified. The objection was sustained on the ground that it “concerns Grand Jury testimony.” Appellant cites State v. Thompson, Mo.Sup., 280 S.W.2d 838, 840, which merely holds that a defendant is entitled to a reasonable cross-examination of a State’s witness for the purpose of impeachment by showing prior inconsistent statements and to lay a proper foundation' for impeachment. Appellant also cites State v. Laspy, Mo.Sup., 298 S.W.2d 357, 359, to the effect that counsel may show on cross-examination that the witness has made prior inconsistent statements and that the witness may be impeached by proof of prior contradictory statements made before a grand jury. The cases cited have no application to the facts before us, or to the so-called “offer of proof.” It is apparent that appellant’s cross-examination of this witness was not with reference to laying a proper foundation for impeachment, since counsel admitted that he knew of no prior inconsistent statements. The matter was within the court’s discretion, since it is apparent that counsel was embarking upon “a fishing expedition.” State ex rel. Clagett v. James, Mo.Sup., 327 S.W.2d 278; Supreme Court Rule 24.24.

Appellant further contends that the court unreasonably limited his cross-examination of the witness by refusing to permit him to inquire “as to how many different statements she had given.” Appellant says that this information was sought for the purpose of laying “a foundation to impeach” the witness, but again the witness was not being asked with reference to any conflicting or different testimony or statements she may have made in either the statement to the police, the coroner, the grand jury or in her deposition testimony of May 24, 1962. No basis for impeachment appears, nor did the question purport to lay any foundation for any impeachment. Appellant cites Miller v. Multiplex Faucet Co., Mo.Sup., 315 S.W.2d 224; Fisher v. Williams, Mo.Sup., 327 S.W.2d 256, 262. The authorities do not support the assignment

Appellant further contends that the court erred in sustaining objections to questions as follows: (1) whether or not the witness was going with a man by the name of Livingstone; and (2) “as to how many different boy friends she had at the time of the death of Blanks.” Defendant insists that the questions call for facts which go to her credibility and show her character. It is apparent that the fact she was going with a man by the name of Livingstone, whom she admitted knowing, or had many boy friends would have been irrelevant and immaterial to the issues before the court and if, as appellant contends, the questions were asked for the sole purpose of establishing facts showing her character, and to affect her credibility as a witness, the objections were properly sustained. If we assume that counsel’s purpose was to show that her reputation for morality was bad, he is confronted by the rule that the credibility of a witness in a criminal case cannot be impeached by showing that his or her reputation for morality is bad, but such an attack must be addressed directly to his or her reputation for truth and veracity. State v. Cox, Mo.Sup., 352 S.W.2d 665, 673; State v. Kain, Mo.Sup., 330 S.W.2d 842, 845 [3]. If, on the other hand, counsel sought to impeach the witness by specific acts or habits assumed to be immoral, or to affect her credibility by such specific acts, he was confronted by the rule that a defendant is only entitled to a reasonable cross-examination of opposing witnesses for the purpose of impeachment or otherwise, and he is entitled to only a reasonable latitude in cross-examination in order to place the witness in a proper setting and to show material ultimate facts for such purpose, but he is not entitled to show details or matters of trivial or minor importance, and the extent of such cross-examination on collateral matters for the purpose of impeachment is, to a large extent, within the court’s discretion. State v. Winn, Mo.Sup., 324 S.W.2d 637, 642 [6-10]; and see State v. Stidham, Mo.Sup., 305 S.W.2d 7, 13[8, 9]. No abuse of the court’s discretion appears.

Appellant next contends that the court erred in sustaining the State’s objection to a question as to whether or not witness Wheeler was “in love with James Blanks.” Objection was made and sustained on the ground that the question was directed to irrelevant and immaterial matters. No offer of proof was made and we can only assume what the answer would have been; however, appellant now contends that he was seeking to show bias ■or prejudice in favor of the State by reason of the feelings of the witness toward the deceased. Appellant cites State v. Pigques, Mo.Sup., 310 S.W.2d 942, 947[7, 8] where the rule is stated, as follows: “The interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters * * Proof of bias or prejudice in favor of or against any of the parties to an action may properly be shown and considered as bearing upon the credit which should be accorded the witness’ testimony. If we assume that the trial court abused its discretion and erred in refusing to permit the witness to answer the question as to whether she was in love with deceased, it was not necessarily prejudicial to defendant, since the witness had previously testified that she had been going with Blanks for several years; that he had asked her to marry him; “and that she was planning to do so.”

While the witness was not permitted to answer the question, “Were you in love with James Blanks?” nevertheless, counsel for appellant thereupon proceeded, as follows : “You testified that you and Blanks were engaged to be married?” A. “Yes, sir.” Q. “And I gather, by that, you were in love with him.” The witness was not permitted to answer this question; however, we think the jury would assume, as did counsel, that the witness’ attitude toward the deceased was sufficiently shown by the evidence previously presented and subsequent testimony in the record. Wé must and do hold that the error was not prejudicial to appellant.

Appellant further contends that the court erred in unreasonably limiting his cross-examination of Mrs. Wheeler; that the court refused to let him lay a foundation for the production and inspection of statements given by the witness, since the evidence showed that the witness had given at least three different statements “conflicting with her testimony”; and that the court erred in overruling defendant’s motion for production and inspection of her prior statements.

The record shows that before the State’s case had been completed appellant filed a written application for the State to produce for inspection a copy of the Wheeler statement to the police and a copy of her testimony before the grand jury. Counsel stated that he wanted these copies “to prove that she has made conflicting statements.” Counsel then stated that the witness in her deposition had said that defendant was “kneeling over James”; that in the police report she had said, “he was bending over James when James was lying down”; that in the coroner’s report she had said, “that defendant was on top of James”; that in her testimony at the trial she had said that defendant “was in between James’ legs”; and that counsel was entitled to a copy of the statements “in order to make his cross-examination” of the witness. The court properly held that no foundation had been laid for the showing of prior inconsistent statements, since counsel had not asked the witness about any of the alleged statements said to conflict with her testimony before the jury. The court further ruled that counsel was “obviously fishing” and overruled the motion to produce. It is clear from a reading of this record that no proper foundation had been made for the production and inspection of the mentioned statements and the court did not err in denying the motion. The matter was within the, court’s discretion in determining whether good cause existed for the production of the several documents. State v. Kelton, Mo. Sup., 299 S.W.2d 493, 497[10, 11]; State ex rel. Phelps v. McQueen, Mo.Sup., 296 S.W.2d 85, 89 [1]. It further appears that the alleged discrepancies in the witness’ testimony to which counsel referred were of limited importance insofar as the issues before the court were concerned and particularly in view of the witness’ detailed testimony before the jury. Further, the pages of the transcript to which appellant refers fail to show that any proper attempt was made “to lay a foundation” for the production and inspection of any documents. See Supreme Court Rules 24.24 and 25.19.

Appellant further contends that the court erred in limiting the cross-examination of witness Wheeler by sustaining an objection to a question with reference to what she had told the police with reference to where she met Blanks on the evening of February 6, 1962, and as to whether she had given the circuit attorney’s office a different statement from what she had given the police.

After an extended and detailed cross-examination as to exactly where witness had met the deceased and after she had testified repeatedly that she had agreed to meet him at the corner of Chamberlain and Clara, but that she went there and missed him, returned to her house and later started back to the corner again, whereupon she met the deceased in front of the house next door to where she lived, counsel asked the witness what she had told one of the circuit attorneys with reference to the same matter and she said she didn’t remember. The court then sustained an objection and terminated the further extended cross-examination with reference to the matter. The court did not abuse its discretion in terminating the cross-examination on such a collateral and immaterial matter as to what point on Chamberlain the witness had met the deceased. State v. Daniels, Mo.Sup., 347 S.W.2d 874, 878[4], 87 A.L.R.2d 1208. Counsel then asked a general question as to whether she gave the circuit attorney’s office a different statement from what she gave the police and an obj ection was again made and sustained. She had testified fully concerning her efforts to tell the police and one of the circuit attorneys the same facts regarding the place where she met the deceased on the evening in question.

Appellant contends that his purpose was to impeach to witness by showing that she had lied and made inconsistent statements involving the same transaction. No such proof was made and no foundation was laid for the impeachment of the witness and there is no suggestion that appellant was prejudiced by the court’s rulings. See State v. Gilliam, Mo.Sup., 351 S.W.2d 723, 727 [9].

Defendant offered the testimony of certain witnesses to show that his reputation “for honesty and truthfulness and good moral character was good.” After the witnesses had so testified, counsel for the State asked if they knew of defendant dating Mrs. Wheeler and they said that they did not, whereupon counsel asked: “If this man, a married man with six children, is going with a woman he is not married to, if you knew that, would you say his reputation for good moral character is good?” The witness answered, “No.” Appellant contends that the court erred in permitting this attempt to show bad character by one specific instance and insists that bad character cannot be shown in that manner. Appellant cites State v. Kain, supra, 330 S.W.2d 842, 846[7]. The case has no application here since counsel for the State was entitled to cross-examine the three character witnesses concerning their testimony that appellant’s reputation for honesty, truthfulness and good moral character was good. The State could properly and in good faith make inquiries of the defendant’s character witnesses to test the extent of their knowledge of facts forming the basis of their opinions as to defendant’s good character, as well as to test the credibility of their opinions, and inquiries could be made concerning rumors even though the questions may have imputed pertinent acts or offenses to the defendant. State v. Havens, Mo.Sup., 177 S.W.2d 625, 629[12, 13]; State v. Livers, Mo.Sup., 340 S.W.2d 21, 26[6]. Further, the cross-examination could not have prejudiced appellant in the eyes of the jury, since he freely admitted his relationship to Mrs. Wheeler. He testified that he had seen her on numerous occasions; that, when he had threatened to break off with her, she had said she wouldn’t stand for it; and that if he did break off with her she would tell his wife about his relationship with her. In his opening statement to the jury, defendant’s counsel stated that defendant had met Mrs. Wheeler some four years ago; that the association between them had grown and continued for a long period of time;- and that he had taken her to work the morning of the day in question and at that time everything between the two of them was all right.

Appellant further contends that the prosecuting attorney was guilty of misconduct in making reference to the fact that the defendant’s wife was present in the courtroom at a particular time. The record shows that counsel for the State asked one of the defendant’s character witnesses if he wasn’t sitting in the courtroom with defendant’s wife “all yesterday.” An objection that the matter was irrelevant and immaterial was overruled and the witness answered, “Yes,” that he was. Appellant says that this evidence was outside the record and was only done to bias and prejudice the jury against him. The question and answer made the matter a part of the record and the question was not objected to on the ground that it was done to bias and prejudice the jury against the defendant. Further, it appears that the question was asked in an effort to show the relationship of the witness to defendant’s family or to indicate an interest which might color his testimony in defendant’s behalf. See State v. Miles, 199 Mo. 530, 98 S.W. 25, 28. The assignment is overruled.

Appellant further contends that the court, by its conduct in rushing defendant through cross-examination of the State’s witnesses and by other orders and statements, unduly prejudiced the minds of the jury against defendant and coveyed the impression that the court was in favor of the conviction of defendant. In support of this assignment appellant refers to four or five rulings of the court during the course of the trial or during the argument. It is not necessary to review the rulings in detail. Clearly, they do not support appellant’s contentions.

Appellant further contends that the prosecuting attorney was guilty of misconduct and the court erred in failing to reprimand the prosecuting attorney during the closing argument of defendant’s counsel, when defendant’s counsel commented on the fact the State had not shown the jury all the evidence “that they had in the evidence bag” and counsel for the State replied: “Go ahead, look at it, pull them right out.” Appellant says that the conduct of State’s counsel conveyed the impression “that the jury had a perfect right to inspect the bag of evidence when he well knew he had purposely withheld said evidence; and the court, on its own motion, should have reprimanded the State’s counsel for such conduct.” It will be noted that defendant’s counsel had gone outside of the record to say that the State had not shown the jury all of the evidence and, having so gone outside the record and discussed matters not in evidence, he might well have expected retaliatory action on the part of State’s counsel. In any event, there was nothing in the record to support appellant’s conclusion as to what impression the action would have had on the jury. Further, no objection was made or relief asked at the time. The assignment is overruled.

Appellant’s brief contains a number of other assignments of error under “Points and Authorities” but it will not be necessary to review them in detail in this opinion, which is already too long. It is sufficient to say that we have carefully examined each of these additional assignments and the record upon which they are based and the authorities, if any, cited in support of them and we find them to be without merit and they are overruled.

We have also examined the record with reference to those matters required to be reviewed under Supreme Court Rule 28.02 and no reversible error appears.

The judgment is affirmed.

All concur.