author: BARROW, Justice.

text:
    EAGLE LUMBER COMPANY, Appellant, v. Hilda May TRAINHAM, Appellee.
    No. 14059.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1963.
    Rehearing Denied March 20, 1963.

      Lowrey & Foster, Del Rio, for appellant.
    Newton & Newton, Del Rio, for appellee.
   BARROW, Justice.

Eagle Lumber Company appeals from a summary judgment granted Hilda May Trainham, removing any cloud cast upon her separate property by two judgment liens duly filed by appellant in the records of Val Verde County, Texas. The question presented is whether the property was conveyed to her as her separate property before the property lost its homestead exemption by the granting of divorce. The facts are not in dispute and both parties made motions for summary judgment based upon an agreed stipulation of the parties.

Glenn C. Trainham divorced Hilda May Trainham in Dallas County on July 6, 1960. Prior thereto the property in question was the homestead of these two parties. They had no children. It is conceded by 'appellee that this divorce decree destroyed the homestead status and that appellant’s judgment liens attached to the land when it ceased to be a homestead, unless it was appellee’s separate property at the time. Bahn v. Starcke, 89 Tex. 203, 34 S.W. 103; Marks v. Bell, 10 Tex.Civ.App. 587, 31 S.W. 699, writ ref.; Walton v. Stinson, Tex.Civ.App., 140 S.W.2d 497, wr, ref.

Appellee asserts that the divorce decree vested title to the property in her as her separate estate. Prior to April 5, 1960, appellant duly recorded two judgment liens in Val Verde County on judgments owed by Glenn C. Trainham. On April 5, 1960, Trainham filed his divorce petition and alleged that he would convey all his interest in the property to his wife, Hilda May Trainham. The time of his proposed conveyance was not alleged. On April 20, 1960, Trainham executed a deed conveying the property to Hilda May Trainham as her separate property, and gave it to his attorney in Dallas. Mrs. Trainham’s attorney in Del Rio was then advised that Train-ham’s attorney was authorized to deliver the deed when the divorce was granted. On July 6, 1960, the divorce decree was entered. It provided in part: “The Court further finds that the parties hereto have settled their community property rights.” No mention was made in the decree, either directly or by reference, of a property settlement agreement. The parties stipulated that on July 6, 1960, the record title to the property was in Glenn C. Trainham, and it remained so until the deed to Hilda May Trainham was recorded on July 12, 1960. They further stipulated that Eagle Lumber Company had no notice of this deed until July 12, 1960.

It is well settled that the lien of a judgment creditor takes precedence over a prior unrecorded deed, unless the judgment creditor has notice of the deed at or before the time his lien was fixed upon the land. Turner v. Cochran, 94 Tex. 480, 61 S.W. 923; McDonald v. Powell Lumber Co., Tex.Civ.App., 243 S.W.2d 192, writ ref. Appellee admits that appellant had no notice of the deed prior to abandonment of the homestead by the divorce, but asserts that the divorce decree conveyed the property to her as her separate property. Article 4638, Vernon’s Ann.Civ.Stats., authorizes the trial court on granting a divorce, to partition the estate of the parties. The trial court may partition the homestead at such time and it would not be subject to a forced sale by creditors. Richey v. Hare, 41 Tex. 336; Franks v. Franks, Tex.Civ.App., 138 S.W. 1110, writ ref. Further, a partition of the community estate may be accomplished by a property settlement agreement. Adams v. Adams, Tex.Civ.App., 214 S.W.2d 856, no writ history. If incorporated in the decree, a property settlement agreement is held to have the same force and effect as any other judgment, and in the absence of fraud or mistake is binding between the parties thereto and their privies, and stands as a final disposition of the rights of the parties. Roberts v. Southwestern Life Ins. Co., Tex.Civ.App., 244 S.W.2d 302, writ ref., n. r. e.; Beam v. Southwestern Bell Tel. Co., Tex.Civ.App., 164 S.W.2d 412, writ ref., want of merit.

We do not believe, however, that the divorce decree entered in this case passed title to appellee, Hilda May Train-ham. The property settlement agreement was not incorporated, directly or even by reference, in the decree and it would be impossible for a third party to ascertain from the decree which 'party was to receive the property. The allegation in the petition merely evidences an intention to convey the land to Hilda May Trainham. The conveyance is not a part of the divorce decree. The decree simply recites that the property matters were not in issue before the trial court. Upon entry of the decree, the homestead was abandoned and appellant’s judgment liens attached.

The judgment of the trial court is reversed and rendered that Eagle Lumber Company have foreclosure of its judgment liens.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    Claude DOUGLAS, Appellant, v. Lucy Jean POTTINGER et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 14, 1962.
    As Modified on Denial of Rehearing March 22, 1963.
    Edward J. Hogan, Henry V. B. Denzer, Louisville, for appellant.
    Theodore Wurmser, Ralph Stone, David J. Beumer, Louisville, for appellees.
   MILLIKEN, Judge.

The accident, out of which this litigation arose, occurred July 26, 1958, about 2:30 a. m. in Louisville, Kentucky, about 150 to 200 feet south of the intersection of First and Oak Streets. First Street runs north and south and all vehicles involved in the accident were headed south on First Street. First Street is one-way south, consisting of two driving lanes and a parking lane on the east and west sides of the street. At the time of the accident, cars were apparently parked rather solidly on both the east and west sides of First Street. Ap-pellees, Lucy Jean Pottinger, Barbara Maupin, Glena Holman and Rose Pottinger, were all passengers in the automobile operated by appellee Mary Dorothy Maupin, which was stopped before the impact headed south on First Street in the first lane east of the center line. There is no contention on this appeal that Mary Dorothy Maupin was negligent in any respect. The appellant-Douglas’ car hit the parked car, but Douglas maintained that he had stopped his car, then had just started to pull around the Maupin car when his car was struck from the rear by the automobile operated by the appellee Fritts. On the other hand, Fritts testified that he started to pass both cars in the westerly lane of the street, but Douglas simultaneously started out into that lane in order to pass the parked car which movement in turn caused Fritts to veer back into the easterly lane and ram Douglas’ car from behind. All three cars were in the easterly lane after the impact. The testimony of the occupants of the Maupin car varied as to whether there were one or two impacts.

Whether Fritts was negligent, whether Douglas was negligent, whether both were negligent were the questions the jury had to decide. As heretofore stated, the driver of the parked or Maupin car was absolved of negligence for stopping her car in the easterly lane, a result accepted by the appellant. In the circumstances stated, the appellees, passengers in the Maupin car, were not negligent and were injured through the negligence of either Douglas or Fritts or both. As a consequence, the court directed a verdict for the claimants and left it to the jury to decide whether Fritts or Douglas or both were negligent, saying to the jury, “You will find a verdict for Rose Pottinger, Lucy Jean Pottinger, Barbara Maupin, Glena Holman and Mary Dorothy Maupin against Claude Douglas and Charles Fritts, or either of them as in accordance with the following instructions,” and then went on to charge the jury with what it could and should do in the event it found that either Douglas or Fritts solely caused the injuries, or what it should do if it found both caused the injuries by concurring negligence. The court then told the jury how. .the damages could be apportioned between Douglas and Fritts in the instance of each claim. In an effort to simplify matters for the jury, the court submitted forms of verdict for each claimant which epitomized the rest of its instructions. For example, the court submitted the form:

“We, the Jury, find for Rose Pottinger against
“(a) Claude Douglas in the sum of $-, or
“(b) Against Charles Fritts in the sum $-, or
“(c) Against Douglas and Fritts in the sum of $-, or
“(d) Against Douglas in the sum of
$-, and against Fritts in the sum of $-.
Foreman”

The verdicts rendered apportioned responsibility for the damages on a 9 to 1 ratio between Douglas and Fritts.

We think the trial court was wholly justified in directing verdicts for the claimants, and that the instructions fairly and adequately apprised the jury of the law, leaving to the jury the factual determination of whose conduct was responsible for the claimants’ injuries. Suffice it to say that there was evidence of a conflicting nature, and the jury was entitled to reach the conclusion it did.

The appellant asserts that it was prejudicial error for the trial court to exclude the introduction of a written statement signed by Mary Dorothy Maupin, driver of the Maupin car, in which she said, “When I stopped, the car behind me (Douglas’) stopped too. I don’t know how far behind me he was.” As a party to the litigation, it is • contended that the written statement should have been admitted as substantive evidence as an admission against interest, since in her oral testimony in court Mrs. Maupin said she could not- say for sure whether Douglas’ car had come to a full-stop. The trial court offered to permit the use of the conflicting statement for cross-■examination to affect the credibility of the party-witness, but refused to permit the introduction of the signed transcribed statement itself as substantive evidence as permitted in Schaible v. Uhl (1961), Ky., 343 S.W.2d 578.

The statement was not an admission of any conduct on Mrs. Maupin’s part which would tend to establish any liability on her part. It did inferentially support Douglas’ contention that he had stopped his car before the impact. It must not be overlooked that Douglas admitted that he had moved his car a foot or two in starting to go around Mrs. Maupin’s car, after the stop he claimed he made, when his car was struck from the rear by the oncoming Fritts car. It was this slight movement on the part of Douglas’ car which Fritts contended caused the collision.

The material issue was not whether Douglas stopped as he contended, but whether the admitted slight movement of his car toward the passing lane was a causative factor of the accident which followed. There was no evidence on this controlling material issue in the written statement and, as a consequence, the written statement was good solely to discredit Mrs. Maupin’s testimony by showing her prior inconsistent statement, and the appellant refused to use it for that purpose.

The appellant also urges that damages awarded Rose Pottinger were excessive and to some extent arose out of her nature rather than her injuries. This claimant earned about $70 a week working for the Philip Morris Company, and lost all income from the date of the accident to nearly a year later when she lost her job. The jury awarded her a verdict of $5,352.93 against appellant plus $594.77 against the appellee Fritts. The evidence discloses that Miss Pottinger suffered whiplash injuries to her back, neck and shoulders, together with severe bruises and lacerations, which caused prolonged pain. While it is true that a residual numbness in her arm may be of a psychic origin, it, nevertheless, has a nexus with her physical injuries. We do not think the damages awarded were excessive. Other points raised for reversal are not substantial.

The judgment is aflirmed.


author: MONTGOMERY, Judge.

text:
    William L. ARCHER et al., Appellants, v. CITIZENS FIDELITY BANK & TRUST COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1962.
    As Modified on Denial of Rehearing March 22, 1963.

      Wilbur Fields, Louisville, for appellants.
    Thomas W. Bullitt, M. Brooks Senn, Bullitt, Dawson & Tarrant, Louisville, for appellee.
   MONTGOMERY, Judge.

William L. and Alberta R. Archer appeal from a judgment by which the Citizens Fidelity Bank & Trust Company recovered the aggregate amount of five notes, $4,775, plus interest. Appellee was adjudged a lien on five insurance policies to secure payment of the amount adjudged. Appellee-recovered a personal judgment against Alberta R. Archer on three of the notes totaling $4,500. Appellants argue that: (1) Appellee was not the legal owner or holder of the notes; and (2) enforcement of the lien was barred by Archer’s discharge in bankruptcy.

William L. Archer brought this action against appellee to recover possession of five policies of insurance issued by the? Prudential Life Insurance Company. Ap-pellee answered that it held the policies under an assignment to secure the payment of appellants’ notes. By counterclaim against Archer and by cross-claim against Alberta R. Archer, his wife, it asserted its lien and sought the judgment obtained. By appropriate pleadings, appellants denied the right to assert the lien.

The case was decided on appellants’ motion for a judgment on the pleadings under CR 12.03. No further motions or pleadings were filed before judgment. Apparently the matter was treated as though each party had made a motion under CR 12.03. For a similar result under CR 56, see Collins v. Duff, Ky., 283 S.W.2d 179. See also Burd v. Commonwealth, Ky., 335 S.W.2d 945, where motion for summary judgment was treated as motion under CR 12.03.

CR 12.03 is the Kentucky counterpart of F.R.Civ.P. rule 12(c). Each has been construed as meaning that a judgment on the pleadings can be granted only if, on the admitted material facts, the movant is clearly entitled to a judgment. Spencer v. Woods, Ky., 282 S.W.2d 851; 2 Moore’s Federal Practice, Second Edition, Section 12.15, page 2269, and cases cited therein. Relief must be denied if there is a material issue of fact. Noel v. Olds, 80 U.S.App. D.C. 63, 149 F.2d 13; Friedman v. Washburn Company, 7 Cir., 145 F.2d 715. Such motion is to be determined solely on the pleadings and is equivalent to a demurrer to the pleading. Deming v. Turner, D.C., 63 F.Supp. 220. When a party moves for judgment on the pleadings, he admits for the purposes of his motion not only the truth of all of his adversary’s well-pleaded allegations of fact and fair inferences therefrom, but also the untruth of all of his own allegations which have been denied by his adversary. Clay, CR 12.03, Comment 2; United States v. Piole, D.C., 38 F.Supp. 600; M. Snower & Co. v. United States, 7 Cir., 140 F.2d 367. The question thus presented is one of law and requires an examination of the pleadings.

Appellee pleaded that the Archers executed and delivered the various notes to Citizens Fidelity, previously identified in the pleading as Citizens Fidelity Bank & Trust Company; that “all of said notes are due and payable * * * and there is due and payable to Citizens Fidelity on account thereof” the various amounts of the five notes plus interest; that by reason of the assignment of the insurance policies the payment thereof to Citizens Fidelity was secured by the surrender value of the policies ; and that Citizens Fidelity had an interest in and a lien upon the policies and their surrender value to secure said payments.

Appellee also alleged that a claim on the notes had been filed in Archer’s bankruptcy proceeding; that the policies sued on by order entered therein had been designated as exempted property by virtue of KRS 304.691 and 304.692; and that the discharge in bankruptcy excepted the indebtedness due appellee.

By subsequent pleadings, appellants raised questions of law as to the right to the lien and the effect of the discharge in bankruptcy, but they did not deny the allegation of any material fact. Appellants’ denial of the paragraph in appellee’s pleading in which it asserted as a conclusion that it had an interest in and lien upon the policies was a denial of a conclusion instead of a fact and was ineffective for the purpose of the motion.

The basis for appellants’ denial of appellee’s ownership of the notes is that the first note of $3,100 was made payable to the Citizens Fidelity Bank — St. Matthews. The four subsequent notes were payable to ap-pellee. Appellee’s allegations of owning, holding, and having an interest in the notes, including the $3,100 note without endorsement, are sufficient to sustain the judgment entered adjudging such ownership. KRS 356.049. Callahan v. Louisville Dry Goods Co., 140 Ky. 712, 131 S.W. 995; Bobrecker v. Denebeim, D.C., 25 F.Supp. 208; Barron & Holtzoff, Federal Practice & Procedure, Volume 1A, Section 271, pages 127-128.

Further, the admitted facts alleged by appellee establish its right, as owner and holder of the notes, to have a lien on the surrender value of the policies to secure their payment. Mercer National Bank of Harrodsburg v. White’s Ex’r, 236 Ky. 128, 32 S.W.2d 734, 20 Am.B.R. (N.S.) 646. The language of the insurance policy assignments provided that the collateral security should secure liabilities “either now existing or that may hereafter rise.” It apt-pears to have been intended by all parties to cover the existing and future indebtedness incurred. Four notes were executed and interest was paid on all of the notes to appellee after the assignments. 45 C.J.S. Insurance § 438, pages 63-64; National Bank of Kentucky v. Gallagher, 243 Ky. 740, 49 S.W.2d 1006; Johnson v. Johnson, 297 Ky. 268, 178 S.W.2d 983. See also Worthen v. Burgess, 273 Mass. 437, 173 N.E. 530; Angel v. Chase National Bank, 279 N.Y. 250, 18 N.E.2d 145; and Shay v. Merchants Banking Trust Company, 335 Pa. 101, 6 A.2d 536. All of the notes were secured by the lien.

The allegations in appellee’s pleading concerning the bankruptcy proceeding also must be accepted as admitted. CR 12.-03. Archer contends that the discharge in bankruptcy destroyed the lien. The effect of the discharge was to release his personal liability only, but it left intact the lien on the collateral which had been excepted as exempt property. Mercer National Bank of Harrodsburg v. White’s Ex’r, 236 Ky. 128, 32 S.W.2d 734, 20 Am.B.R. (N.S.) 646; Pace v. Berry, 176 Ky. 61, 195 S.W. 131. See also Collier’s Bankruptcy, 14th Edition, Volume 4, Section 70.23, pages 1178-79, and Volume 1, Section 17.29, page 1708; Lockwood v. Exchange Bank, 190 U.S. 294, 23 S.Ct. 751, 47 L.Ed. 1061; and Chicago B. & Q. R. Co. v. Hall, 229 U.S. 511, 33 S.Ct. 885, 57 L.Ed. 1306.

Thus, the examination of the pleadings shows that appellee alleged certain facts which were not denied by appellants, and therefore they stand admitted on consideration of the motion. When the law was applied to the undenied facts, appel-lee was entitled to the relief adjudged. The motion for judgment on the pleadings, though made by appellants, searched the record and judgment for appellee was properly entered. 71 C.J.S. Pleading § 427,. page 870; City Bank Farmers Trust Company v. Hoey, D.C., 23 F.Supp. 831, affirmed 2 Cir., 101 F.2d 9; Noel v. Olds, 78 U.S.App.D.C. 155, 138 F.2d 581, and 80 U.S.App.D.C. 63, 149 F.2d 13.

There is no merit in appellants’ argument concerning whether appellee could legally be a stockholder of another bank. This and related questions are not presented on the consideration of the pleadings.

The judgment is sustained by the admission of appropriate facts alleged in the pleadings.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    CITATION COAL COMPANY, Appellant,, v. Herbert LEWIS, Appellee.
    Court of Appeals of Kentucky.
    March 8, 1963.

      Armer H. Mahan, Louisville, for appellant.
    A. E. Cornett, Hyden, for appellee.
   CLAY, Commissioner.

In this workmen’s compensation case the question presented is: what credit should be allowed the employer as the commuted value of lump sum payments of two attorneys’ fees?

In 1957 the Board found the employee had sustained 33½ percent partial disability and awarded him $9 a week, not to exceed 400 weeks. An attorney’s fee of $854.20 was allowed and it was paid in a lump sum. Under KRS 342.320, upon making this payment, the employer was entitled to a credit for the last 117.6 weekly payments which would become due.

In 1960 the Board found total and permanent disability and increased the award to $32 per week, not to exceed 425 weeks. An attorney’s fee of $1545.20 was allowed and it was likewise paid in a lump sum.

The employer claims credit (that is, he should not be required to make any weekly payments) for the last 117.6 weeks under the first award, and the next to last 52.4 weeks under the second award, making a total of approximately 170 weeks. The trial court consolidated the two attorneys’ fees, totalling $2400, and gave the employer credit for 85.4 weeks payments at $32 per week.

Under the employer’s theory it would get credit for $5440 in compensation payments in return for paying attorney’s fees totalling $2400. This on its face is absurd. It is not a permissible construction of the last sentence of KRS 342.150, which reads: “Upon payment of such lump sum all liability for the payments therein commuted shall' cease.”

In the quoted sentence the employer places emphasis upon the words “all liability”, overlooking the fact that the only liability extinguished is that for the payments therein commuted. Thus the allowable credit of 117.6 weeks for thte first attorney’s fee was at the rate of $9 per week. It did not remove those weeks from the calendar but simply absolved the employer from paying $9 for each of those weeks. When the award was raised to $32 per week it imposed on the employer a new liability to pay $23 for each of those weeks.

When considering a related problem in Thompson v. Harlan Wallins Coal Corp., Ky., 256 S.W.2d 10, we pointed out that an allowable credit for a particular week only has significance in terms of the amount awarded for that week. In the instant case the second award of $32 per week would thereafter be payable for the number of weeks remaining in the initial award and the additional 25 weeks provided in the second award, but credited with the payments commuted at $9 per week for the first attorney’s fee.

While the solution adopted by the trial court approximated the same result, the court did not use this method and the employee admits error in the court’s calculations. Since the employer is entitled to his credit of $9 a week for the last 117.6 weeks under the first award, the second attorney’s fee should be commuted on the basis of the additional amount payable under the second award.

The judgment is reversed for consistent proceedings, with costs equally divided between the parties.


author: STEWART, Chief Justice.

text:
    Elmer WHITE, C. C. White, Iva B. White, Evelyn White Broaddus, Mary W. Black, and Bernice T. White, Appellants, v. Rodney WHITE, Individually and as Administrator with the Will Annexed of the Estate of Ida White, Deceased, Mollie White, Betty White, Margaret White, Nell Kash, and Tennie Davis, Appellees.
    Court of Appeals of Kentucky.
    March 8, 1963.
    H. M. Shumate, Shumate & Shumate, Irvine, for appellants.
    J. M. Wolfinbarger, Irvine, for appellees.
   STEWART, Chief Justice.

Ida White died testate and without issue a resident of Irvine, Estill County, on July 10, 1960, survived by two brothers and four sisters, and also by a nephew and two nieces, the children of a brother who predeceased her. She disposed of her property by a holographic will, and the portion which is before us for construction reads:

“My real estate and money left and oil interest left to Rodney White Stanton, Ky. only his lifetime, after his death what is left to come back to the immediate White heirs that are living.”

The trial judge was of the opinion that the property devised and bequeathed to Rodney White under this clause could be used by him and his family, consisting of himself and his wife, for the customary expenses of living, including doctors’ and hospital bills or other emergency expenditures, in accordance with the station in life maintained by Rodney White. The trial judge declined, when requested by appellants, to require Rodney White to give bond to have the principal amount forthcoming at his death. The trial judge also adjudged that, at the death of the latter, the residue or “what is left” should revert to the brothers and sisters of Rodney White then living, they being the “immediate White heirs” entitled to share in what remained over.

This appeal is from these rulings. Appellants claim: (1) Rodney White has no right to encroach upon the corpus; (2) he should be required to execute bond so as to insure delivery of the corpus intact to those entitled to it after his death; and (3) upon the death of Rodney White, the corpus of the estate should be ordered distributed to the heirs of Ida White pursuant to the statutes of descent and distribution.

In the case of Collings v. Collings’ Ex’rs, Ky., 260 S.W.2d 93S, this Court had under consideration the language, “Any part of my estate remaining undis-posed of at the time of the death of my said wife, I will and bequeath to my cousin,” etc., and held that the words “remaining undisposed of” bestowed upon the widow, who was given his estate for life, the unrestricted right to encroach upon the estate in a reasonable manner. The opinion in interpreting the phrase said: “ * * * it was the testator’s intention that his widow should possess ad right as to the use and enjoyment of the devised estate during her natural life; nevertheless, she may not willfully waste it, nor give it away, nor dispose of it by will.”

The expression, “what is left,” imports the same meaning as “remaining undis-posed of.” Therefore, if the latter words in the Codings case implied power upon the part of the life tenant to encroach upon the principal, we believe the phrase, “what is left,” carries like effect as to one similarly situated in the case at bar.

A careful reading of the will of Ida White leads to the conclusion that she intended Rodney White to have a free hand in the use and management of the property she gave him. It is our view she did not wish him to be hindered by court proceedings or by any type of supervision or bv any kind of restraint. It seems clear that the language, “what is left,” would have no meaning if the words did not imply the corpus could be consumed. The trial judge in our opinon properly refused to require the bond demanded by appellants.

A final contention is that the nephew and two nieces of the deceased brother, or any other relatives of a like class, should be considered as “immediate White heirs” upon the death of Rodney White. The trial judge decreed that such persons were not immediate heirs. We have found no case in Kentucky which discusses the difference between heirs who are immediate and heirs who are not. However, in the case of Furenes v. Mickelson, 86 Iowa 508, 53 N.W. 416, the following distinction is set forth:

* * with reference to the line of pedigree or consanguinity, a descent is often said to be immediate where the 'ancestor from whom the party derives his blood is immediate, and without any intervening link or degree, and mediate when the kindred is derived from him mediante altero, another ancestor intervening between them. Thus a descent in lineals from father to son is, in this sense, immediate, but a descent from grandfather to grandson, (the father being dead,) or from uncle to nephew, (the brother being dead,) is deemed mediate.’ ”

Applying the test laid down in the Fur-enes case to the phraseology under consideration, it appears nieces and nephews should not be deemed immediate heirs but only brothers and sisters should be so considered. It follows that the trial judge correctly held that only the brothers and sisters of Ida White would take the property left under the above clause of her will at the death of Rodney White.

Wherefore, the judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Morris SERGENT, Appellant, v. J. P. HONEYCUTT COAL COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 8, 1963.
    Stanley R. Hogg, Whitesburg, for appellant.
    Willis W. Reeves, Reeves, Barret & Cooper, Hazard, for appellees.
   CULLEN, Commissioner.

The appeal is from a judgment of the circuit court affirming an order of the Workmen’s Compensation Board which dismissed appellant’s claim for workmen’s compensation benefits.

Appellant’s claim for compensation was based upon an alleged back injury. He was examined by six physicians, five of whom testified on the hearing before the referee that there was no back injury. On this evidence the referee recommended that the claim be rejected and it was so ordered on February 6, 1962. On February 20 the appellant filed a motion for full hoard review and a motion requesting appointment of disinterested psychiatrists for the purpose of determining whether appellant was suffering from a disabling neurosis. The full board entered an order reciting the concurrence of the board in the findings and conclusions of the referee, but reciting further that the claim was being rejected on “still another basis,” namely, that the motion for full board review was not made within the time allowed by statute. This had the effect of overruling the motion for appointment of physicians under KRS 342.315 but the board later entered a separate order rejecting the motion on the ground that it was too late, having been filed after the expiration of the time allowed by statute for making a motion for full board review. These orders were affirmed by the circuit court.

Under KRS 342.280(1) a motion for full board review must be made within 14 days from “the date of the award.” The board was of the opinion that the day on which the award was entered must be counted as one of the 14 days, so that the motions filed on February 20 were one day late. In this opinion the board was in error, failing to give proper significance to the fact that the statute calls for computation from the date of the award as distinguished from the making of the award (cf. KRS 342.285, which provides for an appeal to the circuit court within 20 days after the rendition of the award). KRS 446.030 provides that where the time is to be computed from the day of an event, that day is not to be included in the count. Our decisions are in accord. See Charles v. Big Jim Coal Co., Ky., 237 S.W.2d 68.

Although the board was in error in ruling that the motion for full board review was filed too late, no prejudice resulted from that ruling alone because the board did in fact review the record and concur in the findings of the referee.

However, a different situation is presented with regard to the motion for appointment of physicians, which the board rejected because of its erroneous view that this motion also was too late. Under KRS 342.315 the board had discretion whether or not to appoint disinterested physicians. A motion for such appointment could properly be made within the time allowed for the making of a motion for full board review. Jeane Francis Coal Co. v. Fields, 310 Ky. 122, 220 S.W.2d 107. Here, because of its erroneous impression that the motion was not filed in time, the board did not exercise its discretion but simply refused to consider the motion. It is our opinion that the board should have entertained the motion and made disposition of it according to its sound discretion. Under the liberal interpretation required to be given to the workmen’s compensation law we cannot say that the board could not in its discretion have granted the motion, even though it involved a theory of disability not presented before the referee and for which the claimant had presented no evidence.

The judgment is reversed with directions to enter judgment remanding the case to the Workmen’s Compensation Board for further proceedings in conformity with this opinion.


author: DEW, Special Commissioner.

text:
    Mary Lee Moles HEIL, Claimant-Appellant, v. SHRINERS’ HOSPITAL FOR CRIPPLED CHILDREN and Lafayette College, Respondents.
    No. 23582.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.
    S. Preston Williams, Wm. Harrison Norton, Wilbur L. Pollard, North Kansas City, Williams, Norton & Pollard, North Kansas City, of counsel for claimant-appellant.
    David Sheer,, Kansas City, for respondents.
   DEW, Special Commissioner.

The appellant is the widow of J. Norman Heil, deceased. The respondents are beneficiaries under his last will and testament. The appellant petitioned the Probate Court of Jackson County, Missouri, for a widow’s allowance and for an order setting aside exempt property of her husband’s estate. Her petition was denied. She appealed to the circuit court, which likewise denied her petition. From the latter judgment she has taken the present appeal to this court.

Under the authority of Section 472.250 RSMo 1959, V.A.M.S., the cause was tried anew in the circuit court. The facts were tried to the court without a jury. The evidence consisted not only of testimony produced in that court, but testimony, exhibits and records of a previous divorce case between appellant and her husband (tried but not determined before his death) and in the probate court on the matter of the allowances involved herein. From all of such voluminous sources of evidence, made a part of the record in the instant proceedings, the facts pertinent to the present appeal are sufficiently stated below.

The appellant filed suit for divorce in Clay County, Missouri, on June 6, 1957. In her petition she charged desertion and nonsupport. She prayed for $30,000 gross alimony, temporary alimony, suit money, attorney’s fees and restoration of her maiden name. On June 24, 1957, she asked for and obtained a temporary restraining order to prevent her husband from molesting or threatening her in any manner. There is no record of any further proceeding on that order.

On July 1, 1957, Mr. Heil filed an answer to appellant’s petition, admitting the marriage and generally denying the charges alleged. He also filed therewith his cross-petition, asking for a divorce on grounds of appellant’s hostile, cruel and inhuman conduct toward him during their married status, such as to make harmonious and concordant cohabitation impossible; intolerable and excessive use of alcohol; a total lack of love or affection for him; a charge that she compelled him to leave home on June 3, 1957, without just cause or excuse; an allegation that before the separation she had threatened to shoot and kill him, and on one occasion had intentionally broken his glasses which were lying on a bureau, and had been otherwise abusive toward him. On July 30, 1957, the court denied appellant’s motion for temporary alimony, but allowed her attorney’s fees.

Omitted entirely from appellant’s statement of facts and from the other contents of her brief filed herein, is the material fact in evidence, elicited from her own cross-examination in the probate court that after her husband had filed his cross-petition and the court had denied her temporary alimony, he wrote her a series of letters, beginning August 10, 1957, and until October 3, 1957, repeatedly expressing his love and affection for appellant, regretting the misunderstanding which prevailed between them, promising full co-operation on his part toward a reconciliation, and urging her to withdraw her petition and join him again in conjugal contentment. To these letters appellant made no reply. Their dates and substance will be noted more particularly hereinafter. For the requirements of the statutes, rules and decisions regarding the proper statement of facts to be contained in the appellant’s brief in an appellate court, see Rule 83.05(a) (c), V.A.M.R.; Wipfler v. Basler, Mo., 250 S.W.2d 982, 984; Schoenhals v. Pahler, Mo., 272 S.W.2d 228, 229.

On October 29, 1957, appellant filed an amended petition for divorce. She pleaded therein cruel and abusive conduct on Mr. Heil’s part, including threats of bodily harm; failure to support her; his designs to procure her property by the marriage; his attention to other women; support of another woman unrelated to him; damage to her real estate business and a total lack of love and affection for her.

To appellant’s amended petition Mr. Heil again filed an answer, generally denying the charges made and filed an amended cross-petition on November 7, 1957, wherein he made charges similar to those in his original cross-petition, and further alleged appellant married him with designs to obtain his property and means to use in her extravagant business projects.

Appellant, on January 11, 1958, filed a second motion for temporary alimony and was again denied it. She took a change of venue on February 26, 1958, and the cause was transferred to the Ray County Circuit Court.

The divorce case was tried on July 23, 1958, and taken under advisement by the court. A decree of divorce was prepared by the court in favor of the defendant (Mr. Heil), but he died on August 23, 1958, at which time no decree had yet been entered. Thereupon appellant filed suggestion of Mr. Heil’s death and moved for a dismissal of the divorce suit. Meanwhile administration had been started on Mr. Heil’s will and the executor and other beneficiaries under the will moved to intervene in the divorce proceedings and sought to have the proposed decree in Mr. Heil’s favor entered nunc pro tunc. Thereafter, on petition of appellant, this court issued its writ prohibiting the circuit judge of Ray County from entering the judgment for lack of jurisdiction due to Mr. Heil’s prior death; ruled that any entry thereof already made to be a nullity; and ordered the divorce case to be dismissed. See Heil v. Rogers, Mo.App., 329 S.W.2d 388. The case was thereupon dismissed of record.

The will of J. Norman Heil was executed July 12, 1957e and filed in the Probate Court of Jackson County, Missouri on August 27,1958. By its terms he gave, devised and bequeathed real and personal property in various states to various persons and in various degrees of ownership, but made no mention of the appellant. As his widow fhe appellant, on September 9, 1958, gave notice that she renounced the will and elected to take her legal share of the estate. On October 7, 1958, she filed the petition in question, asking the probate court to allow her a widow’s allowance in the suggested amount of $9,000, and to make an order setting aside exempt property in the amount of $2,000.

The commissioner of the probate court, after an extended hearing and consideration of the evidence and briefs filed in the proceeding, ruled that appellant’s claim should be denied for the reason that she had abandoned the deceased husband one whole year next prior to his death without reasonable cause, within the meaning of Section 474.-140 RSMo 1959, V.A.M.S. The petition was accordingly denied by the probate court.

Section 474.140 provides that “If any married person voluntarily * * * abandons his spouse without reasonable cause and continues to live separate and apart from his spouse for one whole year next preceding his death * * * such spouse is forever barred from his inheritance rights, homestead allowance, exempt property or any statutory allowances from the estate of the spouse unless such spouse is voluntarily reconciled to him and resumes cohabitation with him”.

Upon appellant’s appeal to the circuit court from the judgment of the probate court, the circuit court, on a review de novo, heard and considered testimony and other evidence extensively, of which we state herein so much as sufficient to consider the points here raised, omitting that which is cumulative, inconsequential or incompetent. The appellant’s evidence tended to prove that she had been in dire need of capital with which to operate her business; that she advertised for investors and Mr. Heil replied and was willing to invest in her business project. Within four or five months thereafter they were married. They lived together 52 days. Since their first acquaintance Mr. Heil had loaned her $2,500, secured by real estate, and which had never been repaid; he had since given her $8,000 in cash, nice furniture and household effects and opened many charge accounts for her use; that he quarreled with her because she continually put money into the business and because she traded at stores in which she thought she could trade, most economically.

The evidence showed that she lived at Gashland, Missouri with her parents, whom she supported. She and her husband lived there part time, and for some time in his apartment in Kansas City, and occasionally at his farm near Clinton, Missouri. At the time of the separation they were living at her home at Gashland.

Appellant testified that on June 2, 1957, Mr. Heil demanded that within 24 hours she close her business, discharge her employees and forfeit her leases. The next day he again complained that she would not quit her business and he left home. Appellant followed him to his car in order to ask him not to leave. He took some of his effects, including two revolvers in a leather case. He returned later that morning, refused a.cup of coffee offered to him by appellant, refused to eat lunch, and again left the house that morning.

Appellant further testified that after the separation she learned that Mr. Heil was living in his apartment with another woman. Upon objection made and sustained, she changed her statement to “was occupying the same apartment”. She said she met the woman at the time of Mr. Heil’s death and that her name was Shirley Dumo. She saw her again at the funeral. She said Mrs. Dumo threw herself across Mr. Heil’s casket and cried out: “Norman, Norman, take me with you”.

In her cross-examination in the probate court, introduced in the circuit court, appellant was shown the letters written to her by Mr. Heil after the separation, as we have mentioned. They were addressed to her in different ways, such as — “Dear Mary Lee”, “Dearest Mary Lee”, “To my wife Mary Lee”, “A love letter to Mary Lee”. They were signed differently as, “With adoration, your one and only Norman”, “Yours, in love with you”, “Your loving husband”, etc. Excerpts from some of the letters stated: “Call me again very soon and arrange your life to live with me as we started in April, 1955. I am patiently waiting for the reunion. I hope that we are close to getting together”; “Stop in and see your lawyer and ask him to withdraw the suit. That is all you need to do. I have my heart out to you, and love you more than tongue can tell”, “I love you with all my heart and soul and promise to give you the best there is available”; “Let’s get down to business by going out over the weekend to the Ozarks. I am ready. Are you ready?”.

Regarding these letters appellant identified them, acknowledged having received them and testified about them as follows: “Q. Now, the general tenor, since it is unnecessary to read the letters at this time, is professing love and seeking reconciliation, is that not — A. That is correct. Q. Does that permeate throughout the letters? A. It does. Q. Did you answer any of these letters? A. I didn’t.”

In respondents’ behalf portions of Mr. Heil’s testimony in the divorce case were introduced. He testified therein that he was 58 years of age, a graduate engineer and had been employed for 20 years by the U. S. Department of Commerce; that his income was about $7,000 per year. He stated that appellant had several times told him that she did not love him; that she wanted a divorce. He said he was afraid of her threats that she “would get rid” of him. He testified in the divorce case that on the day before the separation appellant telephoned him from her attorney’s office and said she was going to file for divorce. At home she avoided him and refused to allow him to sleep in his bed or in the same bedroom, whereupon he was compelled to go to the basement to sleep. Appellant, however, followed him there and threatened' him and said: “One of us as well be dead in the morning”. She appeared, he said, to be in a furious temper, such “as I have never seen before”. He said that on the morning of the separation, appellant, in an angry rage, picked up a hand mirror and smashed his spectacles which were lying on a bureau.' He stated that appellant was frequently under the influence of liquor and often caused him embarrassment; that on one occasion when they had company she did not appear and was found drunk in her car at a filling' station; that often she was too drunk to attend to her household duties.

Norman Heil, in his deposition in the divorce case, denied that appellant had asked him not to leave, and denied the charge of his attention to other women. Respondents introduced in the instant proceeding the testimony of Shirley Dumo, taken in the probate court hearing. She testified that her former occupation was housekeeping; that she had worked as a housekeeper for several families in Kansas City; that she worked for Mr. Heil from June, 1958, until his death August 23, 1958; that he paid her $15 per week; that she worked for him when he lived in his apartment in Kansas City, and when he stayed at his farm near Clinton; that private quarters were furnished her for lodging at both places. She definitely denied any meretricious conduct on her part during her employment by Mr. Heil.

The circuit court in its decree in the case at bar ruled that the evidence showed Mr. Heil had made ample provision for appellant while they were living together; that her claim of nonsupport had not been sustained; that the separation of which she complained was at her own instance and its continuation was of her own desire and without reasonable cause within the meaning of Section 474.140. The decree affirmed the ruling of the probate court and denied appellant’s petition for the allowances described.

This case having been tried without a jury, the present appeal to this court requires a review of the case “upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”. Rule 73.01(d); Crawford v. Longston, Mo., 356 S.W.2d 581. The review here must, therefore, be de novo and under the above statutory directions. Peterson v. Peterson, Mo., 273 S.W.2d 239, 240; Matter of Estate of Anna Lenhardt v. Lenhardt, Mo., 322 S.W.2d 170, 173.

The substance of appellant’s two assignments of error is that (1) the circuit court erred in ruling the appellant unqualified to receive a widow’s allowance and for an order setting aside exempt property out of the estate of J. Norman Heil on the ground that she had abandoned him for one whole year next preceding his death, without reasonable cause, within the meaning of Section 474.140, and (2) that those representing his estate are estopped from making such charge. We shall consider the points together.

On the issue of appellant’s abandonment of her husband, appellant, in the divorce case and in the probate hearing, defended against the charge of abandonment on the general theory that the evidence had not sustained it. In the present review, although acknowledging that such was the primary issue in this case, she presents now the sole theory that “for the purpose of the argument we can assume that claimant-appellant’s petition for divorce was filed in bad faith. The important fact is that when the testator filed his cross-petition for divorce the question of claimant-appellant’s bad faith was immaterial for she could not be guilty of abandonment while he sought a divorce”. She asserts that “When he filed his cross-petition on the latter date (July 1, 1957), he affirmatively demonstrated by that overt act that he wanted to be separated, did not want to be reconciled and therefore one of the necessary elements of abandonment within the meaning of Section 474.140 is absent, namely, there can be no abandonment without reasonable cause.” Appellant states in her argument that “There is no evidence in this case that the testator at any time offered to dismiss his cross-petition, but, on the contrary, by filing same and further by appearing in court in the divorce action and testifying, he told not only the claimant-appellant, but the whole world, that he wanted the separation and did not want to engage in further cohabitation”.

Assuming then, as appellant proposes, that the separation was at her own instance, as found by the probate court and the circuit court, on substantial evidence thereof, how then could such conduct on her part be prevented from barring her from any right in her husband’s estate at his death? The answer, we believe, must be found in the same statute, Section 474.140, which specifies the exceptions, to-wit: “unless such spouse is voluntarily reconciled to him and resumes cohabitation with him”. It is admitted that she did neither.

“The rule that the express mention of one thing implies the exclusion of another would also weigh against the inclusion of the additional restriction, since, where special powers are expressly conferred or special methods are expressly prescribed for the exercise of power, other powers and procedures are excluded”. Brown et al. v. Morris, 365 Mo. 946, 290 S.W.2d 160, 166. See also Kroger Grocery & Baking Co. v. City of St. Louis, 341 Mo. 62, 106 S.W.2d 435, 439, 111 A.L.R. 589; Milgram v. Jiffy Equipment Co., 362 Mo. 1194, 247 S.W.2d 668, 673, 30 A.L.R.2d 925.

The precise question submitted on this appeal is, therefore, whether the defense pleaded and pursued by J. Norman Heil in appellant’s suit against him for divorce was such as to constitute acquiescence in, consent to and a nullification of appellant’s abandonment of him, so as to exempt her at his death from the exception proviso of Section 474.140, above quoted. If the answer must be in the affirmative, then her disqualification to share as a widow in his estate as ruled by the probate and circuit courts is without the necessary statutory support. If the answer must be in the negative, then, under the statute and under the facts hypothesized, she is barred from sharing any rights in her husband’s estate.

To determine whether the filing of a cross-petition for divorce by Norman Heil and his participation in the trial in that behalf constituted such consent and acquiescence in the separation, it must be recalled that he was, at that time, being sued for a dissolution of his marriage and on charges of desertion and nonsupport, and also for permanent alimony in the sum of $30,000, along with attorney’s fees, suit money and temporary alimony; that he had given appellant large sums of money before and following their marriage; that he wished to deny the charges against him and to protect his own rights as he thought them to be; that he was required to plead in appellant’s suit against him or forfeit his defense; that to default in the case would likely result in the award to appellant of all of the relief asked for in her petition and would prevent him from securing any counter relief; that to file a general denial would certainly preclude him from recovering such counter relief; that to protect his rights, if any, to a divorce if appellant pursued the case to final judgment, it was necessary to file, along with his general denial, his counter-petition for divorce. But soon thereafter he wrote a series of letters to appellant, expressing his continued love and affection for her, deploring the differences that had prevailed between them and making fervent appeals to her to withdraw her divorce petition, to reconcile their differences and to resume cohabitation.

The appellant not only ignored her husband’s supplications and overtures toward reconciliation, but she filed an amended petition alleging in greater detail her grounds for divorce, to which he then filed his amended answer and cross-petition.

Appellant in her brief likens the term “abandonment”, as used in Section 474.140 to the term “desertion”, used to refer to the ground for divorce expressed in the statutes as “absenting himself or herself without reasonable cause for the space of one year”, and, therefore, cites divorce cases, mostly from foreign jurisdictions, holding those terms synonymous and interchangeable. Because of the distinguishable provisions in local statutes, distinctions as to facts or the basic differences between the proceeding in the probate court here involved and an action for divorce, such cases are of little value as applied to the case at bar.

Section 474.140 “was intended to announce a principle of sound morality and public policy. * * * ‘She cannot repudiate, while her husband lives, all the obligations of the marital relations, and take all the benefits which remain after he dies’ ”. Wilson v. Craig, 175 Mo. 362, 75 S.W. 419. “* * * [I] t declares a wholesome principle of public policy and morality which would prevent the courts of this state from giving sanction to such a claim.” Lane v. St. Louis Union Trust Co., 356 Mo. 76, 201 S.W.2d 288, 291. Proceedings under that section are not dependent upon a previous divorce case, but such matters are evidentiary only in the probate proceeding.

Thus, upon assumed conditions suggested by appellant, namely, that she had sued her husband for divorce on a petition filed in bad faith, compelling him to plead and to participate in the suit in order to protect his rights therein, and notwithstanding his later overtures urged upon her to reconcile their differences, to withdraw her suit and to resume cohabitation, she continued to press her charges against him in the divorce action.

We are urged under the foregoing facts in evidence to reverse the circuit court and to direct it to enter a judgment requiring the probate court to allow the appellant the sum of $9,000 as his widow’s allowance and to set off to her the exempt property of her husband’s estate on the ground that by his conduct in filing a cross-petition for divorce and pursuing the same in court for more than one whole year next preceding his death he thus rendered inapplicable as to her the provisions of Section 474.140, which bars the inheritance rights of a surviving spouse in the estate of the deceased spouse, when guilty of abandonment. The record in this case does not justify such conclusion. Nor, upon the same facts can we properly rule that respondents are es-topped from asserting appellant’s failure to qualify under said statute.

The judgment of the circuit court should be affirmed and the claims of the appellant should be denied. The Special Commissioner so recommends.

PER CURIAM.

The foregoing opinion of DEW, Special Commissioner, is adopted as the opinion of the Court. The judgment of the circuit court is affirmed and the claims of the appellant are denied.

All concur.


author: HUNTER, Judge.

text:
    Roy M. WRIGHT, Appellant, v. J. A. TOBIN CONSTRUCTION COMPANY and the Travelers Insurance Company, Respondents.
    No. 23651.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      Blackford, Imes, Compton & Brown, J. William Blackford, Kansas City, for appellant.
    Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for respondents.
   HUNTER, Judge.

Roy M. Wright, claimant-appellant, was an employee of respondent, J. A. Tobin Construction Company. Both were under and subject to the provisions of the Missouri Compensation Law. Travelers Insurance Company is the employer’s insurer. Sometime prior to 1959 Wright incurred a right inguinal hernia. In December, 1959,' his doctor had recommended an operation to repair it but because of financial problems Wright was unable to undergo an operation and instead wore a truss.

The parties have stipulated that on June 18, 1960, Wright suffered an accident or unusual strain arising out of and in the course of his employment which caused a strangulated right inguinal hernia condition. He was admitted to the Smithville Missouri Hospital, operated on, and experienced a full recovery.

In this Workmen’s Compensation action Wright’s medical claim is for temporary total disability, medical and hospital expenses and such healing period benefits as he is entitled to by law. It is agreed that his medical and hospital expenses total $447.45 and that as a result of the operation he was temporarily totally disabled from June 18, 1960, to September 9, 1960. His agreed compensation rate was $45.00 per week. The referee found the facts as outlined above, found Wright to be entitled to temporary total disability from June 8, to September 9, 1960, in the sum of $540.00 and awarded a total of $987.45.

On review, the Industrial Commission reversed entering its final award denying compensation for the sole reason “that employee is barred from the right to receive compensation for the strangulation of said pre-existing hernia by reason of the provisions of Section 287.195(4), RSMo.1959.”

On this appeal the single question presented is the effect of Section 287.195(4), RSMo 1959, on a claim for compensation for temporary total disability and medical expenses for aggravation by accident or unusual strain of a pre-existing hernia.

It is the position of respondent that prior to 1957 claimant would have been entitled to an award for temporary total disability and reimbursement for medical expenses but that in 1957 the Missouri Legislature amended the Missouri Workmen’s Compensation Law and removed the hernia provision from Section 287.190, (the permanent partial disability section) and re-enacted it in a separate and distinct Section 287.195; that the purpose and effect of the amendment was to repeal a line of cases beginning with Von Cloedt v. Yellow Taxicab Company, 223 Mo.App. 376, 18 S.W.2d 84, and that since 1957 no claim which involves disability and medical expenses resulting from a hernia, whether the disability be permanent or partial, is compensable unless the claimant satisfies all the requirements of now Section 287.195.

Appellant’s position is that at the same time the legislature took the four hernia requisites out of the permanent partial section, it enacted Section 287.170 (temporary total disability) and Section 287.140 (medical care) and made no mention of heimia therein; that if Section 287.195 is interpreted to apply as respondent contends there will be no possible recovery for the aggravation of a pre-existing hernia and, hence, no such interpretation is warranted.

On this appeal it is our duty to ascertain the legislative intent involved in the mentioned statutory sections. The primary rule of construction of a statute is to ascertain the lawmaker’s intent from the words used, if possible, and to put upon the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object. The manifest purpose of the statute, considered historically, is to be given proper consideration. Browder v. Milla, Mo.App., 296 S.W.2d 502.

In ascertaining the legislative intent as expressed in a statute courts are aided by certain well established rules. One such rule is that in the construction of statutes it is presumed that the legislature is aware of the interpretation of existing statutes placed thereon by the states’ appellate courts, and that in amending a statute or enacting a new one on the same subject it is ordinarily the intent of the legislature to effect some change in the existing law. If this were not so the legislature in amending a statute would be accomplishing nothing, and legislatures are not presumed to have intended a needless and useless act. See, State ex rel. M. J. Gorzik Corp. v. Mosman, Mo.Sup., 315 S.W.2d 209.

Prior to 1957, Section 287.190 relating to awards of compensation for permanent partial disability and titled: “Permanent partial disability — compensation for various injuries — how computed” in its last subsection provided:

“4. In all claims for compensation for hernia resulting from injury arising out of and in the course of the employment, it must be definitely proved to the satisfaction of the commission:

“(1) That there was an accident resulting in hernia;

“(2) That the hernia appeared suddenly, accompanied by intense pain;

“(3) That the hernia immediately followed the accident;

“(4) That the hernia did not exist in any degree prior to the accident resulting in the injury for which compensation is claimed.” (Italics ours.)

Subsection 4 of Section 287.190 as set out above, prior to 1957 in a long line of cases was interpreted as referring only to the section in which that subsection was located, and, hence, not as applying to or limiting other sections which provided for recovery for injury other than permanent partial disability.

In the Van Cloedt case, supra, among others, the court specifically referred to the statutes of numerous other states noting that when a legislature desired to place such limitations as were contained in Section 287.190 on all types of hernia compensation recovery the legislature did so either by having a separate section dealing solely with the subject of hernia or by a subsection under general headings, and not merely by a subsection that appeared to apply only to the limited section in which it was found.

In 1957 our legislature did exactly what the Von Cloedt case stated a legislature should do if it desires the type of limitations then found in subsection (4) of Section 287.190 to apply to all Workmen’s Compensation claims for hernia injury, whether permanent, temporary, partial or total; namely, by making an entirely separate section of subsection 4 of Section 287.190.

The new section, 287.195 RSMo 1959, (Laws 1957, p. 560, #1) reads:

“287.195. Claims for hernia, proof required

“In all claims for compensation for hernia resulting from injury arising out of and in the course of the employment, it must be definitely proved to the satisfaction of the commission:

“(1) That there was an accident or unusual strain resulting in hernia.

“(2) That the hernia appeared suddenly, accompanied by intense pain.

“(3) That the hernia immediately followed the accident or unusual strain.

“(4) That the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed.”

The language of this new separate section according to the plain meaning of its terms specifically applies to “all claims for compensation for hernia”. It cannot rationally be said such language is not intended to include claims for compensation for aggravation of a prior hernia.

If the result we have reached appears socially undesirable those thinking so should address their views to the legislature, for we are convinced our decision is what the legislature truly intended in enacting Section 287.195, and that any change in that enactment properly belongs to the legislature in its wisdom.

We note in passing that many other states by statute have made provisions somewhat similar to those in Section 287.195 applicable to Workmen’s Compensation claims for hernia. In 99 C.J.S. Workmen’s Compensation § 186, page 642, it is stated, “Some special hernia or rupture provisions apply even where a preexisting hernia has become strangulated, and even though the strangulation was due to accident or accidental injury, and such provisions apply to exclude the award of compensation.” Citing Mirific Products Co. v. Industrial Commission, 356 Ill. 645, 191 N.E. 203; Cuneo Press Co. v. Industrial Commission, 341 Ill. 569, 173 N.E. 470; Jordon v. State Compensation Commissioner, 120 W.Va. 142, 197 S.E. 20.

In 1 Larson, Workmen’s Compensation, Section 39.70, page 580 ff., it is stated, “Twenty-five states have separate statutory tests governing the basic compensability of hernias. The commonest is exemplified by that of Virginia:

“In all claims for compensation for hernia * * * it must be definitely proved to the satisfaction of the Industrial Commission:

“First. That there was an injury resulting in hernia.

“Second. That the hernia appeared suddenly.

“Third. That it was accompanied by pain. ■

“Fourth. That the hernia immediately followed an accident.

“Fifth. That the hernia did not exist prior to the accident for which compensation is claimed.”

For the foregoing reasons we have concluded that the circuit court did not err in affirming the final award of the Industrial Commission denying compensation.

’ The judgment is affirmed.

All concur.

      . All citations of Missouri statutes are to V.A.M.S.

      . Von Cloedt v. Yellow Taxicab Co., 223 Mo.App. 376, 185 S.W.2d 84; Drecksmith v. Universal Carloading & Distributing Co., Mo.App., 18 S.W.2d 86; Guillod v. Kansas City Power & Light Co., 224 Mo.App. 382, 18 S.W.26 97; Lawrence v. Stark Bros. Nurseries & Orchards Co., Mo.App., 18 S.W.2d 89.


author: BROADDUS, Presiding Judge.

text:
    CONTINENTAL ELECTRIC COMPANY, Appellant, v. EBCO, INCORPORATED, and Ford Motor Company, Respondents.
    No. 23688.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      Robert W. Cook, Linde, Thomson, Van-Dyke, Fairchild & Langworthy, Kansas City, for appellant.
    Warren E. Slagle, Slagle & Bernard, Kansas City, for respondents.
   BROADDUS, Presiding Judge.

This is an action brought by plaintiff, Continental Electric Company, against Ebco, Incorporated, a sub-contractor, and Ford Motor Company, the property owner, to establish and enforce a materialman’s lien. The case was tried to a jury which returned a verdict in favor of plaintiff against the defendant Ebco, Incorporated, in the sum of $7,606.44 and against the defendant Ford Motor Company establishing a lien in like amount against the property of said defendant. Judgment was entered accordingly. The defendant Ford Motor Company moved the trial court to have the verdict and judgment set aside and to have judgment entered for it in accordance with its motion for directed verdict or, in the alternative, to grant it a new trial. The trial court entered its order sustaining both motions from which order plaintiff has duly appealed.

The defendant-respondent, Ford Motor Company is the owner of a manufacturing plant and premises in Claycomo, Clay County, Missouri. During 1959 certain additions and improvements were made to the plant under a general contract with the H. F. Campbell Construction Company, of Detroit, Michigan. Southeastern Electric Company, also of Detroit, was a subcontractor under Campbell. The defendant, Ebco, Incorporated, of Kansas City was, in turn, a subcontractor of Southeastern and performed a portion of the electric work.

Plaintiff is a supplier of all types of electrical materials. During 1959, Ebco ordered from plaintiff, on open account, electrical materials totalling $12,631.63 for use on the Ford job. At the completion of the job, there remained due plaintiff from Ebco the sum of $8,008.20 for materials sold to Ebco for the Ford job during the period from May 13, 1959 to September 10,1959.

On December 8, 1959, plaintiff served upon the plant comptroller of Ford’s Clay-como Plant, its notice of intention to file a mechanic’s lien on the premises.

On December 23, 1959, plaintiff filed its mechanic’s lien statement in the office of the Circuit Clerk of Clay County. The statement set forth the amount claimed of $8,008.20, and attached, as a part of said, statement, copies of plaintiff’s invoices to. Ebco comprising the account and totalling the above figure. The statement further contained, as a part thereof, the affidavit of plaintiff’s duly authorized attorney and agent that the foregoing statement was “a just and true account of the demand due Continental Electric Company for materials furnished by it, upon, to and for the buildings and improvements hereinbe-fore described after all just credits have been given * *

On February 5, 1960, plaintiff filed its petition in the Circuit Court of Clay County, naming both Ebco and Ford as parties defendant. On the same day, summons was issued out against both defendants and return duly made as to the defendant Ford. Summons to Ebco was directed to the Sheriff of Jackson County, for service on that defendant at its principal office at 1009 East Truman Road, Kansas City, Missouri and returned “non est” by the Sheriff on February 10, 1960. On October 10, 1960, plaintiff directed the Clerk of the Clay County Circuit Court to issue out an alias summons against Ebco and for service to be made upon the registered agent of said company. Thereafter, service was duly obtained and the return made .on October 14, 1960.

The case proceeded to trial before a jury on December 11, 1961, the defendant Ebco defaulting. The plaintiff’s case consisted of the presentation of documentary evidence and oral testimony to prove the amount of its claim against the defaulting defendant and delivery and use of the materials comprising the claim by Ebco in the performance of its contract at the Ford Motor Company Plant

The claim was proved by the testimony of plaintiff’s credit manager, Mr. Donovan Staton. He testified that between May 13, 1959, and September 10, 1959, plaintiff sold the materials listed on the lien statement to Ebco, Incorporated; that his company kept written records in connection with these sales; that he knew when an order came in from Ebco whether the materials ordered were intended for the Ford job because Ebco assigned its own job number, No. 1040, to the Ford job, and this number appeared on all purchase orders from Ebco for materials intended for that job; that Exhibit 27 was the ledger card, prepared in plaintiff’s credit department reflecting Ebco’s entire account, including all payments received from Ebco on the Ford job and credits, if any, posted to the account. Mr. Staton further testified that Exhibit 27 was a business record of plaintiff, prepared at or near the time of the transactions shown thereon and that it was kept and maintained under his custody and control in his position as credit manager of plaintiff.

Plaintiff’s witness, Lawrence Duckworth, former Vice-President of Ebco, identified his signature appearing on Exhibits 3, 7, 8, 9, 13, 15 and 16 and testified that such signatures indicated he had received materials listed thereon on behalf of Ebco and that he, thereafter, delivered such materials to the Ford job to be installed in that job.

Plaintiff’s witness, Franklin Schooler, former Secretary-Treasurer of Ebco, identified his signature appearing on Exhibits 5, 6. 20 and 21 and testified that such signatures likewise indicated that he had received the materials listed thereon, and that he, thereafter, delivered such materials to the Ford Plant for use in the job there being performed.

Plaintiff’s witness, Roy C. Alberts, testified that he was the job superintendent for Ebco at the Ford Plant from about the 1st of May, 1959, until around the 26th or 27th of August of that year, and that during that time he received “practically all of the materials unless I was somewheres other than in the office.” Mr. Alberts identified his signature appearing on Exhibits 30 to 39 inclusive; testified that such signatures indicated that he had received the materials listed thereon on behalf of Ebco, and that to the best of his knowledge all of such materials “went into project that the Ebco Corporation had a contract to do, which was the extension of the Ford Plant.”

Plaintiff’s witness, Henry J. Beckerle, testified that he was the Ebco foreman on the Ford job; that part of his duties was to check in materials delivered on the job site and after the materials were checked in, “to the best of my knowledge, they was used on the job.” Mr. Beckerle likewise identified his signature appearing on Exhibits 40, 41 and 42, and testified that the same indicated the materials listed thereon were received by him, and, thereafter used in the Ford job.

In the presence of the jury defendant’s counsel admitted the receipt on the job site of the materials listed on and shown by Exhibits 31, 32, 33, 34, 35, 36, 37, 38, 39, 41 and 42. These materials totalled $5,508.59.

Plaintiff offered in evidence the stipulation signed by the parties which recited that “B. The prices for materials shown on the lien statement were fair and reasonable.” Plaintiff also offered in evidence certain interrogatories submitted to defendant and the answers thereto. In one of these answers defendant admitted that “all work performed by Ebco was performed satisfactorily.”

At the close of its evidence, plaintiff asked leave to amend its petition by interlineation to decrease its prayer from $8,008.20 to $7,606.44 to conform to the evidence, and leave to so amend was granted by the court. As plaintiff’s counsel stated: “The reduction in the amount is due to the fact that certain of the plaintiff’s exhibits, which were hoped to be placed into evidence did not contain a signature although it has been shown that the materials were sold and therefore to not mislead the Court and the jury in the amount of the materials actually received and used on the job, the plaintiff is decreasing its prayer in this amount.”

Defendant offered no evidence. At plaintiff’s request the court gave Instruction 1, and, on behalf of defendant Instructions 2, 3, 4, 5 and 6. As stated, the jury returned a verdict in favor of plaintiff, which the court later set aside and plaintiff appealed.

Defendant filed a motion to dismiss the appeal for alleged failure of plaintiff’s brief to comply with certain of the civil rules. In the' exercise of our discretion, we overrule it.

Plaintiff first contends that the trial court erred in sustaining defendant’s motion to have the verdict and judgment for the plaintiff set aside and to have judgment entered for it in accordance with its motion for directed verdict because jurisdiction of the subject matter of this suit was properly in the trial court.

Section 429.170 RSMo 1959, V.A.M.S., sets forth the applicable limitation period in mechanics’ and materialmen’s lien cases: “All actions under sections 429.010 to 429.-340 shall be commenced within six months after filing the lien, and prosecuted without unnecessary delay to final judgment; and no lien shall continue to exist by virtue of the provisions of said sections, for more than six months after the lien shall be filed, unless within that time an action shall be instituted thereon, as herein prescribed.” (Emphasis added.) Rule 53.01, Missouri Rules of Civil Procedure, V.A.M.R., provides : “ * * * The filing of a petition and suing out of process therein shall be deemed the commencement of a civil action.”

Plaintiff filed its lien statement on December 23, 1959, and its petition for enforcement of Mechanic’s Lien on February 5, 1960. Thus the period of time between the two filings was well within the six month limitation period prescribed by the statute. Both necessary parties, the Ford Motor Company and Ebco, Incorporated, were named as co-defendants. Service of process was immediately issued out against both defendants. Summons was served on the defendant Ford Motor Company or or about February 10, 1960, and returned “non est” as to the defendant Ebco on or about the same date. On October 14, 1960, service was obtained on Ebco by serving summons and petition on that company’s registered agent. The defendant Ford contends, and the trial court so ruled in sustaining the defendant’s after-trial motion, that the court was without jurisdiction of the subject matter of the action because no new or additional summons was issued out against Ebco, Incorporated, “for a period in excess of six months after the first summons was issued and after it was returned unserved.” Thus, the defendant would have the court read into the relevant statute of limitations another six months period running from the date the first summons is returned un-served within which it is incumbent on a lien claimant to obtain service on all the named defendants or have his lien defeated as a matter of law. This is not the law in Missouri because a suit is commenced by “the filing of a petition and suing out of process thereon.” Rule 53.01, supra, and the statute of limitations is thereby tolled.

The rule is clearly stated in City of St. Louis v. Miller et al., 235 Mo. 987, 145 S.W.2d 504, 505:

“It has been repeatedly held by our Supreme Court, and the Courts of Appeals as well, that a suit in a court of record is commenced, within the meaning of this section, so as to save the suit from the bar of the statute of limitations, when the petition is filed, even though process is not thereafter issued until the period of limitations has run.” (Emphasis added.)

The instant case is not one where an attempt was made to bring in a necessary party after the limitation period had run. Here both parties were properly joined in the petition. This very question was decided by this court in Henry Weis Cornice Co. v. J. B. Neevel & Sons et al., 187 Mo. App. 496, 174 S.W. 159, a mechanic’s lien case resulting in a judgment for plaintiff in the trial court. Plaintiff was a subcontractor of J. B. Neevel & Sons Construction Company which had contracted 'with the co-defendant to erect a building upon land 'owned by the latter. Although J. B. Neevel was sued within the proper time, there was no' service upon it, but it entered its appearance and filed an answer, though this was not until after the time limited by the statute for bringing suits. On appeal the defendant insisted that plaintiff’s lien had failed on this ground. This court affirmed the judgment for plaintiff and held: “The law is that the action must be brought within 90 days after the lien is filed, and that when brought by a subcontractor, the original contractor must be made a party as well as the property owner. It has been held that if the original contractor is not sued he cannot be made a party after the timé limited for [bringing] suit has expired (citing cases). But that objection does not appear in this case. Here the original contractor was made a party to the action, but service was not had, nor did it enter its appearance by answering, until after the limitation period had run. The time of bringing the action was the •filing of the petition, and not the date of service or entry of appearance.” (Emphasis added.)

Defendant cites no decision which conflicts with our holding in the above case. Most certainly neither plaintiff nor its attorneys obstructed or deliberately delayed service of process on the defendant Ebco. And such slight delay as did occur in no way interrupted the continuity of this case, caused any unnecessary delay in the determination of the issues, or in any way prejudiced the rights of the defendant Ford Motor Company.

A primary question presented by this appeal is whether or not plaintiff’s lien statement contained a “just and true account” of the demand due. Attached to and made a part of the lien statement are-invoice copies which cover each and every item comprising the demand. These invoice-copies show, among other things, the date the materials were shipped, a complete description of each and every item making up the particular invoice, including a unit price for each item, and the total price of all the items listed.

The specific issue here is whether or not by listing only those materials comprising its claim and by not itemizing payments made for other materials ordered on the same job, plaintiff so far departed from the-requirements, of the statute as to defeat its. lien as a matter of law.

The pertinent provision of section 429.080,. specifying the account which must be filed' by all lien claimants, requires that the same shall be: “* * * [A] just and true account of the demand due him or them after-all just credits have been given * * (Emphasis added.) The words are clear, unambiguous and explicit. The statute-contains no language requiring or implying, that a lien claimant must do more than state his demand after allowing just credits. Had’ it been the legislative intent that a lien claimant could only seek relief under the Mechanics’ Lien Law by filing a statement listing each and every minute item sold on a particular job, whether or not those items, had already been paid for, and listing in detail the payments made for those other items not comprising the claim, then the Legislature certainly could, and would, have so provided. It has not seen fit to do so for-one obvious reason — the very intent of the statute would be defeated, that being, “to secure mechanics and materialmen by giving them a lien upon property they have contributed to improve or create * * * and * * * to avoid unfriendly strictness and mere technicality,” Putnam v. Ross, 46 Mo. 337. That it is incumbent on a lien claimant to file a “just and true account of the demand due him” is true. But as stated in Hydraulic Press Brick Co. v. McTaggert, 76 Mo.App. 347, 353:

“It was not, however, the object of the statute to create a Procrustean rule of literal exactitude in the filing of lien accounts. If such were its purpose, a claim, otherwise valid and enforceable under the mechanic’s lien law, would suffer defeat from errors of computation, inadvertence or mistake, or a mere preparation of the account, irrespective of the good faith of the lienor.”

A leading case on the question of the sufficiency of a lien account is Mitchell Planing-Mill Co. v. Allison, 138 Mo. 50, 40 S.W. 118, where it is said:

“ * * * The account which this law contemplates is such a statement of the claim as fairly apprises the owner and the public of the nature and amount of the demand asserted as a lien. * * - * It may be all on one side, or mutual in its showing. * * * .
" * * * j-jle nen claim is nof itself a pleading under our law. McMurray v. Taylor (1860) 30 Mo. 263. All that is reaxiired therein is a substantial ■compliance with the statute declaring •what that claim shall contain. Grace v. Nesbit (1892) 109 Mo. 9, 18 S.W. 1118. * * *
“ * * * If the claim comes into court, it is then time enough to require all the particulars that may be necessary to maintain or defend the action.” (Emphasis added.)

To the same effect is the recent holding of this court, in the case of Wadsworth Homes, Inc., v. The Woodridge Corporation, Mo.App., 358 S.W.2d 288:

The legal description of defendant’s premises contained in plaintiff’s lien statement was taken from the warranty deed by which the defendant took title to the property. It has been held that a description of property in the lien statement which is the same as the description in the deed to the owner is sufficient. Joplin Cement Co. v. Greene County Building & Loan Association, 228 Mo.App. 883, 74 S.W.2d 250.

Section 429.080 requires only that a claim shall contain “ * * * a true description of the property, or so near as to identify the same, upon which the lien is intended to apply * *

It is obvious that plaintiff was exercising the utmost good faith in attempting to furnish a description which would, as nearly ■ as possible, identify the property on which .its lien was intended to apply. The defendant was at all times aware of that part of its property to which the improvements - were made', and fully able to identify the premises to . which the lien, was intended , to apply. This is the criterion of the Mis- ■ souri rule as set forth in De Witt v. Smith, 63 Mo. 263:

“ * * * As to what will be regarded1 as a sufficient description to sustain a mechanic’s lien, the general rule seems how to be, that if there appear enough in the description to enable a party familiar with the locality, to identify the premises intended to be described with reasonable certainty to-the exclusion of others, it will be sufficient.”

A later restatement of this rule is found in Hertel Electric Co. v. Gabriel, Mo.App., 292 S.W.2d 95, 99.

Whether or not materials'were delivered and used, on the job within four months of the date of plaintiff’s lien statement we only need to refer to plaintiff’s Invoice No. 450,783. The materials iisted thereon were shipped via plaintiff’s delivery on August 25, 1959. The “Warehouse Copy” of the invoice (Exhibit 42) was identified by plaintiff’s witness, Henry J. Beckerle, who testified that his signature appearing thereon evidenced the fact that he had received said materials on the Ford job site. He further testified that, thereafter, the materials were used in, and became a part of, the improvements made by Ebco, Incorporated, at the Ford Plant.

Plaintiff’s Exhibit 42 clearly shows that the materials listed thereon were shipped via “our del” on “8-25”, and contains the signature of “H. J. Beckerle”, foreman at Ebco, who receipted for same. The Exhibit is documentary evidence of the fact it was offered to prove. It is self-evident that these materials were delivered on the Ford job within four months of filing the lien statement on December 23, 1959.

We have heretofore set out the evidence somewhat in detail. Certainly the evidence when viewed in a light most favorable to plaintiff was sufficient to warrant submission of the case to the jury. There is no dispute that plaintiff complied with the statutory steps required to perfect its lien. Notice was served upon the owner of the property improved. The lien statement was filed within four months from the date of the last item of the account. Suit was filed within six months after filing the lien statement. The lien statement was introduced in evidence. Documentary evidence, together with the testimony of five witnesses, was presented to prove the amount of the materials comprising the lien, and the fact that such materials were used by Ebco in the performance of its contract at the Ford Motor Company Plant. Defendant admitted that the prices charged for these materials were “fair and reasonable”. In our opinion, the trial court’s action setting aside the verdict and entering judgment for defendant was clearly erroneous.

Did the trial court also err in sustaining defendant’s alternative motion for a new trial? We think it did. The motion contains numerous allegations of error. All lack merit. Against Plaintiff’s Instruction 1, which was a verdict directing instruction, the motion directs twenty-one complaints. It would unduly lengthen this opinion to point out why these assignments set forth no error prejudicial to defendant. The Instruction requires the jury to find every essential element of the plaintiff’s case and that is all that is necessary. McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37.

Plaintiff concludes its brief with the following statement: With the thoughts so clearly expressed therein we are in full accord.

“With all due respect to the trial court, it is impossible to find in the record among the numerous grounds of error assigned by the defendant in its after-trial motion, and among those adopted by the trial court sustaining said motion, one ground that is not based upon mere technicality. One ultimate fact remains which cannot be disputed: There is now incorporated in the buildings at the Ford Motor Company Plant electrical materials sold by this plaintiff in the sum of $7,606.44 for which plaintiff has not been paid. This is not an allegation. It is an established fact found by the jury, based on the sworn testimony in open court of four witnesses who were present in person,, oversaw the installation of the materials, and who were the only persons, who could have testified to such fact. Here is a case where a materialman has, in utmost good faith, attempted to protect itself and to seek its remedy under the very statute enacted for that purpose. Its materials were used to enhance the value of an owner’s property. It was not paid. The steps required by the statute were followed. At great expense, the materialman prosecuted its case and presented same to a jury which found the issues in its favor. If, under the laws of this State, a lien claimant is held to the strict proof and technicality demanded by the trial court’s order in this case, then, the phrases ‘good faith’, ‘substantial compliance’ and ‘liberality’ have no meaning and the very intent of the legislative enactment will be defeated.”

The judgment in favor of defendant Ford Motor Company is reversed and the order sustaining defendant Ford Motor Company’s alternative motion for a new trial is likewise reversed, and the cause is remanded with directions to the trial court to re-instate the jury’s verdict and enter judgment thereon in the sum of $7,606.44, together with interest thereon at the rate of 6% per annum from December 12, 1961.

All concur.