author: CLEMENS, Commissioner.

text:
    CITY OF CREVE COEUR, a Municipal Corporation, Plaintiff-Respondent, v. Jack K. HUDDLESTON et al., Defendants, Edmund T. Allen et al., Intervenors-Defendants-Appellants, County of St. Louis, Missouri, et al., Intervenors-Defendants-Respondents.
    No. 32438.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied June 14, 1966.
    Application to Transfer Denied Sept. 12, 1966.

      William J. Becker, Clayton, Richard O. Funsch, St. Louis, for appellants.
    William H. Wyne, Jr., Wyne & Del-worth, Clayton, for plaintiff-respondent.
    Donald J-. Stohr, County Counselor, Thomas W. Wehrle, Lawrence Bannes, Associate .County Counselors, for inter-venors-defendants-respondents.
   CLEMENS, Commissioner.

The plaintiff City of Creve Coeur, a city of the fourth class in St. Louis County, sought a declaratory judgment under the so-called Sawyers Act (§ 71.015, V.A.M.S.), authorizing it to annex an adjoining 700-acre tract. Approximately a hundred representative residents of the area to be annexed were named as defendants. By leave, St. Louis County intervened as an additional defendant. Appellants Edmund T. Allen and Millstone Construction Company, Inc., hereafter called defendants, also intervened, and they alone appeal from the declaratory judgment authorizing the annexation.

The principal issue raised here is the reasonable necessity of the annexation. A secondary issue is whether the voters of the area to be annexed approved the annexation at a “separate election” by voting at one of the regular polling places within the City. Still another point is whether the annexation proceedings are nullified by an agreement between the City and St. Louis County whereby the County withdrew its opposition to the annexation upon the City’s promise to retain the County’s zoning regulations then in effect in the area to be annexed.

This annexation project got under way late in 1962, when fifty residents of the area to be annexed petitioned the City’s Board of Aldermen for annexation to the City. Thereafter, in February, 1963, the City’s Board of Aldermen passed a resolution declaring that the area to be annexed would be a reasonable extension of its boundaries, asserting that the City could furnish municipal services therein, and authorizing this action for a declaratory judgment. On October 28, 1963, the Board of Aldermen enacted an ordinance calling an election as required by §§ 71.860 through 71.920, V.A.M.S., which had become effective October 13, 1963. The St. Louis County Board of Election Commissioners conducted an election on December 3, 1963, and later certified these results:

“Voters of the City of Creve Coeur:
For annexation .... 163
Against annexation ... 27
“Voters of the Unincorporated Areas:
For annexation .... 55
Against annexation . . . 34”

Thereafter, on April 27, 1964, the case went to trial in the Circuit Court of St. Louis County, Division 9, Honorable George W. Cloyd presiding. The case was taken under advisement and on October 19, 1964, the trial court filed its findings of fact and conclusions of law, and entered judgment authorizing the proposed annexation. Upon denial of defendants’ after-trial motion, they appealed to the Supreme Court. It found that it was without jurisdiction and transferred the case to this court.

We first note the scope of our appellate review. We must view the case upon both the law and the evidence, weigh the evidence, and render such judgment as the trial court ought to have given. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Civil Rule 73.01(d), V.A.M.R.; City of Creve Coeur v. Patterson, Mo.App., 313 S.W.2d 739.

On the primary issue of reasonableness we will state the evidence that credibly supports the trial court’s findings, and the defendants’ evidence in opposition thereto. Plaintiff’s evidence came from its officials and from residents of the area to be annexed. Defendants’ evidence came from a consulting engineer and from residents of the area to be annexed. Parenthetically, we note that the witnesses were sharply divided on one proposition. Plaintiff’s witnesses wanted to keep the existing zoning regulations that were in effect by the ordinances of St. Louis County, which regulations substantially limit future development of the area to be annexed to single-family residences. These witnesses believed that annexation by the City would maintain the status quo.- On the other hand, the defendants’ witnesses were opposed to the existing zoning limitations and favored a change that would permit the use of their properties for high-rise apartment construction. They believed that annexation by the City would stifle their plans to induce the County to rezone their properties from single- to multiple-family residences.

The City of Creve Coeur is straining at the seams of its six-square-mile area. Therein are numerous public buildings, an 8-acre municipal park, a golf course, a college, and the spacious grounds of the Monsanto Chemical Company. The City’s commercial area lies astride Olive Street Road at its northern boundary. Creve Coeur is bounded by other municipalities to the north, east, and south, so it may expand only to the west and southwest, where the 700-acre area to be annexed is located. In the past decade the City’s population has grown from 2,000 to 7,000. Its area is used principally for 1,750 single-family residences on lots averaging half an acre in size. In 1962 there were 129 new homes built in the City, and 135 were added in 1963. Although there were still some vacant lots in the City, it could be reasonably anticipated that more than a hundred new homes would be built in the next two years, leaving few homesites and no tracts large enough to be subdivided. From all this we find that the City has shown a reasonably immediate need for extension of its boundaries.

The city government is broadly organized. It functions under a mayor and four aider-men, and also has a municipal judge, a marshall, a collector and a clerk. The City employs an attorney and an engineer. The Board of Aldermen is aided further by a five-member planning and zoning board, a three-member board of architectural conformity, a board of adjustment, a board of police commissioners, and numerous committees. There is a building code, enforced by a committee that supervises the issuance of building permits and the inspection of all construction.

The City is financially affluent. Since 1950 its assessed valuation has risen from two and a half million to twenty-five million dollars, yet its tax rate has remained constant, at 30⅜1 per $100 assessed valuation. In 1963 its expenditures, in round numbers, were $46,000 for streets, $52,000 for police, $43,000 for health and welfare, $16,000 for the city park, $86,000 for building its city hall, and $41,000 for administration. At the end of that year there was a cash balance of $114,000, and no bonded indebtedness.

The City’s services are performed by sixteen full-time employees. There are eight police officers, most with professional training, and all are deputy sheriffs of St. Louis County. At least two of them are on duty around the clock. Four employees are engaged in the maintenance of .public and private streets and the tri-weekly disposal of trash and garbage. Four clerical employees staff the City’s offices.

Municipal facilities of the City include a new city hall housing the police head-' quarters, the jail,- and administrative offices. There are four fully equipped police cars, three trucks, two tractors, and miscellaneous equipment for street and park maintenance. Additionally, the City furnishes street lighting, snow clearing and cindering services, and dog and mosquito control. School, library, fire protection, water and sewer facilities are furnished by other municipal units, which also serve the area to be annexed. All services now afforded by the City in. its own area can be. extended without delay to the area to be annexed.

The area to be annexed is a partially developed 700-acre tract at the City’s southern and western boundaries. It is bounded by the City and the municipalities of Westwood and Town and Country along its northern, eastern and southern sides. All of the western and a part of the northern sides are bounded by the unincorporated, lightly developed areas of St. Louis County. The eastern part of the area to be annexed, adjoining the City, has been developed. In its southeast corner is a four-acre tract owned by the defendants. (They also own an adjacent four-acre tract to the south, lying in the City of Town and Country.) The defendants have been trying to get their eight-acre tract rezoned from one-family residential use to high-rise apartment use. Adjacent to defendants’ tract in this southeast corner of the area to be annexed are four one-acre-plus homesites. In this eastern part of the area to be annexed, nearest to the City, are also located the 123-acre tract of St. John’s Mercy Hospital, the 25-acre tract of Covenant College, the 9-acre tract of Temple Emanuel, the campuses of two private schools, and a 70-acre tract taken for the right-of-way of a proposed highway. Just to the west of this built up area there are two subdivisions, of seventeen and twenty-five acres, which are substantially developed with one- and two-acre homesites. The western part of the area to be annexed is generally undeveloped. It does have a few small acreage homesites along its principal east-west thoroughfare, Conway Road, but the remaining 200 plus acres are in agricultural use, suitable for residential development.

St. Louis County municipal units afford some services to both areas. Both the City and the area to be annexed have water supply and fire protection from other municipal corporations. The Metropolitan St. Louis Sewer District serves the City and the eastern one-third of the area to be annexed. Zoning and building requirements are set by St. Louis County ordinances. The County Police Department patrols Conway Road in the area to be annexed, but coverage is light since there is only one on-duty police officer for every hundred square miles of St. Louis County. Public roads in the area to be annexed are reasonably maintained by the County Highway Department, but snow removal lags. There is no public garbage or trash removal service in the area to be annexed. Comparing the municipal services, we find that annexation to the City can give the area to be annexed the benefit of municipal government and improved services in police protection, street maintenance, sanitation, health and welfare.

We look now to the judicial role in the municipal-legislative process of annexation. Neither the trial court nor this court has a primary responsibility to determine the advisability or propriety of a proposed annexation. That is a political decision resting within the legislative discretion of a municipality. Judicial review of this discretion is limited to a determination of the reasonableness of the legislative action ; and if there is a sufficient showing of reasonableness to make that question fairly debatable, then the legislative decision is conclusive. City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4 [7]; Julian v. Mayor, Councilmen and Citizens of the City of Liberty—Mo., 391 S.W.2d 864 [3]. In reaching our decision we may not overlook —and we have not—the principle that in judicially determining the issue of reasonableness we must consider the comparative benefits and detriments to both the City and the area to be annexed. City of Olivette v. Graeler, Mo., 338 S.W.2d 827 [16]; City of Aurora v. Empire Dist. Elec. Co., Mo.App., 354 S.W.2d 45 [4].

Defendants contest the reasonableness of this annexation by citing the 1958 case of City of Creve Coeur v. Patterson, Mo.App., 313 S.W.2d 739, wherein this court denied a proposed annexation of an industrial area to the north side of Creve Coeur. Neither the City’s present area nor this area to be annexed is similar to those in the 1958 case. In the ensuing eight years there has been an expansion of the City’s area, population, financial resources and municipal services. In the earlier case there was no showing of ability to furnish municipal service to the area then proposed to be annexed, and at 313 S.W.2d 1. c. 744 we said that “[t]he only reason advanced for taking in the industrial area was a frank admission that they wanted it for the taxes that it would yield.” The Patterson case is inapplicable here.

We have considered the City’s past' and probable future growth, its restrictive boundaries, its ability to furnish normal municipal services to its own citizens and to those of the area to be annexed, and the quasi-municipal nature of the area to be annexed. The City’s legislative decision to annex raises—at the very least—a fairly debatable question as to its reasonableness and necessity. There being no showing that the City acted arbitrarily or oppressively in its legislative capacity, we may not interfere judicially. We find the issue of reasonableness in favor of the City, and we move on to consider the other two points raised by the defendants.

Their brief attacks the judgment on the ground that it was not preceded by separate elections as required by § 71.870, V.A.M.S. This, on the theory that voters of the area to be annexed cast their ballots at one of the two polling places within the City rather than at a place within the area to be annexed. By its petition the City pleaded that the annexation had been approved at separate elections by the voters of the City and by those of the area to be annexed. Defendants-appellants Allen and Millstone admitted that allegation in their answer. So far as they are concerned, the issue dropped out of the case. There is nothing for review. Civil Rule 83.13 (a) (b), V.A. M.R.

The last point in defendants’ brief concerns an unpleaded agreement between the City and St. Louis County whereby the County withdrew its opposition to the annexation upon the City’s promise not to liberalize the zoning restrictions in the area to be annexed. The “Points and Authorities” section in defendants’ brief contains only abstract statements of law about public policy being opposed to the City’s “bartering away” its legislative power. This does not comply with Civil Rule 83.05 (e), V.A.M.R., which declares that in appellants’ briefs the points relied on shall “briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed.” Further, the legality or illegality of the agreement complained of was not raised in the trial court and no ruling thereon was requested or made. Nothing is preserved for our review.

Because these last two points are not properly preserved for review, we have considered them in the light of Civil Rule 79.04, V.A.M.R., which empowers us to consider plain errors affecting substantial rights. We find no manifest injustice or miscarriage of justice as to either point.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C, is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    Walter FRITZSCHE, Plaintiff-Appellant, v. EAST TEXAS MOTOR FREIGHT LINES, Defendant-Respondent.
    No. 32404.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied June 14, 1966.
    Application to Transfer Denied Sept 12, 1966.

      Gray & Sommers, St. Louis, for plaintiff-appellant.
    Schwartz & Ely, Robert C. Ely, St. Louis, for defendant-respondent.
   ANDERSON, Judge.

This is an appeal by plaintiff from an order of the Circuit Court overruling plaintiff’s motion to set aside a judgment entered in his favor upon a verified confession of judgment filed by defendant.

The suit was instituted by the filing of a petition on July 15, 1964, in the Circuit Court of the City of St. Louis by Walter Fritzsche against East Texas Motor Freight Lines. It was an action for damages for personal injuries alleged to have been sustained by plaintiff on October 15, 1963 as a result of a violent collision on Highway 66, in Illinois, between a tractor with other equipment attached thereto being operated by plaintiff and a vehicle operated by defendant through its agents, servants, and employees. The collision was alleged to have occurred at a point approximately one-half mile south of the intersection of Highway 66 and Highway 138. It was further alleged that plaintiff was operating his vehicle southwardly on Highway 66 and that defendant’s vehicle collided with the rear of plaintiff’s vehicle; and that said collision and plaintiff’s injuries were directly and proximately caused by the negligence in the operation, maintenance and control of defendant’s vehicle. Judgment was prayed for in the sum of $10,000.00 and costs.

On July 29, 1964, defendant filed an answer in said cause, which after admitting its corporate existence and the facts with reference to the collision, except the allegation that the collision was violent, denied the allegations that the collision and plaintiff’s injuries were caused by defendant’s negligence.

On August 31, 1964, defendant filed a Confession of Judgment in said cause in words and figures as follows, to wit;

“CONFESSION OF JUDGMENT
“COMES NOW defendant and confesses judgment in favor of plaintiff and against defendant in the sum of TEN THOUSAND ($10,000.00) DOLLARS, the ad damnum of plaintiff’s Petition, and costs; and defendant hereby pays into the registry of the Court, for the use and benefit of plaintiff, the sum of $10,-018.60, for such judgment and costs.”

Thereafter, and on the same day, defendant filed with the clerk the following memorandum in said cause:

“MEMORANDUM FOR CLERK
“Defendant confesses judgment in the amount of $10,000.00 and costs. $10,-018.60 paid into registry of Court.
“Judgment entered in favor of plaintiff and against defendant in the sum of $10,000.00.
SO ORDERED: /s/ Wm. H. Killoren, Judge, No. 1”

Judgment was thereupon entered in said cause which is in words and figures as follows, to wit:

“It is ordered by the Court that this cause he assigned to Division No. One.
“Now at this date comes the plaintiff by attorney and submits to the Court its petition, heretofore filed and also submits to the Court a verified confession of judgment filed by the defendant, and the Court having seen and examined the same, and being sufficiently advised thereof, doth find in favor of the plaintiff and against the defendant for the sum of $10,000.00.
“WHEREFORE, it is considered and adjudged by the Court that the plaintiff have and recover of the defendant the sum of TEN THOUSAND and NO/100 ($10,000.00) DOLLARS, together with the costs of this suit, and that execution issue therefor.
“It is further ordered by the Court that the defendant pay into the registry of the Court the sum of $10,000.00 together with the sum of $18.60, being the costs of this suit.”

On September 9, 1964, plaintiff filed in said cause a verified motion to set aside the judgment, and' as grounds for said motion alleged:

“1. The court’s order entering judgment in favor of plaintiff and against the defendant in the sum of $10,000.00 is void.
“2. The court was without jurisdiction in entering said order.
“3. The order of the court entering judgment in favor of plaintiff and against the defendant in the sum of $10,000.00 is null and void.
“4. Plaintiff first states that this action was instituted on or about July 16, 1964. At the time of the institution of the lawsuit the same was prepared and filed by Charles E. Gray, as attorney for plaintiff, and therein damages in the sum of $10,000.00 was prayed for. At the time of the institution of said petition, Charles E. Gray, as plaintiff’s counsel, was not fully advised of the nature, character and extent of the injuries and damages sustained by plaintiff, Walter Fritzsche. After the institution of said action further investigation was made by said attorney and this investigation now reveals that plaintiff sustained severe, permanent and disabling bodily injuries. He incurred or became indebted for necessary medical, hospital and surgical care and treatment in excess of $1200.00, and will continue to incur expenses for such care and treatment in the future. In the accident giving rise to his cause of action plaintiff’s personal property was so damaged as to reduce its reasonable market value in excess of $5,000.00. Plaintiff further states that his attorney’s investigation is still not complete and said attorney’s file does not, as yet, contain sufficient information upon which to file an amended petition alleging all of the specific injuries and damages sustained by plaintiff, but that, on information and belief, it is alleged that plaintiff is entitled to recover from defendant a sum far in excess of the $10,000.00 judgment entered as aforesaid.
“5. Plaintiff further states that his judgment was obtained by defendant ex parte, with no notice thereof having been previously served upon plaintiff or his counsel, thus neither plaintiff nor plaintiff’s counsel were given any opportunity to make any objections thereto.
“6. Plaintiff further states that no notice was given to plaintiff by the court of its intention to enter such judgment * * ‡»

The prayer of the motion was to set aside the judgment, reinstate the case on the docket and afford plaintiff an opportunity to file an amended petition.

The foregoing motion was overruled on January 14, 1965. On January 20, 1965, plaintiff appealed to the Supreme Court from the Court’s order overruling said motion. That court on September 1, 1965, held it was without jurisdiction of the appeal and did on said date transfer the cause to this court.

It is appellant’s contention that the judgment is null and void for the reason that defendant in securing same failed to follow the procedural steps provided for in Civil Rule 77.25, V.A^M.R., and failed to give notice to him under Civil Rules 43.01(a) and 44.01(d), V.A.M.R. It is argued that appellant was thereby prejudiced by having been deprived of the right to either dismiss his cause of action or increase the ad damnum clause of his petition before the entry of judgment. The first mentioned rule relates to offers of judgment, and is in words and figures as follows, to wit:

“At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 5 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon judgment shall be entered. If the offer is not accepted within 5 days it shall be deemed withdrawn and evidence thereof is not admissible. If the adverse party fails to obtain a judgment more favorable than that offered, he shall not recover costs in the circuit court from the time of the offer but shall pay costs from that time.”

Civil Rule 43.01(a), V.A.M.R., requires that every pleading subsequent to the original pleading, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment shall be served upon each of the parties affected thereby.

Civil Rule 44.01(d), V.A.M.R. provides for notice to be served not later than 5 days before the time specified for hearing of any written motion other than one which may be heard ex parte, and unless a different period is fixed by law, court rule or by order of court.

We do not believe that Rule 77.25, supra, is applicable to a confession of judgment, but was designed -for the purpose of permitting a defendant to avoid court costs by making an offer of judgment which if accepted would result in a consent judgment. A judgment by consent is different from a judgment by confession in.that it is based on an agreement between the parties as to the terms, amount or conditions of the judgment to be rendered. Black’s Law Dictionary, p. 978 ; 49 C.J.S. Judgments § 173, p. 308. A judgment by confession such as the one in the case at bar, is a product of the common law, and is not created by statute or rule of court. At common law, such a judgment was one entered for plaintiff in a case where the defendant, instead of entering a plea, confessed the action, or at any time before trial confessed the action and withdrew his plea, Bouvier’s Law Dictionary (Rawle’s Rev.) Vol. 2, p. 25. The court in such cases had no choice but. to enter judgment on said confession, and such judgment could not be disturbed except in direct action and upon equitable grounds.

There is no statute or Civil Rule in this state which regulates the practice of confession of judgment of the kind here involved as it was known at common law, and we know of no rule of common law which requires notice and hearing before entry of judgment thereon. It would seem therefore that such proceeding may be ex parte and without notice. In such a case, plaintiff could suffer no harm because he secures all the relief for which he is asking. It has been held that if the confession and judgment are regular, the judgment may be impeached only by a direct action and on equitable grounds. An application to open a judgment by confession is a direct attack in the nature of an equitable proceeding, 49 C.J.S. Judgments § 321, p. 578, addressed to the sound discretion of the court, and may not be disturbed on appeal except for abuse of discretion.

An abuse of discretion is not merely an error of judgment; but consists of a conclusion where the law is overridden or misapplied. No such situation is presented in the case at bar. The principal ground of appellant’s motion was failure to follow the procedure outlined in Rule 77.25, supra, which we find clearly not applicable, nor were there stated other grounds of an equitable nature sufficient to move the court in the exercise of its discretion to set aside the judgment. Rules 43.01(a), supra, and 44.01(d), supra, are clearly not applicable.

Appellant cites the case of Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347, in support of his position. In that case, there was a verdict for the defendant. Plaintiff filed a motion for new trial which was four days late. The trial court struck plaintiff’s motion, but granted a new trial of its own motion without notice to defendant. The Supreme Court reversed and ordered the original judgment reinstated, on the ground 'that the action of the trial court was an arbitrary exercise of discretion. The case is not in point. There the trial court arbitrarily took away from defendant a favorable judgment. In the case at bar, the entry of judgment was not adverse to any right then being asserted by plaintiff. It did not take anything away from him, but gave him everything he asked for in his petition.

Appellant also cites State ex rel. Murphy v. Aronson, Mo.App., 330 S.W.2d 140, and Williamson v. Williamson, Mo.App., 331 S.W.2d 140. These cases hold that notice must be given before a divorce decree is set aside or modified. As in the Hoppe case, supra, the jurisdiction of the trial court was invoked in each instance in an effort to take away a judgment right of a party, which cannot be done without giving the party to be affected an opportunity to be heard in opposition. It is our opinion that the rule of law announced by the cases cited by appellant does not apply to the case at bar where the judgment does not take away any judgment right held by the appellant, but conforms to the position taken by appellant at the time the judgment was entered.

The order and judgment appealed from should be affirmed. It is so ordered.

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


author: LACKLAND H. BLOOM, Special Judge.

text:
    CITY OF ST. LOUIS, Plaintiff-Respondent, v. Joyce COOK, Defendant-Appellant. CITY OF ST. LOUIS, Plaintiff-Respondent, v. Joanne v. LONG, Defendant-Appellant. CITY OF ST. LOUIS, Plaintiff-Respondent, v. June A. CARTER, Defendant-Appellant.
    Nos. 31047-31051.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.

      James J. Rankin, St. Louis, for defendant-appellant.
    Thomas F. McGuire, City Counselor, Thomas J. Neenan, Eugene P. Freeman, Associate City Counselors, Harry J. Dodson, Asst. City Counselor, St. Louis, for plaintiff-respondent.
   LACKLAND H. BLOOM, Special Judge.

Appellants appeal from separate judgments entered against them in the St. Louis Court of Criminal Correction. By leave of this Court the separate appeals have been consolidated and the parties have filed one transcript of the record.

Oral argument was waived and the appeals were submitted to this Court upon the transcript, exhibits and briefs.

Appellants Cook and Carter were charged in the City Court of the City of St. Louis on information with violating Chapter 46, § 58, being parts of Ordinance 44886 of the City of St. Louis in that they were alleged to be inmates of a bawdy house, and appellant Long was charged to be in violation of § 57 of said chapter in that it was alleged that she unlawfully did keep, maintain or manage a bawdy house. Upon conviction in the City Court the appellants appealed to the Court of Criminal Correction and were afforded a trial de novo before the Court without a jury. In the Court of Criminal Correction appellant Joyce Cook was found guilty on two separate charges of being an inmate of a bawdy house and assessed a fine of $100 and costs on each charge. Appellant June A. Carter was found guilty on one charge of being an inmate of a bawdy house and assessed a fine of $100 and costs. Appellant Joanne V. Long was found guilty of being the keeper of a bawdy house on two separate charges and assessed a fine of $500 and costs on each charge. Upon appellants’ motions for new trial being overruled appeals from the convictions were duly taken to this Court.

The cases were tried together in the Court of Criminal Correction. Frank Wisa, a policeman attached to the St. Louis Metropolitan Police Force, testified that on February 12, 1961, he arrested Joanne V. Long and Joyce Cook at 1521 North Ninth Street, St. Louis, Missouri, at 8:00 p. m. He was accompanied by another officer, Orbin Gresham. They were in civilian clothes and were admitted to the premises and told by appellant Long that only one girl was working that night and she referred to Joyce Cook, who was sitting on the divan. Wisa testified that Joyce Cook said that she would take care of him, go to bed, or take care of both of them one at a time. Shortly thereafter someone knocked on the door and the girls told him and Gresham to go into the middle room, that it was apparently the police who would go away if the door was not opened. Officer Wisa testified that they thereupon identified themselves as police officers and arrested them.

Charles Latham testified that he was a policeman attached to the St. Louis Police Force and that on February 15, 1961, he assisted in the arrest of Joanne V. Long, Joyce Cook and June A. Carter at 1521 North Ninth Street. He said that this was at approximately 9:30 p. m., and that he was in plain clothes accompanied by his partner, Harry Collins, who remained on the street outside the building while Latham went inside. He said that he was invited inside the building by appellant Long. June A. Carter and Joyce Cook were in the living room. Joanne V. Long was immediately inside the door. There was a conversation with the three girls and he said that Joanne V. Long asked which one of the girls was going to take care of him, and that they stated for the sum of $10 he could have one of the girls and for $20 he could have both of them. He said that at this time his partner approached the front door and he, Latham, identified himself as a police officer, placed the subjects under arrest and admitted his partner, Collins, into the room.

Harry Collins testified that he was a policeman attached to the St. Louis Metropolitan Police Force. He testified that he had observed the premises where Joanne V. Long was arrested since October, 1960; that he was attached to the gambling, liquor and morality squad and had observed the house for about a year. He stated that he had discussed the house with other officers and that the reputation of the house among police officers was that it was a house of prostitution. He further testified that he had arrested appellant Long approximately 14 times since the previous October on charges of prostitution. He stated that he had arrested Joyce Cook twice previously and June A. Carter once and that they are known among members of the Police Department as prostitutes.

He testified that he had discussed the reputation of these persons with others and that one person with whom he had discussed it was present as a witness. When asked by the Court if he knew the reputation of the house, he answered, “A house of prostitution.” On cross-examination Collins testified that none of the appellants had ever been convicted following any of the arrests to which he had previously referred and had clean records so far as convictions were concerned.

Mrs. Eunice Newcomb testified that she lived at 1519 North Ninth Street since November 15, 1960, and her house was next door to 1521 North Ninth Street. She stated that there was just a small gangway between their homes. She stated that she had seen the three defendants and that she had discussed the house with others and that the reputation of 1521 North Ninth Street was that it was a bawdy house. She further stated that on the other side of her house there was a parking lot and that cars parked there at all hours of the day and night, especially night; their occupants making a litter on the lot and using vulgar language, and she had seen “them” at all hours going next door. She further testified that men had knocked at her door stating that they had been sent with the understanding that they would be taken care of at all hours of the night; that the men called for June, Joanne and Joyce and several other different names.

Grace Hyneck testified that she was the Deputy Registrar of the City of St. Louis and identified the original ordinances of the City of St. Louis which contained the laws relating to the charges with which the cases were concerned.

No evidence was offered by the appel- ■ lants.

Under Points and Authorities ■ in their brief appellants state only that “The Trial Court prejudicially erred in finding the defendants guilty under the evidence adduced at the trial because the said evidence was insufficient to prove the defendants guilty as charged and the Court committed error in admitting hearsay and irrelevant testimony against the defendants.” That portion of the assignment in which appellants attempt to charge the trial court with error in the admission of evidence'is insufficient under Supreme Court Rule 83.-05(e), V.A.M.R., to present such question here for review. Jennings v. Jennings, Mo.App., 379 S.W.2d 159. Nor is the failure to comply with the rule cured by discussion and references to the transcript contained solely in the argument. Nibler v. Coltrane, Mo., 275 S.W.2d 270. Despite the inadequacies of appellants’ statement of the point to be reviewed in their brief, we have, nevertheless, in reviewing the evidence de novo noted appellants’ contentions with respect to the admission of testimony as set forth in their argument. Spradlin’s Market, Inc. v. Springfield Newspapers, Inc., Mo., 398 S.W.2d 859.

The issues thus raised by appellants on this appeal are:

(1) Was there sufficient competent evidence to sustain the finding that the premises at 1521 North Ninth Street was a bawdy house?

(2) If so, was there sufficient competent evidence to sustain the finding that appellant Long did on the dates in evidence “keep, maintain, superintend or manage” the said bawdy house ?

(3) Was there sufficient competent evidence to sustain the finding that appellants Cook and Carter were “inmates” of said bawdy house?

In this jury-waived action our duty is to review the law and the evidence as in suits of 'an equitable nature, giving due regard to the opportunities of the trial court to judge the credibility of the witnesses. Sale v. Brown, Mo.App., 396 S.W.2d 750, 754. § 510.310, RSMo 1959, V.A.M.S. The prosecutions in these cases being for the violation of an ordinance of the City of St. Louis,-they are not strictly criminal prosecutions but civil actions and the sufficiency of the evidence to sustain the judgments is to be determined by the rules applicable in civil cases. City of Cape Girardeau v. Smith, Mo.App., 61 S.W.2d 231; City of St. Louis v. Brune Management Co., Mo.App., 391 S.W.2d 943.

As previously indicated, the charge against appellant Long is that she did unlawfully keep, maintain or manage a bawdy house, and the charge against the appellants Cook and Carter are that they were found to be inmates of a bawdy house, all in violation of the particular ordinance set forth in the information.

Our first task is accordingly to determine whether the evidence is sufficient to constitute the premise at 1521 North Ninth Street a bawdy house within the meaning of the law. Various definitions of a bawdy house have been set forth in the cases. In general it may be said that a bawdy house is a house resorted to and frequented by lewd people of both sexes for the purpose of prostitution; that is, for men and women to have unlawful, illicit sexual intercourse together therein; one that is kept for the resort and commerce of lewd people of both sexes. State v. Hesselmeyer, 343 Mo. 797, 123 S.W.2d 90; State v. Seba, Mo.App., 200 S.W. 300; State v. Keithley, 142 Mo.App. 417, 127 S.W. 406; State v. Horn, 83 Mo.App. 47. It is well recognized in this state that the proof necessary to establish the character of a bawdy house must in most cases be “inferential,” State v. Davis, Mo.App., 192 S.W.2d 39; State v. Bennett, Mo.App., 118 S.W.2d 1042, and that in the nature of things the evidence must be largely “circumstantial.” State v. Hesselmeyer, supra. The evidence which is admissible to establish the existence of a bawdy house includes proof of the reputation of the keeper of the house as well as the inmates, State v. Flick, Mo.App., 198 S.W. 1134; that the inmates of a house bore bad reputations for morality, State v. Bennett, supra; evidence as to the reputations of persons frequenting the house, State v. Keithley, supra.

It is not essential that specific acts of bawdry or illicit intercourse in the house be shown in order to sustain a conviction. State v. Hoelcher, 163 Mo.App. 352, 143 S.W. 850; State v. Davis, supra; State v. Hesselmeyer, supra.

Applying such general principles to the facts adduced in these cases we are of the opinion that there was competent evidence to sustain the finding that the premises involved was in fact a bawdy house.

The testimony of Officers Wisa and Latham was competent to establish that on the 12th and 15th of February, 1961, there were available in said premises girls for the purpose of prostitution and that the appellants Cook and Carter were willing for a price to participate in the commerce of prostitution indiscriminately with men entering the premises.

Officer Collins testified that the house had been under observation for almost a year and that numerous arrests of inmates including the appellants had been made and that they had the reputation of being prostitutes. As previously indicated the reputation of inmates for prostitution is admissible in cases of this nature to establish the character of the house. State v. Keithley, 142 Mo.App. 417, 127 S.W. 406; City of Columbia v. Stout, 180 Mo.App. 392, 167 S.W. 1153. In the'latter case a conviction was sustained upon the testimony of only two witnesses for the prosecution being the marshal and his deputy; part of the evidence being their testimony as to the reputation of the girls and of the house. Appellants contend that evidence of the arrests without showing any convictions was prejudicial to them inasmuch as the officer on cross-examination indicated that they had clean records as far as convictions were concerned. What appellants overlook is that the evidence is not being offered directly for the purpose of impeaching them or for any bearing on the question of their guilt or innocence. It was offered solely to establish the character of the house. For this purpose evidence of prior arrests of inmates or persons frequenting the house has been admitted. State v. Davis, supra. The same is true with respect to the officers’ testimony as to the reputation of the inmates as prostitutes and of the house as a bawdy house. Officer Collins testified that he had discussed the house among police officers and that it had the reputation of being a house of prostitution. He was also asked whether he talked to neighbors about the reputation of the appellants and the house around the neighborhood and he testified that he had, and that he discussed the reputation with these persons and that one of the persons was present as a witness and that the reputation of the house was that of “a house of prostitution.”

Mrs. Eunice Newcomb who lived next door to the premises in question testified for the prosecution. She stated that she had lived there since November 15, 1960; that she discussed the house with others and that it had the reputation of a bawdy house. She pointed out that there is a parking lot on the side of her house and that cars parked there at all hours of the night and day, especially at night, and that their occupants made litter on the lot and used vulgar language, and that she had seen them at all hours going next door. She testified that men would knock at her door and ask for the appellants and others and that they used very indecent language when she would come to the door. Appellants object strenuously to the admission of such testimony as being hearsay and not binding on them. Here again we believe the evidence to be admissible not for the purpose of establishing the guilt of the appellants but for the purpose of laying a foundation on which the testimony of the witness as to the reputation of the house became admissible.

For the reasons stated we believe that the evidence was sufficient to establish the character of the premises at 1521 North Ninth Street as being that of a bawdy house.

We further believe that the evidence fully establishes that on February 12th and 15th, 1961, the appellant Joyce Cook was an inmate of a bawdy house as charged in the respective informations against her, and that on February 15, 1961, the appellant June A. Carter was an inmate of a bawdy house at said premises as charged against her; said inmates being there for the purpose of prostitution. Such evidence is fully established by the uncon-tradicted testimony of Officers Wisa and Latham. City of Columbia v. Stout, supra.

In a careful review of the evidence we fail to find any substantial evidence which would sustain the finding that appellant Joanne V. Long did keep, maintain or manage the premises at 1521 North Ninth Street. Respondent would have us infer that Long was the keeper of the house from the fact that said appellant on February 12th indicated to Officer Wisa that only one girl was working that night referring to Joyce Cook and said that Joyce Cook would take care of him, and that on February 15th she opened the door for Officer Latham and asked which one of the girls was going to take care of him. Respondent insists that we may infer that she was the “madam” of the house from the additional fact that she did not make herself available to the officers for prostitution.

We believe that more evidence is required to establish the offense under the ordinance of keeping, maintaining or managing a bawdy house than the inferences which respondent would have us make. Thus in State v. Bennett, supra, there was evidence that the keeper of the house had received compensation for the use-of the rooms. In State v. Hoelcher, supra, the defendant in being denied a license to operate a bawdy house stated that she would run one anyway. In City of Columbia v. Stout, supra, the defendant when asked who was running the house stated that she was. Likewise in State v. Davis, supra, the defendant admitted that he was the owner and manager of the place and the business operated therein. One of the essential elements necessary to establish the offense of “keeping” a bawdy or disorderly house is that the person keeping the house be the person having in whole or in part the management or control of the premises. 27 C.J.S. Disorderly Houses § 5c, p. 556.

For the reasons stated the convictions and judgments against appellant Joyce Cook in appeals Nos. 31,047 and 31,048 and against appellant June A. Carter in appeal No. 31,051 are affirmed, and the convictions and judgments against appellant Joanne V. Long in appeals Nos. 31,049 and 31,050 are reversed.

ANDERSON, Acting P. J., and RUDDY, J., concur.

WOLFE, P. J., not participating.


author: CLAY, Commissioner.

text:
    Jake JOHNSON et al., Appellants, v. Helen BERRY, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    John L. Davis, Stoll, Keenon & Park, Lexington, for appellants.
    Rodney J. Thompson, Winchester, for appellee.
   CLAY, Commissioner.

Appellee, a passenger in a taxicab, recovered a joint judgment of approximately $7,000 against the drivers of two vehicles which collided in an intersection. The appellants are the owners and operators of the taxicab.

The intersection was controlled by a traffic light. Each of the drivers testified he had the green light in his favor. However, a police officer testified as follows:

“Both drivers involved in the above mentioned accident told me that the light was on ‘caution’ or ‘yellow’ on all four sides of the intersection.” (Our emphasis.)

On the basis of this evidence the court gave the following instruction No. 3:

“The Court instructs the jury that if at the time each of the drivers of the vehicles of the defendants entered the intersection which is the subject of this controversy, the traffic light at said intersection was on caution or yellow for each of said drivers, then the jury will find for the plaintiff under Instruction No. S-A against both of the defendants herein.”

The jury verdict was specifically based on this instruction.

It is appellants’ contention that the police officer’s testimony lacked probative value and the court should have limited the instructions to which party had the green light. We cannot discern why this evidence lacked probative value. However, the case was tried prior to our decision in Brockie v. Shadwick, Ky., 396 S.W.2d 63. Therein we held that a motorist lawfully may enter an intersection on a yellow or caution light where the yellow follows green (in the absence of legislation to the contrary).

The parties do not inform us in their briefs what type of traffic light this was. We gather from the testimony of the police officer that the caution light was on in all four directions when neither a green nor a red light was simultaneously showing. If this was the situatipn, under the Brockie decision the motorist who entered the intersection on the yellow light following the green signal would have the superior right of way. It may be said that in the absence of a statute or ordinance to the contrary, a yellow light (alternating with green or red) does not change the immediately pre-exist-ing right of a motorist to proceed or duty not to proceed, but cautions him that the light is about to change and reverse the respective rights and duties.

The instruction was, therefore, erroneous because it in effect advised the jury that under the circumstances about which the police officer testified neither driver had a right to enter the intersection. This error was prejudicial because the jury verdict was specifically based on this instruction, and the judgment must be reversed on this ground.

We do not believe it necessary to consider the other questions raised by appellants because in all probability they will not arise on a new trial.

The judgment is reversed as to the appellants here for proceedings consistent with this opinion.


author: C. WARREN EATON, Special Commissioner.

text:
    CUMBERLAND CONTRACTING COMPANY, Appellant, v. Loraine COFFEY, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.

      Bruce H. Phillips, Monticello, for appellant.
    R. B. Bertram, E. G. Bertram, Jr., Bertram & Bertram, Monticello, for appellee.
   C. WARREN EATON, Special Commissioner.

The appellee, owner of oil and gas rights in 410 acres of land in Wayne County, brought this action to cancel an oil and gas lease and to recover damages against the lessee. The lower court entered judgment ordering cancellation of the lease but denied the owner damages. The appeal is from that portion of the judgment cancelling the lease.

The lease was executed in November, 1945, for a period of five years with a provision for it to continue “as long thereafter as oil or gas or either of them is produced from said land by the lessee.” The appellant, Cumberland Contracting Company, became owner of the lease by assignment in May, 1951. At the time three wells had been drilled on the leasehold and were producing. In 1953 the appellant drilled a fourth well which proved to be nonproductive. Immediately thereafter all of the drilling equipment was removed and two of the three producing wells plugged. Only the remaining well has been pumped for oil since 1953.

The evidence discloses that there has been no actual profitable production since 1953 from the one remaining well. This well has been pumped approximately two hours each week and has produced perhaps one and a half barrels of oil per pumping. For the 23 months prior to the commencement of the action appellee received as royalties the token sum of $19.79, less than one dollar per month rental. Appellee gave the appellant due notice more than a year prior to the commencement of this action that the lease would be cancelled unless it was further developed. No action was taken by the appellant and there was no increased production. Indications are that further drilling would not be profitable since there has been no new drilling in the area within recent years. Appellant’s proof indicates there is a possibility of additional profitable production provided a new secondary method of production, now under consideration, proves successful. No secondary recovery has been attempted and the proof indicates that it would be as long as three years perhaps before there could be a determination on the subject of secondary development by the appellant.

The evidence indicates that the oil produced for the years since 1953 was not sufficient to pay appellant’s operating costs. Appellant does have a substantial investment in the lease, considering the previous drilling and development. The substantial investment is one of the considerations urged by the appellant as a reason why the lease should not be cancelled.

Both parties appear to agree that this is not a case where the lessee should forfeit the lease for failure to develop by drilling further wells. The sole question, therefore, is whether, under the circumstances of this case, the lease should be cancelled because lessee is not producing oil in paying quantities or is only producing enough oil to pay the lessor at most a nominal or token rental. In other words, has the lease expired by its own terms ? See Wheeler and LeMaster Oil and Gas Co. v. Henley, Ky., 398 S.W.2d 475.

The same question was determined in the case of Reynolds v. White Plains Oil & Gas Company, 199 Ky. 243, 250 S.W. 975. (It is difficult to determine from the opinion of that case whether the facts were similar to those of the present case, especially as to the acreage or as to the matter of time, but there were in that case two wells producing less than a barrel of oil every other day.) The lease referred to in that case had an identical term limitation as in the present case, and although the court ruled that lessor was not entitled to cancellation because the lessee was producing oil, the stated facts are not so clear, especially as to amount of production and time, as to require a similar holding in the present case. Of importance in the Reynolds case is the recognition of a modification of the general rule that the lessee has the exclusive right to determine when an oil well is producing in paying quantities, the modification being “that the production must be substantial and sufficient to pay the lessor a royalty justifying the obstruction and interference which he suffers as a result of the occupation and operation on his premises.” See also Enfield v. Woods, 198 Ky. 328, 248 S.W. 842; Kies v. Williams, 190 Ky. 596, 228 S.W. 40; Wheeler and LeMaster Oil and Gas Co. v. Henley, Ky., 398 S.W.2d 475.

In Enfield v. Woods, supra, a case involving a similar lease, the court, referring to the general rule applicable in these cases, stated: “The general rule, however, is to hold the expression ‘oil well’ or ‘gas well,’ as used in a lease contract, to mean an oil well or gas well which can be profitably operated as such.” Recognizing that the payment of a reasonable royalty, considering all circumstances in each case, is the object of leasing oil and gas rights, the court in Flanagan v. Marsh, 105 S.W. 424, 32 Ky.Law.Rep. 184, stated: “[T]he lessee will not be permitted to hold the land for speculative or other purposes an unreasonable length of time for a mere nominal rent, when a royalty on the product is the chief object in the execution of the lease.”

Applying these principles to the present case we find that the lower court was justified in holding that production of one and one half barrels of oil every two weeks which resulted in payment of a royalty of less than one dollar per month for an oil lease of 410 acres is not production of oil within the meaning of the lease. This is especially true when coupled with the time element of such production over a period of years since 1953, the fact that the oil produced from the well was not sufficient to pay operating costs of the one remaining well, and the inescapable conclusion that the only object of holding over by the lessee was the chance (speculation) that at some future date secondary methods of production could be applied to the production of more oil. Certainly the Chancellor below was justified under the proof in declaring that a period of eleven years was more than ample and sufficient time for there to have been commercial development in paying quantities by secondary or other recovery methods; and in further holding that because of lessee’s inability or failure to produce oil in sufficient quantity so as to pay the lessor a reasonable rent (royalty), reasonable notice having been given, the lease has expired and in this sense was forfeited.

The judgment is affirmed.


author: HILL, Judge.

text:
    Roy WILLIAMS et ux., Appellants, v. Donna Michele NEUMANN et al., Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Edward W. Bensinger, Louisville, for appellants.
    Robert W. Zollinger, Louisville, for ap-pellees.
   HILL, Judge.

This is an appeal from a judgment dismissing appellants’ petition to adopt and change the name of Donna Michele Neu-mann, three and one-half years old, and awarding her custody to appellees Wanda J. Yates, natural mother of Donna Michele, and James D. Yates, second husband of Wanda J. Yates, who it is now claimed is the natural father of Donna Michele Neu-mann.

At the time of the marriage of Wanda J. Yates to Conrad F. Neumann, she was thirteen years of age. Before their separation, she bore Neumann four children. After their separation and before they were divorced, she had two more children shown by the birth certificates to belong to Neu-mann. In the divorce proceeding, Neumann was awarded custody of the four older children.

Previous to the birth of Donna Michele on January 4, 1963, the mother of James D. Yates, who worked with appellant Anna Mae Williams, inquired of Mrs. Williams whether she was interested in adopting a child. Mrs. Williams was advised that Wanda intended to “give” her baby away as soon as it arrived. At this time Wanda was not married to Yates, although Yates’ mother apparently was familiar with the pregnancy of Wanda and her desire to “give away” her expected child. She did not marry Yates until December 16, 1963, ten days after her divorce from Neumann.

When Donna Michele was four days old, Wanda accompanied by Mrs. Hines, mother of Yates, carried Donna Michele to the home of appellants, Mr. and Mrs. Williams, placed her on the bed and said, according to Mrs. Williams, “there she is and I never want to see her again.” Wanda stated she was “not sure” what was said about adoption at the signing of consent for adoption on May 16, 1963; but she stated, “The only thing that I do know is that I said that I did want this child back if anything happened to them * * *.” Further along in her testimony Wanda stated, “she (Mrs. Williams) couldn’t have her to keep.” But the facts are crystal clear and uncontradicted that Wanda never visited the child, contributed to her support, or gave her a gift for about a year after turning her over to the Williamses.

At the present time, appellant Roy Williams is about seventy-three years of age and his wife, Anna Mae, is about fifty-one. The former is retired, but Anna Mae is an inspector with American Radiator Standard Sanitary Manufacturing Company. They do not own their home but have sufficient savings to pay the down payment on one. They have sufficient income for comfortable living. Mrs. Williams works from 3:00 until 11:00 p. m. five days a week for which she earns $102.50 weekly.

Appellee Wanda J. Yates is about twenty-five years of age, and her present husband is near the same age. They own their own home, have three of Yates’ children by his first marriage, and Wanda’s fifth child, a boy born before her divorce from Neumann which she maintains belongs to Yates, and assuming her pregnancy at the time her deposition was given was fruitful there are five children in the home.

From the evidence, we find, as was found by the chancellor, appellees have a “pleasant and attractive” home. So do the appellants. It is apparent that appellee Wanda J. Yates has regained her health after two operations in August 1963 and from the devastation and depletion consequent to producing six children in less than eight years, commencing at the age of fourteen. She merits the admiration and respect of all persons familiar with her past experience. Her effort to bring the “brood” together under one roof is proof positive of the resurrection of motherly love and instinct. She is not to be condemned for her acts in delivering her baby to appellants. Perhaps she was justified by the circumstances existing at that time. But the fact remains she created the condition she now seeks to alter.

Now, let’s turn the coin. We are not primarily concerned with sentimental considerations for the mother and appellants who seek legal adoption; although these considerations may be of secondary importance and will be discussed later. The welfare of the child is the paramount question. Certainly, there are and will continue to be heartaches experienced by both parties in this controversy. Anna Mae Williams has attended every baby and childhood need and demand of Donna Michele from the fourth day of her life when she could neither focus her eyes nor raise her head. Up to this hour, according to this record, Donna Michele has known no other mother as she has never seen her natural mother. She is now three and one-half years old and talking. She cannot be suddenly transplanted like a dogwood tree without running serious and dangerous risk of frustration and bewilderment.

Appellees presented the testimony of a female professor from the Kent School for Social Workers, University of Louisville, who stated the well-known philosophy that, ordinarily, adoption is available only to those persons of child-bearing age. From the painstaking findings of fact, the chancellor determined that, primarily, due to the ages of appellant Roy Williams and Anna Mae Williams the best interest of the child would be served by refusing adoption by appellants and placing the custody of the child with appellees; however, the chancellor found appellants better situated financially to have custody of the child. We are thus presented with a finding of fact by the chancellor in a serious and important child custody case. It is the general rule in all such questions, the findings of the chancellor will not be disturbed unless “clearly erroneous.” CR 52.01. Also see Hall v. Hall, Ky., 386 S.W.2d 448 (1964).

This court held in Lee v. Thomas, 297 Ky. 858, 181 S.W.2d 457, in a factual situation very similar to the case at bar, except that in the Lee case the mother was not as well situated for custody as the mother in the present case, that:

“As a general proposition parents have the primary and superior right to the custody of their offspring above that of all others, but the declared law has injected into such cases a factor of almost equal dignity as that of the right of the parents, and which is the welfare of the child afforded by the superior advantages that adopting parents are about to and can furnish it and of which it would be deprived if it remained with its natural parents. But no opinion of any court so far as we are aware approves the right in anyone to take away from natural parents the custody of their children solely upon the ground that the adopting parent is better prepared to provide superior advantages to the child which the natural parent for any cause might be unable to provide. But where that situation exists, and the parent has agreed that his or her child might be adopted and has executed such consent or offer in the manner pointed out by the statutory regulations of the particular jurisdiction which has been acted on by the proposed adopter, then such consent or agreement, in the absence of fraud or duress in its procurement, plus the vastly increased opportunities of the adopted child, creates, a case where there is no alternative but to sustain the adoption applied for.
* * * * * *
“Here appellees, in reliance on appellant’s written consent, not only took custody of the involved infant, but also devoted time and money in preparations for carrying out their duty as foster parents for 15 months without any objections communicated to them by the mother of the infant. Even if fraud or duress in obtaining the consent of the parents was available to repudiate the consent before final judgment in the adoption proceedings, such defense, if any, cannot prevail here because there is no testimony whatever in support of fraud, duress or any other avoiding ground for such repudiation.”

With reference to the age of the adoptive parents, the opinion in Lee went on to say:

“Therefore, when such an investigation is made and the facts so reported to the Board preeminently justify the adoption applied for, no such, reasons (age) as are set forth in the report in this case should interfere so as to influence the court in the determination of the case.” (We emphasize and insert (age) in this quotation.)

See also Re Brown (Fla.) 85 So.2d 617, 56 A.L.R.2d 820, and Re Duke (Fla.) 95 So.2d 909.

In a Texas case, McGowen v. McGowen, Tex.Civ.App., 364 S.W.2d 447 (1963), the court approved adoption by parents ages sixty-six and forty-nine.

In the present case, the age of Roy Williams is an unfavorable circumstance in the determination of the adoption question, but the adoptive mother is now fifty-one with a life expectancy of over twenty-two years. She is above the age of the average child-bearing period, yet there are some whose child-bearing period extends beyond the age of fifty-one years.

It is the conclusion of this court that the chancellor was clearly erroneous in refusing the adoption sought and in placing custody of the child with appellees.

The judgment is reversed with directions for judgment consistent with this opinion.


text:
    R. Gordon LEVI, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    As Modified on Denial of Rehearing April 22, 1966.

      Royce Pulliam, Cynthiana, William H. McCann, Brown, Sledd & McCann, Lexington, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Frankfort, for appellee.
   HILL, Judge.

Appellant seeks a reversal of a verdict and judgment finding him guilty of voluntary manslaughter, and fixing his punishment at 15 years in prison. He contends (1) he was entitled to an instruction on self-defense and involuntary manslaughter, (2) the trial court committed error in answering a written question submitted by the jury during his absence, and (3) that he was entitled to a new trial on the ground one juror had expressed an opinion before the trial.

Appellant, age 65, six feet three inches tall, weighing 215 pounds, was charged with killing William Hoffler, a man between 70 and 75 years of age, five feet six inches tall, and weighing 135 pounds.

Apparently the appellant is a thrifty man from the evidence that he owns 60 houses, including a one or two story building with a basement, the scene of the alleged crime. Beds were rented in this building at the rate of one dollar per night for basement lodging and two dollars per night for beds on the first floor. This house is located on the appropriately named “Pleasant Street” in Cynthiana, Kentucky.

Deceased “signed in” for a bed February 11, 1964, and was found dead in his upstairs room the following day. During the night of the 11th and on the following day, about seven customers were lodged in the house. There were two women, one the daughter of appellant, and the other, according to some testimony, a Lesbian. There was considerable drinking also.

Dr. James T. McClelland, a pathologist, performed an autopsy and testified deceased had a deep laceration above the right eye, an abrasion over the right cheek and yet another laceration on the bridge of his nose, so that his nasal bones were “in pieces”; that there was bleeding from these injuries, from which he concluded deceased received the foregoing injuries before his chest injuries. The doctor stated he applied pressure to the chest of deceased and was amazed to find there was no support. He found fractures of the second, third, fourth, fifth, sixth and seventh ribs of the right side, and fractures to the third, fourth, fifth, sixth, seventh and eighth ribs on the left side. The breastbone was fractured. The pleural cavity was filled with blood; the right atrium of the heart was ruptured and exploded, and all the blood spilled out into the chest cavity; the heart was squeezed against the backbone and had ruptured like a balloon ; the liver was broken so that one-half of the left part was lying free. He testified deceased also had a ruptured groin; that the mouth of deceased contained upper and lower plates, the latter broken.

Appellant does not argue' the circumstantial evidence was not sufficient to convict, but he says inasmuch as all of the evidence was circumstantial, he was entitled to an instruction on self-defense and involuntary manslaughter.

Under Criminal Law, 23A C.J.S. § 1190, the general purpose of instructions in criminal cases is thus stated:

“The sufficiency of instructions must be determined by the facts in each case. The purpose of instructions being to define, and direct the attention of the jury to, the legal principles applicable to the particular case, instructions should be full, clear, and explicit, giving to the jury all of the law so far as it relates to the issues proved or claimed to be proved, if such issues are sustained by any evidence or by any legitimate inference therefrom.”

Our question is whether there was any evidence or legitimate inference from the evidence that the crime was or could be classified as involuntary manslaughter. KRS 435.022 defining and providing a penafty for involuntary manslaughter is as follows:

“(1) Any person who causes the death of a human being by an act creating such extreme risk of death or great bodily injury as to manifest a wanton indifference to the value of human life according to the standard of conduct of a reasonable man under the circumstances shall be guilty of involuntary manslaughter in the first degree and shall be confined in the penitentiary for not less than one nor more than fifteen years.
“(2) Any person who causes the death of a human being by reckless conduct according to the standard of conduct of a reasonable man under the circumstances shall be guilty of involuntary manslaughter in the second degree and shall be imprisoned in the county jail for a term not exceeding twelve months or fined a sum not exceeding five thousand dollars or both.”

We cannot believe the atrocious manner in which deceased met his death was no more than a manifestation of a “wanton indifference to the value of human life,” or “reckless conduct,” as defined in the involuntary manslaughter statute above quoted. We conclude from the evidence of the acts which produced death of Hoffler, that such acts must have been committed only by one having malice aforethought, or in sudden heat and passion, or in sudden affray upon provocation ordinarily calculated to excite passion beyond control. Nothing less.

Furthermore, the penalty fixed by the jury of 15 years was far greater than the minimum penalties for both voluntary and involuntary manslaughter. It is obvious that had an involuntary instruction been given, it would have been ignored by the jury. Bartley v. Commonwealth, 300 Ky. 152, 188 S.W.2d 102 (1945).

Neither do we find appellant was entitled to an instruction on self-defense. True, appellant had a slight injury on his face, but he testified he received it when falling over a dog into a door facing. This is not one of those typical cases where there was evidence of a struggle, and we have held a self-defense instruction proper. In Blackburn v. Commonwealth, Ky., 349 S.W.2d 197 (1961) defendant was convicted on circumstantial evidence and contended he was entitled to a self-defense instruction. In answer to his contention the Court said:

“We have adopted the rule that where the evidence is wholly circumstantial in a case like the one before us, if there is no evidence of a struggle or if the facts do not reveal the manner in which the deceased met death, such an instruction (self-defense) should not be given.”

Appellant next argues his substantial rights were violated by a written question sent the judge and his written answer thereto. During deliberations the jury sent the trial judge the following written communication :

“What would be the time before parole would be granted upon the following:

It is shown by the affidavit of the trial judge, that after free discussion with attorneys for defendant and the Commonwealth, he returned the written question with the following notation thereon:

“This is strictly a matter for the Parole Board. You are not to consider it in any way.”

The record does not show defendant objected to this incident. From the hearing on defendant’s motion and grounds for new trial, it is indicated the objection was raised “15 or 20 minutes” after the jury verdict. It is conceded first, however, the incident did occur at a time and while the trial judge and attorneys were in a conference room and out of the presence of the defendant. We do not consider this incident to be a substantial “proceeding” in defendant’s trial within the meaning of the law entitling defendant to be present at every stage of the proceedings. There was nothing in the incident in any manner prejudicial to the rights of defendant.

Finally, appellant complains one of the jurors formed and expressed an opinion before the trial and failed to disclose it on voir dire examination. A transcript of such examination of the juror, McClana-han, properly certified by the court reporter, is in the record. It shows the juror freely admitted he had formed an opinion, but said he could disregard it and require the Commonwealth to prove its case beyond a reasonable doubt. He was not asked whether he had expressed such opinion. He admitted to counsel for defendant he was a life-long friend to defendant, and the assistance given by counsel for defendant to this juror in his leading questions clearly indicated he was a welcome juror for defendant. Furthermore, this record does not show defendant challenged this juror or made any objection to his acceptance until after the verdict. That was too late. KRS 29.025. At any rate, this juror demonstrated his veracity when he freely admitted he had formed an opinion. The trial judge believed he could disregard his previously formed opinion by his failure to excuse. Such a juror is qualified. Smith v. Commonwealth, 100 Ky. 133, 37 S.W. 586 (1896); Coates v. Commonwealth, 255 Ky. 18, 72 S.W.2d 714 (1934).

We find no error substantially affecting the rights of appellant and accordingly affirm the judgment.