author: BRADY, Commissioner.

text:
    CONTINENTAL-ST. LOUIS CORPORATION, Plaintiff-Appellant, v. RAY SCHARF VENDING COMPANY, Inc., Defendant-Respondent.
    No. 32163.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.

      Baron & Freed, Charles B. Baron, David Baron, St. Louis, for plaintiff-appellant.
    Hale W. Brown, Kirkwood, for defendant-respondent.
   BRADY, Commissioner.

The appellant instituted an action on an account against the respondent whereby it sought to recover $11,114.26 and interest thereon. Respondent denied owing this amount and, by way of a counterclaim, sought recovery from the appellant for $12,000.00 it alleged it lost through the fraud of the appellant acting through the manager of the appellant’s office in St. Louis, Mo. The trial court directed a verdict in favor of the appellant on its petition in the amount of $12,970.34. The jury returned a verdict in favor of the respondent on his counterclaim in the amount of $14,-134.00. The trial court then entered a judgment in favor of defendant for the sum of $1,163.66. The respondent filed no appeal, and we have before us only the appellant’s contentions with regard to the verdict on the counterclaim. We will hereafter refer to these parties by their designation in the trial court.

The parties here involved are engaged in the owning and operating of coin operated vending machines in Missouri. The defendant first began dealing with the plaintiff about a year and a half prior to the occurrence of the events which form the basis for the defendant’s counterclaim. Plaintiff’s St. Louis office was then being managed by one Borden who by the time pertinent to this appeal had been replaced by Louis Saladino. At some undetermined date in May of 1960 Scharf, president of the defendant, had several dealings with Sala-dino. On these occasions Scharf had purchased certain items of equipment and there were also three to five occasions where the purchase of individual “stops” or locations of a vending machine was involved. The most money involved in any one of these transactions was $2,200.00 which Saladino collected for the plaintiff.

In October of 1961 Scharf had a discussion with Saladino at the plaintiff’s office concerning the purchase of the machines and route of the Automatic Sales Company, another vending company. In essence the evidence was that Saladino showed Scharf a list of over 400 stops operated by Automatic, the purchase price of which Saladino gave as $150,000.00. The defendant was to take twenty-five per cent in return for-the payment of $37,500.00. Saladino explained that Continental was having trouble with another vending company at that particular time and was in no position to make the purchase from Automatic in their own name. Scharf agreed to the purchase in defendant’s name. Saladino also told Scharf not to contact anyone at Automatic as he, Saladino, was handling the transaction. Scharf complied. Scharf testified that Saladino told him: “ * * * he had to go to New York to make these arrangements, and he had an attorney in Clayton that was drawing the papers up, and he did leave and go to New York a couple of days and came hack and contacted me again and said that the deal was all okay’d by the New York office, he had the authority to complete the deal and we went ahead on the arrangements.” There is no evidence that Scharf made any inquiry of anyone at the Continental home office in New York or anyone in the St. Louis office other than Saladino. Scharf was to give Saladino a check for $12,000.00 as part of defendant’s total payment of $37,500.00. Scharf’s testimony was that they discussed how the check was to be made out and that Saladino told him to make the check payable to Saladino because he was negotiating the deal with Automatic and again gave the reason for not putting plaintiff’s name on the check as being necessary because of the problems that Continental was having at that time. Scharf personally wrote in the name of Louis Sala-dino as payee on the check. Saladino then gave Scharf a note which, after reciting the amount of $12,000.00 and the date, reads as follows: “On demand I promise to pay to the order of Ray Scharf Vending Co. Inc. ■-Dollars at Kirkwood, Mo.” It was signed by Louis Saladino. The defendant alleged that Saladino endorsed the note on the back of it and above his signature placed the name “Continental-St. Louis Corporation.” These are the only documents of any nature Scharf saw during the entire transaction.

Scharf’s further testimony was that he had never bought a route before except the one he was operating at the time of this transaction and admitted he considered it unusual to receive a note when he was buying things. About ten days after this transaction took place Scharf found out there was no route for sale from Automatic and that Saladino had disappeared taking with him the $12,000.00. Scharf also testified that as an officer of the defendant corporation he was familiar with the fact that resolutions by the board of directors of corporations were often required for financial dealings and that he never asked for any corporate resolution from plaintiff with regard to this transaction. There is no evidence that plaintiff received any part of the $12,000.00 nor any evidence that anyone but Saladino participated in the working of this scheme or benefited from it.

Among the many allegations of prejudicial error presented by the plaintiff is the contention the trial court erred in overruling plaintiff’s motion for a directed verdict offered at the close of all the evidence. In consideration of this allegation of error we are to view the evidence in the light most favorable to the defendant, granting it the benefit of all reasonable inferences to be drawn therefrom, and we are to determine whether the defendant made a submissible case on its counterclaim considering the issues submitted. Thaller v. Skinner & Kennedy Co., Mo.App., 307 S.W.2d 734, transf. Mo., 315 S.W.2d 124; Taylor v. Hitt, Mo.App., 342 S.W.2d 489; La Tour v. Pevely Dairy Co., Mo.App., 349 S.W.2d 436; Kagan v. St. Louis Public Service Co., Mo.App., 360 S.W.2d 261; Adler v. Ewing, Mo.App., 347 S.W.2d 396. In the instant case the defendant submitted its counterclaim under an instruction which first informed the jury they were not required to find the plaintiff actually knew of the arrangement between Saladino and the defendant nor need they find that the plaintiff actually received the money the defendant paid Saladino. The instruction then required the jury to find each part of Sala-dino’s fraudulent scheme although there was no dispute in the evidence about any hypothesization contained in the instruction as to how Saladino perpetrated this fraud. The jury was then required to find that neither Saladino nor the plaintiff conveyed the one-fourth interest in the Automatic route to the defendant nor refunded to the defendant the $12,000.00. Again there had been no dispute regarding these matters. The defendant’s verdict directing instruction closed with the following hypothe-sization: “ * * * and if you further find that from Ray Scharf’s previous dealings with Louis Saladino, Ray Scharf reasonably believed that Louis Saladino had authority to act for plaintiff in the manner aforesaid, then your verdict should be for the defendant, Ray Scharf Vending Company, Inc. * * *”

When a third person is dealing with an agent, the agent’s scope of authority may go beyond the actual authorization conferred upon him by his principal and include also that which has apparently been delegated to him. That is to say, the agent may also have “apparent” or “ostensible” authority; i. e., that authority which though not actualy granted to him by his principal, the principal knowingly permits the agent to exercise or which the principal holds the agent out as possessing. The rule is stated in 3 Am.Jur.2d, Agency, § 74, p. 477, as follows: “Stated inclusively, then, the rule is that if a principal acts or conducts his business, either intentionally or through negligence, or fails to disapprove of the agent’s act or course of action so as to lead the public to believe that his agent possesses authority to act or contract in the name of the principal, such principal is bound by the acts of the agent within the scope of his apparent authority as to any person who, upon the faith of such holding out, believes, and has reasonable ground to believe, that the agent has such authority, and in good faith deals with him.” The Restatement is to the same effect. Restatement of the Law, Second, Agency, § 8, p. 30, reads as follows: “Apparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the other, arising from and in accordance with the other’s manifestations to such third persons.”

It is to be noted that both the Restatement and American Jurisprudence refer to the principal’s conduct or manifestations and not to those of the agent. It is well settled that apparent or ostensible authority is not to be determined from the acts or statements of the agent but from the acts, statements or other manifestations of the principal. Apparent authority cannot be created by the agent’s own conduct and statements and neither can it be enlarged in that manner. 3 Am.Jur.2d, Agency, § 75, p. 479. In that same section at page 477 it is stated that there are three prerequisites to the establishment of apparent or ostensible authority. It must be established (3 Am. Jur.2d, Agency, § 75, pp. 477-478) “ * * * (1) that the principal has manifested his consent to the exercise of such authority or has knowingly permitted the agent to assume the exercise of such authority; (2) that the third person knew of the facts and, acting in good faith, had reason to believe, and did actually believe, that the agent possessed such authority; and (3) that the third person, relying on such appearance of authority, has changed his position and will be injured or suffer loss if the act done or transaction executed by the agent does not bind the principal. * * * ”

In the instant case proof of the first requirement is missing from the evidence. There is no evidence upon which the jury could find the plaintiff manifested its consent to the exercise of the authority to arrange and conclude the purchase of Automatic by Saladino or that it knowingly permitted Saladino to assume the exercise of such authority. The evidence is that plaintiff knew nothing of Saladino’s scheme and neither does it appear that he had ever been authorized to arrange or conclude such transactions for plaintiff in the past. What does appear from this record is that plaintiff had allowed Saladino to sell the defendant some cigarette and music vending machines as well as certain individual “stops” and, on behalf of plaintiff, to receive the monies defendant paid on these occasions. It will be noted the instruction specifically limits those items of evidence from which the jury could find Scharf “reasonably believed” Saladino had authority to so act for the plaintiff to those items of evidence relating to Scharf’s “previous dealings.” It is therefore apparent that defendant’s theory is the fact Scharf had dealt with Saladino on the occasions above noted constituted sufficient proof to authorize submission to the jury of whether Scharf reasonably believed Saladino had the authority to act for plaintiff with respect to arranging for and concluding their joint purchase of Automatic’s route of over 400 stops together with its equipment. There are several reasons defendant’s theory is without merit. In the first place the vast difference between the nature of the action Saladino proposed with reference to Automatic and the very limited scope of Saladino’s previous dealings with Scharf would negate any contention that by its action with regard to their previous dealings the plaintiff manifested its consent to Saladino’s acting for them with regard to the purchase of Automatic’s route. The appearance of authority in one respect does not extend to other acts which are not of a like nature. 3 Am. Jur.2d, Agency, § 75, p. 478 and cases cited at Note 7. Saladino had previously been selling the plaintiff’s own property to Scharf and on an occasional and individual basis. That is a very different thing from the proposal he made to Scharf with regard to Automatic by which, had the proposal been genuine, Saladino would have been arranging for Scharf and plaintiff to purchase the route and equipment of another company and for Scharf to become a partner with the plaintiff in the operation and ownership of the route and equipment to be purchased.

In the second place the defendant’s own evidence shows conclusively that Scharf knew that this was not a usual transaction or one which Saladino had authority to handle by virtue of his position with the plaintiff. Scharf himself testified that Saladino told him that it was necessary to go to New York (where Scharf knew plaintiff’s main offices were located) to make the arrangements for this purchase and that upon his return Saladino contacted Scharf and informed him “ * * * that the deal was all okay’d by the New York office, he had the authority to complete the deal * * Regardless of what had happened before that time, it is clear that thereafter Scharf had the burden of determining for himself the existence of Saladino’s authority to act with reference to the contemplated purchase and had to exercise reasonable diligence and prudence in making that determination. 3 Am.Jur.2d, Agency, § 78 and cases cited at Note 10; see also § 80 and cases cited at Note 20. In the instant case, in spite of the fact that he had been told that the proposed deal required a trip to and approval by the home office, Scharf made no attempt to make any inquiry or to ascertain from some authoritative source whether Saladino had the authority to bind the principal. It is obvious from this record that the defendant dealt with Saladino purely and solely on the basis of Saladino’s representations to Scharf regarding his authority. This was so even after Saladino himself indicated that his usual authority was not broad enough to cover this particular transaction and in spite of the fact that Scharf’s own testimony shows that he was familiar with the fact that resolutions of the boards of corporations were often required with regard to financial dealings. Saladino was not even one of plaintiff’s officers but only an agent, yet the defendant proceeded blindly, entranced by Saladino’s own representations as to his authority. As has been stated earlier herein, apparent or ostensible authority cannot be created or enlarged by the agent’s own statements or representations. The determining factor is the manifestations of the principal which would reasonably lead a third party dealing with the agent to conclude the agent in fact had the authority he stated he did. Such evidence is lacking from this record.

The judgment is reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the plaintiff and against the defendant in the sum of $12,970.34 plus costs.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded to the trial court with directions to enter its judgment in favor of the plaintiff and against the defendant in the sum of $12,-970.34 plus costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    William AUBUCHON, Plaintiff-Respondent, v. Don AYERS, Defendant-Appellant.
    No. 32207.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.

      Wilburn A. Duncan, Robert R. Young, St. Louis, for defendant-appellant.
    Gerald K. Rabushka, Clayton, for plaintiff-respondent.
   BRADY, Commissioner.

The plaintiff brought an action in the magistrate court of the City of St. Louis for personal injuries and property damage arising out of an automobile collision. The prayer of the petition was for $750.00 and costs. Trial resulted in a judgment in favor of plaintiff for the amount prayed. The defendant posted bond and filed his timely notice of appeal. The appeal rested in the circuit court for slightly over two months and then plaintiff, by leave of court, dismissed his “cause of action” without prejudice and at his costs. The defendant’s motion to set aside that dismissal was overruled by the trial court. Two days later the defendant filed a motion stating that he took the appeal pursuant to Civil Rule 82.05, (a), V.A.M.R. The trial court sustained this motion stating “leave granted.” The plaintiff then filed a motion to set aside this order granting defendant leave to appeal. The trial court also overruled this motion. The plaintiff later filed a new action in the circuit court wherein he prayed for $15,000.00 for damages arising from the same accident.

Recognizing that it has long been the rule in this state that an appeal will not lie from an order granting a voluntary non-suit (§ 512.020, RSMo 1959, V.A.M.S., and cases collected at note 83), the plaintiff has filed a motion to dismiss this appeal on the grounds the trial court’s ruling on defendant’s motion was not an appealable judgment. We took that motion with the case and it is now for our ruling. It should be pointed out what little difference exists as to whether the decision in the instant appeal be ruled upon the motion to dismiss or upon the merits of the appeal is one of form and. not of substance. This for the reason that a party cannot appeal unless he is “aggrieved” by the final judgment of the trial court. That is merely another way of saying that the party “aggrieved” has shown he will lose some right of defense or the other party will gain some undue advantage if allowed to dismiss without prejudice, and this has been held to be the proper scope of inquiry in determining whether a party should be allowed to dismiss without prejudice. McClellan v. Sam Schwartz Pontiac, Inc., Mo., 338 S.W.2d 49, l.c. 53, quoting from Smith v. Taylor, Mo.App., 289 S.W.2d 134, l.c. 140. For that reason we will rule this appeal upon the motion to dismiss the appeal on the ground the defendant was not aggrieved by the trial court’s ruling. It should be noted that a ruling upon the motion constitutes, in effect at least, a ruling upon the merits and in this respect the instant case is somewhat unusual.

In McClellan v. Sam Schwartz Pontiac, Inc., supra, the availability of a voluntary dismissal without prejudice and by leave of court, following an appeal from a judgment of the magistrate court was squarely ruled. In that case plaintiff, an automobile dealer, brought suit in the magistrate court to recover the balance due on a promissory note signed by the defendant. The defendant denied the plaintiff’s petition alleging failure of consideration in that he never received title to the automobile and filed a counterclaim alleging the payment of $1,242.33 upon the note and praying for a judgment of $1,000.00, the monetary jurisdictional limit of the magistrate court at that time. Trial resulted in judgment for defendant upon plaintiff’s petition and for plaintiff upon defendant’s counterclaim. The plaintiff appealed to the circuit court. After the case was properly lodged in the circuit court the defendant, by leave of court, dismissed his counterclaim without prejudice and three days later filed a new action in the circuit court for $1,242.33, and for punitive damages in the amount of $25,000.00. The plaintiff filed a motion to dismiss the later action originating in the circuit court, and as grounds therefor recited the events stated above and incorporated the appeal from the magistrate court in its motion. The trial court sustained plaintiff’s motion and dismissed the second action. The court reviewed the case law and the pertinent statutes, in particular § 512.250 (unless otherwise noted, all statutory references in this opinion are to RSMo 1959, V.A.M.S.), § 512.270, § 512.280, § 512.290, § 512.310, all of which, except § 512.290, are pertinent to the instant case. It then made five conclusions of law of which four directly rule the instant case. (The other dealt with whether a counterclaim could be amended in the circuit court to state a higher prayer.) It was first held the appeal transferred the whole case including the counterclaim to the circuit court; the court then held (McClellan v. Sam Schwartz Pontiac, Inc., 338 S.W.2d 49, l.c. 52, [2], (2), (4), and (5)): “(2) When the appeal was taken ‘The cause is considered as still pending, no regard is had to the judgment of the justice, and the rights of the parties are the same as they would be in any other suit pending in the courts of record.’ Turner v. Northcut, 9 Mo. 251, 256. * * * (4) After the appeal was lodged in the circuit court appellant ‘shall be allowed’ to dismiss his counterclaim without prejudice, at any time before the same is finally submitted. Sections 510.130 and 510.160. (5) After dismissal of the counterclaim without prejudice appellant could ‘bring another action for the same cause.’ Section 510.150.” The Supreme Court held the defendant (338 S.W. 2d 49, l.c. 52) “ * * * had the right to follow that procedure and hence the court erred in entering the judgment of dismissal” in the second action.

It is obvious that the decision in McClellan is bottomed upon the second conclusion containing the citation from Turner v. Northcut, 9 Mo. 251. In turn this depends upon whether the judgment of the justice (magistrate) court is considered to have been vacated or suspended by the appeal to the circuit court. The decision in Turner v. Northcut, supra, and a long line of decisions since that time is to the effect that the judgment of the justice or magistrate court is vacated by an appeal to the circuit court. The court in Turner v. Northcut, supra, reached its decision by an interpretation of Sec. 8, Art. 8 of the act relating to justice courts as found in RSMo 1835. That section would seem to be procedural in scope, and is the same, practically speaking, as § 512.270 of our present statutes. The pertinent language found in both the 1835 act and in the present statute is to the effect that upon the circuit court being possessed of the cause on appeal it “ * * * shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection on the trial, judgment or other proceedings of the magistrate or sheriff in relation to the cause.” The court in Turner v. Northcut, supra, made no reference to Sec. 3, paragraph 2, of Art. 8 of the act relating to justice courts, RSMo 1835. Again the language of that section has been carried forward and is found almost identically stated in § 512.190 of our present statutes. Both of these sections, the 1835 act and the present law, provide that the recognizance is to be conditioned upon the prosecution of the appeal with due diligence and each provides (§ 512.190): “ * * * and that if on such appeal the judgment of the magistrate [justice] he affirmed, or upon a trial anew in the appellate court judgment he given against him, he will pay such judgment, and that, if his appeal be dismissed, he will pay the judgment of the magistrate, together with the costs.” (Emphasis supplied.) The italicized portions of this language would indicate that the legislature never intended, in 1835 or in 1945 upon the passage of the magistrate court act of this state, to allow magistrate judgments to be “vacated” by an appeal to the circuit court. A judgment which has been vacated could not be “affirmed” and neither could it be paid. Yet the court in Turner v. Northcut, supra, paid no attention to the second paragraph of Sec. 3 of Art. 8 of the 1835 statutes when it held that (9 Mo. 251, l.c. 256) “ * * * When an appeal is taken by either party, its effect is not only to suspend, but to destroy the effect of a judgment of a justice; it makes it as though no judgment had been rendered. * * * ” Further explanation, if not criticism, of Turner is to be found in Pullis v. Pullis Bros. Iron Co., 157 Mo. 565, 57 S.W. 1095 at l.c. 1101.

However, it should be noted that, the phrase “the judgment is vacated,” as used in the earlier decisions, had been somewhat clarified and modified by later decisions, particularly Leonard v. Security Bldg. Co., 179 Mo.App. 480, 162 S.W. 685 and Pullis v. Pullis Bros. Iron Co., supra. As was stated in Leonard v. Security Bldg. Co., supra, 162 S.W. l.c. 687: “From the language of the Supreme Court in Pullis v. Pullis, supra, it appears that a dismissal of the appeal ‘revivifies’ the judgment of a justice. This may be quite true without in any manner affecting the real question before us. It is immaterial that the judgment may thus be revived and again become in force. But, unless it is so revived by the dismissal of the appeal, it never again acquires any force; for the case will otherwise proceed de novo in the circuit court as though it had been originally instituted there, and the circuit court will ultimately enter its judgment therein, unless the plaintiff should exercise his right to dismiss the cause or take a nonsuit, in which event the case is taken out of court and the judgment of the justice thereby vacated." (Emphasis supplied.) It is therefore clear that even though custom of referring to the judgment of the magistrate court as being “vacated” has been modified, even the modifying decisions recognize that the plaintiff may dismiss the cause. Leonard v. Security Bldg. Co., supra.

In his brief defendant attempts to distinguish McClellan on the grounds the plaintiff in that case did not recover in the magistrate court. He states: “ * * * Missouri courts have never permitted a plaintiff to obtain judgment in the Magistrate Court and then to dismiss without prejudice in the Circuit Court.” The defendant is incorrect if he means that such an action has never been permitted or recognized under Missouri law. In Silent Automatic Sales Corp. v. Stayton, 8th Circuit Court of Appeals, 45 F.2d 476 the very situation of which the defendant speaks was before the court. In that case Stayton filed suit for $350.00 in the justice court for damages to his automobile. He recovered a judgment for $250.00. Silent appealed and gave bond. While the appeal was pending Stay-ton brought a separate action for personal injuries against Silent which was removed to the Federal court. Defendant filed a demurrer on the grounds that plaintiff’s cause of action was res adjudicata due to the recovery in the justice court. It was held the second action would lie. The opinion contains a complete yet concise resume of the development of the law in this state with regard to appeals from justice courts since the days of Turner v. Northcut, supra. The eitation of cases is extensive. It follows that defendant’s statement is incorrect and the availability of the course of action which plaintiff in the instant case has followed has been recognized. Silent Automatic Sales Corp. v. Stayton, supra.

However, it should be obvious that even had defendant’s statement been correct, it would have been of no assistance to him. To the contrary the rule that a plaintiff who has a judgment rendered against him in the magistrate or justice court is allowed , to appeal to the circuit court and upon the appeal being perfected, dismiss without prejudice and bring another action, would be strong authority against defendant’s position. Obviously if the plaintiff in that situation was not taking any undue advantage of the defendant when in fact the defendant had a judgment of the magistrate court in his favor, plaintiff could not be held to be taking any undue advantage in the instant case when the defendant has no judgment but the plaintiff has.

As stated earlier herein, McClellan v. Sam Schwartz Pontiac, Inc., supra, rules this appeal and compels our decision in favor of the plaintiff. That being so it is unnecessary to further burden this opinion with a detailed- inquiry into whether, if plaintiff's course of action be upheld, defendant would lose his right of defense or gain some undue advantage. It should be sufficient to state that, so far as any loss of a right of defense is concerned, we can see none. The fact that the case was tried in the magistrate court would in no way prevent the defendant from presenting any defenses it might have to any new action the plaintiff might file. Neither can defendant complain the plaintiff now knows the evidence he will present. The effect of his own action in filing his appeal from the magistrate court was to cause a de novo trial in the circuit court and thus bring about a second trial wherein plaintiff could take advantage of whatever knowledge of defendant’s evidence he gained at the magistrate court trial. Defendant cannot now complain that the same result was reached by another procedure.

Neither can we discern any undue advantage that plaintiff would gain from dismissal of his cause. The effect of the plaintiff’s action was to relieve defendant from the certainty of a judgment of $750.00 against him and to substitute in that place the possibility that the plaintiff might secure a larger judgment, but it is equally pos-, sible that the defendant might'prevail and the plaintiff not recover any judgment at all. Moreover, the defendant must be held to have contemplated the possibility that plaintiff might dismiss his action upon defendant’s appeal and then file a new action when the defendant decided to appeal. He could appeal and subject himself to the possibility of what later actually happened or he could pay the $750.00 judgment. The choice was his and the fact the defendant now regrets the choice he made does not constitute an unfair advantage to the plaintiff. It should also be noted that any contemplation of what might be the final results of the trial of the second action is pure speculation and again evidences the wisdom of the rule refusing appeal from orders such as here involved.

It follows that the defendant cannot be held to have been “aggrieved” by plaintiff’s dismissal and this appeal will not lie. The plaintiff’s motion to dismiss the appeal is sustained and the appeal dismissed.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of this court. The plaintiff’s motion to dismiss the appeal is sustained and the appeal is dismissed.

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


author: CLEMENS, Commissioner.

text:
    BAKER & THEODORE, INC., a Corporation, and Tom Venezia, Plaintiffs-Respondents, v. Honorable John J. QUINN, Excise Commissioner of the City of St. Louis, Missouri, Defendant-Appellant.
    No. 32168.
    St. Louis Court of Appeals. Missouri.
    Feb. 15, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied and Opinion Modified on Court’s Own Motion March 3, 1966.

      Thomas F. McGuire, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for appellant.
    Martin M. Green, Richard H. Edwards, Clayton, for respondents.
   CLEMENS, Commissioner.

The defendant, Excise Commissioner of the City of St. Louis, revoked the plaintiffs’ liquor license, but on plaintiffs’ application the circuit court set aside the revocation. The defendant commissioner appeals, contending that the revocation was warranted by the record. Both parties treat the action in the circuit court as one for administrative review, as provided by § 536.010 et seq., RSMo 1959, V.A.M.S.

The corporate plaintiff was licensed to sell liquor by the drink in the City of St. Louis, the license being issued to “Baker and Theodore, Inc., Tom Venezia, Managing Officer.” The individual plaintiff is Tom Venezia, Sr. His son, Tom Venezia, Jr., is not a party, but was at the center of the factual issues. The plaintiffs were cited to appear before the defendant commissioner for alleged violations of Chapters 371 and 374 of the Comprehensive Alcoholic Beverages Code of the City of St. Louis, which we will refer to as the Code. After a hearing, the commissioner ruled that the plaintiffs had violated §§ 371.030 and 374.-062 of the Code, and he ordered their license revoked.

Section 371.030 of the Code empowers the City’s Excise Commissioner to prescribe the terms and conditions of licenses, and to revoke such licenses for cause. The defendant had engrafted conditions upon the plaintiffs’ license. By letter to plaintiffs, the defendant commissioner stated that the plaintiff’s son, Tom Venezia, Jr., had been convicted of a liquor violation, had killed a man in another tavern operated by the plaintiff, and had frequented a disreputable tavern operated by the plaintiff’s daughter. The letter declared that the plaintiffs’ license was granted subject to the condition that: “ * * * Your son, Tom Venezia, Jr., must remain away from these premises. If he is found on these premises, his mere presence will be considered just cause for revocation of your City of St. Louis Liquor license for 337-41 De-Baliviere Avenue. * * * ” The defendant commissioner found that plaintiffs had violated § 371.030 of the Code by permitting Tom Venezia, Jr., to be in the tavern on three occasions.

In another chapter of the Code, § 374.060 sets out the qualifications of employees of licensees, and prohibits employment of persons who have been convicted of violating any liquor law. By § 374.062 of the Code, a licensee is further prohibited from allowing any person to perform any act commonly performed by an employee when such person does not have the qualifications of an employee; and § 372.040 of the Code states that licensees “are at all times responsible for the conduct of their licensed premises.” The defendant commissioner found that plaintiffs had violated § 374.062 of the Code by permitting Tom Venezia, Jr., who had been convicted of the illegal sale of intoxicating liquor, to act as an employee.

These two findings of the defendant commissioner were based on testimony given at a hearing where both the City of St. Louis and the plaintiffs offered evidence and were represented by counsel. The City’s witnesses were police officers who had visited the plaintiffs’ tavern on August 19, 26 and 29. We summarize that evidence.

On the early morning of August 19, both the plaintiff and his son were in the tavern and talked with one of the officers. Tom Venezia, Jr., sat in a booth, and while the officers were there he talked and shook hands with several persons.

On August 26, near midnight, a police officer asked plaintiffs’ bartender whether the owner was there. He was introduced to Tom Venezia, Jr., who told the officer he was managing the tavern for his father. Testimony as to the statements by the bartender and Tom Venezia, Jr., came in over plaintiffs’ hearsay objections.

On the night of August 29, a police officer spent half an hour in the tavern watching Tom Venezia, Jr., and was of the opinion that he was working there. During this time Tom Venezia, Jr., greeted persons entering the tavern, found out how many were in each group, directed them to tables and assisted in seating them. This happened five or six times. Tom Venezia, Jr., talked to the bartender and the waitress from time to time, and once took a drink to one of the tables.

Plaintiffs had contradictory evidence. They admitted the previous conviction of Tom Venezia, Jr., for selling liquor. They also admitted his presence at the tavern four times, but claimed he was there contrary to his father’s orders to him to stay away. They denied that Tom Venezia, Jr., had taken part in the business of the tavern.

As said, the defendant commissioner .found against the plaintiffs and revoked their license. Thereupon, plaintiffs filed a transcript of the evidence and their “petition for administrative review.” After submission, the circuit court set aside the defendant’s order of revocation, and the commissioner appealed to this court.

In their petition the plaintiffs claimed that the commissioner erred because there was no competent and substantial evidence to support the charge that plaintiffs had allowed Tom Venezia, Jr., to perform acts commonly performed by an employee, prohibited by § 374.062 of the Code. It is not our province, nor was it that of the trial court, either to weigh the evidence or to determine the case on the merits. Those were functions of the Excise Commissioner. Our duty on review is to determine whether his findings of fact and the revocation of plaintiffs’ license are supported by competent and substantial evidence. State ex rel. Favazza v. Ketchurn, Mo., 367 S.W.2d S42 [2, 3].

Plaintiffs claim the statement of Tom Venezia, Jr., that he was manager of the tavern is hearsay, and is not competent evidence. They rely on the case of State ex rel. De Weese v. Morris, 359 Mo. 194, 221 S.W.2d 206 [6], which holds that the right of cross-examination precludes consideration of hearsay testimony. That reason is hardly applicable here because Tom Venezia, Jr., did testify and was examined and cross-examined under oath. The statement of Tom Venezia, Jr., that he was the manager would be hearsay only if that statement was offered to prove the content thereof: that he was in fact the manager of the tavern. On the other hand, if it was an independent declaration which explained or gave color to his conduct, then Tom Venezia, Jr.’s statement was not hearsay but was a verbal act. See 31A C.J.S. Evidence § 403(2). In re Thomasson’s Estate, 347 Mo. 748, 148 S.W.2d 757 [10]; Hoelmer v. Heiskell, 359 Mo. 236, 221 S. W.2d 142 [9] ; and Dick v. Puritan Pharmaceutical Co., Mo.App., 46 S.W.2d 941 [10]. Considering .the other evidence of Tom Venezia, Jr.’s repeated presence in the tavern and his person-to-person contacts with the bartender, the waitress and the customers, we believe that his statement that he was the manager did explain and give color to his conduct. It was admissible as circumstantial evidence of the relevant fact that he did perform acts commonly performed by employees.

To uphold the finding that plaintiffs violated § 374.062 of the Code, there must have been competent and substantial evidence that plaintiffs allowed Tom Ven-ezia, Jr., to act as an employee. The sufficiency of that evidence is a question of law and we review it on the original record, unhindered by any presumption that the trial court was correct in quashing the order of revocation. This, because a trial court does not exercise discretion on matters of law. Mattocks v. Emerson Drug Co., Mo.App., 33 S.W.2d 142 [10]; Schip-per v. Brashear Truck Co., Mo., 132 S.W. 2d 993 [2], 125 A.L.R. 674. The Excise Commissioner, not the trial court or this court, is the fact-finding tribunal; and the burden is on the plaintiffs to demonstrate that the commissioner erred on the record before him. Peoples Telephone Exchange v. Public Service Com’n, 239 Mo. App. 166, 186 S.W.2d 531 [1, 2]. In determining the sufficiency of the evidence, w£‘ consider it in the light most favorable ta the Excise Commissioner’s finding, together with all reasonable inferences that support that finding. Poggemoeller v. Industrial Com’n, Mo.App., 371 S.W.2d 488. If the evidence had such probative force that the commissioner could have reasonably made the finding and reached the decision in question on substantial evidence before him, we must affirm his order. Mann v. Mann, Mo.App., 239 S.W.2d 543 [1], Evidence is substantial if it has probative force upon the issues and could reasonably lead to the belief of the material facts. Collins v. Division of Welfare, 364 Mo. 1032, 270. S.W.2d 817 [6]; discussed in detail in Davis v. State Dept. of Public Health & W., Mo.App., 274 S.W.2d 615 [6, 7].

We conclude that the evidence could reasonably lead the defendant commissioner to believe, as he did, that the plaintiffs permitted Tom Venezia, Jr., an unqualified person, to perform acts usually performed by employees on the licensed premises, contrary to § 374.062 of the Code. It follows that the commissioner was authorized to revoke the plaintiffs’ license.

Plaintiffs also challenge the defendant commissioner’s finding that they violated § 371.030 of the Code. When the propriety of an order is found on appeal to be justified on one ground, it is not necessary for an appellate court to further determine the propriety of the order on some other ground. Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S. W.2d 568 [71, 161 A.L.R. 383; State ex rel. William R. Compton Co. v. Walter, 324 Mo. 290, 23 S.W.2d 167 [14]; and Moler v. Whisman, 243 Mo. 571, 147 S.W. 985 [8], 40 L.R.A.,N.S., 629. Because we have determined that the commissioner’s order was justified on the ground of plaintiffs’ violation of § 374.062 of the Code, we need not pass upon the propriety of the commissioner’s further finding that plaintiffs violated § 371.030 of the Code.

Plaintiffs’ petition raised three other points: First, they claimed that the revocation of their license was in excess of the commissioner’s statutory authority and jurisdiction. They do not brief that point here, and it is without merit. See § 311.220 RSMo 1959, V.A.M.S.; and Passler v. Johnson, Mo., 304 S.W.2d 903 [1].

The petition next claimed generally that the revocation was in violation of both state and federal constitutions. But, a constitutional issue may not be preserved for review without specifying the section claimed to have been violated and alleging facts showing the violation. Ragan v. Ragan, Mo.App., 315 S.W.2d 142 [4], Plaintiffs did neither.

Lastly, plaintiffs pleaded generally that they did not have a fair trial and that the defendant commissioner’s order was arbitrary and capricious. Pleading conclusions, unsupported by allegations of fact, preserves nothing for review. State ex rel. Morrison v. Sims, Mo.App., 201 S.W. 910 [1]; State ex rel. McDonald v. Frankenhoff, 344 Mo. 188, 125 SW.2d 816 [3], Nonetheless, we have examined the transcript and plaintiffs’ brief to see whether there was any reason for us to grant relief under Civil Rule 79.04. We. find no plain errors affecting substantial rights which resulted in manifest injustice to the plaintiffs.

The judgment of the circuit court should be reversed, with directions to affirm the Excise Commissioner’s order of revocation.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded to the circuit court; and that court is directed to affirm the Excise Commissioner’s order of revocation.

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


author: SPERRY, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Elwyn Loomis CADY and Annabel Cady, Defendants-Appellants.
    No. 24344.
    Kansas City Court of Appeals. Missouri.
    Dec. 6, 1965.
    Motion for Rehearing and or Transfer to Supreme Court Denied Feb. 7, 1966.
    Application to Transfer Denied April 11, 1966.

      Elwyn Loomis Cady, Jr., Kansas City, for appellants.
    Joe Bill Carter, Robert L. Hyder, Jefferson City, for respondent.
   SPERRY, Commissioner.

Plaintiff instituted this suit for the purpose of condemning certain of defendants’ real estate for highway construction. Condemnation of something over an acre was adjudged for right of way, and of a tract, for an easement for drainage construction, was adjudged. No buildings were taken or damaged. The total land affected was two and eighty-three hundredths acres, according to the court’s instructions. From a jury verdict, and judgment thereon in the amount of $150.00, defendants have appealed.

This is the second appeal in this case. State ex rel. State Highway Commission v. Cady, Mo.App., 372 S.W.2d 639. This appeal was originally lodged in the Supreme Court but was transferred to us on the grounds that such court lacked jurisdiction. The original briefs in the Supreme Court are re-filed here. The contents thereof are largely devoted to constitutional and other questions relating to jurisdiction. Such questions are not pertinent to a final disposition of this appeal.

The record shows that, after the final judgment of this court in the first appeal had gone down, the Circuit Court conducted a hearing to determine the jurisdictional fact of whether negotiations were had, between plaintiff and defendants, in an effort to agree on the amount of damages to be paid for the taking of land and rights of defendants, prior to the institution of condemnation proceedings. From evidence before the court the judge found that such negotiations had occurred but that no agreement could be reached. (It appeared that plaintiff contended, during such negotiations, that defendants’ benefits, from the proposed highway improvements, exceeded their damages, and refused to offer any cash payment for damages; and that defendants refused to agree to that proposal).

Thereafter, the court appointed Commissioners to assess damages. Damages assessed amounted to $100.00. Defendants excepted to the report of the Commissioners and the cause was tried to a jury. Defendants offered in evidence a quit claim deed whereby a consolidated school district conveyed an acre of land out of a corner of the tract here involved, adjacent to the land condemned, and rested. The recited consideration therefor was $2,800.00.

Plaintiff produced two witnesses on the issue of damages. Mr. Slattery, a landowner in the vicinity and a former tenant of the property involved, stated that he was familiar with the road construction and with the property prior to construction; that the part taken for right of way was an old fence row bordering the former township road; that construction of the state highway and of the drainage improvement increased the value of the remaining tract; that the land actually taken was worth from $15.00 to $20.00 per acre prior to the taking; and that drainage from this tract had been a problem prior to construction of the drainage improvement.

Mr. Cristison is a landowner of the area. He was familiar with this land and had combined grain on it. He stated that this improved highway replaced a narrow, rough and bumpy township road over which it was difficult to operate farm equipment; that the drainage was bad and caused flooding of the ditch under a culvert, washing it out; that he appraised the farm, prior to the taking, at $150.00 per acre; that its value was increased by from $10.00 to $15.00 per acre, by reason of the improvement. He stated that the land transferred to the school district was better located and more valuable than that taken in this proceeding, and that there was a building on it. It appears that defendants’ evidence regarding the deed would be of little value in arriving at the damages suffered by defendants by reason of the taking here involved.

Defendants complain that there is no proof of the jurisdictional fact of negotiations between the parties in an attempt to reach an agreement on the amount of damages due defendants prior to institution of this action and appointment of Commissioners. In State ex rel. v. Cady, supra, we hold that such negotiations must precede the filing of condemnation proceedings. When this case was again heard below, evidence of an attempt by plaintiff to procure an agreement on damages was offered and the court held such attempt to negotiate sufficient to comply with this requirement. This occurred before other orders were made. We approve that ruling.

It is next contended that the court should have disapproved and set aside the report of the Commissioners because of failure of the Commissioners to find and allow damages to be paid dn cash money. The filing of exceptions to the report and the order granting a jury trial resulted in setting aside the report. It was then as though no report had even been made. School District of Kansas City v. Phoenix Land & Improvement Co., 315 Mo. 775, 287 S.W. 621, 622; State ex rel. State Highway Commission v. Deutsch-man, 346 Mo. 755, 142 S.W.2d 1025, 1028. Furthermore, the Commissioners found and xeported damages in the amount of $100.00. This is less than defendants believe they are entitled to receive, but it does not amount to an illegal taking of private property without just compensation, as a matter of law. The jury, after a full hearing, allowed only $150.00.

Error is predicated on the action of the court in permitting counsel for plaintiff to say, in his opening statement, that there would be evidence to the effect that the tract involved was of a greater market value after the taking than it was prior thereto, and that, as a consequence, defendants were not entitled to receive any damages for the taking. The measure of damages to which defendants are entitled is the difference between the fair reasonable market value of the tract remaining after the taking, and the fair market value of the whole tract prior thereto. State ex rel. v. Ridgway, our docket number 24357, opinion handed down concurrently herewith. It is proper for the jury to take into consideration the benefits accruing to the land involved in arriving at the damages due defendants. Sec. 227.-120, RSMo 1959, V.A.M.S.; Newby v. Platte County, 25 Mo. 258. It was not improper for that issue to be argued by plaintiff, on the evidence and the law. Baughman v. Metropolitan St. Ry. Co., Mo.App., 177 S.W. 800.

Defendants complain that the jury, in assessing damages, took into consideration special benefits accruing to defendants although this issue was not submitted in the single verdict directing instruction given in the case. In that respect the instruction unduly favored defendants. However, we have no way of determining whether or not the issue played any part in the jury’s ultimate decision. There was testimony to the effect that the value of the land taken (2.83) ¿eres, prior to its taking, was from $15.00 to $20.00 per acre. There was also testimony to the effect that the whole farm was increased in value, by construction of the road and drainage improvement, at least $10.00 per acre.

No error materially affecting the merits of the case appears. The judgment is affirmed.

MAUGPIMER, C., concurs.

PER CURIAM:

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

CROSS, P. J., HOWARD, J., and FRANK HAYES, Special Judge, concur.

BLAIR, J., not participating.


author: PALMORE, Judge.

text:
    Harry M. SAULSBERRY et al., Appellants, v. SECOND NATIONAL BANK OF ASHLAND, Ky., et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.
    David O. Welch, Dysard, Johnson & Welch, Ashland, for appellants.
    Davis, Vigor & Ford, H. David Hermans-dorfer, Gray, Woods & Cooper, Ashland, for appellees.
   PALMORE, Judge.

This appeal has been presented in a succinct and civilized fashion by way of an agreed statement. CR 76.

The will of Eliza Jane Gaylord Salisbury, which was admitted to probate in 1934, established a trust for the benefit of her son, William Gaylord Salisbury, during his lifetime and directed the following disposition of the estate at his death:

“Upon the death of William Gaylord Salisbury, I direct the trust herein created to cease and determine and direct my trustees to pay and distribute all remaining trust funds in their possession to the child or children of William Gaylord Salisbury in equal shares.
“Should no child or children him survive, then I direct my Trustee to distribute three-fourths of said property to my niece, Roberta A. Gaylord, and one-fourth thereof to my daughter-in-law, Mary Palmer Salisbury, provided always that she be the wife of and living with my son, William Gaylord Salisbury, at the time of his death. If, however, Mary Palmer Salisbury should not qualify under these conditions as the wife of and living with William Gaylord Salisbury at the time of his death, then I direct the remaining one-fourth share of the said trust fund to go to my cousin, Roberta M. Heffernan.”

The controversy relates to the interest devised to Roberta Heffernan, who died intestate in 1940. Mary Palmer Salisbury, wife of William Gaylord Salisbury, died on April 1, 1960. William Gaylord Salisbury died on November 27, 1960, without issue. Roberta Gaylord (now Scheets) is still living and it is conceded that she takes three-fourths. The appellants contend that the other one-fourth goes to the collateral heirs at law of William Gaylord Salisbury. The appellees claim, and the trial court so held, that it goes to the heirs at law of Roberta Heffernan.

The trial court determined the interest of Roberta Heffernan to have been “a defeasible fee in remainder.” Appellants contend it was a contingent remainder which was terminated by the remainder-man’s death prior to that of the life tenant. We agree that it was a contingent remainder, but not that it was terminated by Mrs. Heffernan’s death.

The first argument is that the will evinced an intention that the interests of Roberta Gaylord and Roberta Heffernan should depend on their survival at the time of vesting, because it made no provision for their children whereas, in contrast, the testatrix did make provision for the children of her son, the life tenant, if he should leave any. To hold otherwise, say appellants, is to exalt artificial and subordinate rules of construction over the clear intention of the testatrix. We are not persuaded to that viewpoint. While it is quite natural and customary to provide expressly for lineal descendants, grandchildren in particular, it does not seem in the least unusual for a testator to exhibit less concern toward the ultimate disposition of property left to those of lesser or no kinship. Indeed, the construction espoused by appellants might reduce many a vested remainder to a contingent remainder simply because the testator neglected to provide against the remainderman’s failure to survive the life tenant.

The second argument is that a contingent remainder is not transmissible by intestate succession. The principal authority relied on for this proposition is Lepps v. Lee, 92 Ky. 16, 17 S.W. 146, 13 Ky.Law.Rep. 317 (1891), in which it was held (without citation of supporting authority to that effect) that while a contingent remainder may be conveyed or devised (cf. KRS 381.040), “yet, if the grantor or devisor dies before it becomes effective, and no estate has ever vested in him, the grantee or devisee takes nothing.” Later decisions contain dictum to the contrary. See, for example, Fulton v. Teager, 183 Ky. 381, 209 S.W. 535, 537 (1919), and Lindenberger v. Cornell, 190 Ky. 844, 229 S.W. 54, 59 (1921). Perhaps this confusion had an unspoken role in the chancellor’s choice of another label for the interest devised to Mrs. Heffernan in this case.

It was once the law in England, originating in the mists of feudal times and tenure, that the descent of real estate had to be traced from the person last seised or from the last purchaser. In the case of a life estate followed by a remainder in fee (whether vested or contingent), the designated remainderman was the last purchaser of the fee, and if he predeceased the life tenant the person to whom the fee descended could not be ascertained until the death of the life tenant, the remainder-man’s heir as of that time being the taker. Simes and Smith, The Law of Future Interests, § 1882; American Law of Property, § 4.73 (Vol. 1, pp. 531, 532). But even under that law it would seem that Mrs. Hef-fernan qualifies as the “last purchaser” of the one-fourth interest, and certainly in no event could it fall to the heirs of the testatrix.

“In the United States * * * at the present time, it is everywhere held that remainders, whether vested or contingent, reversions and executory interests, in land, descend in the same manner and to the same persons as possessory interests in land * * * ” Simes and Smith, The Law of Future Interests, § 1883.

“Whatever may have been desirable in feudal times, it is clear that today there is no reason why future interests should not pass on the death of the owner intestate in the same manner as possessory interests * * *. With the exception of rights of entry for condition broken and possibilities of reverter, this is what now appears to be the law in all jurisdictions.” American Law of Property, § 4.74 (Vol. 1, p. 533).

“Viewing the country as a whole, it is as true as any generally stated proposition can he, that the futurity of an interest does not alter in any way the consequences of the normally operative law of intestate succession * * *. Intestate succession by the persons who became entitled at the moment of the former owner’s death has been allowed as to reversionary interests of all kinds, as to powers of termination; as to remainders of all kinds; and as to execu-tory interests of all kinds.” Powell on Real Property, par. 284 (Vol. 2, pp. 507, 508).

“It has sometimes been broadly stated that a contingent remainder does not pass by descent. However, while some contingent remainders may not be descendible at common law, this unqualified statement is too broad. It is believed that a more accurate statement of the common-law rule is that where there is no uncertainty as to the person who is to take, and his surviving some particular time or event does not enter into and make a part of the contingency upon which the remainder is intended to take effect, if the remainderman dies before the contingency happens, his interest will pass to his heirs.” 33 Am.Jur. 618 (Life Estates, Remainders, and Reversions, § 152).

It is settled that vested remainders pass under our general statute of descent, KRS 391.010. Rose v. Bryant, Ky., 251 S.W.2d 860 (1952). There is no plausible reason why the same should not be or is not true with respect to contingent remainders that are not conditioned expressly or by implication on the remainderman’s survival at the time of vesting. To the extent that it holds otherwise, Lepps v. Lee, 92 Ky. 16, 17 S.W. 146, 13 Ky.Law Rep. 317 (1891), is overruled.

The trial court determined that the interest of Roberta Heffernan passed at her death to her heirs at law, two sons, James Meade Heffernan and Hooper Ward Hef-fernan, in whom the one-fourth remainder interest vested upon the death of the life tenant, William Gaylord Salisbury. It is our opinion that this result was correct.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    H. J. BAILEY et al., Appellants, v. ASHLAND DISCOUNT ASSOCIATION, Inc., Appellee.
    Court of Appeals of Kentucky.
    March 4, 1966.

      Jean L. Auxier, Pikeville, for appellants.
    Henry D. Stratton, Pikeville, for appel-lee.
   DAVIS, Commissioner.

The appellants have attempted to appeal from an order confirming a master commissioner’s report of sale, asserting an equity of redemption pursuant to KRS 426.530. Appellee’s motions to strike part of the record, and to dismiss the appeal on procedural grounds were passed to a consideration upon the merits. We are dismissing the appeal because of the procedural defects fatal to its perfection.

The order confirming the judicial sale was entered August 3, 1964; the notice of appeal from that order was filed September 2, 1964, the last day for filing under CR 73.02.

On November 2, 1964, an order was entered, ex parte, extending the time for filing the record in this court to and including December 31, 1964. This was done pursuant to CR 73.08. It is quite significant, however, that the appellants had not filed any designation of record on appeal when the extension of time was sought and granted. The record before us is entirely silent as to any reason advanced by appellants for requesting the additional time for filing the record.

On December 28, 1964, the appellants filed a designation of a partial record pursuant to CR 75.01. However, no statement of points was served with the designation as required by CR 75.04. The record on appeal, as originally filed in this court on December 31, 1964, did not contain any statement of points. However, by a supplemental record, filed here January 15, 1965, there is reflected a statement of points shown to have been filed in the circuit court on December 30, 1964.

In the statement of appeal appellants assert that the amount in controversy exceeds $2,500, but there is no recitation in the judgment or other pleading supporting that assertion. Appellants contend that the appraisement of the property, included in the record, shows on its face that the property was valued at more than $2,500. Even if we could say that the appraisement was a pleading (which is quite doubtful) we still would have no basis for holding that the asserted equity of redemption has a value of $2,500. Since the appeal has been undertaken as a matter of right, the failure to present an affirmative showing that the amount in controversy is as much as $2,500 is fatal. KRS 21.060; 21.070; 21.080. Kayrouz v. Joiner, Ky., 377 S.W. 2d 890; Pennyrile Rural Electric Co-op. Corp. v. Lyon County, Ky., 318 S.W.2d 430.

The case at bar presents a glaring example of misuse of the pertinent rules applicable to perfection of appeals to this court. CR 75.01 relates to the designation of the contents of the record to be used on appeal. Significantly, the first word of that section is “Promptly.” The litigant is required to serve upon the appellee, and file with the circuit court, a designation of the portions of the record to be used on appeal — and this is to be done promptly after an appeal is taken. It is noteworthy that CR 1 directs that the Rules of Civil Procedure shall be construed “ * * * to secure the just, speedy, and inexpensive determination of every action.” The appeal is “taken” when the notice of appeal is filed in the circuit court. CR 73.-02(2). Thus, in the present case, the appeal was “taken” on September 2, 1964. The designation of record was filed December 28, 1964 — some 117 days after the notice of appeal, and three days before the expiration of the time for filing the record in this court. In our view this designation of record was not filed “promptly” within the meaning of CR 75.01.

It must be observed that CR 73.08 does afford flexibility in the time limit for filing the record in this court. The cited rule prescribes that the record shall be filed within 60 days from the date of filing the notice of appeal. In recognition of practical difficulties which may prevent completion of the record within that time, the rule provides that the circuit court may extend the time to a total of 120 days under prescribed conditions. Additional remedy, in proper cases, is afforded by motion and “showing of good cause” for extension in this court. The rule permits the granting of the extension in the circuit court, ex parte. But this is not to be considered as an automatic extension to 120 days in every case. The extension is to be granted in the exercise of a judicial discretion — that is for a justifiable cause. Some valid reason should be advanced reflecting entitlement to the extension. When a designation of record has not been filed, it is difficult to understand how a litigant can validly show the court a pressing need for time to have a record prepared. What record?

The record which was finally filed in this case is short; it contains 33 pages, including the clerk’s certificate. In the absence of any showing of unusual circumstances we are unable to perceive any reason which required even 60 days to prepare this record, and how an additional 60 days could have been needed is beyond conception. It seems amazing that the designation was filed December 28, 1964, and the record certified as completed December 29, 1964. We are aware that counsel sometimes direct clerks and reporters to proceed with preparation of a record prior to filing a designation — but this is a practice which is not recognized by the Rules of Civil Procedure, and does not comport with standards of good procedure.

When the designation was at long last filed, it was for a partial record. It was unaccompanied by a statement of points. It was filed just three days before the record was required to be filed in this court. This was not a timely filing. CR 75.01 provides that after the service of the designation, any other party may serve and file a designation of additional portions of the record, if done within 10 days. Obviously, the appellee here was effectively deprived of the 10 days in which to file a designation for any additional portion of the record. The late filing of the statement of points curtailed even more the time allotted to appellee for making designation of any additional record. An almost identical situation was treated in In re Plankinton Bldg. Co. (Harvey v. First Mortgage Bondholders’ Protective Committee), 7 Cir., 133 F.2d 900. There the court dismissed an appeal because the appellant did not promptly designate the record on appeal as required by F.R.Civ.P. 75(a). Under the then prevailing federal rule, the record was required to be filed in the appellate court within 40 days from the date of the notice of appeal; the appellant there had designated a partial record 37 days after the notice of appeal, but did not serve a copy of it upon the appellee until the 41st day after the notice of appeal. In sustaining the motion to dismiss the appeal the court remarked:

“In this case the designation of the record did not include the complete record and the appellants did not serve notice upon the appellee or the other defendants as to what they had included in their designation of the record until December 8, 41 days after the filing of the notice of appeal; thus they deprived the appellee of its rights under Rule 75(a) of having ten days to serve and file a designation of additional portions of the record. Under the circumstances here appearing, we see no reason for denying appel-lee’s motion.” Id., 133 F.2d 901.

Reference is had to Clay, CR 75.01, Author’s Comment 4, pp. 365-366, in which it is remarked that although no specific time limit is fixed by CR 75.01 for making designation of record, it should be done at the earliest reasonable time that practical considerations permit. The same note contains the caveat: “The time limits prescribed by Rule 73.08 with respect to filing the record in the Court of Appeals should be kept in mind.” That this has not been done at bar is patent.

We have written at this length in order to focus attention of the bench and bar on the problem at hand. We emphasize that CR 73.08 is to be utilized in order to afford needed time for preparation of the record on appeal, but is not to be regarded as a built-in device to obtain an additional 60 days as a matter of routine. There should be some showing that the extra time is required so that the trial judge may have an opportunity to exercise a judicial discretion. We further emphasize that CR 75.01 has significance, and that “promptly” as used in the rule is not meaningless. While we fix no rigid formula, we observe that the failure to file a designation within 60 days after the filing of the notice of appeal creates grave doubt that a later filing was done “promptly.” When a partial record is designated, the 10 days available to the opposing parties for counter designation should be borne in mind. The failure to afford the allotted 10 days to the opponent is not “promptly.”

In passing we note that consideration of the merits of the appeal leaves the definite impression that appellants could not prevail even if the appeal had been properly filed.

The appeal is dismissed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Martha Lillian ARMSTRONG, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.
    H. C. Smith, E. C. Skidmore, Dept, of Highways, Frankfort, for appellant.
    David C. Brodie, Calvin R. Robinson, Owensboro, for appellees.
   CULLEN, Commissioner.

The Commonwealth, Department of Highways, appeals from a judgment awarding the appellee landowners $67,500 for a tract of land taken by condemnation for highway purposes. The only question argued is whether the evidence has sufficient probative value to support the verdict.

The tract, all of which was condemned, was a triangular piece of 1.51 acres with three buildings on it. One of the witnesses for the Commonwealth attributed a value of $20,500 to the buildings and one of the witnesses for the landowners put the value of the buildings at $33,299. We think this testimony would warrant the jury’s allowing at least $20,500 for improvement value, despite the fact that two witnesses for the landowners said that the buildings did not enhance at all the value of the land.

Estimates as to the value of the bare land ranged from $26,300 to $104,464. The evidence would support amply a value of $54,500 for the bare land (computed at 83 cents per square foot) because the evidence showed a sale of a reasonably comparable tract for 83 cents per square foot.

As indicated, the evidence would have sustained an award as high as $75,000 for the land with improvements. So the actual award of $67,500 is fully supported.

The price (54 cents per square foot) paid by the landowners two days after the condemnation for a tract only a few hundred feet from the condemned tract is not conclusive of the value of the condemned tract. There was evidence that the purchased tract was inferior in location and topography to the condemned tract. The two tracts were not practically identical as was the situation in Commonwealth, Dept. of Highways v. Wheat, Ky., 387 S. W.2d 856.

The judgment is affirmed.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ed MUSICK et ux., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, Charles W. Huddleston, Bowling Green, for appellant.
    Bennett F. Bratcher, Morgantown, B. M. Vincent, Brownsville, for appellees.
   HILL, Judge.

This is an appeal from a verdict and judgment for $5,000 for 3.76 acres sought from appellees’ 100-acre farm located six miles north of Brownsville to be used for the construction of the Nolin River Dam access road. The proceedings are authorized under Section 242 of the Constitution of Kentucky and KRS 177.081 et seq.

It is contended by appellant that: (1) incompetent evidence was admitted, (2) counsel for appellees was guilty of misconduct, and (3) the verdict is excessive.

Before exploring the first question raised on appeal, it may be well to note that appel-lees were awarded $2,000 by the county court commissioners and that in 1955 appel-lee Ed Musick purchased four-fifths of the farm from the brothers and sisters of his wife for $4,250. His wife inherited one-fifth to complete the ownership of the entire farm. After purchase, appellees spent about $1,000 on improvements.

Appellees’ property is located on a good county road opposite a drive-in theatre near a number of residences. There is a market for residential building lots in the locality of the subject property.

The evidence of appellees’ witnesses Saltsman, Vincent, Harrison and Lane is singled out as being incompetent because the witnesses were not properly qualified under the rules announced in Commonwealth, Department of Highways v. Slusher, Ky., 371 S.W.2d 851 (1963), and in 32 C.J.S. Evidence Section 546 (119).

Granted these witnesses were not expert real estate appraisers in the sense that they had had instruction and experience in the science of real estate appraisement, we cannot say they were so lacking in qualification that their entire testimony should have been stricken. Some men become well qualified by participating in the school of experience and “hard knocks.”

Saltsman stated he owned and was resided on a farm three miles from the Musick farm, that he had bought and sold “a few farms”, and that he was present at a sale of a farm adjoining appellees’ farm.

The witness Vincent, also a farmer, testified he owned “seven or eight” tracts and that during his lifetime he had bought and sold seventeen separate tracts of land. He had never closely examined the Musick land but had a general idea of its situation.

Harrison owned a 170-acre tract nearby and another 225-acre tract farther out. He had known the Musick tract for fifty-eight years and stated that he had seen a lot of real estate bought and sold in this community.

The last witness, whose testimony it is contended should have been stricken for want of qualification, was Lane, a merchant, who had been over the Musick land. He had traded in real estate, especially building lots. He had sold “in the neighborhood of” twenty lots in the past three years.

It is concluded the four witnesses were qualified. The weight to which their testimony was entitled was for the jury to determine. The opinion in Slusher, supra, does not recite the qualification or lack of qualification of the “valuation testimony” therein condemned but agrees with the contention it was “uninformative and worthless” since the transcript supports that contention. Nevertheless, Slusher, in the very next breath, makes the following comment on page 853: “However, we have not adhered to the rule that witnesses must be expert land appraisers in order to state their opinions as to real estate values * * The trial court did not err in overruling ap-pellees’ motion to strike the testimony of the four witnesses discussed above. Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472 (1965); Commonwealth, Dept. of Highways v. Citizens Ice & Fuel Co., Ky., 365 S.W.2d 113(1965).

Next, it is insisted for appellant that the following comments by counsel for ap-pellees were improper and prejudicial:

“I have known Ed Musick all my life and it is a pleasure to me to stand here and talk for him this afternoon. As I recall, this is the first time he has ever been in the courthouse to take part in a trial. Seventy years old, didn’t come here to fight the law; he didn’t come here to sue anybody; he came here purely because he was forced here * * *. He was brought here. He was sued and brought into this Court. Not for any wrong that he has done, and not for any wrong his wife has done, but because the State decided they wanted to build a highway, * *

This court has consistently considered like arguments improper, Commonwealth, Department of Highways v. Darch, Ky., 374 S.W.2d 490 (1964). Also in Commonwealth, Department of Highways v. Sanders, Ky., 396 S.W.2d 781 (1965), similar prolonged and persistent argument taken with other errors was held to be prejudicial. We have concluded in the present case that, taken alone, the argument relative to the involuntary appearance of appellees in this proceeding was not so prejudicial to appellant as to justify reversing the judgment.

Finally, it is said the verdict is excessive. Only 3.76 acres are taken, but the farm is divided so that 4.88 acres are on the north side of the new road and 91.36 acres are on the south side. The new road passes between the residence and the barn. At the intersection of Ky-259 and the new road there will be a fill thirty feet high. Appellant’s one witness on value fixed the difference between “before” and “after” value at $1,397; while five witnesses for appellees testified, like sheep jumping a fence, the difference was $6,000. This court is in no position to condemn the testimony of these five witnesses solely upon the premise that their difference between “before” and “after” values was exactly the same to the nickel. It seems to us, the verdict was more than liberal, but it falls just a hair short of appearing at first blush to have been the result of passion or prejudice. CR 52.01; and Commonwealth, Department of Highways v. Fultz, Ky., 360 S.W.2d 216 (1962).

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ella DAVIS et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Robert Matthews, Atty. Gen., H. C. Smith, Eugene H. Clark, Department of Highways, Manchester, for appellant.
    C. B. Upton, Joe S. Feather, Williams-burg, for appellees.
   MONTGOMERY, Judge.

The appellees, Ella Davis et al., as landowners, were awarded $7,500 as compensation for the taking of 11.92 acres by the Commonwealth of Kentucky, Department of Highways, for the construction of Interstate Highway 75. The Department appeals and urges that the court erred in the admission of certain testimony and in refusing to admonish the jury as to improper argument. It is also urged that the verdict is not supported by the evidence.

Appellees owned a farm of 46.54 acres located on U.S. Highway 25W. At this point the new highway is parallel to the old •highway. It crosses appellees’ land in such manner that 5.28 acres, together with all of the improvements, front on the old road. The remainder, after the right of way is taken, consists of 29.38 acres located across the new road and inaccessible to the other part of the farm. The 29.38 acres of land are mostly steep hillsides covered by second and third growth timber.

After testifying concerning the before and after values of the land, Grant Davis, whose wife owned a one-third interest in the land, testified on cross-examination that he figured the worth of the coal and timber in determining the values of the land. He said in evaluating the coal that he “figured 48,100 tons at twenty-five cents would bring $12,025.00.” On direct examination he had fixed the before value of the land at $12,500.

Appellant’s motion to strike the testimony of Grant Davis because it was based on an improper factor was overruled. Under the law, as fully discussed in Gulf Interstate Gas Co. v. Garvin, Ky., 368 S.W. 2d 309, and Commonwealth, Department of Highways v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249, the failure to strike this testimony was reversible error. Additionally, it is doubtful that the evidence concerning the market value of the coal reached the standard discussed in Commonwealth, Department of Highways v. Gearhart, Ky., 383 S.W.2d 922. In Gearhart the separation of value as to timber was also condemned. A motion to strike the testimony is an appropriate remedy in such cases. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; Commonwealth, Department of Highways v. Mann, Ky., 387 S.W.2d 848; Commonwealth, Department of Highways v. Napier, Ky., 387 S.W.2d 861.

The closing argument to the jury of counsel for the landowners was replete with improper remarks, to many of which no objection was made. After making reference to the Commonwealth’s forcing the condemnation proceedings on the appellees and after making an improper “Golden Rule” type argument, Stanley v. Ellegood, Ky., 382 S.W.2d 572, counsel said:

“If you had just given us a little bit of what you are paying to try this, we might have talked business with you. All of you big high-price fellows drawing big salaries are down here for what purpose? To try to get something from these people against their will and not pay them fair just compensation. They are paid to do it.”

Following such improper remarks which were not objected to, counsel for appellees said: “Regardless of where the money comes from, you got plenty of it. You’re taxing us to death.” Objection to this was sustained but appellant contends that the court should have sustained its motion to admonish the jury.

The tenor of the argument which culminated in the obj ection was an appeal to the passion and prejudice of the jury, in that it sought to portray the landowners as poor people unwilling to sell while the rich Commonwealth was portrayed as forcibly taking their land and having plenty of money with which to pay for it. Such reference in argument to the financial status of the parties has been condemned as reversible error. Walden v. Jones, 289 Ky. 395, 158 S.W.2d 609, 141 A.L.R. 105; Coombs’ Adm’r v. Vibbert, 289 Ky. 463, 158 S.W.2d 957; Sparks v. Maeschal, 217 Ky. 235, 289 S.W. 308; Murphy v. Cordle, 303 Ky. 229, 197 S.W.2d 242. Additionally, the reference to unwillingness to sell is improper argument. Commonwealth, Department of Highways v. Darch, Ky., 374 S.W.2d 490; Commonwealth, Department of Highways v. Sanders, Ky., 396 S.W.2d 781; and Commonwealth, Department of Highways v. Musick, Ky., 400 S.W.2d 513 (decided March 11, 1966).

It is unnecessary to consider other points raised.

Judgment reversed.


author: HILL, Judge. PALMORE, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Nat S. KING, Jr., et ux., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, Reed D. Anderson, Madi-sonville, Robert L. Hall Paducah, for appellant.
    Calvin Ray Robinson, David C. Brodie, Owensboro, for appellees.
   HILL, Judge.

This appeal is from a verdict and judgment for $3,000 in a condemnation proceeding to acquire a strip of land 7 by 70.75 feet from the front of appellees’ residence lot at 2203 East Fourth Street in Owens-boro, Kentucky. The land is needed for the improvement of highway U. S. 60.

The lone argument relied on for reversal is in these words: “The verdict is not supported by any evidence of probative val-

Although appellant does not contend in its brief in so many words that the amount of the verdict is excessive, this is one of the errors assigned in its motion and grounds for a new trial. This court has followed the rule that on prosecution of an appeal from a verdict and judgment wherein any ground is argued for reversal it will be assumed that the appellant by implication contends the verdict is excessive. Commonwealth, Department of Highways v. Parker, Ky., 388 S.W.2d 366 (1965).

Appellees were awarded $427.32 by the commissioners appointed by the county court. Thomas Laswell, a local real estate appraiser, fixed the difference in the “before” and “after” value of the property from which the strip is taken at $400. Ap-pellees’ five witnesses assessed the difference in amounts ranging from a low of $2,-750 to $5,000.

The thrust of appellant’s argument is directed at the probative value of ap-pellees’ evidence because, as it is contended, the witnesses are not in accord as to the distance from the brick residence building to the new right-of-way line. The complaint describes the additional right-of-way sought to be a strip 7 feet wide and extending 70.75 feet, the entire width of the lot. There was considerable confusion among all witnesses, including appellant’s, as to the distance from the house to the edge of the proposed sidewalk and curb. A large part of this confusion resulted from the difference in the point from which the measurements began. There is an offset at the front of the building and some steps. Some of the witnesses started measuring from the step nearest the highway, some from the offset of the wall of the building, and some from the back of the steps. These inconsistencies are not important. Appellant’s witness Harold Ravlett, a civil engineer, stated that appellant was “going to move the highway in toward the house approximately eight (8) feet.” Appellees’ witness J. Andrew Hardesty fixed this distance at seven feet, which is more favorable to appellant than its own witness. It is concluded the trial court committed no error in overruling appellant’s motion to strike the evidence complained of.

There remains the question: Is the verdict excessive? The lot runs back a distance of 300 feet and contains 21,225 square feet. Only 495.25 square feet or 2.3 percent of the entire lot is taken, yet the amount of the verdict represents 13.3 percent of $22,500, the “before” value fixed by the jury. There is very little difference in the “before” value fixed by all witnesses, including appellant’s.

The only improvements affected by the taking is a hedge at the front of the lot.

It may be said that the closer the location of a highway right-of-way is to a residence the greater the depreciation of its market value. Appellees’ front lot contains more than eight such strips, seven feet in width, and still has some land left over. At the rate of $3,000 for each seven foot strip, the front yard would amount to $24,-000, which is more than the average of “before” value fixed by appellees’ five witnesses.

It is concluded the amount of the verdict is palpably excessive. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963).

The judgment is reversed with directions to grant appellant a new trial.

MOREMEN, C. J., and PALMORE and MILLIKEN, JJ., dissent.

PALMORE, Judge

(dissenting).

Of all the valuation problems that arise in condemnation cases, it seems to me that the question of how much depreciation in value will he suffered by residential property through the street’s being moved closer to the house comes about the nearest to being a matter of pure guesswork, in which a court should have the greatest reluctance in substituting its own opinion for that of a jury. I do not believe we should do so in this case and again, as in Commonwealth, Dept. of Highways v. Mer-riman, Ky., 392 S.W.2d 661, 662 (1965), I must challenge the logic of comparing the square footage of the strip taken with the remaining area.

MOREMEN, C. J., and MILLIKEN, J., concur in this dissent.


author: MOREMEN, Chief Justice.

text:
    William CONNERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Williams Conners, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst, Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

Appellant, William Conners, filed a motion to vacate a judgment under RCr 11.42. The motion was overruled by the circuit court and appellant has appealed. The record presented to us is not in order and several required steps have not been taken. We will attempt to piece out appellant’s contention from the material before us.

Appellant was convicted of armed robbery and sentenced to life imprisonment. On this appeal he states that he has had a bad mental condition since the age of nine. He was discharged from the United States Air Force for nervous and mental disorders and since that time has undergone psychiatric treatment in several institutions. Before the trial on the charge for which he was convicted he was examined by a doctor who found him to be medically insane, but legally sane. The trial was on October 12, 1962, and he states that on January 7 of the following year he was found to be mentally ill and suffering from schizophrenia. In January 1964, he was committed to the Central Hospital at Anchorage where he was found to be suffering from schizophrenia, given medication and electric shock treatments and returned to the penitentiary May 24, 1964, as cured.

The import of appellant’s contention before the circuit court and on this appeal is 'that at the time he committed the crime, at his trial and subsequent thereto, he was legally insane and therefore his trial and conviction are void. At his trial on the charge of armed robbery the question of his sanity was at issue and the court fully instructed on that point. The jury, by its verdict, found that he was not insane on the date of the crime’s commission.

In King v. Commonwealth, Ky., 387 S.W.2d 582, it was stated that a motion under RCr 11.42 was not a substitute for an appeal or a motion for a new trial and in that case we set out a few of the types of contention which would not be considered under that section. Among them were: (a) that the defendant was Insane; (b) that the evidence at the trial was insufficient to justify a conviction. Both of these grounds precluded any relief under RCr 11.42.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Kenneth C. DEVILLEZ et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Robert Lee Hall, Covington, Richard H. Peek, Richard Weisenberger, Paducah, for appellant.
    J. Gordon Lisanby, Princeton, for appel-lees.
   CLAY, Commissioner.

In this proceeding the Commonwealth condemned land affecting four different lots in a subdivision, and the actions were consolidated for trial. Appellees Vaughn were treated as the owners of one of the lots.

The Commonwealth appeals from a judgment in the circuit court but does not complain of the amounts awarded. Appellees Vaughn were awarded $1200.

The Commonwealth’s first contention is that the lot in which appellees Vaughn had an interest should not have been separately valued. It is argued that they had only an option to purchase the lot involved and were therefore not the owners. By written contract the Vaughns had undertaken to purchase the property by making a down-payment and monthly payments totaling $1200. This agreement was entered into in 1959, and at the time of the condemnation suit (as appears from appel-lees’ brief) practically the entire purchase price had been paid. Neither party gives us a record reference to this contract and we have been unable to find it.

We think it evident the Vaughns had such an equitable and beneficial interest in this property as to be properly treated as the owners thereof. We are at a loss to understand the nature of the error upon which the Commonwealth apparently insists. No claim is made that the method of trial or the amount of the award resulted in an excessive allowance for the land taken. We are unable to discover how the Commonwealth was prejudiced in any respect, and therefore find no prejudicial error on this point.

It is next contended the trial court erroneously overruled the Commonwealth’s challenge of a juror for cause. This juror on voir dire had expressed what would be an improper criterion for an award of damages in a condemnation case. Upon interrogation by the court, he stated that he could render a fair verdict “under the circumstances as to the value of the property taken”. The trial judge accepted this statement as indicating the juror would consider himself bound by the evidence and the instructions. In ruling upon a challenge for cause the court has a wide discretion. Wilder v. Louisville Ry. Co., 157 Ky. 17, 162 S.W. 557. We find no abuse of discretion.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    E. I. DuPONT de NEMOURS & COMPANY, Appellant, v. Barbara F. CONNICK et al., Appellees.
    Court of Appeals of Kentucky.
    March 11, 1966.
    • Edgar A. Zingman, J. David Grissom, Wyatt, Grafton & Sloss, Louisville, for appellant.
    Edwin A. Schroering, Louisville, for ap-pellees.
   MILLIKEN, Judge.

The appellee, Barbara F. Connick, is the widow of Harvey F. Connick, who fell to his death from the roof of a five-story A-Poly Building of his employer, the E. I. DuPont de Nemours Company, in Louisville on September 27, 1963. The trial court affirmed an award of the Workmen’s Compensation Board for his death, and DuPont has appealed because it contends that the death was the result of suicide and that the evidence of suicide is so great that the Board’s finding of facts really is a “finding of law” and hence appealable.

Connick had been employed for twenty-three years by DuPont as an engineer, had recently undergone electric shock and medical treatment for depression and alcoholism, had received most sympathetic consideration from his employer during the periods of his treatment, and had returned to work about two weeks before his death. He had been in danger of losing his job unless he accepted treatment. The evidence shows that his condition had been so bad that one physician feared at various times that he might take his life and also the life of his wife. There were episodes which indicated that Connick had maimed himself intentionally at various times. He had been seen on the roof the day before and, according to the witness, Connick had acted strangely.

On the other hand, there was testimony that Connick had made arrangements about a week before his death to visit the roof to see the dismantling of a stripping machine which had a possible relation to the latex-yield research problem on which he was working. On his visit to the roof on the day of his fatal fall he was cheerful and interested and appeared fully capable of handling his work. He did, however, complain that the medicine he was taking made him dizzy, and he had written a poignant letter to his son several days before the fall that the drugs he was taking made him dizzy. The assertion that his medication caused any dizziness was refuted.

In its opinion the Board summarized the voluminous testimony:

“There were two means or ways of gaining access to the roof of this building. The building is L shaped and there was a stairway immediately to the east of the scene of the operation of the stripper, and then at the northeast corner there was a stairwell which could be used as a means of getting on or off the building. Instead of using the stairway the decedent went in the direction of the stairwell which was on the northeast corner of the building. The decedent was last seen at a point approximately 75 feet from the east end of the building. He was next seen by another witness falling through the air from a point at the southeast corner of the building, this point being on the corner of the building opposite from the stairwell. There is no explanation, other than from speculation and guess, as to why the decedent was at the southwest corner of the building when his means of getting off the building was at the northeast corner.
“The defendant has established in this record that the decedent was a chronic alcoholic, a paranoid, had undergone much psychiatric treatment and had long and serious domestic difficulties with his wife; that on one or two occasions he had suffered accidents under suspicious circumstances, with indication that the injuries may have been self-inflicted. However, there is no evidence that on the day of his death or for several days prior thereto that the decedent had acted in any way but in a normal manner. There is in fact some evidence to the effect that while on the roof and during the stripping operation that he appeared to be enjoying himself and engaged in some mild horseplay and jokes with the other employees. Considering all of these factors and without attempting to discuss the great deal of evidence, and particularly considering the fact that there are no reasonable and logical explanations for the decedent to be at the southeast corner of the building — the point from which 'he fell — this Board is of the opinion and so finds that the defendant has failed to introduce sufficient positive evidence to overcome the presumption that the decedent did not intentionally jump from the top of the building and kill himself, but that in fact he did by accident fall therefrom to his death.”

Since the Board also concluded on conflicting evidence that the stripping machine did not have “any direct connection with the functions of the decedent’s particular job,” the appellant contends that the Board’s conclusion that the death of Connick arose out of his employment was erroneous, because his viewing of the dismantling of the machine was not a function or risk of his normal employment and hence his death did not arise out of his employment.

The burden of proof is on the claimant to establish that the death was caused by an accident and, of course, the presumption against suicide is a factor which supports the burden. The testimony of Con-nick’s dizziness also is a factor to be considered regardless of whether it was refuted by testimony that the drugs he was prescribed ordinarily would not cause it. Whether they caused it is not the controlling issue. The issue is whether Connick was dizzy and there are his statements and his letter to his son which are evidence that he was. The fact that the place on the roof from which he fell was less protected than any other area on the roof is susceptible to the belief that that is why he chose it if you start from the premise that he committed suicide, but on the other hand it is susceptible to the belief that he became confused or dizzy and because of the slight barrier at that point toppled off the roof. Needless to say, the one foot eight-inch barrier at other points along the roof was not so high or so strong as to prevent anyone with a predetermination to commit suicide from doing it.

The factual conclusions of the Board are decisive if there is evidence to sustain them, and this' Court may not properly overrule those findings even if it might feel otherwise on the evidence offered. Some of the evidence introduced here is consonant with accident and some of it consonant with suicide, and it was the Board’s job to weigh the conflicting testimony and reach a conclusion. The finding that Connick’s viewing of the dismantling of the stripping machine was not directly connected with his work does not impress us as precluding the conclusion that his death arose out of his employment. After all, he was a skilled employee working on a research project where initiative often pays great premiums to an employer and, in this instance, had made advance arrangements to witness the dismantling of the machine which processed latex.

We conclude, therefore, that the Board was justified in concluding that Con-nick’s death arose out of his employment. See Codell Construction Company v. Neal, 258 Ky. 603, 80 S.W.2d 530, 532, and Arnold & Wheeler Distributing Company v. Meadows (1964), Ky., 377 S.W.2d-807.

The judgment is affirmed.