author: STOCKARD, Commissioner.

text:
    LOCAL NO. 218, BAKERY & CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA et al., Appellants, v. LOCAL NO. -, AMERICAN BAKERY & CONFECTIONERY WORKERS INTERNATIONAL UNION, AFL-CIO et al., Respondents.
    No. 51519.
    Supreme Court of Missouri, Division No. 2.
    July 11, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Sept. 12, 1966.
    John J. Manning, Robert S. Fousek, Kansas City, for appellants.
    Ben W. Swofford, Phillip L. Waisblum, Kansas City, for respondents, Swofford & Waisblum, Kansas City, of counsel.
   STOCKARD, Commissioner.

This case involves the right of a local labor union to retain and keep its property and assets after disaffiliation from an international union.

The Bakery & Confectionery Workers International' Union of America (hereafter referred to as “BCW”), while affiliated with the American Federation of Labor (hereafter referred to as “AFL”), issued a charter to Local 218 in Kansas City, Missouri. In 1955 the AFL and the Congress of Industrial Organizations (hereafter referred to as “CIO”) merged into what is known in abbreviated form as the AFL-CIO. BCW was instrumental in bringing about this merger, but on December 7, 1957, it was expelled from its affiliation with AFL-CIO because of internal corruption and its failure to comply with certain orders of the executive council of the AFL-CIO which had been recommended by the ethical practices committee of that organization. The reasons for and the circumstances of this explusion are set forth in the report of the AFL-CIO ethical practices committee, introduced in evidence as an exhibit, and a rather complete summary may be found in Crocker v. Weil, 227 Or. 260, 361 P.2d 1014. At the same general convention of the AFL-CIO at which BCW was expelled, AFL-CIO chartered a new international union known as the American Bakery and Confectionery Workers International Union (hereafter referred to as “ABC”). On December 28, 1957, at a regular meeting of Local 218, with approximately half of the active members present, the members voted 253 to none (with one and possibly two members who were present not voting) that Local 218 disaffiliate from BCW and that it affiliate with ABC, and that all assets and property of Local 218 held prior to disaffiliation be held and used by Local 218 in its new affiliation. Subsequently, at a meeting in January 1958, this action of disaffiliation from BCW, and affiliation with ABC with transfer of assets and property, was “ratified” by a vote of 424 to none. On January 12, 1958, this disaffiliated group received a charter from ABC in which it was designated as Local 218. Reference hereafter to the status of this organization after its affiliation with ABC will be to Local 218 ABC. It elected as officers the same persons who held office before the disaffiliation and continued an uninterrupted function as a labor organization. In 1958, after an election, it was certified by the National Labor Relations Board as the collective bargaining representative of the same workers and class of workers in the bakery industry in the greater Kansas City area formerly represented by Local 218 BCW.

After the disaffiliation meeting of December 28, 1957, a group of persons (possibly as many as thirty-two but the status of most of these is challenged and their status is questionable) claimed to remain as members of Local 218 BCW, and twelve of them, claiming to represent all the members of Local 218 BCW as a class, brought suit to obtain possession and control of the assets and property of Local 218 BCW which was taken by and placed under the control of Local 218 ABC. We note, however, that it appears that six of these twelve may have been named as plaintiffs without their knowledge and permission. The trial court issued its temporary injunction which prohibited any exercise of control over or use of such assets and property by Local 218 ABC and its members, and also prohibited the disaffiliated group from using the name “Local No. 218,” and as a result it has since been known as “Local No.-, American Bakery & Confectionery Workers International Union, AFL-CIO.” At the trial on the merits the temporary injunction was dissolved, and the issues were found in favor of Local 218 ABC and its members.

The record shows that subsequent to the disaffiliation meeting in December 1957, a local union designated at one time as Local 218A, and later as Local 465, purported to merge with Local 218 BCW. While we mention this, we are of the opinion that this fact has no bearing on the merits of the pending controversy.

Local 218, prior to the act of disaffiliation from BCW, accumulated substantial assets, including government bonds with a value in excess of $50,000 and an interest in an office building. There is no contention that these assets were not accumulated by the local union for uses by it and its members, and the constitution of BCW provided that all funds and property of local unions should be held by them in the name of the local. Although appellants present several points in their brief they do not challenge the legality of the disaffiliation meeting or the action of disaffiliation there taken. The critical question on this appeal, and upon which all issues rest, is whether a local union can take with it and retain its property and assets when a majority of its members vote to sever its affiliation with a national organization on the ground the national organization was expelled from a national federation of unions because of internal corruption.

In determining the effect on the property rights of a local union which results from the withdrawal by the local union from its affiliation with a national union, it is essential to determine the legal relation between the national and local unions, and also between the members of the local union. Both craft and industrial unions are generally organized on a national basis, with local unions chartered by the national body on a regional basis, and the national unions are in turn loosely federated into a central body made up of the various autonomous national unions. 31 Am.Jur. Labor § 13. In this case Local 218 BCW was chartered by BCW, and BCW in turn was affiliated first with AFL and later with AFL-CIO. The courts have held almost uniformly that these relationships are contractual in nature and that the contract consists of the articles of agreement of a labor union, whether called a constitution, charter, bylaws or some other name, which the courts will enforce if not immoral or contrary to public policy or applicable law. 31 Am.Jur. Labor §§ 33 and 42; Annotation 23 A.L.R.2d § 3 at page 1214 et seq.; 87 C.J.S. Trade Unions § 11; Junkins v. Local Union No. 6313, Communication Workers of America, 241 Mo.App. 1029, 271 S.W.2d 71; Robinson v. Nick, 235 Mo.App. 461, 136 S.W.2d 374; Farrar v. Messmer, Mo.App., 368 S.W.2d 933; Way v. Patton, 195 Or. 36, 58, 241 P.2d 895, 906; Olson v. Carbonara, 21 Ill.App.2d 69, 157 N.E.2d 273; Liggett v. Koivunen, 227 Minn. 114, 34 N.W.2d 345; Roberts v. Ferguson, La.App., 131 So.2d 323; Fitzgerald v. Abramson, 89 F.Supp. 504. “The local union is a separate and distinct voluntary association which owes its creation and continued existence to the will of its own members.” Duris v. Iozzi, 6 N.J.Super. 530, 70 A.2d 793, 796; International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO v. Becherer, 142 N.J.Eq. 561, 61 A.2d 16, 20, affirmed 4 N.J.Super. 456, 67 A.2d 900; Harker v. McKissock, 7 N.J. 323, 81 A.2d 480. Dues by the members are not paid directly to the national organization but to the local union which in turn remits out of those dues a per capita tax or assessment to the national organization. The local union could continue its existence and function without any relationship to the national organization. Bozeman v. Fitzmaurice, Ohio App., 107 N.E.2d 627, 629. This was recognized in Farrar v. Messmer, Mo.App., 368 S.W.2d 933, where a union retained its status though not affiliated with a national union and even though it was not the certified bargaining representative for the employees of any employer. National affiliation is a voluntary arrangement, and once established creates a contractual relationship. Harker v. McKissock, supra; 87 C.J.S. Trade Unions §43.

In this case the constitution of BCW provided, among other things, that “Should a local union dissolve, secede, or have its charter revoked all its money and property shall revert to the ownership of the International Union * * and that no local can dissolve “while seven members remain in good standing and desire to retain the charter.” BCW is not a party to this suit, and there is no person who is a party claiming to represent BCW. The parties plaintiff are certain persons, more than seven in number, claiming to be members of Local 218 BCW. There is no contention that the assets and property should “revert to the ownership” of BCW. Instead, the contention of plaintiffs necessarily is that Local 218 BCW is still in existence, and that those persons who “disaffiliated” thereby voluntarily withdrew from Local 218 BCW and abandoned their claim to any interest in or right to the assets and property of Local 218 BCW, or as stated by appellants in their brief, the “seceding members of a labor organization have no right or title to the property of such labor organization, particularly where the contract [constitution] specifically prohibits such members from acquiring title to such properties.”

Respondents admit that the constitution of BCW and the bylaws of Local 218 BCW constituted a contract between BCW and the members of Local 218 BCW, and also between the members of Local 218 BCW. They contend, and the trial court held, that an implied condition of the contract was the continued affiliation of BCW with AFL and later AFI^CIO, and that the “expulsion of BCW from AFL-CIO for corruption breached the contract and voided the terms and provisions thereof, and such contract was no longer binding upon the members of Local 218 BCW, and that thereafter [they] had the right to disaffiliate from BCW by any means they chose.”

Property rights in the union hierarchy became a judicial problem of some magnitude after 1949 when mass disaffiliation situations arose following the expulsion of the United Electrical, Radio and Machine Workers of America (hereafter referred to as (“UE”) from the CIO because of alleged communist infiltration of UE and because of its communist activities. See Clark v. Fitzgerald, 197 Misc. 355, 93 N.Y. S.2d 768; Duris v. Iozzi, supra; Local 1140, United Electrical, Radio and Machine Workers of America v. United Electrical, Radio and Machine Workers of America, 232 Minn. 217, 45 N.W.2d 408, 23 A.L.R.2d 1197; Fitzgerald v. Abramson, 89 F.Supp. 504; Bozeman v. Fitzmaurice, supra; Edwards v. Leopoldi, 20 N.J.Super. 43, 89 A.2d 264. The problem also arose in connection with the expulsion from the AFL of the International Longshoremen’s Association because it “permitted gangsters, racketeers and thugs to fasten themselves to the body of its organization, infecting it with corruption and destroying its integrity, its effectiveness and its trade-union character.” See Bradley v. O’Hare, 11 A.D.2d 15, 202 N.Y.S.2d 141. The International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America was ousted from the AFL and it later affiliated with the CIO, but Local 2 of that national union then disaffiliated and returned to the fold of the AFL with the resulting problems concerning property rights as shown in International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO v. Becherer, supra. The expulsion of BCW by the AFL-CIO because of internal corruption has also been a fruitful source of litigation in the courts. For example, see Crocker v. Weil, supra; Crawford v. Newman, 13 Misc.2d 198, 175 N.Y.S.2d 903; Olson v. Carbonara, 21 Ill.App.2d 69, 157 N. E.2d 273; Alvino v. Carraccio, 400 Pa. 477, 162 A.2d 358; and Olson v. Miller, 105 U.S.App.D.C. 55, 263 F.2d 738. Reported trial court rulings include the following: American Bakery and Confectionery Workers International Union AFL-CIO, Local 253 v. Russellburg (Ohio Ct. of Common Pleas), 44 L.R.R.M. 2055; and King v. American Bakery and Confectionery Workers International Union, AFL-CIO (Calif.Super.Ct.), 41 L.R.R.M. 2617.

In cases where there was no expulsion of the national union from a national federation because of some misconduct, or at least where that circumstance was not shown, the courts generally applied what is referred to as the “orthodox contract doctrine,” 45 Va.Law Rev. at p. 246, and when a local union disaffiliated from its national union the courts enforced strictly the provision in the constitution that the property and assets of the local union were forfeited to or reverted to the national union. For example, see Harker v. McKissock, 7 N.J. 323, 81 A.2d 480, and also the cases cited in §§ 3 and 10 of the annotation in 23 A.L.R.2d. Also, when there remained a “loyal minority” greater than the minimum number provided in the constitution, according to the terms of the constitution the property and assets were retained by that “loyal minority.” See the cases cited in § 11 of the above referred to annotation and the comment on p. 1213 of 23 A.L.R.2d. However, with the advent of the “expulsion” cases, additional factors were presented. There was a mass disaffiliation as distinguished from individual and isolated cases, the disaffiliation was the direct result of the expulsion of the national union from a mutually beneficial association with a national federation, and the cause of the expulsion and the disaffiliation was the gross misconduct of the national union. The courts have uniformly applied several theories “which are more consistent with the equities of the particular expulsion situation.” 45 Va.Law Rev. at pp. 247-248. In addition to the theory of “clean hands,” (see Crawford v. Newman, 175 N.Y.S.2d 903, the ruling of a New York trial court in Fitzgerald v. Riverside Labor Hall, Inc., 27 L.R.R.M. 2366, and the dictum statement in Morrison v. Majestic Laundry Sys., Inc., Sup., 103 N.Y.S.2d 791, 800), and the theory of “trust funds” (see International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, CIO v. Becherer, supra), the theory most widely applied when a local union has disaffiliated from a national union which has been expelled from a national federation because of communist activities, as in the case of the UE, or because of internal corruption, as in the case of BCW, is that the expulsion is deemed to constitute a breach of an implied and material cóndition of the contract between the international union and the local union. In other words, by its own wrongful conduct, the international union has made impossible of performance a material implied provision of the contract, namely, continued affiliation (for the mutual benefit of the international union and the affiliated locals) with a federation of national unions.

This theory of breach by the national union of an implied and material provision of the contract is set forth in 31 Am.Jur. Labor § 48 as follows: “The value to a local union of continued affiliation with a national union may be altered by a change in the status of the national union resulting from its withdrawal, voluntarily or otherwise, from a federation of unions. This factor has been considered in numerous cases where local unions have withdrawn. Where a local labor union has contracted with its parent, relying — either expressly or by implication — on the parent’s affiliation with one of the great trade associations, such affiliation is a condition to the affiliation of the local with the parent, and a breach of the condition relieves the local union from the provisions of the constitution, charter, and bylaws regarding its property rights. But abrogation of the contract between the local and the national union will not be implied in the absence of definite evidence that the original affiliation or its continuance was in reliance on the national union’s continued membership in the particular federation of unions.” This theory has sometimes been referred to as the doctrine of frustration when the national union has by its wrongful conduct brought about a condition whereby the underlying purpose and objective of the affiliation of the local union with the national union has been frustrated. See Alvino v. Carraccio, supra; Olson v. Carbonara, supra; and Duris v. Iozzi, supra. But when the affiliation of the national union with a federation of unions is terminated by expulsion for gross misconduct, whether referred to as the doctrine of frustration or as a breach of an implied but material condition of the contract, the underlying principle is the same, namely, that the local union is relieved from contractual provisions governing the disposition of local union property because the national union, by its gross misconduct, has frustrated the underlying purpose of the affiliation and thereby breached an implied condition of the contract of affiliation. In the factual situation we have in this case, with only minor differences of no consequence, and involving the disaffiliation of a local union from BCW following its expulsion from AFL-CIO because of internal corruption, courts have held that there was a breach by BCW of an implied and material condition of the contract between BCW and the local union, and that upon disaffiliation by the local the provisions of the constitution of BCW governing property rights were not binding on the disaffiliating local. See Crocker v. Weil, supra; Crawford v. Newman, supra; Olson v. Carbonara, supra; Alvino v. Carraccio, supra. In addition, the same ruling was made by trial courts in reported opinions in American Bakery and Confectionery Workers International Union AFL-CIO, Local 253 v. Russellburg, supra; King v. American Bakery and Confectionery Workers International Union AFL-CIO, supra. In other cases involving the same factual situation, except that a local union disaffiliated from the UE following its expulsion from the CIO because of communist activities, the courts have reached the same result. See Clark v. Fitzgerald, supra; Duris v. Iozzi, supra; Local 1140, United Electrical, Radio and Machine Workers of America v. United Electrical, Radio and Machine Workers of America, supra; and Bozeman v. Fitz-maurice, supra. In the last cited case the court held that the fact that more than seven (the UE constitution contained similar provisions to that of BCW) members voted against disaffiliation may have resulted in the charter from UE being retained for that minority, but the local union as an organization could disaffiliate, and that it was “not a case where members of a labor organization seceded from its [their?] Union. The entire Local acted and as a Local disaffiliated from U.E.” It was further held that the expulsion of UE from the CIO constituted a breach of a material condition of the contractual relationship, and “After this implied condition in the contract was destroyed the contract was broken and this put an end to the contract as far as the local’s obligations are concerned. This excuses the Local from further obligations, and performance. The obligation is not stronger or more enduring than the foundation upon which it rests. Local 707 after expulsion of U.E. had a right to disaffiliate from U.E. and the Local may retain its assets and take them with it to a new affiliation.”

In only one case, Roberts v. Ferguson, La.App., 131 So.2d 323, involving property rights of a local union which disaffiliated from BCW has the court refused to rule in favor of the local union, but the theory of a breach of an implied condition or frustration of purpose was expressly approved. The deficiency found in that case was that there was insufficient proof “that a majority of Local 369 BCW disaffiliated from BCW, and second, that the contractual relationship between Local 369 BCW and its national affiliate BCW was terminated by reason of the expulsion of BCW from AFL-CIO.” See also Edwards v. Leopoldi, 20 N.J.Super. 43, 89 A.2d 264, which pertained to a disaffiliating local union from UE. In the pending case there is no question about a majority of Local 218 approving the disaffiliation. It was the unanimous vote of those voting. Also, in the trial of the case respondents made convincing proof of facts and circumstances which leave no possible reasonable conclusion other than that the expulsion of BCW from the AFL-CIO was the reason for the disaffiliation, and that continued affiliation of BCW with a national labor federation was a material condition of the continued affiliation of Local 218 with BCW. The trial court found such an implied condition to exist and we agree with that finding. In Alvino v. Carraccio, supra, involving the disaffiliation of a local union from BCW, the court reviewed factual elements which were the same as those established by evidence in this case, and concluded that continued affiliation of BCW with the AFL-CIO was a material implied condition of continued affiliation of the local union with BCW. See also the discussions in Olson v. Carbonara, supra, and King v. American Bakery and Confectionery Workers International Union, AFL-CIO, supra.

We note one difference between the factual situation in this case and in most of the cases we have cited. BCW is not a party in fact or by representation. There is no attempt to have the property and assets of Local 218 revert to BCW. A “loyal minority” of Local 218 BCW is claiming the property in this case. As in the case of Bozeman v. Fitzmaurice, supra, this is not a situation where members “seceded” from Local 218 BCW. It is a situation where Local 218 as an association disaffiliated from BCW by a unanimous vote of the members voting. The “seceding” members, if any; were those who remained in the “loyal minority.” The essential question in this situation is whether there is any contract provisions binding on Local 218 which prohibited it from retaining its property and assets after it disaffiliated from BCW, and in view of the application of the theory of a breach by BCW of an implied but material condition of the contract of affiliation, the provisions of that contract governing the disposition of property and assets are not controlling. The “loyal minority” stand in no better position than BCW. In the absence of binding contract provisions providing otherwise, their rights are governed by the rule of the majority of the membership of their local union. Appellants present no contention that absent the application of the terms of the BCW constitution, Local 218 could not take with it and retain its property and assets.

One further contention of appellants deserves comment. They contend that “the law applicable to the enforcement of the contract * * * is governed by Federal substantive law under Section 301(a) of the Labor-Management Relations Act, as amended, and the Federal decisions interpreting that law.” In all the reported cases pertaining to the property rights of local unions upon disaffiliation from both the UE and BCW we find no such contention being previously made, and we do not find that the courts have stated that “federal law” only is applicable. We deem it unnecessary to rule in this case whether “federal law” only is applicable because in our opinion “federal law” is not inconsistent with the result we have reached. Appellants cite Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593; Local 33, International Hod Carriers Building and Common Laborers’ Union of America v. Mason Tenders District Council of Greater New York, 2 Cir., 291 F.2d 496; Burlesque Artists v. Variety Artists (U.S.Dist.Ct., N.Y.), 42 L.R.R.M. 2818; Low v. Harris, 7 Cir., 90 F.2d 783; and Local 1104 United Electrical, Radio & Machine Workers of America (UE) v. Wagner Electric Corp., D.C., 109 F.Supp. 675.

Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. § 185(a), provides as follows: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” In Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246, the United States Supreme Court, speaking through Mr. Justice White, stated that this section “has substantive content and that Congress has directed the courts to formulate and apply federal law to suits for violation of collective bargaining contracts.” Quoting then from Local 174, Teamsters, etc. v. Lucas Flour Co., supra, the case cited by appellants, the court said: “ ‘The possibility that individual contract terms might have different meanings under state and federal law would inevitably exert a disruptive influence upon both the negotiation and administration of collective agreements.’ ” However, neither in the Smith case nor in the Lucas Flour Co. case did the United States Supreme Court purport to “formulate” federal law applicable to the factual situation in this case. This is equally true as to the “formulation” of federal law by lower federal courts in the Mason' Tenders case and the Burlesque Artists case. In Low v. Harris, supra, decided in 1937, and with no reference whatever being made to the theory of breach of an implied material condition, and in which there was no disaffiliation of a local union brought about by the expulsion of a national union from a national federation because of gross misconduct, the court held that in the factual situation of that case money in the union treasury remained the property of the local union when it was not dissolved but a majority “voted to sever all relations with said union and to organize a local union and affiliate with the Progressive Miners of America * * No federal law contrary to the result we have reached was “formulated” by that decision. In the remaining case, the Wagner Electric case, there was a suit by a local union against an employer based on an alleged violation of a collective bargaining agreement for failure to remit to the union dues collected by the employer pursuant to an agreed “check-off” system. The local union was affiliated with UE and the employer inter-pleaded another local affiliated with a new national union formed after the UE had been expelled from the CIO. However, the court found that “in no case did a majority entitled to vote, that is ‘the majority of the members’, ratify the resolution” to disaffiliate from UE, and the “loyal members” continued as a local union and it was certified as a collective bargaining representative for certain employees by the National Labor Relations Board. The result of the case was that as between the local union affiliated with UE and the new local, the dues “checked-off” should be paid according to the assignments executed by the employees. The case did not involve any issue of breach of an implied material condition by the national union. By this case no “federal law” was “formulated” on the issue in this case.

The only federal case we have found in which the issue of this case was mentioned is Fitzgerald v. Abramson, 89 F.Supp. 504. That was a ruling on an application for a temporary injunction in a case where UE, following its expulsion from the CIO, sought to retain control of property of a local after a purported disaffiliation. The court said this: “The defendants suggest that by reason of the expulsion of UE from the CIO there has been a frustration of the underlying purposes of the contract (the constitution) between UE and its members and locals, with the result that Local 450 was relieved of responsibility to UE. Whether there has been frustration presents a sharply contested issue of fact which I am unable to resolve on affidavits.” This does not indicate that the “federal law” requires a result different from that we have reached, but it does indicate that the federal court recognized that frustration of the purposes of the contract could amount to a breach thereof which, if proved, could release the local union from the contractual limitations on its control of union property.

We conclude that the expulsion of BCW from the AFI^CIO because of internal corruption, an issue not disputed by appellants, constituted a breach by BCW of an implied but material provision of the contract of affiliation; that Local 218 as an association had a right to and did disaffiliate from BCW; that upon such disaffiliation the terms of the BCW constitution (contract) pertaining to the disposition of the property of local unions were not binding on Local 218 and its members, ánd Local 218 could, and by a unanimous vote of its members who voted (which constituted a substantial majority of the total membership) did take with it the property and assets previously accumulated by the local union for the benefit of its members.

The judgment is affirmed.

BARRETT, C., concurs.

PRITCHARD, C., not sitting..

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Doris DRYDEN and Lowell Dryden, Appellants, v. Thomas AITKEN, Respondent.
    No. 51635.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.

      Murphy & Roche, Byron A. Roche, St. Louis, for appellants.
    Leritz & Leritz, J. D. Leritz, J. L. Leritz, St. Louis, for defendant-respondent.
   JAMES W. BROADDUS, Special Commissioner.

This suit arose as a result of an automobile collision which occurred in the City of St. Louis, Missouri. The suit was brought in two counts, Count I being for damages in the amount of $25,000 for personal injuries alleged to have been sustained by Doris Dryden. In Count II Lowell Dryden sought damages for loss of companionship of his wife Doris, and also for damages to his automobile, totalling $10,000. Trial before a jury resulted in a verdict in favor of defendant on Count I, and a verdict in the amount of $250 for property damage on Count II. Judgment was rendered on said verdicts and plaintiffs have appealed.

The testimony discloses that on June 19, 1959, plaintiff Doris Dryden was a passenger in an automobile operated by her husband westwardly on Lindell Boulevard when said automobile stopped just east of Vandeventer Avenue in compliance with a traffic signal located at said intersection and was struck in the rear by defendant’s automobile and shoved forward six to eight feet. Lindell Boulevard immediately east of Vandeventer slopes “down hill” toward the west.

Defendant’s automobile, westbound, had come to a stop five to six feet in back of plaintiffs’ automobile and defendant “eased my foot up on the brake” and his automobile rolled down the incline into the back of plaintiffs’ car. Defendant’s automobile was not damaged. Mrs. Dryden testified that on December 24, 1955, she was a passenger in an automobile being driven by Robert Tyner; that said automobile, while traveling at about fifty miles per hour, was involved in a collision; that as a result of that collision she was injured; that she was taken to a hospital and suffered from the injuries for a period of two years; that she filed a suit and later made a disposition of the suit when she was paid the sum of $2,500; that she was treated by Dr. Cole of East St. Louis for the injuries. She further stated that she was represented by attorney Ralph Harris; that the suit was filed in Williamson County, Illinois; that it was tried and resulted in a hung jury.

A transcript of the record in the case of Dryden v. Tyner, No. 144-56 L, Circuit Court of Williamson County, Illinois, was marked Defendant’s Exhibit No. 1 and, over the plaintiffs’ objection, parts therefrom read to the jury were received in evidence.

Dr. Donald C. Weir was called as a witness by defendant and qualified as a radiologist. He brought with him X-ray films that he had made on March 11, 1965, at the request of defendant and also films taken on June 26, 1959, November 11, 1959, and February 16, 1960, made by plaintiffs’ treating doctor, Dr. Blair, and which had been made available to him by plaintiffs’ attorney. During the examination of Dr. Weir the following occurred: “Q. (BY Mr. Leritz) Doctor I am referring to Defendant’s Exhibit 1, a transcript of the record of the trial of the case of Doris Dryden versus Robert Tyner * * *

“Mr. Roche: Your Honor * * *

“Q. (By Mr. Leritz) On October 14, 1957, in which Dr. Bart Cole testified from certain X-rays that he had made on October 3, 1957. And his testimony was, referring to this X-ray:

‘This shows what we describe as a loss of normal cervical lordosis.’

“Would you say that the testimony of Dr. Cole, at that time, represents the condition you find in these films ?

“Mr. Roche: I am going to object. First of all, Counsel is giving his own interpretation of what may or may not have been said. There has been absolutely no proof as to what the exhibit, that he is reading from, is. I therefore, renew my other objection. I believe it is hearsay. I believe he is asking for this doctor to take the opinion of another doctor and superimpose his opinion on the opinion of someone else that none of us have had the opportunity to hear. It is premature * * *

“The Court: I will overrule the objection. I don’t believe the doctor was asked to base an opinion on the opinion of another doctor. He was only asked to testify as to whether this is the same condition that he found in X-rays.

“Mr. Leritz: Will you answer, Doctor ?

“A. Yes, as you stated there — would you read that back?

“Q. (By Mr. Leritz) ‘This shows what we describe as a loss of the normal cervical lordosis.’

“A. Yes. That is what we see in the films I just reviewed taken from ’59 to ’65, is a loss of the cervical lordosis.”

Plaintiffs’ sole contention is that the trial court erred in permitting defendant to read from the transcript in the case of Dryden v. Tyner, Defendant’s Exhibit 1, that part of the testimony of Dr. Cole which we have set out.

First, plaintiffs assert that no foundation was laid by defendant to prove that the transcript was accurate. The record discloses that when defendant’s counsel, Mr. Leritz, undertook to examine plaintiff Doris Dryden in connection with the transcript, Mr. Roche, plaintiffs’ counsel, stated:

“I have no objection to his examining the witness in connection with it, but when he refers to something as a transcript, I would like to have an opportunity to inspect and read it before it is used before the jury.”

After a short discussion between the court and counsel about the length of time it would take plaintiffs’ counsel to read the entire transcript, the court said: “I think it would be a good idea, to save a substantial amount of time, if Mr. Leritz would show you what he wants to read, so we can avoid reading the whole thing, Mr. Roche.”

“Mr. Leritz: Yes, I will be glad to Mr. Roche: Thank you.”

Thereupon defendant’s counsel undertook to interrogate Mrs. Dryden in connection with the testimony she gave at the trial of her case, Dryden v. Tyner, in respect to injuries she sustained on December 24, 1955, the parts of her body which were involved, all her complaints, the treatment she received, all as reflected by the transcript, Defendant’s Exhibit 1.

Under direct examination Mrs. Dryden stated that she was involved in an accident in 1955; that she received medical care and that she filed a lawsuit in Illinois. Under cross-examination she stated that she was represented in said cause by attorney Ralph Harris and the suit was filed in Williamson .County, Illinois; that it was tried and resulted in a hung jury. She further stated that she was treated by Dr. Cole of East St. Louis; that he made X rays of her and she remained under his care “until time of trial”; that he testified for her at the trial in Williamson County, Illinois, at which time she was present and heard his testimony and that she also testified in said cause.

Since plaintiffs did not question the accuracy or validity of the transcript, Defendant’s Exhibit 1, after it was examined by their attorney and Mrs. Dryden admitted the correctness of her testimony, as reflected by the transcript, plaintiffs waived any right they might have had to object to the propriety of the transcript. Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W. 2d 535, 539; Thomas v. Wade, Mo., 361 S.W.2d 671, 675.

Plaintiffs also assert that the testimony of Dr. Cole was inadmissible because there was no evidence that defendant exercised due diligence in ascertaining whether Dr. Cole was within the jurisdiction of the trial court at the time of the trial of this cause. When defendant interrogated Mrs. Dryden in respect to Dr. Cole’s testimony in the transcript as to whether she heard the testimony he gave in respect to X rays he had made of her, plaintiffs’ counsel objected on the ground that the testimony was hearsay. At no time did he object to the testimony on the ground that Dr. Cole was available within the jurisdiction of the trial court, nor was this contention raised in plaintiffs’ motion for a new trial. Since no objection was made by plaintiffs to Dr. Cole’s testimony on this ground and the point was not preserved in plaintiffs’ motion for a new trial, they are in no position to now complain. Gerald v. Caterers, Inc., Mo.App., 382 S.W.2d 740, 743; Lott v. Kjar, Mo., 378 S.W.2d 480, 485.

Furthermore, from the testimony of plaintiff Doris Dryden, it can reasonably be inferred that Dr. Cole‘was not within the jurisdiction of the trial court when this cause was tried. She stated that he was of East St. Louis and that the case in which he testified for her was tried in Williamson County, Illinois, and that the accident which resulted in injuries she suffered in 1955 occurred in Illinois. These facts raised an inference that Dr. Cole was not present within the jurisdiction of the trial court but that he lived and practiced his profes sion in Illinois. In any event, this was a matter within the discretion of the trial court. A similar situation existed involving the residence of a witness whose deposition was in evidence in the case of Myers v. Karchmer, Mo., 313 S.W.2d 697, 701, and this court said: “Whether the testimony was sufficient to show that the witness was a nonresident of Greene County rested largely within the discretion of the trial court.”

Plaintiffs also contend that the testimony of Dr. Cole, read from the transcript, was hearsay. The principal objection to hearsay testimony is the fact that the litigant does not have the opportunity to cross-examine the person to whom the hearsay statement is attributed. In the Dryden v. Tyner case, Dr. Cole testified on behalf of the plaintiff, Doris Dryden. He had treated her for injuries she suffered in 1955 and made X rays of her and he undertook to testify in respect to her injuries and complaints. Her attorney interrogated Dr. Cole with respect to those complaints and injuries. Dr. Cole was not an adverse witness and, since he testified in court, it is presumed that he was under oath. Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W.2d 740, 742, 142 A.L.R. 666. She should not now be permitted to disavow the testimony Dr. Cole gave when he was called as her witness on the ground that the testimony was hearsay.

The judgment should be affirmed. Your Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion by JAMES W. BROADDUS, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: MONTGOMERY, Judge.

text:
    Rodney FAISON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 25, 1966.
    As Modified on Denial of Rehearing Sept. 30, 1966.
    Daniel T. Taylor, III, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

Rodney Faison was convicted of conspiracy to commit a felony. He was sentenced to five years’ confinement. He contends on appeal that the court erred in failing to direct a verdict for appellant because of: (1) a failure to prove venue; (2) a failure to establish a corpus delicti; and (3) a failure to corroborate the accomplice’s testimony. Other suggestions of error are made but in the absence of supporting argument or authority they are considered merit-less.

In the indictment appellant was charged jointly with Rudolph Hamilton and Sylvester Coleman. Appellant was tried separately. Hamilton was convicted of willful murder committed in the course of a robbery. Hamilton v. Commonwealth, Ky., 401 S.W.2d 80 (decided March 25, 1966).

The body of the indictment is as follows:

“The Grand Jury charges:
On or about the 28th day of Dec., 1963, in Meade County, Kentucky, the above named defendants committed Conspiring to commit a felony by entering into a conspiracy to commit the crime of robbing the Basham Tavern in Meade County, Kentucky, against the peace and dignity of the Commonwealth of Kentucky.”

Appellant argues that inasmuch as the indictment recited “in Meade County” and appellant was not in Meade County on that day, then his motion for a directed verdict should have been sustained because there was a failure to prove venue. The proof shows that the alleged conspiracy was formed in Hardin County, an adjoining county to Meade County.

On December 28, 1963, appellant, Hamilton, . and Coleman were members of the armed forces stationed at Fort Knox. During the afternoon of that day the.three men went to Elizabethtown in Hardin County in appellant’s car. During the course of the afternoon and early evening they had several drinks. According to the testimony of Coleman, who implicated appellant, the plans for robbing Basham’s Tavern, a liquor store located in Meade County about three miles from Fort Knox, were formulated on the return trip from Elizabethtown to Fort Knox. Coleman, in referring to appellant, testified:

“Oh yes it was understood between the three of us that his car would be used and that he was a part of it along with the rest of us. It was understood.”

Normally the venue of a prosecution is in the county in which the offense is committed. KRS 452.510. However, KRS 452.570 provides: “Where a person in one county aids, abets or procures the commission of an offense in another county he may be tried for the offense in either county.”

There is no merit in appellant’s argument that there was a failure to prove venue. Under KRS 452.570 appellant, as the conspirator who aided, abetted, or procured the commission of the robbery by Hamilton, could have been tried either in Hardin County where the conspiracy was formed or in Meade County where the object of the conspiracy was accomplished. This was in accord with the plain language of the statute.

Further, under the proof, the robbery, a felony, was committed in Meade County. A conspiracy to commit a felony, when executed, is merged in the felony. Commonwealth v. Blackburn, 62 Ky. (1 Duv.) 4; Commonwealth v. Barnett, 196 Ky. 731, 245 S.W. 874. Under the merger theory Meade County was the proper venue for the offense. In Martin v. Commonwealth, 193 Ky. 835, 237 S.W. 1066, it was held that where various persons were charged with conspiring in Bell County, Kentucky, to commit murder, if the killing occurred in Tennessee, the venue of the crime would be in Tennessee where the killing occurred although the conspiracy was formed in Kentucky. See Roberson’s New Kentucky Criminal Law and Procedure, 2d Edition, Section 225, page 322. This case arose before enactment of KRS 452.570.

Lastly, RCr 8.26 provides for a change of venue if it appears from the indictment, information, or evidence that the offense was committed in a county other than that in which the trial is being held. KRS 452.650 provides:

“The venue of the prosecution may be waived by the defendant and the failure to make a timely motion to transfer the prosecution to the proper county shall be deemed a waiver of the venue of the prosecution.”

The claimed lack of venue in Meade County should have been discovered and should have been raised by a timely motion prior to the trial. The failure to do so is a waiver of the objection. Taylor v. Commonwealth, Ky., 384 S.W.2d 333. It, therefore, is concluded that there was proper venue in Meade County under KRS 452.570 and under the merger doctrine, and that appellant waived any right to question the venue of the prosecution by failure to file a timely motion. The authorities submitted by appellant in support of his contention are not in point since they do not deal with a conspiracy.

Appellant contends that there was a failure to prove a corpus delicti. In Witt v. Commonwealth, 305 Ky. 31, 202 S.W.2d 612, it was said:

“Corpus delicti means the fact that the particular crime alleged has been actually committed by some one, and is made up of two elements: first, the existence of a certain act or result forming the basis of the criminal charge; and, second, the existence of criminal agency as the cause of this act or result. The corpus de-licti may be established by circumstantial evidence as any other fact in the case.”

The first requisite of corpus delicti, the criminal act, was established by the testimony of Earl Shelman, who said that he was present in the liquor store when Hamilton “stuck a gun in my throat and demanded the money.” He also said, “I gave him the money and he left the store.” This testimony was sufficient to establish the basis of the criminal charge.

“The- existence of criminal agency as the cause of this act,” the second requisite of corpus delicti, will be discussed in connection with appellant’s contention that the testimony of the accomplice, Coleman, was not sufficiently corroborated. In addition to giving the details of the robbery, Shel-man identified Hamilton, one of the conspirators, as the holdup man. LeRoy F. Lussier, a military investigator to whom Coleman and Hamilton made statements, testified that Coleman said that it was understood by appellant, Coleman, and Hamilton that appellant’s car would be used in the robbery and that he, Coleman, drove the car away from the tavern after the robbery to Pinwheel Loop where the car was wrecked. Lussier also testified that Hamilton told him that appellant helped to plan the robbery. Paul Perrine, chief of police of Muldraugh, testified that “somewhere between 2:45 and 3:30” on Sunday morning after the robbery at 10 p. m. on Saturday he heard appellant tell Lussier that he had loaned his car to Coleman and Hamilton. Lussier testified concerning the conversation as follows:

“He (appellant) reported to the Military Police desk, this was shortly after 2 o’clock in the morning of the 29th of December, that he had loaned his car to Hamilton and Coleman and that the car was now wrecked on Pinwheel Loop, and he asked for assistance in getting the car away from that area.”

Perrine also testified that appellant had $190 in his pocket when arrested.

Coleman testified that as he, Hamilton, and appellant entered Fort Knox on their return from Elizabethtown, “Rodney (appellant) wanted to stop at the NCO Club to get some cigarettes. He was supposed to go in and get him some cigarettes and return, and then we were supposed to continue to carry out the crime. Rodney took a little longer than usual, so Hamilton suggested that we just take off without Rodney.” Hamilton drove the car to a point about 500 yards from Basham’s Tavern. Coleman waited in the car while Hamilton went to the tavern. A shot was fired, Coleman said, and Hamilton came back to the car, running, and he, Coleman, drove the car away and wrecked it at Pinwheel Loop, about 1000 yards from the tavern.

In considering the correctness of the denial of appellant’s motion for a directed verdict, only the evidence for the prosecution need be scrutinized here. The test as to whether Coleman’s testimony is corroborated “is met if the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense.” It “is not sufficient if the other evidence merely shows that the offense was committed and the circumstances thereof.” Barker v. Commonwealth, Ky., 385 S.W.2d 671.

The Barker case is similar since Barker’s car was found a short distance from the scene of the offense. There, Barker claimed that his car had been stolen. Here, appellant claimed that he had loaned his car. There is no question that appellant’s car was used in the robbery, and, according to the testimony of Lussier and Perrine, appellant knew at 2 or 3 a. m. the next morning that his car had been wrecked and its location, Pinwheel Loop about 1000 yards from Basham’s Tavern. It is not shown how he obtained the information concerning the wrecking of his car. Further, the unexplained presence of $190 in appellant’s pocket immediately after the robbery is a corroborating factor.

In determining the sufficiency of the corroborating evidence, the use and presence of appellant’s car is evidence tending to connect appellant with the commission of the offense. His knowledge of its being wrecked and the presence of $190 in his pocket, unexplained, when arrested are further corroborating factors. These factors go beyond a. mere showing that the offense was committed and the circumstances thereof. These factors are also outside the testimony of the accomplice. Such testimony fully meets the test tending to connect appellant with the commission of the offense. The requirement of the rule is met if the corroborative evidence is of such quality that a reasonable and unprejudiced mind could conclude that it tends to establish some fact that links the accused with the principal fact of the commission of the/ offense. Harris v. Commonwealth, Ky., 285 S.W.2d 489; Flora v. Commonwealth, Ky., 387 S.W.2d 15.

Appellant’s testimony, by way of explanation of these factors, raises a factual issue for the jury, but it does not in any way lessen the sufficiency of the corroborating testimony to sustain the correctness of the ruling on the motion for a directed verdict. The corroborating evidence when coupled with the remainder of the testimony for the prosecution fully establishes the second element of the corpus delicti, “the existence of the criminal agency as the cause” of the criminal act committed. The trial court correctly so held.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    Gladys A. JUETT, Administratrix of Estate of C. D. Juett, Deceased, et al., Appellants, v. Louise CALHOUN et al., Appellees.
    Court of Appeals of Kentucky.
    May 6, 1966.
    As Modified on Denial of Rehearing Sept. 16, 1966.

      Charles Landrum, Jr., Denney, Landrum, White & Patterson, Lexington, R. Russell Grant, Winchester, for appellants.
    James Steven Hogg, Jackson, S. Russell Smith, Louisville, for appellees.
   DAVIS, Commissioner.

A jury awarded appellees $15,000 as damages to two residence buildings allegedly caused by blasting done by Juett Construction Company (appellants) incident to construction of a public highway in Breath-itt County. Appellants seek to upset the ensuing judgment and advance numerous assignments of error which we shall discuss in the order presented without a preliminary statement of them.

The first charged error relates to an alleged irregularity in the selection of the jury panel for the term at which the case was tried. The record is quite meager on this point. It is shown that on August 25-, 1964, when the case came on for trial, appellants filed a motion, verified by one of counsel for appellants, asserting that at the preceding term of the court the presiding judge of the court removed each name of the prospective panel from the drum and “called the name out to the Clerk, which Clerk wrote the names down on a list; that the Circuit Judge did not himself make up the jury list.” The motion sought “to set aside the jury panel” for this alleged violation of KRS 29.135. There was no response or counter-affidavit to the verified motion, but an order merely recites that the motion came on to be heard, “ * * * and the Court being advised it is ordered and adjudged that said motion be * * * overruled * * *.” As noted in Price v. Commonwealth, Ky., 366 S.W.2d 725, 726:

“While our opinions achieve unanimity in condemning even the slightest irregularity in the selection of a jury, judgments have not always been reversed because of the deviations.”

Under an earlier, but similar statute, this court declined to reverse in a situation almost identical with the one at bar. See Central Kentucky Asylum for Insane v. Hauns, 50 S.W. 978, 21 Ky.Law Rep. 22. In that case the court stressed the fact that no showing had been made that the deputy clerk had divulged the information concerning the names of the jurors. The statute’s proviso for drawing the names in open court by the presiding judge is calculated to dispel any aura of “star chamber” procedure. The salutary purpose of the law is to assure that jurors are selected honestly, impartially and without even a suspicion of corruption. In the state of this record we are not advised whether the “calling out” of the names by the judge was audible to others in open court. We will not indulge the presumption that the information was “leaked.” We condemn this procedure, as it was condemned in Kitchen v. Commonwealth, 275 Ky. 564, 122 S.W.2d 121, but here as there, we do not reverse on that point. Cf. Com., Dept. of Highways v. Garland, Ky., 394 S.W.2d 450, 452, wherein this court reiterated its position that the selection of jurors must be conducted in such manner as to be above suspicion.

The next charge of error relates to the court’s permitting the reading at trial of the deposition of a witness. CR 26.04 prescribes the conditions for use of depositions upon trials. Among other things, CR 26.04(3) provides that the deposition of a witness may be used if the court finds that the witness is at a greater distance than 100 miles from the place where the court sits in which the action is pending. The deposition had been taken shortly before the trial, upon proper notice. The witness then was working at Bardstown, more than 100 miles from Jackson, the situs of the Breathitt Circuit Court. We conclude that it was proper to permit the reading of the deposition in the absence of some showing that the witness was available. Phelps Roofing Company v. Johnson, Ky., 368 S.W.2d 320, is reflective of this court’s attitude that a reasonable interpretation is to be placed upon the rule. We think the trial court acted reasonably and properly in this respect.

Appellants contend that the court committed error in denying their motion for a more definite statement. CR 12.05. The motion was made about eleven months after appellants had taken the depositions of the appellees upon discovery. One of the appellees testified upon that deposition that the blasting complained of occurred in the “latter part of May or first part of June” in 1960. The purpose of the motion was to require appellees to fix with particularity the date or dates of the blasting. Appellants’ brief presents their contention thus:

“Without knowing the specific date, or even the month, during which the alleged damage took place, the appellant was unable to ascertain from its records the exact amount of explosives that were used on those dates or how the explosives were placed or set off, so as to prepare a reasonable' and suitable defense.”

Appellants already knew that the pertinent period was narrowed to the “latter part of May or first part of June.” Moreover, one of the appellants testified that he had no idea where any blasting records of the company could be located. In these circumstances we think there was no prejudice to appellants, particularly since they did present evidence as to the manner of the blasting. It would have been better practice to have sustained the motion for a more definite statement in the absence of a showing that appellees, for acceptable reason, were unable to furnish a more definite statement.

In what is denominated as the fourth assignment of error the appellants enumerate what they describe as “numerous and flagrant improper remarks by opposing counsel and remarks by the court.” In this same residuum type “point” we find three other charges of trial errors. We point out that it is better practice and assists in more orderly disposition if each point of claimed error is catalogued and discussed in a separately enumerated portion of the brief. RCA 1.210.

We turn first to the alleged improper remarks by counsel. In the opening statement counsel for appellees said, in part, “But, at the same time, I want you to be fair to the plaintiffs who built their new house down there. Who begged, cried and plead with the construction workers to reduce the size of the charges and spare their house. But they just ignored them and negligently and wilfully set off these explosions.” At this point counsel for appellants objected, and the objection was overruled. There was no request for any admonition or other curative action from the trial judge.

Complaint is made also about some of the remarks in the closing argument of counsel for appellees — and indeed there is complaint about a comment made by counsel and the court’s reply to it during the trial. It would unduly lengthen this opinion to undertake a detailed statement and analysis of each of these occurrences. It is enough to observe that for the most part none of them was objected to, and it is our view that none of them separately, nor all of them in the aggregate, could be regarded as prejudicial. The glowing sparks which shower from the anvil as the smith strikes the heated metal are colorful — perhaps awesome to the uninitiated — but they are short-lived and of little significance. In like manner, the sparks which are created when justice is being hammered out upon the anvil of a jury trial, in the form of barbs and gibes between counsel, usually last no longer and have no more effect than the actual sparks from a real anvil. There was nothing in the remarks of counsel — nor in the judge’s comment — which could have made any appreciable difference in the trial of the case. We find no merit in these points.

At one point in the cross-examination of appellant Gene Juett, he was asked to relate what Mrs. Calhoun (appellee) had told him, and whether she was “complaining.” In response to the question as to whether she was “complaining” Juett replied :

“She was complaining about shaking the house and I told her I would report it to the insurance company and I did.”

Then counsél for appellants moved to set aside the swearing of the jury and for a continuance, but the motion was denied; no further action by the court was requested. Reliance is had upon Triplett v. Napier, Ky., 286 S.W.2d 87, on the theory that it was the persistent and intended purpose of counsel for appellees to elicit the insurance coverage from the witness. The record does not warrant the argument. Juett made the answer voluntarily and without being plied with questions looking toward such an answer. The answer was not responsive to the question. Appellants may not voluntarily interject the matter of insurance coverage and then complain that they have been prejudiced by it.

We agree that error was committed in the matter of conducting the jury to and from a view of the premises to inspect the claimed damages. The controlling statute is KRS 29.301 which directs the trial court to have the jury viewing real property “ * * * conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent no person, other than the person so appointed, shall speak to them on any subject connected with the trial.” In this case the court placed the jury in charge of a sheriff, but permitted one lawyer and one litigant from each side to go along. The transportation of the jury to and from the scene was accomplished by means of three or four cars. Obviously the sheriff could be in one car only, and this alone would present no problem; however, when portions of the jury are permitted to travel to and from the scene in a car, without an officer, but with a lawyer or litigant, a different problem is presented. Once again we are confronted with the “appearance of evil” principle. Great care must be taken to assure the litigants — and the public generally — that jury trials are conducted fairly and free from opportunities for contamination. We do not suggest that anything improper was said or done by any lawyer or litigant — but the truth is — if there had been, it would be substantially impossible to prove. Compare Commonwealth, Dept. of Highways v. Garland, Ky., 394 S.W.2d 450. It is our view that the circumstances at bar distinguished this case from Henderson & Corydon Gravel-Road Co. v. Cosby, 103 Ky. 182, 44 S.W. 639; Nash v. Searcy, 256 Ky. 234, 75 S.W.2d 1052; Louisville & Jefferson County Metropolitan Sewer District v. Kirk, Ky., 390 S.W.2d 182; Sims Motor Transportation Lines, Inc., v. Foster, Ky., 293 S.W.2d 226; Commonwealth, Dept. of Highways v. Clarke, Ky., 340 S.W.2d 442; Commonwealth, Dept. of Highways v. Conley, Ky., 386 S.W.2d 750. In these cases the “appearance of evil” as a denigrating impact upon the jury system did not reach the degree of its presence here.

Coupled with this improper procedure in protecting the integrity of the jury during the view is another claim of error which has merit. Counsel for appellants called to the court’s attention that certain cracks and breaks in the walls of one of the buildings had been prominently identified by chalk markings at the time the jury viewed the premises. That chalk marks were there was admitted by counsel for appellees, but it was asserted that appellants’ counsel had known about it in advance. However, appellants’ counsel denied such knowledge, and there was no formal or verified statement that he did possess the advance knowledge. The cited statute directs that no person shall “speak” to the jury about any point in litigation. While drawing a chalk line may not be to “speak,” we think it is clear that the chalk markings themselves did “speak” in the sense that they conveyed a specific message to the jury in connection with a sensitive and vital portion of the lawsuit. The jury could well have supposed, in the absence of some explanation about the chalk marks, that the marks were sanctioned by the court and admitted or approved by appellants. In our view this was equivalent to permitting one of the appellees to point out the matters of which they complained. Cf. Barnett v. Commonwealth, Ky., 403 S.W.2d 40, 45. It is significant that there was material contrariety in evidence as to the nature and extent of the cracks in the building. The chalk marks may well have drawn the attention of the jury to matters not otherwise discernible. This circumstance distinguishes the present case from Turner v. Shropshire, 285 Ky. 256, 147 S.W.2d 388; Davidson v. Moore, Ky., 340 S.W.2d 227, and Martin v. Tipton, Ky., 261 S.W.2d 809.

Appellants contend that they were entitled to a directed verdict, but we are not so persuaded. Although the appellants presented testimony to the effect that the blasting charges were performed in the manner usual and customary in the circumstances, this alone does not absolve appellants from liability. Appellees presented evidence that the force of the blasts shook the residence buildings in a substantial manner. See Lynn Mining Co. v. Kelly, Ky., 394 S.W.2d 755, in which this court expressly renounced the “negligence” theory of liability in blasting cases by pointed reference to Marlowe Construction Co. v. Jacobs, Ky., 302 S.W.2d 612. River Queen Coal Co. Inc., v. Mencer, Ky., 379 S.W.2d 461, and Security Fire & Indemnity Co. v. Hughes, Ky., 383 S.W.2d 113, furnish ample authority for the submission of the instant case to the jury on the basic question of appellants’ liability.

Appellants complain that the measure of damages was improperly submitted. It was, but the appellants did not preserve the error for review. See River Queen Coal Company, Inc., v. Mencer, Ky., 379 S.W.2d 461, in which this court noted that it would have been error to give the measure of damages based on difference in market value, if the jury believed the building could not be repaired, since there was no evidence addressed to that point. The same may be said of this case.

Since we are reversing this case for another trial, we reserve the questions whether the evidence for appellees possessed sufficient probative value to support the verdict and whether the verdict was excessive.

The judgment is reversed with directions to grant appellants a new trial and for further proceedings consistent with the opinion.


author: CLAY, Commissioner.

text:
    KNOX COUNTY BOARD OF EDUCATION et al., Appellants, v. Nancy WILLIS, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1966.
    Rehearing Denied Sept. 30, 1966.

      H. M. Tye, Barbourville, for appellants.
    Don B. Mills, Barbourville, John B. Breckinridge, Lexington, for appellee.
   CLAY, Commissioner.

Appellant, Knox County Board of Education, terminated appellee’s teaching contract after a hearing upon charges brought under KRS 161.790. On appeal to the circuit court the action of the Board was reversed, from which judgment the Board appeals to this court.

The charges against appellee were for “inefficiency, incompetency and neglect of duty”. The notice of charges with which appellee was served made specific reference to and included a copy of a “supervisor’s report”. This report criticized appellee’s conduct of classes, her lack of control and discipline over her students, and the destruction of classroom furniture. At the hearing substantial evidence was introduced concerning the inadequacy of records kept by appellee, although this deficiency did not appear in the charges. The Board found that appellee (1) failed and refused to keep proper order in her classes; (2) allowed the children to damage and destroy furniture and to use improper language, and failed to take appropriate corrective and disciplinary measures; and (3) failed to keep proper records. On the basis of these findings, the Board terminated her contract.

The circuit court on appeal found these proceedings arbitrary in almost every respect.

The first ground of alleged arbitrariness was the failure of the Board to furnish appellee with rules and regulations governing procedure in the conduct of the hearing. Apparently the Board did not have such rules and regulations, as the trial court found. Our first question is whether, as appellee insists, the Board is without power to conduct, or acts arbitrarily in conducting, a hearing such as this without written rules of procedure.

We find nothing in the statutes which requires a board of education to adopt formal procedural rules for the conduct of a hearing. While KRS 160.290(2) provides that each board “shall make and adopt * * * rules, regulations and by-laws” for the regulation and management of schools and the transaction of its business, we must construe this language sensibly to require such rules and regulations as are necessary and proper. Otherwise a school board could not legally perform any act without a pre-established written rule specifically pertaining to it. If we adopt appellee’s theory, it would require each board to draft a comprehensive code of procedure for hearings on the termination of teachers’ contracts, and if such code failed to cover a single phase of procedure sought to be invoked, the board could not proceed. We simply cannot construe this statute so unrealistically. The average school board would certainly lack the competency to draft such a code.

We believe that KRS 161.790(2), (3) adequately outlines the procedure required for such a hearing, although a board could adopt consistent supplementary rules. As pointed out in Board of Education v. Chattin, Ky., 376 S.W.2d 693, 697, a proper hearing of this nature simply requires “orderly procedure” and “fundamental fairness” and not “the esoteric formalities of a medieval jousting match”. Within the scope of “fundamental fairness” we must recognize the necessity for procedural flexibility, particularly since these proceedings ordinarily must be conducted by laymen. As suggested in that case, under proper circumstances resort may be had to our Rules of Civil Procedure.

Appellee’s plea for the requirement of technical rules of procedure is really an academic one. She makes no claim that the hearing was not a fair one, that she was denied any right to be fully heard, or that she was prejudiced by the manner in which the hearing was conducted. We find nothing illegal or arbitrary in the conduct of this hearing without written rules of procedure.

The trial court correctly found that the Board acted arbitrarily in sustaining the charges against appellee for failure to keep proper records. She was given no fair notice of this charge, as required by KRS 161.790 (2). However, the Board sustained two other charges against her. If she was given adequate notice of these other charges and there was substantial evidence to support them, the Board’s action may be upheld even though the charge of failing to keep records was not properly prosecuted. Hoskins v. Keen, Ky., 350 S.W.2d 467; Board of Education v. Chattin, Ky., 376 S.W.2d 693.

The trial court found the Board acted arbitrarily in sustaining the charges against appellee which involved the failure to keep proper order in her classroom and the failure to take appropriate corrective and disciplinary measures against students who were guilty of flagrant misconduct. The basis of this determination was that the charges against appellee were not sufficiently specific, and the evidence did not support the findings.

The charges against appellee were for “inefficiency, incompetency and neglect of duty”. We agree that these charges, appearing in the “Notice of Termination of Contract”, were not sufficiently specific under KRS 161.790(2). However, the notice incorporates a “supervisor’s report” wherein certain details are set forth. It is apparently appellee’s contention that the details must appear in the formal charges and that an interoffice communication does not have sufficient formal dignity to constitute adequate charges. It is also contended by appellee, and the trial court found, that the “supervisor’s report” was not sufficiently detailed.

It is our opinion that the formal charges against appellee, coupled with the facts stated in the “supervisor’s report”, gave appellee fair notice that the charges of inefficiency, incompetency and neglect were based upon the manner in which she conducted her classes, with particular emphasis upon her failure to maintain any sort of discipline. We cannot go along with appellee’s argument that the “supervisor’s report” cannot be considered as part and parcel of the charges. This report was incorporated in the formal notice just as an exhibit to a pleading. The informality of the report has no bearing on the adequacy of the charges since we are seeking fair notice to the teacher.

We are also disinclined to agree with the trial court that the “supervisor’s report” did not contain sufficient detail. We are convinced that it did give appellee fair notice that the charges were based upon the method of conducting her classes, which resulted in the specified abnormal conditions.

There was ample evidence of intolerable conduct on the part of students in her classroom, and there was ample evidence of a neglect upon her part in controlling her classes and students. Such being the case, we cannot find that the Board acted arbitrarily in upholding these grounds as justification for terminating appellee’s contract. It may be noted in passing that there is no claim that this proceeding was politically or otherwise motivated except in the interest of efficient school administration.

One other question arises upon which it is necessary to comment. Subsequent to the hearing by the Board, we decided in Board of Education v. Chattin, Ky., 376 S.W.2d 693, that on an appeal to the circuit court from a school board ruling the hearing could not be “de novo”, as apparently contemplated by KRS 161.-790(5), and that no new evidence could be introduced in the circuit court. The trial judge found that appellee had been placed at “an unfair disadvantage” by reason of this ruling because she had not introduced all of her evidence at the hearing before the Board. We agree that appellee’s rights may have been adversely affected by this decision provided she would have been able to introduce evidence of substance which reasonably could have resulted in a reversal of the Board’s finding. However, we find that at the hearing before the Board appellee and two other witnesses testified on her behalf, and she was given unlimited opportunity to meet or rebut the charges against her. She fails to point out what additional evidence she desired to introduce which would tend to disprove the charges against her. The matter of classroom conduct was fully heard. Under these circumstances we are not inclined to say that the change in the law resulted in prejudice.

The judgment is reversed, with directions to enter a judgment sustaining the action of the Knox County Board of Education.

      . By virtue of a 1964 amendment, these are now subsections (3) and (4).

      . By virtue of a 1964 amendment, this is now subsection (3).

      . By virtue of a 1964 amendment, this is now subsection (3).

      . By virtue of a 1964 amendment, this is now subsection (6) .


author: PALMORE, Judge.

text:
    Parker HEMPHILL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied Sept. 30, 1966.
    C. B. Upton, Williamsburg, for appellant.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Carlos B. Pope, Commonwealth’s Atty., Barbourville, for appellee.
   PALMORE, Judge.

Parker Hemphill appeals from a judgment of the Knox Circuit Court entered pursuant to a jury verdict finding him guilty of voluntary manslaughter and fixing his punishment at 21 years’ imprisonment. KRS 435.020. This is the second appeal in the same case, a previous conviction having been reversed in Hemphill v. Commonwealth, Ky., 379 S.W.2d 223 (1964). The indictment was for wilful murder.

All of the grounds advanced in support of the instant appeal concern the formation of the jury, which was summoned from Laurel County following an unsuccessful effort to empanel a jury from Knox County. Appellant alleges prejudicial errors in these respects:

1. The trial court did not make “a fair effort in good faith * * * to obtain a jury free of bias” in Knox County before securing jurors from the adjoining county. Cf. KRS 29.262; RCr 9.33.

2. Prospective jurors from Knox County were excused upon admitting that they had formed opinions about the case, but without being asked whether they could lay such opinions aside.

3. The sheriff was directed to summon jurors from the panels that had served at the preceding terms of the Laurel Circuit Court, whereas the trial judge, who was also judge of the Laurel Circuit Court and a resident of Laurel County, could have drawn the names from the jury drum.

4. Appellant’s counsel was not permitted to question prospective jurors with respect to their willingness to inflict capital punishment.

This case had been tried twice before, the first effort having resulted in a mistrial and the second in a reversal. Unquestionably it had received wide publicity in Knox County. Nearly every prospective juror drawn from that county disclosed on voir dire that he had heard of the case, and most of them had formed or expressed opinions. During the early stages of preliminary interrogation conducted from the bench, several veniremen who acknowledged having opinions were asked whether they could disregard their opinions and render a fair and impartial trial, and almost uniformly they replied that they could not. The trial judge thereupon determined, over objection by defense counsel, that all persons having opinions on the case would be disqualified without being further asked whether they could nevertheless fairly and impartially try the case.

When the original panel of 24 was exhausted only six jurors had been tentatively seated. The court then drew from the wheel the names of 75 more persons, 44 of whom appeared and were available for service the next morning. 18 of these were disqualified before another six jurors could be tentatively seated. The Commonwealth’s Attorney promptly asked whether any of the 12 had conscientious scruples against returning the death sentence, and 11 said they did. This question had not been asked and the Commonwealth had not sought the death penalty at either of the previous trials. Of the next 20 jurors called, all but four were excused by reason of relationship or preconceived opinion. Thus it appears that of 68 persons called from Knox County only five remained, four of whom had not yet been questioned on the death penalty. The panel being again exhausted, the trial court determined that it would not be practicable to obtain an impartial jury in Knox County and directed the sheriff to summon all of the jurors who had served at the last term of the Laurel Circuit Court. Defense counsel duly objected.

On the next day 47 prospective jurors from Laurel County reported for service, and after the first 12 were tentatively seated the Commonwealth’s Attorney questioned them on voir dire but failed to ask whether they had any scruples against the death penalty. Defense counsel thereupon renewed his objections and moved that the panel be discharged and a renewed effort be made to obtain a jury from Knox County. However, the Commonwealth’s Attorney claimed his omission to interrogate the prospective jurors on the death penalty had been an oversight, and he was permitted to resume the voir dire for that purpose. As a result, eight were disqualified irnmediately, and at the end of the day the panel was exhausted without the completion of a jury, whereupon the court directed the sheriff to summon more jurors from the list of those who had served at the next to last term of the Laurel Circuit Court.

Formation of the jury was completed on the following day. On this last day the Commonwealth abandoned asking the prospective jurors whether they had any scruples against giving the death penalty, and defense counsel sought to take up where the Commonwealth left off in this respect. Being of the opinion, however, that this could have no purpose except to defeat the formation of a jury at all, the court would not permit it.

Having thus summarized the formation of the jury, we return to the arguments.

The basis for the contention that the trial court did not make a fair effort to obtain a jury in Knox County is that the Commonwealth’s Attorney injected the capital punishment question in bad faith and for the sole purpose of disqualifying Knox County jurors. On the record, the Commonwealth’s Attorney controverted this charge by stating that it had been his intention to demand the death penalty until after the two regular panels from Knox County and one special panel from Laurel County were exhausted, at which time he decided to abandon the effort.

It goes without saying that the Commonwealth has a right to seek the death penalty in a murder case and to qualify a jury accordingly. How can a court be expected to determine whether a Commonwealth’s Attorney is acting in good faith when he chooses that course? We think the answer is and must be that in the absence of an admission or clear proof to the contrary, when he acts within his rights as attorney for the Commonwealth the nature of his office commands a presumption of propriety. Hence we are unable to say in this case that there was any error or violation of the appellant’s rights in the Commonwealth’s disqualification of prospective jurors through the means of interrogating them on the question of capital punishment.

Before adoption of the Rules of Criminal Procedure it was provided by Criminal Code § 209 that an opinion based on rumor or newspaper statements would not disqualify a prospective juror if he swore that he could fairly and impartially render a verdict in accordance with the law and evidence. That section and the other provisions of the Criminal Code dealing with challenges for cause have been superseded by RCr 9.36, in which the grounds for a challenge for cause are no longer specified in particular but are embraced in one broad category, as follows: “When there is reasonable ground to believe that a juror cannot render a fair and impartial verdict on the evidence, he shall be excused as disqualified to serve.” RCr 9.36(1).

We are not cited to any instance under the Criminal Code in which the propriety of disqualifying a prospective juror under circumstances similar to those in this case was challenged. The only possible prejudice that could result is, of course, the very thing that happened here, which is that the case eventually had to be tried by jurors from another county. But the right of each side to an impartial jury is of far greater importance than the right of either to a trial in the precise county in which the crime is alleged to have taken place. Without deciding whether, under different circumstances, a trial court would abuse its discretion by dismissing prospective jurors on the basis of preconceived opinions without seeking to find out if they could lay such opinions aside, we have no difficulty in concluding that in the circumstances of this case the trial court acted reasonably and within its proper discretion.

The contention that the Laurel County jurors were selected improperly rests on the premise that since the circuit judge who conducted the trial resided in Laurel County he was not absent from that county, even though he was holding court in Knox County. KRS 29.262, which is reprinted in the Rules of Criminal Procedure as RCr 9.33, provides that if the circuit judge of the adjoining county is present in that county at the time, the names of the jurors shall be drawn from the jury drum. Otherwise, the sheriff is to procure a list of the jurors who served at the previous regular term. The record does not reveal where the judge actually was when the sheriff of Knox County arrived at the Laurel County Court House. Presumably he expected to be in Knox County, and there was no legal requirement that he proceed to Laurel County in order to make himself available when the sheriff arrived. Certainly he had the right to remain where his court was in session and continue attending to whatever business came before that session. We do not say KRS 29.262 is not mandatory. There simply is not any proof in the record that it was violated.

Complaint is made also of the court’s resort to Laurel County over three other adjoining counties for selection of the jurors. The point here is that Laurel and Knox Counties are in the same circuit and that by reason of having practiced cases in Laurel County the Commonwealth’s Attorney was acquainted with the jurors. That circumstance is not enough to justify interfering with the discretion of the trial court. Cf. Patterson v. Commonwealth, 256 Ky. 745, 77 S.W.2d 14, 16 (1934).

The last argument on this appeal is that appellant was prejudiced by not being allowed to inquire of the prospective jurors whether they could inflict the death penalty, in that the answers would have assisted in the exercise of peremptory challenges. This contention is answered by the verdict itself (21 years for voluntary manslaughter), which makes it obvious that the willingness or unwillingness of the jurors to give the death penalty actually did not figure in their deliberations. Thus the state of mind of the individual jurors on this particular question at the voir dire stage proved to be of no consequence, from which it follows that there could not have been any prejudice.

The judgment is affirmed.

      . There is no constitutional violation, however. See Baxter v. Commonwealth, 292 Ky. 204, 166 S.W.2d 24 (1942).


author: HOLMAN, Judge.

text:
    STATE of Missouri ex rel. MFA MUTUAL INSURANCE COMPANY, Relator, v. The Honorable James S. ROONEY, Judge of the Circuit Court of Clay County, Missouri, at Liberty, Division No. 1, Respondent.
    No. 51907.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1966.

      Thomas A. Sweeny, E. E. Thompson, Kansas City, for relator, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    Thad C. McCanse, Richard P. Bruening, Houts, James, McCanse & Larison, Kansas City, for respondent.
   HOLMAN, Judge.

In this original proceeding in prohibition relator seeks to prevent the respondent circuit judge from proceeding further in the case of Joy Rollins v. MFA Mutual Insurance Company which was filed in the Circuit Court of Clay County on March 24, 1965. Copies of the petition and summons were served on Ed Duckworth, an agent of MFA, at his home in Liberty. MFA appeared specially and moved to quash service alleging that Duckworth was not an officer, partner, or managing or general agent of said defendant. That motion was overruled and said defendant again appeared specially and filed a motion to dismiss for lack of venue and lack of jurisdiction. On November 26, 1965, respondent indicated that he would overrule that motion on January 4, 1966. Upon petition of relator we issued our provisional rule.

The facts are not in dispute. They appear in the pleadings, certain affidavits filed, the contract between relator and Ed Duckworth, and in the testimony of Duck-worth presented on the hearing of the motion to quash.

The suit in question was filed by Joy Rollins as assignee of Dale Boydston, an insured under an automobile liability policy issued by relator. It is alleged therein that Boydston sustained damages in the sum of $25,000 as a result of the alleged bad faith' of relator in failing to settle certain lawsuits against Boydston and his wife. One of those suits was tried in the Circuit Court of Jackson County and resulted in a final judgment against Boydston in the sum of $40,000 which amount was greatly in excess of his insurance coverage.

Relator’s home office is located in Columbia, Missouri, where it maintains its legal staff and underwriting department. Ed Duckworth became an agent of relator in March 1962. With the consent of relator he also became an agent of Farmers Mutual Hail Insurance Company of Missouri. He was an aviator and considered the work of writing insurance as part-time employment. At the time of the alleged service in this case he maintained an office in his home in Liberty, Missouri. His duties were to solicit and effect sales of insurance policies. He paid the rent on his office, supplied his own office equipment, and paid all other office expenses. He spent between $100 and $150 per month for advertising and was reimbursed by relator to the extent of $10 per month. Mr. Duckworth did not have authority to issue policies of insurance or to sign policies. He could bind coverage on certain risks for a maximum of thirty days during which period relator would either accept or reject the coverage. Policies were ordinarily mailed directly from Columbia to the insured, although occasionally, because of special circumstances, Duckworth would request that the policy be sent to him and he would deliver it. He was paid by relator solely upon a commission basis. When he was advised by a policyholder that a loss had occurred he did not inspect the property or attempt to appraise the extent of damage, but would occasionally fill out claim blanks for the accommodation of the policyholder and send them to the Kansas City claims office. Generally he would just make note of the information and telephone it to the Kansas City office. In many instances he would be able to get the policyholder to report the facts directly to the Kansas City claims office. The contract between relator and Duckworth provided that "in the performance of services under the terms and provisions of this agreement, the agent is acting as an independent contractor and not as an employee of the company, and the company shall have no control over or right to direct hours or places or methods of work or whom the agent shall solicit * *

Duckworth was listed in the yellow pages of the telephone directory as an MFA agent. His territory for making sales was not limited but most of his sales were to residents of Liberty and Clay County — there being approximately 1,500 policies outstanding which were the result of sales made by him. He was not authorized to accept service of process, and testified that when he was served in the Rollins case he told the officer that he had served the wrong person; that he “wasn’t going to accept it,” but that the officer said he had instructions to give it to him. He stated that he had no instructions as to what to do with process of that kind so he mailed it to the Kansas City claims office because it “seemed the only thing for me to do with it.”

The primary question presented is whether valid service of process was had upon relator in the Rollins case. If not, respondent does not have jurisdiction over the person of relator, and, since he assumes so to have, prohibition is the proper remedy to prevent further action. State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62.

The applicable venue statute reads, in part, as follows: “Suits against corporations shall be commenced either in the county where the cause of action accrued * * or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” Section 508.040 (all statutory references are to RSMo 1959, V.A. M.S.). The provision for service here involved is contained in Civil Rule 54.06, V.A. M.R., which states that “[sjervice within the state shall be made as follows: * * * Upon a domestic or foreign corporation or upon a partnership * * * by delivering a copy of the summons and of the petition to an officer, partner, or a managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof * * Substantially the same provisions are contained in § 506.150. Respondent does not contend that the cause of action accrued in Clay County or that relator maintained a business office in that county. He also concedes that Duckworth was not an officer, partner, or a managing agent of relator. It is his contention that Duckworth was a general agent of relator, within the meaning of Civil Rule 54.06, and was an agent for the transaction of relator’s usual and customary business, within the meaning of § 508.040.

As appears from the foregoing the essential question for our determination is whether Duckworth was a general agent of relator within the meaning of the rule and similar statute heretofore mentioned. The basic rule of statutory construction is to ascertain the intention of the lawmakers from the words used, if possible, ascribing to the language its plain meaning, and to effectuate the intent found. State ex rel. Wright v. Carter, Mo.Sup., 319 S.W.2d 596.

The term “general agent” has been defined as “One empowered to transact all business of principal at any particular time or any particular place, a general manager.” Black’s Law Dictionary, Fourth Edition. “A general agent is one who is employed to transact all the business of his principal, or to transact all business of another of a particular kind, or in a particular place, or to do all the acts connected with a particular trade, business, or employment. * * * The term may be equivalent to the term ‘manager.’” 2 C.J.S. Agency, § 3(c). In Bank of Ferguson v. Blick, Mo.App., 115 S.W.2d 27, 29, it is said that “ ‘a general agent is one whom one puts in his place to transact all of his business in a particular line,’ and that ‘such agent has all of the authority over the transaction of such business as the principal had.’. Farm & Home Savings & Loan Association of Missouri v. Stubbs, [231] Mo.App. [87], 98 S.W.2d 320, 332.” And this court has stated that “The term ‘General Agent’ has a well understood meaning in insurance law, and an agent who has authority to sign, countersign and issue policies is a general agent.” Corder v. Morgan Roofing Co., 355 Mo. 127, 195 S.W.2d 441, 445.

We need not fully delineate nor attempt to illustrate our idea of the meaning of the term “general agent.” It is sufficient for present purposes to state that we think that it means an agent with considerably more authority than Duckworth (whom we regard as a soliciting agent or sales agent) possessed. A somewhat similar situation was presented in Jennings v. McCall Corporation, 8th Cir., 320 F.2d 64, wherein process was served upon a sales representative of defendant. The court held that he was a soliciting agent and not a managing or general agent. Relator has also cited Litzinger v. Pulitzer Publishing Co., Mo. Sup., 356 S.W.2d 81, wherein process was served on defendant’s newspaper reporter at his desk in the press room at the county courthouse. The reporter was held not to be an agent of defendant for the transaction of its usual and customary business.

Respondent has cited the cases of State ex rel. Quincy, O. & K. C. R. Co. v. Myers, 126 Mo.App. 544, 104 S.W. 1146, and Morrow v. Caloric Appliance Corporation, Mo.Sup., 372 S.W.2d 41, in support of the contention that the service herein was valid. Both cases are distinguishable from the case before us. In Myers, process was served upon the operator of a telegraphic office of defendant which was maintained for the transmission of telegraphic orders to trainmen. Such was held to be valid under a statute providing for service upon the person in charge of a business office of the defendant. In Morrow, service was had upon one Vocke who was described as a manufacturer’s agent. However, he was in sole charge of the business of the nonresident corporate defendant in a large part of Missouri. He set up distributors and dealers through whom defendant had sold merchandise of the value of $2,000,000 over the preceding ten-year period. Moreover, defendant publicly advertised that it maintained a branch office in Missouri. That office (located in Vocke’s home) was in charge of Vocke who was paid a commission on all merchandise defendant sold in his territory. We held that Vocke was an ageht upon whom service was permitted under Rule 54.06(c).

Respondent has also cited Restatement, Agency 2nd, p. 15, wherein the test of a general agent is said to be continuity of service rather than the extent of his discretion or responsibility. While that test may be valuable in distinguishing between a general agent and special agent, we think it has little, if any, application in the determination of the meaning of the term “general agent” as such is used in the rule and statute we are considering.

Respondent has cited cases such as State ex rel. Quincy, O. & K. C. R. Co. v. Myers, supra, and Goetz v. Interlake S. S. Co., D. C., 47 F.2d 753, which state that service should be had upon an officer, agent, or employee of the corporation whose duties are such that it is reasonably certain that he will apprise the corporation of the service. That rule does not support respondent’s contention. It deals with the validity of a service statute or rule. Due process requires that provision be made for service upon a representative who is reasonably certain to notify the corporation concerning the service. However, the fact that service is had upon such a person does not make the service valid unless the process is served upon an agent or employee specified in the statute or rule. As stated in Myers, supra, “It is immaterial that copies of the summons and petition were expedited into the hands of the proper officer of relator. The only way a defendant can be brought into court to answer a cause of action asserted against him is by notice served in the form and manner provided by statute.” 104 S.W. 1147. The fact that Duck-worth was a man of intelligence and knew that he should forward the service papers to relator’s claims office (and did so) did not make the service valid. It was also required that he be shown to have been an “officer, partner, or a managing or general agent,” as specified in Rule 54.06.

As indicated, we hold that the service upon Ed Duckworth was not valid because he was not a general agent within the meaning of Civil Rule 54.06(c), and § 506.150. In view of our conclusion it is immaterial that the sheriff’s return is admittedly defective in merely reciting that Duckworth was an agent (rather than general agent) of relator. A motion has been filed seeking leave to amend the return, but, in view of our holding, no purpose would be served by such an amendment and hence the motion is overruled.

Since we have held that there was no valid service of process upon relator and hence that respondent did not acquire jurisdiction over the person of relator, we need not determine the question as to whether the venue of the Rollins case was in Clay County.

Our provisional rule in prohibition is made absolute.

All concur.