author: WERLEIN, Justice.

text:
    Jimmie M. CAUSEY et vir, Appellants, v. NEWSOM TRUCK LINES, INC., Appellee.
    No. 13981.
    Court of Civil Appeals of Texas. Houston.
    Nov. 1, 1962.
    Rehearing Denied Nov. 29, 1962.
    Otto E. Wiswell, Pasadena, for appellants.
    Butler, Binion, Rice & Cook, Frank J. Knapp, Tom Alexander, Houston, for appellee.
   WERLEIN, Justice.

Appellant, Mrs. Jimmie M. Causey, who was a single woman at the time her cause of action arose, joined by Tommie Causey, whom she later married, brought this suit to recover damages for personal injuries sustained by her as the result of a collision which occurred at approximately 10:30 p. m. on June 25, 1959 at the intersection of Chapman and Tarley Streets in the City of Houston. The trial court, on the verdict of the jury, entered judgment that appellants, Jimmie M. Causey and her husband, take nothing.

Appellants assert that the jury findings to Special Issue No. 1, that the driver of ap-pellee’s truck was not operating the same at a rate of speed in excess of that at which a person of ordinary prudence in the exercise of ordinary care would have operated the same, and to Special Issue No. 3, that immediately prior to the collision in question the truck driver did not fail to keep a proper lookout, are against the great weight and preponderance of the evidence.

We have carefully examined the entire record and particularly all the testimony relative to the collision in question. The evidence shows that Chapman Street is a paved street running in a north and south direction and that Tarley Street is a gravel street running in an east and west direction, and that Chapman Street has a great deal more traffic on it than Tarley Street. The only eye-witnesses testifying to the collision were appellant, Mrs. Causey, and Mr. J. T. Beaty, the driver of appellee’s truck. Mrs. Causey testified that she was riding in the right front seat of the 1957 Plymouth driven in a westerly direction by Tommie Causey, which collided with the truck driven by J. T. Beaty going north on Chapman Street. She knew nothing of the details of how the collision happened because she was almost asleep at the time.

J. T. Beaty, the driver of the truck in question, testified in substance that the intersection of Chapman and Tarley Streets has no traffic control signals of any kind and is an entirely open intersection; that he was driving an empty R-200 International Truck and trailer which weighed some 18,000 pounds; that he was driving the truck at a speed of 30 miles per hour up until he first saw the automobile in which Mrs. Causey was a passenger, and at that time he was about 21 feet from the intersection; that at such point he had his foot on the brake and was able to apply the brake immediately and swerve to the left continuing on into the intersection decreasing his speed to 15 miles per hour before the impact; that he estimated that the automobile in question was about 40 feet from the intersection when he first saw it; that he was more or less keeping his attention straight ahead and when he got 21 feet south of the intersection he had a fleeting glimpse of the automobile, and then put all his attention on the truck trying to control it; that while sitting in the cab of the truck, the top of his head was about 7 feet above the ground, giving him a better opportunity to see in all directions than if he were sitting in an automobile; that at the southeast corner of the intersection there are no-obstructions other than trees and weeds, and that he guessed he was in a position where it was possible to observe the traffic coming1 from his right on Tarley Street if he were particularly looking for it; that the automobile hit the right front wheel, running-board and side gas tank of the truck; that he finally stopped the truck in the ditch about 50 feet past the intersection; that he could stop the truck and trailer in about its. length; and that the collision occurred right in the middle of the intersection of Chapman and Tarley Streets.

Appellee’s witness, Sgt. B. C. Lancaster,, who at the time of the collision was an investigator in the Accident Division of the Police Department of the City of Houston, testified in substance that Chapman Street was a 20 foot-wide-asphalt street running-north and south, and Tarley Street was a 19 foot-gravel street running east and west; that when he arrived on the scene of the-accident he found the Plymouth in the ditch, on the northeast corner of Tarley and Chapman and the truck partially in the street and1 ditch headed in a northeasterly direction that the truck was 46 feet over-all, approximately, and the trailer on the truck was 32 feet, making a total of 78 feet, and the automobile was 17 feet long, approximately; that at the southeast corner of the intersection there were high weeds which would obstruct one’s vision to some degree; that the point of impact was 4 feet from the east curb and 8 feet from the south curb; that the Plymouth struck the right front side of the truck approximately at the door of the truck, the truck ending up in a position which was 53 feet from the point of impact and the Plymouth 33 feet therefrom;. that the Plymouth left 15 feet of skid marks on the wet gravel and the truck 24 feet of skid marks on the dry asphalt measuring back from the rear wheels of the vehicles; that the truck was approximately 18 feet in the intersection when the Plymouth was 4 feet in the intersection; that there were no traffic controls at the corner; that he could not testify how far back down south on Chapman it was before there was any type of structure, but that the lot was pretty well open and that you could see across there but your vision was obscured; that you could see a house across the street on the north side of Tarley but couldn’t see the actual street.

When asked whether he would say that you could see across the intersection back 200 feet south on Chapman Street, he stated : “I doubt at 200, possibly 100 but I don’t recall the exact presence of any buildings there other than the fact that you could look across the intersection.” He also testified that one could see across through the weeds, and that if vehicles were coming with headlights on, they should be seen, and particularly so if the eye balls of the driver going north are 7 feet from the level of the ground; that such position would aid a man in his vision quite some distance down Tar-ley Street if he was looking; that in his opinion the Causey car was traveling at least 30 miles per hour prior to the collision; that if the truck driver was going 30 at the time he was 21 feet south of the intersection he was going 10 miles faster than a safe speed, in his opinion as an expert; that if the driver of the truck saw the automobile coming from his right on Tarley Street when he was 21 feet south of the intersection and was going 30 miles per hour, it was a little late to be looking when he had ample opportunity to look much earlier; that the truck driver couldn’t stop since he didn’t have enough distance; that a prudent person operating an 18,000 pound tractor and trailer should operate the truck at such speed, keeping proper lookout and allowing for any reaction time, that he should be prepared to bring the truck under control without colliding with anyone at an intersection.

After carefully considering all of the evidence in any way relating to the collision in question, we have concluded that the finding of the jury to Special Issue No. 3, to the effect that appellee did not fail to keep a proper lookout, is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; Tudor v. Tudor, 158 Tex. 559, 314 S.W.2d 793.

The undisputed evidence is to the effect that although there were high weeds on the southeast corner of the intersection, the lot was pretty well open and that one driving north on Chapman Street could see through the weeds vehicles with headlights traveling west on Tarley Street as they approached such intersection, and particularly so if the driver was elevated as was the truck driver, since such position would aid him in his vision quite some distance down Tarley Street if he was looking; that if the driver of the truck going 30 miles per hour north on Chapman did not see the automobile coming from his right on Tarley Street until 21 feet south of the intersection, it was late to be looking since he had ample opportunity to look much earlier; and that one situated as was the truck driver could see across the intersection without any buildings interfering possibly when 100 feet south on Chapman Street.

We think the testimony of the truck driver clearly shows that he was not keeping a proper lookout. He testified in effect that he was looking straight ahead and that he was 21 feet from the intersection going 30 miles per hour when he first got a fleeting glimpse of the automobile approaching the intersection, from his right; that having his head 7 feet above the level of the ground gave him a better opportunity to see in all directions than if he were in an automobile; that at the southeast comer of the intersection there were no obstructions other than trees and weeds and that he was in a position where it was possible to observe the traffic coming from his right on Tarley Street if he were looking for it.

It seems evident that if the truck driver had maintained a proper lookout he would have seen the automobile approaching the intersection from his right much sooner than he did, and in ample time to have yielded the right of way and prevented the collision. In driving the 78 foot truck and trailer into the intersection, he did so under circumstances which reasonably indicated danger of collision, thus requiring him to yield the right of way. Kersey v. Swidler, Tex.Civ.App., 223 S.W.2d 242, writ dism., and authorities cited. See also Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Rollin v. Condra Funeral Home, Tex. Civ.App.1959, 321 S.W.2d 108; Standard Paving Co. v. Webb, Tex.Civ.App., 118 S.W.2d 456.

In view of our holding, we think it unnecessary to consider appellants’ other Points of Error.

Reversed and remanded.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    Zella Rose PERRY et vir, Appellants, v. BANKERS LIFE AND CASUALTY COMPANY, Appellee.
    No. 16357.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 26, 1962.
    Rehearing Denied Nov. 30, 1962.
    Harry N. Ward, Fort Worth, for appellants.
    Hudson, Keltner, Jordan, Smith & Cunningham, and Walter E. Jordan, Fort Worth, for appellee.
   BOYD, Justice.

Zella Rose Perry and her husband, L. W. Perry, appeal from an adverse summary judgment in their suit on an insurance policy on the life of Cora Lee Cox. Mrs. Perry being the beneficiary.

The question presented is whether fraud in an application for reinstatement of a lapsed policy may be urged as a defense after the expiration of the contestable period.

The policy was issued on May 6, 1959. It lapsed for nonpayment of premiums on July 6, 1959, and was reinstated on September 14, 1959, on the basis of a reinstatement application executed by the insured on September 3, 1959. The application stated that the insured was in sound health and had not during the past five years suffered any illness or undergone any medical or surgical treatment. At that time the insured was in a hospital and was being treated for cirrhosis of the liver, for which she had been undergoing treatment since May 21, 1959. She knew her condition at the time the application was made. She died of that disease on June 20, 1960. It was stipulated that had appellee known of the condition of the insured’s health the policy would not have been reinstated. The policy stated that it would be incontestable after two years from the date of issue, except for nonpayment of premiums.

Appellants furnished proof of insured’s death and made demand for payment late in July, 1960. Appellee refused to pay. This suit was filed on September 22, 1961. Appellants say that time does not cease to run against the incontestable clause because of the insured’s death; that appel-lee’s denial of liability within the two year period did not in law amount to a contest; and that although a new incontestable period began at the time of the reinstatement, it was necessary for appellee, within such two-year period, to institute a court proceeding to cancel the policy to avail itself of the defense of fraud in the application for reinstatement. There seems to be authority for each proposition. American National Insurance Company v. Welsh, Tex.Civ.App., 3 S.W.2d 946, affirmed, Tex.Com.App., 22 S.W.2d 1063; Scharlach v. Pacific Mut. Life Ins. Co., 5 Cir., 9 F.2d 317; State Mutual Life Insurance Company v. Rosenbenry, Tex.Civ.App., 175 S.W. 757, reversed on other grounds, Tex.Com.App., 213 S.W. 242; note, 134 A.L.R. 1525; Appleman, Insurance Law and Practice, Vol. 1, p. 374, sec. 320.

It is appellee’s position that the incontestable clause has no application when fraud would otherwise have vitiated the reinstatment, and relies on the rule announced in State Mutual Life Insurance Company v. Rosenberry, supra.

The Commission of Appeals in the Rosen-berry case very clearly stated that in case of fraud in a reinstatement application the incontestable rule does not apply. We quote from the opinion as follows:

“But we think that the better rule and the one that would come nearer doing justice is to regard the contract for reinstatement, not as a new contract of insurance, hut as a waiver of the forfeiture, thus restoring the policy and making it as effective as if no forfeiture had occurred, hut reserving the right of the company to avoid the effect of the reinstatement by showing, if it can, that the reinstatement was induced by unfair and fraudulent means. Massachusetts Benefit Life Association v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.A. 274; Goodwin v. Provident, etc., Life Association, 97 Iowa 226, 66 N.W. 157, 32 L.R.A. 473, 59 Am.St.Rep. 411; Monahan v. Fidelity Mutual Life Insurance Co., 242 Ill. 488, 90 N.E. 213, 134 Am.St.Rep. 337; Mutual Life Insurance Co. v. Lovejoy, [201 Ala. 337,] 78 South. 299, L.R.A.1918D, 864.

“Applying these principles to the case, it appears that the policy sued on lapsed for failure to pay the premium after the same became incontestable under its terms, and we think that the insurance company could not contest it by reason of anything connected with its original issuance or any act of the insured up to that time. When it lapsed for failure to pay the premium, no' contract of insurance existed, but the parties had a right by a new contract to provide for a waiver by the company of the-forfeiture and a reinstatement of the policy. The insured undertook to comply with the requirements of the company in order to obtain a reinstatement, and to that end made an application warranting the facts stated' therein to be true. As we construe the opinion of the Court of Civil Appeals, it finds that the statement in the application; to the effect that the insured had not applied for insurance in any other company which had not been issued was untrue and' was material. This being true, the application to reinstate the policy was induced by the fraud of the insured. We do not think that the clause in the policy making it incontestable after one year from its-date applies to this transaction. To make it apply is to hold that, however gross the-fraud by which the reinstatement of a lapsed policy is procured, the insurance-company is without remedy. In this case less than one year after the perpetration of the fraud had elapsed, and we thinlt the insurance company had the .right to show that the reinstatement was secured by material fraudulent representation, and that therefore the contract of reinstatement was void, and that the policy was not thereby revived.”

Appleman, Insurance Law and Practice, Vol. 1, p. 374, sec. 320, and Couch, Cyclopedia of Insurance Law, sec. 1379, cite the Rosenberry case as authority for the proposition that where a reinstatement of an insurance policy is procured by fraud, the insurer may interpose this as a defense at any time thereafter.

The rule announced in the Rosenberry case seems to have been adhered to in Alabama, Georgia, and South Carolina. New York Life Ins. Company v. Ellis, 27 Ala. App. 113, 168 So. 200; Massachusetts Benefit Life Ass’n v. Robinson, 104 Ga. 256, 30 S.E. 918, 42 L.R.A. 261; Ward v. New York Life Ins. Company, 129 S.C. 121, 123 S.E. 820.

The Supreme Court adopted the judgment recommended in the Rosenberry case, but did not approve the holding. The judgment was correct in any event, because the defense of fraud in the procurement of the reinstatement was asserted within the contestable period. We have found no case where the Supreme Court has written upon the question here presented. And we think that the conclusion expressed by the Commission that the incontestable clause does not apply to reinstatement contracts procured by fraud is against the weight of authority from other jurisdictions, and is not supported by the better reasoning. Apple-man, Insurance Law and Practice, Vol. 1, p. 374, sec. 320, and authorities there cited.

We quote from Appleman, supra, as follows: “Unquestionably, more difficulty has arisen in the construction of incontestable clauses where a policy has lapsed and been reinstated than in any other situation. It must be recognized that this is not a simple situation. To start with, certain representations were made in order to secure the issuance of the policy originally. The time fixed by the policy to contest such original matters may or may not have expired. Then the policy lapses and the insured applies for reinstatement. He makes certain new representations as to the state of his health, medical attendance and the like. Does the running of the old incontestable period bar the setting up of defenses to the new representations, is a new incontestable period created, or may such defenses be set up without limitation as to time?

“The majority rule seems, to this writer, to be quite the best reasoned of the diverse results reached. These courts recognize that there is only one insurance policy ever issued under such circumstances and only one actual contract contemplated by the parties. In this policy, it is provided that in the event of lapse or forfeiture for nonpayment of premiums, the policy may be reinstated by complying with certain conditions. By reinstatement is meant that the policy is put back into force and effect; not that a new policy is issued containing different terms or provisions. It is only reasonable, reason these courts, that the old defenses which were barred by the running of the first incontestable clause remain barred — they are not automatically revived. But as to new representations made which may be false and fraudulent, the insurer is entitled to a .reasonable time to investigate and to determine their truth. However, for the same reasons of public policy which place a time limitation upon the original defenses in order to protect the public and to cut down on litigation, this time should not be unlimited in duration. Accordingly, the majority of jurisdictions passing upon the question hold that the same length of time fixed by the policy as to original defenses will be given as to new defenses after reinstatement; that, after such time has expired, such defenses are barred. * * *

“The rule which seems the least defensible of all has been reached by a few courts which were led astray either by the complicated nature of the transactions or a dislike of the operation of incontestable clauses. They hold that regardless of the provisions of the incontestable clause in the original policy and regardless of the fact that the same policy may have been restored to the insured, another contract has entered into the picture. This contract was for the reinstatement itself. In other words, they construe the negotiations leading up to the reinstatement as a separate contract, distinct and different from policies of insurance, and as to this contract, incontestability clauses have no application. Consequently, if there are any misrepresentations made in these negotiations inducing the reinstatement, the company may interpose this as a defense at any time thereafter.”

It is not clear to us how, as said by the court in Rosenberry, the insurer is without remedy against a fraudulent application for reinstatement. The remedy is just the same as it is against a fraudulent original application. In the next sentence after the above statement was made, the court said, “In this case less than one year (the contestable period in the policy under consideration) after the perpetration of the fraud had elapsed. * * * ” The remedy, therefore, seems to have been adequate and plain.

In this case both parties moved for summary judgment. The motion of appellee was sustained. We think appellants’ motion should have been sustained.

The judgment granting appellee’s motion for summary judgment; is reversed, and judgment is here rendered sustaining appellants’ motion for summary judgment.


author: RUARK, Presiding Judge.

text:
    E. W. BENNETT, Claimant-Respondent, v. Hamilton ADAMS, Administrator of the Estate of John W. Matlock, deceased, Defendant-Appellant.
    No. 8079.
    Springfield Court of Appeals. Missouri.
    Nov. 21, 1962.

      William E. Seay, Salem, Missouri, for defendant-appellant.
    L. Clark McNeill, Salem, Missouri, for claimant-respondent.
   RUARK, Presiding Judge.

This is an appeal from a judgment founded on a claim which originated in the probate court against the estate of one John W. Matlock, deceased.

The claim is by E. W. Bennett. In substance the claim states that he was attorney for one Jerome Matlock (who, as it will appear, was the father of John Mat-lock whose estate is here involved); that Jerome requested of claimant that the proceeds of his estate and the estate of his wife not be turned over to John Matlock, but that the same “be handled as a trust fund and paid out to him (John) as needed for his living and other legitimate expenses”; that claimant suggested the appointment of a guardian for John, but the father, Jerome, objected; that Jerome died and shortly thereafter his wife followed him in death, and their estates were administered in probate court.

The claim further states that “due to the request of the said Jerome Matlock” no guardian was appointed, but the funds coming from said estates were handled for the benefit of John in a trust account, “and as said estate was converted into cash and used for the benefit of the said John-W. Matlock, the same was deposited” for his benefit and checks were issued by the claimant; that the net estates handled amounted to $25,161.77, including real estate valued (according to appraisal in the estates of the parents) at $3,000; that from March 27, 1939, to death of John the claimant handled the funds as a trust fund, made loans, collected notes and interest,, cashed bonds and reinvested, paid personal taxes and taxes on the farm, and paid out funds to John as they were needed for his living and the operation of his farm; that John had no authority to check on the ■ account and “all disbursements were made on the check of the said E. W. Bennett as trustee”; that in addition to looking after the funds, claimant advised John on legal matters, and attended to all deposits, withdrawals and investments; that “due to the physical and mental condition of the said John W. Matlock * * * your petitioner conserved the funds as much as possible under the circumstances and has drawn over the 20 year period only the sum of $600 to apply on his services”; that the reasonable value of his services is $4,000, against which should be applied the sum of $600 so received.

What happened to this claim in probate court is not shown. It reached the circuit court and was tried to the court, which gave claimant, now respondent, judgment in the sum of $1900. From that judgment the administrator has appealed.

At the trial the claimant attempted to testify, but his testimony was severely curtailed due to objections based on the dead man’s statute, which objections we think were, in the main, properly sustained. (See Birdsong v. Ladwig’s Estate, Mo. App., 314 S.W.2d 471.)

These facts came into evidence: Jerome was the father of John Matlock. Jerome died about 1937 and his wife a few months later. Prior to his death Jerome told Bennett, his attorney, that John was not very ■“strong-minded” and he told claimant to -take charge of his estate and “put it in a trust fund and take care of it for Johnny.” After closing of estates of Jerome and his wife (in which Bennett acted as attorney), “there was some $25,000 to $27,000 in that ■estate, including the real estate, the farm that they lived on; all of the estate, except the farm, was placed in a trust account, in my name as trustee for J. W. Matlock.” John Matlock died in February, 1960, leaving cousins as his nearest relation.

Respondent called as a witness the cashier of the Bank of Salem, who identified a bank statement (not offered in evidence) reflecting cash transactions covering a period extending from 1939 to 1960. The cashier said there were 24 pages in this account. It reflected a total of approximately 450 checks (none identified or offered in evidence). The deposits and re■deposits amounted to approximately $65,-000. The cashier testified that Bennett ■made deposits at various times, drew checks, invested in bonds, made loans, and •collected interest. On occasions Bennett conferred with the banker. At the time of John Matlock’s death there was $541.95 left in the account, and the farm remained. E. J. Malone, a real estate man, testified lie had listed and subsequently sold the Matlock farm. (This sale was obviously •completed after the death of John.) He •said that in the dealings about this transaction he conferred with Bennett a half dozen times. He stated, “I knew he took •care of Johnny’s business. Johnny told me to go see Mr. Bennett.” He stated he knew that over the years Bennett took care of Johnny’s business. That was approximately all the evidence relating to the respondent's services. A responsible and reputable attorney was then called as a witness and testified that the reasonable attorney’s fee lor handling funds to the extent of deposits of $60,000, writing checks, making loans, and reinvesting, would be from $150 to $175 per year.

The administrator testified that the assets of the estate in the amount of $11,000 were derived from the sale of the farm.

At the outset, we are confronted with the question of whether the claimant has put himself in the wrong court. If, indeed, claimant was, as he describes it, a trustee, rather than a business agent and attorney, then we think recourse should be made to the trust instrument (if such exists) in order to determine what compensation is to be paid to the trustee; and if no compensation was therein fixed, then the trustee should go into a court of equity, submit his accounting, and request such court to fix his fees. (See Morrison v. Asher, Mo.App., 361 S.W.2d 844 and cases cited therein.) But there is nothing in the record to show whether a trust was created by Jerome’s will, whether one was created by voluntary assent of John, whether claimant simply declared himself “trustee,” or how the funds got into his hands. The question is not raised by the appellant, and since, as we have concluded, the case must be reversed and remanded for reasons hereinafter mentioned, we will pass that question and go to the points made in appellant’s brief.

It is first contended that claimant’s case must fail because the claim is based upon a contract with Jerome Matlock and there was no proof of such agreement. It is also contended that quantum meruit against John Matlock’s estate was not pleaded.

It is frequently stated that strict rules as to pleadings do not apply to claims in probate court; that all that is necessary is a statement sufficient to inform the administrator of the basis and extent of the claim; and that, once adjudged, will become res adjudicata. This subject just recently has been reviewed by Judge Stone in the accompanying, though not companion, case of Malone v. Estate of Matlock, Mo.App., 362 S.W.2d 95. We feel it is not necessary to recite all the authority or to further elaborate, except to suggest that, even though a claim contains language indicating an express contract, if it is also susceptible of interpretation as being based on an implied contract for quantum meruit, it is sufficient as a basis for recovery on quantum meruit. We do not regard the allegations in reference to Jerome Matlock as being an attempt to recover under a contract with Jerome. In fact, the record shows Jerome’s estate to have been closed long ago, and this claim is against the estate of John. We think claimant’s assertions were matters of inducement and justification. In other words, he wanted to make clear the circumstances as to how he came to be in control of the affairs of a boy who was “not strong-minded,” and to show that he was not an interloper but was carrying out what he conceived to have been the wishes of an old client. In so far as the claim against the John Matlock estate is concerned, these allegations carried no “meat.” The remainder of the claim asserts performance of certain services to John Matlock and the reasonable value of those services. We rule against the appellant on this contention.

However, we consider as serious the contention that respondent failed to sustain the burden of proof on quantum meruit. There is no proof of any express or inferred contract in fact between claimant and John Matlock for the performance of the services. There is no proof that Matlock requested respondent to manage his money. There is no proof that he accepted such services under conditions which would create the presumption that claimant expected to be paid. We think the fact that, in regard to the real estate sale near the end of his life, John Matlock referred the real estate man to claimant can hardly be taken as a ratification or acceptance of the alleged acts of claimant over the previous 20-year period. As a matter of fact, claimant’s own evidence raises some question as to whether or not Matlock was mentally capable of assent. (See Evans v. York, Mo. App., 216 S.W.2d 124.)

Since claimant neither pleads nor proves any request or voluntary acceptance on the part of Matlock, we conclude that his theory of recovery, if any at all, must be on quasi contract, a contract implied in law. Long ago, Judge Nortoni, speaking in Weinsberg v. St. Louis Cordage Co., 135 Mo.App. 553, 116 S.W. 461, 1. c. 466, said: “ * * * Much confusion has been introduced by loose expression touching implied contracts, and frequently the distinction which obtains, accurately speaking, between contracts implied by the law and contracts implied by or inferred from the facts is overlooked. * * * ” The writer confesses himself still confused by the various declarations of the courts. We are inclined to believe that many quantum meruit actions which are said to have been upon contracts implied in law are, in reality, upon contracts which are established by inference drawn from the facts. But, if they are once established, there is no difference as to the legal effect of such contracts. (Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333(5), 8 A.L.R.2d 710.)

Generally it can be said that contracts implied (inferred?) in fact arise when a person performs services or furnishes goods at another’s request and there is no express agreement to pay therefor, but the circumstances are such that a promise to pay the reasonable value thereof may be implied (inferred?) from the circumstances, situation, conduct, and nonrelationship of the parties. Even though there has been no request, when valuable services or goods are knowingly accepted by the party benefiting therefrom under circumstances which would reasonably justify the belief that the party furnishing them expected payment to the extent of their reasonable value, the obligation to pay will be inferred or, as is often stated, implied by law.

Contracts really implied in law are those which are imposed, or created, without regard to promise or intention of the party to be bound. The assent rests solely in legal fiction, and the liability created thereunder rests simply in reason and justice. This fictitious implication of agree-meat to pay the reasonable value arises (as one example) when services or things necessary to the recipient are furnished to an incompetent person. The fictitious contract is based primarily upon a benefit conferred upon the recipient of the goods or services. Running through all the cases which involve quantum meruit by reason of contract implied in law are the words “valuable” and “beneficial” services. And where the benefit is clear, the liability for •quantum meruit may arise even though the goods or services are requested by another than the recipient. (See Bailey v. Interstate Airmotive, supra, 358 Mo. 1121, 219 S.W.2d 333.)

But what benefit reached John Matlock? The record does not show. The nearest we can get to it is the statement by the witness Malone that he knew “that Mr. Bennett over the period of years took care of Johnny Matlock’s business,” but we think that is not enough. It should be shown that such services were of value or benefit to John W. Matlock. True, an account was established, investments were made, checks were written, but to whom ?, and for what purpose? True, the account was depleted, but to what end? Who got the benefit of such money? By these questions we do not mean to imply that claimant did not serve his client long and faithfully and with scrupulous adherence to the finest traditions of his profession; but he did not prove it. No doubt he was caught short and unprepared in his proof because of the application of the dead man’s statute; but we cannot establish a precedent whereby the right to recover in quantum meruit is given simply by the taking over money which belongs to another man and managing it, absent either (a) proof of request of the party to be charged (or acceptance of such management) under such circumstances as would require the inference or raise the presumption that payment was to be expected; or (b) proof that the services so rendered were valuable and of ben-fit to the person receiving' them. With nothing proved in any of these respects, a claimant could he a mere interloper, taking over another’s money and using it for his own benefit or the benefit of some party not entitled thereto, yet still claiming compensation therefor.

We believe, however, that there is a strong possibility that claimant-respondent may, on retrial, be able to produce the evidence necessary to substantiate his claim, and, therefore, the judgment should not be reversed outright, but should be reversed and the case remanded for a new trial. It is so ordered.

STONE and McDOWELL, JJ., concur.

      . Siegel v. Ellis, Mo., 288 S.W.2d 932 (4) ; In re Thomason’s Estate, 346 Mo. 911, 144 S.W.2d 79(4); Whitworth v. Monahan’s Estate, Mo.App., Ill S.W.2d 931(3).

      . Murphy v. Pfeifer, Mo.App., 105 S.W.2d 39 (2); Laughlin v. Boatmen’s Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 978; See Stanley v. Whitlow, 181 Mo. App. 461, 168 S.W. 840.

      . 12 Am.Jur., § 5, p. 500; Weinsberg v. St. Louis Cordage Co., supra, 135 Mo. App. 553, 116 S.W. 461, 466; Christianson v. McDermott’s Estate, 123 Mo.App. 448, 100 S.W. 63, 64; Liebaart v. Hoehle’s Estate, Mo.App., 111 S.W.2d 925, 929; Songer v. Brittain, Mo.App., 272 S.W.2d 16, 20; Muench v. South Side Nat. Bank, Mo., 251 S.W.2d 1; Keeshan v. Embassy Inv. Co., Mo.App., 303 S.W.2d 666, 670; Leggett v. Mutual Commerce Cas. Co., Mo., 250 S.W.2d 995.

      . Kolb v. Howard Corp., Mo.App., 219 S.W.2d 856; Mecartney v. Guardian Trust Co., 274 Mo. 224, 202 S.W. 1131; Keeshan v. Embassy Inv. Co., supra, Mo. App., 303 S.W.2d 666, 670; Minor v. Lillard, Mo., 289 S.W.2d 1; Abresch v. Schultz, Mo.App., 216 S.W.2d 134, 139; Tomasso v. Sorbets, Mo.App., 147 S.W.2d 151; Strother v. DeWitt, 98 Mo.App. 293, 71 S.W. 1129; Runnels v. Allen’s Adm’r., Mo.App., 169 S.W.2d 73, 77.

      . 17 C.J.S. Contracts § 6, pp. 322 et seq.; 12 Am.Jur., § 6, p. 502; Christianson v. McDermott’s Estate, supra, 123 Mo.App. 448, 100 S.W. 63; Patrick v. Crank, Mo.App., 110 S.W.2d 381, 384; Weinsberg v. St. Louis Cordage Co., supra, 135 Mo.App. 553, 116 S.W. 461; Lillard v. Wilson, 178 Mo. 145, 77 S.W. 74; Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874(17), 179 S.W.2d 108; See Baker v. Brown’s Estate, 365 Mo. 1159, 294 S.W.2d 22.

      . 44 C.J.S. Insane Persons § 89, p. 239; Trask v. Davis, Mo.App., 297 S.W.2d 792; Hartley v. Hartley’s Estate, 173 Mo.App. 18, 155 S.W. 1099.

      . To illustrate see: Poage v. Parker, Mo. App., 343 S.W.2d 203; Keeshan v. Embassy Inv. Co., supra, Mo.App., 303 S.W. 2d 666; Kolb v. Howard Corp., supra, Mo.App., 219 S.W.2d 856, 858; Strother v. DeWitt, supra, 98 Mo.App. 293, 71 S.W. 1129: Tessler v. Duzer, Mo.App., 309 S.W.2d 1.


author: STONE, Judge.

text:
    Richard H. MORROW and Pearl Morrow, his wife, Plaintiffs-Respondents, v. CALORIC APPLIANCE CORPORATION, a corporation, Defendant-Appellant.
    No. 8137.
    Springfield Court of Appeals. Missouri.
    Dec. 5, 1962.

      Blanton & Blanton, Sikeston, for defendant-appellant.
    W. Clifton Banta, Charleston, for plaintiffs-respondents.
   STONE, Judge.

This is an action for property damage (i. e., for the loss of furniture, household goods, clothing and other personalty) sustained on Amgust 18, 1959, when a dwelling house occupied by plaintiffs and their children was destroyed by fire alleged to have been caused “by a malfunctioning or explosion of a Caloric gas range” which had been installed in the kitchen of that house on or about August 7, 1959. In their petition filed on June 29, 1960, plaintiffs sought to recover damages of $9,500 from three defendants jointly, i. e., (1) from the range manufacturer, Caloric Appliance Corporation (hereinafter referred to as Caloric), identified in the petition as a Pennsylvania corporation “doing business in the State of Missouri,” (2) from the range distributor, Uregas Distributors, Inc., a Missouri corporation, and (3) from H. L. Lewis d/b/a Lewis Furniture and Gas Company, who sold and installed the range. Defendant Uregas purchased its peace, took a covenant not to sue from plaintiffs, and was dismissed with prejudice before trial. “Defendant Lewis was dropped because of improper venue,” according to the statement of facts in Caloric’s brief which is adopted in plaintiffs’ brief. (Lewis, who testified as a witness for plaintiffs, agreed on cross-examination that “they never did get proper service” on him.) Defendant Caloric’s motions to quash the sheriff’s return and to dismiss the cause as to it for want of jurisdiction (of which we shall have more to say anon) having been overruled, plaintiffs proceeded to trial against Caloric alone, submitted their case on the theory of breach of an implied warranty of fitness, and obtained a jury verdict for $3,750. Following an unavailing after-trial motion (a) to set aside the verdict and judgment entered thereon and to enter judgment for Caloric in accordance with its motion for a directed verdict at the close of all the evidence and (b) in the alternative for a new trial [Rule 72.02; Sec. 510.290], Caloric appeals. (All references to rules are to Supreme Court Rules of Civil Procedure, V.A.M.R., and all references to statutes are to RSMo 1959, V.A.M.S.)

The appeal was taken to this court, and opposing counsel have briefed and argued the case on the premise that we have appellate jurisdiction because of the amount involved. Section 477.040. However, appellate jurisdiction may not be conferred by waiver, acquiescence or even express consent [Taney County v. Addington, Mo.App., 296 S.W.2d 129(1); Collier v. Smith, Mo.App., 292 S.W.2d 627, 630-631 (4), and cases cited in footnote 8]; and, in the discharge of our obligation to inquire into and determine our jurisdiction, sua sponte, even though it be not challenged by the parties [Hammonds v. Hammonds, Mo.App., 289 S.W.2d 903, 904(1), and cases cited in footnote 1; Johnson v. Woodard, Mo.App., 343 S.W.2d 646, 648 (1); Domyan v. Dornin, Mo.App., 348 S.W.2d 360, 361], we cannot ignore the obvious fact that, as we shall explain and elaborate, the initial question preserved and presented upon this appeal is a constitutional question involving due process of law under the Fourteenth Amendment to the Constitution of the United States [Collar v. Peninsular Gas Co., Mo., 295 S.W.2d 88, 89(1); Wooster v. Trimont Mfg. Co., 356 Mo. 682, 683, 203 S.W.2d 411, 412(1)], by reason of which our Supreme Court is invested with exclusive appellate jurisdiction of this appeal. Art. V, Sec. 3, Const, of Missouri, 2 V.A.M.S.

In the first paragraph of their petition, plaintiffs alleged that Caloric was “a corporation duly organized and existing under the laws of the State of Pennsylvania and doing business in the State of Missouri and authorized to be sued as such.” The original return of the Sheriff of St. Louis County, Missouri, purporting to reflect service upon Caloric [see Rule 54.06(c); Sec. 506.150(3)], was: “I hereby certify that I have served the within summons in the County of St. Louis, State of Missouri by delivering, on the 15th day of July, 1960, a copy of the summons and a copy of the petition as furnished by the Clerk to Walter L. Vocke, Registered Agent of the within-named corporation.” (All emphasis herein is ours.) Subsequently, the Sheriff of St. Louis County by leave of court filed an amended return which differed from the original return in only one particular, to wit, in that the word "Registered” was omitted thus designating Vocke simply as “Agent” of Caloric.

To this amended return, Caloric appeared specially and filed its motions to quash the summons and the return of service thereon and to dismiss the cause. In substance, these motions averred that Caloric was “a non-resident corporation” which had not “at any time pertinent to the issues of (plaintiffs’) alleged cause of action carried on, transacted or handled any business so as to subject it to the jurisdiction of the courts of the State of Missouri”; that it had neither applied for nor been granted authorization to do business in Missouri; that “it (had) not at any time maintained a place of business in St. Louis County, Missouri, or elsewhere in the State of Missouri, such as would constitute a basis of jurisdiction in the courts” of Missouri; that Vocke “at the time of the alleged service was not the Registered Agent (or) an. Agent” of Caloric; and “that for this court to assert jurisdiction over this said defendant in this said cause would be and constitute a violation of this said defendant’s right to due process of law as provided for and preserved, to-wit, by the Fourteenth. Amendment of the Constitution of the United States and by the Constitution of the State of Missouri.” At a hearing on these motions held on November 12, I960,. Vocke appeared in person and was examined and cross-examined at length, and' counsel introduced in evidence a certificate by the Secretary of State that Caloric was-not licensed or authorized to do business in the State of Missouri. Taken under advisement at the conclusion of this hearing,, the motions eventually were overruled on-April 27, 1961.

In the preliminary recitals of its answer thereafter filed, Caloric carefully stated that it was “limiting its appearance specifically and without submitting itself to the jurisdiction of this said court, and without waiving its objection to the jurisdiction of this said court over this said defendant, asset out in motions heretofore filed herein, which said motions are incorporated herein by reference the same as if specifically herein set out”; and, in the first numbered paragraph of its answer, Caloric admitted that it was a corporation but denied “that it has been or is doing business in the State of Missouri” and “that it is authorized to be sued in the State of Missouri as alleged in Paragraph 1” of plaintiffs’ petition.

Immediately before entering upon trial of the case on January 4, 1962, Caloric’s counsel stated, in part, that “I want to again renew my motion to dismiss ... on the grounds of the motion heretofore filed that the courts of the State of Missouri do not have any basis of asserting jurisdiction over the Caloric Appliance Corporation and that no proper service was had on the corporation, that the corporation is not licensed in the State of Missouri and has not participated in or carried on business within the State of Missouri within the meaning of the cases and the law, etc.” The first ground in Caloric’s motions for a directed verdict at the close of plaintiffs’ case and at the close of all the evidence again denied the jurisdiction of the court over the person of Caloric. And, more importantly, in the first point in Caloric’s after-trial motion to set aside the verdict and judgment and for entry of judgment in accordance with its motion for directed verdict at the close of all the evidence or, in the alternative, for a new trial [see Rule 72.02; Sec. 510.290], Caloric incorporated by reference, as is permissible and proper in our civil procedure [Rule 55.14; Sec. 509.130], “the motions heretofore filed comprising a part of the record of this proceeding relative to the lack of jurisdiction of this court over the defendant,” continued to challenge the court’s jurisdiction over Caloric, and reiterated previous allegations to the effect that Caloric had never been licensed or authorized to transact business in the State of Missouri and, in fact, had never done so.

In Caloric’s brief on appeal, the first “point relied on,” briefed adequately and developed fully, is that “the Circuit Court of Scott County, Missouri, did not have jurisdiction over defendant Caloric Appliance Corporation, and the court erred in overruling the defendant’s motion to quash the sheriff’s return and to dismiss the suit as it pertained to this defendant, which is a foreign corporation . . . not licensed to do business within the State of Missouri, and which was not ‘doing business’ within the State of Missouri and had not appointed or designated a registered agent or agents for service of process within the State, and the court’s action is in violation of the Fourteenth Amendment of the Constitution of the United States.”

A foreign corporation, not licensed or authorized to do business in this state, becomes amenable to personal service in Missouri so as to permit the rendition of a general judgment against it only if it is “doing business in this state” [Collar v. Peninsular Gas Co., supra, 295 S.W.2d loc. cit. 90-91(2); State ex rel. Nashville, C. & St. L. Ry. v. Hall, 337 Mo. 1229, 1233, 88 S.W.2d 342, 343; State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 331 Mo. 1015, 1035, 56 S.W.2d 28, 37-38(11), 85 A.L.R. 1378, certiorari denied 289 U.S. 746, 53 S.Ct. 689, 77 L.Ed. 1492]; and, whether such foreign corporation is “doing business in this state” within the contemplation and meaning of the stated principle is a question “ ‘of due process of law, under the Constitution of the United States’ ” and is “ ‘not one of local law or of statutory construction.’ ” Collar, supra, 295 S.W.2d loc. cit. 91(4); State ex rel. Nashville, C. & St. L. Ry. v. Hall, supra, 337 Mo. loc. cit. 1233, 88 S.W.2d loc. cit. 343; State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, supra, 331 Mo. loc. cit. 1035, 56 S.W.2d loc. cit. 38(12); Hall v. Wilder Mfg. Co., 316 Mo. 812, 820, 293 S.W. 760, 762(2), 52 A.L.R. 723. See also Fisk v. Wellsville Fire Brick Co., Mo.App., 145 S.W.2d 451, 456(2), transferred 348 Mo. 73, 152 S.W.2d 113, and State ex rel. Mills Automatic Merchandising Corp. v. Hogan, 232 Mo.App. 291, 295, 103 S.W.2d 495, 497 (4).

There are four requirements for preservation of a constitutional question for appellate review, i. e., (1) the question must have been raised at the first opportunity,, (2) the constitutional provision claimed to have been violated must have been specified, (3) the point must have been preserved in the motion for new trial, if any, and (4) it must have been covered adequately in the appellate briefs. Magenheim v. Board of Education, Mo., 340 S.W.2d. 619, 621(2); Ingle v. City of Fulton, Mo., 260 S.W.2d 666, 667(1); City of St. Louis v. Butler Co., 358 Mo. 1221, 1227, 219 S.W.2d 372, 376(6); Sheets v. Thomann, Mo. App., 336 S.W.2d 701, 707(4); Baker v. Baker, Mo.App., 274 S.W.2d 322, 325(6). From the hereinbefore-detailed record of the presentation and preservation of the constitutional question of due process of law in the instant case, we think it clearly apparent that Caloric has satisfied the above four requirements; and, although we do not reach the merits of this constitutional question, the transcript and the briefs leave us in no doubt but that this question is one of substance urged in good faith and that it may not be disregarded as fictitious or brushed aside as having been interposed as a mere matter of form. Contrast Brookline Canning & Packing Co. v. Evans, 238 Mo. 599, 142 S.W. 319, 321(3); Stegall v. American Pigment & Chemical Co., 263 Mo. 719, 173 S.W. 674, 675(1); State v. Tatman, 312 Mo. 134, 278 S.W. 713, 715.

In these circumstances, the appellate jurisdiction of the Supreme Court to review the case because a constitutional question is involved does not depend upon the validity of the claim of constitutional right. Elks Investment Co. v. Jones, Mo., 187 S.W. 71, 74(1); Dorrance v. Dorrance, 242 Mo. 625, 645, 148 S.W. 94, 98; State v. Egan, Mo.App., 272 S.W.2d 719, 725 (10); Schuster v. Weiss, 39 Mo.App. 633, 635. For, “jurisdiction carries with it the sole power to exercise the incidents and prerogatives of (such) jurisdiction, and negatives the existence of any such power in any other court.” Starr v. Mitchell, Mo. App., 231 S.W.2d 299, 301, transferred 361 Mo. 908, 237 S.W.2d 123. And, being invested with appellate jurisdiction on one issue, the Supreme Court will retain the case for determination of all issues. Howell v. Reynolds, Mo., 249 S.W.2d 381, 384 (8); Domyan v. Dornin, supra, 348 S.W. 2d loc. cit. 362, transferred Mo., 356 S.W.2d 70; Missouri City Coal Co. v. Walker, Mo. App., 183 S.W.2d 350, transferred Mo., 188 S.W.2d 39.

This appeal presenting a substantial constitutional question of due process under the Fourteenth Amendment to the Constitution of the United States, the Supreme Court is invested with exclusive appellate jurisdiction thereof. Collar v. Peninsular Gas Co., supra, 295 S.W.2d loc. cit. 89(1); Wooster v. Trimont Mfg. Co., supra, 356 Mo. loc. cit. 683, 203 S.W.2d loc. cit. 412, same case Mo.App., 197 S.W.2d 710. See also Cindrich v. Indiana Travelers Assur. Co., 356 Mo. 1064, 1066, 204 S.W.2d 765, 766(1), same case Mo.App., 200 S.W.2d 595; Fisk v. Wellsville Fire Brick Co., 348 Mo. 73, 77, 152 S.W.2d 113, 115(1), same case Mo.App., 145 S.W.2d 451. Accordingly, the clerk of this court is directed to transfer this cause forthwith [Section 477.080], together with a copy of this opinion and order, to the clerk of the Supreme Court of Missouri.

RUARK, P. J., and McDOWELL, J., concur.


author: MONTGOMERY, Judge.

text:
    R. B. HUIE et al., Appellants, v. Jewell JONES, Appellee.
    Court of Appeals of Kentucky.
    Nov. 2, 1962.
    Rehearing Denied Dec. 14, 1962.

      Farland Robbins, Mayfield, for appellants.
    L. M. T. Reed, Neely & Reed, Mayfield, for appellee.
   MONTGOMERY, Judge.

Jewell Jones sued Luther Gardner and R. B. Huie, county clerk, to keep Gardner’s name off the ballot in the November 6, 1962 election for member of the Graves County Board of Education, Division 5. Gardner’s motion to dismiss the complaint for failure to state a claim was overruled. Upon a refusal to plead further, judgment was entered enjoining the clerk from placing Gardner’s name on the ballot and enjoining Gardner from asserting himself as a candidate. Huie and Gardner appeal.

KRS 160.220 provides that the nominating petition for a member of a board of education shall be signed by not less than fifty legal voters of the district and that the place of residence of each person signing shall be shown. Fifty-eight names were signed to Gardner’s petition. Jones challenged three signers for failure to show a place of residence, one signer as not being a legal voter, and six signers who were alleged to have signed both petitions.

Appellants urge that their motion to dismiss for failure to state a claim upon which relief can be granted was erroneously overruled. In considering such motion, the court should not dismiss unless it appears the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. Clay, CR 12.02, Comment 7; Perry v. Creech Coal Company, D.C.Ky., 55 F. Supp. 998; Ingram v. Ingram, Ky., 283 S.W.2d 210. Such motion is similar to the former general demurrer, in that the motion admits the well-pleaded facts but challenges the right to relief.

The determination of this case must be made from an examination of the complaint. As will be seen, it has been concluded that the court was right in overruling the motion to dismiss.

It was alleged that no address was given for three of the petitioners: Jessie O. McMurray, Randolph Jones, and Mamie E. Jones. The requirement of KRS 160.220 that the “place of residence” shall be shown has been held to be mandatory. Bogie v. Hill, 286 Ky. 732, 151 S.W.2d 765; Allen v. Hardin, 272 Ky. 396, 114 S.W.2d 494. Considering the allegation of “no address” in connection with the statute as ' tantamount to an allegation of “no place of residence,” it is clear that these three named persons were not proper signers. See Bowling v. Amis, 286 Ky. 738, 151 S.W.2d 760.

It also was alleged that the signatures of W. O. Leonard, Clair Davis, Oleda Woods, Charles A. Woods, Claude Page, and James Tucker appear on both nominating petitions and that Jones’ petition was filed first. Appellants contend that the time of signing the petition should determine the validity of the signatures, while appellee urges that the time of filing the petition should control.

In Fluff v. Black, 259 Ky. 550, 82 S.W. 2d 473, two petitions were filed on the same day. Five of the petitioners signed both petitions. It was held that the first petition was valid when filed and was not invalidated by the filing of the later petition. The five signatures on the second petition were held to be invalid. See also Bowling v. Amis, 286 Ky. 738, 151 S.W.2d 760.

As a practical matter, the time of filing of the petition is the only determinable time and must control. It might be difficult to show the time a petitioner signed the petitions. In case of duplicate signing by a large number of petitioners (in Bowling v. Amis, there were forty-one), the time element in signing further complicates the problem. Further, the candidate who filed his petition first would not know how many of his signers had been previously induced by the opposing candidate to sign his petition. Therefore, it is concluded that the time of the filing of the petition should control and that the six persons who signed in duplicate are valid signers of Jones’ petition and their signatures should not be counted on Gardner’s petition.

It also was alleged that one of the signatures on Gardner’s petition “appears to be William Creach Womack” and “that William Crach Womack is not a registered voter in Educational District #5.” Appellants attack the use of the word “appears.” In the light of Cassady v. Jewell, 268 Ky. 643, 105 S.W.2d 810, this may be a valid criticism of the allegation. The pertinent allegation, however, states that Womack is not a registered voter.

KRS 160.220 requires that the signer shall be a legal voter. In Hall v. Reid, Ky., 305 S.W.2d 923, it was held that the signer of a nominating petition filed under KRS 118.080 should be a registered voter legally qualified to vote for the candidate. It has been held that registration is a condition precedent to becoming a qualified voter but it is unnecessary in order to be considered a legal voter. Meffert v. Brown, 132 Ky. 201, 116 S.W. 779, 1177. However, the qualification of a petition signer or the lack thereof should be determined as of the day the petition is filed with the county clerk. Hall v. Reid, Ky., 305 S.W.2d 923; McAuliffe v. Helm, 157 Ky. 626, 163 S.W. 1091. In view of the rule governing sufficiency of the complaint, the allegation as to lack of registration was sufficient to raise the disqualification of Womack.

It is concluded that three signers were disqualified for failure to show place of residence; six signers were disqualified by reason of having previously signed ap-pellee’s petition; and one signer was disqualified as not being a legal voter. Striking these ten signatures from the fifty-eight on Gardner’s petition leaves forty-eight valid signatures, two short of the statutory requirement. The court was correct in overruling the motion.

It is unnecessary to discuss the other questions presented.

Judgment affirmed.


author: STANLEY, Commissioner. MONTGOMERY, Judge

text:
    CITY OF GEORGETOWN, by etc., Appellants, v. Earl MORRISON, Sheriff of Scott County, Ky., et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 16, 1962.

      Richard M. Compton, Georgetown, for appellant.
    McKnight & Pryor, Georgetown, for ap-pellee.
   STANLEY, Commissioner.

The vital provisions of an ordinance of the City of Georgetown levying a motor vehicle license tax are quoted:

“Section 1. Tax Imposed. Every person, firm, partnership, corporation and association residing or having its place of business or activities in the City of Georgetown, Kentucky, who operates a motor vehicle of any kind within said City shall pay to the City of Georgetown a license fee of Ten Dollars ($10.00) for each vehicle so owned and operated.
"Section 2. Non-residents. Such license shall also be required of every person, firm, partnership, corporation and association residing outside of the City of Georgetown, Kentucky, and owning or operating or causing to be operated any motor vehicle upon and over the streets thereof in connection with a business conducted, or regular occupation followed within the City limits, or as a means of conveyance to and from a position, job or labor for which remuneration is received from such business or occupation in said City.”

Other sections provide that a license “sticker,” furnished by the City, shall be placed on the windshield of each car; that the proceeds shall go into the general fund of the City; and that a violation of the ordinance is punishable by a fine of not less than $10.00 nor more than $50.00. ■

The enabling statute, KRS 86.120, relating to the organization and government of cities of the fourth class reads: “The city council may: License, tax and regulate, within the city * * * vehicles,” etc.

Two actions for declaratory judgments and injunctive relief, filed by Earl Morrison, Sheriff of Scott County, and by Howard Kelsey, a nonresident, challenge the validity of the ordinance as it affects their motor vehicles. On a consolidated trial, the circuit court adjudged the ordinance to be a revenue measure and the license may be imposed only upon citizens of Georgetown and cannot be imposed upon the sheriff of the county or temporary residents of the City or anyone who does not have the right to vote therein. The City and its Mayor and Councilmen appeal.

The trial court found that the plaintiff, Earl Morrison, the sheriff, and two deputy sheriffs jointly owned an automobile. It was registered as “Sheriff of Scott County,” and bore insignia showing it to be the car of the sheriff. The court further found that Morrison and his deputies, “in the performance and discharge of the duties of the office, were required to use and did use the automobile solely in the performance and discharge of their official duties.” One of the court’s reasons for denying the City’s claim that the ordinance is a valid tax enacted under its police power was that it undertook to impose a license tax upon the sheriff “for the privilege of discharging the official duties that the people in a free election voted that he must perform for all the citizens within the confines of the county,” and to prohibit the sheriff and his deputies from performing “the duties of the highest police officer in the county unless he pays for the right to do so by taking out a license for the city authorities before he can carry out his duties imposed by the Constitution of Kentucky.”

In general, it may be said that license taxes may be imposed by a city for the purpose of regulation or revenue or for both purposes. Commonwealth, for Use and Benefit of City of Hazard v. Kelley, 229 Ky. 722, 17 S.W.2d 1017; George Wiedemann Brewing Co. v. City of Newport, Ky., 321 S.W.2d 404. But a license tax may not under the guise of police power be imposed for revenue purposes. 33 Am.Jur., Licenses, § 19; City of Henderson v. Lockett, 157 Ky. 366, 163 S.W. 199; Schoo v. Rose, Ky., 270 S.W.2d 940. Not only the evidence of the conditions or the circumstances under which the present Georgetown ordinance was enacted but legal criteria for determining the distinction sustain the trial court’s finding that it is a revenue measure. Johnson v. City of Paducah, 285 Ky. 294, 147 S.W.2d 721; 33 Am.Jur., Licenses, § 19; 38 Am.Jur., Municipal Corporations, § 366. For the purposes of these cases the distinction does not appear to be material. But it is pertinent to note the concept of a tax of this character on motor vehicles is that it is in the nature of a toll or compensation for the privilege of using the streets of the city, rather than a tax on property. 38 Am.Jur., Municipal Corporations, § 368. Under this ordinance the license is imposed on the use of vehicles and is payable by either the owners or the operators. It is unnecessary here to express an opinion upon the appellees’ contentions that on this account the ordinance exceeds the grant of the Enabling Statute, KRS 86.120(1), or that it is invalid for indefiniteness and uncertainty. Our decision is confined to the liability for the use of the particular vehicles involved.

I.

The appellee Howard Kelsey lives in Danville. He had been employed as a brick mason by a firm engaged in erecting a building in Georgetown for two months before the enactment of the ordinance and one month thereafter. Kelsey used a station wagon in connection with his work for which he paid the city license because the vehicle was left in Georgetown practically all the time; but he declined to pay the license or, as he expressed it, “purchase stickers” for three trucks used on the job. One of them was in the City three to five times, one of them “maybe two days a week” and the other was in Georgetown only one time during the period. Kelsey was issued a citation by Georgetown police to appear in court for trial for violating the ordinance in respect to these three vehicles. His present suit was promptly filed, and, as stated, the court adjudged non-liability for the tax and granted injunctive relief.

It has been consistently held that a nonresident of a city who operates a motor vehicle within the city boundaries only occasionally or temporarily cannot be required to pay a license tax for the use of the streets. If he could, it might result in an owner or operator having to obtain a license from every town in which his casual engagements might call him or in which he might go. This would be in derogation of the public right to use the highways of the state. Commonwealth, for Use and Benefit of City of Hazard v. Kelley, 229 Ky. 722, 17 S.W.2d 1017; Rogers v. City of Louisville, 296 Ky. 238, 176 S.W.2d 387; Young and Jones v. Town of Campbellsville, 199 Ky. 284, 250 S.W. 979; Cf. H. H. Leet Furniture Co. v. City of Richmond, Ky., 357 S.W.2d 329; 5-A Am.Jur., Automobiles and Highway Traffic, § 109. But local authorities have the power to lay a license tax on automobiles or upon nonresident owners who are regularly employed in the city and use the vehicle in going to and from their work or making regular use of the streets and municipal facilities of the city in furtherance of their occupation or carrying on their business located therein. Commonwealth, for Use and Benefit of City of Hazard v. Kelley, supra; Johnson v. City of Paducah, 285 Ky. 294, 147 S.W.2d 721; Watson v. City of Paducah, 312 Ky. 680, 229 S.W.2d 453. Indeed, § 2 of the Georgetown ordinance seems to provide that the license is payable only by a nonresident within this latter class. However, we think the judgment went too far in holding the ordinance applicable only to owners or operators of motor vehicles who are resident voters, and that it should have been limited to the plaintiff Kelsey.

II.

The appellee Morrison was sheriff of Scott County. He, too, lived outside the city limits. He was cited by city police to appear for trial on the charge of violating the ordinance by using an automobile without having paid the city license tax.

The automobile was jointly owned by Morrison and two deputy sheriffs, as stated above, but the bill of sale and the state registration were merely “Sheriff of Scott County.” The car was equipped with a siren and flasher light and had large stars and the word “Sheriff” on each side. The automobile was used in performing official duties and official duties only. When not in such use the car was parked, day and night, in a space at the side of the courthouse, specially reserved by the City for the sheriff’s car. The Commonwealth paid the sheriff’s office for the use of the vehicle on a mileage basis, with a maximum computed at $125 a month, KRS 70.160, 70.-170, for patrolling the highways and checking on roadhouses. The trial court, during the course of Morrison’s examination, stated he would take judicial notice that it is the practice of sheriffs in central Kentucky to provide an official car in the same way as that provided by Sheriff Morrison, but he would permit attorneys for the City to show otherwise. No evidence to the contrary was introduced.

While there is no statute requiring the sheriffs or their deputies to own motor vehicles, their use is absolutely necessary in the performance of the multiplicity of duties as the chief police officers of a county and bailiffs of the courts. Cf. Funk v. Milliken, Ky., 317 S.W.2d 499, Syl. [9], [17]. Among those duties, in particular, is the duty to convey and transport prisoners to penitentiaries and to patrol all public roads of the county, investigate automobile accidents, etc. KRS 70.130, 70.150. The sheriff is required to make monthly visits and inspections of dancehalls, roadhouses, etc.

It is to be considered that the state has special provisions for the registration and licensing without payment of the ordinary fees of motor vehicles exclusively owned and operated by governmental units, including a city specifically. KRS 186.060. And members of the armed forces of the United States are exempted from the requirement of operator’s licenses when operating a vehicle in the course of their services. KRS 186.420(2).

As stated in Annotation, “Municipal ordinance relating to persons engaged in specified occupations or professions as applicable to officials or employees of state or political subdivision other than the municipality,” 123 A.L.R. 1383, there is little authority on the question of whether a municipal ordinance relating to persons engaged in specified occupations or professions is applicable to officials or employees of the state. The case to which the annotation is appended, Ex parte Means, 14 Cal.2d 254, 93 P.2d 105, 123 A.L.R. 1378, holds that an ordinance making it unlawful for any person to perform labor as a journeyman plumber without procuring a certificate of registration from the city, to procure which he must subject himself to an examination as to his qualifications and make bond of indemnity, could not be applied to a state employee working on a state project within the city limits. The court recognized the rule of statutory construction, based upon sound public policy, that the state is not bound by a city ordinance unless it is mentioned specifically or by necessary implication, and that courts would not assume a legislative intention on the part of the city council to interfere with acts of the general government. The opinion uses as an example the holding of the Supreme Court that a state has no power to require employees of the United States to obtain a license to operate an automobile. Johnson v. State of Maryland, 254 U.S. 51, 41 S.Ct. 16, 65 L.Ed. 126. Pertinent to the case at bar is the reasoning of the Supreme Court in the Johnson case that the requirement that drivers desist from performance of their duties until they have passed an examination and paid a fee for permission to drive within the city, “does not merely touch the Government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders and requires qualifications in addition to those that the Government has pronounced sufficient.”

The Supreme Court had previously said: “The power to tax the exercise of a privilege is the power to control or suppress its enjoyment.” Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81. This court in Kentucky Institute for Education of Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402, 8 L.R.A.,N.S., 553, pointed out that a municipal government is but an agent of the state — not an independent body — and that in creating municipal governments, the state does not cede to them any control or management of the state’s property located within them, nor over any property which the state has authorized another to control; hence, the city could not impose a charge upon the state’s property, nor, by way of illustration, upon a county courthouse.

It is said in 33 Am.Jur., Licenses, § 8, “License fees cannot be exacted of public servants or those engaged in public work.” Our case of Figg v. Thompson, 105 Ky. 509, 49 S.W. 202, 44 L.R.A. 135, 88 Am. St.Rep. 316, is cited as authority. We held in that case that the imposition of a city license tax on contractors for street construction was invalid.

It is said in 53 C.J.S. Licenses § 10 that ordinarily a municipality may not enact an ordinance requiring licenses and collect occupation and privilege taxes within their corporate limits where such ordinance is in conflict with or inconsistent with the general law or with the public policy of the state.

It is well recognized that a city cannot impose a license tax on a national bank, deemed to be a federal instrumentality. City of Shelbyville v. Citizens Bank of Shelbyville, 272 Ky. 559, 114 S.W.2d 719. And only because of permission granted to do so by an Act of Congress, known as the Buck Act (4 U.S.Code, §§ 105— 110) we held that a city occupational tax— a license tax — can be imposed upon employees of a federal plant located within the city. Commissioners of Sinking Fund of City of Louisville v. Howard, Ky., 248 S.W.2d 340; Howard v. Commissioners of Sinking Fund, Ky., 249 S.W.2d 816; affirmed, Howard v. Commissioners of Sinking Fund, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617.

It is to be borne in mind that the instant license tax of Georgetown under the Enabling Statute is on the “vehicle” — not the owners or operators — and the tax is a toll for the use of the streets by a vehicle, which in the present case is used exclusively in performing a governmental function of the state. In short, the question is resolved into whether a city may require a tax on the use of a motor vehicle used exclusively in the service of the state on pain of arrest of the officer driving it, and thereby obstruct him in the performance of his duty. Doubtless, out of a decent regard for the situation, city policemen would refrain from arresting the sheriff for violating the ordinance while he was in pursuit of an offender. However, the ordinance authorizes such obstruction of justice. Surely that offends public policy. It seems to us, therefore, this ordinance may not be made to apply to the motor vehicle used and operated exclusively in the service of the state, as the circuit court adjudged.

III.

The judgment in the Kelsey case may be modified to accord with the limitations herein stated, and as such it will be affirmed. The judgment in the Morrison case is affirmed.

Judgments affirmed.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent from the majority holding that Earl Morrison is exempt from paying the $10 license tax imposed by the ordinance set forth in the opinion. It seems to me that the license tax is required of the owner or operator of a motor vehicle for the privilege of operating it upon and over the streets of the City of Georgetown, as opposed to the use to which the vehicle is put in the occupation of the owner or operator.

The tax ordinance is a revenue measure. I can see no valid distinction between the payment by the sheriff of this license fee and the purchase of the usual $5 auto license registration fee which, admittedly, he has paid to the Commonwealth of Kentucky annually, or the payment of city property .taxes, which it is shown that he has paid. The car was privately owned and used by the sheriff in his business. He is not required by any statute to own or operate such a car or to have one in the conduct of his business. Had the vehicle fallen in the category of an official vehicle, it should have had a license tag issued indicating such, and would have been owned by a governmental body, in which event I would readily agree that it would not be subject to the city license tax.

Under the circumstances of this case, I see no justification for excusing appellee from bearing the same burden of license tax under the ordinance as that of anyone else who owns or operates a motor vehicle upon and over the streets of the City of Georgetown. I concur in the opinion in City of Georgetown v. Kelsey, a companion case this day decided.


author: CULVER, Justice.

text:
    John H. WHITE, Petitioner, v. Paul BOND et al., Respondents.
    No. A-9001.
    Supreme Court of Texas.
    Nov. 21, 1962.
    White & White, Guy Hazlett, Walter R. Allen, Borger, for petitioner.
    Linn & Helms, Spearman, for respondents.
   CULVER, Justice.

The respondents, Paul Bond, R. C. Jin-kins, J. L. Harris and Mrs. Ruby Smith, separately sued the petitioner, White, under Art. 4004, Vernon’s Annotated Civil Statutes, for damages based on certain fraudulent misrepresentations that induced them to purchase stock in a proposed uranium mining corporation. These suits were consolidated, and a jury verdict was returned for both actual and exemplary damages in favor of all respondents. Judgment was entered accordingly, and on appeal the judgment was affirmed. Tex.Civ.App., 355 S.W.2d 225.

The Court of Civil Appeals held on the principal point raised here that the testimony does not show as a matter of law that suits were filed more than two years after the discovery of the fraud or when, by the exercise of due diligence, they should have discovered it and that since White failed to request an issue on the limitation question it was therefore waived. It is our view, that both by their pleadings and evidence, it is shown conclusively that the respondents, Jinkins, Smith and Harris, more than two years prior to the institution of their suits, had knowledge of such facts that would cause a reasonably prudent person to make inquiry which would lead to a discovery of the fraud. Knowledge of such facts is in law knowledge of the fraud itself. Wise v. Anderson, Tex., 359 S.W.2d 876 (1962); Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 137 A.L.R. 263. Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810. Therefore, as to these respondents, the trial court should have instructed the jury against them.

In their pleadings the respondents alleged “that plaintiff did not discover the fraud alleged until on or about September 15, 1958, some five months prior to said date plaintiff became suspicious of defendant’s action and began an investigation which was finally completed on or about said date”. Their suits were filed in August of 1960. White pleaded the two-year statute of limitations.

The respondents alleged that the misrepresentations that induced them to purchase the stock were made in July of 1955, but nowhere in their pleadings did they assert that the falsity of those representations could not have been earlier ascertained by the use of reasonable diligence or state any facts that would justify and support such a conclusion. Bremond v. McLean, 45 Tex. 10; Cohen v. Shwarts, Tex.Civ. App., 32 S.W. 820 (1895), no writ history; Logan v. Taylor, Tex.Civ.App., 118 S.W.2d 1094 (1938) no writ history.

The representations which the jury found to have been made falsely and upon which the respondents relied, were as follows: that White had good title to the mining claims in question; that “this was a big group with people all over the country in it and that it had businessmen, mining men, geologists and other specialists in charge of various phases of management”; and that this was “good stock”. Incidentally the jury found that White did not falsely represent that the mining claims were located in an area of good uranium potentialities.

The testimony of the respondents showed that either at or shortly after their purchase of this stock they had heard of the existence of a lawsuit questioning White’s title to these uranium claims and in September or October of 1957 they learned from him that he had expended $2750.00 in settlement of this lawsuit. In fact one of the respondents testified that he learned a few months after his purchase that the suit had been settled. It is also undisputed that respondents knew in 1957 that the stock was worthless and that the corporation was insolvent.

In June of 1958 respondents filed a motion to take the deposition of White in order to perpetuate his testimony for the purpose, as stated, to see if White had done away with respondents’ money in a manner not authorized. Respondents were suspicious that he might have misappropriated some of their money. The deposition is not before us and so far as we are able to ascertain, there is no testimony as to what they discovered in White’s deposition except as to how the funds were expended. Of course they already knew that some of the proceeds from the sale of stock had been used by White to clear the title to his uranium claims and on learning that they were upset and dissatisfied. Thus more than two years before the filing of these suits these three respondents knew that White did not have good title to his mining claims and that the stock was not good.

So far as the representation made by White that there were businessmen and geologists from all over the country interested in this venture is concerned, the evidence does not disclose that there was ever any attempt on the part of these respondents to make any inquiry of White or of anyone else as to who these people were or the character of their interest. From time to time they had a number of meetings with White after suspecting that he had misrepresented the facts and by the exercise of reasonable diligence they could have ascertained the truth or the falsity of that representation.

We therefore hold that the claims of respondents, Jinkins, Smith and Harris are barred by the two-year statute of limitations. Art. 5526, Vernon’s Annotated Civil Statutes.

The respondent, Bond, filed his suit on September 28, 1959, almost a year earlier. It is not so clear as it is in case of the other respondents that his suit was barred by the statute of limitations as a matter of law. However, in either event Bond is precluded from recovery in view of our holding on the second point.

Respondents have failed to prove damages in accordance with the measure laid down in Art. 4004 under which they brought their suit.

The jury was required to find the amount of actual damages suffered by reason of the purchase of the stock and were instructed that the term “actual damages” means the difference between the value of the stock as represented and the actual value of the stock. The jury in answering that question assessed the damages to each respondent in the amount paid for the stock. Obviously, before the difference can be ascertained, the value of the stock as represented and the actual value must be found. From all the testimony the jury might well infer that the shares of stock had little or no value at the time of the purchase but the record is wholly silent as to what value the stock would have had if the representations had been true. So the findings of the jury are wholly speculative.

In Bryant v. Vaughn, Tex., 33 S.W.2d 729, we said:

“In order for a party to recover the measure of damages provided by the above statute [Art. 4004], it is essential that he allege and prove the value of the property received, if it had been as represented, and its actual value in the condition in which it was delivered at the time of the contract, the difference between such value constituting the measure of damages.”

See also Sibley v. Southland Life Ins. Co., Tex., 36 S.W.2d 145 (1931); Reed v. Hester, Tex.Com.App., 44 S.W.2d 1107; Denman v. Stuart, 142 Tex. 129, 176 S.W.2d 730 (1944).

We recognize the problems confronting the respondents in attempting to prove the value of the stock had the representations been true, but that does not supply the want of necessary evidence. Had they chosen to sue for rescission of their contracts their pathway would not have been strewn with such difficulties. But since they brought their action under Art. 4004 to be successful they must comply with the rule of damages therein prescribed.

Evidently White did have good title to the claims subject to the cloud cast on his title by the lawsuit brought by other parties. That lawsuit, however, was compromised and settled by the expenditure of some $2750.00 on January 4, 1956. It appears that White had successfully defended this suit in the trial court, and the compromise was effected after the losing parties had taken an appeal. Naturally the capital assets of the corporation were reduced in this amount, but that fact does not tend to prove what the stock of the respondents would have been worth had this suit been disposed of before they made their purchase. One of the false representations asserted by respondents in their petition was that “the money obtained from plaintiff would only be used to develop the claims”, but this complaint was dropped and not submitted to the jury.

The other two representations found by the jury to have been false were rather vague and indefinite and could hardly form the basis for any proof as to value of the stock, namely, that White had represented that a number of business and professional men whose names were unknown and undisclosed, were associated with him in this promotion and that it was “good stock”. There was testimony to the effect that White had stated to the respondents that they were being let in on the “ground floor” at one cent per share and at some time in the future the stock would be offered for sale to the public at ten cents per share and further that the respondents could reasonably expect at any time to get three or four cents per share. This testimony, however, does not tend to prove the value of the stock nor is it one of the alleged misrepresentations upon which the jury found that the respondents relied. Actually all the evidence indicates that this was a wholly speculative promotion on which the respondents hoped to reap large profits which unfortunately and, is so often the case, failed to materialize.

For the reasons above assigned we hold that the respondents are not entitled to recover damages in this case. The judgments of the trial court and that of the Court of Civil Appeals are reversed and judgment here rendered in favor of the petitioner.

GRIFFIN, J., not sitting.


author: PER CURIAM.

text:
    W. Lee MOORE, Jr., Petitioner, v. Ruby SAVAGE, Respondent.
    No. A-9217.
    Supreme Court of Texas.
    Nov. 14, 1962.
    Rehearing Denied Dec. 19, 1962.
    Fred S. Abney and Charles Ben Howell, Dallas, for petitioner.
    Fritz & Vinson, Dallas, for respondent.
   PER CURIAM.

Ruby Savage, a non-borrowing plaintiff, was awarded damages against Signature Loans, Inc. and W. Lee Moore, Jr. for “unreasonable collection efforts” directed against said Ruby Savage in an attempt to collect a loan made to her employee, Arzalia Bailey. This recovery has been affirmed by the Court of Civil Appeals. 359 S.W.2d 95. The trial court defined “unreasonable collection efforts” as meaning “such efforts as a person of ordinary care and prudence would not have used under the same or similar circumstances.” While the words of this definition are those generally used in the definition of “negligence”, they were here used to define unreasonable collection efforts as distinguished from negligent actions. It is more accurate therefore to speak of “unreasonable collection efforts” than “negligent collection efforts.”

While respondents (defendants in the court below) objected to the definition of “unreasonable collection efforts” and suggested a form of definition to be given in lieu of that actually given, the objection made was not tenable because it was couched in general terms and the suggested definition did not embody a proper rule of liability. Rule 274, Texas Rules of Civil Procedure. Hence the correctness of the definition actually given is not before us.

The application for writ of error is refused, no reversible error.