author: CLEMENS, Commissioner.

text:
    Virginia BRUMBAUGH, Plaintiff-Respondent, v. TRAVELERS INDEMNITY COMPANY, Defendant-Appellant.
    No. 32028.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.

      Edward K. Fehlig, Hocker, Goodwin & MacGreevy, St. Louis, for appellant.
    John T. Sluggett, III, St. Louis, for respondent.
   CLEMENS, Commissioner.

The plaintiff-insured had judgment below on her claim for the $1,000 insured value of a diamond ring stolen in a robbery. The defendant-insurer appeals. The issues here are these: Where an insurance agent extends credit for a premium, and pays the premium himself, may the insurer avoid liability because the insured fails to pay the premium to the agent? And, did the defendant give due notice of cancellation to the plaintiff at her “last known address” ?

The case was tried without a jury and the following facts were conceded. While living in Los Angeles County, California, the plaintiff applied to the defendant’s local agent for an all-risk policy on her jewelry. On February 2, 1961, defendant’s general agent, Milton J. Jiler, issued a three-year policy. He mailed the policy to plaintiff on February 20, 1961, with a letter of transmittal. The letter thanked plaintiff for the business and solicited further insurance, but made no reference to payment of the stated premium of $56.16. The policy covered the subsequent loss of plaintiff’s $1,000 diamond ring by a robbery on July 11, 1962, in St. Louis. Plaintiff made timely proof of loss, and the defendant denied liability. It contends that the policy was never in effect because the plaintiff failed to pay the premium and, alternatively, that it canceled the policy before the loss occurred.

We must first decide what law governs the case. The policy was issued and delivered to the plaintiff in California, where she resided and had the insured property. So, it was a California contract and this action is to be governed by the laws of California as to the substantive rights of the parties, and by the laws of Missouri as to procedure. Thompson v. Traders’ Ins. Co., 169 Mo. 12, 68 S.W. 889(3); Limbaugh v. Monarch Life Ins. Co., Springfield, Mass., Mo.App., 84 S.W.2d 208(1); and Ashburn v. Sun Life Assur. Co. of Canada, Mo.App., 197 S.W.2d 694(2). We take judicial notice of the common law and statutes of California, even though not pleaded. Sections 490.080, 490.090, V.A.M.S.; Redick v. M. B. Thomas Auto Sales, 364 Mo. 1174, 273 S.W.2d 228(4). Accordingly, the defenses of nonpayment of premium and cancellation will be measured by the law of California, and our review will be according to Missouri law.

Defendant’s first point is that it is not liable because the plaintiff failed to pay the premium. The defendant’s agent, Milton J. Jiler, issued the policy on February 2, 1961. The premium for the three-year term was $56.16. Although Mr. Jiler had no record of any payment from plaintiff, he had paid that amount to the defendant, explaining: “That’s required by the company. They are not concerned with what my problems are with my policy holders.”

This defense of nonpayment must fail. The insuring clause of the policy says: “In consideration of the stipulations herein named and of the stated premium, this Company does insure the above Named Insured, whose address is shown above * * (Our emphasis.) Section 484 of Deering’s California Codes. [West’s Annotated California Insurance Code, § 484] provides: “An acknowledgment in a policy of the receipt of premium is conclusive evidence of its payment * * Thus, in the case of Bloom v. Pacific Mut. Life Ins. Co., 85 Cal.App. 419, 259 P. 496 (2), it was held that delivery of a similar policy to the insured, absent fraud or reservation as to payment, made the policy effective upon delivery.

Ours is a case where the insurer’s agent on his own responsibility extended credit to the insured, the insurer issued the policy, and the premium was paid by the agent. In such cases the general rule is that nonpayment of the premium by the insured to the agent does not defeat the right to recover from the insurer. See Appleman, Insurance Law and Practice, Sect. 8007; 44 C.J.S. Insurance § 272, p. 1087; and 29 Am.Jur., Insurance, Sect. 540. This principle was recently followed in the case of Negvesky v. Alston, 152 Cal.App.2d 66, 312 P.2d 728(1), where it was said:

“The insurance company does not dispute the legal rules that when a policy of insurance is issued and delivered under an arrangement whereby credit is extended to the insured for payment of the premium the insurer is liable for a loss occurring during the credit period. * * * ”

To the same effect are the cases of Hooker v. American Indemnity Co., 12 Cal.App.2d 116, 54 P.2d 1128(1); Vierra v. New York Life Ins. Co., 119 Cal.App. 352, 6 P.2d 349(4); and Courdway v. People’s Mut. Life Ins. Co. of California, 118 Cal.App. 530, 5 P.2d 453(2), where the insurer was held liable on a delivered policy even though the insured’s postdated check for the premium, payable to the agent personally, was returned because of insufficient funds.

So, we hold that the trial court did not err in denying the proposed defense of nonpayment of the premium. This brings us to consideration of defendant’s second point, that the policy had been canceled before the loss.

We digress here to note the scope of our review. The case was tried without a jury, so we review the case upon the law and the evidence produced below, weigh the evidence, and render such judgment as the trial court ought to have given. Civil Rule 73.01(d), V.A.M.R.; Minor v. Lillard, Mo.Sup., 289 S.W.2d 1. There were no live witnesses before the trial court. The only evidence was the policy, the agent’s letter of transmittal, and his deposition. Because we are in as good a position to weigh that evidence as was the trial judge, the usual rule of deference to him does not apply. Schwartz v. Shelby Construction Co., Mo.Sup., 338 S.W.2d 781 (6); Sadlon v. Richardson, Mo.App., 382 S.W.2d 9(3, 4).

Returning to the question of evidence on the defendant’s claim of cancellation, we note that this is an affirmative defense on which defendant had the burden of proof. McCartney v. State Ins. Co., 45 Mo.App. 373(1, 2); Gennari v. Prudential Ins. Co. of America, Mo., 335 S.W.2d 55(2); Sect. 509.090, V.A.M.S. This is also the law of California. See K. C. Working Chem. Co. v. Eureka-Security F. & M. Ins. Co., 82 Cal.App.2d 120, 185 P.2d 832(9, 10), where the court said:

“ * * * In order to establish cancellation of a policy of insurance it must be shown either that the conditions upon which the company was allowed to cancel the policy were strictly complied with, or that the insured, knowing all the facts, waived such compliance. [Citing cases.] The burden of proving cancellation is upon respondent. * * * ”

The policy listed plaintiff’s address as “1530 7th Street, Santa Monica, L. A. Co., California.” It stated:

“ * * * This Policy may be canceled by the Company by mailing to the Assured at the address shown in this Policy or last known address written notice stating when not less than five (5) days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date of cancelation stated in the notice shall become the end of the policy period. * * (Our emphasis.)

Admittedly, the defendant did not send a notice to plaintiff’s address as given in the policy. Instead, it relied on the “last known address” clause and now contends that it mailed a proper notice of cancellation by registered mail to plaintiff at each of two separate addresses, 4015 and 6015 Interceptor, Los Angeles, California. There was no documentary evidence of such mailing. We have only the agent’s deposition for proof of notice of cancellation.

Mr. Jiler’s deposition shows no chronology as to his conduct and knowledge about the notice of cancellation. In the order in which he answered the questions put to him, he testified in substance: Plaintiff was referred to him by another policy holder and she then lived at 1530 Seventh Street in Santa Monica, to which address he' mailed her the policy. On May 11, 1961, the premium had not been paid, so he had the policy canceled by two notices sent to 4015 and 6015 Interceptor, Los Angeles. Mrs. Brumbaugh had moved to that address and didn’t notify him. He saw her at work in an effort to collect his premium and learned of her address, but it was only a temporary one at a motel on Ocean Avenue in Santa Monica, so he didn’t “put in the change of address.” He believed Mrs. Brumbaugh had phoned him of her change to the address on Interceptor. He believed the notices were sent by registered mail' by the defendant company, and that they usually let him know if letters were returned, but he wasn’t sure. Mrs. Brum-baugh phoned him of her change of address to Interceptor, but he learned of the other changes of address by going to where she worked.

The plaintiff’s “last known address” was that place where mail was most likely to reach her, and that would be her residence. See San Diego Sav. Bank v. Goodsell, 137 Cal. 420, 70 P. 299(6).

We must decide a simple factual question: Does the defendant’s evidence, and the reasonable inferences derived therefrom, warrant our forming a belief in its proposition that it mailed a notice of cancellation to the plaintiff’s last known address? For the reason previously stated, the rule of deference to the trial court is not applicable here and this court is the sole judge of the credibility of Jiler’s testimony. Buford v. Moore, Mo.Sup., 177 S.W. 865(2). Even though the testimony is uncontradicted, we need accept it only insofar as it appears to us to be credible. Milne v. Chicago, R. I. & P. Ry. Co., 155 Mo.App. 465, 135 S.W. 85(5). So considered, Jiler’s testimony does not support defend ant’s proposition of cancellation. First, there is no evidence of the content of the self-styled notice of cancellation. There was no plain statement that anything was mailed, only Jiler’s statement that he had notices sent (apparently by someone else). Second, Jiler both asserted and denied that Mrs. Brumbaugh notified him she had moved to one of two different addresses on Interceptor Street. At some unstated time, Jiler said, he learned of other changes of her address. We cannot determine from the evidence just what knowledge Jiler had of plaintiff’s past or then present residence at the time the two notices were claimed to have been mailed.

We can only conclude from all this that the defendant has failed to show strict compliance with the policy provision as to its right to cancel the policy.

The judgment of the Circuit Court for the plaintiff should be affirmed.

PER CURIAM:

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

Accordingly, judgment is affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    LAKEWOOD PARK CEMETERY ASSOCIATION, Plaintiff-Appellant, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT et al., Defendants, The Metropolitan St. Louis Sewer District and Bank of St. Louis, Defendants-Respondents.
    No. 32081.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.
    Eugene V. Krell, St. Louis, for appellant.
    George C Hays, St. Louis, for respondent Metropolitan St. Louis Sewer Dist.
    Norman Barken, of Lowenhaupt, Chas-noff, Freeman & Holland, St. Louis, for respondent Bank of St. Louis.
   CLEMENS, Commissioner.

This is an action to enjoin the issuance and enforcement of special tax bills by the. defendant Metropolitan St. Louis Sewer District (hereinafter referred to as MSD), and for a declaratory judgment that plaintiff’s property is not subject to taxation by that defendant. Judgment was rendered against the plaintiff, and it appeals. The named defendant has filed and submitted its motion to transfer the cause to the Supreme Court.

We believe defendant’s motion to transfer should be granted. Section 3 of Article V, Mo.Const., 1945, V.A.M.S., vests jurisdiction there “ * * * in all civil cases where the state or any county or other political subdivision of the state * *

This conclusion is based on the premise that MSD' is more akin to a political township (which is held to be a political subdivision) than it is to municipal corporations, such as, cities and school districts (which are held not to be political subdivisions).

We are aware that other municipalities, such as, cities and school, road and drainage districts, are not “political subdivisions.” But their exclusion is based on reasoning not applicable to MSD. The genesis of this line of cases was in 1927 in the case of Kansas City v. Neal, 122 Mo. 232, 26 S.W. 695(2). That decision was based on a dogmatic definition, the Supreme Court tersely saying: “ * * * ‘Subdivision’ means to divide into smaller parts the same thing or subject-matter, and no city or town in this state is a subdivision thereof * * This same reasoning was later applied in the line of cases excluding school, drainage and road districts from the term “political subdivision.” The line began in 1900 with the case of School District No. 6 in Harrison County v. Burris, 84 Mo.App. 654, l. c. 662, which ruled that inasmuch as a city was not a political division, neither was a school district or a levee district, because they possessed less power than a city.

Superficially, these two lines of cases would seem to apply to political townships and also exclude them from the category of “political subdivisions”; but in 1927 a third line of cases branched out, and a dozen or so cases have since held that a political township was a “political subdivision.” The reasoning seems to be just as applicable to MSD as to a political township. The foundation of this line of cases was laid in the case of Harrison & Mercer County Drainage Dist. v. Trail Creek Township, 317 Mo. 933, 297 S.W. 1(1), where the Supreme Court retained jurisdiction, saying:

“ * * * The township organization law provides for a distinct and separate government of the township, as a unit of government, in those counties of the state voting to adopt the township organization plan. It provides for the election of certain township officers and prescribes their governmental duties, powers, and authority. It provides for the assessment, levy, and collection of the revenue in such organized townships, not only to defray the usual and ordinary township governmental charges and expenses, but also for road and bridge uses and purposes. In other words, the general township organization law, and the constitutional authority under which such general law was enacted, in our judgment and opinion, contemplates and provides for the creation of a separate and distinct unit of government, known as an organized township, having certain governmental powers and charged with certain governmental obligations and duties, similar to those of a county. [Our emphasis.] Hence, we think that the framers of our Constitution of 1875, when they wrote into section 12, art. 6, of said Constitution, that the Supreme Court shall have exclusive jurisdiction on appeal, ‘in cases where a county or other political subdivision of the state * * * is a party,’ must have had in mind, in the use of the words ‘or other political subdivision of the state,’ that the General Assembly, pursuant to the authority granted by section 8, art. 9, of the same Constitution, might or would provide, by general law, for the creation of the organized township, as a unit of government, separate and distinct from the county.”

■ As said, our conclusion that MSD is a “political subdivision” is based on the similarity between political townships and the defendant MSD. Such townships have consistently been held to be political subdivisions because of the county-like functions they perform. The same is true of MSD.

MSD was organized pursuant to Sects. 30(a) and 30(b) of Article VI, Mo.Const., 1945. The first section authorizes the establishment of “ * * * a metropolitan district or districts for the functional administration of services common to the area included therein. * * * ” The latter section provides that the “plan” of such district “ * * * shall become the organic law of the territory therein defined, and shall take the place of and supersede all laws, charter provisions and ordinances inconsistent therewith relating to said territory. * * * ”

Under the duly adopted plan of the defendant, it does encroach upon the powers of the City and County embraced within its territory. It is empowered to protect the public health and welfare by preventing or abating the pollution of water; it is vested with complete regulatory power over the construction of all sewer or drainage facilities, whether public or private, and it is obliged to approve, revise, or reject the plans and designs of such facilities proposed to be constructed; it is empowered to subdivide the District into subdistricts which are legal entities on the same governmental level as the District but of lesser territorial extent; and it is vested with complete regulatory power over building construction and planning and zoning within the flood plain of any watercourse or stream running in or through or bordering on the District.

Re-reading the rationale in the Trail Creek Township case cited above, it seems to apply directly to the situation of the MSD. What was said of Trail Creek Township by the Supreme Court at 297 S.W. 1(1), supra, also seems true of MSD. It, too, has “governmental obligations and duties, similar to those of a county.” We believe its status is that of a “county or other political subdivision” and, therefore, that the Supreme Court has jurisdiction of this appeal under Section 3 of Article V, Mo.Const., 1945. The appeal should be transferred to the Supreme Court.

PER CURIAM:

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

Accordingly, the case is ordered transferred to the Supreme Court.

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


author: TOWNSEND, Commissioner.

text:
    STATE of Missouri ex rel. Elbert MOORE and Alice Moore, Plaintiffs-Appellants, v. Frederick WEATHERS and Maryland Casualty Company, Defendants-Respondents.
    No. 32039.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.

      Ackerman, Schiller & Schwartz, Theodore F. Schwartz, Clayton, for appellants.
    Gunn & Gunn, Donald Gunn, Donald Gunn, Jr., James F. Gunn, St. Louis, for respondents.
   TOWNSEND, Commissioner.

In October, 1958, relators brought their action against defendant Weathers, a constable of the Magistrate Court of the City of St. Louis, and his surety, upon his official bond, alleging that on or about March 1, 1958, Weathers made a false return of service of summons upon relators in an action brought against them by Household Finance Corporation, as a result of which, without their knowledge, a final judgment was rendered against the relators in favor of Household Finance Corporation, which relators were compelled to pay. This action against the constable and his surety remained pending and undisposed of in the Circuit Court of the City of St. Louis until March 19, 1962, at which time it was dismissed without prejudice for failure to prosecute. Stating the same cause of action, the petition in the present action was filed on June 13, 1962.

On September 13, 1962, defendants filed their motion to dismiss for failure to state a claim upon which relief could be granted. The defendants’ motion so to dismiss was granted on March 18, 1964. This appeal followed.

The issue is whether the one-year saving clause of the general statutes of limitations is applicable, or, in the alternative, whether the action is governed by a special statute of limitations and so outside the application of the saving clause. l'

Relators place their reliance upon the statute of limitations saving clause, which provides: “If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit * * * such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered * * * ” (Section 516.230, RSMo 1959, V.A.M.S.). They maintain that an action upon the defendant’s bond falls within the three-year statute of limitations set forth in Section 516.130, which covers

“(1) An action against a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, * * *
“(2) An action upon a statute for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state.”

Section 63.160, RSMo 1959, V.A.M.S., relates to the commission, the oath and the bond of a constable of the magistrate court within any city of more than 600,000 inhabitants and concludes “For breach of any of the conditions of such bond suit may be brought as upon other penal bonds.”

Accordingly, relators contend that the cause of action stated in Section 63.160 falls within the descriptive terminology of Section 516.130 above stated and consequently that an action against such a constable in which the plaintiff has been non-suited may be re filed at any time within one year after the non-suit.

By Section 516.300, RSMo 1959, V.A.M.S., it has been enacted that “The provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.”

It has long since been held by this Court that a general statute of limitations which contains a saving clause has no applicability to an action brought under another statute defining a cause of action where the latter statute carries its own special period of limitation. State ex rel. O’Malley v. Musick, 165 Mo.App. 214, 145 S.W. 1184; id. 145 Mo.App. 33, 130 S.W. 398. And it has been stated by the Supreme Court of Missouri that “ * * * it has been held for many years that the provisions of Section 874 [present 516.230] do not apply to actions under statutes which carry their own special statutes of limitation.” Turner v. M-K-T R. Co., 346 Mo. 28, 142 S.W.2d 455, 458, 129 A.L.R. 829.

Section 63.160 contains no statute of limitations. Hence, if we look only to the bare provisions of that section, we find nothing that would make the saving clause of 516.230 inapplicable.

To avoid that result the defendant invokes the doctrine of in pari materia and refers to Section 62.100, RSMo 1959, V.A. M.S., which relates to constables of the magistrate court in a county of the first class. The latter section has its own built-in statute of limitations which provides that a suit upon the constable’s bond in such a county “shall be instituted thereon within three years after the cause of action shall have accrued.” In asserting the doctrine of in pari materia the defendant contends that the term “other penal bonds” found in Section 63.160 must be read in conjunction with Section 63.100; from this the conclusion is reached that the expressed three-year statute of limitations found in Section 63.100 applies to the suit referred to in Section 63.160. Indeed, defendant’s brief states that “ ‘Other penal bonds’ necessarily, by reason, means ‘other constable bonds’ ”. Arguing that Sections 63.100 and 63.160 must be considered in pari materia defendant takes the position that there is no applicable saving statute to prevent the present action from being barred by the statute of limitations.

Whatever may be the full undulating ambit of the vague doctrine of in pari materia, it may be said at the outset that it is one of various aids which are employed in the attempt to discern legislative intent. And it may safely be assumed that it has relation only to statutes dealing with the same subject matter. In the present situation what are the subject-matters respectively of Sections 63.100 and 63.160?

A brief examination of the legislative history of Section 63.160 reveals that this section was part of an act dealing only with the election and duties of constables of magistrate courts in counties of the first class, which, with emergency clause, was approved February 9, 1946. (Laws, 1945, p. 826) This act specifically provides that “The provisions of this act shall apply only to counties within the first class as provided by law * *

Section 63.100 was part of an act of the Legislature relating to the organization of magistrate courts “lying wholly within any city of more than 600,000 inhabitants in any county of this state”, which, with emergency clause, was approved April 16, 1946. (Laws 1945, p. 807)

Prior to the adoption of the Constitution of 1945 and the implementing legislation of 1946 there was a statute providing for actions on constables’ bonds which carried its own three-year period of limitations (RSMo 1939, Section 13375). Although there were various population-based statutes relating to the organization and operation of Justice of the Peace courts (RSMo 1939, Sections 2752-2779,2780-2809, 2811.1-2811.-7), Section 13375 covered actions on all constablesbonds. This pattern was not followed in the 1946 legislation. Although magistrate courts are generally dealt with on the population basis, one finds in the 1946 acts no single section giving a cause of action on a constable’s bond and containing a period of limitation applicable to actions on all constables’ bonds. In this respect, prior to 1946 there was no differentiation between classes of constables’ bonds. After 1946 such a differentiation was established by the very terms of the acts herein considered. It would be difficult to maintain that this contrasting treatment of different classes of constables’ bonds did not furnish compelling evidence of legislative intent.

The net effect, then, is that the Legislature has chosen to build in a special period of limitation in actions on the bonds of one category of constables and has chosen, in respect to the bonds of another category of constables, to leave the matter of limitations of actions to the general statute of limitations.

There is no ambiguity in either of the 1946 acts herein considered. The language of each is plain and clear. Hence, there is no occasion to resort to interpretative aids to determine the meaning of legislative language. Whether or not there should be a treatment of one class of constables’ bonds different from the treatment of another class is a question of policy which addresses itself to the Legislature and not to the courts.

To recapitulate: When we come to look at the legislation of 1946, we find that in one act the Legislature chose to legislate respecting the selection of constables in first-class counties; the subject matter of that act was such constables simpliciter. In another act the Legislature dealt with the broad subject of the organization of magistrate courts in cities of 600,000 population; in that act the reference to constables was a minor part. It can scarcely be said that in the two acts there was identity of subject matter.

Additionally, as noted above, the act, dealing only with constables, of which Section 63.160 was a part, provides that the provisions of such act shall apply only to counties of the first class. By such a limitation upon the application of that act, its operation in relation to all other constables is excluded.

We find that the doctrine of in pari materia is not applicable in the present situation. Accordingly, we must hold against defendant’s contention that the one-year saving clause of Section 516.230 is inapplicable. We find that plaintiff’s petition states a cause of action upon which relief could be granted.

It follows that the judgment of the Circuit Court should be reversed and the cause remanded for further proceedings.

PER CURIAM:

The foregoing opinion by TOWNSEND, G, is adopted as the opinion of this Court. Accordingly, judgment is reversed and the cause remanded for further proceedings.

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


author: BRADY, Commissioner.

text:
    Wilbur A. SALE and Arthur F. D. Evans, Jr., d/b/a Sale & Evans, Plaintiffs-Respondents, v. Charles A. BROWN and Martha M. Brown, Defendants-Appellants.
    No. 32019.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.

      Lane & Leadlove Frank J. Lane, Jr., St. Louis, for defendants-appellants.
    Max C. Nelson, James C. Jones, III, St. Louis, for plaintiffs-respondents.
   BRADY, Commissioner.

This is an action for the recovery of the balance due under an oral contract for legal services rendered in an alleged income tax deficiency. A jury being waived, the trial court heard the matter and entered judgment in favor of the plaintiffs in the sum of $1480.00 less $320.00 paid into court plus interest and costs.

The petition alleged that defendants employed plaintiffs to represent them before the U.S. Tax Court agreeing to a fee of $3520.00; that plaintiffs did represent the defendants; and that defendants had paid only $2040.00 and had refused to pay the balance. The defendants pleaded that they were personally obligated to pay only a portion of the fee, the Sterling Engineering Company being liable for the other portion, and that they had paid their fee except for the $320.00 which they deposited with the court. They also set up the defense that any agreement on their part to pay the indebtedness of thé Sterling Engineering Company was unenforceable under this state’s statute of frauds. In stating the facts that bear upon the issues herein raised we will refer to the Sterling Engineering Company as “the company.” The plaintiffs and the defendants will be referred to by their designation in the trial court or by their names.

Charles Brown was the president and principal stockholder of the company. The business was conducted at his residence, and the company’s physical assets were located in the basement of that residence. The company had issued 400 shares of stock and Brown owned all but four. Several years prior to the events which gave rise to this action the Internal Revenue Service had asserted an income tax deficiency against the defendants based upon allegedly unreported income during the years 1948 to 1952. This deficiency was computed by the Internal Revenue Service on the “net worth” method and the company was included in the tax claim on the theory that the alleged unreported income must have been received by the defendants from the company which in turn was considered to have unreported income in a similar amount. Mr. Brown negotiated with agents of the Internal Revenue Service directly for several years and eventually obtained a settlement figure which he considered excessive. In July of 1958 he consulted with the plaintiff Sale, an attorney engaged in the practice of law. Inasmuch as the deficiency claimed against the defendants was merely carried over to the company’s alleged tax indebtedness, Sale informed the defendants that his fee would be based on the time spent and the results achieved but would not exceed 25 per cent of the amount plaintiffs were able to save the defendants on the alleged deficiency plus expenses. He asked for and received a retainer of $1,000.00 which Brown paid by check drawn on the company. The plaintiffs took over the matter and arranged for a certified public accountant to audit the defendants’ tax records. In September of 1958, the plaintiffs, as attorneys, filed a petition in the U.S. Tax Court on behalf of the Browns and a separate petition on behalf of the company. The Browns and the company were billed separately for the $10.00 court costs necessary in each case. Sale testified that the crux of the case involved disproving the alleged additional unreported income of the Browns as individuals because if that could be done, the claim against the company would be similarly defeated and therefore the services required in connection with the tax claim against the company were very minor in nature and consisted merely of filing pleadings and handling formal matters in the tax court.

In December of 1959 plaintiffs reached a tentative settlement of the tax claims with the Internal Revenue Service and arranged a conference with defendants to discuss the matter. At this time the company was for all practical purposes defunct and had little or no assets. At this conference the defendants expressed their concern about their personal liability for the tax claim against the company and Sale advised them that they could not be personally charged with such liability unless it could be shown that they had wrongfully taken corporate assets. The parties again discussed the amount of the plaintiffs’ fees and an agreement was reached for a fee of $3500.00 which, after deducting the retainer paid, left a balance of $2500.00. It is this agreement that furnishes the basis for plaintiffs’ action. Sale testified that he told the defendants at that time that the reduced fee was to be paid by them personally and not by the company, “ * * * that we were not looking to a defunct corporation.” His further testimony was that it was never mentioned that anyone else but the Browns personally would pay any of the fee. Mr. Graham, a certified public accountant who had been employed by the plaintiffs to work on defendants’ tax problem, was present at this conference and his testimony as to the Browns’ personal liability for the fee was to the same effect as that of Sale.

Ten days after this conference the plaintiffs billed the defendants individually for the $2500.00. The plaintiffs sent bills for this amount to the Browns in January, February, March, and April of 1960. Sale’s testimony was that the defendants made no complaint about this matter of billing but Mr. Brown testified that he complained that he and his wife were being improperly billed. In May of 1960 the Internal Revenue agents came to Brown’s house and made a physical inventory of the assets of the company and at that time gave Mr. Brown reason to believe that they intended to seize the assets. During that same month Mrs. Brown spoke to the plaintiff Evans and asked him to send a bill addressed to the company for one-half the balance of the fee then due and this was done on May 20. She testified that she had been told by the “revenue agent” that she should be careful and not effect the transfer of any of the company’s assets by paying any of “ * * * our bills or anything like that.” The plaintiffs billed the defendants in September, October, November, and December of 1960, and in January and February of 1961 for the balance due on the entire fee. The defendants made partial payments from time to time and in May of 1960 paid the amount of $100.00 with a check drawn on the company. All the other checks were personal checks and all of the checks sent the plaintiffs after the May bill for one-half the fee contained the notation “Payment on account of Mr. and Mrs. Charles A. Brown as per your bill of May 20, 1960.”

Early in the case the defendants’ counsel stipulated in open court that $3500.00 was a reasonable fee stating, “ * * * The only question we have here is as to who is responsible to pay that fee.” During the cross-examination by defendants’ counsel of the certified public accountant employed by the plaintiffs, the defendants’ counsel asked the following question: “Would you mind telling me precisely what you did do in your work in this case in attempting to determine the tax liability of the Browns? A Of the Browns? Q And of the corporation. Go into detail.” After proceeding with this form of interrogation the defendants’ counsel then stated: “At this time I am going to withdraw my stipulation as to the reasonableness of the fee. I think we have gone into this enough.” The court refused permission for the withdrawal of the stipulation.

The defendants raise three allegations of prejudicial error. They contend “[t]he trial court’s judgment was against the greater weight of the credible evidence •* * * ”; that the defendants were at most guarantors of the indebtedness of the company and as such could not be charged with such indebtedness unless the plaintiffs produced a writing complying with the statute of frauds; and that the trial court erred in refusing to allow the defendants to withdraw their stipulation as to the reasonableness of the plaintiffs’ fee.

This was a jury-waived action and our duty is to review the law and the evidence as in suits of an equitable nature. We are to make our own findings of fact and reach our own conclusion as to where the weight of the evidence lies. The judgment is not to be set aside unless clearly erroneous and we are to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Rothweiler v. Callicott, Mo.App., 322 S.W.2d 151, l. c. 154; § 510.310, RSMo 1959, V.A.M.S.

The defendants urge that the trial court’s judgment was against the greater weight of the credible evidence because both defendants testified that they had always expected that the company would be responsible for part of the bill and because the plaintiffs made separate billings. There is no merit to this allegation of prejudicial error. In the first place there was a direct conflict in the testimony of the parties as to how this fee was to be paid. The trial court had the witnesses before it and was in a much better position to judge their credibility than is this court. He chose to believe the plaintiffs’ testimony and we cannot find it clearly erroneous to have done so as there was ample evidence to support plaintiffs’ case. By the time .the settlement conference was held, it was obvious to all the parties concerned that the company was a defunct corporation. It strains credulity to argue that in spite of the knowledge of the company’s financial condition gained through working with this tax problem from July of 1958 to December of 1959, the plaintiffs would have agreed to a reduced fee and. further agreed to look to a soon-to-be defunct corporation for a portion of that fee. Moreover, the testimony of the witness Graham cannot be totally disregarded. It is true that he was not completely disinterested as he was employed by the plaintiffs but that fact would go to the weight to be given his testimony. That fact standing alone would not justify totally disregarding his corroborating testimony the defendants agreed to personal liability for the whole fee. In the second place there is no evidence to support defendants’ contention there were two promises to pay here involved: one by the Browns and one by the company. Certainly, this record is totally devoid of any testimony by either of the Browns leading to the inference they were speaking for the company or other than as a private person. The fact the company might incidentally benefit from the plaintiffs’ effort in behalf of the defendants does not give rise to an inference that the company agreed to bear a portion of the fees. Neither does it justify the conclusion the company is legally chargeable for a portion of the fees. There is no basis in this transcript for any promise by the company.

There are only two instances of separate billings. The first was in connection with the court costs of filing the tax claims. That fact has little pertinency. The question is what agreement was made at the settlement conference. As indicated above, we think the trial court was justified in finding that at that meeting an agreement was reached for a reduced fee and for the defendants to be personally liable for its entire amount. That is the agreement upon which the plaintiffs bottomed their action and upon which the parties joined issue at the trial. Accordingly, what was done previous to that time would have little value in explaining the parties’ new agreement. Of course, if the trial court had believed the defendants’ testimony as to the new agreement, then the fact they made separate bills for court costs in the beginning would have more importance as showing a continuing, consistent course of action. But the trial court did not choose to believe the defendants and, as we have indicated, it had every right not to do so. This fact then becomes of little importance.

The other occasion upon which separate bills were rendered was in May of 1960. The parties agreed that this was done in compliance with Mrs. Brown’s special request. This was undoubtedly an action that prejudiced the plaintiffs’ case but coming as it did in response to a special request by one of the defendants, we feel the trial court, in the light of the whole case, was justified in regarding the plaintiffs’ action as an accommodation only. (See Wilcox v. Henderson, 90 R.I. 472, 159 A.2d 797, where the trial court, as in the instant case, found as true the plaintiff’s contention he billed the corporation there involved “for convenience.”) In any event, this action standing alone does not rise to the position of strength given it by the defendants so as to require this court to hold the trial court’s judgment was “ * * * against the greater weight of the credible evidence * *

The defendants contend the evidence as to how they made their payments and the fact the initial retainer was paid by a check drawn on the company requires this court to rule in their favor. A similar contention was made in Rothweiler v. Callicott, supra, where the fact that a check was made payable to a corporation and repayment made by checks drawn on the corporation was urged to show conclusively the loan was made to the corporation there involved. This court rejected that argument holding that these factors were but circumstances to be weighed by the trial judge. In the instant case the fact that the retainer fee was paid by a check drawn upon the company as was the May 1960 payment can be interpreted as showing that the Browns treated the entire transaction as one all inclusive contract, and, indeed, treated the company as merely an alter ego. It is as susceptible to that interpretation as it is to that which the defendants give it. The self serving unilateral notations on the back of the checks paid upon the account after the separate billing of May 1960 are but a circumstance to be weighed along with the other factors in the case. In any event, these factors alone do not, to our mind, outweigh the clear and unequivocal testimony of the plaintiff Sale and of the witness Graham. Essentially, this case is one that cries out for the application of the rule of deference as there is nothing in this record to indicate that the decision the trial court reached upon consideration of two opposing lines of testimony was so clearly erroneous as to call for our intervention. Rothweiler v. Callicott, supra.

The defendants’ contentions with regard to an alleged violation of the statute of frauds (§ 432.010, RSMo 1959, V.A.M.S.) must be considered in the light of the trial court’s acceptance (and our affirmance of that acceptance) of plaintiffs’ theory that there was but one promise here involved and that was the promise of the defendants to pay the entire fee. As we understand the defendants, they contend that even if they had agreed to pay the entire fee that agreement constituted an oral obligation to guarantee the debt of the company and is unenforceable by the reason of the statute of frauds. As indicated by our remarks at the beginning of our consideration of this allegation of error, we do not think the evidence justified the conclusion that the company made any agreement to pay any portion of the fee or that it was legally obligated to pay any portion thereof. That being so, there is no issue in this case involving the statute of frauds as, so far as this record discloses, the company owed no debt to the plaintiffs. Accordingly, this is not an attempt to charge the defendants upon a promise to answer for the debt of another; i. e., the company and the statute of frauds has no application.

Even if we were to assume the company was a party to the agreement to pay, that would still not render the statute of frauds applicable. One of the tests applied by the courts to determine whether the statute of frauds applies is whether the promise or agreement under consideration constitutes an original and independent undertaking between the promisor and the promisee or whether the undertaking of the promisor is collateral. In Wahl v. Cunningham, 320 Mo. 57, 6 S.W.2d 576, l. c. 581, 67 A.L.R. 489, it was held that “ * * * [w]henever it appears that the leading or main purpose of the promisor is to gain some advantage for himself, or to promote some interest or purpose of his own, rather than to become the mere guarantor or surety of another’s debt, and the promise is made upon a consideration beneficial to the promisor, it will be regarded as an original undertaking and not within the statute of frauds, although it may, in form, be a promise to pay the debt of another. * * ” It is also the rule that if a contract is mainly for the benefit of an individual, it is not rendered unenforceable under the statute of frauds merely by reason of the fact that a corporation in which the individual is interested receives an incidental benefit during the performance of the contract. In 35 A.L.R.2d at page 933, the rule is stated in this fashion: “It is obvious that where a promise is in form and effect an original one to pay for something to be simultaneously or subsequently furnished to, or done for, a corporation in which the promisor is a stockholder, officer, or director, the promisor is the original debtor, and does not become collaterally liable merely because the corporation receives the benefit of performance by the promisee. Hence the promise is not within the statute of frauds.” The defendants’ allegation of error with regard to the statute of frauds is without merit.

The last allegation of prejudicial error is based upon the trial court’s action in refusing to permit the defendants to withdraw their stipulation as to the reasonableness of the fee allegedly due. The defendants cite three occasions in the transcript where they contend the plaintiffs did in fact introduce evidence going to the reasonableness of the fee over their objections. The first of these references to the transcript is of no assistance to the defendants. The objection that was then made by defendants’ counsel was sustained and nothing appears from the transcript that could have any bearing upon the reasonableness of the fee. The second reference to the transcript cited by the defendants discloses that over the defendants' objection the plaintiff Sale was allowed to testify that the only work done for the company was the preparation of the pleadings in the tax court case and that the amount of plaintiffs’ work in that regard would have been limited to a charge of $250.00. This evidence when placed in context with the rest of plaintiff Sale’s testimony went principally to the matter of the intention of the parties as to whether the company and the defendants were each to be liable for a portion of the fee. The thread of testimony being developed at this time was whether the parties conceived of the company’s tax case and the defendants’ tax case as being two separate and distinct transactions and whether they treated the matter as two separate transactions in their discussion about the fee to be charged. Viewed in this light it is clear that the admission of this evidence would not warrant granting the defendants permission to withdraw their stipulation. This evidence had bearing upon the question of whether the Browns or the company was the original debtor as stated in the rule set out herein in the quotation from 35 A.L.R. 2d, page 933. It also went to whether or not the Browns’ promise was to be regarded as an original undertaking and thus not within the statute of frauds. Wahl v. Cunningham, supra. We do not think that the testimony admitted over the defendants’ objections did violate the stipulation, but even if it did, it constituted evidence that was clearly admissible upon one or more of the issues in the case and the rule is that where evidence is admissible for one purpose but would be improperly received for other purposes it should be received. Scott v. Missouri Insurance Co., 361 Mo. 51, 233 S.W.2d 660, l. c. 665.

There is one other point in the transcript where'the defendants’ counsel made objection on the ground that the evidence received violated the stipulation made. That is immediately preceding defendants’ counsel’s first request for permission to withdraw his stipulation. It may well be that the reason this portion of the transcript was not cited was that the evidence there given was stated in response to a question asked by the defendants’ counsel. It was he who asked the witness Graham to explain what he did in attempting to determine the tax liability of the Browns and of the company and to go into detail with his answer. The defendants are in a poor position to complain of the admission of testimony given in answer to their own counsel’s questions. However, we do not rule this matter upon that ground for, as a matter of fact, the answer given dealt with the theory and application of the “net worth” theory of computing tax liability and the answers given did not go into detail as to the division of the work between the defendants and the company as defendants’ counsel had requested. The transcript discloses nothing that would justify granting permission to withdraw the stipulation.

The defendants further argue that they should have been permitted to withdraw the stipulation because the original arrangement was that the fee would not exceed 25 per cent of the amount plaintiffs were able to save the defendants. Defendants contend the evidence shows only $2000.00 was saved. We do not so read the transcript. It is devoid of any substantial evidence on the question of how much was saved by plaintiffs’ efforts. In any event, that is not the agreement sued upon. Whatever agreement was first reached was superseded by the agreement for fees reached at the settlement conference in December of 1959 and the undisputed testimony is that that agreement was for $3520.00.

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

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


author: ANDERSON, Judge.

text:
    Ronald J. BRENNEKE, Plaintiff-Appellant, v. Sylvester LA CHANCE, Defendant-Respondent.
    No. 31961.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.
    Robert A. Mcllrath, Flat River, W. T. McGhee, Brentwood, for plaintiff-appellant.
    Dearing, Richeson, Weier, & Roberts, Samuel Richeson, Hillsboro, for respondent.
   ANDERSON, Judge.

This is an action for damages alleged by plaintiff to have been sustained by him as a result of defendant’s negligence. Plaintiff was riding on a motorcycle west-wardly on Highway 8 in Washington County. With him was a friend who was sitting on what plaintiff described as the “Buddjr Seat.” Defendant, just prior to the accident, had been traveling east on said highway, approaching a driveway which led from the highway to his house located north of the highway. Defendant’s intention was to turn left into said driveway. Plaintiff’s evidence was that defendant made the turn across the westbound lane thus forcing him off the road, and that his motorcycle ran into a culvert pipe with the result that the two boys were thrown off the motorcycle. Plaintiff’s evidence further shows that as a result of this collision, plaintiff was injured. Defendant’s evidence was that when he reached the driveway he stopped his automobile intending to make the left turn, but at no time did any part of his automobile extend beyond the center line of the highway. The trial resulted in a verdict and judgment for plaintiff for $400.00. Plaintiff appealed from the judgment claiming inadequacy of the verdict.

The accident happened the afternoon of August 5, 1962. Plaintiff was taken to a hospital in Bonne Terre where he was examined and treated by Dr. Van Taylor. The doctor found a lacerated wound of the scalp and right thigh. These lacerations were sutured. There was also swelling of the right knee, and several abrasions and bruises on various parts of his body, none of which seemed to be of any consequence. His skull was X-rayed for fracture but none was found. An X-ray was also taken of the right knee which Dr. Van Taylor said did not reveal any fracture. However, a day or so later another X-ray of the knee was taken and a fracture line was revealed in the upper part of the tibia which ran into the knee joint. However, there was no displacement. An X-ray taken one month later showed that part of the fracture which ran into the knee joint had healed without any deformity to the knee. Plaintiff was kept in bed a few days and then was able to be up on crutches. Plaintiff’s knee joint was swollen to such an extent that he could not bend it very well. He left the hospital on August 10, five days after he was admitted. On September 11, 1962, plaintiff saw the doctor again at the hospital. At that time the sutures had been removed, and the wounds on the scalp and thigh had healed. Also at that time the swelling in the knee had diminished considerably, and to such an extent that plaintiff could straighten his leg entirely. On this visit, plaintiff was told to discard his crutches, and to return in a few days. Plaintiff did not return.

The next time Dr. Van Taylor saw plaintiff was on Saturday before the date of trial (April 6, 1964). The doctor testified that on this visit there was no swelling or instability in the knee joint. There was no limitation of motion in the leg, but when he squatted he did have some limitation of motion in the knee joint; that it did not come back as far as the other knee, but the difference was at a minimum. This and a scar on the thigh was all the evidence the doctor could find of the results of the accident.

After plaintiff left the hospital on August 10, 1962, he went home. He was living at his mother’s house. His evidence shows that he was in bed for a week, then was able to be about on crutches. He used crutches for about seven weeks after he left the hospital, and then for about a week used a cane quite a bit. Plaintiff testified that the knee was a little stiff and gives him trouble in damp weather.

Plaintiff testified that prior to the accident his motorcycle was worth $250.00 and not much over $100.00 after the accident. However, there was no evidence of the nature of the damage. Dr. Van Taylor’s bill was $60.00. The hospital bill was $102.00. The bill for the ambulance which conveyed him to the hospital was $10.00. The cost of the X-ray was $10.00.

Plaintiff was not employed on the day of the accident, but from his testimony, it seems he had employment promised him, but it does not clearly appear when he was to start this job. Later he went to work at the job. It was with Dreier Motor Company. The date he went to work does not appear from his testimony, but he said he lost eight weeks work at $50.00 per week. There was no corroborative testimony of this. He testified he was on crutches seven weeks after getting out of the hospital. The doctor testified, however, that on September 11th, about one month after plaintiff left the hospital, he told plaintiff to discard his crutches. Plaintiff further testified that for a while after going to work he used a cane.

Plaintiff admitted that in July 1962, about a month before the accident in question, he had been in an automobile accident in which his right knee was injured. An X-ray taken of the knee at that time did not reveal a fracture. He stated that his knee did not swell as a result of that accident.

As heretofore stated plaintiff’s only complaint on this appeal is that the award of the jury is inadequate, and for that reason he should be granted a new trial on the issue of damages.

It has been many times held that the amount to be allowed as damages in a personal injury suit is primarily a matter for the jury, and that on appellate review its finding will not be disturbed unless the verdict is deemed so grossly inadequate as to indicate bias, passion and prejudice against the plaintiff. We will not weigh the evidence to arrive at a figure we deem just and reasonable and set aside a judgment not conforming to our view as being against the weight of the evidence. Vogrin v. Forum Cafeterias of America, Inc., Mo., 308 S.W.2d 617; Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469; Pinkston v. McClanahan, Mo., 350 S.W.2d 724. We must also view the evidence in the light most favorable to the verdict, for the reason that it was the sole province of the jury at the trial, and the trial judge on motion for new trial to pass upon the weight of the evidence and the credibility of the witnesses. Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 212 S.W.2d 915. The refusal of the trial judge to set aside a verdict on the ground of inadequacy will not be disturbed except upon a finding of an abuse of discretion. Wilhelm v. Kansas City Public Service Co., supra.

In the case at bar the issue of liability was very close. In fact a verdict for defendant would have been fully supported by the evidence. There were present evi-dentiary grounds for a belief that the plaintiff’s injury, although initially painful, was not of a serious nature. The principal injury was to the right knee which had also been injured in an accident one month previously. While there was testimony by plaintiff that there was no relation between the previous injury and the condition found after the second accident, the credibility of this testimony was for the jury. Plaintiff testified he lost eight weeks work, but the evidence shows he was not actually employed at the time of the aecident. He stated he went to work while using crutches. His doctor testified that about a month after plaintiff left the hospital he advised plaintiff to discard his crutches. Plaintiff’s testimony that he lost eight weeks work was not corroborated. In view of these facts and circumstances the jury might well have disbelieved plaintiff’s testimony that he suffered loss of earnings or that such loss of earnings were for a period of eight weeks.

Plaintiff expended money for ambulance service and medical expense in the sum of $182.00. He claimed a loss of $150.-00 to his motorcycle by giving his opinion of its value before and after the accident. However, the nature of the damage was not shown. The residual effect of the injury to his knee was of no consequence, according to the testimony of his own doctor.

Considering the evidence relating to the nature and extent of plaintiff’s injuries and damage, and having in mind the principles of law applicable, we cannot say the award was so grossly inadequate as to indicate passion, bias and prejudice of the jury. The jury’s award, approved by the trial court, should not be disturbed.

The judgment is affirmed.

WOLFE, P. J„ and L. F. COTTEY, Special Judge, concur.


author: DOERNER, Commissioner.

text:
    Allan MOLASKY ex rel. CLAYTON CORPORATION OF DELAWARE, Plaintiff-Appellant, v. Aaron S. LAPIN, Marcus Lipsky, and Clayton Corporation of Delaware, Defendants-Respondents.
    No. 32150.
    St. Louis Court of Appeals. Missouri.
    Nov. 16, 1965.
    Goldenhersh, Goldenhersh, Fredericks, Newman & Lane, Samuel J. Goldenhersh, St. Louis, for plaintiff-appellant.
    Melvin L. Hertzman, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

This is a derivative action by a minority stockholder to require the majority stockholders to account to the corporation for profits alleged to have been realized by them, and losses claimed to have been sustained by the company, resulting from the sale of certain stock to the corporation. Plaintiff procured service of process on the individual defendants by an attachment of their stock in an unrelated corporation. Defendant Lapin appeared specially and moved to dissolve the attachment. The trial court sustained the motion and quashed the attachment and garnishment issued pursuant thereto against defendant Lapin. Thereafter the court denied plaintiff’s motion for default and inquiry against defendant Lipsky for lack of jurisdiction over him, dissolved the attachment and garnishment as to him, and ruled that the order be treated as a final order in the case. Plaintiff appealed to the Supreme Court, which held that it lacked appellate jurisdiction and transferred the cause to this court, 384 S.W.2d 613.

In brief, plaintiff alleged in his petition that Lapin and Lipsky, owners of a majority of the outstanding common voting stock of Clayton Corporation of Delaware (joined as a nominal party defendant under Civil Rule 52.04(a), V.A.M.R.), conceived the plan, scheme and conspiracy of foisting on Clayton Corporation the stock which they and their associates owned in another corporation, Development Research, Inc., for $1,250,000 plus additional considerations ; that Lapin and Lipsky contemplated that they would use their domination and control of the board of directors of Clayton Corporation to effect approval of the transaction and pay over to defendants and their associates, “a sum substantially in excess of the value of the shares of stock of said Development Research, Inc. owned by said defendants and their associates”; that the payment of the consideration was not the result of arm’s length bargaining but was dictated by Lapin and Lipsky to serve their personal interests and that of their associates at the expense of Clayton Corporation; that the fair and reasonable value of the stock of Development Research, Inc., “was substantially less than the sum paid for same and was therefore unfair to Clayton Corporation of Delaware and unduly favorable to the stockholders of Development Research, Inc. and more particularly, the defendants and their associates”; that it constituted a fraud and a gift and waste of the assets of Clayton Corporation; that the individual defendants acted recklessly, negligently and carelessly and are liable to account for all losses sustained by Clayton Corporation as a result thereof; and that “The exact amount of said losses is unknown to plaintiff and can be ascertained only upon an accounting in this action.” It was further alleged that plaintiff was a minority stockholder of Clayton Corporation at the time of the transactions complained of and continues to be; that the members of the board of directors of the corporation were nominated and caused to be elected by the individual defendants, and that all of the directors were dominated and controlled by the individual defendants to such an extent that a demand by the plaintiff that the board bring this action would have been futile; and that plaintiff brings the action for himself and on behalf of all other shareholders similarly situated. The prayer was that the individual defendants be required to account to Clayton Corporation for all profits and gains obtained by them and for all losses and damages sustained by the corporation by reason of the transactions, “ * * * not in excess of $1,250,-000” ; that plaintiff be awarded his reasonable costs and disbursements, including reasonable attorneys’ and accountants’ fees; and “That plaintiff have such other, further and different relief as the Court may deem just and proper in the premises.”

The trial court dissolved the attachments against the individual defendants, “ * * * for the reason that a derivative shareholder’s suit can lie only in equity, and attachment is not available in an equity action.” Plaintiff does not dispute the court’s ruling that in an equity suit service may not be obtained upon a nonresident defendant by an attachment. Civil Rule 85.01, V.A.M.R.; State ex rel. Auchincloss, Parker & Redpath, Inc. v. Harris, 349 Mo. 190, 159 S.W.2d 799. And in his brief he concedes that, “Prior to 1943, it was mandatory that the jurisdiction in a case similar to that in the case at bar, be in equity. * * * ” In view of this concession that what has come to be known as a stockholder’s derivative action, at least until 1943, could be maintained only in equity we need not elaborate on the origin and development in equity of such a suit however tempting that subject may be. The significance of plaintiffs reference to the year 1943 is to be found in the contention in his brief that, “Section 507.070(2), R.S.Mo.1959, adopted by the Missouri Legislature in 1943, converted derivative shareholders’ actions and class actions into actions at law. * * * ” Basing his argument on this premise, plaintiff asserts that his action was one at law, and that the court therefore erred in dismissing it on the grounds that a shareholder’s derivative action would lie only in equity.

Section 507.070(2), RSMo 1959, V.A. M.S., was enacted by the General Assembly in 1943 as one of the provisions of our (then) new Code of Civil Procedure. Laws 1943, p. 353, Sec. 19(b). It has since been superseded by Civil Rule 52.08(b), V.A. M.R., which as promulgated by our Supreme Court reads:

“In an action brought to enforce a secondary right on the part of one or more shareholders in an association, incorporated or unincorporated, because the association refuses to enforce rights which may properly be asserted by it, the petition shall aver that the plaintiff was a shareholder at the time of the transaction of which he complains or that his share thereafter devolved on him by operation of law. The petition shall also set forth with particularity the efforts of the plaintiff to secure from the managing directors or trustees, and, if necessary, from the shareholders, such action as he desires, and the reasons for his failure to obtain such action or the reasons for not making such effort.”

The origin of the Rule, the reasons for its adoption, and its historical development effectively refute plaintiff’s argument that a shareholder’s derivative suit was thereby converted into an action at law. The inception of the Rule is to be found in Hawes v. City of Oakland, 14 Otto (104 U.S.) 450, 26 L.Ed. 827, decided in 1881. In an earlier case, Dodge v. Woolsey, 18 How. (59 U.S.) 331, 15 L.Ed. 401, decided in 1855, the Supreme Court had upheld the equity jurisdiction of the Federal court in an action by a nonresident stockholder against an Ohio corporation and Ohio taxing officials to enjoin the payment and collection of a tax claimed to be unconstitutional. As pointed out by Moore in his Federal Practice, 2nd Ed., Vol. 3, Sec. 23.15, the Dodge case was followed by a number of cases in which it appeared that collusive attempts were made to foist jurisdiction on the Federal courts through the device of having a nonresident stockholder bring the action against the corporation and the third party in order to obtain the requisite diversity of citizenship. As a means of negating such collusion, the court, after enumerating various examples of a shareholder’s bona fide action, stated (104 U.S. 460, 461):

“But, in addition to the existence of grievances which call for this kind of relief, it is equally important that before the shareholder is permitted in his own name to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all the means within his reach to obtain, within the corporation itself, the redress of his grievances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part, and this must be made apparent to the court. If time permits or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body,' in the matter of which he complains. And he must show a case, if this is not done, where it could not be done, or it was not reasonable to require it.
“The efforts to induce such action as complainant desires on the part of the directors, and of the shareholders when that is necessary, and the cause of failure in these efforts should be stated with particularity, and an allegation that complainant was a shareholder at the time of the transactions of which he complains, or that his shares have devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction in a case of which it could otherwise have no cognizance, should be in the bill, which should be verified by affidavit.”

At the same term the Supreme Court implemented its decision in Hawes by adopting former Equity Rule 94, which was subsequently slightly modified in 1912 by the promulgation of Equity Rule 27. The present Rule 23(b) of the Federal Rules of Civil Procedure is substantially a copy of Equity Rule 27. Notes of Advisory Committee on Rules, 28 U.S.C.A., p. 148. And by comparison it is obvious that Section 507.070(2), V.A.M.S., and our superseding Civil Rule 52.08(b), V.A.M.R., were in turn derived from Federal Rule 23(b).

If Civil Rule 52.08(b) converted what has always been a suit in equity into an action at law, as plaintiff contends, then it must of necessity deal with a matter of substantive law rather than a matter of procedure. The inception and historical antecedent of the Rule which we have mentioned militate against such a contention. The very purpose of its origin was that of placing limitations on an existing suit in equity, not the creation of a new action at law. Nor is there any language in the Rule itself which lends support to plaintiff’s argument. Civil Rule 52.08(b), as does Federal Rule 23(b), tacitly recognizes the ancient and well-established right of a shareholder to seek relief in equity for the corporation for an injury committed or threatened against it, when he cannot obtain relief from the directors or fellow-stockholders. All that Section- 507.070(2) did, or our Rule does, is to restate certain elements which our appellate courts had long held were requisite to the maintenance in equity of a shareholder’s derivative suit. See Brooker v. William H. Thompson Trust Co., 254 Mo. 125, 162 S.W. 187; Barnett v. Ground, 304 Mo. 593, 263 S.W. 836; Punch v. Hipolite Co., 340 Mo. 53, 100 S.W.2d 878; Kirrane v. Boone, 334 Mo. 558, 66 S.W.2d 861; Caldwell v. Eubanks, 326 Mo. 185, 30 S.W.2d 976, 72 A.L.R. 621.

The very adoption and promulgation of Civil Rule 52.08(b) by our Supreme Court is a further refutation of plaintiff’s contention that an action at law was created by the superseded statute. That Rule was established pursuant to the rule-making power conferred on the Supreme Court by Art. V, Sec. 5, Const.1945, V.A.M.S. The authority therein granted to the Court is to, “ * * * establish rules of practice and procedure for all courts * * * ” but the limitation placed upon the power is that “ * * * The rules shall not change substantive rights * * In consequence of that limitation it would seem that any rule which attempted to change or create a substantive right would come within the purview of the constitutional prohibition. See State v. Virgilito, Mo., 377 S.W.2d 361; State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782; In re Moore, Mo.App., 282 S.W.2d 856. The question of whether the requirements of a New Jersey rule, similar to our Civil Rule 52.08(b), were procedural in nature, and therefore within its constitutional rule-making power, or dealt with substantive law, was before the Supreme Court of that state in Escoett v. Aldecress Country Club, 16 N.J. 438, 109 A.2d 277, 283, which held: “* * * The requirement is procedural in nature and was properly adopted within the constitutional authority of the court. * * * ”

Plaintiff’s final contention appears to be that all distinctions between actions at law and suits in equity have been abolished by Civil Rule 42.01, which reads: “There shall be one form of action to be known as ‘civil action’.” That rule and the statute which it superseded, Section 506.040, RSMo 1959, V.A.M.S., may have abolished technical niceties as to the forms of action but it did not affect the demarcation between equity and law cases in matters of substance and remedy. Krummenacher v. Western Auto Supply Co., 358 Mo. 757, 217 S.W.2d 473; Kesinger v. Burtrum, Mo.App., 295 S.W.2d 605.

Furthermore, while plaintiff asserted in oral argument that it was his intention to draft a petition for an action at law, the language employed as well as the composition of his complaint leads us to the conclusion that the result actually achieved was a bill in equity. Particularly persuasive in that connection is the allegation as to the necessity of “ * * * an accounting in this action” in order to ascertain the exact amount of the loss resulting to Clayton Corporation from the sale to it of the stock in question, as well as the closing sentence of the prayer, in which it is asked, “That plaintiff have such other, further and different relief as the Court may deem just and proper in the premises.”

The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is affirmed.

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

      . Those interested may consult Prunty, “The Shareholder’s Derivative Suit: Notes on Its Derivation,” 32 N.Y.U. Law Rev. 980; Pomeroy’s Equity Jurisdiction, 5th. Ed., Vol. 4, Sec. 1089; Moore’s Federal Practice, 2nd Ed., Vol. 3, Sec. 23.15.

      . Merrill v. Davis, 359 Mo. 1191, 225 S.W.2d 763; Punch v. Hipolite Co., 340 Mo. 53, 100 S.W.2d 878; Saigh ex rel. Anheuser-Busch v. Busch, 396 S.W.2d 9, St. Louis Court of Appeals, Sept. 21, 1965; Fletcher Cyclopedia Corporations, Perm. Ed., Vol. 13, See. 5944, p. 418; Cavitch, Business Organizations, Vol. 6, Sec. 119.01.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky DEPARTMENT OF HIGHWAYS, Appellant, v. Jennie STATON, Widow, Ashland Oil & Refining Co., Lessee, Appellees.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.
    Robert E. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Edmond H. Tackett, Pikeville, for appellant.
    Kelsey E. Friend, Pikeville, John L. Ash-worth, Ashland, for appellees.
   DAVIS, Commissioner.

In this highway condemnation case the appellee, Jennie Staton, was awarded $4250 pursuant to the jury’s verdict. The Department of Highways, appellant, presents three grounds for reversal: (1) The court erred in refusing to strike the testimony of an appraisal witness for appellee; (2) the court erred in admitting incompetent evidence; (3) the court erred in taking judicial notice of the qualifications of an appraisal witness for appellee.

The record in this appeal is vague and unsatisfactory with respect to the total acreage in the tract before the taking, the situation existing after the taking, and the extent of accessibility to various portions of the original boundary — both before and after the taking.

Accepting as accurate the statement in appellant’s brief, the taking was of 5.8 acres of hill land, of which about two acres was sloping hill and 3.8 acres was steep hill. Two small outbuildings were taken and the twenty acre tract was split by the taking. However, according to the appellant, the appellee still had access to all of her land after the taking. The four room residence was not taken.

Four appraisal witnesses testified—two for the appellant and two for the appellee. Three of them placed the before value of the property at $19,500; the other, appel-lee’s witness, estimated the before value at $18,700. For appellant the after value was fixed at $17,650 by one witness and at $18,-200 by the other. Thus, in the judgment of the appellant’s witnesses, the difference in before and after values ranged from $1300 to $1350. The two witnesses for appellee expressed opinions that the after value was between $12,500 and $13,150; their differences in before and after values ranged from $5500 to $7000. As noted, the verdict was $4250.

Howard Newsome was an appraisal witness for appellee. He gave facts indicating his qualifications as an appraisal witness, and expressed the view that the property was worth $18,700 before the taking and $13,150 afterward—a difference of $5500. On cross examination counsel for appellant asked witness Newsome “ * * * how did you break that $5500 down?” In response to that inquiry, the witness testified to the various items he had considered in making his judgment that the difference in before and after values equalled $5500. Appellant’s counsel then moved that the entire testimony of the witness be stricken. The trial court overruled the motion, and this was correct. There was no showing that Newsome had “built up” his appraisal figures by use of these items—it was the effort at “breaking down” the figures which elicited this evidence. See Commonwealth of Ky., Dept. of Highways v. Adkins, Ky., 396 S.W.2d 768 (decided December 3, 1965), and Commonwealth of Ky., Dept. of Highways v. Shaw, Ky., 390 S.W.2d 163.

The claimed incompetent evidence of which appellant complains had to do with the cross-examination of appellant’s appraisal witness Hall. Counsel for appellee asked the witness whether he had appraised some nearby property at $5800. Then appellant’s counsel injected the statement that the owner of the nearby land had settled at the appraisement of the witness. There was no error here of which appellant may complain. It was proper to show that the witness had appraised similar nearby land— this does not run afoul of the rule against showing the price paid for other condemned property. Cf. Commonwealth of Ky., Dept. of Highways v. Evans, Ky., 361 S.W.2d 766, 769, 770.

The final attack upon the judgment relates to a statement made by the trial court anent one of appellee’s appraisal witnesses. The witness, Field May, testified that he was more than sixty years of age, that he had engaged in “building and constructing and the real estate business” for about twenty or twenty-five years; that he had “bought property all the way from Prestonsburg into Pikeville.” He related that he knew the subject property, and had purchased a similar tract not long before the trial. Upon cross examination the witness became somewhat confused—then appellant’s counsel began to interrogate him as to the various items he had considered, when appellee’s counsel interjected:

“Object, he’s trying to break down * $ *»
Judge Lowe: “Sustained.”
Mr. Tackett: (Counsel for appellant) “Object to the attorney for the defendant testifying in open court. If he has a statement to make I would like for it to be made in chambers.”
Judge Lowe: “The court will take judicial knowledge this man is qualified to appraise real estate and give us testimony on it.”
Mr. Tackett: “And object to the statement of the court just made, and ask that the swearing of the jury be set aside, and the case continued generally.”
Judge Lowe: “Overruled.”

The statement of the trial court was ill advised and erroneous, but we are not persuaded that it was of such significance as to warrant a reversal. CR 61.01. The witness had testified to experience sufficient to qualify him as an “expert” on real estate values in the area. The true import of the court’s remark was that it was the court’s opinion that the witness was so qualified. In view of the fact that the witnesses or the appellant testified to the same before value as did Mr. May, it is difficult to discern any basis for appellant’s complaint here. Upon the entire record, it is our conclusion that the error was harmless.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Rose ADKINS et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Phillip K. Wicker, Somerset, Eugene H. Clark, Manchester, for appellant.
    J. B. Johnson, J. B. Johnson, Jr., R. L. Brown, Williamsburg, for appellees.
   PALMORE, Judge.

This is a highway condemnation case in which the Commonwealth appeals from a judgment entered on a verdict awarding the appellees $10,000 as the diminution in value of their land by reason of the taking of 2.9 acres outright and a permanent easement over an additional .15 of an acre.

There is a conflict in the evidence as to whether the whole tract before the taking amounted to a total of 36 acres as called for by the deed or 20.58 acres as calculated by the highway department. However, it is of no importance, because regardless of how much land is left it is conceded that only a four-acre part of it has any substantial value.

The 2.9-acre taking embraced all the improvements, consisting of a 6-room concrete block dwelling house and several outbuildings. The house was about nine years old and did not have inside plumbing. It was located on a relatively level shelf or bench at the foot of a hill. The four acres heretofore mentioned were on top of the hill behind the house.

The property in question lies some 450 feet west of U.S. Highway 25W, to which it had direct access by a gravel road. It is bounded on the north by Little Cane Creek, which runs in an east-west direction. The 2.9 acres taken are part of a strip on which limited access Interstate Highway 75 has been or will be constructed. This strip separates the remainder parcel from U.S. 25W, and henceforth access between the remainder tract and the public highway system will be by way of a frontage road which runs northward along the west side of 1-75 for about a mile and a half and then through an underpass to U.S. 25W.

The frontage road does not enter ap-pellees’ tract, but comes down from the northwest and makes what appears to be a flattened “U” turn to the east and then northward along the west side of 1-75, the bottom of the “U” being the center of Little Cane Creek. Incredible as it may seem, according to both the testimony and the map introduced by the Commonwealth the only place at which the frontage road touches the remainder of the appellees’ property is along the thread of Little Cane Creek — that is, the south right-of-way line of the frontage road is in the creek. We do not know how much of a stream it is, but in order to make a connection between the frontage road and dry land it would appear to be necessary for ap-pellees to construct either a bridge or fill of some kind, after which it would be necessary also to scale or somehow remove a formidable bluff which borders the south bank of the creek as it flows past the remainder tract.

We have outlined the access situation because it forms the background against which one of the Commonwealth’s arguments in support of this appeal must be considered. The distance that will have to be traveled in order to reach U.S. 25, and in order to come back down that highway to the village of Pleasant View, which was but a mile or so from the condemned property before the interposition of 1-75, was brought out by counsel for the landowners through cross-examination of the state’s witnesses, over objections by counsel for the state.

It has been firmly established that “the only access right the landowner has is a right of reasonable access to the highway system.” Commonwealth v. Carlisle, Ky., 363 S.W.2d 104, 107 (1962). Conversely, he cannot be deprived of reasonable access without just compensation. Commonwealth, Dept. of Highways v. Caudill, Ky., 388 S.W.2d 376, 379 (1965). It follows, we think, that he must be entitled to show what he will have left in the way of access before it can be determined whether it is reasonable. Ordinarily this question should be resolved by the court as a matter of law, but in order for it to be resolved at all it would seem indispensable that the facts be disclosed. If it appears that the landowner will be subjected merely to circuity of travel (within reasonable limits), the court may properly be requested to admonish the jury not to consider that circumstance as a factor in arriving at the reduced value of the remaining property; but we do not feel that it is incumbent on the court to give the admonition of its own volition. Cf. Commonwealth, Dept. of Highways v. Shaw, Ky., 390 S.W.2d 161, 163 (1965). No admonition was requested in this case, nor was the court asked to give an instruction on the point. Whether the location of the frontage road was such as to provide reasonable access is a question on which the trial court was not asked to rule and we do not find necessary to decide.

The trial court should have sustained objections to those particular questions directed to the distance that will now have to be traveled back down U.S. 25 to the Pleasant View community, but we are not persuaded that any substantial prejudice resulted. In this connection, the opinions of the respective sets of witnesses as to the value of the property after the taking did not vary widely anyway, and that is the only figure that could have been influenced by the questionable testimony. The real differences developed by the evidence were in the before values.

During cross-examination by the Commonwealth the landowners’ witness Everett Rains testified as follows:

Q. “Mr. Rains, if the home is worth $8,000 and the land taken $4,000, and the land left that would be about $16,-000?”
A. “It is worth more money to the woman here than to anyone else because she had been there all the time.”
Q. “Did you consider that was her old home and she didn’t want to sell it?”
A. “You would have to.”

This witness had testified on direct examination that the whole property before the taking was worth $11,000 to $11,500 and the portion left thereafter had a market value of $1,200 to $1,500. In the cross-examination immediately preceding the testimony quoted above he had been asked as follows:

Q. “Mr. Rains, what factors did you consider in arriving at this $11,000 to $11,500? ”
A. “Well, that had been a nice home beforehand.”
Q. “How much did you consider it?”
A. “I would say around $6,000 to $8,000.”
Q. “What about the land then?”
A. “About $4,000. Then the damage to the other property is about $4,-000. There’s not must left in there and you can’t get to it.”

On the basis of the foregoing excerpts counsel for the Commonwealth moved that the testimony of Rains be stricken in its entirety because he had considered an improper factor and had put price tags on separate items.

The owner’s unwillingness to sell is not a relevant factor in determining market value. Commonwealth, Dept. of Highways v. Darch, Ky., 374 S.W.2d 490 (1964). We are not convinced from reading his testimony that Rains’s opinion actually was influenced to any substantial degree by his assumption that the owners did not wish to sell the property, but if so, it was incumbent on counsel to develop the fact more definitely than was done in this instance. Moreover, a motion to strike the entire testimony of a valuation witness is not an appropriate remedy unless it appears that his opinion is based solely or primarily on an improper factor. Commonwealth, Dept. of Highways v. Shaw, Ky., 390 S.W.2d 161, 163 (1965).

The same comment applies to the witness Herman Bradford, whose testimony was asked to be stricken on the strength of the following inconclusive exchange:

Q. “Did you consider the fact that this was these people’s old home place and they didn’t desire to sell ? ”
A. “Hardly nobody wants to sell out there.”

With respect to the argument that Rains arrived at an improper valuation by adding separate figures for the house and for the land, it was observed in Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249, 253 (1964), that the witness may properly estimate the amount by which major improvements enhance the value of the land. We do not gain the impression from the evidence of Rains, nor from the statements elicited from any of the other witnesses who testified in the same vein under cross-examination, that the value of the property was computed in an improper manner. As a matter of fact, the separate valuations of which complaint is made appear to have been little more than horseback estimates originating during and in response to the pressure of cross-examination.

The last contention in support of this appeal is that the Commonwealth was substantially prejudiced by improper comment of counsel for the landowners in his closing argument, which was:

“Three experts come in here from outside and all come within $10 of what this property is worth — isn’t that amazing? I think the state is making a mistake here. I think instead of getting elected officials who reside in air-conditioned homes and buy cars out of * * * ”
Mr. Clark: “Objection.”
The Court: “Sustained.”
“When you get experts like that * * *»
Mr. Clark: “Objection.”
(No ruling.)
“ * * * and they come up with something like this mathematically there is something unusual about it. I believe you can draw your own inferences and I will draw mine.”

This type of demagoguery has been decried and condemned often and universally by this and other courts. It not only tends to degrade the profession; it insults the intelligence of the jurors. However, we are not disposed to add further insult by assuming the jurors really were affected by it. The trial court evinced its disapproval by promptly sustaining the objection. No further admonition was requested. Cf. Betzing v. Wynn, Ky., 248 S.W.2d 727 (1952).

The judgment is affirmed.

      . It may be more south than west, but for the purposes at hand we shall consider U.S. 25 and 1-75 as running north —south.


author: HILL, Judge.

text:
    Calvin BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Calvin Bell, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

This is another appeal from an order overruling without a hearing the third motion of Calvin Bell to vacate a criminal judgment under a charge of storehouse breaking and a violation of the habitual criminal act.

Bell also filed a petition for writ of mandamus, which was overruled. See Bell v. Gentry, Ky., 380 S.W.2d 259 (1964).

It is provided under RCr 11.42 that: “The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.”

We affirm the judgment because the same questions have been adjudicated in the two previous motions under RCr 11.42. We have, however, examined the alleged grounds set out in this last motion and find them to be without merit. Cf. Burton v. Tartar, Ky., 385 S.W.2d 168 (1964).

The records of this Court are flooded with appeals under RCr 11.42. There are over thirty-three hundred persons incarcerated in the two state reformatories, all detained against their will and without their consent. Every person charged with crime is entitled to at least one fair and impartial trial, but it is absolutely absurd to take the time of the courts with continuous filing and refiling of motions for the same relief under the same proceedings.

The judgment is affirmed.


text:
    Thomas H. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Thomas H. Brown, LaGrange, pro se.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., for appellee.
   HILL, Judge.

This is an appeal from an order overruling without a hearing appellant’s motion under RCr 11.42 to vacate judgment of conviction for armed robbery entered April 1949 in which he was given a life sentence.

The motion to vacate was filed February 17, 1965, stating that he was not represented by counsel.

The order of the Circuit Court, a photostatic copy of which appears in the record, shows he appeared with his counsel. There is also filed with the record a photostatic copy of the indictment with notations thereon, along with the affidavit of an assistant commonwealth’s attorney who pointed out the name of “Stone” appears on the back of the indictment. This affidavit showed that it was the custom at that time for the clerk to make a written notation on the indictment of the name of the attorney appointed to represent indigent persons. The affidavit shows the notation intended to designate Foster Stone, a local attorney, as the one appointed by the court to represent the appellant.

It may be safely stated that the dignity and majesty of public records increase with age, and the longer the period of time elapsing between their date and the time validity is questioned the greater the dignity, so that after the passage of a sufficient period of time such public records may become absolute and unassailable.

In the face of such an ancient public record, yellow with age, for it has been nearly sixteen years since it was made, we hold that the bare allegation that appellant did not have counsel, without some substantial supporting circumstance, is utterly insufficient to entitle him to a hearing under RCr 11.42. In Moore v. Commonwealth, Ky., 394 S.W.2d 931, decided October 22, 1965, this Court said:

“We agree with the proposition set forth in Rayborn v. United States, 6 Cir., 251 F.2d 950, that mere unsupported allegations of lack of counsel will not be permitted to contradict plain, unambiguous court records.”

Appellant had a right during this sixteen-year period to raise the present question by habeas corpus. He did not do this. Although we do not at the present time apply the usual rules of laches and delay in cases of this character, it is an interesting circumstance to keep in mind in determining the sufficiency of an attack on aged public records.

The motion to vacate is insufficient and the judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    Dorris WAHL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1965.
    Dorris Wahl, pro se.
    Robert Matthews, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

The appellant, Dorris Wahl, was convicted of grand larceny and sentenced to three years in prison. He did not appeal his conviction directly hut later moved to vacate the judgment under RCr 11.42. After a hearing the circuit court entered judgment denying the motion. Appellant seeks reversal of the circuit court’s judgment.

The motion alleges the following grounds: (1) That appellant was arrested without a warrant; (2) that evidence introduced against him at the trial was obtained as a result of an illegal search and seizure; (3) that the preliminary hearing was delayed unnecessarily; and (4) that his trial counsel did not represent him adequately.

We have said that the moving party on a motion under RCr 11.42 undertakes a heavy burden to overcome the regularity of the conviction. The motion is not a substitute for appeal, and it does not permit a review of all the alleged errors surrounding the trial. It is applicable only in cases where the judgment is so manifestly wrong as to be void or is otherwise subject to collateral attack.

The appellant has not alleged sufficient grounds for relief under RCr 11.42. His first allegation, that he was illegally arrested, and his second allegation, that illegally seized evidence was used to convict him, may not be raised in proceedings under RCr 11.42. The appellant challenged the legality of the search and seizure at the trial and is not in a position to raise the same question in an RCr 11.42 proceeding at this time. King v. Commonwealth, Ky., 387 S.W.2d 582. The Kentucky criminal procedure provides a remedy to correct such errors by direct appeal. See RCr 12.52. The appellant did not avail himself of this remedy because no direct appeal was taken.

The third alleged error, that the preliminary hearing was delayed unnecessarily, is not sufficient to cause the setting aside of the judgment. The record discloses that there was a period of fourteen days between the time of appellant’s arrest and the time the preliminary hearing was set in police court. The hearing was continued for another eight days apparently because of difficulties encountered in getting the stolen property over the Indiana state line. We find no evidence in the record that this delay prejudiced the appellant in any way.

Appellant also contends that his court-appointed counsel did not represent him adequately. In order to vacate the judgment because of poor representation of counsel, we must find that the circumstances of the representation were such as to shock the conscience of the court and to render the proceedings a farce and a mockery of justice. Rice v. Davis, Ky., 366 S.W.2d 153; King v. Commonwealth, Ky., 387 S.W.2d 582. The record does not disclose such circumstances in the present case.

Judgment affirmed.