author: DOERNER, Commissioner. PER CURIAM.

text:
    Thomas W. HUTCHINSON and Leslie Barnhart, (Plaintiffs) Respondents, v. Alvin Martin STEINKE, (Defendant) Appellant.
    Nos. 30642, 30643.
    St. Louis Court of Appeals, Missouri.
    Jan. 16, 1962.

      Heneghan, Roberts & Cole, John J. Cole, and Woodward Lee Carter, Jr., St. Louis, for appellant.
    Barnhart & Sommers, Don B. Sommers, David G. Dempsey, McLeod & Bransford, and Arthur E. McLeod, St. Louis, for respondents.
   DOERNER, Commissioner.

These appeals involve two actions for damages for personal injuries, which by agreement between the plaintiffs, Hutchinson and Barnhart, and the defendant, Steinke, were consolidated for trial. Trial before the court and a jury resulted in verdicts and judgments in favor of the plaintiffs, for $6,300 for Hutchinson and $4,200 for Barnhart, and defendant has appealed.

The automobile collisions which gave rise to this litigation occurred in St. Charles County on U. S. Highway 40, approximately three-tenths of a mile west of its junction with Missouri Highway K, on September 13, 1958, about 9:00 P.M. In that area U. S. Highway 40 is a two-lané highway, and because of the rolling nature of the terrain there are a number of crests and dips in the road. From the evidence it appears that in disregard of yellow lines marking a no-passing zone, one Amos Her-ron, driving a 1946 Plymouth in a west-wardly direction, attempted to pass a tractor-trailer being driven in the same direction by Henry Robotnid, as the two vehicles were ascending a hill. Leon Terrill, operating a 1956 Chevrolet eastwardly, came over the crest of the hill, collided with Herron’s car, and after rolling over more than once came to rest in an upright position, blocking at least two-thirds of the eastbound lane. Shortly thereafter (the intervening period of time being a matter of sharp dispute), defendant Steinke, driving a GMC stake truck in an eastwardly direction, accompanied by plaintiffs as passengers, came over the top of the hill and collided with Terrill’s car.

Defendant’s initial assignment of error involves a claim of fraudulent joinder and improper venue. Plaintiffs Hutchinson and Barnhart, in their separate actions filed in the Circuit Court of the City of St. Louis, named as defendants Herron, Steinke, Ter-rill and Robotnid. Hutchinson and Herron were residents of the City of St. Louis; Barnhart and Steinke were residents of St. Louis County; and Terrill and Robotnid were nonresidents of Missouri. Since defendant Herron was a resident of the City of St. Louis, venue in that jurisdiction was presumably proper under Sec. 508.010(3) RSMo 1959, V.A.M.S., which provides: “When there are several defendants, some residents and others nonresidents of the state, suit may be brought in any county in this state in which any defendant resides.”

It appears from the record and the briefs that on the morning of the day the trial commenced, while both cases were still pending in Division No. 1 awaiting assignment to a trial division, each plaintiff dismissed his action as to defendants Herron, Terrill and Robotnid, without prejudice, leaving Steinke, as the sole defendant in both cases. Thereafter, a memorandum was filed in Division No. 1, signed by counsel for plaintiffs and defendant Steinke, consolidating the two suits for trial by agreement. The consolidated action was thereupon assigned to Division No. 7 for trial. When the action reached the trial division counsel for defendant Steinke, in chambers, then asked the court to continue the cases so that he might subpoena Herron and Terrill, which request was denied. At this point the noon recess was declared. Upon the resumption of the proceedings, again in chambers, counsel for defendant Steinke orally moved to quash the return of service as to Steinke, and asked leave to follow it with a written motion. The motion to quash was likewise overruled. Subsequently, a written motion was filed, plaintiffs were granted leave to change their dismissals of Herron, Terrill and Robotnid to dismissals with prejudice, and defendant Steinke refiled his written motion.

It is defendant’s contention on appeal that Herron was originally joined as a defendant for the sole purpose and with the fraudulent intent of establishing venue in the City of St. Louis, and that from the very inception of the actions plaintiffs never at any time intended to press their cases against him. No evidence was introduced in support of defendant’s motion, and hence there is no proof of fraudulent intent unless it can be found from the facts in the record and the inferences to be drawn therefrom. Defendant states that such proof is supplied by the fact that “ * * * Herron was known by all parties to be an uninsured motorist * * and because plaintiffs could have obtained a judgment against Herron at any time since Herron never appeared and was in default. The weakness in defendant’s argument is that there is no probative evidence in the record that Herron was an uninsured motorist. Nor is there any proof that at the time plaintiffs filed their actions plaintiffs were then aware of that fact, if it was a fact. If Herron was indeed financially irresponsible, as defendant states, it is entirely conceivable that plaintiffs did not acquire knowledge thereof until some time after they had in■stituted their suits, which may have led to their dismissal as to him. Defendant should have supported his motion by proof, and in the absence of such proof we cánnot speculate as to what such evidence might be. For the rule is that where the petition states a cause of action upon which relief can be granted against the resident defend- . ant, as defendant concedes was the case at bar, the claim of fraudulent joinder by a nonresident defendant must not only be raised by a motion, but must be supported by adequate proof. State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487.

Furthermore, Section 508.010 RSMo 1959, V.A.M.S., fixing venue in the county of the defendant’s domicile, confers a mere personal privilege which may be waived by the person entitled to assert it. Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Jones v. Church, Mo.App., 252 S.W.2d 647. Such waiver may take the form of an act that would constitute a general appearance, as by pleading to the merits, Robinson v. Field, supra; Buerck v. Mid-Nation Iron Products Co., 295 Mo. 263, 245 S.W. 45; Worley v. Worley, Mo.App., 176 S.W.2d 74; by filing an application for a change of venue, Cook v. Globe Printing Co. of St. Louis, 227 Mo. 471, 127 S.W. 332; Lieffring v. Birth, Mo.App., 154 S.W.2d 597; by agreeing to a resetting of the cause, and to a continuance, Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29, 35 Am. St.Rep. 726; Columbia Brewery Co. v. Forgey, 140 Mo.App. 605, 120 S.W. 625; by obtaining additional time to answer, Harrison v. Murphy, 106 Mo.App. 465, 80 S.W. 724; and by requesting and obtaining a continuance, Gray v. Grand River Coal & Coke Co., 175 Mo.App. 421, 162 S.W. 277. The record in the instant case shows that after plaintiffs had dismissed as to Herron the defendant executed and filed an agreement that the two actions should be consolidated for trial, accepted an assignment to the trial division, and requested a continuance of the trial of the consolidated action before raising any question as to the jurisdiction of the court over his person. Assuming that defendant was not in a position to effectively raise the issue of improper venue until plaintiff dismissed as to Her-ron, it is clear from the foregoing authorities that by such actions the defendant thereafter waived any right he might have had to object to the venue.

During the trial Terrill was called to the stand by plaintiff and testified on his behalf. On cross-examination defendant sought to impeach Terrill by using a written statement which Terrill had given to one W. A. Bowman, Jr., manager of the Valley Adjustment Company of Portsmouth, Ohio, on September 18, 1958, five days after the collisions occurred. Terrill, by his personal attorney, William H. Bruce, Jr., objected to defendant’s use of the statement on the grounds that it was a privileged communication. Thereupon, in chambers, the court heard evidence on the objection raised. At the conclusion of the hearing the court ruled that the statement was a privileged communication, and that defendant could not use it to cross-examine Ter-rill. Defendant assigns that ruling as error. The material facts regarding the occurrence as given by Terrill in his written statement were in sharp conflict with those to which he testified at the trial. For example, in his statement Terrill stated that as soon as his car came to rest back on the road, after colliding with Herron’s car, he saw the headlights of Steinke’s truck and that they * * * looked like about 2 feet away, * * * ” while on the witness stand he testified that about a minute elapsed between the time his car came to rest and the impact of the Steinke truck, and that he saw the Steinke truck come over the crest and down the hill, a distance he estimated at 400 feet. Hence if the trial court’s ruling was erroneous there can be no doubt that it was prejudicial, for the effect of it was to prevent defendant from cross examining Terrill about such discrepancies.

During the hearing in chambers it developed that the witness Terrill was insured with the Inter-Insurance Exchange of the Automobile Club of Southern California for both liability and collision insurance and that the defendant Steinke was insured with the Automobile Club of Missouri for liability and property damage. It was further developed that Bowman interviewed Terrill and obtained his written statement at the telephoned and written request of Harry F. Collum, Claims Adjuster of the Inter-Insurance Exchange of the Automobile Club of Missouri, made on September 17, 1958. Reduced to its essentials, the basis of Terrill’s objection to defendant’s use of his written statement was that the Missouri Automobile Club was affiliated with the Southern California Automobile Club; that in obtaining his statement, through Bowman, the Missouri Automobile Club was doing so on behalf of the Southern California Automobile Club; and that the statement was one from an insured to his insurer, and therefore a privileged communication. Defendant does not dispute the legal proposition asserted by plaintiff, that a statement given by an insured to his insurer is a privileged communication. What defendant contends is that the evidence showed that the statement was obtained by the Missouri Automobile Club for its own use and purposes, not on behalf of Terrill’s insurer, the Southern California Club. Thus the issue we are called upon to decide is whether there was sufficient probative evidence to sustain the court’s ruling, and for the purpose of this opinion we will assume, without deciding, that a statement given by an insured to his liability insurer, concerning an event which may be the basis of a claim against him covered by his policy, is a privileged communication under an extension of that doctrine as applied to the relationship of attorney and client. On that subject see 22 A.L.R.2d 659; 58 Amer.Jur., Witnesses, Sec. 503, p. 282 ; 97 C.J.S. Witnesses § 276(d), p. 789; Wojciechowski v. Baron, 274 Wis. 364, 80 N.W.2d 434; In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492, 108 A.L.R. 505; Heffron v. Los Angeles Transit Lines, 170 Cal.App.2d 709, 339 P.2d 567, 74 A.L.R.2d 526; and for the somewhat more restricted English rule consult Westminister Airways v. Kuwait Oil Co., 1 K.B. 134.

The evidence offered hy Terrill in support of his objection consisted of his own testimony and certain correspondence between his counsel and the Southern California Automobile Club. On direct examination Terrill testified:

“Q Will you tell the Court under what circumstances you gave that statement?
“A I believe this man from Ohio wanted a statement for my insurance company because they was so far away they couldn’t get it theirself.
“Q And who did he tell you he was representing ?
“A My insurance company.”

However, on cross-examination Terrill stated:

“Q That is all I wanted to know. Now, did this man say he was representing the Automobile Club of Missouri ?
“A He said he was retained by them.
“Q You knew that when the statement was given?
“A I did.
“Q All right. Of course you knew the Automobile Club of Missouri was not the Automobile Club, Triple A of Southern California ?
“A They are associate or affiliated -of that, they told me that. I first had the wreck and got out of the hospital and went over to Triple A’s office here in St. Louis; I believe that was my first stop from the hospital.”

In another phase of the case the evidence introduced before the jury showed that defendant Steinke had employed counsel, and through him had instituted an action in the St. Louis Circuit Court on September 20, 1958, against Terrill and Her-ron. At the hearing in chambers Terrill introduced in evidence a copy of a letter from the Southern California Club to Frank X. Cleary, a St. Louis lawyer, dated October 23, 1958, in which that Club advised Cleary that Terrill had been served in Ohio and requested Cleary to represent Ter-rill. In the letter the Southern California Automobile Club stated: “This case was originally investigated by the Automobile Club Inter-Insurance Exchange of St. Louis and although they carry the liability insurance on the Steinke vehicle we have permitted them to conduct an investigation of the facts and handle the claims on our behalf inasmuch as preliminary investigation and the police report indicated no liability on either their insured, Steinke, or our insured, Terrill. Now that Mr. Steinke and the passengers in his car have instituted suit against our insured and the co-defendant, Amos Herron, we consider it wise to request the Missouri Motor Club to transfer the claim file they are handling for us to an independent adjusting firm in St. Louis and by separate letter to the Missouri Motor Club we will request they do this. * * * ” Meanwhile, on October 15, 1958, Terrill had employed Bruce, his own attorney, who wrote to the Southern California Automobile Club on October 22, 1958, requesting that the Missouri Automobile Club not be furnished any information which might be used by it to defeat Terrill’s claim against Steinke and Herron. In its reply, dated October 30, 1958, the Southern California Automobile Club informed Bruce: “When this accident was originally reported to us by the Automobile Club Inter-Insurance Exchange of St. Louis we permitted them to conduct the investigation because of the rather obvious absence of liability on our insured, Mr. Terrill. However, as soon as we received notification of service of a lawsuit against our insured we instructed the St. Louis Automobile Club to discontinue any further investigation for us and transfer their claim file to our adjusting representatives in St. Louis, Elmer V. A. Bayer & Associates, Rialto Building, 4th & Olive Streets, St. Louis, Missouri. * * * ”

In the hearing on Terrill’s objection defendant Steinke introduced in evidence Col-lum’s letter to Bowman. Omitting the name and address of the addressee it read:

“Re: Our Claim No. 8090396 Accident: 9-13-58 U. S. Highway 40 near Missouri 94

“Dear Mr. Bowman:

“This letter will serve to confirm our telephone conversation of this morning.

“We insure Mr. Alvin M. Steinke, residing in the St. Louis area, on his 1955 GMC stake truck for $25/50,000 liability and $5,000 property damage. We would appreciate your handling our interest in your locality by making contact with the adverse party.

“The claimants in question are: Mr. Leon Terrell of Strathmore, California, and his passenger, Clarence Ratliff of Phenix City, Alabama. They are both visiting Mr. Dennis Scrivner in Waverly, Ohio (phone No. 404).

“Mr. Leon Terrell’s 1956 Chevrolet 4 door is insured with the Interinsurance Exchange of the Automobile Club of Sourthern (sic) California, for both liability and collision.

“We are handling Mr. Terrell’s collision loss here in St. Louis because we are affiliated with the Automobile Club of Southern California and handle their losses in our locality on a reciprocal basis. However, it is my understanding that they are referring the liability feature of their file to an indepdndent (sic) adjustment firm in Ohio to make contact with their assured while he is there.

“The details of the accident are as follows :

“Accident occurred 9-13-58 about 9:00 p. m. CDT on a 2-lane concrete highway. A westbound tractor-trailer unit was being passed illegally by a westbound passenger car (owner-driver Amos Herron of 2722 Stoddard St., St. Louis Missouri— uninsured colored man), which was in the left-hand or eastbound lane when Leon Terrell, driving eastward, was forced over onto the south shoulder of the road in trying to avoid a head-on collision. Terrell and Herron collided, Terrell overtuning, (sic) Our assured Steinke, also eastbound, struck either or both of the two cars and lost its right front wheel. The truck-veered across the highway and ended up in a wooded field some distance off the northside of the highway.

“As I mentioned in our telephone conversation, there is a point of difference as to whether Steinke’s truck struck Terrell’s automobile or only Herron’s 1946 Plymouth coupe.

“As I also mentioned in our telephone conversation, we had taken a brief report from Mr. Terrell to relay to the Southern California Club before we were aware that one of our assureds had been involved in the accident.

“We would appreciate your obtaining statements from the two parties in Waverly, Ohio, if at all possible, and relaying your findings to us.

“Your cooperation in this matter will be appreciated.

“Very truly yours,

“HARRY F. COLLUM

“HFC/ts

“P. S. Weather was clear and dry at time of accident.

H.F.C.”

Defendant also introduced Bowman’s reply,, dated September 22, 1958, reading as follows :

“Dear Mr. Collum:

“We acknowledge receipt of your phone call and your letter on the above captioned case, and wish to report as follows:

“Upon receipt of your phone call we immediately attempted to contact the claim-ante, however, they had not arrived as yet from St. Louis.

“Mr. Terrell then called me on Friday, September 18, 1958, and I proceeded to Waverly, Ohio, where I contacted both Mr. Terrell and Mr. Clarence Ratliff.

“CLAIMANT # 1 — Leon Terrell — Mr. Terrell gave a complete statement to the effect that there was a taxi cab as a witness •directly behind the stake truck which he states struck him after a first impact with an older make unit.

“He cannot honestly say there was an impact, but when his car came back up on the road after first rolling over one or two times he saw two headlights directly to his left, about two feet away, and assumed that he was struck again because Tiis car was again rolled one or two times and he was thrown out at this point.

“He states he has severe injuries of his left arm, the lower arm bone being fractured, has contusions and abrasions over 'his entire body.

“CLAIMANT ■# 2 — Clarence W. Ratliff —Mr. Ratliff is thirty-three years of age, •married, his home address being Phenix City, Alabama. He states that he was not -thrown from the car at any time, however, received a laceration on his scalp requiring sixteen stitches and is unable to work at -this time.

“Both the claimants are employed by the •same construction company, the Universal .Pipe Line, who are in. the process of placing a sprinkler system at the atomic energy ■plant near Piketon, Ohio.

“From our investigation it would appear that the taxi cab driver, Mr. Robert Murphy, would be the key witness on this ¡second impact, however, the second claim.ant, Mr. Ratliff, definitely states that he felt the second impact and he was not injured until this impact, his head striking the center post on the driver’s side of the .unit as it rolled over, causing the cut. He .states that the cut had not occurred on the first roll over.

“Mr. Leon Terrell states that he carries medical payment insurance on his own car and at this time is getting the bills together covering his hospital, doctor, etc. to furnish this office for transmittal as requested to your office.

• “We are, therefore, enclosing these statements for your file and will hold ours open pending further information as requested, or until such time as you request that we retire this file accordingly.

“Yours very truly,

“Valley Adjustment Company “W. A. Bowman

“WAB/d”

Although plaintiff’s trial counsel had earlier stated that he did not care how the court ruled on Terrill’s objection, his role in the hearing was not entirely a passive one. After both Terrill and defendant had introduced their exhibits plaintiff’s counsel asked and was granted permission to recall Cleary, who had previously appeared as a witness for plaintiff on another' aspect of the case, and had testified that the law firm of which he was a member had been retained by the Inter-Insurance Exchange of the Automobile Club of Southern California to defend Terrill. In the hearing in chambers Cleary testified that the investigation file sent him by that company contained the original of Terrill’s written statement.

Assuming, for the reason stated, that under the doctrine of privileged communication a statement by an insured to his liability insurer is to be equated with a statement given by a client to his attorney, it follows that the same precepts which govern the applicability of that doctrine to the latter relationship are relevant. As stated by this court in Bussen v. Del Commune, 239 Mo.App. 859, 199 S.W.2d 13, 20: “It is thus to be observed that for the rule of privilege to apply, the relation of attorney and client must have actually existed between the parties at the time the communication was made or the advice given. State ex rel. Chicago, R. I. & P. R. Co. v. Wood, 316 Mo. 1032, 292 S.W. 1033. Moreover, such relation must have existed as to the subject matter of the communication or advice (C. Aultman & Co. v. Daggs, 50 Mo.App. 280) * It was not only proper but necessary for Terrill to raise the question of privilege as soon as defendant began to cross-examine him about the statement, else he might have waived his right to raise it. Pinson v. Campbell, 124 Mo.App. 260, 101 S.W. 621. The question of whether Ter-rill’s statement was a privileged communication then became one of law for the court, Hull v. Lyon, 27 Mo. 570, and the action of the trial court in permitting Terrill and the defendant to submit evidence on the matter, outside of the hearing of the jury, in order to enable him to rule on the question was eminently proper. Bussen v. Del Commune, supra. In the trial court, as the party claiming the privilege, Terrill had the burden of showing that the statement was privileged. Allen v. Allen, Mo.App., 60 S.W.2d 709; Bowles v. Kansas City, 51 Mo.App. 416. In this court, however, defendant as appellant has the burden of establishing that there was not sufficient probative evidence to support the court’s ruling, and that it therefore abused its discretion. In that connection it may not be amiss to point out that since most of the evidence submitted by Terrill and the defendant consisted .of correspondence the result did not depend, as it did in Bussen v. Del Commune, supra, upon the credibility of a witness, and the rule of deference, therefore, has little, if any, application.

In arguing below in support of the claim of privilege, counsel for Terrill laid great stress on Collum’s letter to Bowman. He contended that it substantiated Terrill’s claim that the Missouri Automobile Club was representing the Southern California Automobile Club in all matters connected with Terrill’s casualty, and that it was so acting when it requested Bowman to obtain the statement from Ter-rill. With this contention we cannot agree. When the letter is read and considered as a whole we think it is obvious that “ * * at the time the communication was made * * Bussen v. Del Commune, supra, the Missouri Automobile Club was not acting in a fiduciary, confidential or similar representative capacity on behalf of Terrill. The accident involved in this action occurred on September 13, 1958. Terrill testified that as soon as he got out of the hospital he “went over to Triple A’s office here in St. Louis.” He did not give the date, but in his statement he said that he got out of the hospital on “Monday, September 15, 1958.” This accords with the statement in Collum’s letter that “ * * * we had taken a brief report from Mr. Terrell to relay to the Southern California Club before we were aware that one of our assureds had been involved in the accident.” and with Col-lum’s previous testimony, on another phase of the case, that he interviewed defendant Steinke on September 17, which was the same day Collum telephoned and wrote his letter to Bowman.

Furthermore, the contents of the letter make it apparent that Collum was requesting Bowman to interview Terrill on behalf of the Missouri Automobile Club. After informing Bowman that “We (the Missouri Automobile Club) insure * * * Steinke * * * for liability and * * * property damage” Collum asked Bowman to handle “ * * * our interest in your locality by making contact with the adverse party.” The “adverse party”, then referred to as “The claimants in question * * were named as Terrill and Ratliff. The details of the accident were given, and the particular reason for obtaining the statements from Terrill and Ratliff was then stated: “As I mentioned in our telephone conversation, there is a point of difference as to whether Steinke’s truck struck Terrell’s automobile or only Her-ron’s 1946 Plymouth coupe.” As the insurer of Steinke, it was patently important to the Missouri Automobile Club to obtain statements from Terrill and Ratliff as to that issue. That Bowman understood that he was to interview Terrill and Ratliff on behalf of the Missouri Automobile Club as Steinke’s insurer is shown by his reply. In it he referred to Terrill as “Claimant #1” and to Ratliff as “Claimant #2.”

The contention that the Missouri Automobile Club was then representing the Southern California Automobile Club in all matters growing out of the occurrence is effectively refuted by Collum’s statement in the letter that “ * * * it is my understanding that they (the Southern California Automobile Club) are referring the liability feature of their file to an indepdndent (sic) adjustment firm in Ohio to make contact with their assured while he is there.” This plainly indicates that as of the date of his letter, September 17, 1958, Collum believed that the Southern California Automobile Club, as the insurer under Ter-rill’s liability insurance, would have other, independent investigators interview Ter-rill in Ohio regarding that feature of Terrill’s insurance. Lastly, the very passage of Collum’s letter stressed by Ter-rill’s counsel affirmatively shows the limited capacity in which the Missouri Automobile Club was then acting on behalf of Terrill. Collum stated that “We are handling Mr. Terrell’s collision loss here in St. Louis because we are affiliated with the Automobile Club of Southern California and handle their losses in our locality on a reciprocal basis.” ““Collision insurance’ is a term used in the law of motor vehicle insurance to describe insurance of the owner against the risk of loss or damage occasioned to the vehicle by a collision with other objects.” 44 C.J.S. Insurance § 7, p. 476. All that may be gathered from that passage of Collum’s letter is that the Missouri Automobile Club was representing the Southern California Automobile Club in the adjustment of Terrill’s claim against the Southern California Automobile Club — his own insurance company.

Bowman may have told Terrill that Terrill’s statement was wanted by his own insurance company, although Terrill’s subsequent testimony on cross-examination strongly indicates that Terrill assumed that Bowman was indirectly representing the Southern California Automobile Club. Taking Terrill’s testimony at face value, however, the statement attributed to Bowman did not establish the extent or scope of Bowman’s agency, and as stated in State ex rel. Massman v. Bland, 355 Mo. 17, 194 S.W.2d 42, 45: “The general rule is well settled that neither the fact nor scope of agency can be established by the mere out of court declarations of the alleged agent. * * * ” Collum’s letter to Bowman was primarily relied on by counsel for Terrill to establish the extent and scope of Bowman’s agency, but that letter, as we have pointed out, disclosed, first, that at the most the Missouri Automobile Club was only authorized at that time to represent the Southern California Automobile Club in the disposition of Ter-rill’s claim against his own insurer under his collision insurance; and second, that the Missouri Automobile Club requested Bowman to obtain Terrill’s statement for its own use and protection.

Nor does the evidence, in our opinion, otherwise establish that at the time Bowman obtained Terrill’s statement the Missouri Automobile Club was then representing the Southern California Automobile Club in all aspects of the matter. The letters from the Southern California Club to Terrill’s counsel and to Cleary tend to show at most that at some time, not specified, the Southern California Club permitted the Missouri Club “ * * * to conduct an investigation of the facts and to handle the claims on our behalf.” Since Collum stated on September 17 (only four days after the accident) that it was his understanding that the Southern California Club would conduct its own investigation on the liability feature of the case, it would appear that the decision of the Southern California Club to permit the Missouri Club to represent it generally was not communicated to the Missouri- Club until after that date. The fact that the Missouri Club, at some subsequent date, conducted a general investigation on behalf of the Southern California Club would likewise account for the fact that it sent Terrill’s statement to the Southern California Club.

Considering the evidence as a whole, we have reached the conclusion that the court erred in sustaining Terrill’s objection and in refusing to permit the defendant to cross-examine Terrill about his statement.

Of defendant’s remaining points only one is likely to arise on a retrial and need be noticed. Plaintiffs called defendant to the stand as their witness, and during their examination of him defendant testified that the accident happened about 150 feet from the top of the hill. Plaintiffs then asked defendant whether defendant had ever testified under oath that the distance was 500 feet, and defendant admitted that he had. Plaintiffs next developed from defendant that defendant’s deposition had been taken in an action filed by defendant and both plaintiffs against Terrill, in which defendant was represented by other counsel. Plaintiff then sought to read from the deposition defendant’s testimony that the accident occurred 500 feet from the brow of the hill, whereupon defendant’s counsel objected to the further use of the deposition and to plaintiffs’ reading the answers therefrom “ * * * for the reason that this is Mr. Barnhart’s witness, and secondly, it is not the proper way to interrogate, thirdly, there is and has been no proper foundation shown that this deposition was ever filed or signature waived or signed, or otherwise proper qualification for such use as Mr. Barnhart is attempting to do.” The court overruled the objections on the grounds that the witness “ * * * is a party defendant in this case. * * * ” Plaintiffs then read the pertinent excerpt from the deposition and defendant readily conceded that he had stated that the distance was 500 feet, and explained that since the taking of his deposition he had measured the distance and found it to be 150 feet.

By the use of the phrase “this is Mr. Barnhart’s witness” defendant may have intended to raise the objection that plaintiffs could not directly impeach their own witness, even though he was an adverse party. If that was the basis of defendant’s objection it should have been more plainly stated, and if so stated, should have been sustained. For while a party who calls his adversary to the stand is entitled to cross-examine him, Sec. 491.030 RSMo 1959, V.A.M.S., and to introduce evidence contradicting his testimony, a party cannot directly impeach the credibility of his own witness even though he be the other party to the suit. Frank v. Wabash R. Co., Mo., 295 S.W.2d 16; Waller v. Oliver, Mo., 296 S.W.2d 44. However, in his brief, defendant does not claim that the court erred in overruling that part of his objection, and we must therefore regard it as abandoned; In re Off-Street Parking Facilities, Kansas City, Mo., 287 S.W.2d 866; Heuer v. Ulmer, Mo., 273 S.W.2d 169. Defendant’s only assignment regarding the court’s action on his objections is that the court erred in permitting plaintiffs to use the deposition because it had not been signed or otherwise approved by defendant. Defendant cites Sections 492.340 and 492.400 RSMo 1949, V.A.M.S., and the cases of Westinghouse Electric Supply Co. v. Binger, Mo.App., 230 S.W.2d 166 and Byers Bros. Real Estate and Insurance Agency, Inc. v. Campbell, Mo.App., 329 S.W.2d 393. Those cases, however, involve situations in which the unsigned depositions were sought to be introduced in evidence as admissions against interest. In the instant case the defendant’s unsigned deposition was used for the purpose of impeachment as a prior inconsistent parol statement. The failure of a trial court to permit the use of portions of an unsigned deposition for impeachment purposes was held to be error in Peppers v. St. Louis-San Francisco Ry. Co., 316 Mo, 1104, 295 S.W. 757, 762, where it was said: “* * * If the witness has not signed the deposition, he may be impeached as for any other parol statement, preferably, however, by having the reporter taking the deposition read his original shorthand notes. We think the trial court erred in refusing to permit this method of examination.” Thus it may have been error to have permitted plaintiffs to directly impeach the defendant, since they had called him as their own witness; as to that, no complaint is before us. But the method used to impeach the defendant was proper.

For the reasons stated, the Commissioner recommends that the judgment be reversed and the cause remanded for a new trial.

PER CURIAM.

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

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

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


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Helen HALUSEK et al., Appellants, v. Rufe TOMLISON et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1962.
    M. D. Harris, Somerset, for appellants.
    Russell Jones, Somerset, for appellees.
   CULLEN, Commissioner.

The issue tried before a jury in the circuit court was whether John Mounce, at the time he purchased a certain tract of land from John Griffith, had actual notice of a prior, unrecorded deed of the land from Griffith to his stepdaughter, Helen Halusek. The jury found that Mounce did not have actual notice. Accordingly, the court entered judgment holding that Mrs. Halusek’s deed was invalid as against Mounce, under KRS 382.270, and that the appellees Rufe Tomlison and wife, who had purchased the land from Mounce, had good title. Mrs. Halusek and her husband have appealed.

The only contention made on the appeal is that the finding of the jury that Mounce did not have actual notice of the Halusek deed is flagrantly against the evidence. The evidence that Mounce had notice before he bought the land consisted of the testimony of two strangers to the transactions that in casual conversation with Mounce they told him of Mrs. Halusek’s deed, and the testimony of the grantor, John Griffith, that he told Mounce about the Halusek deed before the sale to Mounce was closed. Mounce denied this testimony, and Griffith’s son Donald, who handled for his father the sale of the land to Mounce, testified that he was present when the sale was closed and his father did not say anything to Mounce about the Halusek deed. In our opinion the evidence would have sustained a verdict either way. The verdict that was returned is not flagrantly against the evidence.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Taw RAMEY, Appellant, v. Della RAMEY, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1962.

      Charles E. Lowe, Pikeville, for appellant.
    Sanders & Redwine, Fred B. Redwine, Pikeville, Holbert Clay Johnson (Guardian Ad Litem), Pikeville, for appellees.
   CLAY, Commissioner.

This partition suit developed into a trial of title. The circuit court found appellees were fee-simple owners of a tract of land by virtue of a parol gift coupled with adverse possession.

Diedma Smith originally owned this property and she had five children. In 1930 one of them, Freeland, moved onto the land with his family and they lived with his mother until her death in 1937. Free-land fenced and cultivated the property, and after her death continued to reside there until he died in 1956.

Appellant, another of Diedma’s children, bought up the interests of three of his brothers and sisters and in this suit sought to partition the land between himself and the widow and children of Freeland. This latter group claims fee-simple title to the property on the ground that in 1930 (or sometime thereafter) Diedma made a parol gift of this land to Freeland and his wife, and they had ever since adversely possessed it.

There is a generally recognized rule that where one enters the land of another under an unconditional parol gift and actually possesses it with a claim of ownership for 15 years, such possession will ripen into title. Commonwealth v. Gibson, 85 Ky. 666, 4 S.W. 453; Thompson v. Thompson, 93 Ky. 435, 20 S.W. 373; Creech v. Abner, 106 Ky. 239, 50 S.W. 58; Murphy v. Newingham, 151 Ky. 360, 151 S.W. 930; White v. Smith, Ky., 265 S.W.2d 937. The subject is extensively annotated in 43 A.L.R.2d 6.

It is evident from a reading of this line of cases that the parol gift in itself creates nothing. It is questionable whether it constitutes color of title. 2 C.J.S. Adverse Possession § 66, page 584; and cases cited in 43 A.L.R.2d 6, 15. Clearly title cannot be transferred by parol. Thomas v. Western Assur. Co., 271 Ky. 613, 112 S.W.2d 1028. The significance of the parol gift seems to be simply that it constitutes sufficient notice to the donor that the occupant’s possession is adverse. See Thompson v. Thompson, 93 Ky. 435, 20 S.W. 373; and Tippenhauer v. Tippenhauer, 158 Ky. 639, 166 S.W. 225. (Proof of a parol gift may have some materiality in establishing the extent and limits of the donee’s possession. See Nelson v. Johnson, 189 Ky. 815, 226 S.W. 94.)

In all the cases hereinbefore cited the problem was whether the 15 years’ possession was hostile and adverse to the donor. The present case presents an entirely different picture because the donor died before the IS year period had expired. While there was the scantiest evidence to support it, we will accept the finding of the trial judge that at some time after 1930 the mother Diedma made a parol gift of this property to her son Freeland. (An expectation of a gift of land does not convert a permissive occupancy into a hostile holding. Triplett v. Chadwick, Ky., 311 S.W.2d 554.) We will assume that his occupancy of the land was adverse until her death in 1937. At that time Freeland had not acquired fee-simple title by adverse possession or otherwise, and such title descended jointly to all of her five children (including Freeland).

Freeland’s occupancy after his mother’s death was not hostile to the ownership interests. He was a tenant in common with his brothers and sisters. As such he had a right to occupy the land, and his possession was amicable, not adverse. Cary-Glendon Coal Co. v. Warren, 303 Ky. 846, 198 S.W.2d 499. His cotenants had no cause of action to eject him, which is a significant factor in determining whether or not the possession is adverse. Ballard v. Moss, Ky., 268 S.W.2d 35. There was nothing openly or apparently antagonistic about this possession. Under such circumstances he could only have made it adverse by giving notice to his cotenants that he was claiming a fee-simple title to the property. See Whitaker v. Langdon, 302 Ky. 666, 195 S.W.2d 285. As said in George T. Stagg Co. v. Frankfort Modes Glass Works, 175 Ky. 330, 194 S.W. 333, 336:

“The doctrine permitting the acquisition of title by adverse possession is based and founded upon the principle of acquiescence on the part of the true owner in the supposed adverse possession. There is no rule of law or equity, or logic more firmly settled than the one requiring a knowledge of the facts acquiesced in by the one sought to be affected thereby, before he can be charged with the consequences of acquiescence. This knowledge may be either actual or presumed, but if not actual, the circumstances must be such as to make it clear that the one upon whom notice is sought to be fastened must, in the very nature of things, have known the facts.”

There is no evidence Freeland’s brothers and sisters had knowledge of the alleged parol gift or that he was claiming the land as his own. Since his possession after his mother’s death was that of a joint owner or tenant in common, it was presumptively that of all of the co-owners, and to acquire title against them he must have brought home to his cotenants notice that he was holding and claiming adversely to them. See Wilcox v. Sams, 213 Ky. 696, 281 S.W. 832, and cases cited therein.

There are three Kentucky cases which seem to stand for the proposition that once adverse possession has begun after a parol gift it continues against those who subsequently take title by will or descent within the 15 year period. These cases are Patterson v. Hansel, 4 Bush 654; Ray v. Thurman, 13 Ky.Law Rep. 3, 15 S.W. 1116; Delano v. Air, 157 Ky. 369, 163 S.W. 216. All of them involved a question of disability and the construction of a statute. None of them considered the question of notice necessary to constitute the holding adverse, which we deem to be of controlling importance.

A case squarely in point is Elmer v. Holmes, 189 Miss. 785, 199 So. 84, where it was held that after the death of the donor (before the statutory period had expired) it was necessary that the donee reassert her antagonistic claim against her coten-ants.

Appellees who claim through Freeland failed to establish adverse possession for a period of 15 years, which is required whether or not there is a parol gift, and therefore Freeland never acquired title by virtue of his occupancy.

The judgment is reversed for consistent proceedings.


author: PALMORE, Judge.

text:
    BOARD OF EDUCATION OF FLOYD COUNTY, Kentucky, et al., Appellants, v. John HALL et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1962.
    Joe Hobson, Prestonsburg, for appellants.
    W. W. Burchett, Prestonsburg, for ap-pellees.
   PALMORE, Judge.

During the month of July, 1959, the appellant Jones supplied to the Floyd County school board paint and other merchandise for which he was later paid $551.67 pursuant to a resolution adopted by the board on August 4, 1959. Two of the five board members opposed approval of the claim on the ground that in the absence of competitive bidding the procurement was invalid. As taxpayers, they brought this suit for recovery of the $551.67 against Jones and the three board members who by their votes ratified it and authorized the allegedly illegal payment. The defendants appeal from a judgment entered against them jointly and severally in the full amount sought.

The case involves a question of statutory construction, but since the appellants took the precaution of bringing their appeal both by motion and as a matter of right we need not determine whether a motion was required.

A statutory requirement of competitive bidding in the letting of public contracts is mandatory, and nonobservance renders the contract void. McQuillin, Municipal Corporations, § 29.30 (Vol. 10, p. 268). “If applicable, such a requirement must be observed in good faith by the acting municipal authorities. And where a municipality is prohibited from letting contracts * * * of more than a specified sum without submitting the same to competitive bidding, it cannot divide the work and let it under several contracts, the amount for each falling below the amount required for competitive bidding.” Id., § 29.33 (Vol. 10, pp. 279-280).

Acceptance of benefits under a public contract that is void for failure to advertise does not effect a ratification, because, as it was said in Fulton County Fiscal Ct. v. Southern Bell Tel. & T. Co., 1942, 289 Ky. 159, 158 S.W.2d 437, 439, “Since ratification is equivalent to prior authority, when a particular form or mode is necessary to confer authority in the first instance, there can be no valid ratification except in the same manner.” Nor does the acceptance of benefits raise an implied contract so as to permit recovery on a quantum meruit basis. Oberwarth v. McCreary County Board of Education, 1938, 275 Ky. 319, 121 S.W.2d 716; Hays’ Ex’x v. Burns, 1926, 216 Ky. 827, 288 S.W.2d 764; District of Highlands v. Michie, 1908, 107 S.W. 216, 32 Ky.Law Rep. 761. All of this being so, the logical converse is that public funds paid out pursuant to such a transaction are recoverable. Keenon v. Adams, 1917, 176 Ky. 618, 196 S.W. 173, apparently holding to the contrary, was effectively overruled in Trimble County v. Moore, Ky.1958, 312 S.W.2d 623, which held also that the acceptance of benefits does not work an estoppel. If, therefore, the transactions here in question fell within any statutory requirement of competitive bidding, the judgment must stand.

KRS 162.070, which has not been amended by specific reference since 1954, provides, with certain exceptions applicable only in Jefferson County, that a school board must advertise for competitive bidding any purchase of supplies and equipment in excess of $250 and any contract for new construction, additions or repairs to buildings except for repairs not exceeding $150. However, Chapter 42 of the Acts of 1958, all of which but the repealing provision was incorporated in KRS Chapter 424, established a comprehensive new set of requirements with respect to advertisement by public bodies. Section 16 of that Act (now KRS 424.260) provided as follows:

“Except where a statute specifically fixes a larger sum as the minimum for a requirement of advertisement for bids, no city, county or district, or board or commission of a city or county, may make a contract for materials, supplies or equipment, or for contractual services other than professional, involving an expenditure of more than $500, without first making newspaper advertisement for bids.” (The amount was later changed to $1,000 by Ch. 168, Sec. 1, Acts of 1960.)

Section 29 of the 1958 Act expressed its purpose as being “to standardize and make uniform the law relating to legal advertisements and to that end it shall be deemed to supersede all other statutes and parts of statutes containing specialized provisions for particular advertisements, to the extent that such provisions are in conflict with this Act.”

Since the minimum figures of $150 and $250 fixed by KRS 162.070 were less than the $500 minimum set forth in KRS 424.260 as enacted in 1958, KRS 162.070 was to that extent repealed and superseded by KRS 424.260. The question here, then, is whether the purchase from Jones was in legal contemplation a single transaction involving more than $500, that being the applicable minimum before the 1960 amendment of KRS 424.260.

The merchandise in question was bought in dribbles and dabs and was used for the maintenance and repair of several county-schools. According to the testimony, it was customary to paint in July, and we agree with the trial court that the board’s requirements for paint and painting supplies could reasonably have been estimated in advance and a contract advertised for and made on an “as required” basis. However, $113.10 of the $551.67 total was for the purchase of a toilet bowl, lavatory faucet, electrical equipment, and such other miscellaneous items as saw blades and pick handles. These, we think, would not ordinarily be advertised for purchase under the same contract as paint and painting supplies, and it was proper for the board in good faith to buy them separately. To require the furnishing of paint, hardware, and plumbing fixtures under the same contract would discriminate against the paint store that does not handle hardware, the plumbing supply house that does not handle paint, etc. Public contracts must be reasonably adapted to the customs and channels of trade, and reason would not demand, nor good faith normally permit, that toilet bowls and pick handles be lumped with paint and brushes under the same procurement contract.

We recognize that the supplier’s claims in this case were raised to the status of a contract by a single act of ratification, the resolution of August 4, 1959, which involved more than $500. However, the vital point is that the transactions covered were legally separable and factually separate, and it would hardly make good sense to hold that they could have been ratified severally but not together.

Since we have determined that the items purchased fell within severable categories, no one of which involved more than $500, advertising for competitive bidding was not required. An official order or resolution duly adopted and shown by the board’s minutes being all that was necessary to a valid authorization of each in the first instance, the action of August 4, 1959, was a sufficient ratification.

To the extent that the judgment awarded monetary recovery it is reversed with directions to enter judgment for the defendants.


text:
    LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT, and City of Louisville, Kentucky, Appellants, v. SANITATION DISTRICT NO. 1 of JEFFERSON COUNTY, and Bankers Bond Co., Appellees.
    Court of Appeals of Kentucky.
    Oct. 20, 1961.
    Rehearing Denied Feb. 16, 1962.

      Raymond F. Bossmeyer, James G. Becker, Louisville, Ky., William E. Berry and Robert L. Durning, Jr., Louisville, for appellants.
    Franklin P. Hays, Louisville, for appel-lees.
   CULLEN, Commissioner.

The City of Louisville and the Louisville & Jefferson County Metropolitan Sewer District brought action against Sanitation District No. 1 of Jefferson County and appropriate class representatives of the holders of the outstanding bonds of the Sanitation District, seeking to acquire by eminent domain proceedings the ownership of the sewer pipes of the Sanitation District that lie in the streets of and serve the area commonly known as the St. Matthews Business District, which area was annexed by the City of Louisville in 1957. The circuit court entered a summary judgment holding that the plaintiffs had no legal right to condemn the sewer lines. The plaintiffs have appealed from that judgment.

Basically the question presented is one of construction of statutes. Three statutory provisions are involved. One is the statement in KRS 220.080(2) that none of the provisions of the statutes governing sanitation districts “shall be applicable within the corporate boundary of any city of the first class, nor shall they be binding upon such city or any part thereof, or any land or property within the boundary of such city.” Another is that part of KRS 76.170 (1) declaring that where a metropolitan sewer district includes a city of the first class “any territory annexed to such city shall thereby immediately become a part of the district.” The third is the provision of KRS 76.110 that nothing in the metropolitan sewer district law shall be construed to give such a district “any power to acquire by agreement, purchase or gift, or by eminent domain proceedings, any fee, right, title, interest or easement in property included within the boundaries of any sanitation district organized under KRS Chapter 220, except necessary rights of way for trunk sewers through such sanitation districts.”

The circuit court, having found as a fact that the sewer lines in question are “within the boundaries” of the Sanitation District, apparently concluded that by virtue of the provisions of KRS 76.110 the City and the Metropolitan Sewer District had no right to condemn the sewer lines.

We believe that the proper interpretation of the involved statutes is to be found in the decisions in Sanitation District No. 1 of Jefferson County v. Louisville & Jefferson County Metropolitan Sewer District, 307 Ky. 422, 208 S.W.2d 751, and Sanitation District No. 1 of Jefferson County v. City of Louisville, 308 Ky. 368, 213 S.W.2d 995. Both of these cases involved declarations as to the respective rights and obligations of the City, the Metropolitan Sewer District, the Sanitation District, and the holders of the bonds of the latter, in the event of annexation by the City of all or part of the Sanitation District. While the opinions in those cases did not directly construe the statutes here in question the conclusions reached furnish the lead to the proper construction of the statutes.

A primary question in each of the two cases above referred to was whether, by virtue of certain statutory provisions, the City of Louisville would become liable for the bonded obligations of the Sanitation District in the event of an annexation'. In both cases the holding was that the City would not become liable. The question then followed as to how the bonded obligations would be met in case of annexation. In the first of the two cases the answer was that the bonds “would continue to be a prior and extra charge" (Our emphasis) upon the annexed sewers and the property using them. The Court went on to point out that this would result in the property owners in the annexed area being required to pay sewer service charges to meet the bond obligations and at the same time to pay service charges to the Metropolitan Sewer District. While recognizing that this might be inequitable the Court said that it was not dealing with equities but with the construction of legislative acts.

In the second of the two cases the Court had this to say with regard to the payment of the bonds of the Sanitation District (213 S.W.2d 1002) :

“ * * * The Sanitation District will continue to exist as such after annexation and its functions and duties will be in no manner altered. * * * The Board of Directors of the Sanitary District will continue to have exclusive jurisdiction and duty to fix and collect sewer charges, and should they fail in such duties, the holders of the bonds may enforce performance by them. So long as the District has debts validly created and outstanding, it cannot dissolve or be dissolved, and, as we now hold its debts will remain the debts of the District. * * * ” (Our emphasis.)

The interpretation sought by the appellees to be placed on the above quoted language is that annexation of part of the Sanitation District by the City would in no way affect the rights and powers of the Sanitation District, and it would continue to operate exactly the same as if there had been no annexation. However, when this language is taken in connection with the holding in the first case, and in the context of the full opinions in both cases, we think it is clear that it means that, following annexation by the City, the Sanitation District would continue its functions in the annexed area only to the extent and for the period necessary to meet the bond obligations chargeable to the property in the annexed area.

■ If the two cases had intended to hold that in the event of annexation by the City of part of the Sanitation District the city and its sewer operating agency (the Metropolitan Sewer District) should have absolutely no rights or duties with respect to sewer service in the annexed area, it would have been a simple matter to say so. Instead, the Court approached the cases on the basis that the City and the Metropolitan Sewer District would have complete jurisdiction over sewer service in the annexed area were it not for the problem of meeting the bond obligations of the Sanitation District.

We think that the only reasonable interpretation of the two cases is that they hold that the annexed area becomes part of the city for sewer service purposes, and therefore part also of the Metropolitan Sewer District, subject only to the necessities of continued operation by the Sanitation District of its system within the area to the extent and for the period necessary to retire its bonds chargeable against the property in the annexed area. This interpretation is likewise the reasonable interpretation of the statutes.

The appellees argue that the statement of KRS 220.080(2) that none of the provisions of the sanitation district statutes shall be applicable within the corporate boundary of any city of the first class has reference only to the boundaries of the city as they existed at the time of organization of the Sanitation District and does not apply to territory later brought within the city by annexation. They further maintain that KRS 76.170(1), prescribing that where a metropolitan sewer district includes a city of the first class any territory annexed to the city shall thereby immediately become a part of the district, does not apply where the annexed territory was part of a sanitation district. The answer to these contentions is that the statutes on their face do not contain any such qualifications and there is no compelling reason for reading the qualifications into the statutes by implication.

The appellees place great reliance upon the prohibition in KRS 76.110 against a metropolitan sewer district acquiring any right, title or interest in property “within the boundaries of any sanitation district.” It seems to us, however, that when the city of the first class has annexed territory which originally was within' the boundaries of a sanitation district, and such territory., by virtue of KRS 76.170(1), has then become a part of the city’s Metropolitan Sewer District, the territory has in effect been taken out of the boundaries of the Sanitation District, so as to render KRS 76.110 no longer applicable. The fact that the Sanitation District, by necessities arising out of its bond obligations, must continue to exercise some powers in the annexed territory does not mean that the territory remains within its boundaries for general purposes.

The conclusion we have reached as to the proper construction of the statutes makes it unnecessary for us to pass upon the question, to which the briefs give considerable attention, of whether the streets under which lie the sewer pipes sought to be condemned ever were in fact and in law within the boundaries of the Sanitation District.

Our conclusion is that upon annexation of the St. Matthews Business District by the City of Louisville the territory became a part of the Metropolitan Sewer District free of any statutory restrictions against a metropolitan sewer district’s encroaching upon a sanitation district. However, under the rulings in the two cases hereinbefore discussed, the Sanitation District continued to have the power and duty to operate its system within the annexed territory to the extent and for the period necessary to meet the bond obligations chargeable to the property in the annexed territory.

Since continued operation by the Sanitation District in the annexed territory is simply a means of securing payment of the district’s bonds, it would seem that if adequate compensation is paid the district for its physical facilities within the annexed territory, and the bondholders are thus supplied cash in lieu of the physical properties as security for their bonds, the bondholders would have no cause for complaint. Also, it would seem that this would be a way of solving the problem of securing payment of the bonds more satisfactory than the continuation of limited operations by the Sanitation District in the annexed territory. The only argument the appellees make on this point is that the City and the Metropolitan Sewer District do not want to pay an adequate compensation for the sewer pipes. The answer to that argument is that the condemnation cannot be effected unless the condemnors will pay such compensation as is determined by appropriate proceedings to be adequate.

As a secondary argument against the existence of the right of condemnation in this case the appellees maintain that there is no showing of a necessity for the taking, which is a prerequisite to any right of condemnation. This argument is based upon the proposition that the Metropolitan Sewer District, the City of Louisville, and the Sanitation District are municipal corporations of the same standing and rank, and there is an established rule of law that when one municipal corporation has property employed in the rendering of a particular public service another municipal corporation of the same standing or rank cannot condemn such property for the purpose of rendering the same service. It is our opinion that this rule has no application here for the simple reason that in the annexed territory, by virtue of the provisions of KRS 220.080(2) and 76.170(1), the Sanitation District does not have standing or rank equal to that of the City and the Metropolitan Sewer District. In fact, it has no standing or rank in the annexed territory other than a limited right of sufferance arising out of the practical necessity of maintaining adequate security for its bondholders.

It seems to us that the reasonable and sensible thing is that all public sewers in the City of Louisville should be operated by and under the control of the city’s sewer operating agency. We find nothing in the statutes indicating any intention that it should be otherwise. The practical necessities arising from the existence of bonded obligations of the Sanitation District have required the Court to permit operation of sewers by the Sanitation District within a part of the City on a limited basis. By condemnation of the sewers such a division of operating authority can be eliminated, at the same time giving adequate protection to the bondholders. So it would appear that condemnation is the best solution to the problem.

The judgment is reversed, with directions for further proceedings in conformity with this opinion.


text:
    Joseph R. LANHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 2, 1962.
    Joseph R. Lanham, pro se.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appel-lee.
   PALMORE, Judge.

Appellant is a prisoner in the Kentucky State Reformatory at La Grange. He appeals from a judgment of the Oldham Circuit Court dismissing his petition for a writ of habeas corpus.

The petition shows that in 1952 appellant pleaded guilty in the Jefferson Circuit Court to a charge of storehouse breaking and his punishment was fixed at 5 years’ imprisonment. The order finding him guilty and setting the penalty provided additionally as follows:

“On motion of the Commonwealth’s attorney and the defendant, it is ordered by the Court that the rendition of the judgment in this case be and it is withheld on condition that the defendant remain on his good behavior and refrain from any similar trouble for a period of ten years. It is further ordered that the defendant live up to the agreement as set out on the back of the indictment.”

In 1959 the Jefferson Circuit Court, on motion of the Commonwealth, revoked appellant’s probation and formally sentenced him to 5 years in prison. The order or judgment so doing recites that appellant was present in person and by counsel, but does not reveal whether a “hearing” was held. He says not, and since this allegation was not denied we must assume it is true. At most, however, such a defect is not jurisdictional and is remediable by appeal. It cannot be reached by habeas corpus. Huff v. Diebold, 1950, 313 Ky. 655, 233 S.W.2d 274, 276.

The main argument is that the Jefferson Circuit Court had no power to extend the period of probation beyond the maximum length of time appellant could legally have been imprisoned, which, for storehouse breaking, was 5 years. KRS 433.190.

By chapter 101, § 3, Acts of 1956, now KRS 439.270, it was provided that in no case may the period of probation exceed 5 years. This legislation did not affect orders of probation theretofore entered. Taylor v. Asher, Ky.1958, 317 S.W.2d 895. At the time appellant’s sentence was probated there was no statutory limit, and we are of the opinion that extension of the probationary period 5 years beyond the time in which the appellant could have completed a prison sentence was not so unreasonable as to transgress any constitutional safeguards, whether state or federal. We are cited neither to precedent nor to any good reason for holding that the maximum statutory term of imprisonment limits the permissible scope of probation.

As the petition on its face did not show probable cause to believe appellant was unlawfully held the circuit court correctly sustained the motion to dismiss.

Judgment affirmed.


text:
    Lillie Carpenter SMITH et al., Appellants, v. Dennis CARPENTER et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1962.
    Grannis Bach (deceased), Jackson, Mann & Mann, Salyersville, Steve C. Bach, Mt. Vernon, Ind., Henry L. Spencer, Jackson, for appellants.
    Moss Noble, Jackson, for appellees.
   CLAY, Commissioner.

This is a suit brought by two sisters to set aside, on the grounds of fraud, deeds conveying land to their half brother, the defendant and appellee. The Chancellor found the defendant had made no false representations to the plaintiffs, that they executed the deeds of their own free will, and he denied plaintiffs the relief sought.

The father of all three parties died intestate in 1931 owning three tracts of land in Breathitt County, upon which he lived. The three children continued to reside on the property and the defendant acted as guardian for his two sisters, who were infants. After the sisters had reached their majority, in 1947 the defendant undertook to purchase from them their interests in the property. For valuable consideration the sisters executed conveyances. By inadvertence or mistake, these deeds described only two of the three tracts.

In 1958, when the defendant undertook to lease the property, he discovered that his sisters’ interests in one tract had not been conveyed to him. At his request they thereupon executed deeds conveying to him those interests. These last deeds are the ones in controversy.

The claim of fraud is based on the fact that the two sisters were illiterate and when they signed and acknowledged the instruments they did not know they were deeds. They testified in substance that the defendant represented to them it was necessary to execute these papers “to correct the boundary line on the old deed”.

There was ample evidence that all the parties intended the 1947 deeds to convey the sisters’ interests in all the land inherited from their father. The representation of the defendant in 1958 that he needed new instruments to correct the boundary line in the old deeds was substantially accurate and was not false. In addition, plaintiffs suffered no loss by reason of the conveyances because they simply corrected a mistake in the earlier deeds.

We are of the opinion there was adequate proof to support the Chancellor’s findings that there had been no material misrepresentation and that the sisters had not been overreached. Certainly on this record we are unable to adjudge that the Chancellor's findings were clearly erroneous.

The judgment is affirmed.


text:
    Jonnie Belle HOPSON, Adm’x of the Estate of Elizabeth Winlock, et al., Appellants, v. Sadie Rose EWING et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1961.
    Rehearing Denied Feb. 16, 1962.

      Willie C. Fleming, Charles W. Anderson, Jr., Louisville, for appellants.
    John C. Fogle, Boehl, Stopher, Graves & Deindoerfer, W. W. Evans, Louisville,, for appellees.
   PALMORE, Judge.

Following the death of Ike Weathers in July of 1957 the Jefferson County Court admitted to probate as his will the instrument hereinafter copied in full. A contest in the circuit court resulted in a directed verdict for the proponents. The contestants appeal on two main grounds, (1) that the instrument is insufficient in form and substance to constitute a will and (2) that it was not proved to have been executed in accordance with KRS 394.040.

Except for the signatures and date at the foot the document in question was written by typewriter. It reads as follows:

“Sadie Rose, Mary Rose and Joe Ellis
443 South 7th Street 1124 South 8th Street 3208-3210 Southern Avenue (2) Lots — 3608-3610 Grand Avenue City Truck — Jewelry—Bank Account — (1) Three Karat Diamond Ring.
Alonzo Dorsey—
524 South Ninth Street
Mary C. Duncan
All contents at 3606 Grand Avenue and 1120 South 36th Street
My home and everything.
She shall take care of George Smith as long as he lives.
/s/ Preston O. Davis
/s/ Thomas Manier
/s/ Ike Weathers
Nov. 20-1951”

“Of all instruments a will is least governed by form, the form being unimportant, except as indicating intent.” Dixon v. Dameron’s Adm’r, 1934, 256 Ky. 722, 77 S.W.2d 6, 7; 57 Am.Jur. 51 (Wills, § 20). “The absence of dispositive words such as ‘give,’ ‘devise,’ or ‘bequeath’ does not necessarily stamp an instrument as non-testamentary.” Id., p. 54, § 21. We have no difficulty in concluding that the paper before us in this case was intended as a will and was sufficient in form and substance for that purpose.

Our conclusion is supported by the evidence. The items of property listed on the instrument actually were owned by Weathers at the time of its execution. Davis, one of the attesting witnesses, testified that Weathers had told him beforehand he wanted him to witness his will. Manier, the other witness, said that while he and Davis were accompanying Weathers on the way to the place where the paper was executed he asked what was the purpose at hand and Davis, in the presence of Weathers, answered, “Ike’s going to make a will.” Where a nondescript instrument not in the usual form of a will is of ambiguous import on its face, extrinsic evidence is admissible to establish testamentary intent. 57 Am. Jur. 581 (Wills, § 874); Boggess v. McGaughey, 1948, 306 Ky. 319, 207 S.W.2d 766; Nelson v. Nelson, 1930, 235 Ky. 189, 30 S.W.2d 893, 896; 1 Bowe-Parker: Page on Wills, § 5.16, p. 204. See also annotation at 21 A.L.R.2d 319, 324.

The case of Harlan v. Anderson’s Ex’r, 1937, 267 Ky. 779, 103 S.W.2d 310, cited by appellants, is not in point for the principal reason that it was a suit to construe the disputed document, the probate of which had already been accomplished and was not in controversy. The instant litigation does not involve construction of the will.

Now as to the matter of execution. Weathers apparently was a man of little education, but of distinct commercial acumen, who had accumulated his estate from the bail bond business, the operation of a dump truck around the city hall in Louisville, and various other trading activities. He had the will prepared by some friend or lay empiricist in the city clerk’s office. He arranged with his old friends “Red Mike” Manier and “Fats” Davis to meet in the vicinity of the city hall at an appointed time. They all went to a big office with a long desk where a man handed him some papers. Then and there, in the presence of each other, they all signed. Both witnesses identified the will in question as the paper they signed. From the arrangement of the signatures it would appear, and the shifting testimony of the two witnesses indicated, that the testator signed last. He did not at any time on that occasion or thereafter refer to the instrument as a will, nor did he so acknowledge it by any manifestation beyond what we have recited here.

We do not have here a question of acknowledgment. KRS 394.040 requires that a non-holographic will be signed or acknowledged in the presence of the witnesses. Since Weathers signed the will in the presence of Manier and Davis, whether he acknowledged it is immaterial. Bennett v. Craycraft, Ky.1956, 290 S.W.2d 615; Darnaby v. Halley’s Ex’r, 1948, 306 Ky. 697, 208 S.W.2d 299 (in which case the statute was held satisfied by subscription before one witness and separate later acknowledgment before another).

Where the testator subscribes the will in the presence of the witnesses there is no requirement relating to the order in which the signatures are affixed, so long as each attesting signature is made in the testator’s presence. See the leading case of Swift v. Wiley, 1840, 1 B.Mon. 114, 40 Ky. 114 (where two of three witnesses, though present when the testator signed the will, had affixed their own signatures some hours before); and Sechrest v. Edwards, 1862, 4 Metc. 163, 61 Ky. 163. Even in the case of acknowledgment, vis-a-vis subscription, where it may be argued with some force that there is no will to be acknowledged until the testator has signed, it has been held that if the whole transaction is substantially contemporaneous the order of precedence is of no moment. Robertson v. Robertson, 1930, 232 Ky. 572, 24 S.W.2d 282. See also annotations at 39 A.L.R. 933 and 57 A.L.R. 833. So in this case nothing can be made of the point that one or both witnesses signed ahead of the testator.

The appellants raise further questions of a technical nature. In a pretrial deposition Preston O. “Fats” Davis evidently had given testimony indicating that he and Weathers signed before the arrival of Manier, the other witness. At the trial the propounders proved the execution of the will by the testimony of Manier alone. Davis was put on the stand by the contestants. He disappointed them by corroborating the evidence given by Manier except as to the time of day when the transaction took place. Without objection counsel for the contestants proceeded to question him concerning the contradictory statements made in the deposition. But the witness was nimble as an eel, and held fast to his later testimony. In fact, we are not satisfied after a study of the transcript that he ever really admitted that he had made the statements read from the deposition, and if he did so he nevertheless did a good job of explaining the discrepancies away. But anyway, counsel for the proponents did not ask the court to admonish the jury as to the effect of the contradictory statements, and the contestants now contend that they should have been taken as substantive testimony creating a conflict in the evidence and precluding a directed verdict.

We agree with the position taken by the learned trial judge. It is difficult to see under what rational theory testimony that the law specifically limits to such minimizing influence as it may have on the credibility of the witness could be treated as having probative force. Among other reasons, the very fact that the witness declines-to ratify it on the witness stand destroys, whatever weight it might otherwise possess. Its greatest possible consequence could beta erase the force of the witness’ later testimony at the trial, and if we apply that theory to this case we are left with all the-evidence still on one side. True, the burden of showing proper execution of the will was on the propounders, Poindexter’s, Adm’r v. Alexander, 1939, 277 Ky. 147, 125 S.W.2d 981; Speshiots v. Coclanes, 1949, 311 Ky. 547, 224 S.W.2d 653, but the proof' laid down by them in this case was such-that reasonable men could arrive at but one conclusion. Hence the peremptory was in order.

Judgment affirmed.


text:
    W. N. FRITZ, d/b/a West End Drive In Liquors, Appellant, v. ALCOHOLIC BEVERAGE CONTROL BOARD of the Commonwealth of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 19, 1962.

      Thomas F. Marshall, Funk, Chancellor & Marshall, Frankfort, for appellant.
    Robert Hines, Jr., Alcoholic Beverage Control Bd., Frankfort, for appellees.
   CULLEN, Commissioner.

In August 1959 appellant W. N. Fritz made application to the Department of Alcoholic Beverage Control for a retail package liquor license for premises located in Christian County. His application was rejected by the Alcoholic Beverage Control Board on the ground that the quota for such licenses in Christian County was full. On appeal to the circuit court judgment was entered upholding the order of the hoard, and Fritz has appealed to this Court from that judgment.

Since 1956 there has been in force a regulation of the Alcoholic Beverage Control Board governing the fixing of quotas for alcoholic beverage licenses. The pertinent parts of that regulation are as follows:

“(1) The number of retail package liquor licenses issued by the Alcoholic Beverage Control Board in counties of the Commonwealth shall not exceed a number equal to one for every two thousand five hundred persons resident in such county.
* * * * * *
“(3) In order that a fixed and approved standard of population as prescribed in subsections (1) and (2) of this regulation may be adopted, the annual estimates of population as determined by population estimates for Kentucky counties prepared by the Agricultural Experiment Station, University of Kentucky, Lexington, Kentucky, shall be used in every year except a census year. The United States Government census figures of population shall be used in a census year.”

It appears that it has been the practice of the Alcoholic Beverage Control Board to enter orders from time to time, under the above regulation, fixing specific quotas for various counties.

At the time Fritz filed his application the fixed quota for retail package liquor licenses in Christian County was 22. In September 1959, while his application was pending, the board entered an order raising the quota to 24. However, one previous applicant was given License No. 23, and another previous applicant, after a period of litigation, was given License No. 24. See Turner v. Portwood, Ky., 335 S.W.2d 578. Fritz maintained that the population of Christian County in 1959 was such as to authorize a quota of 25 licenses, and at his hearing before the board on December 2, 1959, he was permitted, without objection, to introduce in evidence a letter from an official of the Agricultural Experiment Station stating that if the annual rate of population increase in Christian County during the period 1950-1958 obtained from mid-1958 to mid-1959 the population of the county as of July 1, 1959, would have been in excess of 63,300 (which would be enough for 25 licenses). The board, however, rejected the application on the ground that the existing established quota was 24 and it was full.

Fritz contends that the regulation of the board is self-executing and that whenever upon an application for a license a showing is made of the amount of population of the county in question according to the standard prescribed by the regulation, the quota automatically becomes a number equal to one license for each 2,500 of the population shown. The board maintains that the regulation is not self-executing and that the specific quota for any county is to be fixed by a formal order of the board under appropriate procedure.

As we view the case it is unnecessary for us to decide whether, in the absence of a later implementing order fixing specific quotas, the 1956 regulation would be self-executing,' because in the instant case such an order (fixing quotas for all “wet” counties) was entered while Fritz’ application was pending before the board. This being a current order, fixing quotas applicable to the year 1959, we think that it was conclusive in the absence of a showing that it was fraudulent, arbitrary or capricious. See Lexington Retail Beverage Dealers Ass’n v. Department of Alcoholic Beverage Control Board, Ky., 303 S.W.2d 268. No showing was made by Fritz that the .order was not entered in conformity with the standard prescribed by the regulation.

Fritz relies upon Turner v. Portwood, Ky., 335 S.W.2d 578, as authority for his argument that the proper quota is to be determined in accordance with population estimates as shown by evidence submitted upon an application for a license. It is true that the opinion in the Turner case refers to the evidence submitted by the applicant concerning the population of the county, but the decision was rested upon the fact that while the application was still in the course of litigation the board by formal order had increased the quota for the county.

The judgment is affirmed.


author: WADDILL, Commissioner. MILLIKEN,.Judge

text:
    Lucille JONES, Appellant, v. CAMPBELL COMPANY, Inc., a Corporation et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.
    Rehearing Denied Feb. 16, 1962.

      W. Howard Clay, Louisville, for appellant.
    Gavin H. Cochran, Peter, Heyburn & Marshall, Louisville, for appellees.
   WADDILL, Commissioner.

The sole issue on this appeal is whether a woman who knowingly lived in adultery with an employee who meets with a fatal accident while at work can recover workmen’s compensation benefits as his dependent.

The determinative facts are not in dispute since appellant admits that she knew the deceased employee had a wife from whom he was not divorced, nevertheless, she lived with him as his wife and was supported by him for approximately ten months preceding his death. The Workmen’s Compensation Board dismissed her claim for compensation and the Board’s order was upheld by the circuit court.

While appellant qualifies as a dependent under the language used in KRS 342.075(3), we have heretofore read into this subsection a rule of public policy which precludes the recovery of compensation under circumstances such as are disclosed in the instant case. In Nall v. Wakenva Coal Co., 236 Ky. 598, 33 S.W.2d 631, 635, it was stated that “a sound public policy forbids the allowance of compensation founded on a relationship known to be illicit.” This rule was also approved and applied more recently in Blue Diamond Coal Co. v. Hensley, 314 Ky. 85, 234 S.W.2d 317, and in Hatfield Campbell-Creek Coal Co. v. Adams, 275 Ky. 744, 122 S.W.2d 787. On the authority of these cases we are sustaining the judgment upholding the order of the Board dismissing appellant’s claim.

Judgment affirmed.

MILLIKEN,.Judge

(dissenting).

I am aware of the precedents cited to affirm this judgment. However, I believe our Legislature established the public policy by enumerating the specific requirements for dependency in the statute (KRS 342.-075). This Court’s recognition of immorality of the claimant as a defense reads into the statute a further declaration of public policy which is repugnant to the broad social purposes of our Workmen’s Compensation Act. Therefore, I am convinced the rule followed in the majority opinion is unsound and I would no longer adhere to it. For a discussion of the question see Larson, Workmen’s Compensation Law, Section 140.

For these reasons I would reverse the judgment and remand the case to the Workmen’s Compensation Board for an appropriate award.

PALMORE, J., joins with me in this dissent.


author: STEWART, Judge.

text:
    Ida JOHNSON, Appellant, v. Elizabeth M. WINBURN, Ex’x of the Estate of G. L. Wainscott, Appellee.
    Court of Appeals of Kentucky.
    Nov. 10, 1961.
    Rehearing Denied Feb. 16, 1962.

      Redwine & Redwine, Winchester, for appellant.
    C. W. Swinford, Lexington, for appellee.
   STEWART, Judge.

The sole question in this workmen’s compensation case is whether there is evidence to support the finding of the Board that Daniel Boone Johnson, who lost his life in an accident, was not an employee of the owners of a building under repair but was engaged as an independent contractor.

The estate of G. L. Wainscott owned, leased and maintained a number of different properties in Clark County. The executrix, Elizabeth M. Winburn, or her husband for her, looked after keeping the buildings in repair. The decedent, Johnson, and Robert Reeves were carpenters. The estate employed Reeves to put a steel beam in a first floor ceiling of a leased business house, and he hired Johnson to help. While the men were so engaged, the upper floor fell and Johnson was killed. His widow filed claim against the estate for workmen’s compensation.

It appears the claim was first referred to a referee by the name of Rodney Thompson to determine the question of whether the employer was operating under the Workmen’s Compensation Act (herein called “the Act”). For some undisclosed reason Charles B. Lester, another referee, reported on the evidence taken and found the Workmen’s Compensation Board had no jurisdiction over the case, as the estate did not come within the application of the Act. More definitely, the referee concluded Johnson was an independent contractor and, hence, his widow was precluded from recovering.

Upon a full Board review, it was ruled the Board did have jurisdiction to adjudicate the claim because the estate had accepted the Act and was operating under it. The case was then ordered re-referred to Thompson, the first-mentioned referee, for additional evidence to be heard on the question of whether Johnson was an employee of the estate or, instead, an independent contractor.

Another referee, upon the basis of further proof that was taken and considered, confirmed the original finding of referee Lester, namely, that Johnson was not an employee of the estate but was an independent contractor. This finding was upheld by the Board and, upon review, by the circuit court. This appeal followed.

Appellant contends the finding of the Board, first noted above, was conclusive on the question of the employer-employee relationship and, for this reason alone, her claim' should have been sustained. That ruling was only that the estate had accepted the provisions of the Act in the management of its business and in the maintenance of its other properties. It has no bearing on the question before us as to whether or not Johnson was an employee of the estate; in fact, this was the sole issue re-referred to the referee for a finding.

The facts, as found by these referees and fully sustained by evidence, may be summarized. Robert Reeves was employed by different persons in his community to do carpentry work by the hour and not by the job or contract. He had been so hired previously by the estate to work on different buildings. In doing each job, he furnished his own tools, exercised complete control over the details and put in such hours as suited him. He hired his helpers by the hour, and they followed the same plan as he. Upon completion of a job, Reeves would submit to the person who had employed him the time of himself and his helper and would receive a check for the entire wages without any deduction being made for social security taxes. These taxes would be withheld by Reeves from the payments he made to Johnson.

On the occasion when Johnson was killed, Reeves had procured Johnson to assist him, and Reeves was compensated by the estate for the hours he and Johnson had worked. Reeves paid Johnson’s widow for the labor the decedent had done on this job. While the work was going on, Elizabeth M. Win-burn’s husband, who represented the estate, would come by and look on, but never did he undertake any supervision or control over it.

Appellant points to the statements of Reeves to the effect that Mr. Winburn told him what to do and otherwise supervised the job. She claims the employer-employee relationship was proved by Reeves’ answer that Johnson was “working for Mrs. Win-burn” when he was asked whether Johnson was working for him or Elizabeth M. Win-burn. He stated definitely that he received the money from her and delivered it to Johnson as “an errand boy.” Appellant also rests her claim upon evidence that appellee’s check stub showed how much of the final check was for Reeves and how much for Johnson.

It is apparent there is evidence to support the findings of fact by the Board. The question becomes a legal one whether the facts so found established or did not establish the employer-employee relationship as between the estate and Johnson.

In Sam Horne Motor and Implement Co. v. Gregg, Ky., 279 S.W.2d 755, we recognized the distinguishing factors between an employee and an independent contractor as laid down in the Restatement of the Law of Agency, Vol. 1 (Agency 2d), § 220(2), pp. 485, 486. In Cove Fork Coal Co. v. Newcomb, Ky., 343 S.W.2d 838, we referred to the Gregg case (an automobile tort action) and noted that there is a more liberal construction in favor of a claimant for workmen’s compensation as an employee than there is in determining the relationship of master and servant or principal and agent in tort actions. Appellant relies on that case. The facts here are materially different.

The relationship of Reeves to the estate was that of an independent contractor; it was he and not the estate who hired Johnson to help him do the job. The fact that Reeves received his wages and the amount of wages he paid Johnson from the estate does not change the basic situation. We, therefore, believe the Board’s finding should not be disturbed.

Wherefore, the judgment is affirmed.


author: MOREMEN, Judge.

text:
    Hazel SHEPPARD, Appellant, v. IMMANUEL BAPTIST CHURCH et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    Rehearing Denied Feb. 16, 1962.
    Howell W. Vincent, Edwin H. Henry, Covington, for appellant.
    Marion W. Moore, Blakely, Moore & O’Hara, Covington, for appellees.
   MOREMEN, Judge.

Appellant, Hazel Sheppard, brought suit against appellees, Immanuel Baptist Church and its Board of Trustees, by- which she sought to recover damages for injuries she sustained when she fell in the church. Appellees filed an answer which contained, inter alia, a plea that the church was operated as a religious charitable institution and therefore was immune from liability for tortious actions and also that appellant had been guilty of contributory negligence. The deposition of appellant was taken on discovery, and two affidavits by the minister, Rev. Coers, were filed. A motion of appellees for summary judgment was sustained by the circuit court. We are unable to determine from the judgment whether the motion was sustained on the ground that the church was not liable for tort or whether the facts disclosed on discovery and by affidavit were the bases of a finding that appellant beyond doubt was guilty of such contributory negligence as bars recovery.

The judgment was entered before our decision in Mullikin Adm’x v. Jewish Hospital Association of Louisville, Ky., 348 S.W.2d 930, wherein this court departed from its previous rule which granted to such charitable institutions immunity from tort liability, and permitted these institutions to assume the same duties and liabilities as those of other persons and entities not engaged in religious or charitable work.

There remains the question of whether a summary judgment should have been granted on the ground that there was no genuine issue as to any material fact concerning whether appellant was contribu-torily negligent.

The deposition taken on discovery and the affidavits by the minister failed to show clearly facts as to the conditions which caused the fall by appellant. She testified that a short time before three o’clock on February 1, 1958, she entered the church of which she was a member for the purpose of attending the marriage ceremony of her stepson. Shortly before the ceremony the minister summoned her into his office. The office had two doors which were open. She entered the door from the front vestibule of the church. After she had been in the office a few minutes someone else appeared at the same door and the minister invited her to leave by a door other than the one through which she had entered.

It is impossible to obtain from the record a true description of the circumstances which existed. Apparently there was an unlighted hall outside the door that contained a ramp which she stated led to the basement. We also get the impression that through this hall one may reach flights of stairs which lead to a chapel the next floor above.

She testified:

“Q. You walked out that door? A. Yes.
“Q. What if anything happened? A. I fell on my face.
“Q. Did you have to step up? A. No.
“Q. Did you have to step down ? A. I should have stepped down, I did not 'know there was a step there. It slopes down, as it runs down the ramp it gets higher as the ramp goes down.
“Q. There’s a step off? A. Yes, it starts out little and gets higher.”

An affidavit by Rev. Coers contained this statement:

“Some other matter came up and Hazel Sheppard was excused by this Affiant, and as she was making her way out the opposite door from which she had entered, she stumbled over the offset which exists in the building, fell with force and injured herself.”

Appellant also testified that she did not look down to see if there was a step off. A ramp leading from a door is not rare but at the same time it is not such a common or ordinary method of construction that it might reasonably be anticipated by one entering a dark hall if the hall in fact is without proper lighting. We are not sure if this ramp leads directly either up or down from the door; in fact, the testimony of appellant indicated that the ramp crossed the door in a right angle plane when she stated “I did not know there was a step there. It slopes down, as it runs down the ramp it gets higher as the ramp goes down.” Rev. Coers’ statement that “she stumbled over the offset which exists in the building” adds nothing to clarify the picture.

We have held that a party moving for summary judgment under CR 56 has the burden of establishing that no genuine issue as to material facts exists and that he is entitled to a judgment as a matter of law. Puckett v. Elsner, Ky., 303 S.W.2d 250. It has also been held that even when the facts are uncontroverted the party seeking summary judgment must place before the court facts sufficient to enable it to apply appropriate principles of law. Fergerson v. Utilities Elkhorn Coal Co., Ky., 313 S.W.2d 395.

In the case at bar from the evidence produced we are unable to determine what the conditions were at the place of the accident or the real direct and proximate cause of appellant’s injury. The facts in this case are similar to those in Scheiber v. City of Louisville, Ky., 324 S.W.2d 822, 823, where after taking defendant’s deposition for purposes of discovery motions for summary judgment were filed on the ground that it appeared from the deposition that there was no genuine issue of a material fact as to the negligence which was the proximate cause of plaintiff’s injury.

It was said:

“The plaintiff has prosecuted an appeal from the judgment dismissing his complaint against the City of Louisville. He has not appealed from the judgments dismissing it against the other defendants.
“The plaintiff’s deposition is indefinite as to the exact spot of the defective condition of the sidewalk where he fell and as to whether he stepped in a hole or stumbled on a loose and rough surface. He just didn’t seem to know exactly what caused him to fall, hut he did say unequivocally there was a ‘good sized hole’ and a break in the sidewalk which caused him to fall. He suffered a broken leg and was taken to the hospital immediately. We regard the deposition as containing enough evidence of substance to show that there were issues of fact of causal negligence.
“The burden is upon the movant for a summary judgment to convince the court by the record of the non-existence of an issue. It is to be borne in. mind that there is a difference between discovering whether there is an issue of fact to be tried and whether after trial the evidence is insufficient as a matter of law to take the case to the jury. CR 56.03; Rowland v. Miller’s Adm’r., Ky., 307 S.W.2d 3, and authorities cited therein; Fergerson v. Utilities Elkhorn Coal Co., Ky., 313 S.W.2d 395. We conclude, therefore, the summary judgments should have been denied.”

A warning of the danger of granting summary judgment in such cases may be found in Moore’s Federal Practice, 2nd Ed. Vol. 6 § 56.17 (42) Page 2232, where it is said:

“Here we start with the general proposition that issues of negligence, including such related issues as contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the' ordinary manner. But there are cases when a summary judgment may properly be rendered.”

CR 56 was never intended to be a substitute for a court trial in cases where a party has not had an opportunity to present all the facts which might help lead the court to a just determination of the cause. As is said in Payne v. Chenault, Ky., 343 S.W.2d 129, 133, which is not a negligence case although the reasoning is applicable here:

“■Where there is a genuine issue on a material fact, and it is properly joined by the pleadings, a trial is the only battleground. Until the time of trial every litigant must have the opportunity to search for and secure whatever evidence may be necessary to perfect his case, and unless it is manifestly impossible for him to produce it he cannot be forced to a premature showdown in that respect by a motion for summary judgment.”

We believe the motion for summary judgment should not have been sustained and the judgment is therefore reversed.

MONTGOMERY and STEWART, JJT.„ dissent.