author: WOLFE, Presiding Judge.

text:
    BARRETT PLAZA, INC., a Corporation, Plaintiff-Appellant, v. NORTHWESTERN MUTUAL INSURANCE COMPANY and National Fire Insurance Company of Hartford, Defendants-Respondents.
    No. 32208.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.
    W. Munro Roberts, Jr., Harold L. Satz, Theodore D. Ponfil, Satz & Ponfil, St. Louis, for plaintiff-appellant.
    F. Douglas O’Leary, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for defendants-respondents.
   WOLFE, Presiding Judge.

This is an action against two insurance companies to recover a loss of $2,500 sustained by the plaintiff when a sign that it owned was destroyed by windstorm. The case was submitted upon a stipulation of facts in the trial court and there was a judgment in favor of the defendants. The plaintiff prosecutes this appeal.

The facts as stipulated are as follows:

“Come now plaintiff and defendants and stipulate to the following facts:
“1. Plaintiff is the owner of premises located at 2218-2228 Big Bend Boulevard in Richmond Heights, Missouri. Attached hereto and marked Exhibit ‘C’ is a photograph showing said premises.
“2. As indicated in the photograph, there is a one-story commercial building located on said lot. The building houses several small shops and stores. The building is set back about 75 feet from the street. The area in front of the building is used as a parking lot for the customers of the various tenants. There is a large neon advertising sign located on the parking lot near the public sidewalk adjacent to the street, approximately 60 feet in front of the building. Underground wires run from the building to the sign and supplies electric current. These wires are encased in piping or conduit to protect them from the elements.
“3. On February 10, 1959, a tornado struck portions of the St. Louis Metropolitan Area and the resulting winds caused damage to plaintiff’s sign in the amount of Two Thousand Five Hundred and no/100 Dollars ($2,500.00).
“4. Defendants had issued policies of insurance which provided certain coverage for the premises. Said policies are attached hereto and marked Exhibits ‘A’ and ‘B’.
“5. Plaintiff requested payment for its loss under the policies, but defendants have denied liability.
“6. The aforesaid policies of insurance were in effect and the plaintiff has complied with all conditions.”

The pertinent parts of the provisions of the policies relied upon are as follows:

“Unless liability therefor is assumed in the form attached to this policy, or by endorsement hereon, this Company shall not be liable for damage to the following property: * * * (d) * * * signs * * *

In the “Building and Contents Form” the following appears: '

“Building Coverage: When the insurance under this policy covers a building, such insurance shall cover on the building, including foundations * * *, machinery used for the service of the building only, lighting, ventilating, * * * ; awnings, signs and metal smokestacks (except as provided below), screens, storm doors and windows if the property of the owner of the building and belonging to said building, while attached thereto or stored therein or in other buildings on the premises; also all permanent fixtures, stationary scales and elevators, belonging to and constituting a permanent part of said building.”

The policy covers only signs attached to or stored in the insured building. It is a contention of the plaintiff-appellant that the language of the policies afforded coverage for its sign which was sixty feet from the building. Appellant bases its contention on the fact that electric wires in a conduit underneath the paving in the parking lot ran from a connection in the insured building to the sign. From this fact the appellant asserts the sign was “connected” to the building and therefore was “attached” to the insured building and was consequently covered by the policies.

Appellant correctly states the established rule that in cases of an ambiguity in an insurance policy it is construed favorably to the insured. Meyers v. Smith, Mo., 375 S.W.2d 9; Swaringin v. Allstate Insurance Company, Mo.App., 399 S.W.2d 131; Tenney v. American Life and Accident Insurance Co., Mo.App., 338 S.W.2d 370; McKee v. Travelers Insurance Company, Mo.App., 315 S.W.2d 852.

• Appellant'cites us to a definition of “attached” contained in Webster’s 7th New Collegiate Dictionary, which in part defines the word as “connect, tie.” In Merriam Webster’s 3rd International Dictionary “attach” is in part defined as “bind, fasten, tie.” It is conceded by the appellant that it has found no case in this or other jurisdictions wherein a policy such as this has been construed as it contends this one should be, but we are cited to Still v. Connecticut Fire Ins. Co., 185 Mo.App. 550, 172 S.W. 625. This case simply holds that a silo, constructed so as to be a part of a barn covered by insurance, was also insured. We find no analogy to the contentions here asserted. Another case cited is Montana Stables v. Union Assur. Society of London, 53 Wash. 274, 101 P. 882. The policy therein considered insured a barn and additions attached thereto. The main building was connected by an excavation under an alley to an addition in which the loss occurred. The buildings had a common floor and were used as one structure. The Supreme Court of Washington held that it was an attached addition under the terms of the policy. Again we find no analogy to the facts here considered.

In the case of Williams Mfg. Co. v. Insurance Co. of North America, 93 Vt. 161, 106 A. 657, at 1. c. 659, the Supreme Court of Vermont considered the words “attached” and “connected” in the following statement:

“ * * * The boiler house was ‘attached’ to the veneer mill in a more usual sense of the word ‘attached’ than was the sawmill. The boiler house was ‘connected’ with both the veneer mill and the sawmill, but while the words ‘connected’ and ‘attached’ sometimes have the same meaning, they are not coterminous in signification. For instance, one speaks of a dwelling house as being connected with a sewer, but never as being attached to a sewer, of offices being connected by telephone, but not of one being attached to another by telephone. When a building is spoken of as being attached to another, it is generally meant that it is annexed to that other. * * * ”

The words may in some usages have the same meaning but in others they carry different connotations.

It seems that the appellant has ignored a cardinal rule of construction which provides that the language used in an insurance policy must be given its plain meaning and when the plain meaning is clearly expressed no ambiguity is present for construction. Swaringin v. Allstate Insurance Company, supra; Meyers v. Smith, supra. The plain meaning of the words “a sign attached to a building” means that the sign is in some way fastened to a building. The electric wire was not for the purpose of attaching or connecting the sign to the building but to supply power to the lights on the sign.

The trial court properly held that the sign was not attached and therefore not covered by the policy of insurance and the judgment is affirmed.

ANDERSON and RUDDY, JJ., concur.


source: Caselaw Access Project

author: RUDDY, Judge.

license: Public Domain

text:
    The STATE of Missouri at the relation of A. M. T., by F. W. T., Her Natural Guardian, F. W. T. and L. T., Relators, v. Honorable Noah WEINSTEIN, Judge of the Circuit Court of St. Louis County, Missouri, Juvenile Division, Respondent.
    No. 32481.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.

      Jerome M. Steiner, Clayton, for relators.
    Jack E. Koslow, Asst. Pros. Atty., Corinne R. Goodman, Clayton, for respondent.
    Norman H. Anderson, Atty. Gen., John C. Klaffenbach, Asst. Atty. Gen., Jefferson City, for amicus curiae.
   RUDDY, Judge.

This is an original proceeding wherein relators seek to prohibit respondent, the Honorable Noah Weinstein, Judge of the Juvenile Division of the Circuit Court of St. Louis County, from proceeding in a cause now pending in said division of said court. Honorable Norman H. Anderson, Attorney General of the State of Missouri, requested and was granted leave to file a Brief Amicus Curiae to assist this court in developing the issues of law and fact in this proceeding. In accordance with the leave granted the Brief Amicus Curiae was filed by said Attorney General. We use only the initials of the minor child and the relators herein when referring to them in order to preserve the anonymity of the minor child involved.

In the Petition for Writ of Prohibition filed by relators in this court on December 20, 1965, they alleged that on the 9th day of November, 1965, they were served with Summons “only” in the cause entitled ‘In the Interest of Baby Girl, S-, a Minor Child under the Age of 17 Years,’ ” and bearing no docket number of the cause pending in the Circuit Court of the County of St. Louis (Juvenile Division). A copy of said Summons was attached as Exhibit A to the petition.

Relators further alleged that on the 17th day of November, 1965, they received a letter dated November 16, 1965, signed by the respondent herein, ordering them to appear for hearing on December 13, 1965, at 9:30 A.M. in the Juvenile Division of the Circuit Court of St. Louis County, Missouri. A copy of said letter was attached to the petition and shown as Exhibit B.

Relators further alleged that on the 1st day of December, 1965, they filed, in said Juvenile Division, a Motion to Dismiss the action as to them on the grounds that:

“a. There was no service or process, pursuant to Section 506.110 R.S.Mo.1959, and Supreme Court Rule 54.04;
“b. That Summons was improperly issued in violation of Section 506.130 R.S.Mo.1959, Section 211.091, Section 211.101, Section 211.111, R.S.Mo.1959, and Supreme Court Rule 54.02;
“c. That the Petition filed in said cause fails to state a cause of action for which the Court can grant relief on any grounds;
“d. That Relators have in their custody only their own legal child, as shown by copy of Birth Certificate filed therewith, showing that the Court lacked jurisdiction to hear and determine any alleged cause of the merits. * * * ”

A copy of said Motion to Dismiss was attached to the petition and shown as Exhibit C.

It was further alleged in said petition that after a hearing on said Motion the respondent on the 13th day of December, 1965, entered an order overruling said Motion to Dismiss, and directed relators to appear and respond to said petition on January 17, 1966, at 9:30 A.M., and to otherwise proceed with the case on the merits.

It was further alleged that for the reasons above set forth and as stated in the Motion to Dismiss, respondent had no jurisdiction to proceed with the said alleged cause of action.

As alleged by relators, Exhibit A, the Summons referred to, does not contain any docket number, and although it summons and commands the relators to appear before the Juvenile Division of the Circuit Court, County of St. Louis, it does not contain any date or time for their appearance. The Summons commanded relators:

“ * * * to bring the child Baby Girl S- charged with being within the applicable provisions of 211.031 of the Statutes made and approved, and to then and there abide such order touching the welfare of the said child as to the Court may seem meet and proper. And in this you shall in nowise fail under legal penalty.”

Exhibit B, referred to in the petition filed in this Court, is a letter signed by respondent and addressed to the relators informing them that file number 23454 in the matter of Baby Girl S-:

“ * * * indicates that you were served in the above matter on November 9, 1965.
“Accordingly, this case is set for hearing on December 13, 1965, at 9:30 a. m. in the Juvenile Court of St. Louis County at 701 S. Brentwood Blvd., Clayton, Missouri.
“You should appear at the hearing with your attorney.”

Respondent was granted permission to file suggestions in opposition to the issuance of the requested Preliminary Writ of Prohibition. Thereafter, we issued our Preliminary Writ of Prohibition and directed the respondent to show cause why final judgment in prohibition should not be entered and directed respondent to take no further action in the premises until the further order of this Court.

Thereafter, respondent filed his return and also filed a certified copy of the petition in cause number 23454 pending before respondent in the Juvenile Division of the Circuit Court, County of St. Louis styled, In The Interest of S-, Baby Girl, a child under 17 years of age. This petition was filed on November 5, 1965, by the Juvenile Officer and contained allegations showing that the petition had been duly authorized and that the named child, giving the birth date and residence, was within the County of St. Louis, Missouri, and that the parent of the said child was Carolyn J. S., showing her residence in California. It further alleged that the persons having physical custody are F. & L. T. (Relators in the Prohibition Proceeding) whose residence was in St. Louis County. It was further alleged that “ * * * The said child is within the applicable provisions of Section 211.031 of the Revised Statutes of Missouri, as amended, V.A.M.S., in this, to-wit: Child is in need of care and treatment because child is without legal custody. See information contained in social file.” It was further alleged in said petition pending in the Juvenile Court that “ * * * The conditions and surroundings of said child, as alleged aforesaid, are such that her welfare requires that her custody be immediately assumed by the Court,” and that “ * * * Said child cannot receive in her own home, such care, guidance and control as will conduce to the welfare of said child, and the best interests of the State as required by Sections 211.011, through 211.421 of the Revised Statutes of Missouri, as amended [V.A.M.S.]” The said Juvenile Officer, Ralph L. Smith, prayed the Court for an order of custody of said child to be assumed immediately, and that the Summons be so endorsed, and that the Court inquire into the matter and make such orders, judgments, and decrees as were in the premises required. Said petition was duly sworn to by the said Ralph L. Smith, Juvenile Officer of the Court.

Also filed by respondent, in the Prohibition Proceeding before us, was a certified copy of an “Entry of Appearance” executed November 23, 1965, in the Juvenile Court, County of St. Louis, Missouri, in the matter of Baby Girl S-, a minor person and reads as follows:

“Jerome M. Steiner enters his appearance as counsel for F.W.T. & L.T. Permission requested to examine Legal file and Social File.
/s/ Jerome M. Steiner Atty.”

This entry of appearance and request contained the approval of the respondent herein.

During the oral argument of the proceeding before us Jerome M. Steiner, attorney for relators, admitted that he executed and filed his appearance as counsel for the relators and pursuant to his request an order was made permitting him to examine the legal and social files of the Juvenile Court in the matter of Baby Girl S-.

We issued our Preliminary Writ of Prohibition because relators’ petition and the suggestions filed seemed to show that respondent did not have jurisdiction of the persons of relators because of the apparent defective Summons served upon them. However, we were convinced that relators’ petition did not show a lack of jurisdiction of respondent of the subject matter before the Juvenile Court.

Respondent contends that relators entered a general appearance in the matter before the Juvenile Court and, therefore, they are no longer in a position to challenge the court’s jurisdiction of their persons. Relators make no comment in their briefs about the legal effect of the entry of appearance executed by counsel for relators. Clients may authorize an attorney to appear in court for them. He has implied authority to do anything necessary to the discharge of the purpose for which he was retained. The rules of law applicable to principal and agent control the relation between an attorney and his clients. It needs no citation of authorities to show that where an attorney appears for parties in an action, his appearance is recognized by the court and his authority will be presumed, to the extent of giving validity to the proceedings. The appearance in court of an attorney carries with it the presumption of authority to appear and act for his clients. Bowles v. American Brewery, 146 F.2d 842, 847, 7 Am. Jur.2d, Attorneys at Law, § 113, p. 117. He does not represent himself as an individual. He is in the proceeding as the representative and alter-ego of his clients. His acts and appearances are those of his clients and are regarded as having been done by, and binding on, the clients. The procedural acts of the attorney, done in the regular and orderly conduct of a case, are binding on the clients. 7 Am.Jur.2d, Attorneys at Law, § 120, p. 120. When he enters his appearance as attorney it is considered as done by the authority of the clients. Waltzinger v. Birsner, 212 Md. 107, 128 A.2d 617, l.c. 624. All proceedings taken by the attorney are considered- as approved by the clients and, therefore, as their acts. We have related the above as a prelude to a discussion of whether the attorney for relators, in executing his entry of appearance as counsel for relators and requesting permission to examine the legal and social file in the case, which request was made in accordance with the provisions of Section 211.321 of the Juvenile Code and which request, as we have pointed out, was approved by the respondent, effected a general appearance of the relators subjecting their persons to the jurisdiction of the Juvenile Court.

In 5 Am.Jur.2d, Appearances, § 5, p. 482, is the following:

“A general appearance is one whereby the defendant submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the court’s jurisdiction over his person. It is made by a party when he comes into court and appears in the case in any manner except specially for the specific purpose of challenging the jurisdiction of the court over his person.
“ * * * It has been said that the test of a general appearance conferring jurisdiction over the person is whether the defendant becomes an actor in the cause. * *

In the case of Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92, 94, the Supreme Court said:

“An ‘appearance,’ * * * means'the coming into court by either party to the action ‘but in its common and particular use it signifies an overt act by which a person against whom suit has been commenced submits himself to the jurisdiction of the court, and is his first act therein.’ 6 C.J.S., Appearances, § 1, page 4. The appearance may be express or it may be implied from the defendants ‘taking, or agreeing to some step or proceeding in the cause beneficial to himself * * * other than one contesting only the jurisdiction, * * 6 C.J.S. Appearances § 12, page 17. * * * ”

Also see State v. Weinstein, Mo., 295 S.W. 2d 62, 66, and Bierser v. Woods, 347 Mo. 437, 147 S.W.2d 656.

In the case of State ex rel. Compagnie Générale Transatlantique v. Falkenhainer, 309 Mo. 224, 274 S.W. 758, 1. c. 761, the court quoting from 4 C.J., § 27, p. 1333, said: “ ‘Broadly stated, any action on the part of a defendant, except to object to the jurisdiction over his person which recognises the case as in court, will constitute a general appearance.’ ” (Emphases ours) 6 C.J.S. Appearances § 13, p. 42.

If a party does any act which recognizes the case as in court, he submits to the jurisdiction of the court. This means any act that recognizes the case as pending in court, such as the seeking of some affirmative relief at the hands of the court. 5 Am.Jur.2d, Appearances, § 16, p. 491, 492, explains the reasoning behind this doctrine, where it is said:

“ * * * The reason underlying the doctrine is that no such action can he taken unless the court has jurisdiction of the defendant’s person, and he is not entitled to any such affirmative relief or favorable ruling unless the court has such jurisdiction. When he seeks such relief, he necessarily assumes the attitude that jurisdiction has been acquired, and having taken that position he is bound thereby, and will not be heard afterward to say otherwise. * * * ”

Applying what we have said to the facts of the instant proceeding we find that relators’ attorney requested permission to examine the legal and social file in the Juvenile Court proceeding. Pursuant to Section 211.321 of the Juvenile Code these records shall be open for inspection only by order of the court to persons having a legitimate interest therein. The request made by the attorney was affirmative in nature and called for affirmative action on the part of the court. It was necessary for the court to determine that the attorney representing these relators did have a legitimate interest in the legal file and the social file, and pursuant to the discretion lodged in him by said section the respondent took affirmative action beneficial to the relators when he approved their request. We are unable to see how relators can make such request of a court through their attorney, which shall be of such a character as shall justify the court in acting upon it, unless the relators are to be regarded as in some way making an appearance. Through their attorney they invoke the action of the court. The request was made in writing by their authorized representative and in our opinion that would constitute an appearance. It has been held that any action on the part of the defendant in a case, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance. The general rule is that an appearance for any other purpose than to question the jurisdiction of the court is general. In the case of Wechsler v. Davis, 209 Mo.App. 570, 239 S.W. 554, 1. c. 556, the court said:

“The rule is that, in order for one’s appearance to be special, the order, plea, or motion must expressly state that the appearance is only for the purpose of excepting to the jurisdiction, or, at least, the order, plea, or motion on its face must appear to be a special appearance for that purpose. (Citing cases).
“It is stated in 4 C.J. p. 1318, par. 5:
‘A defendant appearing specially to object to the jurisdiction of the court must, as a general rule, keep out of court for all other purposes. In other words, he must limit his appearance to that particular question or he will be held to have appeared generally and to have waived the objection.’ ”

In the case of Roberts v. American Nat. Assur. Co., 201 Mo.App. 239, 212 S.W. 390, 392, the court said:

“ * * * Of course, if defendant takes any step in court which involves, even by implication, a submission to, or an admission of, its power and authority to act in that case, and does this without first questioning the jurisdiction on account of improper venue, then the lack of jurisdiction on that account would doubtless be waived by such a course. * * * ”

In the same opinion the court said:

“If the complaint of lack of jurisdiction had been based on want of notice or defective or insufficient service, then no doubt the taking of depositions and the signing of a stipulation as to facts conceded would constitute a waiver of that defect. Because, such acts would necessarily imply that defendant was admitting that it had notice of the suit, and regardless of whether it had been properly served or not, it was proceeding as if service was regular. * * * ”

In the instant case the sole basis for rela-tors’ contention that the Juvenile Court does not have jurisdiction of their persons is that the Summons served upon them was defective. The action of the attorney for relators in requesting and receiving the permission mentioned necessarily implied that relators were admitting through their attorney that they had notice of the proceeding and their attorney was entering his appearance and seeking favorable action from the court on his request. And as said in the aforementioned case regardless of whether relators had been properly served or not, the attorney’s entry of appearance and request of action of the court was a proceeding as if service was regular. It is the rule, supported by many authorities, that when a defendant or other party to a law suit contends that the court has no jurisdiction over his person because of a lack of or defect in the service of process, his motion or application or entry of appearance of himself or of his attorney for that purpose must be confined to the jurisdictional' question and if the appearance is not limited to that purpose alone and he appears for another purpose he is held to have appeared generally. Such a general appearance cures any and all defects of service of process. As we have pointed out, there exists a presumption that an appearance is general if the record fails to show that it is otherwise. As will be noted the motion of relators in the Juvenile Court to dismiss the action wherein they attack the jurisdiction of the court over their persons, was filed subsequent to the appearance of relators’ counsel and request for action by the court. A special appearance for the purpose of attacking the jurisdiction of the court can be made only before' a general appearance. Once a general appearance is made, a special appearance can not be made that will effectively question the court’s jurisdiction over these relators’ persons. 5 Am.Jur.2d, Appearances, § 13, p. 490.

In view of what we have said we rule that the entry of appearance of Jerome M. Steiner, as attorney for relators, coupled with his request for some action on the part of the court, constituted a general entry of appearance and had the effect of waiving any defects in the Summons served upon the relators and therefore the Juvenile Court had jurisdiction over the persons of the relators.

Before leaving our discussion on this matter we point to the failure of re-lators’ attorney to disclose, at the time he filed the relators’ Petition for Writ of Prohibition, the existence of the entry of appearance and request made of respondent. Had we been so informed our Preliminary Writ of Prohibition would not have been issued and thus the writing of this opinion would have been unnecessary and the consequent delay in the Juvenile Court proceeding would have been avoided. An attorney in his dealings with the court should always make full disclosures to the court and should never seek to mislead the court into unnecessary or unwarranted action by any artifice or concealment. We think it was the responsibility and duty of relators’ attorney to give us a frank and complete resume of all the actions he had taken in the Juvenile Court proceeding that was pending before respondent at the time said attorney filed relators’ Petition for Writ of Prohibition.

Relators continue to contend that the respondent does not have jurisdiction over the subject matter before the Juvenile Division of the St. Louis County Circuit Court. The petition filed November 5, 1965, by the Juvenile Officer stated that the child involved was within the applicable provisions of Section 211.031 of the Juvenile Code as amended, and that the ‘‘ * * ⅛ child is in need of care and treatment because child is without legal custody.” Section 211.031, supra, provides that the Juvenile Court shall have exclusive original jurisdiction in proceedings involving any child who may be within the county who is alleged to be in need of care and treatment because: “the child is otherwise without proper care, custody or support.” This jurisdiction attaches over any child regardless of whether or not the child be natural born, adopted, or held in unlawful custody. The petition was duly authorized as required by Section 211.081 and sets forth the requirements of 211.091, and also sets forth allegations questioning not only the custody of the child, but also the care, guidance, and welfare of the child. All other allegations necessary to confer jurisdiction on the Juvenile Division of the St. Louis County Circuit Court are contained in the petition and, therefore, confer jurisdiction on the respondent over the subject matter.

However, relators seem to rest their contention that the Juvenile Division of St. Louis County Circuit Court does not have jurisdiction to act in this matter on a decree of adoption granted to them in the Circuit Court of Illinois on September 24, 1965. Relators contend that respondent is attempting to act in violation of Article IV, Section 1 of the Constitution of the United States which requires that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. In this connection they state that “Respondent, although being apprised that on September 24, 1965, the Circuit Court of Marion County, Illinois, granted a Decree of Adoption whereby Baby Girl S_, a Minor, and relator in the present case was adopted by Mr. and Mrs. F.W.T., husband and wife, in accordance with the Laws of the State of Illinois, on December 13, 1965, overruled Relators’ Motion to Dismiss * * They contend that despite the fact this matter was brought to the attention of respondent at the time they presented their Motion to Dismiss respondent overruled their said motion. This contention of relators is rather puzzling inasmuch as there is nothing in the record to support relators’ contention and there is no showing that the Juvenile Court has as yet heard testimony or received evidence regarding any possible issue of full faith and credit in connection with the alleged decree of adoption. The puzzle becomes greater when we note that relators’ Motion to Dismiss presented to the respondent did not contain any allegation regarding a decree of adoption; instead, it stated “That Relators have in their custody only their own legal child, as shown by copy of Birth Certificate filed therewith, * * There is nothing before us to show that the lower court failed to give full faith and credit to the alleged decree of adoption obtained in Illinois. What relators have done is to set up an imaginary issue and then proceeded to assail it. The so called issue raised by relators regarding “full faith and credit” of the adoption decree is not properly before this court. Moreover, such an issue could only come before the Juvenile Court in connection with the assertion of an affirmative defense in response to the charge that relators hold the child without legal custody. The assertion of such an affirmative defense would in no way deprive the respondent of jurisdiction over the subject matter of the proceeding pending before him. ■

We rule that the Preliminary Writ of Prohibition was improvidently issued and should be quashed. It is so ordered.

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


author: ANDERSON, Judge.

text:
    In the Matter of Caroline Mary BROOKS and Irene Marie Brooks, also known as Caroline Mary Doe and Irene Marie Doe. Floyd BROOKS and Ida Irene Brooks, Petitioners-Appeilants, v. DIVISION OF CHILDREN’S SERVICES OF the DEPARTMENT OF WELFARE OF the CITY OF ST. LOUIS, Respondent.
    No. 32212.
    St. Louis Court of Appeals. Missouri.
    Jan. 17, 1967.

      Dewey S. Godfrey, Jr., St. Louis, for petitioners-appellants.
    Thomas F. McGuire, City Counselor, John J. Fitzgibbon, Daniel T. Tillman, Associate City Counselors, St. Louis, for respondent.
   ANDERSON, Judge.

This is an appeal from a judgment of the Juvenile Division of the Circuit Court of the City of St. Louis. The proceeding was initiated by Floyd Brooks and Ida Irene Brooks, husband and wife, filing a petition in said court in which they sought an order of transfer of legal custody and adoption of two children then in their physical custody without previous order of court. Raymond Howard, a member of the bar, was appointed guardian ad litem for said children. Thereafter, the Juvenile Officer of said court filed a petition alleging that said children were neglected within the meaning of Section 211.031, RSMo 1959, V.A.M.S. The issues raised by both pleadings were tried together. At the conclusion of the hearings, the court denied the Brooks’ petition but sustained the petition filed by the Juvenile Officer, and ordered said children placed in the care, supervision and control of the Division of Childrens Services. Floyd Brooks and Ida Brooks have appealed from the order and judgment denying their petition.

Floyd Brooks and Ida Brooks are husband and wife and have been married for 30 years. There have been no children born of their marriage. They live at 5037 Benedict Street in St. Louis. The house in which they live has four rooms and a bath. Mr. Brooks purchased this house in 1955. He and Mrs. Brooks have resided there since buying it. The purchase price was $4800, with monthly payments of fifty dollars on the purchase price. At the date of the hearing (September 28, 1964), Mr. Brooks was 55 years old and Mrs. Brooks, 49. Mr. Brooks at said time was employed by Lueking Transfer Company as a chauffeur and private watchman. He had been so employed for sixteen years. His weekly take home pay ranged between $191 and $210. Mrs. Brooks was not employed. At the time of the hearing, the older child, Caroline Mary was 5 years of age and the younger child, Irene Marie, was ten months old. The Brooks had given the children their names after receiving them into their home. They are not siblings.

Caroline was left at the Brooks’ home in August 1959. Mr. Brooks testified that he was at home at the time. Mr. Brooks testified that a woman came to the house with Caroline. Mrs. Brooks opened the door and this woman placed the child on a bed and said, “Either take the baby or I’m going to throw it in the garbage can.” He further testified that because the baby looked so dark he asked the woman if the child was colored, and she replied it was not, that she said the baby was a month old, “and out the door she went.”

Mr. Brooks further testified that he had never seen the woman before; that he had never ascertained her name or whether or not she was married; that the day she brought Caroline to the house was the first and last time he ever saw her; that he had not heard from her since; that from friends, he heard she was a just a tavern bum and “shacked up” with everybody; that these people did not know her name, but knew her from the description of her which he gave, “small blond.” Mr. Brooks did not reveal the names of these people.

There was testimony given by Marguerite Arand, a Deputy Juvenile Officer and social worker, which cast doubt as to the truthfulness of Mr. Brooks’ testimony. She stated that Mr. Brooks gave information to her and other workers which was different from that given by him in court.

She was requested by petitioners’ counsel to put that information in the record. She replied that this occurred in an interview by the “intake department,” which as appears in the transcript is as follows: “3/3/64; Mr. Brooks did the talking; stated that they had Caroline since she was four weeks old. He met the mother once prior to bringing the child to their home; denies the child is of mixed parentage; stated he did not know the mother of the child’s legal name; that he had this information written down at home and will call juvenile officer with this information.”

Miss Arand further testified that another worker, C. Atkins, contacted Brooks by phone and that Brooks in response to her inquiry stated he had misplaced the paper upon which he had written the needed information, and was still looking for it; that this worker called the Brooks’ home again on several occasions but got no response; that another worker, Ann Forder, went to the Brooks’ home on March 10, 1964, but Mrs. Brooks would not tell her where the children came from and denied that Caroline was a mulatto, but stated she was of French descent. Miss Arand further stated, “ * * * I talked to Mrs. Brooks in her home on 5/18/64. And, then I interviewed Mr. and Mrs. Brooks in the office on 5/21/64. * * * Mr. and Mrs. Brooks stated they knew nothing about the parents of Caroline and Irene Marie, but on further discussion with them Mr. Brooks stated he met the mother of Caroline on one occasion at the home of John Bradshaw, 2677 Olive Street. In the interview with Mr. Brooks he claimed he did not know the whereabouts of Mr. Bradshaw because he had not seen him for some time; however, in the file here we do have a letter of reference from Mr. Bradshaw. I also telephoned Mr. Bradshaw, and Mr. Bradshaw stated he did not know the mother of Caroline * * . *.”

Mr. Brooks testified he was not at home when Irene Marie was brought to petitioners’ home on June 28, 1962; that she was two or three da' old at the time; that he did not know her mother was coming, and that he thought she just arrived and knocked on the door like the other woman did.

Mr. Brooks further testified that he owned six dogs. Five of these dogs were kept in the basement and one upstairs. He also has eight birds, parakeets and canaries, and one cat. He stated he would get rid of these pets if the court so desired. He further testified that he and his wife were willing to raise both children as their own if the court should grant a decree of adoption. He stated he was unable to obtain the written consent of either of the parents of these children for the adoption.

Ida Irene Brooks testified that she was at home when Irene was brought to petitioners’ home. She stated that the woman who brought Irene identified herself as the mother of the child; that she had never seen .the woman before, nor had she seen her since; that she did not inquire of the mother how old the child was but from its looks it was two days old; that she made no effort to find out the identity of the mother; that the woman came in and said, “This is your baby,”; and that she did not ask the woman her name or ask her anything about the baby. Mrs. Brooks testified that she was home when the first child, Caroline, was brought to their house; that she had no conversation with the woman who brought Caroline; and at the present time, she did not know the name of this woman or where she lived.

Mrs. Brooks in her testimony, corroborated her husband’s account of the previous arrival of Caroline in their home. She stated she had no conversation with Caroline’s mother at the time.

Mrs. Brooks further testified that the children were healthy; that they were not then under the care of any physician, but that when they did require medical attention they were taken to Dr. Fowler or to Dr. Stein; that Dr. Fowler’s office was located at 5000 N. Broadway and Dr. Stein’s office was on Grand Avenue; that she was not employed and if a decree of transfer of custody and adoption should be granted she would treat these children as her own. She further testified that she was brought up in the Catholic faith, but did not have a chance to go to church on Sundays, because her husband works on that day; that her husband was not a Catholic and for that reason, their marriage was not accepted by the Catholic Church as being a legitimate one, but that she and her husband were thinking about being married in the Catholic Church. She further stated that if she and her husband were given the children they would be raised in the Catholic faith.

Miss Arand was asked by petitioners’ counsel to state to the Court what her investigation revealed. She replied:

“A. Yes, Sir. My recommendation is that — writer is recommending that the care, control and supervision of the Brooks children, also known as Doe, be granted to the Division- of Children’s Services, City of St. Louis, since a neglect petition has been filed on instructions from the Court, and is now pending at the Circuit Clerk’s office. Writer is not making a recommendation for the •transfer of custody for the following reasons.
“The Brooks claim they know nothing about the natural parents except that the children were left in their home by the mothers of the children. The Brooks have given exact birth dates. The information given in the court today differs from information given to other officers in the official file and some information given to me in interviews with the Brooks. It’s writer’s opinion that the Brooks do have some knowledge of the background of the children, but are refusing to divulge it. There is also a physician in the City of St. Louis who delivered the youngest child, Irene. His name is Dr. Leonard Stein. He did not give me exact information because he said it was confidential. But he did admit delivering the child. * * * these children were abandoned by their mothers in the Brooks’ home and this matter should have been referred to the St. Louis Police Department since they were abandoned children. Also, we have a letter from the Division of Pupil Welfare, Board of Education, which is attached to the file. That file — I mean that letter indicates that Mrs. Brooks was in special schools and also has an I.Q. of 52 as of October 7, 1926. * * * there are a number of animals in the home.
They have not been annoying me in any way, but according to the Health Department regulations I understand that if you have more than three dogs you’re supposed to have a kennel license. This is a very questionable situation, and I cannot recommend the transfer of custody. The children receive adequate food and probably protection. The Brooks do live in a commercial area east of Broadway which is not a desirable area in which to raise children that are to be adopted through a private placement.”

Miss Arand further testified that she had made three visits to the Brooks’ home. The children were clothed and as clean as could be expected; that they seemed to be properly fed; that Caroline seemed to be adjusted to the surroundings of the home and is very bright and alert, unusually so for her age; that she saw some of Caroline’s drawings which indicated some artistic capacity, quite capable of lettering with her hands, good dexterity and coloring.

Miss Arand also testified apparently from notes as follows:

“A. On 9/24/64 I telephoned Dr. Stein * * * Dr. Stein stated he knew the Brooks family very well. Writer asked him about the delivery of the Brooks’ children. He stated that he had delivered the child of a woman * * * who’s known as Irene Caroline Brooks. He had delivered this child to a woman who is on A.D.C., but she gave him a fictitious name. When writer tried to obtain further details, he stated he did not remember the name of the child, the hospital where the child was delivered, and so forth, and furthermore this information was confidential. He stated that this mother at one time wanted to get rid of the child during her early months of pregnancy, but he talked her into carrying the child through pregnancy. The mother threatened to abandon the child and so forth, but then she gave the child to the Brooks. He claims that he did not make the'placement because it’s illegal. He also stated that the oldest child was brought to him for medical attention by the Brooks when the child was six weeks old. The child is part colored and the Mexican or Cuban mother was going to abandon the child. Writer was unable to secure any more information regarding the children from him.”

Miss Arand further testified: “This child was delivered by Dr. Stein, and the record must be available at his office fictitious or not fictitious. If we had the name under which he delivered the child and the hospital, this information could be verified at the Bureau of Vital Statistics. It might give me a lead.” She further testified that Caroline seems to like the Brooks and seems to be happy with them, but that in adoptions one had to look to the future of the child and to the child’s growth and development; that almost anyone can help cultivate children but when they hit the upper grades is where you might find a difference in training children; that she felt that when a person is retarded the children may not have the best education that could be available to them; that she did not ascertain Mr. Brooks I.Q. and that she would not say there was any physical abuse or neglect of these children by the Brooks.

Miss Arand also gave the following testimony:

“Q. Did you interview any people in the neighborhood as to the type of home training the children were receiving?
“A. No. * * * Very frankly, being very honest with you, I am afraid to go into that area alone, and I don’t like the area. I came down in a cab the first time I visited there, and I walked up and I was worried. The last two visits I made I made with Mrs. Vergie Dunbar, a staff member, who has a car. If she would not have been able to go up with me I would have taken a cab. Frankly, I don’t like the neighborhood. I don’t like the environment * * * I wouldn’t say it’s a high crime (neighborhood) because there is not many people there, * *
“Q. So, actually you didn’t get any opinions from the neighborhood about the Brooks’ family?
“A. No. * * * Except by letters that we have in the file here. They’ve got quite a number of them.”

The record shows that a subpoena for Dr. Stein was issued, to which a return was made that Dr. Stein could not be found. Dr. Stein did not appear and did not testify at any of the hearings.

Petitioners introduced in evidence a communication from Dr. G. Fowler, an osteopathic physician of St. Louis. It was addressed: “TO WHOM IT MAY CONCERN,” and reads as follows:

“I examined Mrs. Brooks on 9/2/64 and found her to be in good.health and free of all communicable and contagious diseases. She is capable of taking care of children. We have known Mrs. Brooks for the past six or seven years as a patient. I found her good character and a fit mother.”

Petitioners also introduced a letter dated July 30, 1964 from Dr. Leonard P. Stein addressed to-petitioners counsel. Said-letter reads as follows:

“A general physical examination was performed on the 20th day of July, 1964. Mrs. Brooks was found to be physically fit and healthy. An I.Q. test and a psychological test was made and the following is the score.
“This woman has a good general knowledge of things about the house. Her knowledge of culinary art is very good. She knows a great deal about raising children. Her character is good. She brings the children regularly to church and keeps the children clean at home. I do not believe that the surprised inspection of the home is good for this woman. The husband as well as the wife have become frantic and nervous and apparently it appears that this policing of her home is not good for her.”

At the conclusion of the evidence the court stated: “ * * * this Court will find that the burden has not been sustained by the petitioners to show that the welfare of the children would best be served by approving a transfer of custody. This Court will find that the best interest of these children would be served at this time by a transfer of custody to Children’s Services of St. Louis, and will hereby order that the custody of these children be transferred to Children’s Services of St. Louis, * * Judgments were thereafter entered in conformity with these findings.

Appellants contend that the trial court erred in denying their petition for transfer of custody, and that this court should reverse the judgment and order the children restored to their custody. In support of this contention, it is urged that the evidence shows that these children were well taken care of by the Brooks; that they were well fed, and properly clothed; that they were well adjusted in the Brooks’ home; that Mr. and Mrs. Brooks loved both of these children as they would their own and that the children in turn loved Mr. and Mrs. Brooks; that there was no evidence which even tends to show that the best interest of the children would not be served by granting custody to Mr. and Mrs. Brooks as a preliminary step to legal adoption by them.

There is no dispute between the parties as to the principles of law applicable. These have been stated many times in the decisions of the courts of this state, the most recent of this court being, In Re Neusche, Mo.App., 398 S.W.2d 453. In that case, as in others which have dealt with the subject, it is pointed out that the primary and paramount consideration in such cases is the welfare of the child; that the future welfare of the child is of extreme importance; and that the burden of proof is upon those seeking custody of a child or children to establish the facts justifying a decree of transfer of custody. In that case it is also pointed out that the trial court has a wide discretion in such matters which will not be disturbed on appeal unless it can be said from the whole record that there was an abuse thereof. It is also provided by Civil Rule 73.01(d) V.A.M.R., that a judgment of a trial court shall not be set aside unless it is clearly erroneous.

We must indulge the presumption that the trial judge in reaching his decision considered all of the evidence, and that his findings were based solely upon the evidence adduced and that he was motivated by what he believed was best for these children. In Re Neusche, supra. We have reviewed the evidence and find that it is amply sufficient to support the conclusion that petitioners failed to sustain their burden of proof, i. e., that the best interest of the children would be served by placing them in the legal custody of petitioners for the purpose of adoption. We reach the same conclusion.

It is also urged that the court failed to take into consideration the recommendation of Mr. Howard, the guardian ad litem appointed by the court for the children. Mr. Howard was present at the trial and participated in the questioning of the witnesses. At the conclusion of the evidence, Mr. Howard stated he did not think that Miss Arand’s testimony made a prima facie showing that petitioners were unfit to have the custody of the children pending the adoption; that her evidence showed only how the children came into their possession which he doubted should he a determining factor on the issue of transfer of custody. He also stated, “I don’t think there’s been any evidence to prove that the Brooks lack the intelligence or the desire to raise these children in the way they should be raised.” The judge, after hearing Mr. Howard’s views, announced his decision. We find no merit to the point raised. The court was not bound by any opinion or recommendation of the guardian ad litem. The sole responsibility for a decision in the case rested upon the trial court. This he did after a full and complete hearing. In our opinion, his decision should be affirmed.

The judgment appealed from is affirmed.

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


author: DAVIS, Commissioner.

text:
    Marvin Isaac CHURCH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 3, 1966.
    Rehearing Denied March 3, 1967.
    Frank E. Haddad, Jr., Louisville, for appellant.
    Robert Matthews, Atty. Gen., Harold T. Hotopp, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Having been convicted of aiding and abetting another in armed robbery and sentenced to imprisonment for life pursuant to a jury’s verdict, the appellant asserts : (1) that he should have had a directed verdict of acquittal, and (2) that prejudicial error was committed in refusing to suppress evidence obtained from appellant after his arrest without a warrant.

Just before midnight, July 23, 1964, a lone man, held up and robbed at gun-point the manager of the Arch Club Packaged Liquor Store in Louisville. (For purposes of this opinion, all of the evidence reflects that the robber was not the present appellant, Church, but his co-defendant, Hardy) ,

Within a couple of minutes after Hardy had seized about $380-$385 and left the store, the- manager called the Louisville Police Department and reported the crime. He gave a general description of Hardy, including the manner in which he was dressed, although at that time Hardy’s identity was not known to the manager.

Lieutenant Leslie of the Louisville Police Department testified that while in the regular course of his police duties he learned via his police-car radio, from the police radio dispatcher, that a holdup had just occurred in the area of the Arch Club Liquor Store. The radio order was for a “uniform” police car to go to that store for immediate police attention. The officer proceeded to the store in response to the dispatch, and while en route the radio dispatcher gave further information, including a physical description of the holdup man, and that “ * * * they were believed to be seen leaving in a ’55 Plymouth.” The officer related that the “radio man put a pickup for a ’55 bluish green Plymouth leaving the scene of the robbery.”

The officer interviewed the victim of the robbery and obtained further details of the description of Hardy, along with the information that Hardy had used a “large chrome revolver with a 4-inch barrel” in the holdup. At about 1:30 a. m. (about 1 ½ hours after receiving the initial radio dispatch) this officer observed an automobile parked in the parking lot of a different liquor store. The officer placed the suspected car under observation, and noted that the car “pulled away and came back two times.” Then, as tersely put by the officer: “The third time it came back I assumed that it was the holdup car.”

The officer then described a chase of the suspected car, during the frenzied course of which the officer observed the appellant driving the fleeing Plymouth, accompanied .by Hardy. The officer saw a revolver as it was thrown from the right side of the appellant’s car, and later retrieved it. The revolver was described as looking “just like” the one used in the robbery.

Meanwhile, other police cars had joined the pursuit. Officer Leslie temporarily “lost” the quarry due to heavy dust, but another police car confronted the appellant’s car in such a way that the officers supposed they had successfully blocked its further passage; but when they undertook to approach it, the appellant’s car was hurriedly driven away. Shortly the appellant’s car crashed into the rear of a truck; the officers were still in pursuit, having fired some shots in an effort to halt the flight. When they arrived at the accident site they found the appellant’s car, but the appellant and Hardy had fled. However, the officers located appellant hiding in some bushes nearby, and placed him under arrest.

An officer testified that appellant admitted that he had been at the scene of the robbery, and offered to take police officers to the “other man” involved, but would not reveal the name of that man. Very shortly thereafter, the appellant withdrew his offer to take the officers to the other person involved. A search of appellant’s person incident to the arrest disclosed that he had currency amounting to $196 plus some silver. Appellant did not give any written statement, nor did the prosecution introduce any other statement made by him to the officers.

Appellant testified in his own behalf, and explained that he had been with Hardy since about nine o’clock on the night of the robbery. The two men had spent this time in various places drinking alcoholic beverages. In his own language, the appellant stated his version of the robbery:

“Then we come back and hit a couple more places and drank some more. I do not remember exactly what time it was then, but, anyway we were going to get another bottle—
Q 15. (interrupting) Where did you go ?
A. To the Arch Club Liquor Store, I did business there. And he went in to get a bottle, I sent him after a bottle, and in just a few minutes he come running out with a gun in his hand and told me to get out of there.
Q 16. Did you plan to rob that place with him?
A. No.”

According to appellant’s version, the first inkling he had of any robbery was when Hardy dashed from the liquor store with gun in hand. He explained that his subsequent actions in seeking to avoid being overtaken by the police cars were prompted by his having become frightened. He accounted for the money in his possession by saying thaat he had saved it with a view to buying a car. In this he was corroborated by his landlady.

The appellant strenuously argues that the foregoing state of facts fails to support a verdict against appellant as an aider and abettor of Hardy. He reasons that since an aider and abettor must share the criminal intent and purpose of the principal, the evidence falls short of establishing that vital element.

Appellant’s argument overlooks the fact that the issue as to whether Hardy acted “on his own,” or whether the appellant was indeed an aider and abettor may be submitted to the jury upon circumstantial evidence. See McQueen v. Commonwealth, Ky., 393 S.W.2d 787, 792-793, in which we pointed out that a directed verdict of acquittal (urged on substantially the same grounds presented here) was correctly denied because of the incriminating circumstantial evidence. Neither the court nor the jury was bound to believe appellant’s version, in face of the numerous actions of appellant which support the reasonable inference that appellant was a “full partner” in the entire criminal transaction. We regard the factual situation, which we have stated in detail, as fully warranting the submission of the issue as to whether appellant was an aider and abettor, and as abundantly sufficient to support the verdict.

Turning to the question whether the evidence obtained incident to the arrest of appellant should have been suppressed, we must look to decisions of the Supreme Court in light of Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933. In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, evidence obtained upon a warrantless arrest was held to have been properly admitted. The basis of the decision is that the arresting federal officers had “probable cause” to believe the arrested person had committed a felony within the meaning of the Fourth Amendment, U.S. Constitution. The “probable cause” there rested on information furnished by a “reliable paid informer.”

In analyzing the meaning of “probable cause” as a basis for a warrantless arrest on a felony charge, the following language found in the Draper opinion is pertinent:

“ ‘In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra, 338 U.S. [160] at page 175, 69 S.Ct. [1302] at page 1310 [93 L.Ed. 1879]. Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288 [69 L.Ed. 543, 555, 39 A.L.R. 790].” Ibid., 79 S.Ct. at 333, 3 L.Ed.2d at 332.

In Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, the Supreme Court reversed a conviction had in the Ohio court, on the basis that the arresting officer did not disclose the source of any reliable information upon which he acted. In Beck the Supreme Court observed that its facts did not bring it within the ambit of Draper, but the court did recognize the Draper rule, which it epitomized in these words:

“But in that case [Draper] the record showed that a named special employee of narcotics agents who had on numerous occasions given reliable information had told the arresting officer that the defendant, whom he described minutely, had taken up residence at a stated address and was selling narcotics to addicts in Denver. The informer further had told the officer that the defendant was going to Chicago to obtain narcotics and would be returning to Denver on one of two trains from Chicago, which event in fact took place.” Ibid, 85 S.Ct. at 227, 13 L.Ed.2d at 147.

We have no difficulty in concluding that the police officer in the case at bar had the right — indeed the imperative duty— to act upon the official information transmitted to him in normal course of police administration by the radio dispatcher. When that radio information was supplemented by information obtained from the robbery victim, and then confirmed by the abnormal and suspicious movements of the appellant and Hardy, we think it would be inconceivable to suggest that the officer lacked “probable cause.”

There is no inconsistency in our holding here and our decision in Scamahorne v. Commonwealth, Ky., 376 S.W.2d 686. In Scamahorne we held that a search incident to an arrest with a warrant was improper, because the affidavit upon which the warrant was issued failed to state facts sufficient to reflect that the affiant had probable cause to make the averments of the affidavit. In Scamahorne we noted and stated the rule to be:

“The arresting officer in felony cases must act upon facts within his own knowledge, or upon reliable information communicated to him by a third person. Mere belief or suspicion does not constitute reasonable grounds.” Ibid, 376 S.W.2d at 687.

In our view, it is clear that the officer in the case at bar acted upon reliable information furnished to him by a third person, coupled with his personally gained knowledge. This was more than “mere belief or suspicion.” It was enough.

The judgment is affirmed.

      . Although it will be assumed in this opinion that Hardy was the robber, nothing herein shall be deemed to be authoritative as to the guilt or innocence of Hardy as that question may be presented in any proceeding.


author: CULLEN, Commissioner. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mary MAIDEN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    As Modified on Denial of Rehearing Feb. 17, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Eugene H. Clark, Dept, of Highways, Paul L. Madden, Manchester, for appellant.
    Watson & Watson, Middlesboro, for ap-pellee.
   CULLEN, Commissioner.

Mary Maiden, a woman 62 years of age, fell and sustained injuries when she stepped into a hole or depression in Cumberland Avenue in the City of Middlesboro, a street which the Department of Highways had taken over and agreed to maintain as a part of the state road system. Mrs. Maiden’s claim for damages, filed with the Board of Claims, was rejected by the board on the ground that the Department of Highways was not negligent in failing to discover the defect in the street, and had no actual or constructive knowledge of the defect. On appeal to the circuit court judgment was entered reversing the order of the board and remanding the case to the board with directions to make an award of damages for permanent injuries. The Department of Highways has appealed from that judgment.

The block in which the accident occurred is in a busy commercial area. There is diagonal automobile parking on both sides of the street and during business hours the parking spaces usually are full. The hole or depression into which Mrs. Maiden stepped (about 24 inches long, 9 inches wide and 3 inches deep) was located almost entirely within the limits of a parking space (at the back end) and thus would be substantially concealed from view when a car occupied the space. (At the time of the accident the space was not occupied.)

There was evidence that the hole had been there for some six months. The maintenance foreman for the Department of Highways testified that it was his duty to inspect all state-maintained roads in Bell County; that he inspected Cumberland Avenue in Middlesboro at least every two weeks; and that his inspections were made when driving along the street in a pick-up truck during business hours. He said it would have been impossible to see the hole in question if there had been a car parked there, and that he had never made a “walk-around” inspection under the parked cars along this street. His inspections did not in fact disclose the hole.

We have held that the law applicable to municipal corporations in respect to defects in streets applies equally to the state (where immunity has been waived) in respect to defects in state highways. See Commonwealth, Dept, of Highways v. General & Excess Insurance Co., Ky., 355 S.W.2d 695. As concerns notice of defects, the rule is that if the defect has existed for such a period of time that the authorities, by exercise of ordinary care and diligence, should have discovered it, notice will be imputed. Commonwealth, Dept, of Highways v. General & Excess Insurance Co., supra. Since notice is imputed if a reasonable inspection would have disclosed the defect, the question of what constitutes a reasonable inspection frequently arises in applying the rule. See Commonwealth, Dept, of Highways v. Callebs, Ky., 381 S.W. 2d 623. That question is the key one here.

The Board of Claims held in effect that a “drive-along” inspection during business hours was reasonable, even though admittedly it would not disclose defects in the portion of the street occupied by parked cars. The circuit court held to the contrary. We think the question as presented here is one of law, on which the holding of the Board of Claims is not given special weight.

We think it is significant that the defect here was located in a busy commercial area. It was at a point which people normally would travel on foot in going to and around their parked automobiles. It was a defect in the street surface itself—not in some collateral adjunct. The evidence was that the parking areas normally were fully occupied during business hours, so there was little chance that the defect would be discovered by a “drive-along” inspection during those hours.

We cannot bring ourselves to the conclusion that an inspection which admittedly would not disclose defects in that portion of a busy city street set aside for parking purposes constituted a reasonable inspection. While the burden of inspection may be a serious problem to the Department of Highways, we do not feel that it would be too great a burden to require an inspection of streets in commercial areas to be made in “off” hours when the parking spaces are not occupied.

Several factors distinguish this case from Commonwealth, Dept, of Highways v. Callebs, Ky., 381 S.W.2d 623, where it was held that the Department of Highways did not have a duty to make a “walk-around” inspection of trees along the edge of the right of way. There the defect was not in the street itself but in the adjoining area; the area was a rural one with light travel rather than an urban one with heavy traffic; and there an effective inspection would have required the use of a considerable amount of time, whereas here an effective inspection would not have involved more time but only the selection of a different hour in which to make it.

It is our conclusion that the circuit court correctly held that the inspection made by the Department of Highways was not reasonable and therefore the department was chargeable with imputed knowledge of the defect.

We think the court erred, however, in adjudging that the department was liable in damages and that the claimant was permanently injured, and in directing that the Board of Claims make an award of damages upon remand of the case. The only issue before the circuit court was the correctness of the board's holding that the department was not chargeable with knowledge of the defect. The board had made no finding with respect to contributory negligence or with respect to injuries and those questions were not before the court.

To the extent that the judgment sets aside the order of the Board of Claims and adjudges to be erroneous the finding of the board that the Department of Highways was not chargeable with notice of the street defect it is affirmed; in all other respects it is reversed, with direction that upon remand of the case the Board of Claims determine all other appropriate issues and enter an order accordingly.

Judge MONTGOMERY dissenting.

MONTGOMERY, Judge

(dissenting).

I feel that the inspection made by the Department of Highways was reasonable and that there was no showing of negligence on its part. On the latter point there was sufficient evidence to sustain the Board of Claims’ finding of no negligence. Apparently the question of contributory negligence of Mary Maiden was neither considered nor determined.

The opinion undertakes to distinguish this case from Commonwealth, Dept, of Highways v. Callebs, Ky., 381 S.W.2d 623. However, in that case a tree located nine feet six inches from the edge of the hard surface of U. S. Highway 21-E, a busy thoroughfare, fell across the highway, striking a car. It fell at a place located five blocks from the Knox County Hospital and 250 feet north of the intersection of Knox Street and U. S. Highway 25-E in Bar-bourville. I do not think that the distinction sought to be made between this area and the area described in the majority opinion as a commercial area in the city of Mid-dlesboro is valid.

Further, the suggestion in the majority opinion that the inspection should be made in “off” hours is unreasonable. In a business area such as here conceivably the streets and parking places could be filled with cars until long after dark. The majority opinion says a “walk-around” inspection should have been made at a time when the streets were empty. This suggests an inspection after dark on foot, possibly with a flashlight. This does not seem reasonable to me, especially considering the time consumed in walking over all of the streets of a large business area.

For these reasons I respectfully dissent.


author: WADDILL, Commissioner.

text:
    A. M. KELLERMAN et al., Appellants, v. J. A. DEDMAN, d/b/a J. A. Dedman Realty Company et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.

      D. Paul Alagia, Jr., Brown & Alagia, Louisville, for appellants.
    Harold Y. Saunders, Saunders & Mitchell, Shelbyville, for appellees.
   WADDILL, Commissioner.

This appeal questions the correctness of a judgment awarding $4600 to the appellees Earl and Irene Perry and $400 to the ap-pellee J. A. Dedman.

Appellants A. M. Kellerman and his wife owned two dairy farms in Shelby County which were managed by Earl Perry. In the fall of 1963 Perry desired to quit farming and so informed the Kellermans. Certain livestock, feed, machinery and other personal property were owned in partnership by the Kellermans and Perry and his wife. To dispose of this property, and some property belonging to the Perrys individually, the Kellermans and the Perrys entered into a written agreement whereby auctioneers J. A. Dedman and William Casey were employed to sell it at public auction. This agreement contained a list of the items to be sold.

The sale was to be held November 30, 1963, and was extensively advertised. A few days before the sale the Kellermans told Dedman that, 26 head of the cattle listed for sale were not partnership assets and they ordered him not to sell them. Dedman refused to accede to this demand and the Kellermans, on November 29, 1963, sought, ex parte, a restraining order against Ded-man, Casey and the Perrys in Shelby Circuit Court. A restraining order was issued covering the 26 head of cattle in question and was served the same day. It is conceded that Dedman was erroneously advised by counsel (not an attorney of record herein) that he could proceed with the sale if he posted a $6000 bond. Dedman posted such a bond in the Shelby Circuit Court and held the sale.

On the morning of the sale the Keller-mans and their attorney Ted Igleheart appeared and, according to the Perrys’ witnesses, made certain statements, within the hearing of the crowd of potential buyers, which not only had a depressing effect on the bidding at the sale but caused about 50 per cent of the crowd to leave. For instance there is testimony that Mrs. Keller-man announced there would not be any sale; that a purchaser would involve himself in a lawsuit. The Kellermans’ witnesses testified that the Kellermans did not try to stop the entire sale and any statements that were made by them were not within the hearing of the people attending the sale and that it was Dedman’s subsequent remarks about why he was entitled to hold the sale that caused the crowd to lose its enthusiasm to bid on the property.

On this appeal the Kellermans have filed a partial record (CR 75.01) and a statement of points to be considered on appeal (CR 75.04). These points limit our review to (1) whether the award of $4600 to the Perrys was based upon speculative evidence, (2) whether the instructions were erroneous, (3) whether the trial court erred in overruling the Kellermans’ motion for mistrial made after an attack of dizziness was suffered by the Perrys’ and Dedman’s attorney during his closing argument, and (4) whether the evidence was sufficient to support the award in favor of Dedman.

The Kellermans contend that the evidence introduced to establish that the Perrys sustained a financial loss is too conjectural and speculative to support the award of $4600. They rely principally on Union Cotton Co. v. Bondurant, 188 Ky. 319, 222 S.W. 66. However, we therein observed that loss of profits need be shown, not with absolute, but with reasonable certainty. In Essock v. Mawhinney, 3 Wis.2d 258, 88 N.W.2d 659, an action involving facts similar to those in the instant case, a comprehensive statement of the rule appears as follows:

“ ‘ * * * it is now generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount and that where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof. Under such circumstances all that can be required is that the evidence with such certainty as the nature of the particular case may permit lay a foundation which will enable the trier of facts to make a fair and reasonable estimate, and the plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss. * * *.
‘The requirement of certainty does not prevent the drawing of reasonable inferences from the facts and circumstances in evidence; and where a tort is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it is enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result is only approximate.’ ”

Also see 22 Am.Jur.2d Damages, section 23, pages 42, 43.

Since there is testimony that many persons left after the aforementioned verbal exchange, that the general atmosphere at the sale was not then favorable to spirited bidding and that the property sold for less than it was worth, we believe the evidence in its totality adequately supports the finding that the Perrys sustained damage caused by the Kellermans.

As to the amount of damage, Dedman and Casey testified that in their opinions as experienced auctioneers the partnership property had a reasonable .market value of at least $20,000. Perry stated it was worth substantially more than $20,000. This property sold for $15,722, or a difference of at (east $4278. The Perrys’ half interest in this would be $2139. At the same sale property belonging- to the Perrys individually sold for $2010, while there was testimony it was reasonably worth $14,000, or a difference of $11,990. Thus there is testimony of a loss to the Perrys of $14,129, and it has probative value. However, it fails to disclose what portion of the reduced proceeds of the sale is attributable to' the 26 head of cattle sold in violation of the restraining order.

It is next' contended that instruction No. 3 is inconsistent with instructions Nos. 1 and 2 and that the Kellermans’ proffered instruction should have been given. In essence, instruction No. 1 permitted the jury to find for the Kellermans if the damages claimed by the Perrys were the result of Dedman’s- violation of the injunction. Instruction No. 2 permitted the jury to find for the Kellermans if the damages claimed by the Perrys were the result of statements made by Dedman at the sale. Instruction No. 3 permitted the jury to find for the Perrys in the amount the “sale was reduced” not to exceed $4600 if it found that the Kellermans or their attorney “wrongfully interfered with the auction sale” and this caused the reduction in the proceeds of the sale, “even though you may believe as set out in instructions Nos. 1 and 2.” The Kellermans insist that if the jury found for them under either or both of the first two instructions they could lose all benefit of such findings if the jury found against them under the third instruction. In response the Perrys argue that if the word “so” had been inserted before the word “reduced” in the third instruction there would have been no inconsistency and that it must have been obvious to the jury that it could find against the Kellermans for all the damages only if it’ believed the reduction in sale proceeds was due solely to their activities. This assumption is not warranted. We believe these instructions could logically be interpreted to mean that even if the Perrys or Dedman caused some of the damages, if the jury believed the Kellermans’ actions increased these damages, then all damages could be assessed against the Kellermans. These damages could erroneously include not only those attributable to the Perrys or Dedman but those resulting from the sale of the 26 head of cattle which was not authorized and about which the Kellermans were entitled to raise objections. The giving of these instructions was prejudicial error requiring a reversal of the judgment insofar as it awards $4600 to the Perrys.

In the event there is a new trial of the Perrys’ claim and the evidence is substantially the same, the following instructions shall be given:

1. The court instructs the jury that Earl and Irene Perry and their agent J. A. Ded-man were in violation of a restraining order when they sold the 26 head of cattle described in that order. Therefore A. M. and Julia Kellerman and their attorney Ted Igleheart had the right to publicly object to the sale of these cattle. If the jury believe that the prices obtained at the sale mentioned in the evidence were reduced and that such reduction was caused solely and entirely by

(a) the objections raised by the Keller-mans and their agent concerning the sale of the 26 head of cattle described in the restraining order;

or

(b) statements made by Dedman at the sale;

or

(c) a combination of both (a) and (b), your verdict will be for the Kellermans.

2. If the jury believe from the evidence that the prices obtained at the sale were reduced and that such reduction was caused by the activities of the Kellermans or by Igleheart in objecting to the sale of any property other than the 26 head of cattle mentioned in ir '♦'ion No. 1, then your verdict will be i ss you so believe youi or the Kellermans.

3. If the jury :s under instruction No. / :h a sum as it believes frc vill compensate them for . . >y the objections to the sale, describeci instruction No. 2, the sum allowed not to exceed $4600. The jury shall exclude any loss attributable to the sale of the 26 head of cattle mentioned in instructions Nos. 1 and 2.

4. If all the jurors agree on a verdict only one need sign it as foreman; nine or more of the jurors may return a verdict, but if less than all twelve agree, it must be signed by the nine or more who do agree.

The Kellermans contend that the following damage instruction should have been given:

“Lady and Gentlemen of the Jury, if you believe from the evidence that the damages to the defendant, Perry, as far as the sale proceeds being reduced as the result of any conduct of the plaintiffs Kellerman are such that they are conjectural, remote or speculative, then you shall find that such damages are not recoverable, and return a verdict in favor of the plaintiffs Kellerman.”

This instruction would have the jury decide whether the evidence of the proceeds of the auction sale being reduced was speculative. Since the question is one of law, the trial court properly refused to submit this instruction to the jury.'

We now consider the appeal which the Kellermans have taken from the judgment for $400 obtained against them by Dedman upon his claim for assault and battery.

Dedman has moved this court to dismiss the appeal on the ground that the judgment in his favor is less than $2500 and therefore the Kellermans are not entitled to appeal that portion of the judgment as a matter of right (KRS 21.080). No motion for an appeal has been filed. In Dr. Pepper Bottling Co. v. Ricks, Ky., 376 S.W.2d 299, the judgment appealed from awarded one appellee $6000 and awarded the other appellee $1000. In overruling a motion to dismiss as to the latter appellee, we said:

“ * * * An appellant is concerned only with whether the whole amount must be paid.”

That case is controlling and the motion is overruled.

The Kellermans contend the award of $400, $200 of which is compensatory and $200 of which is punitive damages, is not supported by the evidence. A. M. Keller-man testified that he “pushed” Dedman on the shoulder to get his attention during their argument concerning whether the sale would be held. Dedman testified Kellerman “poked” him with his fist causing him pain. A witness to the event described Keller-man’s act as a “rabbit punch” and related that he simultaneously used derogatory language. The testimony tending to show Kellerman’s malice and Dedman’s pain amply support the award as to both compensatory and punitive damages.

During his closing argument to the jury, Dedman’s attorney became dizzy and was granted a brief recess. The Keller-mans moved for a mistrial on the ground that the jury may have been unduly influenced by its sympathy for the attorney’s distress. The trial court overruled this motion and properly so. The court would not have been warranted under the record in assuming that the verdict would be the result of the jury’s sympathy for the attorney.

The judgment insofar as it awards J. A. Dedman $400 against A. M. and Julia Kel-lerman is affirmed; the judgment insofar as it awards Earl and Irene Perry $4600 against A. M. and Julia Kellerman is reversed with directions to set it aside and the case is remanded for proceedings consistent with this opinion.

HILL and OSBORNE, JJ., dissenting.


author: PALMORE, Judge.

text:
    Thomas Allen COX, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.
    Thomas Allen Cox, pro se.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gem, for appellee.
   PALMORE, Judge.

Thomas Allen Cox appeals from an order overruling without a hearing his RCr 11.42 motion to vacate a judgment sentencing him to life imprisonment on each of 15 counts of armed robbery. KRS 433.140.

The claim for relief is based on allegations that while under police interrogation following his arrest Cox gave a confession without having been informed of his right to remain silent arid his right to counsel, of which rights, he says, he was ignorant. Cf. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, regardless of what invasions of his rights are alleged to have taken place, the record shows that he appeared in court with counsel, withdrew a plea of not guilty, and pleaded guilty on all counts. Hence it became unnecessary for the confession to be used, and if it was in fact read to the jury it could not have been prejudicial, since life imprisonment on each count was the minimum sentence the court or jury was authorized to impose. See KRS 433.140.

As pointed out in Maggard v. Commonwealth, Ky., 394 S.W.2d 893, 894 (1965), it is to be presumed that an illegal confession will be excluded by the trial court if the occasion arises and timely objection is interposed. If all that Cox says is true, there is no reason whatever to suppose the trial court would have permitted the confession to be used in the face of a proper objection and showing of the facts, or that, had it done so, the error would not have been corrected on direct appeal to this court. Illegality of a confession is not ground for an RCr 11.42 attack on a conviction entered pursuant to a plea of guilty. Maggard v. Commonwealth, Ky., 394 S.W.2d 893, 894 (1965).

The judgment is affirmed.