source: Caselaw Access Project

author: CROSS, Judge.

license: Public Domain

text:
    E. O. PRATT, Appellant, v. REED & BROWN HAULING COMPANY, Respondent.
    No. 23595.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.
    Galen Knowlton, Michael J. Drape, Knowlton & Drape, Kansas City, for appellant.
    Samuel J. Molby, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City, of counsel, for respondent.
   CROSS, Judge.

This is an appeal from the judgment of the circuit court reversing a final award of workmen’s compensation benefits in the amount of $5,145.00 made by the Industrial Commission in favor of claimant-appellant E. O. Pratt, and against respondent Reed & Brown Hauling Company as his employer.

Appellant’s claim was originally filed against three corporations named as employers: Eby Construction Company, Bowen Construction Company and Reed & Brown Hauling Company. Appellant undertook to hold the Eby Company and the Bowen Company liable as employers on the theory that he was their statutory employee as defined by Section 287.040 V.A.M.S. The claim was asserted against Reed & Brown on the concept that appellant was that company’s employee in fact.

The Industrial Commission found that appellant was an actual employee of Reed & Brown within the coverage afforded by the Workmen’s Compensation Law, but declined to discuss the alleged secondary liability of the Eby and Bowen companies under Section 287.040 V.A.M.S., for the stated reason that Reed & Brown was insured as required by law. Liability under the final award is limited to respondent Reed & Brown and its insurer, Central Surety and Insurance Corporation.

The circuit court set aside the commission’s award on findings (1) that the evidence did not support the commission’s determination that claimant was an employee of Reed & Brown, (2) that claimant was an independent contractor at the time of his injury,, and (3) that claimant was not a statutory employee of Reed & Brown under the provisions of Section 287.040 V.A.M.S.

The primary issue presented here is whether claimant was an employee of Reed & Brown, or was an independent contractor, at the time he undisputedly suffered accidental injuries. We proceed to review a lengthy record and set out the facts pertinent to this question. It will be observed that there is some conflict in the evidence.

In 1959 the Eby Construction Company secured contracts for the construction of four Nike missile bases to be located near Lawson and Lone Jack in Missouri, and Leavenworth and Gardner in Kansas. Eby entered into a sub-contract with Bowen Construction Company for the laying of certain asphalt surfaces on roadways and launching pad areas at the missile base sites. In turn, Bowen entered into an oral sub-subcontract with Reed & Brown providing that the latter would haul crushed rock, by truck, as required by Bowen in laying the asphalt. Bowen crushed and supplied the rock. Reed & Brown was required only to furnish trucks and drivers and haul the rock from stockpiles near the sites to the places where Bowen would use it. For this service, Bowen agreed to pay Reed & Brown a stipulated amount per hour for each truck furnished. Although Reed & Brown owned thirty-three dump trucks, that number was not always sufficient to do all of its contracted work, and it became necessary to engage the services of additional trucks and drivers from time to time in order to complete hauling contracts. Claimant appears in this case as the owner and driver of one of the additional trucks used by respondent, first at the Lawson site and later at the Lone Jack site where the accident occurred.

For several years prior to 1959 claimant had owned a tandem axle truck with a dump bed of 10 to 12 yards capacity, for which he was granted a Public Servide Commission permit as a common carrier. This truck was available to the public for hauling, and claimant so advertised in the classified section of the Kansas City telephone directory. In the fall of 1959, some time prior to October 9, the date of the accident, claimant “applied for work” at the Reed & Brown “headquarters”. He orally agreed with Stanley Reed, president of respondent corporation, to furnish his truck, drive it and haul rock at the Lawson, Missouri, site, for pay at the rate of $7.50 per hour (inclusive of truck and driver). At Lawson the crushed rock was loaded into dump trucks, including claimant’s, by a high-loader operated by Bowen. Claimant and the other drivers hauled the rock a short distance to launching pad locations and dumped or spread it as directed by Bowen’s employees.

It was claimant’s testimony that respondent furnished claimant daily transportation from Independence to the work at Lawson except on one or two occasions when claimant drove his own car. Respondent supplied the gasoline for claimant’s car on those occasions. Respondent’s employee Madden told claimant at what time to report to work in the morning — seven o’clock and told him when to quit — usually around five o’clock every day. Ordinarily Madden kept track of claimant’s working hours and turned in his time daily. Claimant worked at Lawson until the job was completed. On the last day Mr. Reed asked claimant if he wanted to work at the Lone Jack site. Claimant indicated that he wanted to do so unless something better came up.

About a week or ten days later, Mr. Reed notified him that respondent was ready to resume hauling at Lone Jack and informed him when to report and where to go. Claimant proceeded as directed and arrived at the Lone Jack work site by following one of respondent’s trucks driven by an employee named Joe. The same general type of operations was carried on at Lone Jack as had been done at Lawson. Reed & .Brown resumed the hauling of crushed rock to supply Bowen such quantities as were required in its asphalt work. Only three trucks were used on the job at Lone Jack — the truck owned and driven by claimant and two of respondent’s own trucks. The latter were operated by two drivers employed by respondent — hourly workers paid at the rate of $2.71½ per hour. Concerning the nature of this hauling operation, President Reed testified: “Its simple, you load one place and go dump at another place”. Respondent had no foreman or supervisor on the job. The three trucks were loaded at Bowen’s stockpile by Bowen’s high-loader and driven to an area designated by Bowen’s loading employee. At the designated areas the three drivers dumped the rock or spread it as directed by Bowen’s spotter.

Claimant testified that he was paid by the hour at Lone Jack, the same as he was paid at Lawson, and at the hourly rate of $7.50. The average working day was ten hours. He stated that Mr. Reed told him when to start and when to stop, that he followed the other two “Reed men” in determining the route, that some one with Reed kept track of his time, that Mr. Reed paid him, and that all he did was merely drive his truck and dump the gravel wherever some one told him to put it. Whether or not he was to work on Saturdays would be decided by Mr. Reed. Claimant also said that he would have hauled to any point and would have observed different hours of starting and stopping work than had been arranged if Mr. Reed had so directed. Qaimant and the two Reed & Brown drivers started and quit work at the same time. Qaimant commenced his work day by following the “lead truck” driven by one of respondent’s drivers. The “lead man, Reed’s employee” told claimant when to quit. There was no agreement as to how long claimant would work for respondent. He was “free to go” — that is, he could quit and leave the job at any time. Likewise, respondent had the right to 'terminate claimant’s services at will. Claimant paid all expenses of operating his truck. He received no suggestions from respondent regarding, its maintenance. There was no withholding of social security or income tax from claimant’s pay. He was a card carrying member of the teamsters’ union.

James E. Williams, respondent’s employee, testifying on its behalf, said that he drove one of the two Reed & Brown trucks used at Lone Jack, that Joe Eschenbrenner drove the other company truck, and that additionally, claimant furnished and drove his own truck. The three drivers were rendering identical services. Williams testified that there was nothing claimant was doing on the job that was any different from what he was doing. The witness described the duties of the truck drivers essentially as stated by claimant. A high-loader operated by a Bowen employee filled the trucks with crushed rock from a stockpile. The trucks were then driven to areas pointed out by a Bowen spotter. After dumping or spreading a rock, as directed, the drivers would return to the stockpile and repeat the process. The witness testified that when the job began at Lone Jack, Mr. Reed directed him to report to Bowen’s foreman and to follow the foreman’s directions; that although Mr. Reed had set a general work schedule for an eight hour day, the actual starting and quitting time was determined by Bowen’s foreman; that “we stopped for lunch when the Bowen people shut down”; and, that Bowen’s foreman kept the time for claimant and the two Reed & Brown drivers and “turned that in each evening to Mr. Reed as to the hours the trucks had worked there during the day”. The three trucks hauled rock only when the Bowen employees wanted it or needed it. It was the function of Reed & Brown “to just haul the gravel where some one wants it placed down there”. Reed & Brown furnished the drivers no transportation to the job. The hourly rate of pay for Williams and Eschenbrenner was $2.71, with time and a half for overtime work.

Stanley Reed, president of respondent corporation, testified on its behalf. He stated that respondent’s oral contract with Bowen was, “essentially, * * * to furnish such hauling service as Bowen might need for the transporting, dumping and spreading of this rock”. Respondent had no foreman or supervisor at Lawson or Lone Jack. There were not enough trucks working to require supervision. The usual practice for the type of work done at Lawson and Lone Jack was to direct the drivers “to follow so and so and go where some one told him to dump, fill it up at the stockpile and dump it where he was told”. Respondent’s two drivers and claimant were instructed that they were to load at the stockpile and haul to launching pads and that Bowen’s foreman would tell them what time to start and quit and what to do while they were working. Reed frequently was on the job to see what was going on. He stated that he didn’t have to be there every minute; that “they were grown men, they should have known what to do”. The only instructions given claimant were “how to reach the stockpile”. Reed thought “that was the only directions that I needed to give him” because of the simple nature of the work — “loading one place and dumping at another place”. At the job site Reed gave no directions either to claimant, or to Williams and Eschenbrenner, who drove company owned trucks. All three drivers were union members. When claimant was employed nothing was said about his right to substitute a driver. Reed assumed that claimant would drive his own truck. It was Reed’s memory that on one occasion claimant had substituted a driver on the Lawson job. Reed denied that any gasoline or transportation had been furnished to claimant at Lawson. He stated that as to “results” he had the right to control claimant. Additionally, the witness testified as follows:

“Q. Did you and Mr. Pratt have any understanding as to how long his truck was to work at Lone Jack?
“A. Well, no, we didn’t. I mean, he could quit any time that he wanted to. By the same token I could put another one of my trucks down there anytime that I wanted to.
“Q. By the same token he could quit any time he wanted to, either way, and certainly by the same token as far as your truck drivers were concerned you could tell them that they •were through, could you not?
“A. Well, yes.
“Q. * * * From what you say, I gather the only difference between M.r. Pratt and your other drivers was that your other drivers who drive your trucks were paid so much an hour under union contract for their services as drivers while Mr. Pratt was paid a flat sum for each hour which included both his services and the use of his truck ?
“A. Well, that is right.
“Q. Other than there there was not any difference in the way Mr. Pratt operated while working for you and the way your other drivers operated, was it?
“A. Well, on those two particular jobs, no.
“Q. But you had the right to control the way he — control his services if you chose to exercise your right?
“A. What do you mean if I wanted to I could tell him he had to put twenty ton on his truck and drive like a mad man or I would no longer need him? Well, I guess I could if I wanted to, but I never did.
“Q. So that Mr. Pratt, as I understand it, was not treated any different than those who would be driving Reed and Brown trucks?
“A. That is correct.
“Q. And I said you had the same right to control the manner in which Mr. Pratt did his work the same as you had with your own drivers ?
“A. That is right.”

As a basis for its award of compensation to claimant, the Commission made the following findings of fact (in part) :

“We find from all of the evidence that E. O. Pratt was an actual employee of the Reed and Brown Hauling Company on October 19, 1959, and that he was not at that time an independent contractor.
“Whether in a given case a worker is an employee or an independent contractor depends upon the right of the employer to control his physical conduct in the performance of the details, i. e., the manner and method of doing the work. * * * Nabors vs. United Realty Co. [Mo.App.], 298 S.W.2d 474, 1. c. 477. Specie vs. Howerton Electric Co., K.C.C.A. No. 23,298 (not yet reported). We think the testimony of Stanley H. Reed, President of the Reed and Brown Hauling Company, abundantly demonstrates that his company had the right to control the manner and method of doing the work being performed by the employee, E. O. Pratt. * *

Claimant first assigns that the trial court erred in setting aside the award because there was sufficient competent evidence to sustain the findings of the Industrial Commission that claimant was an employee and not an independent contractor. The issue thus .raised is not triable de novo by this court. We have no authority to make findings of fact in cases originating in administrative tribunals. Our review of decisions made by the Industrial Commission on questions of fact is limited to a determination of whether its findings are supported by “competent and substantial evidence upon the whole record.” V.A. M.S., Const., Art. V, Sec. 22. The Supreme Court, en banc, in Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626, defines the scope of review authorized in cases of this nature, as follows: “This ‘does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and .reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.’ ” However, decisions of the Commission which are clearly an interpretation or application of the law, as distinguished from a determination of the facts, are not binding on the .reviewing court and are subject to review and correction by that court. Specie v. Howerton Electric Co., Mo.App., 344 S.W.2d 314, and cases cited.

An “employee”, as contemplated by the Workmen’s Compensation Law, is defined by Section 287.020 V.A.M.S. as “every person in the service of any employer * * under any contract of hire, express or implied, oral or written * * * ”, and the word “employer” is defined by Section 287.-030 V.A.M.S. as “every person * * * (or) * ⅜ * corporation * * * using the service of another for pay”. These definitions, as well as the whole of the Workmen’s Compensation Law, are to be broadly and liberally construed by the courts so as to effectuate the legislative intent to afford compensation to an employee. Specie v. Howerton, supra, and cases cited. In Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628, the court said: “Our Supreme Court, in construing this provision of the act, has given it a broad meaning, and has held that it should be so construed that any, doubt presented in any case- should be. resolved in favor of the employee being covered by the act.”

The Supreme Court has adopted the definitions of master, servant and independent contractor as formulated by the American Law Institute’s Restatement of the Law of Agency, Chapter 1, Section 2, and has applied them in cases involving the issue now before us. McKay v. Delico Meat Products Co., 3S1 Mo. 876, 174 S.W.2d 149. Those definitions are quoted as follows:

“A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
“A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
“An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.”

Missouri decisions have consistently reflected the principles inherent in the quoted definitions. As stated in Maltz v. Jackoway-Katz Cap Co. et al., 336 Mo. 1000, 82 S.W. 2d 909, “The (employer-employee) relationship * * * is peculiarly characterized by right of control vested in the latter.” An employer retains the right to control the details of the work done by an employee as well as to control the final .result to be accomplished. However, an independent contractor is not subject to control by his employer except as to the result of his work. Maltz v. Jackoway-Katz Cap Co, et al., supra.

Missouri courts recognize and apply certain specific tests in determining whether an individual is an employee, or an independent contractor. The various factors to be considered have been summarized in Lawrence v. William Gebhart, Jr. & Son, Mo.App., 311 S.W.2d 97, as follows: “the extent of control which, by the agreement, the alleged employer may exercise over the details of the work; the actual exercise of control; whether the person performing the service is engaged in a distinct and independent calling, requiring the skill of one specially trained; whether the work is usually done under the direction of -an employer, or by a specialist without supervision; the length of time for which the person is hired; the right to discharge the worker at any time prior to the completion of the work; the method of payment, whether by the time or by the job, without reference to the time consumed in performing the service; whether the alleged employer or the workman supplies the necessary tools, machinery and appliances; whether or not the work is a part of the regular business of the alleged employer; whether the employer has the right to hire, discharge and determine the pay of others who assist the worker in the performance of the work; and whether the alleged employer directs the details of the work performed by those assisting said worker.”

In some cases it has been held that in determining whether a person rendering services to another is an employee or an independent contractor, the ultimate and decisive test is the right of control In other decisions the courts have characterized the right of control as “of the greatest significance”; “of supreme importance” ; “the primary test”; “determinative”; and, “the controlling consideration”.

The evidence in this case and reasonable inferences to be drawn from it, considered in the light of the legal tests we have noted, tend to establish the following facts and circumstances indicating that claimant was an employee:

1. Actual physical control over claimant’s work was exercised either by respondent or Bowen. No control was retained by claimant except as to the starting, stopping and guiding of the truck incident to its operation. Respondent set the general working schedule, and delegated to Bowen the right to set the specific time for starting and quitting each day’s work, and to designate where the rock would be dumped. The work was of such simplicity that respondent needed no foreman or supervisor on the job. The directions given by Bowen were such as would ordinarily have been given by a foreman if respondent had utilized one. Constructively, the control exercised by Bowen was control exercised by respondent. In any event, the determining factor is not whether respondent actually exercised control over the work. The vital test is whether respondent had the right to exercise that control. Maltz v. JackowayKatz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Schultz v. Moerschel Products Co., Mo.App., 142 S.W.2d 106; and Tokash v. General Baking Co., 349 Mo. 767, 163 S.W.2d 554.

2. Both claimant and respondent recognized respondent’s .right to control claimant in the performance of his work. This is shown by plaintiff’s testimony and by the quoted admissions of respondent’s president. In McKay v. Delico, supra, a similar admission was held to be “conclusive”.

3. Respondent had the unrestricted right to fire claimant at any time — with or without cause. “The power to fire is the power to control. The absolute right to terminate the relationship without liability is not consistent with the concept of independent contract”. Larson, Workmen’s Compensation Law, Vol. 1, Sec. 44.35, page 654. “No single fact * * * is more conclusive of the nature of the employment than that of the employer’s unrestricted right to end the service whenever he chooses.” Schultz v. Moerschel Products Co., Mo.App., 142 S.W. 2d 106. Also see Fisher v. Hennessey, Mo. App., 329 S.W.2d 225.

4. There was no contract calling for “a fixed or determined result to be fulfilled.” See McKay v. Delico, supra.

5. Claimant was paid by the hour. “Payment by a unit of time, such as an hour, day or week, is very strong evidence of employment status”. Larson’s Workmen’s Compensation Law, Vol. 1, Sec. 44.33(a), page 646.

6. The work done by claimant was a part of respondent’s regular business. It was no different from that performed by the drivers who, admittedly, were employees of respondent. As stated in Larson, Workmen’s Compensation Law, Section 44.34, page 653, “ * * * there is a growing tendency to classify (truck) owner-drivers as employees when they perform continuous service which is an integral part of the employer’s business”.

7. The degree of skill required in the work was minimal. There is no special aptitude necessary to drive a truck up to a stockpile of rock, wait until it is loaded by another person, drive the truck to a place pointed out, and dump the dock as directed.

It may be conceded that some of the evidence is suggestive of the independent contractor status — principally the circumstance that plaintiff furnished the truck and the fact that there was no withholding of social security or income taxes from claimant’s wages. These and other fact considerations urged by respondent are merely evidentiary and must be weighed and considered toegther with all other elements of the test. They are in no sense conclusive of a relation foreign to that of employer and employee. McKay v. Delico Meat Products Co., supra; 99 C.J.S. Workmen’s Compensation § 64, page 278.

After considering all the evidence in this case under the appropriate legal tests, we conclude that the commission was justified in finding that respondent had the right to control the manner and method of the work performed by claimant and in reaching the ultimate conclusion that claimant was an actual employee of respondent. Those decisions and the commission’s final award are adequately supported by competent and substantial evidence upon the whole record and rest upon a sound interpretation and proper application of the law.

We have given due consideration to the authorities submitted by respondent. However, those cases have little relevance to this case because they necessarily involve different fact situations. It is the universal expression of our courts that “each case must depend upon its own surroundings, facts, and circumstances, and be subjected to established specific tests in aid of the ultimate and decisive test, right of control.” Maltz v. Jackoway-Katz Cap Co., supra.

Claimant also assigns that the trial court erred in finding that he was not respondent’s statutory employee under provisions of Section 287.040, V.A.M.S. Consideration of this additional point is unnecessary in view of our determination that the evidence adequately supports the Commission’s finding that claimant was an employee in fact.

Accordingly, the judgment is .reversed and the circuit court is directed to enter its judgment affirming the award.

All concur.

      . Now reported. Mo.App., 344 S.W.2d 314.

      . Fisher v. Hennessey, Mo.App., 329 S.W. 2d 225; Schultz v. Moerschel Products Co., Mo.App., 142 S.W.2d 106. Also see McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Tokash v. General Baking Co., 349 Mo. 767, 163 S.W.2d 554; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174.

      . Coy v. Sears, Roebuck & Co., 363 Mo. 810, 253 SAV.2d 816.

      . Garcia v. Yix Ice Cream Co., Mo.App., 147 S.W.2d 141.

      . Hackler v. Swisher Mower & Machine Co., Mo.App., 284 S.W.2d 55.

      . Bernat v. Star-Chronicle Pub. Co., Mo. App., 84 S.W.2d 429.

      . Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 628.


author: STEWART, Chief Justice.

text:
    Henry H. CARTER, Secretary of State of the Commonwealth of Kentucky, Appellant, v. Rex HENRICKSON, Appellee.
    Court of Appeals of Kentucky.
    Oct. 5, 1962.
    John B. Breckinridge, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., Frankfort, for appellant.
    Ben B. Fowler, Dailey & Fowler, Frankfort, for appellee.
   STEWART, Chief Justice.

Appellant, Henry C. Carter, Secretary of State, on advice of the Attorney General, declined to certify appellee’s name to the county clerks of the Seventh Congressional District as a candidate in the coming general election for the House of Representatives of Congress on an independent ticket. In an opinion the Attorney General claimed appellee’s petitions, filed pursuant to KRS 118.080(2), failed (a) to nominate him for any office; and (b) to designate specifically the district to be represented.

The trial court held the petitions valid, and this appeal is from that ruling.

KRS 118.080(2) provides that 400 electors who are qualified to vote for him as a candidate may nominate by petition “a representative in Congress from any Congressional district.” This statutory subsection does not, in terms, require exactness in naming the office sought.

It was stated in the petitions — there were quite a number signed and filed — that appel-lee was nominated as a candidate for the “office of United States Congress.” It is contended by the Attorney General that the real title of the office is “House of Representatives” (see Article 1, Section 1 of the Constitution of the United States), and to undertake to describe it as the “office of the United States Congress” is to refer to something that does not exist. We are unable to agree with such an argument.

The words “office of United States Congress” or “Congressman” are so often used by the general public interchangeably with the phrases House of Representatives or Representative that they are ordinarily taken to be synonymous. The man on the street has no trouble in recognizing that any of these expressions refer to a member of the lower branch of the United States Congress. Therefore we believe the designation employed in the petitions could leave no doubt in the mind of any one as to the office for which appellee was a candidate.

Each of the petitioners identified himself, following his signature, as a resident of a particular county, and each stated specifically he was legally qualified to vote for the candidate for election to the “office of United States Congress.” KRS 120.-060 divides the counties of Kentucky into congressional districts, and names the counties contained in each district. Every county named on the face of each petition is a county included in the Seventh Congressional District. The petitioners are not legally qualified to vote for any candidate for the House of Representatives other than one to represent that district, and this fact is clear from all of the petitions. Thus, the office sought is fairly and accurately deducible from the language of the petitions.

“It is a fundamental principle”, as was said in Queenan v. Mimms, Ky., 283 S.W. 2d 380, “that the courts will construe election statutes liberally in favor of citizens whose right to choose their public officers is challenged.” That case also held that a good faith purpose to nominate a candidate for public office should be recognized unless “the plain or manifest purpose of the law” demands a decision invalidating the petition. There is no such demand here.

Wherefore, the judgment is affirmed.

MONTGOMERY and BIRD, JJ., dissent.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. John B. BRECKINRIDGE, Attorney General, Appellant, v. J. C. MARSHALL, Elbert Goodin and Edgar Kimbler, Appellees.
    Court of Appeals of Kentucky.
    Oct. 5, 1962.
    James A. Hicks, Albany, for appellant.
    Ralph Hurt, Paul B. Jones, Columbia, Morris Butler, Greensburg, for appellees.
   PALMORE, Judge.

Appellees were elected as members of the Adair County Board of Education at the regular election in November of 1960. Their terms of office began on January 2, 1961, at which time they took the oath prescribed by Section 228 of the Constitution and assumed office. On June 24, 1961, they learned from an article in the Louisville Courier-Journal that the Attorney General had issued an opinion concerning their failure to take the further oath • required by KRS 160.170. This was their first knowledge of the latter requirement, and to correct the oversight they executed this oath in writing on June 27, 1961, and caused it to be filed in the records of the hoard. Thereafter they continued, as before, to attend meetings and perform their duties as members of the school board. This action to remove them was filed on December 22, 1961, and, after defensive pleadings and submission, resulted in a judgment for ap-pellees. The Attorney General appeals.

KRS 62.010 provides as follows:
“(1) No officer shall enter upon the duties of his office until he takes the oath required of him by law.
“(2) Each person elected to an office shall take the oath of office on or be- ■' fore the day the term of office to which he has been elected begins.
“(3) Each person appointed to an ■- office shall take the oath of office within thirty days after he receives notice • of his appointment.”

By' KRS 62.990(1), violation of KRS 62.010(1) is made a misdemeanor, upon conviction of which the offender is “removed from office.” And KRS 62.990(2) declares that the office of one who violates KRS 62.-010(2) or (3) “shall be considered vacant and he shall not be eligible for the same office for two years.”

KRS 160.170 says that every person elected to a board of education “shall, before assuming the duties of his office,” take both the Constitutional oath and the oath therein set forth. KRS 446.010(23) provides that in the statute laws of this state, unless the context requires otherwise, “shall” is mandatory. On the basis of these laws the Attorney General, through other counsel, contends that appellees forfeited their respective offices by failure to take the special oath in question on or before the day their terms began or, at the very least, within a reasonable time thereafter.

Somewhere between those who insist upon the letter of the law whether it makes sense or not and those who espouse a more temperate approach the so-called “legislative intent” is supposed to provide an anchor. More often than not, however, and especially does this become so with the passage of time after the enactment of a statute, there is no such thing as a real “legislative intent” with reference to the particular facts at hand. In such a case it must be remembered that, as most laws proceed from and are supposed to reflect the public will, it is not only proper but necessary that they be given a construction that is likely to be regarded by the public in general as reasonable.

KRS 62.010 carries into the revised statutes certain sections that have been in force at least since 1893. They speak in terms of a single “oath,” and it is possible to attribute significance to the fact that in the subsequent process of adopting what is now KRS 160.170 (c. 65, Art. V, § 18, Acts of 1934) the legislature did not see fit to change this terminology from the singular to plural. We prefer, however, not to rest upon a logic so tenuously premised.

The one great oath to be taken by all public officers is the Constitutional oath, Const. § 228. We seriously doubt that the legislature ever intended, or the public would expect us to hold, that a duly elected official who has taken that oath, and in good faith entered upon the performance of his duties, forfeits his office by an innocent, inadvertent failure to take some additional statutory oath of office, particularly where the statute creating it does not specifically provide any penalty for failure'to take it. When an officer swears that he will faithfully execute the duties of his office “according to law,” as he does by taking the Constitutional oath, the obligations and undertakings set forth in the various statutes pertaining to his office, whether or not they are expressed in the form of other oaths additionally prescribed, are necessarily included and he is bound by them. As we view it, where Const. § 228 is applicable, that is “the oath” referred to in KRS 62.010.

We hold that the innocent and inadvertent omission of a public officer who has taken the Constitutional oath to take some further oath prescribed by statute does not forfeit his office or authorize his removal from it. It is unnecessary, of course, to consider the possible effect of a continued and wilful failure to comply with the statute after it has been brought to the officer’s attention.

Judgment affirmed.

MONTGOMERY, J., not sitting.


author: MOREMEN, Judge.

text:
    Luther THOMAS, Warden, Kentucky State Penitentiary, Appellant, v. Edgar Clay MORROW, Appellee.
    Court of Appeals of Kentucky.
    Oct. 5, 1962.
    See also 352 S.W.2d 199.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellant.
    Frederic Olszweski, Princeton, for appel-lee.
   MOREMEN, Judge.

The Lyon Circuit Court granted a writ of habeas corpus to appellee, Edgar Morrow, and ordered his release from confinement in the state penitentiary and from the parole which had been granted to him by the state parole board. The Commonwealth appeals.

A bare chronicle of the events which transpired after his arrest and before he was committed to the penitentiary proves conclusively that he did not have the mental capacity to plead to the indictment returned against him.

This is the calendar of events:
November 12, 1958, indicted for armed robbery.
March 2, 1959, sent to Lakeland State Hospital for observation.
April 23, 1959, inquest in Jefferson Circuit Court when petitioner was found to be of unsound mind. He was adjudged to be legally insane.
June 25, 1959, returned to the custody of the Jefferson Circuit Court.
August 25, 1959, appeared before the court, changed his.former plea of not guilty to guilty on a charge of robbery, a lesser offense. He was not sentenced on this day, but was released on own bond without surety.
September 25, 1959, accused of robbery of branch office of Liberty National Bank & Trust Company of Louisville and was held in federal custody on this charge.
December 16, 1959, U. S. District Court caused an inquiry as to mental condition of petitioner.
December 16, 1959, after inquiry, indictment dismissed and prisoner was again sent to Lakeland State Hospital.
August 5, 1960, petitioner again discharged from State Hospital, turned over to Jefferson Circuit Court and remanded to jail.
August 29, 1960, petitioner sentenced by circuit court to five years in prison.

We have said on many occasions that only void judgments are subject to attack by habeas corpus proceedings, Mercer v. Commonwealth, Ky., 346 S.W.2d 761; Robinson v. Jones, Ky., 347 S.W.2d 514, with the corollary admonition that the writ will not issue except upon probable cause being shown that the judgment is void. Hamm v. Jones, Ky., 353 S.W.2d 544.

We are faced at the outset with the question of whether lack of mental capacity to plead to an indictment, or to change a plea after it is once pled, renders a judgment void so that the wrong may be corrected by the use of the writ of habeas corpus. In Broadus v. Lowry, 6 Cir., 245 F.2d 304, in an opinion written by Hon. Shackelford Miller, Jr., it was said:

“Appellant also contends that he was mentally incompetent at the time of his arraignment and sentence, thus voiding the judgment. Youtsey v. United States, 6 Cir., 97 F. 937; McIntosh v. Pescor, 6 Cir., 175 F.2d 95, 98. This issue was not raised in the sentencing court either at the time of sentencing or thereafter. Although we expressed doubt in McIntosh v. Pescor, supra, about the jurisdiction of the District Court to vacate the sentence under Rule 35, Rules of Criminal Procedure, 18 U.S.C., after the expiration of the term, we expressed the view that such an issue could be properly presented by habeas corpus proceedings. Compare: United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232; Bishop v. United States, 96 U.S.App.D.C. 117, 223 F.2d 582, 584-585, reversed 350 U. S. 961, 76 S.Ct. 440, 100 L.Ed. 835.”

It has often been stated by this Court that errors which may be corrected on appeal do not cause a judgment to be void, but merely erroneous, and therefore the judgment may not be nullified under habeas corpus proceedings. We have emphasized also in many cases the Court’s right to issue a writ of habeas corpus, where the judgment is void — but few opinions define the circumstances which produce such a judgment.

We accept the view expressed - in the Broadus case above that when a person is mentally incompetent at the time of arraignment and sentence, any judgment entered is void, and that the writ will lie in order to correct such a wrong.

The same lack of mental capacity which denied to petitioner the faculty to plead properly to the indictment also made him incapable of recognizing error, feeling aggrieved and prosecuting an appeal to correct it. If he did not have the capacity to plead to the indictment he also lacked the capacity to protect himself by appealing to this Court.

The law of this Commonwealth is more certain in regard to the protection of insane persons than is that of the federal jurisdiction because there it is necessary to draw from the strength of the common law to sustain the premise that a mentally incompetent person should not be permitted to plead to an indictment, (see Youtsey v. U. S., 6 Cir., 97 F. 937) while § 156 of our Criminal Code of Practice delineates actions which are obligatory after it is brought to the Court’s attention that the accused is suffering from a mental disorder.

We are of opinion that the trial court was correct in granting the writ of habeas corpus to appellee, Edgar Morrow, and the judgment is therefore affirmed.


author: WADDILL, Commissioner.

text:
    Ann SCHULTZ, Appellant, v. Sue N. SCHULTZ et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 5, 1962.
    A. E. Funk, Jr., Middlesboro, Glover Mc-Ghee, Smith, Swift, Currie & McGhee, At-
    lanta, Ga., Luther P. Plouse, Jr.', Adolphus, for appellant.
    E. B. Wilson, Pineville, James Park, Jr., Stoll, Keenon & Park, Lexington, for ap-pellees.
   WADDILL, Commissioner.

On January 28, 1960, Ann Schultz, who became 21 years of age on February 1, 19S9, filed this action pursuant to KRS 454.-110 seeking to set aside a judgment rendered on November 22, 1941, which declared that she was not entitled as a pretermitted child (KRS 394.380) to any interest in her foster father’s estate. Following a hearing the trial court found there had been no fraud or collusion in the procurement of the judgment of November 22, 1941 and refused to grant the relief sought. From a judgment accordingly entered Ann Schultz appeals.

On May 9, 1934, Dr. Jacob Schultz, a resident of Bell County, Kentucky, executed a will under the terms of which he gave his entire estate to his wife, Susan Schultz. Approximately four years thereafter Dr. Schultz and his wife legally adopted a child, then 9½ months of age, whom they named Ann Schultz. Dr. Schultz died during October, 1940, without making any change in his will. Susan Schultz qualified as executrix of his estate and C. W. Bailey, a brother-in-law of Susan, was appointed the statutory guardian of Ann Schultz. During 1941 it became necessary to obtain the aforementioned declaratory judgment to enable Susan Schultz to sell certain parcels of the real estate devised to her by Dr. Schultz’s will. The appeal from that judgment was dismissed by this Court because it had not been timely taken and perfected as required by the Declaratory Judgment Act. Schultz v. Schultz, Ky., 332 S.W.2d 253.

The determinative issue on this appeal is whether the finding of fact by the trial court that the 1941 declaratory judgment was not obtained by fraud is sufficiently supported by the record.

The evidence introduced upon the trial of tiie instant action shows that the statutory guardian of appellant and the attorney who represented her in the 1941 litigation had acted conscientiously and in the furtherance of the appellant’s best interest. Consequently, the -finding of fact was not erroneous as it is supported by substantial evidence. See CR 52.01. This determination, which leaves the 1941 declaratory judgment in effect, precludes a consideration of the questions raised by appellant concerning the merits of her claim against the estate of her foster father as a pre-termitted child.

Judgment affirmed.


author: CULLEN, Commissioner.

text:
    Margaret McReynolds WROBLEWSKI and Beverly Ann Egan, by her Next Friend, Earl F. Martin, Appellants, v. Lester E. YEAGER, Individually, etc., Appellees.
    Court of Appeals of Kentucky.
    May 18, 1962.
    Rehearing Denied Nov. 9, 1962.
    Thomas E. Sandidge, James S. Sandidge and Sandidge & Sandidge, Owensboro, for appellants.
    Wilson & Wilson, Jack A. Conner, Owensboro, for appellees.
   CULLEN, Commissioner.

A six-page typewritten document, bearing on the last page the signature of the testator and the attestation of three witnesses, was admitted to probate by the Daviess County Court as the will of James C. Ellis. Two great-grandnieces of Ellis contested the probate by appeal to the circuit court, on the ground that the first five pages of the probated document were not the same pages that were in the will when it was executed. At the conclusion of the evidence the court directed a verdict upholding the probate, and from the judgment entered upon that verdict the contestants have appealed to this Court.

The problem in the case arises from the fact that the attestation clause in the will recited that for the purpose of identifying the first five pages the attesting witnesses had subscribed their initials to each page, but the probated document does not bear any such initials.

Two of the three subscribing witnesses (the third had died before the trial) testified that at the time the will was executed they did not initial the first five pages. The appellants argue that the witnesses did not so testify but merely said that they did not put their initials on any page of the probated document, but in our opinion the only fair import of the testimony is that the witnesses did not initial any page of the document that Mr. Ellis executed as a will with their attestation.

The major contentions of the appellants are (1) that the testimony of the subscribing witnesses contradicting the recitation in the attestation clause was not competent; and (2) that even if the testimony was competent it could not as a matter of law overcome the attestation clause but could only create a jury issue.

In their first contention the appellants are in error because the law is well settled contrary to the contention. See Poindexter’s Adm’r v. Alexander, 277 Ky. 147, 12S S.W.2d 981.

The second contention raises a most difficult question. In the Poindexter case, supra, this Court held that the testimony of an attesting witness contradicting a' positive statement in the attestation clause cannot as a matter of law overcome the prima facie case made out by the attestation clause. Obviously the court in that case took the view that the attestation clause may have some evidentiary effect or weight.

The rationale of the rule stated in the Poindexter case is somewhat difficult to grasp, because it permits a jury to find proper execution of a will on the basis of a statement in the attestation clause even if the attesting witnesses testify that there was no proper execution, whereas, if the attesting witnesses were not put on the stand or were not available, the will could not be probated upon the strength of the attestation clause alone. See Polley y. Cline’s Ex’r, 263 Ky. 659, 93 S.W.2d 363; Tackett v. Tackett, 204 Ky. 831, 265 S.W. 336; KRS 394.235.

Perhaps the rule can be explained on the basis that although many of the cases appear to hold that at least one of the attesting witnesses, if available, must testify as to the facts of signature or acknowledgment by the testator in the witnesses’ presence, and their subscription in his presence, all that actually has been required 1 to be proved by testimony of the attesting witness is the identification of the signatures. Proof of compliance with the required formalities of execution may be supplied by testimony of nonattesting witnesses, by a recitation in the attestation clause, or even by a form of presumption. That this is so is illustrated by the decisions in Turner v. Turner, 11 Ky. 101; Howard’s Will, 21 Ky. 199; Pate’s Adm’r v. Joe, 26 Ky. 113; Gwinn v. Radford, 12 Ky. 137; and McCue v. Turner, 252 Ky. 849, 68 S.W.2d 415. In the Turner case one of the attesting witnesses testified that he and the testator signed in each other’s presence and he identified the signatures of the other two attesting witnesses but he could not remember whether they signed in the testator’s presence or he in theirs. The court held that there was sufficient proof of proper execution and spoke of a “violent” presumption that the attestation was proper. In the Howard cáse one of the three attesting witnesses testified as to facts showing proper execution, while the other two testified that they did not sign in the testator’s presence. The court held the will valid. In the Pate, Gwinn.and McCue cases the attesting witnesses were able to identify their own signatures on the will but could not remember anything about the circumstances of execution. In each case the court held there was sufficient proof to sustain a verdict upholding the will.

The rule stated in Poindexter’s Adm’r v. Alexander, 277 Ky. 147, 125 S.W.2d 981, and in the earlier cases of Allegeyer v. Allegeyer’s Ex’rs, 244 Ky. 450, 51 S.W.2d 445, and Caddell’s Heirs v. Caddell’s Ex’x, 175 Ky. 505, 194 S.W. 541, giving effect to recitations in the attestation clause with respect to compliance with the formalities of execution, is consistent with the proposition that if an attesting witness identifies his signature proof of the proper execution may be supplied from other sources. The attestation clause is treated as an acceptable source of proof because it is a solemn recitation of compliance with the statutory formalities.

It appears that underlying all of the foregoing decisions there is a basic policy favoring the upholding of the validity of wills wherever reasonably possible. Where the attestation clause has been resorted to it has been for the purpose of upholding the will.

the instant case, however, the contestants seek to use the attestation clause to invalidate the will offered for probate. And the recitation they rely upon does not relate to the required formalities of execu-execubut to a matter concerning which the attesting witnesses had no duty or obliga-obligaThe subscribing witnesses to a will are called upon only to attest the signature of the testator and they are not required to know that the document is a will or what are its contents. Flood v. Pragoff, 3 K.L.R. 372, 79 Ky. 607; P’Pool’s Ex’r v. P’Pool’s Ex’x, 121 Ky. 588, 89 S.W. 687.

There may be some reason for giving evidentiary weight to a recitation in the attestation clause that the subscribing witnesses did what the law requires of them, but not so with respect to a recitation of gratuitous acts not required of the witnesses. In either case the attestation clause is merely hearsay. Where the clause recites compliance with statutory formalities of execution it seems to have been held admissible under some kind of exception to the hearsay rule, based upon a policy favoring the upholding of wills. There is no policy warranting an exception for hearsay statements concerning acts not required of the subscribing witnesses.

course if the proponents of the will had the burden of proving, by the at-atwitnesses, the authenticity of the pages of the will offered for probate, the recitation in the attestation clause would be admissible to impeach or contradict the tes-tesof the attesting witnesses. But in our opinion the proponents of the Ellis will, under the circumstances of this case, had no burden to show by testimony of the attesting witnesses that the pages of the will were au-auso the contestants could not create a jury issue simply by means of impeaching the testimony of the attesting witnesses.

will as offered for probate had all appearances of authenticity. The pages -were stapled together and their sequence and the continuity of language and thought indicated that the pages were coherent parts of one original document. There was noth-nothin the case, other than the recitations in the attestation clause, to raise any serious doubts about the authenticity of the first five pages of the will. Under these circum-circumin our opinion, the contestants had the burden of proving that there had been a substitution of pages. See Keifer’s Ex’r and Ex’x v. Diebel, 292 Ky. 318, 166 S.W.2d 430; 95 C.J.S. Wills § 384, p. 272; Roche v. Nason, 105 App.Div. 256, 93 N.Y.S. 565.

To sustain their burden the contestants had only the recitation in the attestation clause which, for the reasons herein-above stated, could not constitute direct evidence but only impeaching evidence. There being no direct evidence in the case that the pages of the will were initialed at the time of execution, the contestants are left with no proof to support their claim that the pages of the probated will are not authentic. Cf. Hopson v. Ewing, Ky., 353 S.W.2d 203.

The judgment is affirmed.


author: BIRD, Judge.

text:
    In re ADVISORY OPINION OF KENTUCKY STATE BAR ASSOCIATION.
    Court of Appeals of Kentucky.
    Oct. 5, 1962.
    Charles B. West, Henderson, for movant.
   BIRD, Judge.

A law partnership was employed to prosecute a civil claim against a third class city. Subsequently one of the partners was duly elected to the office of prosecuting attorney in and for said city.

The partnership sought advice from the State Bar Association as to the propriety of continuing to prosecute the civil claim against the city. The Bar Association held that further prosecution of the claim against the city would be in violation of Canon Six of the Canons of Professional Ethics governing the practice of law in Kentucky. The partnership has asked this Court to review the “advice” of the Bar Association.

Canon Six provides as follows:
“It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.
“It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
“The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids-also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.” (Emphasis added.)

The duties of a prosecuting attorney for a city of the third class are prescribed in KRS 69.520, which reads as follows:

“The prosecuting attorney in cities of the third class shall attend all sessions of the police court and prosecute all criminal and penal cases in that court and appeals therefrom, whether for violations of the ordinances of the city or the laws of the state.”

Only one question presents itself to the Bar Association and to the Court of Appeals. Does the situation present a conflict of interest?

Laying side by side the canon’s definition of conflict of interest and the statute prescribing the prosecutor’s duties to the city we are unable to see any conflict.

We must therefore reverse the holding of the Bar Association.


author: HUNTER, Presiding Judge.

text:
    STATE of Missouri ex rel. The BOARD OF REGENTS FOR the CENTRAL MISSOURI STATE COLLEGE, Plaintiff-Appellant, v. Frank T. MORIARTY, Ella M. Moriarty, Mamie Moriarty Arrowood and Roy Arrowood, Defendants-Respondents.
    No. 23604.
    Kansas City Court of Appeals. Missouri.
    Oct. 1, 1962.

      Crouch & Fitzgerald, Warrensburg, for appellant.
    Gayles R. Pine and Betty Pine Lockard (Pine, Welling, Jones & Lockard, Warrens-burg), for respondents.
   HUNTER, Presiding Judge.

This is a condemnation suit brought by plaintiff-appellant, the Board of Regents for the Central Missouri State College, to acquire 8½ acres of land located in the City of Warrensburg, Johnson County, Missouri. The named respondents-defendants, Frank T. Moriarty, Ella M. Moriarty, Mamie Moriarty Arrowood and Roy Arrowood, are the owners of the land.

The commissioners appointed by the Circuit Court of Johnson County assessed defendants’ damage in the sum of $14,000. This award was paid by plaintiff, and both plaintiff and defendants filed exceptions to the report of the commissioners. The cause was then tried to a common law jury which assessed defendants’ damages at $20,000 and judgment was entered in that amount. This appeal followed.

•[1] According to plaintiff’s evidence the value of the property was between $8,000 and $10,000. Defendants’ evidence was that the value of the property was between $23,-500 and $27,500. The amount in dispute being the difference between $20,000, the amount of the judgment, and the $10,000 which plaintiff contends the land is worth, this court has jurisdiction of the appeal. Section 477.040 RSMo 1959, V.A.M.S.

Plaintiff’s initial point is that the trial court erred in giving Instruction No. 1, “as said instruction does not properly declare the law of the case, is in conflict with and contrary to the applicable law, and did not give proper guidance to the jury.” In the argument portion of its brief plaintiff has illuminated its general contention saying that although the instruction was “lifted” from the case of City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 842, it fails to instruct the jury as to the proper basis or elements on which damages are to be estimated, and told the jury to consider only the highest and best use as shown by defendants’ evidence.

That portion of Instruction No. 1 which plaintiff criticizes reads: “In assessing the just compensation due them you must allow them the fair market value as of December 21, 1960, for the property described as shown by the evidence.

“The term 'fair market value’ means the price which defendants’ property would bring when offered for sale by one willing but not obliged to sell it, and is bought by one willing or desirous to purchase it, but is not compelled to do so. Fair market value does not mean the price it would bring where the party selling is forced to sell, or where it is sold for other considerations in addition to the money paid, but rather what the land would fairly bring in the hands of a prudent seller at liberty to fix the time at which he would sell and the conditions under which he would sell. The question is, if the defendants, Frank T. Moriarty, Ella M. Moriarty and Mamie Moriarty Arrowood wanted to sell their property, what could have been obtained for it upon the market from parties who wanted to buy it on December 21, 1960, and who would give them its full value for its highest and best use, as shown by the evidence.”

In a condemnation case it is proper to advise the jury by written instructions what elements they may consider in estimating the damages claimed. State ex rel. State Highway Commission of Missouri v. Haid et al., 332 Mo. 606, 59 S.W.2d 1057, 1060; Siemers v. St. Louis Electric Terminal Ry. Co., 348 Mo. 682, 155 S.W.2d 130, 137.

It is our view that Instruction No. 1 sufficiently sets out the proper basis for determining damages. The jury was clearly directed to determine the “fair market value” of the property appropriated. This is the time honored and correct statement of the measure of damages or just compensation in such cases as this. 29 C.J.S. Eminent Domain § 137, page 974; City of St. Louis v. Smith, 325 Mo. 471, 30 S.W.2d 729. The additional definition of the term “fair market value” substantially follows approved definitions of that term. The words “highest and best use, as shown by the evidence” contained as they were within the otherwise correct definition do not cause the instruction to be reversibly erroneous. See, City of St. Louis v. Vasquez, supra; Illinois Light & Power Co. v. Bedard, 343 Ill. 618, 175 N.E. 851, 618; St. Louis Housing Authority v. Bainter, Mo.Sup., 297 S.W.2d 529.

Plaintiff refers to defendants’ evidence that the land is suitable for subdividing, suggesting this evidence was speculative and that the instruction directed the jury to fix that value as the highest and best use. In determining fair market value the essential inquiry is what is the property worth in the open market viewed not merely with reference to the uses to which it at the time applied, but with reference to the uses to which it is plainly adaptable. Thus, if land is so situated that it is actually available and usable for building purposes, as the evidence before us indicated, its value for such purposes may be considered. All that is necessary in order to be entitled to consideration in arriving' at the fair market value of the tract is that such a potential use must be so reasonably probable or available as to motivate a prospective purchaser in his evaluation of the property.

In instructing on the measure of damages care should be used to make it clear that it is the fair market value of the land that is to be determined by the jury from its consideration of all the uses for which it is reasonably available, as shown by the evidence. In this connection, the highest and best use to which the property is adaptable or likely to be needed or used in.the reasonably near future is to be considered, not necessarily as the measure of its value but as an element affecting and possibly controlling its market value. In some jurisdictions it is common to instruct that the market value of property appropriated is its value on the market for the highest and best use to which it reasonably can be put. See, 29 C.J.S. Eminent Domain § 137, note 82(2), page 974 ; 4 Nichols on Eminent Domain (3rd Ed.) § 12.314, note 65. It is difficult to see how this can be erroneous unless under the facts of the 'particular case it results in excluding from the jury’s consideration other elements appreciably affecting the market value of the property appropriated. Certainly in the usual case the highest and best use is the most valuable use. Again in the ordinary case it is the most valuable use that establishes the market value of land appropriated. 18 Am.Jur., Eminent Domain, § 244, page 879.

The last sentence of Instruction No. 1 required the jury to make its findings from the evidence. It did not limit the jury to a consideration of only defendants’ evidence as plaintiff contends.

In its brief plaintiff charges Instruction No. 1 indicated that the taking of the property was against the will of the owner which makes it prejudicial to plaintiff. This is the first time this objection to Instruction No. 1 has been made. It was not included in the general objections made at the time of the giving of the instructions, nor was it mentioned in the motion for new trial. Civil Rule 79.03, V.A.M.R. provides, “If any specific objections to instruction have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must be set forth in the motion for new trial to preserve the error for review.” If we reviewed the objection we would of necessity find it to be without merit for the suggestion to the jury the property was being condemned was first made by plaintiff. Additionally, there is no evidence that the landowners had strong feelings against the taking or that it was against their will. See, City of St. Louis v. Vasquez, supra (2). However, we do not review the contention for plaintiff has failed to preserve it for appellate review.

Plaintiff contends the trial court erred in refusing to give Instruction No. 5 which reads: “The Court instructs the jury that in assessing damages due defendants you have the right to and you will be guided by your own judgment with respect thereto,.as well as all the evidence in the case.” The identical words of the offered instruction were recently before the Springfield Court of Appeals in State ex rel. Burcham v. Drainage District No. 25, Mo. App., 280 S.W.2d 683. In a well reasoned opinion that court noted the instruction was improper and should not have been given for it did not limit the jury to consideration of their own experience and observation in the common affairs of life in their evaluation of the testimony, but authorized and invited the jurors in arriving at a judgment to draw without limitation on whatever information, knowledge or experience they may have had. This is quite different from a jury being properly permitted to exercise their own judgment upon the evidence by considering it in the light of their own knowledge and experience which they are presumed to possess from the common experiences of mankind. For the reason so well expressed by the Springfield Court of Appeals the trial court did not err in refusing to give the offered instruction.

There are two additional reasons why the offered instruction was properly refused. The jury had been fully instructed on the subject in another instruction (No. 3) that had been given by the court and there was no need for any further instruction on the subject. Also, the offered in- ' traction was cautionary in nature, and the giving or refusal to give cautionary instructions rests in the sound discretion of the trial court. Shell Pipe Line Corp. v. Bruns, Mo.App., 239 S.W.2d 546(5).

During the trial numerous photographs of the land in question were introduced in evidence. Several of these were excellent aerial photographs showing the land and its surroundings. There was substantial testimony from witnesses describing the land and its surroundings. At the close of the evidence plaintiff requested the court to permit the jury to view the premises, and now assigns the court’s refusal to do so as error. We find no merit in the assignment. It is the accepted rale that while the trial court may under proper circumstances permit a view of the premises by the jury in a condemnation proceeding it may exercise its discretion in the matter and refuse to do so. On appeal the exercise by the trial court of its discretion will control in the absence of a showing of its qbuse. As stated in City of St. Louis v. Worthington, 331 Mo. 182, 52 S.W.2d 1003, 1010, “A view is not a matter of right but rests in the sound discretion of the trial judge as to whether it is proper or necessary to enable the jury to obtain a clearer understanding of the issues involved or to make a proper application of the evidence. ‘It is only where there has been a flagrant abuse of this discretionary power that this court will interfere.’ ” On this appeal no abuse of discretion has been demonstrated.

Plaintiff’s • final contention, is that the trial court erred in allowing testimony that a house, situated on the original tract but omitted from the taking, was connected with the sewer system of the City of Warrensburg. One of the factors involved in determining the fair market value of the premises was whether it was served by a sewer system or had one closely available. There was evidence that sewer, water, gas and electricity services were accessible to the 8½ acre tract ’taken and that the dwelling house, located on a corner of the original tract, but not taken, had a hookup with the sewer system of Warrensburg. This evidence of the nearness of sewer service and indicative of its availability to the tract appropriated was .relevant on the issue of value and its admission was not erroneous. See, Luechtefeld v. Marglous, Mo.App., 151 S.W.2d 710, 714; 20 Am.Jur., Evidence, § 250, page 244.

Since plaintiff has failed to preserve and present on appeal the commission of any prejudicial error by the trial court, the judgment is affirmed. It is so ordered.

All concur.