text:
    John M. HALL et al., Appellants, v. Babe C. NOPLIS, Individually and as County Judge of Perry County, Ky., et al., Appellees.
    Court of Appeals of Kentucky.
    April 29, 1963.

      Barney W. Baker, Hazard, for appellants.
    H. B. Noble, Harold Garland Wells, S. M. Ward, Hazard, for appellees.
   PALMORE, Judge.

KRS 64.255 authorizes the payment of salaries to magistrates for the performance of duties incident to the exericse of criminal jurisdiction. It became effective March 28, 1958. On April 8, 1958, the Perry Fiscal Court adopted orders setting the salaries of its magistrates at $200 per month and dispensing with all further compensation on a per diem basis. Because the validity of the statute was elsewhere in litigation, the county treasurer declined to pay these salaries, and on December 16, 1958, the individual magistrates brought suit against him in the Perry Circuit Court to enforce payment. Answer was filed the next day and, by agreement, the cause was submitted for judgment forthwith on the pleadings. Judgment for the plaintiffs was entered on December 17, 1958, and became final without appeal.

On June 19, 1959 (rehearing denied December 11, 1959), in a case arising from Harlan County, this court held the statute valid but struck down an order of the Harlan Fiscal Court fixing monthly salaries for its magistrates for the reason that it purported to entitle all of the magistrates to the salary without reference to performance of the criminal court duties contemplated by KRS 64.255. Smith v. Harlan County Fiscal Court, Ky.1959, 329 S.W.2d 61. Despite this ruling the Perry Fiscal Court has continued to abide by its order of April 8, 1958, and, in this suit by certain taxpayers against the individual magistrates and former magistrates who have received the salaries, and against the various officers of the county in their official capacities, the defendants were successful below on their plea that the judgment of December 17, 1958, was res judicata. The taxpayers appeal.

In Smith v. Campbell, Ky.1955, 286 S.W. 2d 532, taxpayers brought suit against individual magistrates and the county treasurer to recover of the magistrates lump sum expense payments received by them pursuant to a 1946 resolution of the Harlan Fiscal Court and to enjoin the treasurer from making further payments. Theretofore, in 1935, in an action between the county attorney and the fiscal court, the Harlan Circuit Court had adjudged similar previous resolutions to be valid, and this judgment was pleaded as res judicata. In 1950, however, a statute (KRS 64.710) had been enacted barring lump sum expense payments. This court held that the 1935 judgment was conclusive as to all payments made prior to the effective date of the 1950 act but not as to those made thereafter, because “the 1935 judgment did not pass on the legal question presented by the 1950 statute.”

The case now before us is analogous to Smith v. Campbell except that the legal event intervening between the pleaded judgment and the new action was a court decision rather than a statute.

“In accordance with the general rule * * * that the estoppel of a judgment extends only to the facts and conditions as they were at the time the judgment was rendered, it has been broadly held that res judicata is no defense where, between the time of the first judgment and the second, there has been an intervening decision or a change in the law creating an altered situation.” 50 C.J.S. Judgments § 650, p. 95; State Farm Mutual Auto. Ins. Co. v. Duel, 1945, 324 U.S. 154, 162, 65 S.Ct. 573, 89 L.Ed. 812.

Certainly the December 17, 1958, judgment of the Perry Circuit Court concluded the rights of the parties as to what was payable at the time, and until Smith v. Harlan County Fiscal Court, supra, was decided by this court they had reason to rely on its continued application in futuro. But it would hardly be in keeping with sound policy to say that an erroneous judgment must or can fix in perpetuity the rights and liabilities of parties in such a continuing relationship as exists between the public and its officers. The pay of magistrates in Perry County cannot, by virtue of this judgment, be governed forever by a law contrary to that which applies in the rest of the Commonwealth. We hold that the judgment of December 17, 1958, ceased to operate as res judicata (or, as it is sometimes called, as a collateral estoppel) on December 11, 1959, the date on which the mandate in Smith v. Harlan County Fiscal Court was issued.

The fiscal court action of April 8, 1958, was in the form of two motions separately passed and approved. The first was to the effect “that the Magistrates salaries be set at $200.00 per month effective Apr. 8, 1958.” On its face it was a blanket authorization of the monthly salaries for all the magistrates, not qualified or contingent on the performance of duties incident to the exercise of criminal court functions. The second motion was to the effect “that the Perry Fiscal Court be called together at any time without per diem pay, and that they be paid salaries only” (emphasis added), clearly indicating that the salaries were intended as compensation for all the services of the magistrates, whereas the statute (KRS 64.255) limits such compensation exclusively to the performance of criminal court functions. As the statute confers no authority to make a flat substitution of salaries in lieu of other compensation, which these orders purported to do, they were void. Smith v. Harlan County Fiscal Court, supra.

That the order fixing the salaries was void does not, however, necessarily make the subsequent payments illegal and thus subject to recovery in a collateral proceeding. “The rule is that if there is no authority of law for the payment of a claim, the order making the allowance is void, and the money paid may be recovered in a direct proceeding by proper officers of the county, or by a citizen and taxpayer upon their failure to sue after demand, and for the same reason payment may be resisted * * * but if there is authority of law for the payment, the order of the fiscal court making the allowance is not void and the only relief is by appeal.” Bell Fiscal Court v. Helton, 1935, 258 Ky. 219, 79 S.W.2d 683 (allowance to jailer for labor and expenses over the period of a fiscal year); Estill County v. Wallace, 1927, 219 Ky. 174, 292 S.W. 816 (payment of $5,000 to county treasurer for special services). And if the payment is made for services actually performed which the fiscal court had the power to authorize in the first instance it cannot be recovered:

“If the thing done had been illegal, or not warranted by law, however beneficial it might have been, the public ought not to be estopped to deny the validity of the expenditure; or, where the thing is authorized, but it is proposed to do it in an unauthorized manner, upon seasonable complaint [emphasis added] those charged with doing the thing will be compelled to execute it as the law directs, and prohibited from doing it otherwise. But where the thing is authorized to be done, and is done by the body charged with doing it, but done in a manner contrary to that directed by the statute, the court will not compel the official to pay back the money and let the public continue to enjoy the benefits of its expenditure. If it is made to appear that the expenditure was in good faith, and the public has got that which it was entitled to, good conscience forbids the recovery. The law therefore denies it.” O’Rear, J., in Flowers v. Logan County, 1910, 138 Ky. 59, 127 S.W. 512, 514, 137 Am.St.Rep. 347. See also Thomas v. O’Brien, 1910, 138 Ky. 770, 129 S.W. 103, 104 (cited with approval in Trimble County v. Moore, Ky.1958, 312 S.W.2d 623, 626) wherein the court said, “We think that it was not illegal for the court to enter an order after the work was done ordering it to be paid for. What the court could have done before, it had the power to do later.”

KRS 64.255 provides statutory authority under which these salaries could have been paid to those of the magistrates who actually performed the duties incident to the exercise of their criminal jurisdiction. The answer pleads that each of them did so, maintaining suitable offices for that purpose and carrying out the various requirements of law with respect to hearings and trials, collections, reports and account-ings. It pleads also that the salaries were included in the annual budgets, which were approved by the State Local Finance Officer and publicly advertised as required by KRS 68.260. As the case was submitted by agreement for judgment on the pleadings following a motion to strike each and every paragraph of the answer, we understand that these allegations are to be taken as true. The record does not disclose whether the salary disbursements were made pursuant to itemized payroll orders, as would ordinarily be necessary in order to validate them on the theory of ratification. However, the void orders of April 8, 1958, together with the subsequent formal actions of the fiscal court in adopting its annual budgets, provide a sufficient record that the payments were made at the direction of the fiscal court in its official capacity as the county’s governing body. There being no question of bad faith, it is therefore our conclusion that the payments cannot be recovered.

The institution of this action, however, was a ‘“seasonable complaint” putting the various appellees on notice that payments were being made in a manner contrary to law. That portion of the judgment of the circuit court which directs the county clerk to issue vouchers to magistrates for salaries claimed after notice of filing of this action and for the county treasurer to honor and pay such vouchers is erroneous and to that extent is reversed.

The judgment is affirmed in part and reversed in part, with directions that it be amended in accordance with this opinion.

      . Cheshire v. City of Frankfort, Ky.1954, 272 S.W.2d 37, 39, does not apply because the payroll orders in that case were held not to evince a conscious intent to increase the cumulative maximum compensation of the officer involved. KRS 64.530(1), requiring that any change in the rate of compensation for elected county officers be effected no later than the first Monday in May in the year in which they were elected, does not apply either, because as to the justices incumbent on March 28, 1958, KRS 64.-255(2) expressly provides otherwise, and as to those who took office thereafter the principle is that where the law authorizes a special allowance to an officer for duties he is performing, and the legislative body has not so provided before he takes office, it may do so at any time thereafter. Robinson v. Elliott County Fiscal Court, 1930, 236 Ky. 63, 32 S.W.2d 554, 555.

      . The cases of Trimble County v. Moore, Ky.1958, 312 S.W.2d 623, Breathitt County v. Hagins, 1925, 211 Ky. 391, 277 S.W. 469, and Logan County v. Head, 1924, 206 Ky. 97, 266 S.W. 883, in which the principle of Flowers v. Logan County, supra, was held inapplicable to payments made to officers of the fiscal court, are distinguishable by the significant circumstance that in each of them the transactions were in violation of law and could not have been validly authorized in the first instance.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. James AUSTIN, Appellant.
    No. 49640.
    Supreme Court of Missouri, Division No. 2.
    May 13, 1963.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Ike Skelton, Jr., Sp. Asst. Atty. Gen., Lexington, for respondent.
   STOCKARD, Commissioner.

Appellant, charged with second degree murder by grand jury indictment, was found guilty by a jury and sentenced to imprisonment for sixteen years. He has appealed from the judgment entered pursuant to the verdict. No brief has been filed in this court on his behalf so we review the assignments of error in the motion for new trial.

Appellant contends that the trial court erred in failing and refusing to give an instruction on self-defense. The state’s evidence was to the effect that about 1:15 o’clock in the morning of September 13, 1959, appellant emerged from the Square Deal tavern where he was a bartender and said to “Uncle LeRoy” Hodges, who was standing nearby, “You don’t believe I will shoot, do you?” Then with no further comment or act by either party appellant shot Hodges with a .25 calibre pistol. Hodges later died from the injuries thus received.

In his opening statement to the jury counsel for defendant related certain facts he intended to prove, which if true, unquestionably would constitute self-defense. Appellant testified; and the following summation of his testimony is substantially the same as that in the statement of facts in the state’s brief. On the night of September 12 appellant had warned Hodges more than once not to reach behind the bar to get glasses but to ask for them. Later that evening appellant quit his job as bartender after an argument with the barmaid over “putting beer in the box,” and when he left the tavern he placed in his pocket a pistol which he had kept behind the bar. After getting out of the tavern he started back to give the barmaid a key. He then saw Hodges near the tavern door with a person known as “Fats” South-erland. As appellant started away from the door Hodges started walking toward him, and appellant saw that he had a knife in his hand. Appellant walked a few steps and Hodges kept coming toward him with the knife. Appellant then stopped and asked Hodges what he was going to do with the knife but he did not answer. Appellant then told Hodges to stop and ag-ain asked him what he was going to do with the knife. Hodges did not answer. Appellant started backing up and shoved Gladys Austin, his “common-law wife” behind him, and as Hodges raised the knife, appellant “seeing he was going to lunge after me” pulled the gun out of his pocket and fired. Hodges then took a couple of more steps and stopped, and appellant turned and walked away.

The trial court did not give an instruction on self-defense, but the state correctly admits in its brief with commendable candor that “the facts create an issue of self-defense.” This court has repeatedly held over a period of many years that if there is any competent substantial evidence of self-defense it is the court’s duty to instruct on that issue as a part of the law of the case. Supreme Court Rule 26.02, V.A. M.R.; State v. Laspy, Mo., 298 S.W.2d 357; State v. Bounds, Mo., 305 S.W.2d 487; State v. Stone, 354 Mo. 41, 188 S.W.2d 20; State v. Ferguson, 353 Mo. 46, 182 S.W.2d 38; State v. Havens, Mo., 177 S.W.2d 625. Appellant admits that he shot Hodges, and he does not contend the shooting was accidental or urge any other defense inconsistent with that of self-defense. In view of appellant’s testimony that Hodges was advancing on him with a knife without provocation from appellant, that he urged Hodges to stop, and that he shot only when Hodges raised the knife and appellant saw that he was “going to lunge” after him, the issue of self-defense was a question for the jury. See State v. Turner, 246 Mo. 598, 152 S.W. 313; State v. Laspy, supra, 298 S.W.2d at p. 360; State v. Perno, Mo., 23 S.W.2d 87, 91.

The state urges that the rule announced in the above cases be re-examined in view of the language used in State v. Winn, Mo., 324 S.W.2d 637, and State v. Wicker, Mo., 222 S.W. 1014. In each of these cases an instruction on self-defense was given. The question was whether the state’s verdict directing instruction ignored or was inconsistent with the defense of self-defense. In the Winn case it was held that when self-defense is an issue in the case an instruction on assault with intent to kill which purports to cover the whole case, but excludes the idea of self-defense, constitutes prejudicial error. One instruction in that case was held erroneous, but another was held not erroneous because it required the jury to find the assault was made on “purpose and of malice aforethought” which negatived the self-defense submitted. In so ruling the court relied primarily on State v. Wicker, supra. The state argues in this case that since its verdict directing instruction on second degree murder required the jury to find that appellant acted “with malice aforethought” the jury was required to find facts which would definitely negative self-defense. In one respect this possibly is true, but there is no question that the evidence previously set out resulted in the issue of self-defense being part of the law of this case, and pursuant to Supreme Court Rule 26.02, V.A.M.R., the trial court was required to “instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict” whether or not requested by either party. See State v. Spencer, Mo., 307 S.W.2d 440. The question here is not whether certain instructions are in conflict as in the Winn and Wicker cases, but whether the trial court gave such instructions as are necessary to meet the minimum requirements of the above Supreme Court Rule, and it is obvious that it did not.

The judgment is reversed and the cause remanded.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Commissioner.

text:
    Agnes PELSUE, Plaintiff-Appellant, v. Wesley E. PELSUE, Jr., Executor of the Estate of Wesley E. Pelsue, Sr., Deceased, and Wesley E. Pelsue, Jr. and Patty Pelsue Lahmann, Defendants-Respondents.
    No. 49367.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      Almon H. Maus, Edward V. Sweeney, Monett, for plaintiff-appellant.
    Henry Warten, Joplin, for defendants-respondents.
   HOLMAN, Commissioner.

In this equitable action plaintiff sought a decree to the effect that upon the death of her husband she became the owner of substantially all of the personal property thereafter inventoried as assets of his estate. The defendants are the executor of the estate of plaintiff’s deceased husband and his two children by a former marriage. The trial resulted in a judgment in favor of defendants. Plaintiff has duly appealed.

Agnes Sweeney and W. E. Pelsue, Sr. were married on February 14,19S0. At that time Mr. Pelsue owned a mercantile business in the small town of Wentworth, Missouri, and Agnes Sweeney owned and operated a grocery business in the same town. Shortly after the marriage the Sweeney Grocery Store was closed and the assets of that business were moved to the building occupied by the Pelsue Mercantile Company. The merchandise and fixtures were combined, and all of the assets of the Sweeney. Grocery, including accounts receivable, were merged into and became a part of the business operated as Pelsue Mercantile Company. Thereafter, plaintiff worked continuously in the operation of the business of the Pelsue store.

Mi. Pelsue died on April 27, 1959. Plaintiff continued to operate the store after her husband’s death under some arrangement with the executor of his estate, W. E. Pelsue, Jr. Decedent’s will was dated November 6, 1950, and was obviously prepared without the assistance of an attorney. Its terms were evidently unsatisfactory to plaintiff and she filed a timely renunciation of the will and elected, under the law, to take an undivided one-third interest in his estate.

The evidence indicated that both plaintiff and deceased bore good reputations for honesty and integrity. Their marriage was evidently a success as, throughout the years thereof, they appeared to be very close and amiable. They worked together, and consulted with each other a great deal in the operation of the business, in making decisions concerning the purchase of stocks, and in making loans to residents of that community. An employee of the store, Blanche Erwin, testified that when plaintiff moved her stock to the Pelsue store it was a large stock of groceries, although not quite as large as Pelsue’s. She identified a letterhead used by the store which had the name “Pelsue Mercantile Company” in the center, and the name “W. E. Pelsue” in one corner and “Agnes Pelsue” in the other.

Hudson V. Binnington, an employee in the office of International Shoe Company, identified two financial statements signed by Mr. Pelsue, one dated January 20, 1956, and the other April 12, 1959, in which it was indicated that the Pelsue Mercantile Company was a partnership composed of W. E. Pelsue and Agnes Pelsue. Upon cross-examination this witness identified a financial statement dated January 21, 1955, also signed by decedent,, in which it was indicated that W. E. Pelsue was the owner of Pelsue Mercantile Company.

At the time of their marriage Mr. Pelsue had two accounts in the First National Bank of Pierce City. These were entitled “Pelsue Mercantile Company” and “Pel-sue’s.” These accounts continued until the time of decedent’s death, upon which date the balance in the Mercantile account was $5,959.90, and the other account, $994.30. Both of those accounts were used in connection with the business and were subject to check by plaintiff, without restrictions. Blanche Erwin was also permitted to-'sign checks drawn on those accounts. At the time of the marriage plaintiff also had an, account in the First National Bank at Pierce City. On April 1, 1950, she deposited $109.18 in her account which brought the balance to $6,000. That sum was then withdrawn from the bank and invested in U. S. Government bonds registered in the name of “Agnes E. or W. E. Pelsue, Sr.” and the account was closed. Thereafter, on January 22, 1951, another account was opened in the First National Bank entitled “Ed or Agnes Pelsue.” A few months later, the government bonds heretofore mentioned were cashed and the proceeds thereof deposited in the joint account and subsequently invested in certain corporate stocks.

Mr. Pelsue owned stock in a number of corporations at the time of the marriage. He continued thereafter to buy and sell stocks with considerable regularity until the time of his death. A number of the stocks owned at that time were paid for by checks drawn upon the joint account, and likewise, the proceeds from the sale of various issues of stocks were deposited in said account. Some of the' stocks purchased,, however,, were paid for, in whole or in part, by checks drawn on one or the other of the two accounts used in connection with the operation of the mercantile business. After decedent’s death it was discovered by plaintiff that substantially all of the stocks which her husband had purchased were registered in his individual name.

Mr. Pelsue had two adult children by a previous marriage. A few days after his death, his son was appointed executor of the estate and he and his attorney called for plaintiff and took her to the bank in Pierce City. At that time the joint safety deposit box was opened and the contents thereof inventoried. The executor took possession of the stocks registered in the name of Mr. Pelsue and also had the two commercial bank accounts transferred to his name. He testified that at that time plaintiff made no claim of ownership to the stocks. Harlin Moore, cashier of the bank, testified that he heard no claim or objection on the part of plaintiff.

Plaintiff was offered as a witness, but the defendants invoked the “Dead Man's Statute” and the court sustained their objection to testimony concerning anything that occurred before the probate of the will and appointment of the executor. She was permitted to testify, however, concerning the visit to the bank, and she stated that she •did protest “loudly” concerning the way the stocks were registered, although “at first I was so grieved and overcome that I hardly knew what to say.” She also testified that she said to Mr. Forsythe, president of the bank, “Who is the Pelsue Mercantile ?” and that he replied, “I presumed all the time it was you and Edward.”

There were also a number of witnesses who testified that Mr. Pelsue used the word “we” in referring to the mercantile business, and sometimes “Agnes and I” in referring to stocks that were bought and sold. A sales tax return of Pelsue Mercantile Company for the first quarter of 1958 was admitted in evidence. It was signed by Agnes Pelsue .as individual owner and notarized by W. E. Pelsue, Sr., and a similar return for the first quarter of 1959 was also admitted. However, a number of other sales tax returns were offered by defendants and admitted by the court which showed that W. E. Pelsue signed as individual owner of the business during the years plaintiff was married to him. Also, the federal income tax returns for the years following the marriage were all signed by W. E. Pelsue individually and showed that he was the owner of the business, with the exception of the year 1958, when a joint return was filed by plaintiff and Mr. Pelsue. However, it was stated on the business schedule on that return that Mr. Pelsue was the owner of the business.

Rolla C. Hill was offered as a witness by defendants. He testified that he was a credit investigator for Dun & Bradstreet and on January 4, 1960, talked with plaintiff in regard to the annual report concerning Pelsue Mercantile Company; that she told him the business was in an estate and that she intended to purchase it from the heirs.

Plaintiff, in her second amended petition, sought to establish title to the assets in question upon allegations involving three theories: (1) That she and decedent, prior to or at the time of their marriage, entered into a parol agreement to commingle and combine their separately owned country stores and jointly operate the same, and to combine their investments and to hold the same and the proceeds thereof as tenants by the entirety, or in survivorship estate, and that such agreement was performed by plaintiff; (2) that the property in question was acquired by Agnes Pelsue and W. E. Pelsue, Sr. while husband and wife and under such circumstances that title thereto vested in them as tenants by the entirety, or in a survivorship estate; and (3) that plaintiff is the owner of all of the corporate stocks that were purchased with funds that had been deposited in the joint bank account of decedent and plaintiff. The properties which plaintiff claims in thi.s action are corporate stocks inventoried at a value of $34,629.50, bank accounts in which were deposited the total sum of $6,904.20, and the merchandise and fixtures of the store which were inventoried at a value of $16,250.

We have jurisdiction of this appeal by reason of the amount in dispute, which is the difference between the total value of the assets herein mentioned and one third of said assets. The value of a two-thirds’ interest in said assets is clearly in excess of $15,000.

This suit is in the nature of specific performance. Among other defenses defendants pleaded the statute of frauds, and certain statutes relating to marriage contracts. Sections 432.010, 451.220, and 451.230, RSMo 1959, V.A.M.S. Plaintiff sought to avoid the force of those statutes by pleading full performance on her part. Plaintiff is required to prove her case by convincing evidence, and, it has been said that “(1) the alleged oral contract must be clear, explicit, and definite; (2) it must be proven as pleaded; * * Walker v. Bohannan, 243 Mo. 119, 147 S.W. 1024, 1028.

Plaintiff’s first point is that the court erred in failing to find for her because the evidence established that she and decedent agreed to combine their assets and to jointly operate their business and hold their investments “as tenants by the entirety or in a survivorship estate.” We have concluded that the evidence is not sufficient to warrant a finding of any such agreement. Plaintiff frankly concedes that, by necessity, she has been required to present her case in “bits and pieces.” These “bits and pieces” may have tended to indicate some sort of agreement but are not sufficient to measure up to the “convincing evidence” required to establish the agreement pleaded.

It is true that plaintiff transferred her grocery business to Pelsue Mercantile Company and apparently was never compensated for it. In his will decedent stated that she had put $2,500 into the business. The evidence of Blanche Erwin would appear to indicate that the amount may have been more. Also, during the month of his death decedent signed a credit statement indicating that the business was held as a partnership. We do not regard the fact that decedent used the pronoun “we” in referring to the business activities of himself and plaintiff as of much significance. The fact that plaintiff worked regularly in the operation of the business is not convincing proof of the agreement pleaded, as that fact may just as reasonably be attributed to the marriage relationship.

As we view the testimony herein and the many exhibits admitted in evidence, we find no evidence, either direct or circumstantial, to indicate an agreement to the effect that the assets were to be held as tenants by the entirety or other survivorship estate. As stated, there was evidence which would tend to support a finding of some type of partnership. Plaintiff has also cited cases (Brooks v. Brooks, 357 Mo. 343, 208 S.W.2d 279, 4 A.L.R.2d 826; Fish v. Fish, Mo.App., 307 S.W.2d 46) relating to the establishment of a joint adventure in business enterprises operated by a husband and wife. However, we must bear in mind that plaintiff did not allege a partnership or joint adventure but sought to recover solely upon an agreement that the assets would be held as tenants by the entirety or other surviv-orship estate. It should also be noted that she does not seek to recover the value of the assets she contributed to the business upon any theory relating to trusts. Since the evidence does not support the agreement pleaded, we must rule, as indicated, that plaintiff was not entitled to recover upon the basis of such an agreement.

Plaintiff’s next contention is that even in the absence of proof of an agreement, the facts and circumstances surrounding the merger of the businesses, and the operation of Pelsue Mercantile, were such that the trial court should have held that such assets were held by plaintiff and decedent as tenants by the entirety—that their ownership thereof was presumed to be such a tenancy. We do not agree. Plaintiff has cited the cases of Lomax v. Cramer, 202 Mo.App. 365, 216 S.W. 575, and Glynn v. Glynn, Mo.App., 291 S.W.2d 190, but they are distinguishable on the facts. Lomax involved a determination of testator’s intent in making a devise to a husband and wife. Glynn involved a written assignment on a note to a husband and wife. It may well be that if some third party had owned the mercantile business and had conveyed it to plaintiff and decedent by a bill of sale, such would have been presumed to have created a tenancy by the entirety. However, the facts and circumstances shown in this record are not sufficient to raise any presumption that the business was owned by plaintiff and her husband as tenants by the entirety. We accordingly rule this point adversely to plaintiff.

The final point briefed by plaintiff is that the court erred in failing to find that she was the owner of the corporate stocks purchased with funds drawn from the three bank accounts allegedly owned by plaintiff and decedent as tenants by the entirety. At the outset of our consideration of this contention, we rule, for reasons heretofore stated, that the bank accounts in the name of “Pelsue Mercantile Company” and “Pel-sue’s” were not accounts owned by plaintiff and decedent as tenants by the entirety. However, the "Ed or Agnes Pelsue” account was clearly a joint account and we rule that the funds deposited therein were held by said parties as tenants by the entirety.

Many difficult questions have arisen concerning the right of a depositor to withdraw and appropriate funds held in a joint account. A discussion of the nature of the relationship created where a husband and wife hold funds in a bank account as tenants by the entirety appears in Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28, 37, 77 A.L.R. 782, as follows:

“Taking a common sense view of the matter, if a husband and wife have a joint bank account, either or the survivor to draw, and therefrom he buys a suit of clothes or-an automobile, or she a dress or some jewelry, it would seem forced and unnatural to say the purchaser becomes a trustee for the other spouse as to a joint interest in the property. An accounting of the multitude of transactions that would arise in the family relation would be complicated indeed. The very fact that each is given the separate right to draw on the account -would seem equivalent to a sort of standing permission to appropriate parts of the fund from time to time, especially considering the provision in the statute giving either party the right to terminate the drawing -privilege by giving notice to the bank.

“On the other hand, the arrangement is loose and affords opportunity for injustice and overreaching. And logically, if the parties have a joint interest in the bank account, they ought to have a like interest in property in which the joint funds are invested — nothing further appearing. In our opinion the rule announced in the New York case, Moskowitz v. Marrow, supra, 251 N.Y. 380, 167 N.E. 506, [66 A.L.R. 870] is correct and best fits the peculiar relation created by a banking arrangement of this character. That rule is, as we have stated, that the joint form of the account, either or the survivor to draw, of itself alone raises a presumption of fact, or inference, that the joint interest of the depositors follows funds withdrawn by either and negatives the idea that such withdrawals were severed from the joint estate and appropriated by the drawer to his own use. But the presumption is a weak one and readily yields to parol proof of the real intention of the parties. And while it makes a prima facie case for the party asserting the joint interest, the burden of proof is on him to establish his title by a preponderance of all the evidence.”

A rule which would solve many of the questions arising in regard to withdrawals is stated in Harrellson v. Barks, Mo.App., 326 S.W.2d 351, 361, as follows: “It would seem that the practical, and therefore better, rule to follow in regard to withdrawals from entirety accounts would be this: Where the withdrawals are partial and not obviously to obtain unfair ownership or advantage, and where the purpose of the withdrawal can reasonably be considered as one which could suit the wishes, purposes, and intention or consent of both the owners of the entirety account, and there is no apparent objection after the withdrawal is known, then the presumption should be that the withdrawal was by consent and agreement of the joint owners.”

We have concluded that -under the facts and circumstances here presented, the entirety interests of plaintiff and decedent followed the funds withdrawn from the “Ed or Agnes” account that were used to pay for corporate stocks purchased, and that all such stocks inventoried in Mr. Pelsue’s estate which were paid for with funds withdrawn from said account, were, in equity, owned by plaintiff and decedent as tenants by the entirety. The entirety interest of any stocks paid for in part by funds withdrawn from said account would be a pro-rata interest, i. e., the proportion that the amount paid from the account in question would bear to the total purchase price of the particular stock. Upon the death of Mr. Pelsue the sole ownership of said stocks vested in plaintiff.

In arriving at the foregoing conclusion we find as a fact that plaintiff did not know that her husband had caused said stocks to be registered in his individual name until the safety deposit box was opened after his death, and that she immediately protested in regard thereto. We think the action of decedent in withdrawing said funds to purchase stocks to be registered in his sole name was the taking of an unfair advantage of plaintiff and was a means of obtaining an ownership in the stocks to which he was not entitled. Under the facts before us, there would certainly be no presumption that the withdrawals (for the purchase of stocks to be registered in the individual name of decedent) were made by the consent and agreement of both plaintiff and her husband.

The parties have stipulated as to most of the facts concerning the various transactions in which decedent purchased stocks and the source of the funds from which payments were made. Inventoried as an asset of the estate are 277 shares of stock of Warren Brothers Company. Two hun-dre4 fifty shares of that stock were purchased on July 21, 1954, at a cost of $7,500, all of which was paid by a check drawn on the “Ed or Agnes” account. The other 27 shares represent stock dividends. We rule that plaintiff is the equitable owner of said 277 shares of stock.

On June 14, 1955, Mr. Pelsue purchased 50 shares of Oregon Portland Cement Company at a cost of $2,512.50. Stock splits and dividends had caused the number of these shares to increase to 228 at the time of decedent’s death. Plaintiff claims a proportionate interest in that stock. The payment therefor was combined with the payment for 400 shares of Holland Furnace which Mr. Pelsue purchased on June 13, 1955, for $6,333.17. These two purchases were paid for by the sale of certain other stock and by various checks, including one for $4,500 on the “Ed or Agnes” account. Since $4,500 of the total payment of $8,-845.67 came from the amount in question, it would follow that plaintiff has a 50.87% interest in the 228 shares of the Oregon Portland stock.

Plaintiff also claims an interest in 300 shares of River Brand Rice Mills, Inc. which were purchased on January 22, 1957, for $5,962.50. On the same day there was a purchase of 300 shares of Frisco Railroad stock (which was sold shortly before decedent’s death) for $7,545.47. These purchases totaled $13,507.97. That amount was paid by the sale of 400 shares of Holland Furnace stock for the sum of $4,124.26, 400 shares of Delhi-Taylor stock which sold for $5,549.80, checks on the “Pelsue Mercantile” and “Pelsue’s” accounts totaling $1,833.91, and a check on the “Ed or Agnes” account for $2,000. The Holland stock had been paid for out of the entirety account to the extent of 50.87%. Therefore, plaintiff should be credited with that percentage of the proceeds of the sale of that stock, i. e., $2,098.01. Eight hundred dollars from the entirety account went into the $5,850 purchase price of the Delhi-Taylor stock. Plaintiff should therefore be credited with 13.67% of the sale price of that stock, i. e., $758.66. Plaintiff’s credits for the Delhi and Holland stock sales, tq^ gether with the $2,000 check, makes a total of $4,856.67 which the entirety account contributed to the Frisco and River Brand purchases. Plaintiff is therefore the equitable owner of 35.95% of the 300 shares of River Brand Rice stock.

As we have indicated, plaintiff is entitled, prorata, to that portion of the three issues of stock heretofore discussed which were paid for, directly or indirectly, from the entirety account,, and the executor should be required to transfer the same to her. Plaintiff is also entitled to all cash or stock dividends (or so-called “splits”) paid or issued, since the date of decedent’s death, on the stock to which she is entitled.

The judgment is reversed and the cause remanded with directions to the trial court to enter a judgment in accordance with the views herein expressed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    Daniel E. DRURY, (Plaintiff) Appellant, v. The CITY OF ST. LOUIS, a Municipal Corporation (Defendant) Respondent.
    No. 49419.
    Supreme Court of Missouri, Division No. 2.
    May 13, 1963.

      James C. Jennings and Milton R. Fox, St. Louis, for appellant.
    Thomas J. Neenan, City Counselor, James J. Gallagher, Assoc. City Counselor, St. Louis, for respondent, City of St. Louis.
   BARRETT, Commissioner.

While traveling along Wyoming Avenue, about 40 feet west of Jefferson Street, at 12:15 A.M., on September 25, 1960, Daniel E. Drury, now 21, attempted to jump over the parkway area and fell into the street. To recover $20,000 damages for his resulting personal injuries Dan instituted this action against the adjoining property owners and the City of St. Louis claiming negligence on their part in the maintenance of an iron railing in the edge of the parkway alongside the sidewalk. Upon the trial of the cause a jury exonerated the property owners but returned a verdict against the city for $2,000. Both the city and the plaintiff have appealed. The plaintiff claims that the court abused its discretion in not setting aside the verdict and granting him a new trial upon the issue of damages only. The city claims, as a matter of law, that Dan was guilty of contributory negligence and that therefore the court erred in not sustaining its motions for a directed verdict. • ■ ;

The fence or railing along the Wyoming Street sidewalk extends 59 feet from a mailbox at the Jefferson Street sidewalk to a concrete walk and entrance to the adjoining property. The railing consists of iron pipe one foot high, fastened together in five foot lengths. There is also a railing on the opposite side of the sidewalk, extending around the landowners’ yard, also around the parkway and yard on Jefferson Street. There are similar guardrails around 40 or 50 pieces of property in the Chippewa-Arsenal Street area of St. Louis and they have been there for many years. On September 25 Dan and five other young men from their neighborhood attended a wedding reception at Lyons Hall on Jefferson Street. They parked their automobile on the west side of Wyoming about 200 feet north of Jefferson at 9 o’clock and walked to the hall. They remained at the reception about three hours in which time Dan says he had “3 or 4 beers.” When the guests left the reception it was “raining hard,” the young men had no raincoats, and Dan ran down Jefferson to Wyoming. He took a “short cut” because he was in a hurry and wanted to avoid getting wet. Instead of using the sidewalk on Jefferson and crossing the street in the sidewalk area, Dan continued on down Wyoming for a distance of approximately 20 feet to the point where he “wanted to go out into the street, (and) instead of stepping in the mud and that with my good clothes on, I wanted to jump out on the street; when I did my foot caught on the bar” and he landed in the street “flat on my face.” There was a lamppost on the corner directly opposite the mailbox but Dan says that “it didn’t cast enough light” and he did not see the railing until he looked back after the fall. Furthermore, he did not see the iron railing as he walked down Wyoming Street at 9 o’clock. On direct examination he testified that he did not know that the guardrail was there and did not see it before he fell and was injured. At one point in his testimony on redirect examination he was asked “what he looked at,” or “where he was looking,” and his answer was “Well, traffic.”

But this case is not comparable in all respects to the sidewalk cases upon which the plaintiff as well as the city relies, —Seitter v. City of St. Joseph, (Mo.App.) 358 S.W.2d 263; Cline v. City of St. Joseph, (Mo.App.) 245 S.W.2d 695; Butler v. City of University City, (Mo.App.) 167 S.W.2d 442, and 37 A.L.R.2d 1187. These cases are analogous and helpful only in so far as they assert certain general principles applicable to both sidewalks and parkways, for example, as to a pedestrian’s duty to look where he is walking, even though he may assume that the city has performed its duty. Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566, 985. While the parkway area, here the unpaved area between the sidewalk and the curbing, is a part of the public street, it is of course designed for different purposes than either the sidewalk or the street. But a pedestrian may use the parkway and the fact that it is not primarily designed for pedestrian travel does not absolve the municipality of liability in all circumstances. Fockler v. Kansas City, 94 Mo.App. 464, 68 S.W. 363; Bean v. City of Moberly, 350 Mo. 975, 169 S.W.2d 393. Nevertheless, “It should be observed that the different primary functions of the street or sidewalk, as opposed to those of the parking, afford a basis for the difference in degree of care owed by a municipality to pedestrians or drivers of vehicles over such areas. A sidewalk is designed primarily for pedestrian travel. To permit such area to become rough of surface, to place objects of utility or ornamentation in the path of travel would be negligence of itself. Not so with the parking. Here it must be expected that such conditions will exist, and even though pedestrians may be expected to walk across such area they cannot complain of a grassy or uneven surface, or of utility poles or fixtures, or of trees or shrubs in their path.” Annotation, 19 A.L.R.2d, 1053, 1055, (“Liability for injury on parking or strip between sidewalk and curb”); 19 McQuillin, Municipal Corporations, Sec. 54.38, p. 138.

This statement of the general rule with respect to parkways deals with the city’s duty and liability and in this case the city does not contend that there was no evidence of its negligence in the maintenance of the guardrail. And because of the city’s tacit admission it is assumed, solely for the purposes of this opinion, that the inference of negligence was permissible in the circumstances. The question to be determined here is whether under the undisputed facts the plaintiff was guilty of contributory negligence as a matter of law. Sloan v. American Press, 327 Mo. 470, 474, 37 S.W.2d 884.

As Dan ran down the street in the rain, he took a “short cut” to reach the parked automobile. He did not proceed onto and across the sidewalk and the sidewalk area of the street. And he did not proceed in a normal manner, walking across the parkway, in order to avoid what he assumed to be a muddy parkway, he “wanted to jump out on the street.” On cross-examination he described the incident in specific detail:

“Q. * * * As you walked along going back along Wyoming — Jefferson, back to Wyoming that evening, did you look down to see where you were walking along the sidewalk area?
“A. Well, in the rain I was, yes.
«Q. * * * Dy you happen to notice any rail fences along Jefferson?
"A. No. I wasn’t looking straight down, I was just looking up in front of me.
“Q. Oh, as you were looking ahead of you then before you reached the property on the corner, did you happen to notice rail fences on either side of the sidewalk before you reached that property? A. No.
* * * * * *
“Q. You say there was a street light on the corner there and it was lit. * *
“A. Yes, it was lit.
“Q. It was lit at that time, and there was nothing obstructing your view of the sidewalk area or the rail fences at that time, was there? A. No.
******
“Q. * * * Now, did you stop on the edge of the sidewalk before you attempted to cross the parking strip ? A. No.
“Q. * * * You merely walked along in a hurry, then continued to walk right over it, is that right ? A. That’s right.
“Q. Now, you say you wanted to avoid the mud. Did you see the mud there ?
“A. Well, I knew it was dirt there and it was raining, there had to be mud.
“Q. Well, do you know whether that was paved there ? A. No.
* * * * * *
“Q. What had you intended to step on, the street or the curb. A. Jump out into the street.
* * * * * *
“Q. Do you know whether or not there was a curb there, Dan? A. Well, I imagine there is.
“Q. Did you look down to see whether there was a curb? A. Well, no.
“Q. Pardon me? A. No, I didn’t.
“Q. Did you look out into the street to see whether you were jumping into a puddle of water? A. No.
“Q. At any time you were attempting to negotiate the sidewalk, did you look down to see where you were walking? A. No.”

Again on cross-examination:

"q * * * On both sides of the sidewalk, where you walked that night, there was this iron railing was there not ? A. That’s right.
“Q. And is it your testimony before this Court and jury that you never even saw the iron railing at any time that night, is that right?
“A. Well, I don’t remember seeing it at any time.
“Q. You mean you don’t now remember seeing it? A. Well, no, I didn’t see it that I know of.
* * * * * *
“Q. * * * When you were walking down this sidewalk right here, that I am pointing to (indicating) right under this automobile, white automobile, this lamp post illuminated or shed light down so you could see, isn’t that correct? A. Well, it did.
“Q. * * * Had you looked, you would have had no difficulty seeing this railing, would you, Dan? A. No, I probably wouldn’t have.
* * * * * *
"Q. * * * But you didn’t look, is that correct?
“A. I guess not, for I didn’t see it.
* * * * * *
“Q. Was there any physical obstacle or obstruction, Dan, to have prevented you from having stayed within the confines of the sidewalk, that is provided by the city, and walk straight across the street like this lady shown in the photograph is attempting to do ?
“A. No, nothing in the way.
“Q. You just chose to take a shortcut and cut across this parkway, is that right?
“A. That’s right.
“Q. And at no time noticed these rails, although you had been walking directly between them as you approached the comer, is that correct? A. That’s right.”

While Dan once said that he looked for traffic, this is not a case of momentary forgetfulness (74 A.L.R.2d 950, annotating Harbourn v. Katz Drug Co., (Mo.) 318 S.W.2d 226) because he did not look where he was walking or jumping, was never aware of the guardrail and there was in fact no distraction. He was hot required to keep his eyes fixed on either the sidewalk or the parkway, but he was not using the parkway as a place to walk and, even though he did not know of the railing, it must not be overlooked that he was not walking “in the manner that persons ordinarily do.” Seitter v. City of St. Joseph, (Mo.) 358 S.W.2d l. c. 269. Instead of walking in the normal manner he attempted to “short cut” not only the sidewalk area but by jumping over it the parkway itself. It was dark and raining but Dan does not rely on the fact of darkness and insufficient street lighting, candidly and frankly he said that he did not look at the sidewalk where' he was walking or at the street or parkway or the place he intended to jump, and, admittedly, the light was such that had he looked he would have seen the railing. In these particularly detailed circumstances reasonable minds could not differ and it may only be said as a matter of law that Dan was guilty of contributory negligence. As the court once said in even a sidewalk case: “Without going further, it is evident that all the cases, even the dissenting opinion in the Ryan Case, require a pedestrian to have some concern for his own safety in walking on a public sidewalk though he may be innocent of knowledge that there are defects or obstructions along the way. He does not have to be constantly on the alert for defects not plainly observable, but neither may he go along paying no attention to where he is walking so that he would fail to see and avoid obvious obstructions. He must proceed as a reasonably prudent footman would do, with his eyes open and having regard for his general course. * We are unable to see anything in any of these decisions which will exculpate the appellant here from the charge of contributory negligence under his own testimony.” Sloan v. American Press, 327 Mo. l. c. 484, 486, 37 S.W.2d l. c. 890, 891.

In these detailed circumstances and for these indicated reasons the judgment in favor of the plaintiff is reversed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.