author: WADDILL, Commissioner,

text:
    Ellis HARRISON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 6, 1963.
    Lester H. Burns, Jr., Manchester, James; W. Burns, McKee, for appellant.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner,

Ellis Harrison is appealing from a judgment sentencing him to prison for a term' of twenty-one years. For reversal of the conviction it is urged that the court erred’ in instructing the jury.

Appellant was convicted of the crime-denounced by KRS 435.170 which, in pertinent part, states:

“Any person shall be confined in the penitentiary for not less than two nor more than twenty-one years who:* * *.
“(4) Willfully and maliciously * * * throws a * * * dangerous- or deadly missile at or into * * * any motor vehicle occupied by any person * *

In substance, the Commonwealth’s evidence shows that appellant threw a bottle at an automobile occupied by Buddy Brown- and his family. The bottle struck the left rear wheel of the car and fortunately no-one was physically injured. Appellant denied that he threw the bottle, so there was-a sharp issue for the jury to- resolve.

The trial court submitted the case to the jury under two instructions. Instruction number one authorized the jury to find appellant guilty and to fix his punishment at not less than two nor more than twenty-one years’ imprisonment if the jury believed beyond a reasonable doubt that appellant threw a bottle, a dangerous or deadly missile, at the automobile occupied by the Browns. Instruction number two advised the jury that if it had a reasonable doubt of appellant’s being proven guilty he was entitled to an acquittal.

Appellant contends and the Attorney General concedes that the trial court committed prejudicial error in omitting the words “willfully” and “maliciously” in instruction number one. We agree that the instruction was prejudicially erroneous. The plain provisions of KRS 435.170(4) require that the act therein condemned be done willfully and maliciously. Since the jury was not so informed by the instruction it is apparent that the jury was not instructed upon the whole law of the case. See Neely v. Commonwealth, Ky., 325 S.W.2d 79 and Johnson v. Commonwealth, 313 Ky. 17, 230 S.W.2d 69.

Since the language of KRS 435.-170(4) does not make a thrown bottle a dangerous or deadly missile per se, it is contended that the question of whether the particular bottle allegedly thrown by appellant was a dangerous or deadly missile depended upon several factors and therefore the trial court erred in failing to submit it to the jury. What constitutes a dangerous or deadly missile, within the meaning of KRS 435.170(4), must often depend upon the type of missile and the manner in which it is used. When a bottle (or a snowball) is used as a missile it is not necessarily a dangerous or a deadly one. We believe that this contention is meritorious because the dangerous or deadly character of the missile as allegedly thrown by the appellant was not established beyond question. Cf. Broaddus v. Commonwealth, Ky., 339 S.W.2d 154.

It is further contended that the trial court failed to give the whole law of the case in that it did not give an instruction under KRS 435.190, recklessly throwing a missile at a motor vehicle. The evidence of the Commonwealth shows that the bottle was deliberately thrown while the appellant denied throwing it at all. There being no factual basis upon which to predicate such an instruction we find no merit in the contention.

For the reasons stated the judgment is reversed with directions to set it aside and to grant the appellant a new trial.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    ROSE BOWL LANES, INC., Appellant, v. CITY OF LOUISVILLE et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 6, 1963.

      C. E. Schindler, Louisville, William L. Brooks, Frankfort, for appellant.
    Bernard S. Goldstein, Asst. Law Director, Norman A. Curtis, James L. Taylor, Henry A. Triplett, Louisville, for appel-lees.
   MONTGOMERY, Judge.

Rose Bowl Lanes, Inc., seeks to appeal from a judgment holding void a zone reclassification ordinance and granting a permanent injunction against construction of a howling alley or certain other uses. The action was brought by certain property owners who have moved to dismiss the appeal for failure to conform to CR 73.03.

The rule, in part, provides:

"The notice of appeal shall specify the parties taking the appeal, and shall designate the judgment or part thereof appealed from.”

The movants contend that the notice of appeal fails to “designate the judgment or part thereof appealed from.” The notice of appeal is as. follows:

“Mr. Henry A. Triplett, Attorney for Plaintiffs, Louisville Trust Building; Mr. Norman A. Curtis, Attorney for Defendants, the Wellers, 820 Marion E. Taylor Bldg.; Mr. Bernard Gold-stein, Attorney for the City of Louisville, 1517 Kentucky Home Life Building; and Mr. James L. Taylor, Attorney for the Louisville and Jefferson County Planning and Zoning Commission, Kentucky Home Life Building, will take notice that the undersigned will prosecute the appeal of Rose Bowl Lanes, Inc. by filing the record, a motion to docket, advance and submit, and his brief in the Court of Appeals on the nearest date possible, notice of which will be given.”

Movants rely on the express wording of the rule which is couched in mandatory language and on Hawks v. Wilbert, Ky., 355 S.W.2d 655, and Armstrong v. McGuire, Ky., 283 S.W.2d 366. In the Hawks case, the Court re-examined its position concerning the policy of strict compliance with the rules of appellate practice and concluded “there is no reason to discuss the matter further or to depart from its policy of strict compliance.” This policy was exemplified in Curtis v. Campbell, Ky., 336 S.W.2d 355, wherein an appeal was dismissed as to certain parties because they were not named in the notice of appeal. The principles underlying the policy have been thoroughly considered in the cases just mentioned and the cases cited therein.

Appellant admits its oversight and urges that no prejudice to the movants has been shown. It relies on certain federal cases decided under the companion federal rule, FRCP 73(b). The answer to the lack of prejudice plea is found in Commonwealth v. Black, Ky., 329 S.W.2d 192, quoting from City of Louisville v. Christian Business Women’s Club, Inc., Ky., 306 S.W.2d 274, as follows:

“We are told that in substance no injustice would result from ignoring the rules in this case. That may be, but it cannot justify the departure. Just as soon as rules of procedure are ignored in order to do substantial justice on the merits in a particular case, there are no rules. What is done in one case must be done in all.”

Following this rejection of a similar no prejudice plea, the Court made an earlier statement of its policy of strict compliance. Such omission on the part of the appellant seems a trifle on which to base the dismissal of an appeal, but on the other hand, it is such a simple thing to designate the judgment or part thereof appealed from as to make the failure to do so inexcusable. Fairness to those against whom the rule has been enforced strictly strengthens our resolve to retain the policy of strict compliance. The motion to dismiss the appeal is sustained

Appeal dismissed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky ex rel. DIVISION OF UNEMPLOYMENT INSURANCE, Appellant, v. 20TH CENTURY COAL COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 6, 1963.
    Paul E. Tierney, Clarence E. Powell, Forest Smith, Dept, of Economic Security, Frankfort, for appellant.
    Rice, Cheatham & Vanstone, Evansville, Ind., Laurence T. Gordon, Madisonville, Byron, Sandidge, Holbrook & Craig, Woodward, Bartlett & McCarroll, Nathan B. Cooper, David C. Brodie, Owensboro, Robert D. Simmons, Asst. U. S. Dist. Atty., Louisville, Paul Ross, Dept, of Revenue,. Frankfort, Harry G. Black, Hawesville, Joseph D. Banken, Owensboro, William E. Quisenberry, Calhoun, for appellees.
   CULLEN, Commissioner.

In an action against the 20th Century Coal Company, Inc., by a number of its employes, seeking to enforce a lien for wages, under KIRS 376.150 to 376.190, the Division of Unemployment Insurance of the Commonwealth and various other creditors of the company were made parties defendant. The Division filed a cross-claim setting' forth its claim to a lien for delinquent unemployment insurance taxes owed by the company. Judgment was entered disallowing the claim, for lack of proof. The Division has appealed from the judgment.

The Division’s pleading asserted a cross-claim against the company, as a co-defendant. The company did not serve an answer to the cross-claim. However, one of the other creditors, in its pleadings, made a formal denial of the allegations of the Division’s cross-complaint.

The trial court assigned the case to a special master commissioner to marshall the assets. He set times for hearing proof of claims, of which notice was given to all parties. The Division declined to offer proof of its claim, taking the position that proof was not required because the company had not served an answer denying its claim. The special master commissioner thereupon recommended to the court that the claim be denied, and the court, after overruling exceptions to the commissioner’s report, entered judgment accordingly.

The Division rests its argument solely on the Rules of Civil Procedure, claiming that under CR 7.01, 8.04 and 12.01 the allegations of its cross-claim must be taken as admitted by reason of the failure of the company to serve an answer denying them. The appellees maintain that the instant proceeding is a special statutory one to which the Rules do not have full application.

It is stated in CR 1 that the Rules of Civil Procedure “do not govern procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute.” Admittedly the instant proceeding, brought under KRS 376.150 to 376.190, is a special statutory proceeding. Therefore the only question is whether the-procedure and practice provided for in the statutes are inconsistent or in conflict with the Rules relied upon by the Division, to such extent as to make the Rules inapplicable.

The statutes in question do not specifically set forth the procedure for presentation and establishment of claims of creditors other than the plaintiff employes. However, we think the whole theory and spirit of the statutes are that the creditors are adversaries of each other rather than of the insolvent debtor. In the normal situation (and it was the situation here) the debtor has no hope of salvaging anything and the only issues concern how the assets are to be divided among the creditors. To permit the debtor to give recognition or even priority to a claim merely by failing to plead would be contrary to the purposes of the proceeding.

KRS 376.120, relating to mechanics’ lien proceedings, provides specifically that creditors must present evidence in support of their claims. In our opinion this requirement is inherent in the type of proceeding here involved.

As stated in Clay, CR 8.04, averments of a pleading to which a responsive pleading is required will stand admitted unless the opposing party denies the averments. In the instant proceeding the actual opposing parties were the other creditors — the debtor company had no real interest because the claims exceeded the assets.

It is our opinion that the statutory proceeding here involved requires by necessary implication the proof of claims, whether or not denied by the debtor, and therefore the Rules relating to responsive pleadings are not applicable.

The judgment is affirmed.


author: CROSS, Judge.

text:
    Iva DEPOY, Appellant, v. Martin HAUGHT, Josephine Haught, Robert Haught and Mrs. Robert Haught, Respondents.
    No. 23881.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.
    Dale, Potter & Flynn, Whitney W. Potter, St. Joseph, for appellant.
    Pettijohn & Eiser, Oregon, for respondents.
   CROSS, Judge.

Plaintiff brought this suit in June, 1962, by filing a petition consisting of two counts in which she complains that defendants wrongfully obstructed her private driveway, and thereby deprived 'her of its use as a means of ingress to and egress from her property. The petition prays the award of damages in the sum of $2000.00 for her alleged legal injury and for injunc-tive relief.

The only responsive pleading, filed by defendants was a motion to dismiss plaintiff’s petition on the ground that it failed to state a cause of action. This motion was filed in July, 1962.

In December, 1962, by leave of court, plaintiff’s original counsel withdrew as her attorney and plaintiff was duly notified of the attorney’s action.

Thereafter, in February, 1963, and at a time when plaintiff was unrepresented by counsel of record, the trial court sustained defendants’ motion to dismiss plaintiff’s petition and entered a judgment dismissing the cause. Subsequently plaintiff’s present counsel entered the case on her behalf and perfected this appeal from the judgment. Defendants have filed no briefs or appeared in this court.

From statements contained in appellant’s brief and copies of correspondence incorporated in the transcript, which are not properly a part of the record, it might be inferred that the trial court intended to dismiss the cause for want of prosecution. However, this court cannot indulge in inference from matters dehors the record before it. The effect of the judgment and the scope of the appeal from it are limited by the plain and literal meaning of the trial court’s judgment entry as it appears in the transcript.

The sole question here is whether the petition states a cause of action. We necessarily resolve the issue in plaintiff’s favor inasmuch as the pleading clearly avers that she has suffered a legal wrong at the hands of defendants and contains a short and plain statement of the facts showing that the pleader is entitled to relief, together with a demand for judgment for the relief to which she deems herself entitled, all in compliance with the rules of civil procedure.

Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

All concur.


author: MAUGHMER, Commissioner.

text:
    Florence Ruth STEPP, Respondent, v. H. D. RAINWATER, Appellant.
    No. 23909.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Alder & Morrison, John J. Alder, Wiley; W. Morrison, Kansas City, for appellant.
    Joseph. F. Meyer, James L. Muller, Kansas City, for respondent.
   MAUGHMER, Commissioner.

Suit for personal injuries arising from an automobile accident. Three vehicles were involved. Each car was occupied only by its driver. There were no other eyewitnesses. The verdict and judgment were for plaintiff-respondent Florence Ruth Stepp and against the two codefendants in the sum of $18,250. While an appeal by both defendants was pending before the Supreme Court, plaintiff filed her satisfaction of one-half of the judgment and released the defendant Carl Herbert Hol-stad. By so doing the remaining and outstanding judgment against the defendant H. D. Rainwater was reduced to $9,125, and appellate jurisdiction vested in this court. Defendant’s motion to transfer the appeal was sustained and the cause has been duly transferred. The only present contestants are the plaintiff Stepp and the appellant Rainwater.

The accident occurred about 5:00 p. m. July 6, 1961, on East-West Highway K-150 in Johnson County, Kansas. At the scene, K-150 is a two-lane black-top highway, 24 feet in width and with shoulders 8 feet wide. The highway was damp and wet from intermittent rain.

When the accident occurred the plaintiff was 28 years of age, married and employed in the office of the Collector of Internal Revenue in Kansas City. She was returning from work, was on the way to her home in Olathe, Kansas, driving her 1960 Valiant automobile and proceeding west on Highway K-150. From Roe Boulevard, which enters the highway from the north, the view to the west is unobstructed for approximately one mile. The accident took place about l/10th mile west of Roe Boulevard. From the scene on west, there is a slight downgrade and the view is unobstructed for at least one half mile. Plaintiff testified that as she traveled west toward the scene she was moving 40 to 45 miles per hour, when she saw the Rainwater green 1950 Chevrolet parked on the north shoulder and headed west. She said that as she drew near she observed Rainwater “pull onto the highway and go to the left. It looked to me like he was attempting to make a U-turn. I applied my brakes and slowed the car down to give him plenty of room to clear my path”. She said defendant cleared her lane and turned toward the east. She then for the first time saw what proved to be Holstad’s 1953 Mercury automobile “skidding down the highway and it was coming backwards”, “going about 70 to 75 miles an hour”. “He was over the center line and into the west-bound lane and the back end of his car was coming at my car”. She stated that when she first saw the Holstad car she applied her brakes and tried to turn to the right, but within a second or a little more, the car struck. Mrs. Stepp’s face hit the windshield and she received facial cuts and lacerations. Appellant makes no complaint as to the amount of the judgment and has not included in the transcript the medical evidence of plaintiff — either her own testimony or that of her doctors. Therefore we shall make no further reference to her injuries.

When the cars came to rest plaintiff’s Valiant was in the north lane, partly on the shoulder and headed west. Holstad’s Mercury was just west of the Valiant and likewise pointed toward the west. There is complete disagreement as to the location of Rainwater’s automobile just after the accident. Mr. Rainwater says he was west of the scene and headed west. Holstad and Mrs. Stepp declared that Rainwater had skidded on the roadway, turned from west to east and was headed east after the accident.

The testimony of the codefendant Hol-stad was that he was proceeding east at about 45 miles per hour, he first saw the Rainwater car when it was 11 or 12 car lengths away, partially on the right shoulder, headed west and moving at a speed of about 10 miles per hour. He said Rainwater appeared to be trying to move onto the highway from the shoulder; that when the vehicles were about 6 car lengths apart, Rainwater headed southwest and across the center line; that in an effort to avoid hitting Rainwater, he turned left into the westbound lane, whereupon his car skidded and moved backwards and eastward at a speed of about 5 miles per hour and his rear was hit head-on by plaintiff’s Valiant. He said he asked Rainwater after the accident why he had turned in front of him and Rainwater replied that he did not know; that it was not his (Holstad’s) fault and said: “There was no way you could have avoided that”. Holstad said Rainwater finally completed his turn, that his car was headed east, and immediately after the accident he saw the Chevrolet “headed east and parked on the south side of the road”.

Richard A. Darnell and John Persell, Deputy Sheriffs of Johnson County, reached the scene at 5:13 p. m., a few minutes after the occurrence. Darnell observed the Valiant and Mercury standing in the westbound lane. Both were extensively damaged. Darnell said it was physically impossible to make a U-turn with a 1961 Chevrolet on a highway 24 feet wide without backing up. Officer Persell talked with plaintiff in the hospital. He said she told him “ * * * all I could remember at that time was seeing this Mercury coming backwards at me”. The deputies’ written accident report referred to Rainwater’s car as “Car No. 3”. It was included in their report because Holstad had stated that it slid and was “crosswise in the road in front of him”.

Frank Kohler, Police Sergeant, commanding the Johnson County Safety Education Unit, stated that the turning radius of a 1950 Chevrolet is 38j4 feet and it could not be turned on a roadway 24 feet in width.

The defendant Rainwater gave his description of the accident. It was his testimony that he was driving west at about 35 miles per hour when a white Chevrolet “started around me” and cut in toward him, “I thought either he was trying to run me off the road or something and I pulled over and onto the shoulder and parked with my right wheels off the pavement”. He saw the Mercury about 500 feet to the west and pulled back onto the highway but he said his right rear wheel caught on the edge of the highway and skidded. He said he got back onto the west lane and met and passed the Mercury which was partly in the west lane. He later heard a crash, looked back and then turned his car around and went back to the scene. Seven days after the accident Rainwater signed a statement which included the following: “My right wheels dropped off the edge of the pavement and I started skidding. The front of my car started heading to the eastbound lane. My right rear wheel was caught on the edge of the pavement”.

Helen Potter of Olathe, a friend of Mrs. Stepp, came onto the scene shortly after the event. She said there were only three cars in the vicinity when she arrived and she fixed the location of each as follows: Mrs. Stepp’s car “was setting on the north side of the road, just like she had stopped there”, “she was going west”. Mr. Holstad’s vehicle was right in front of Stepp’s “kind of in the middle, it was over the line” and pointed west. She said the third automobile, a 1950 green Chevrolet, was “on the south side of the highway, headed east, kind of off on the shoulder over there”.

Appellant assigns as error the refusal of the trial court to sustain his motion for a directed verdict at the close of all the evidence. He says this was error because even though the testimony of plaintiff and Hol-stad that Rainwater made the U-turn would amount to submissible negligence, nevertheless, it was impossible for the green Chevrolet to make a U-turn on a 24 foot highway, hence the testimony that he did so is so unreasonable and contrary to the physical facts and natural laws as to amount to insufficient evidence upon which a verdict might be predicated.

Appellant correctly states the legal principles under which we consider and determine the question. First, we consider the evidence in the light most favorable to the plaintiff and accept as true all that is not entirely unreasonable or contrary to physical facts or natural laws. Verdicts cannot be predicated upon guesswork, conjecture or speculation, and liability cannot rest upon evidence which is so contrary to the natural laws or the physical facts as to be beyond reasonable belief. Probst v. Seyer et al., Mo., 353 S.W.2d 798. However, applying these principles to the evidence here we have no difficulty or hesitancy in ruling the point against appellant. Conceding that an automobile cannot be turned completely around within a radius of 24 feet, it certainly could “swap ends” where the rear wheels slip and slide, especially on a greasy black-top highway. Appellant himself said that his right rear wheel caught on the highway causing the vehicle to skid. Besides, Rainwater started his movement when his car was partly on the shoulder. Both plaintiff and Holstad testified positively, that Rainwater came off the shoulder headed southwest, skidded and turned completely around. Both said that after the accident his car was headed east and partly on the south shoulder. Helen Potter, who came onto the scene soon after the casualty, observed the green Chevrolet in that location. We believe this evidence is not only substantial and sufficient on its face (as appellant concedes) but that it is neither so unreasonable nor so contrary to natural laws nor the physical facts as to require it to be overturned as a matter of law. The issue was properly submitted and the jury apparently accepted the version of the accident as described by plaintiff and Mr. Holstad. We shall not disturb the verdict on this point.

Secondly, complaint is made as to Instruction 2, which reads as follows:

“The Court instructs the jury that if you should find and believe from the evidence that at the time and place in question plaintiff was operating her automobile in a westerly direction on Highway K 150 and was at all times exercising ordinary care for her own safety and at all times was traveling on the regular west-bound portion of the highway and as she was so operating said automobile, a 1953 Mercury being operated in the opposite direction by the defendant Holstad swerved to his left from the east-bound lane of K 150 into plaintiff’s west-bound lane of K 150 and there was a collision between the plaintiff’s automobile and Holstad’s Mercury. And if you further find that defendant Rainwater just immediately prior to said collision had been operating his automobile in a westerly direction on K 150 and he had negligently turned his automobile to the left of the center of the paved portion of the highway, if you so find, or so operated his automobile so as to cause it to cross from the west-bound portion of the highway and into the east-bound portion of the highway into the path of the east-bound Holstad automobile, and in so causing said automobile to go to the left into the east-bound portion of the highway and into the path of the defendant Holstad’s automobile he was thereby negligent, if you so believe and find from the evidence, and such negligence, if any, caused or contributed to cause the defendant Holstad’s automobile to come into collision with plaintiff’s automobile and plaintiff was injured and damaged thereby, then your verdict shall be for the plaintiff and against the defendant Rainwater”.

Appellant says the instruction is erroneous because it submits a theory of negligence which is not supported by the plaintiff’s pleadings or evidence, fails to hypothesize sufficient facts and is phrased in the disjunctive, without evidence to support the dual submission.

The dual submission referred to is that Rainwater “negligently turned his automobile to the left of the center of the paved portion of the highway” or “so operated his automobile so as to cause it to cross from the west-bound portion of the highway and intq the east-bound portion of the highway”. We see no material difference in this so-called dual submission

By her petition plaintiff alleged that defendant Rainwater “made a U-turn across K 150”. Appellant says the submission for crossing over the center line is not supported by plaintiff’s pleading or evidence and fails to sufficiently hypothesize the facts.

In Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 978, our Supreme Court said: “The Yates case (Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541) and cases following the Yates case are not to be read or construed as requiring the submission of facts which are not necessary or essential to a finding upon the issue or issues of negligence specifically submitted”.

In Hooper et al. v. Conrad et al., 364 Mo. 176, 260 S.W.2d 496, 500, 501, the same court spoke further, saying:

“The purpose of verdict-directing instructions is to make clear to the jury the essential fact issues they are to decide.
* * * *
“Where the evidence presents two or more divergent sets of essential facts, under one or more of which plaintiff would be entitled to recover and under one or more of which he would not, then a verdict-directing instruction or instructions given in his behalf should hypothesize, either by recital or by reference to other instructions, the facts essential in law to support the verdict. * * * Where there is no divergence in or denial of the essential facts, then the ultimate issue of the negligence pleaded and its being the proximate cause of the injury or damage alleged may be submitted by reference to the facts and circumstances shown by the evidence without specific hypothesization in the instructions. And, we may add, if either of the parties deems a hypothesized fact or situation not to have been clearly or sufficiently hypothesized in any instruction, he should offer a clarifying or amplifying instruction”.

The ultimate issue as submitted was whether or not at the time and place the defendant Rainwater crossed over the center line. That was the essential fact the jury was to decide. The instruction clearly presented the issue to the jury.

Appellant says plaintiff’s theory was that Rainwater made a U-turn, but the instruction permits recovery if he negligently crossed over into the eastbound lane and thereby caused or contributed to cause the accident. This is true. However, we believe the negligence as submitted is within the purview of plaintiff’s pleadings. It is certainly within the limits of her evidence— the testimony of herself and of Mr. Holstad. The factual dispute during the trial concerning defendant’s negligence was whether or not he crossed the center line. Defendant said he did not. Plaintiff and Mr. Hol-stad said he did. We believe that an affirmative finding under Instruction 2 constituted a finding of negligence under the law, under the pleadings, under the evidence and is sufficient upon which to predicate a verdict. Appellant’s statement that the courts do not permit a verdict outside the scope of the pleadings and the evidence is generally a correct statement. But this is not such a case, and the cases cited by appellant are not applicable here. We hold, too, that the instruction sufficiently hypothesizes the facts and is not confusing, indefinite, incomplete or misleading.

The third and final assignment concerns Instruction 3 on the concurrent negligence of the two defendants. It is not contended that the composition of the instruction is improper, but rather it should not have been given because Instruction 2, upon which it is based, should not have been given. In other words, appellant says Instruction 3 compounds the error in the giving of Instruction 2. Our holding that it was not error to give Instruction 2 disposes of this point which is overruled. (

Finding no error, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: BROADDUS, Presiding Judge.

text:
    JAMES - and Evon Abella -, Minors, by Their Next Friend, Betty -, Appellants, v. Glenn W. HUTTON, Respondent.
    No. 23792.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.
    E. J. Murphy, Butler, for appellants.
    Lynn M. Ewing, Jr., Nevada, for respondent.
   BROADDUS, Presiding Judge.

This is an action by minor plaintiffs, by their mother and next friend, against defendant seeking a declaratory judgment that they are the illegitimate children of said defendant and seeking support money from him. Defendant filed a motion to dismiss, which was sustained, and from which order plaintiffs appealed.

It is the settled rule that the Declaratory Judgment Act, Sect. 527.010 et seq., V.A.M.S.1959, is applicable only in those cases where there is a justiciable dispute or controversy. Simpson v. American Auto Ins. Co., 327 S.W.2d 519 (Mo.App.); Cotton v. Iowa Mutual Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246. In other words, there must be legal rights and obligations involved in any such action.

As is apparent from the opening paragraph of this opinion the basic dispute is whether there is a civil cause of action by or on behalf of minor children, who are admittedly illegitimate, against an alleged putative father. In other words, is there a civil action against the father of illegitimate children, for the support of such children?

The courts of Missouri have consistently refused to provide such a remedy. Plaintiffs in their brief admit, as pointed out in the cases of State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85; State v. White, 363 Mo. 83, 248 S.W.2d 841, and Nelson v. Thompson, 253 S.W.2d 516, (Mo.App.), that at common law there was no legal duty upon the father of illegitimate children for their support. Plaintiffs also admit that the Legislature of Missouri has never enacted a so-called “Bastardy Statute” providing a civil obligation to support illegitimate children, enforceable civilly.

Missouri for many years has had a NonSupport Statute, now numbered Section 559.350. Plaintiffs claim that this statute imposes an obligation, by inference, upon the father of illegitimate children for their support. Section 559.350 has only a criminal penalty. This statute was amended in 1953 to include the provision in the present law that lack of custody in the father was not a defense to a criminal prosecution.

The leading case on the matter of civil actions being created by or arising from criminal statutes is Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (En Banc.) At 295 S.W.2d 1. c. 126, the court said:

“ * * * it may be correctly stated that a statute which creates a criminal offense and provides a penalty for its violation, will not be construed as creating a new civil cause of action independently of the common law, unless such appears by express terms or by clear implication to have been the legislative intent.”

The distinction is then made by the Court between those statutes where both a specific duty is imposed and the breach of the duty is made subject to a criminal penalty, and those statutes where only a penalty is imposed; and further points out that the many instances where civil enforcement is provided for by statute in addition to criminal penalties.

In State v. White, supra, our Supreme Court made it clear that the courts ought not change an established legal doctrine, particularly where the Legislature had received recommendation that a statute be adopted to provide a civil remedy for the establishment of paternity and the obligation of support against the father of illegitimate children. For this reason plaintiffs conclusion in this case, that the crime infers a civil support obligation enforceable in a civil cause, fails because the Legislature has had the distinction between civil and criminal enforcement brought to its attention, and has rejected civil enforcement in favor of criminal. The Legislature of the State of Missouri has established the policy for this State in regard to the so-called “Bastardy” actions and civil actions to establish paternity and to require the support of illegitimate children by persons found to be their parents. The policy is a negative one of consistently refusing to authorize such a proceeding or cause of action.

In the 64th General Assembly (1947) and the 66th General Assembly (1951) identical bills were introduced, providing a detailed method of establishing paternity and requiring support. House Bill 119 of the 64th General Assembly passed the House and never came out of the Senate Committee to which it was referred. House Bill 274 of the 66th General Assembly was reported out “do not pass” by the House Committee to which it was referred.

Of special significance is House Bill 543 of the 70th General Assembly. This was a simple bill which we set forth in full.

“AN ACT
“Relating to the support and maintenance of illegitimate children. Be it enacted by the General Assembly of the State of Missouri, as follows:
“Section 1. The father as well as the mother of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, or by a guardian ad litem appointed upon the written application or with the consent of the mother; provided that such application or consent shall not be necessary if the mother is dead or incompetent.”

This bill was reported out by the House Committee to which it was referred with a recommendation of “do not pass.” Thus it appears that within the last 17 years the General Assembly of the State of Missouri has three times rejected the concept of a civil determination of paternity and support in the matter of illegitimate children. By such action the General Assembly has said that the public policy of the State of Missouri is the law under the decisions of the Supreme Court and the Courts of Appeal which have held that there is no civil obligation for the support of illegitimate children as far as the father- — either alleged or admitted — is concerned. The actions of the Legislature in this regard are an effective answer to plaintiffs’ argument that the Courts should alter the present common law of Missouri.

The judgment is affirmed.

All concur, including DEW, Special Commissioner.


text:
    Earl D. BOLTON and Rosalie M. Bolton, Plaintiffs-Respondents, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Defendant-Appellant.
    No. 23841.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.

      Poague, Brock & Wall, Barkley M. Brock, Julius F. Wall, Clinton, for appellant.
    James B. Wilson, Windsor, for respondents.
   MAUGHMER, Commissioner.

Plaintiffs, Earl D. and Rosalie M. Bolton, Thusband and wife, had the verdict and judgment in the amount of $1895 for damages to improved pasture and fencing on their 93 acre farm located in Pettis County, Missouri, from fire allegedly caused by defendant Missouri-Kansas-Texas Railroad Corporation. The defendant has appealed.

The amended petition on which plaintiffs 'went to trial was in three counts. It was alleged in Count 1 that on April 27, 1960, defendant’s employees were burning grass and weeds along defendant's right-of-way which adjoins plaintiffs’ farm and left the fire unattended; that it spread onto plaintiffs’ property, burning and destroying four acres of improved pasture to plaintiffs’ damage in the sum of $160. It was alleged in Count 2 that on December 4, 1960, sparks of fire escaped from defendant’s engine and set fire to the right-of-way; that defendant permitted the fire to escape onto plaintiffs’ property “burning over twenty-two acres of improved pasture”. Plaintiffs asked $880 in damages for this burning. It was alleged in Count 3 that on April 19, 1962, sparks of fire escaped from defendant’s engine and set fire to the right-of-way. “That said fire was allowed by defendant to spread onto the property of plaintiffs, burning over sixty-two and one-half acres of improved pasture, burning five hundred hedge posts and five hundred rods of fence”, thereby damaging plaintiffs to the extent of $2830.

The answer was a general denial. During the trial defendant did not actually deny that it started the fires and its counsel in the argument before this court conceded that it had. The verdict was for plaintiffs on each count with damages of $40 on Count 1, $376 under Count 2, and $1479 under Count 3, making a total of $1895.

On its appeal defendant makes three assignments of error. It says (1) Given Instruction 1 as to Count 3, was erroneous because it permitted the jury to consider damage to hedge posts and fencing, when there was no evidence of such loss. (2) Instructions 1, 2, and 3, failed to inform the jury “of the method of arriving at the damage to plaintiffs’ improved pasture and fences” and hence were erroneous. (3) The damages allowed were excessive “for the reason that the land was in the Soil Bank Program, no crops could he produced at the time of the fires, nor at the present time and no Soil Bank Program checks have been reduced or stopped”. Plaintiffs are not in this proceeding seeking recovery for loss of annual crops but instead for damages to their farm for destruction of or injury to their “improved pasture”, which is a quasi-permanent improvement. This is permissible even though the farm is under the Soil Bank Program.

The testimony of Mr. and Mrs. Bolton was that Mr. Bolton worked regularly “off the farm” at the Whiteman Air Force Base; that the whole farm was in grass— in improved pasture — including about four acres in alfalfa and the balance in a combination of grasses, including lespedeza, red top, alsike clover, timothy and fescue. The Boltons harvested no crops off the land since it was all in the Soil Bank Program. They received annual payments of $1540.35 from the government. They were not permitted to take a crop — hay or seed — from the farm but were required to mow the weeds. It is conceded that plaintiffs received their full Soil Bank payments each year and, based upon their tax returns, these payments constituted almost the entire income from the farm.

We shall quote the brief testimony of Mr. Bolton on the question of fence damage and as to the value of the fences destroyed or damaged. Except for the general statement of Mrs. Bolton that some of the fences were burned “clear to the ground”, this testimony of Mr. Bolton was the only evidence presented on this particular issue.

“Q. How much fencing was burned during the fire ?
“A. About 500 rods of fencing.
“Q. Do you know the price of posts at the present time?,
“A. I don’t.
“Q. Do you know the price of wire at the present time?
“A. I looked it up in the catalog.
“Q. Could you tell us what the price is?
“A. For the kind that I had, thirty some odd dollars, thirty-one or two dollars, somewhere in that neighborhood, in Kansas City in the Montgomery Ward catalog for 20 rods, that is 39 inch 6-inch stay, heavy fencing that I had.
“Q. Have you investigated the cost of replacing the fence that was burned ?
“A. I estimated it.
“Q. And what is the cost per rod?
“A. If you were started from scratch, putting in a fence would cost approximately a dollar and a half a rod.
“Q. These fences aren’t completely destroyed, they have been damaged some, is that correct ?
“A. That’s true, with the exception of the east fence, which is a partnership fence.
“Q. That was an old fence ?
“A. It was an old fence, but it served the purpose.
“Q. It’s not your testimony that all the posts were ruined or that all the wire was ruined?
“A. No, I’m not claiming that they were all ruined”.

There was no showing as to when the fences were built. There was no evidence as to the value of the fencing immediately before or immediately after the fire, nor did any witness attempt to estimate the value of the farm immediately before and immediately after the fence burning. Neither did plaintiffs nor anyone in their behalf express any opinion as to the cost of repairing the fence to a condition as good and valuable as it was before the fire. The only testimony touching the point was as to the cost of a completely new fence. The evidence of Mr. Bolton himself is that the fencing was not entirely destroyed. He said he was “not claiming that all the posts were ruined or that all the wire was ruined”. This fence or these fences have not been repaired or rebuilt or replaced except that portion which belongs to defendant railroad company.

Defendant urges that the proper measure of damages in this case respecting not only fence damage but damage to the permanent pasture as well, is the difference in the value of the farm immediately before and immediately after the fire or fires. While such a test is a proper one, we think it is not the only measure which plaintiffs may use. Our appellate courts have in somewhat similar cases approved recoveries based upon evidence as to the value of the fence or thing damaged or destroyed and under an instruction in accordance with such evidence. We shall refer to and quote from some such authorities.

From Gulf, M. & O. R. Co. v. Smith-Brennan Pile Co., Mo.App., 223 S.W.2d 100, 104, 105:

“The general rule, as heretofore stated, is that the measure of damage is the difference between the reasonable value of the property before and the reasonable value thereof after the accident. We are aware that in cases where the amount of damage is insignificant, as compared to the value of the property as a whole and involves only a small part thereof, there is an exception to the above general rule. However, before allowing plaintiff to rely solely on evidence of the costs of repair, there should be a showing of the comparative insignificance of the damage to bring the case within such exception to the general rule”.

And while plaintiffs here are not asking damages for either total or partial destruction of a crop, but rather for permanent damage to an improved pasture and to fences, we think the measure of damage rule as stated by the Supreme Court in Happy v. Kenton et al., 362 Mo. 1156, 247 S.W.2d 698, 704, 705, for annual crops might be applicable. The court said:

“ * * * nevertheless, we think there can be no question but that the measure of damage for injury to or destruction of a growing annual crop is, in the case of total destruction: the value of the crop at the time and place of destruction; and as to injury or partial destruction: the difference between the value of the crop immediately before and immediately after the injury, (citing cases)”.

This court in Beaty et al. v. N. W. Electric Power Cooperative, Inc., 312 S.W.2d 369, 371, in discussing the measure of damages for the destruction of fence, and after citing cases in support, said: “These cases hold, in effect, that the measure of damages for the destruction of a fence is the actual value of the fence as it stood, before destruction”

In 15 Am.Jur., Damages, p. 527, on. fences, we are told:

“According to the weight of authority, the measure of damages for the destruction of a fence is its value in its condition at the time of its destruction.
$ * * *
“Some courts hold that the measure of damages is the cost of replacing the fence, provided this can be done at reasonable cost and is practicable, or the cost of repairing it where it is not totally destroyed”.

In Steffens v. Fisher, 161 Mo.App. 386, 143 S.W. 1101, 1103, we find this statement: “The rule is well settled that the measure of damages for the destruction of a fence by fire is the actual value of the fence as it stood”.

25 C.J.S. Damages § 85a, page 610, on fences, contains this comment:

“According to some authorities, the measure of damages for the destruction of a fence is the cost of replacing it in its former condition, while according to other authorities, it is the value of the fence, which value, it has been said, is not the market value of the fence but the value of the fence as an inclosure to plaintiff’s land. Another measure of damages which has been adopted is the difference between the value of the land before and after the injury. Under the rule that the measure of damages is the value of the fence, the cost of a different kind of fence to replace one destroyed or one inclosing more land cannot be recovered”.

Plaintiffs’ given Instruction 1, covering the third fire and seeking a recovery for both fence and pasture damage after requiring a finding that defendant caused the fire, continued: “ * * * and if you further find that plaintiffs’ improved pasture, hedge posts and fencing mentioned in the evidence were thereby damaged, then your verdict will be for the plaintiffs for such sum as you believe will fairly and reasonably compensate plaintiffs for such damage, not to exceed Two Thousand, Eight Hundred Thirty Dollars”.

It seems apparent that generally the measure of damages in cases involving real property is the difference in the value of the property immediately before and immediately after the damages were inflicted. De Long et al. v. Broadston et al., Mo.App., 272 S.W.2d 493, 497, Cirese v. Spitcaufsky et al., Mo.App., 265 S.W.2d 753, 758. However, this is not a hard and fast rule. It is relaxed and where the damage is done to fencing or an improved pasture it would be permissible to show the difference in the value of the fencing or the improved pasture immediately before and immediately after the burning. And the cost of repairing to a condition equal to that existing before the damage would probably be sufficient. Either of these three methods would, we think, arrive at about the same result and if precisely applied would reach the same estimate as to the amount of damage.

A verdict-directing instruction on the measure of damages must set forth a proper rule for the measurement of such damages. If it fails to do so then it gives the jury a roving commission to guess on this vital point and provides no legal yardstick by which to determine the amount of the damages. Instruction 1 neither limits the amount of damages to (a) the difference in the value of the farm immediately before and immediately after the fire or (b) the value of the fence before and after, or (c) the cost of repair. Its only limitation for fence and pasture damage is $2830, the amount plaintiffs sued for.

Furthermore, there must be proper evidence on this vital issue upon which a consistent instruction may be based. Otherwise, while the jury might be given an instruction setting forth a proper rule, it would still be without evidence under which it could be applied. In Brown v. Pennsylvania Fire Ins. Co., Philadelphia, Mo.App., 263 S.W.2d 893, 899, plaintiff had recovered $510 for windstorm damage to his three-story residence in St. Louis. Such damage might be considered as insignificant when compared to the value of a three-story residence and a suitable case for application of the “insignificant rule” as announced by the court in Gulf, M. & O. R. Co. v. Smith-Brennan Pile Co., supra, but the St. Louis Court of Appeals refused to do so. The only evidence offered was the testimony of plaintiff and his contractor that the repairs cost $510. The court reversed, holding such evidence as insufficient on which to predicate an instruction on the measure of damages. The court said further:

“The rule established in this state through a long line of cases is that the measure of damages to real property is the difference between the market value of the property immediately before and immediately after the damage is sustained, (citing cases)”.

In addition, the opinion refers to Johnstone v. Home Ins. Co. of New York, Mo.App., 34 S.W.2d 1029, and quotes with approval as follows from that case:

“ ‘The plaintiffs did introduce evidence as to the actual cost of the repairs, which was proper, as throwing some light on the question of value after the fire, but that is not the measure of the value. * * *
“ ‘ * * * evidence of the cost of repair is a proper element to be considered, but it is not conclusive of the value of the property after the loss, (citing cases)’ 34 S.W.2d loc. cit. 1033”.

The testimony of Mr. Bolton, which is really the only testimony touching the fencing matter and which we have herein-above set forth, fails to either estimate the cost of repair, the value of the fence just before and just after the fire, or the value of the farm immediately before and immediately after. Hence this judgment must be reversed and the cause remanded for the giving of Instruction 1 because first, it does not set forth a proper rule or a permissive rule for the measure of damages and, second, there is no evidence laying an eviden-tiary foundation upon which such an instruction could be based.

The same criticisms apply to Instructions 2 and 3, covering the first and second fires and seeking damages for the burning of improved pasture. There was a little more evidence covering the alleged damage to the pasture. However, it is not contended that the pasture was entirely destroyed, but rather only partially damaged. There was again no evidence as to the value of the farm or the value of the improved pasture immediately before and immediately after the fires, nor was there any real estimate made as to the cost of repair or bringing this pasture back to a condition equal to that which existed prior to the fires. There was some evidence as to the probable costs of complete reseeding and refertilization. Instructions 2 and 3 also fail to set forth either a proper or permissive rule for the measure of damages.

Defendant suggests that the error regarding the fence recovery at least might be cured by a remittitur. We disagree for two reasons: First, we are not sure as to just what amount the jury allowed for fence damage and, second, we believe that upon a retrial, plaintiffs can produce proper evidence and prepare a suitable instruction submitting this issue to the jury. They should be given an opportunity to do so.

This court is hesitant to reverse cases upon imperfect instructions. However, an examination of numerous cases similar to the one before us shows that many clear pronouncements have been made by the appellate courts as to the proper measure of damages in this type of case and the evidence which must be presented as a foundation upon which to base a suitable instruction. We believe that an examination of some of those cases and a consideration of this opinion by plaintiffs will enable them upon a second trial to comply with these minimum requirements.

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

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: HUNTER, Judge.

text:
    Gary DUGAN, pro ami, Appellant, v. KANSAS CITY, Missouri, Respondent.
    No. 23884.
    Kansas City Court of Appeals. Missouri.
    Dec. 2, 1963.
    Williams, Norton & Pollard, North Kansas City, for appellant.
    Herbert Hoffman, City Counselor, Timothy D. O’Leary, Asst. City Counselor, Kansas City, for respondent.
   HUNTER, Judge.

Gary Dugan, a minor, through his next friend, sued the City of Kansas City, Missouri, a municipal corporation, for $10,-000 for personal injuries he suffered on August 14, 1962, allegedly as the result of the negligence of the employee-agent ambulance driver of defendant city in transporting plaintiff from the place in defendant Kansas City where he had been in a motor scooter accident to the North Kansas City Memorial Hospital in North Kansas City, Missouri.

The trial court, upon motion, dismissed the petition for the stated reason that plaintiff was not entitled to legal redress against defendant because the petition disclosed defendant municipality was acting in its governmental capacity at the time in question.

The petition alleged that on August 14, 1962, plaintiff was operating a motor scooter at a named intersection in Platte County, Missouri, (in Kansas City) when a motor vehicle crowded him off the road, wrecking his motor scooter and fracturing his right tibia and fibula; that thereafter defendant undertook to transport him from the scene of the accident to the hospital in North Kansas City in an ambulance owned and operated by defendant city at the expense of plaintiff and for the standard charge of $10.00 charged by defendant for this service; that defendant’s employees placed him on a stretcher and put him in the ambulance; that although his leg was broken it was not a compound fracture but while being transported to the hospital, defendant through its employees operating the ambulance negligently failed to protect his broken leg and failed to render him any assistance or aid by way of sand bags, straps or other accepted procedure to see that his leg was held firm and rigid during his transportation to the hospital, and that as a direct result of such negligence the fractured leg became a compound fracture and became infected.

Presented on this appeal is the single question of whether it is disclosed on the face of the petition that the city was engaged in the performance of a governmental function in the operation of its ambulance service at the time in question. If the petition so discloses, the trial court correctly sustained the motion to dismiss; otherwise, the motion to dismiss should not have been sustained.

The petition in this case is noteworthy mostly for what it does not allege. Nowhere does it state that the ambulance service provided was a service incident to or connected with the municipal hospital of defendant city, or connected with any public charitable or eleemosynary function of the city. Nor is there any allegation that the ambulance service was or was not operated for private gain and profit. It is not possible, without speculation, to know from the face of the petition whether this ambulance service is governmental or proprietary in nature.

From the briefs of counsel and the oral arguments made on appeal we get the impression that the ambulance service in question was incident to and connected with defendant city’s municipal hospital, which latter operation is admittedly a governmental function for which there is no tort liability against defendant city. See, Zummo v. Kansas City, 285 Mo. 222, 225 S.W. 934; Schroeder v. City of St. Louis, 360 Mo. 293, 228 S.W.2d 677, 25 A.L.R. 2d 200; Watrous v. City of St. Louis, Mo.App., 281 S.W.2d 594; Annotation, 25 A.L.R.2d 203. We were advised by plaintiff’s and defendant’s counsel during oral argument about certain of the operating procedures of the ambulance service, particularly as to what hospital it might take an injured person. However, all these matters are not disclosed by the face of the petition and are evidentiary in nature.

In a situation quite similar to this, where the face of the petition failed to disclose the tort occurred while the municipality was engaged in a governmental function, our supreme court held it was error to sustain the motion to dismiss. See, Burke v. City of St. Louis, Mo.Sup., 349 S.W.2d 930. For the same reasons given in that opinion we hold the trial court erred in the instant case in its dismissal of the petition.

The judgment is reversed and the cause is remanded for further appropriate proceedings. It is so ordered.

All concur.

      . For those interested in the question of whether the operation of an emergency ambulance service in connection with a municipal hospital is a governmental or proprietary function, see Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664; Nichitta v. City of New York, 223 App.Div. 428, 228 N.Y.S. 528, aff. 250 NX 530, 166 N.E. 312; Hagerman v. City of Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A.L.R. 1110; 26 Am.Jur., Hospitals, etc., Section 16, page 598; 18 McQuillin, Municipal Corporations (3rd Ed.), Section 53.86, note 69; and Cum.Supp., Page 125, Note 76.


author: STONE, Judge.

text:
    Jess HOOVER d/b/a Hoover Agency, Plaintiff-Respondent, v. Lloyd WHISNER and Wilma Whisner, Defendants-Appellants.
    No. 8217.
    Springfield Court of Appeals. Missouri.
    Dec. 2, 1963.

      Frieze & Crandall, Carthage, for defendants-appellants.
    McReynolds, Flanigan & Flanigan, Carthage, for plaintiff-respondent.
   STONE, Judge.

In this jury-waived action at law to recover for broker’s services in selling real estate, the court entered judgment for $540 in favor of plaintiff, Jess Hoover, a licensed real estate broker [Sec. 339.010(1)] doing business as the Hoover Agency with his office in Carthage, • Missouri, against defendants, Lloyd Whisner and Wilma Whis-ner, the owners of the property sold. Defendants appeal.

At the outset, we are confronted with plaintiff’s-respondent’s motion to dismiss the appeal for the alleged failure of defendants’-appellants’ brief to comply with the minimum essentials detailed in Rule 83.05. The motion to dismiss is not without merit. Defendants’ “points relied on” are: “I. The Court erred in finding for plaintiff and against defendants. II. The finding and judgment of the court is without support in the evidence. III. The finding and judgment of the court are against the weight of the credible evidence. IV. The finding and judgment of the court is contrary to the law.” In language as explicit and demanding as it is plain and unambiguous, subdivision (a) (3) of Rule 83.05 directs that “[t]he points relied on * * * shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous”; and, that there may be no reason or opportunity for misunderstanding on the part of those who make a serious and purposeful effort to follow the rule, the same direction is emphasized by repetition and amplified by example in subdivision (e). It has been pointed out repeatedly that the cited subdivisions of Rule 83.05 clearly contemplate particularization in “points relied on” and that the, requirements of the rule are not satisfied by discussion and references in the “argument,” for an appellate court has no duty to seine through the entire brief in an effort to ascertain the points on which an appellant depends. Sides v. Contemporary Homes, Mo.App., 311 S.W.2d 117, 122; Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481, 483(2). The quoted “points” in instant defendants’ brief are utterly insufficient, and dismissal of the appeal for flagrant violation of Rule 83.Q5 would be justified.

However, this case having been tried upon the facts without a jury, appellate review of the record is de novo upon both the law and the evidence as in suits of an equitable nature. Rule 73.01(d); Sec. 510.310(4); Ennis v. Korb, Mo., 347 S.W.2d 671, 675(1). Cognizant that, in some equity cases, our Supreme Court has, notwithstanding the insufficiency of appellants’ briefs, proceeded to determine whether the judgment nisi was justified upon the record [e. g., Frisch v. Schergens, Mo., 295 S.W.2d 84, 85(1); Turner v. Mitchell, Mo., 297 S.W.2d 458, 460(2)], and mindful that “our primary duty is to litigants rather than to counsel who represent them” [Ambrose v. M. F. A. Co-operative Ass’n. of St. Elizabeth, Mo., 266 S.W.2d 647, 650; Songer v. Brittain, Mo.App., 272 S.W.2d 16, 18], we have concluded to determine in this instance the sufficiency of the evidence to support the judgment, that being a question which may be presented on appeal regardless of whether it was presented in the trial court [Rule 73.01(d); Sec. 510.310 (4)] and that being the principal issue which, as it appears, instant defendants here seek to raise. Compare Mason’s Estate v. Sagehorn, Mo.App., 303 S.W.2d 194, 195(2). Accordingly, we overrule plaintiff’s motion to dismiss the appeal, albeit with some hesitancy, again confessing our wonderment that capable counsel so frequently assume such not inconsiderable but obviously unnecessary risks in dealing with the interests of their clients [Thompson v. Jenkins, Mo., 330 S.W.2d 802, 803; Moore v. Rone, Mo.App., 355 S.W.2d 398, 401; Steckler v. Steckler, Mo.App., 293 S.W.2d 129, 131] when, as our brethren have pointed out, the procedural provisions now embodied in Rule 83.05 "are clear and simple and easily followed upon a cursory examination” [Onka v. Butkovich, Mo.App., 294 S.W.2d 357, 359] and “[o]bedience * * * calls for no cryptic or unique legal discernment or technique.” White v. Nelson, Mo.App., 283 S.W.2d 926, 928.

Mrs. Belle Stutsman, a licensed saleslady for the Hoover Agency, had been “raised” at Sarcoxie, Missouri, and had known defendants “all my life.” Having heard that defendants’ 30-acre tract on Highway 166 about one mile west of Sarcoxie was for sale, Mrs. Stutsman drove to that tract on Saturday, September 16, 1961. Defendants resided in the same neighborhood but the dwelling house on the 30-acre tract was unoccupied and sorely in need of redecoration and repairs which defendant, Lloyd Whisner, “sort of a builder” who operated a tavern on Saturdays and Sundays, was making “a little at a time.” When Mrs. Stutsman reached the dwelling house on September 16, defendant Lloyd was not there but his wife, Mrs. Wilma Whisner, was in the yard.

Mrs. Stutsman’s testimony as to what occurred on that occasion was, in substance, that she handed her card to defendant Wilma and inquired whether “the place” was for sale to which defendant Wilma replied “yes,” and that, when Mrs. Stutsman then asked “if they would list the place for sale” with the Hoover Agency, defendant Wilma said “they didn’t care who sold it as long as they got their money.” In response to Mrs. Stutsman’s subsequent questions, defendant Wilma quoted the price “they were asking for the 30-acre tract” as “$10,-000 after it was cleaned” — “they were going to clean it up,” stated that “probably half” of the acreage was tillable and the remainder was pasture, expressed her understanding that there was “a good well,” and supplied other information all of which was recorded by Mrs. Stutsman on a listing form used by the Hoover Agency. Mrs. Stuts-man knew that the 30-acre tract was owned by defendants as tenants by the entirety but, in view of her conversation with defendant Wilma, she (Mrs. Stutsman) did not think it necessary to obtain authorization to list from defendant Lloyd personally. According to Mrs. Stutsman, “she (defendant Wilma) said that Mr. Whisner had said it was all right” — “she told me to go ahead.” However, defendant Wilma knew nothing about the taxes or the loan on the 30-acre tract; and, for information as to these matters, she told Mrs. Stutsman that it would be necessary to talk with defendant Lloyd. Advised by defendant Wilma that the best time to see defendant Lloyd would be “in the evening after five,” Mrs. Stutsman returned to the neighborhood shortly after 5 P.M. on the following Monday, September 18, and from the nearby home of her sister unsuccessfully undertook to contact defendant Lloyd over the telephone until about 10 P.M. when she was moved to abandon the effort by the discouraging comment of defendant Wilma that “he is playing •cards and no telling what time he will come home.” Mrs. Stutsman did not thereafter talk with defendant Lloyd. There was no written contract between the Hoover Agency and defendants.

Defendant Wilma testified that, when Mrs. Stutsman asked on Saturday, September 16, whether the Hoover Agency might list the 30-acre tract for sale, “I told her she would have to talk to my husband, that I didn’t have anything to do with it.” According to defendant Wilma, she neither quoted a price for the tract nor supplied any information concerning it. However, prior to the following Saturday, September 23, defendant Wilma admittedly told her husband of her conversation with Mrs. Stutsman on September 16 and that the latter “was wanting to list the place.”

On the afternoon of Saturday, September 23, Carl O. and Mrs. Marie Tibbetts, husband and wife, came to the office of the Hoover Agency in Carthage and, in the .absence of another salesman who “had been working with them,” talked with salesman Floyd Thomas. Saleslady Stutsman, in the •office at the time, told salesman Thomas and the Tibbetts that “she had the listing” of defendants’ 30-acre tract and that “they (the Tibbetts) probably would be interested ■in it.” Both Thomas and Mrs. Stutsman testified that they then priced the tract to the Tibbetts at $10,000. Upon trial, Tib-betts said “I don’t think they told me a definite price” but he quickly conceded that Thomas and Mrs. Stutsman knew what he wanted to pay, to wit, “around ten or twelve thousand dollars.” Mrs. Tibbetts’ testimony was to the same effect.

In any event, Thomas drove the Tibbetts to defendants’ 30-acre tract that same afternoon. As to what occurred on that occasion, the parties again are in sharp disagreement. The substance of Thomas’ testimony was that, when he and the Tib-betts reached the dwelling house on the tract, defendant Lloyd “came out” of the house; that Thomas “told him that we had a buyer for the place that we had listed, and asked if it would be all right to show it”; and that defendant Lloyd responded, “come right on in,” and “went along with us and showed the place.” On the other hand, defendant Lloyd’s version was that Thomas already had shown the property and he and the Tibbetts were at the Thomas automobile “ready to leave” when defendant Lloyd drove up; that Thomas then identified himself, stated that he had shown the property, commented that “Mrs. Stutsman has told me she was going to get a listing on it,” complimented the Tibbetts as “very nice people,” and asked “was it all right to show them”; that defendant Lloyd replied “the place isn’t showable — it needs a lot of cleaning and improvement done before it should be showed to a buyer”; and that, after “just friendly conversation” for “a very short time,” Thomas and the Tibbetts left. The Tibbetts likewise stated that they had looked through the house, which was open, before defendant Lloyd arrived.

Whatever the truth concerning these matters may be (that obviously depending upon the credibility of witnesses and the weight to be accorded to their testimony), the record clearly establishes that the Tib-betts were not acquainted with defendants and did not know their 30-acre tract until Thomas took the Tibbetts to that tract on September 23, and that defendant Lloyd then was apprised that the Tibbetts were presented by the Hoover Agency as prospective purchasers. And, although this was in dispute, the trier of the facts reasonably could have found that defendant Lloyd also was apprised before the property was shown on September 23 that, in presenting the Tibbetts, the Hoover Agency was acting in the belief that the 30-acre tract had been listed for sale, for salesman Thomas said “I just told him that we had a buyer for the piece that zve had listed * * •

The next day, to wit, on Sunday, September 24, the Tibbetts alone and without contacting the Hoover Agency called on defendant Lloyd and, after some discussion, made an offer of $9,000 for the 30-acre tract. It was two weeks later when, as defendant Lloyd put it, “we just lit on the sale” and he accepted the $9,000 offer. The transaction was consummated on January 15, 1962, more than three months later, in •an “insurance office” in Sarcoxie, when defendants executed and delivered to the Tibbetts a warranty deed thereafter record•ed on January 16. The only reason for the •delay in closing the deal is that suggested "by the testimony of salesman Thomas that, when he had talked with the Tibbetts on one occasion in the interim between September 23, 1961, and January 15, 1962, '“they hadn’t sold their farm.” In the same interim, to wit, during the last week in December 1961, salesman Thomas had (so Tie said) shown the 30-acre tract to another prospective purchaser, one Elmer Wilson, while both defendants were present [cf. Tull v. Starmer, 188 Mo.App. 713, 717, 176 S.W. 511, 513], and on other occasions had shown the tract in defendants’ absence.

No one connected with the Hoover Agency knew of the discussions between •defendants and the Tibbetts or of their sale agreement until January 1962 when plaintiff Hoover and salesman Thomas, in going through a list of recorded instruments, discovered the conveyance from defendants to "the Tibbetts. Within the next five or six •days, Hoover and Thomas drove to Sar-•coxie, located defendant Lloyd playing •dominoes in a pool hall, and demanded pay-ment of the commission for sale of the •30-acre tract to the Tibbetts. Defendant Lloyd summarily rejected that demand; and, as Hoover and Thomas started to leave, Lloyd said “I want you to take the other tract off the market,” referring to a 23-acre tract owned by defendants which was located some four miles southeast of Sarcoxie. The 23-acre tract admittedly had been listed with the Hoover Agency. Defendant Lloyd said that he personally had listed that tract with plaintiff Hoover in Carthage during 1957. On the other hand, plaintiff’s evidence was that saleslady Stuts-man had obtained the listing of the 23-acre tract from defendant Wilma in the same manner and at the same time, to wit, during September 1961, as the listing of the 30-acre tract had been obtained. And plaintiff here points out the permissible inference that, by directing the Hoover Agency to withdraw the 23-acre tract from the market, defendant Lloyd recognized the validity of that listing while at the same time denying the validity of the listing of the 30-acre tract, although both listings were (so plaintiff insists) made by defendant Wilma contemporaneously.

As defendants emphasize, a mere volunteer is not entitled to a broker’s commission [Windsor v. International Life Ins. Co., 325 Mo. 772, 779, 29 S.W.2d 1112, 1115(2); Delahunt v. Thuener, 317 Mo. 465, 296 S.W. 86; A. J. Meyer & Co. v. Schulte, Mo.App., 189 S.W.2d 183, 190(10)] and a contract of employment is essential to recovery of compensation by a broker. Windsor, supra, 325 Mo. loc. cit. 779, 29 S. W.2d loc. cit. 1115(1); Arthur L. Kniffen Real Estate Co. v. Accardi, Mo.App., 365 S.W.2d 84, 87(1); 8 Am.Jur., Brokers, § 158, p. 1077. But the contract may be and frequently is implied. To raise an implied contract, “ ‘First, the services must have been performed under such circumstances as to give the recipient thereof some reason to think they are not gratuitous, nor performed for some other person, but with the expectation of compensation from the recipient. * * * Second * * * the services must have been beneficial to the person sought to be made liable.’ ” Windsor, supra, 325 Mo. loe. cit. 781, 29 S.W.2d loc. cit. 1116; Segnitz v. A. Grossenbach Co., 158 Wis. 511, 514, 149 N.W. 159, 160; annotation 43 A.L.R. 842, 843. See Longmire v. Diagraph-Bradley Stencil Mach. Corp., Mo.App., 176 S.W.2d 635, 644(3); 8 Am.Jur., Brokers, § 159, p. 1078.

“[W]here the conversation of the parties, 'their subsequent conduct, and the circumstances of the transaction show the vendor must have known that the services were offered for his benefit — were to he employed in his behalf alone — and that they were being offered by the broker with the expectation of receiving the usual commission for them, the acceptance by the vendor will imply an agreement for the employment of the broker as his agent, and will be sufficient to establish between them the confidential relation of principal and agent. * * * Generally they (brokers) do not work except for pay, and, when they tender their services, it is commonly understood the usual commission will be demanded if the services are accepted and prove beneficial. To support their claim for compensation, plaintiffs were not required to do more than to show from all the facts and circumstances that defendant knew they were brokers, who, in the prosecution of their vocation, were offering their services to him for his benefit, and were not approaching him as the representative of the other party to the proposed transaction. * * * ‘When a person under such circumstances avails himself of the services of another, the jury may, from all the circumstances, infer a previous request.' ” Ballentine & Boone v. Mercer, 130 Mo.App. 605, 616, 109 S.W. 1037, 1041(6).

“ ‘Ordinarily, when one person performs valuable services for another who accepts the same, and the circumstances surrounding the transaction do not show the services were to be gratuitous, or, where one person performs services for another at the latter’s request, the law implies a contract to pay their reasonable value. Crain v. Miles, 154 Mo.App. 338, 134 S.W. 52; Horn Trunk Co. v. Johns (Mo.App.) 202 S.W. 427. True, no one can make another his debtor without the latter’s consent, but even in the absence of a specific request, ordinarily, if one stands by in silence and sees another performing labor for him, of which he accepts and enjoys the benefits, a promise to pay may be inferred. (Citing cases) Where an act done is beneficial, the subsequent assent of the beneficiary will be sufficient evidence from which the jury will be authorized to find a previous request, and express assent is not necessary, since that may be inferred from the beneficiary’s knowledge of the other’s acts and the former’s silent acquiescence in them. Kerr v. Cusenbary, 60 Mo.App. 558, 563; Strother v. De Witt, 98 Mo.App. 293, 298, 71 S.W. 1129.’” Lewis v. Thompson, 231 Mo.App. 321, 328, 96 S.W.2d 938, 942; Piper v. Allen, Mo.App., 219 S.W. 98, 101(7, 8). In this connection, see Bennett v. Adams, Mo.App., 362 S.W.2d 277, 280-281(7), and cases cited in footnote 4.

In considering the instant case in the light of the foregoing principles, we bear in mind that, although we “review the case upon both the law and the evidence as in suits of an equitable nature” [Rule 73.01(d); Sec. 510.310(4)], the same antecedent statute and superseding rule direct that “[t]he judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” And we remain mindful that, although we independently consider the evidence and reach our own conclusions, we usually defer to the findings of the trial court where, as here, the evidence upon salient factual issues is in irreconcilable conflict and the decision necessarily must rest upon the credibility of the witnesses and the weight to be accorded to their testimony. In re Petersen’s Estate, Mo., 295 S.W.2d 144, 148(3); Leggett v. Missouri State Life Ins. Co., Mo. (banc), 342 S.W.2d 833, 850(2); Rector v. Tobin Const. Co., Mo.App., 351 S.W.2d 816, 820(1).

Without belaboring the facts, we think it clear that, under the authorities hereinbefore cited, the trial court reasonably could have found an implied agreement for employment of the Hoover Agency by defendants. Although there was no mention of the amount to be paid, the Hoover Agency became entitled to reasonable compensation for services rendered, if it was the efficient procuring cause of a sale of the 30-acre tract. Reitz v. O’Neil, Mo.App., 2 S.W.2d 178, 180(7); Stanley v. Whitlow, 181 Mo.App., 461, 463, 168 S.W. 840, 841 (1); Kinder v. Pope, 106 Mo.App. 536, 80 S.W. 315(1). And the only evidence on this subject was that six per cent of the sale price of $9,000, or $540 (the amount of the judgment), would be reasonable compensation.

Defendants contend (in the “argument” section of their brief) that, if there was any employment of the Hoover Agency, it was to sell the 30-acre tract for $10,000 and that, in the absence of a showing that the Tibbetts were willing to pay that sum, defendants had a right to sell to them for $9,000. After noting “much apparent confusion in the cases,” our Supreme Court has suggested that, in such circumstances, “the true rule” probably is that determination of whether the broker is entitled to a commission “depends on whether or not the owner has actually made the obtaining of a certain price a condition of paying a commission.” Martin v. Mercantile Trust Co., Mo., 293 S.W.2d 319, 326(5), and cases there cited. In this connection, we recollect that, when saleslady Stutsman talked with defendant Wilma on September 16, the latter quoted the price “they were asking for the 30-acre tract” as “$10,000 after it •was cleaned” — “they were going to clean it up.” From the testimony of defendant Lloyd, we are informed that, when salesman Thomas showed the dwelling house on September 23, it still was in such condition that substantial redecoration and repairs were required to make it tenantable. It is not unreasonable to infer that if $10,000 was to have been the “asking” price after the dwelling house had been put in tenant-able condition, defendants might have been willing to sell for less prior to redecoration and repairs. In the peculiar and particular circumstances of this case, we think that it was an issue of fact whether sale at the “asking” price of $10,000 quoted by defendant Wilma to saleslady Stutsman “was imposed as an express condition to the payment of compensation” to the Hoover Agency [Martin, supra, 293 S.W.2d loc. cit. 326] and that we properly should defer to the finding of the trial court, inherent in the judgment for plaintiff, that payment of compensation was not conditioned upon production of a prospective purchaser ready, able and willing to pay $10,000. Contrast Gibson v. Pleasant Valley Development Co., 320 Mo. 828, 8 S.W.2d 828; Hughes & Thurman v. Dodd, 164 Mo.App. 454, 146 S.W. 446.

In other words, we are of the .opinion that this situation falls within the general rule that, if property is listed with a broker for sale at a certain price and the broker is the efficient procuring cause of a subsequent sale, he is entitled to compensation for his services even though the final negotiations are conducted by .the owners, who, in order to make a sale, accept a price lower than that quoted to the broker. This rule recognizes that, as a practical matter, “[i]f the agent employed to sell finds the purchaser, he has performed the principal service of his employment” [May v. Avansino, Mo.App., 185 S.W. 1178, 1180; Brewer v. Gowin, Mo.App., 241 S.W.2d 275, 280] and that a contrary holding would make it easy and convenient for any owners to relieve themselves of liability to pay for broker’s services by the simple expedient of initially pricing property at one figure and thereafter selling at a slightly-reduced price although to a purchaser produced by the broker. It may be appropriate to observe here that instant defendants-appellants do not undertake to present, even in the “argument” section of their brief, any issue as to whether the Hoover Agency was the efficient procuring cause of sale of the 30-acre tract to the Tibbetts, or as to revocation of the broker’s agency, or as to the broker’s abandonment of the Tibbetts as prospective purchasers.

In their argument,” defendants do assert that certain answers by the Tibbetts, called as plaintiff's witnesses, demonstrate that, in showing the 30-acre tract, the Hoover Agency acted as agent for the Tibbetts and not for defendants; and, on the premise that plaintiff was bound by such testimony, defendants insist that they could have no liability herein. Windsor, supra, 325 Mo. loc. cit. 781, 783, 29 S.W.2d loc. cit. 1116(5), 1117(8, 9). If the language put in the Tibbetts’ mouths on cross-examination were fairly susceptible of the construction urged by defendants (which we doubt), nevertheless saleslady Stutsman specifically denied that she was acting on behalf of the Tibbetts and the testimony of salesman Thomas tends to contradict defendants’ theory. Furthermore, the Tib-betts definitely stated that they were not to pay a commission to the Hoover Agency and that “the commission, if any,” was to be paid by the owners of any property purchased by them. Cf. Miller v. Gotsman, Mo.App., 253 S.W.2d 407, 410(2). “ * * * [A] plaintiff is not bound by the testimony of his own witnesses in so far as such testimony is contradicted by a plaintiff’s other evidence” [Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, 298(4)] or “ ‘where there are other facts and circumstances in the case from which the jury may draw a contrary inference.’ ” Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, 50(2); Colley v. Cox, Mo.App., 266 S.W.2d 778, 786. Even if this point were raised properly, it would be without merit.

Being unable to say, after painstaking examination of the record, that the judgment for plaintiff was “clearly erroneous,”" it becomes our plain duty to affirm it. Rule 73.01(d); Sec. 510.310(4). It is so ordered.

RUARK, P. J., and HOGAN, J., concur-

      . All statutory references are to RSMo 1959, V.A.M.S., and all references to rules are to the Supreme Court Rules of Civil Procedure, V.A.M.R.

      . Wipfler v. Basler, Mo., 250 S.W.2d 982, 985(4); Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 102(11); State ex rel. Joslin v. School Dist. No. 7 of Jasper County, Mo., 302 S.W.2d 497, 500(7); Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 42(4); Oertel v. John D. Streett & Co., Mo.App., 285 S.W.2d 87, 98(8).

      . Nibler v. Coltrane, Mo., 275 S.W.2d 270, 274(5); State ex rel. State Highway Com’n. v. Warner, Mo.App., 361 S.W.2d 159, 162(3); State ex rel. State Highway Com’n. v. Harrison, Mo.App., 311 S.W.2d 104, 108(4).

      . Walker v. Thompson, Mo., 338 S.W.2d 114, 116-117 (6, 7); Magenheim v. Board of Education of School Dist. of Riverview Gardens, Mo., 340 S.W.2d 619, 621 (3); Hardy v. McNary, Mo., 351 S.W.2d 17, 20(4); Kirkwood v. City of St. Louis, Mo., 351 S.W.2d 781, 787(13); Turner v. Calvert, Mo., 315 S.W.2d 118, 120(2); Mario Coil Corp. v. Grand Park Corp., Mo.App., 348 S.W.2d 610, 612-613(4, 5); State ex rel. Sisson v. Pelker, Mo.App., 336 S.W.2d 419, 420(1); Wilder-muth v. Fred Medart Mfg. Co., Mo.App., 330 S.W.2d 126, 128(2); Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481.

      . Axsom v. Thompson, 239 Mo.App. 732, 197 S.W.2d 326, 329(1); Julius Haller Realty Co. v. Jefferson-Gravois Bank, Mo.App., 144 S.W.2d 174, 176(2); Studt v. Leiweke, Mo.App., 100 S.W.2d 30, 33-34(1); Bopp v. Jetama Inv. Co., 231 Mo.App. 815, 96 S.W.2d 877, 880(5); Rowland v. Progressive Inv. Co., Mo.App., 202 S.W. 257, 258 (2); May v. Avansino, Mo.App., 185 S.W. 1178, 1180(2, 4); Smith v. Truitt, 107 Mo.App. 1, 80 S.W. 686, 687 (1); annotation 46 A.L.R.2d 848, 852; 8 Am.Jur., Brokers, § 189, p. 1100; id., § 190, p. 1101.

      . Martin v. Mercantile Trust Co., Mo., 293 S.W.2d 319, 326; LeCompte v. Sanders, Mo.App., 229 S.W.2d 298, 302; Axsom, supra, 197 S.W.2d loc. cit. 329: Hovey v. Aaron, 133 Mo.App. 573, 113 S.W. 718-721; annotation 12 A.L.R.2d 1360, 1372.