author: MAUGHMER, Commissioner.

text:
    SPANGLER, INC., Plaintiff-Respondent, v. HOUSE OF HEAVILIN, INC., Defendant-Appellant.
    No. 24118.
    Kansas City Court of Appeals. Missouri.
    June 7, 1965.
    Application to Transfer Denied Nov. 8, 1965.
    Donald L. Chapman and Casemore, Ber-man & DeLeve, Kansas City, for appellant.
    Commodore McFarland Combs, Jr., Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is an appeal from the denial, in both magistrate court and circuit court, of a motion for restitution of money procured under a garnishment. No testimony was heard on the motion and the matter is before us on the record evidence alone. We summarize the pertinent parts of that evidence.

Plaintiff, Spangler, Inc., on April 19, 1962, sued House of Heavilin, Inc., in the magistrate court of Jackson County on an open account. Trial resulted in a finding and judgment on- June 5, for plaintiff in the sum of $530.00. On June 8, defendant appealed, but without bond. Execution was issued on June 28, with garnishment on the Blue Hills Bank. The bank paid $541.85 direct to plaintiff’s attorney who, according to the record, paid the magistrate court costs of $11.85, leaving a balance of $530.00, an amount sufficient to pay the judgment in full. Thereafter the appeal was listed and called on the circuit court docket. Defendant appeared, but plaintiff did not appear. Under date of October 10, 1962, the circuit eourt entered the following order in the case:

“Now on this day it is ordered and adjudged by the Court that this cause be and the same is hereby dismissed for want of prosecution, and that defendant have and recover of said plaintiff its costs, and that execution issue therefor”.

No further action was taken until January 18, 1963, when defendant Heavilin filed in the magistrate court a pleading styled: “Motion for Restitution”. This motion recited the magistrate judgment entry for plaintiff, defendant’s appeal without bond, issuance of the garnishment under which $541.85 of defendant’s money was secured and distributed to plaintiff, and the dismissal of the cause of action by the circuit eourt for “want of prosecution”. The prayer was for restitution of the said sum of $541.85, with interest from August 17, 1962. On April 1, 1963, defendant’s motion for restitution was overruled by the magistrate court and on April 5, defendant appealed, again without bond. This appeal was heard by the circuit court on March 19, 1964. On this occasion both parties were present by counsel. Again no testimony was taken but the record evidence and the entries as herein set forth were presented, and the court found the issues for plaintiff Spangler and against the defendant Heavi-lin. Judgment accordingly was entered and it is an appeal therefrom that is before us.

The magistrate court assigned a different number to the litigation from the time defendant’s motion for restitution was filed, and the appeal from the denial of that motion was heard by a different division of the circuit court than the division which had entered the judgment dismissing the original suit. We attach no significance, or at least none of vital importance, to this purported separation of the litigation. The whole matter arises from one controversy and is clearly one piece of litigation.

Respondent asserts that the circuit court judgment denying restitution is proper because :

First. Restitution is an equitable proceeding and the magistrate court is without jurisdiction to “hear or try” any “strictly equitable proceedings”, Section 482.100[2], V.A.M.S. Respondent invites our attention to these statements on the subject found in C.J.S.:
“Restitution * * * is ex gratia, resting in the exercise of a sound discretion, and the court will not order it where the justice of the case does not call for it * * 77 C.J.S. Restitution, page 323, and,
“ [Restitution will not generally be awarded, however, where the merits of the controversy are not before the appellate court * * *.” 5B C.J.S. Appeal and Error § 1949; page 510.
However, in the sentence immediately preceding the last quotation the same authority declares: “Where the judgment of reversal is final and absolute, and no new rights have been acquired, a proper case for the ordering of restitution by the appellate court is presented.”
While restitution is probably primarily an equitable proceeding, we are told in 77 C.J.S. Restitution, page 322 that: “A cause of action for restitution is a type of the broader cause of action for money had and received * *

The magistrate court clearly had jurisdiction of the original suit. We believe it had authority, therefore, to finally complete that litigation even though in some degree its orders touched equitable matters. In addition, we do not believe this motion for restitution raised what the statute (Sec. 482.100[2], supra) means when it refers to “strictly equitable proceedings”. (Italics added.) It is our conclusion that the magistrate court and derivatively the circuit court had authority to entertain and determine the motion in this case.

Second. Respondent’s claim that plaintiff’s motion for new trial which alleged the judgment “was against the evidence * * * and against the law”, preserved nothing for review, is denied in this case.
Third. Respondent’s final point is that the motion for restitution was properly denied because plaintiff did not show or even attempt to show its entitlement to recover “on the merits” presumably that it did not actually owe the money.

Appellant contends that the circuit court’s dismissal of the cause in which plaintiff obtained judgment in the magistrate court erased the judgment in its entirety, and that since that judgment, which was the basis upon which the garnishment issued, was destroyed, plaintiff’s legally established right to retain the money is gone and defendant is entitled to restitution regardless of the actual merits of the controversy.

Section 512.190, Appeals from Magistrate Courts, V.A.M.S. provides that “ * * no appeal shall stay execution unless and until” appellant files a proper appeal bond. In Dickey v. Dickey, Mo.App., 132 S.W.2d 1026, 1032, it was stated:

“If the court has cognizance of the controversy as it appears from the pleadings in the case, and if it has the parties to such controversy before it, then any judgment or order it enters, if responsive to the issues made up in the pleadings, is valid until set aside or reversed on appeal, and this without regard to how erroneous or irregular such judgment or order may in fact have been.”'

Since defendant’s appeal was without bond, we believe plaintiff was fully entitled to have execution issue and secure through garnishment the funds it did secure. It was entitled to this by virtue of the judgment, but if later on that judgment was reversed or destroyed, then the basis upon which it procured the money was gone. This is so even though it had, prior to the reversal of the judgment, made collection.

Many of the problems and difficulties arising from this controversy might so easily have been prevented. Had'defendant elected to file an appeal bond, no execution would ever have issued. If plaintiff had kept watch on its appealed judgment, even though it had collected' thereon, it might have prevailed after a de novo trial on the merits, and no basis for a restitution claim would then have arisen.

Having ruled that the circuit court was vested with derivative jurisdiction to pass on the motion for restitution, it appears that the question before us is: Should the circuit court have sustained defendant’s motion for restitution, under the record evidence, and entered judgment for $541.85, with interest from January 18, 1963, the date on which it filed its motion, or was the judgment for plaintiff the proper judgment?

Lanyon et al. v. Chesney et al., 209 Mo. 1, 106 S.W. 522, 524, was a quiet title suit. Plaintiff had a trial court judgment and by virtue thereof obtained possession of some property belonging to defendant and had use of it for a time. On appeal, the judgment for plaintiff was reversed. Plaintiff thereupon dismissed his action or took a voluntary nonsuit. Defendant objected and petitioned for restitution. On appeal the Supreme Court said:

“We entertain no doubt as to the right of defendants to have restored to them, as against the other parties to this action, any property or property rights of which they were deprived and which plaintiffs acquired'under the first judgment, whether by execution or otherwise, and that such right will not' in any way be affected by plaintiffs’ dismissal of their suit after obtaining possession of such property. Gott v. Powell, 41 Mo. 416; Vogler v. Montgomery, 54 Mo. 577; Jones v. Hart, 60 Mo. 362; Colburn v. Yantis, 176 Mo. 670, 75 S.W. 653; Ming v. Suggett, 34 Mo. 364, 86 Am.Dec. 112. And this, too, without regard to the merits of the original cause of action or grounds of defense.” (Italics added.)

State ex rel. and to Use of Abeille Fire Ins. Co. v. Sevier, Mo. in Banc., 335 Mo. 269, 73 S.W.2d 361, concerned fire insurance company rates in Missouri. The circuit court set aside the superintendent’s order reducing the rates and the company, pending determination of the appeal, continued collections at the original rates. On appeal, the Supreme Court reversed the circuit court judgment and approved the reductions which had been ordered by the Superintendent of Insurance. The Supreme Court opinion did not specifically order restitution but upon a later presentation of the question of restitution, quoting from Flemings v. Riddick’s Ex’r, 5 Grat. (Va.) 272, 50 Am.Dec. 119, said:

“ ‘The power of a Court to repair the injury occasioned by its own wrongful adjudication, is not derived from a mandate of the appellate forum, made upon rendering the judgment or decree of reversal, but is substantially the same which it exercises when its own process has been abused, or used without authority, by its suitors or ministerial officers. * * * When a judgment or decree for the defendant is reversed, then the Appellate Court, in proceeding to render such judgment or decree as the Court below ought to have rendered, gives to the plaintiff the relief to which he was entitled; but when a judgment or decree for the plaintiff is reversed, then the Appellate Court, in proceeding to render such judgment or decree as the Court below ought to have rendered, dismisses, in appropriate language, the plaintiff’s action or suit. In the latter case, there is no adjudication in the Appellate Court of the question of restitution, hut the mandate for it follows as a declaration or designation of the legal effect of the adjudicated reversal and dismissal.’

The court also approved directly and incorporated in its opinion the quotation from Lanyon v. Chesney, 106 S.W. 522, supra, which we have set out in this opinion.

The Supreme Court again (De Mayo et al. v. Lyons et al., 360 Mo. 512, 228 S.W.2d 691, 692, 693) ruled on this question of restitution. The parties in that litigation were engaged in the business of selling intoxicating liquors without a license. Plaintiff prevailed in the trial court and under execution secured a substantial payment on the judgment. This occurred while the appeal, taken without an appeal bond, was pending. The Supreme Court reversed that judgment (in an earlier opinion, 358 Mo. 646, 216 S.W.2d 436) and ordered “that the said appellants be restored to all things which they have lost by reason of the said judgment”. Thereafter the trial court denied appellant’s motion for restitution, saying restitution was not a matter of right but of discretion and that since the contract (whiskey sales without license) between the parties was illegal and void, it should “leave transgressors in the circumstances where they place themselves”. This denial of restitution was reversed on appeal and the appellate court made the following statements:

“The general rule is that, upon reversal of a judgment against' him, the appellant is entitled to restitution from the respondent of all benefits acquired under the erroneous judgment during the pendency of an appeal. This rule has been followed in Missouri in many decisions, (citing cases).
******
“The right to restitution exists even though it is not expressly ordered by the appellate court upon the reversal of an erroneous judgment and a motion for restitution is a proper method of obtaining such relief in the trial court, (citing cases).”

Respecting respondents assertion that defendant had voluntarily turned the property over to them, the court said:

“It is manifestly absurd to suggest that appellants voluntarily turned over to plaintiff property which was taken from them by the Sheriff under an execution issued upon a judgment which we later held to be a nullity.”

It is our opinion that under the undisputed record evidence as it appears before us, and under the rulings of our appellate courts as set forth in this opinion, that both the magistrate court and the circuit court had jurisdiction to act completely on the motion for restitution. It is further our opinion that the motion should have been sustained.

The judgment of the circuit court is reversed and the cause remanded with directions to (1) sustain the motion for restitution and J2) enter judgment for defendant and against plaintiff in the sum of $541.85, with interest thereon from and after January 18, 1963, together with costs.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: ANDERSON, Judge.

license: Public Domain

text:
    Estelle R. WEBER, Plaintiff-Respondent, v. UNION LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 31817.
    St. Louis Court of Appeals. Missouri.
    July 20, 1965.
    Rehearing Denied Sept. 8, 1965.
    Application to Transfer Denied Nov. 8, 1965.

      Max Sigoloff, St. Louis, for defendant-appellant.
    John D. Schneider, St. Louis, for plaintiff-respondent.
   ANDERSON, Judge.

This is an action on an accident and health irsurance policy for total disability caused by sickness. The case was tried to the Court and resulted in a decision in favor of plaintiff. Defendant has appealed.

The answer denied liability on the ground of misrepresentations, and on the further ground that under the terms of the policy plaintiff was not entitled to recover because the illness for which she sought indemnity did not commence more than thirty days after the date of the policy, a condition of liability specified in said policy.

The facts show that there was no medical examination of the insured when the policy was taken out, but that one Kronan, an agent of defendant took insured’s application for the policy at insured’s home on May 3, 1961. Kronan was an agent for the purpose of soliciting insurance applications to submit to the defendant. It necessarily follows that he had authority to receive information called for in the application, and in doing so was acting within the scope of his authority as an agent.

The provisions of the policy with reference to benefits for sickness and total disability therefrom are as follows:

“ ‘Sickness’ as used in this policy means sickness or disease contracted and.commencing more than thirty days after the date of this policy and causing loss commencing while this policy is In force.
***** *
“Part VIII
“If such sickness shall cause the Insured to be totally disabled continuously for one day or more, and requires regular treatments by a licensed physician, the Company will pay, commencing with the date of the first visit, benefits at the rate of the Monthly Indemnity so long as such sickness causes total disability and necessitates total loss of time, but in no event for a period in excess of twelve months.
“Part IX
“If such injury or sickness confines the Insured continuously within a recognized hospital for one day or more, the Company will pay, for the period of such hospital confinement in addition to any other benefits payable under this policy, benefits at the rate of one-half the Monthly Indemnity, but in no event for a period in excess of three months.”

The principal sum provided in the policy is $1,000 and the monthly indemnity $60.00.

There was also the following provision in said policy:

“ * * * No agent has authority to change this policy or to waive any of its provisions. No change in this policy shall be valid unless approved by an executive officer of the Company and such approval endorsed hereon.”

The application contained the following:

“Do you apply to the Union Life Insurance Company, for policy Form No. N3 (6-54); and do you agree that this application shall not be binding upon the Company until issuance of the policy and the payment of the first premium? Yes.
***********
“6. Have you ever made claim for or received indemnity on account of any injury or illness? Give name of company, dates, amounts and causes. 1958 Fully Recovered.
“7. Are your habits correct and temperate ? Yes. Are you maimed or deformed? No, Have you any impairment of sight or hearing? No. Have you ever had a hernia? No. Is there any indication of ill health present ? No. Are you in good health physically and mentally, to the best of your knowledge and information? Yes.
“8. Have you ever had any of the following diseases: * * * Diabetes? JJo, * * *f
“9. Have you received medical or surgical advice or treatment or had any disease within the past five years? Have you ever been operated on by a physician or surgeon ? Answer as to each:
In See Above For See Above Lasting See Above
In See Above For See Above Lasting See Above
“11. Do you hereby apply to the Union Life Insurance Company for a policy issued solely and entirely in reliance upon the written answers to the foregoing questions which you adopt as your own, represent to ■be true, full and complete, to the best of your knowledge and information ? Yes.”

The application was signed “Estelle R. said signature. Said application was dated Weber;” Kronan signed as a witness to May 3, 1961.

Plaintiff testified that on May 3, 1961, she was solicited for the policy in suit. The agent was with her for about an hour on that date. She stated that on that date she could see, but not very distinctly; that she could see a person, but could not read. She further testified that she told the agent she had bad eye sight and diabetes, that she signed the application but was unable to cross the “T” in her name; that she did not think she was able to find the “T” and asked the agent to cross the “T” for her. She further testified she gave the agent a check, the amount she did not remember, and thereafter received the policy of insurance. She also stated that at the time she was going to Dr. Hanser, and continued to see him after she received the policy; that on February 14, 1962, she went to the hospital where Dr. Hanser performed an operation on one eye; that after the operation she could not see out of the eye; that she was in the hospital twelve days.

Plaintiff further testified that prior to going to the hospital on February 14, 1962, she lived alone, and was able to take care of her personal needs around her apartment; but after leaving the hospital, she was unable to take care of herself, and has somebody living with her who does all her work — cooking and everything.

It was then stipulated that if Dr. Hanser was called as a witness he would testify as to the facts stated in a report contained in a letter addressed to plaintiff’s counsel. Said letter was introduced into evidence by plaintiff, and is as follows;

“This patient (Estelle Weber) was first seen by us on April 11, 1961. At that time her vision with and without glasses was hand movements. There was no improvement possible with glasses due to severe diabetic retinop-athy and massive hemorrhages both eyes. She had at the time and still has a considerable field defect The pressure in the eye was normal at that time. We had followed her since then until January 1?, 1962, when we found an elevated pressure in the left eye. This was diagnosed as hemorrhagic glaucoma left eye. She was placed on glaucoma medication and told to return in a few days. Upon her return a cyclodiathermy left eye was suggested. She was admitted to Lutheran Hospital February 14, 1962, and the surgery was performed February IS, 1962. Since that time it was suggested that the patient have the left eye removed but she would not go along with our suggestion. She has been followed since and has been on medication but the prognosis is not good. She will never gain vision due to the diabetic changes that have effected her vision.
“In my opinion this patient was in no condition to read or sign any document at that time and still is not capable.
“I hope this will be sufficient information and if not please feel free to contact us in regard to any matter in question.”

Defendant offered no evidence. Thereafter the Court found for plaintiff, and entered judgment in her favor for $732.00 plus interest amounting to $84.00; the total judgment being $816.00.

The first point urged by appellant is that insured is not entitled to benefits for total disability for the reason that under the terms of the policy such benefits are not payable unless such disability is due to sickness commencing more than thirty days after the date of the policy.

Plaintiff’s own evidence shows that she had been suffering from diabetes for some time prior to the date the policy was issued, which ailment had caused diabetic disease of the eye and massive hemorrhages in both eyes, which condition made it impossible for any improvement of her bad eyesight. Several months after the policy was issued, her doctor discovered elevated pressure in her left eye which he diagnosed as hemorrhagic glaucoma. The doctor suggested that surgery be performed on the left eye, and on February 14, 1962, she was admitted to the hospital for that purpose. The operation was performed the next day. Since that time she has been unable to see, and by reason thereof has been totally disabled. Plaintiff's total disability was caused or contributed to by her diabetic condition; her own doctor’s statement being that, “she will never gain vision due to the diabetic changes that have effected her vision.” The total disability benefits, if allowable, amount to .$720 under Part VIII of the policy, and the hospitalization benefits for twelve days in the hospital amount to $12 under the terms of Part IX of the policy.

Respondent takes the position, first, that plaintiff’s hospitalization and total disability was caused by hemorrhagic glaucoma, which developed more than thirty days after May 8, 1961, which date was thirty days after the issuance of the policy. It is true that Dr. Hanser first detected the symptoms of glaucoma on January 17, 1962, which was more than thirty days after the issuance of the policy, and that plaintiff thereafter was hospitalized and surgery was performed on her left eye in an attempt to relieve this condition. However, the Doctor stated that, “she will never gain vision due to the diabetic changes that have effected her vision.” It thus appears from plaintiff’s own evidence that her total disability was due to a diabetic disease which she admittedly had prior to the issuance of the policy. No other construction could be placed dji Doctor Hanser’s testimony. Therefore, we must rule the point against respondent.

Respondent’s next point is that since the defendant’s soliciting agent was informed by plaintiff of her condition, the defendant must be held to have waived the sound health condition of the policy, and any defense of misrepresentation. This is true; but does not dispose of the problem we are now dealing with. The point urged by appellant is one of coverage, and the law is firmly established that extension of coverage beyond the plain wording of the contract cannot result from waiver.

In Rosenberg v. General Accident Fire and Life Assurance Co., Mo.App., 246 S.W. 1009, the Court said, “ ‘(t)here might be waiver of a forfeiture or a breach of contract, but waiver as a ground for extending the scope of a written contract beyond the usual and ordinary meaning of the language employed would be quite a novelty.’ ” The same rule was announced in Blanke-Baer Extract & Preserving Co. v. Ocean Accident & Guarantee Corporation, Mo.App., 96 S.W.2d 648, 1. c. 652.

In Fernan v. Prudential Insurance Co. of America, Mo.App., 162 S.W.2d 281, 1. c., we held that a contract of life insurance could not be created by waiver or estoppel, citing many Missouri cases so holding. By the same token, it follows that a contract of insurance could not be altered by such means. It would in effect be the substitution of one contract for another or the creation of a contract by waiver.

In 45 C.J.S. Insurance § 674a, page 616, it is said:

“As a general rule, the doctrines of waiver or estoppel can have a field of operation only when the subject matter is within the terms of the contract, and they cannot operate radically to change the terms of the policy so as to cover additional subject matter. Accordingly, it has been held by the weight of authority that waiver or estoppel cannot create a contract of insurance or so apply as to bring within the coverage of the policy property, or a loss or risk, which by the terms of the policy is expressly excepted or otherwise excluded. As has sometimes been said, the doctrines of waiver or estoppel cannot be successfully invoked to create a primary liability, or a liability for a benefit not contracted for at all, * *

Again at said section, page 619 of said volume, we find the following:

“The rule against extending the coverage of a policy by the doctrines of waiver or estoppel, considered supra subdivision a of this section, has been applied to health and accident insurance, and thus, under a policy insuring against disabilities arising after the date of the policy, the doctrines of waiver or estoppel have been held inapplicable so as to extend the risk to cover a disability arising prior thereto. * *

In support of the text are cited the following cases which are in point: Palumbo v. Metropolitan Life Insurance Co., 293 Mass. 35, 199 N.E. 335; Prudential Insurance Co. of America v. Brookman, 167 Md. 616, 175 A. 838; Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854; Bankers Life Ins. Co. of Des Moines, Iowa v. Sone, C.C.A.Tex., 86 F.2d 780.

To apply the doctrine of waiver in the case at bar, would make the policy cover a loss not covered by its terms; to create a liability not created by the contract or assumed under the terms of the policy. In other words, to bring into existence a contract not made by the parties and create a liability contrary to the express provisions of the contract entered into by them. There was no express agreement to waive the thirty day provision. Nor was there any act of the defendant which would lead insured to believe that it was the intention of defendant to waive same, or conduct that would create an estoppel against defendant’s reliance thereon. In fact it would be beyond the scope of the authority of the agent, a mere soliciting agent, to make such agreement or by his acts waive the terms of the contract. The waiver in this case goes no further than to prevent a denial that the policy is in force. The policy is, therefore, operative to insure against sickness or disability from all causes other than sickness or disability excluded by the thirty day provision. Since the glaucoma which caused plaintiff’s hospitalization developed more than thirty days after the date of the policy, defendant is liable for hospital benefits under part IX of the policy. This amounts to the sum of $12.00. The judgment of the trial court is reversed and the cause is remanded with directions to enter judgment for plaintiff in the sum of $12.00.

RUDDY, P. J, and FRANK D. CON-NETT, Jr., Special Judge, concur.


author: RUARK, Presiding Judge.

text:
    H. P. SCHEID, Plaintiff-Respondent, v. V. E. PINKHAM, V. V. Pinkham, and Ladco Wood Brick Mills, Limited, a Missouri Corporation, Defendants-Appellants.
    No. 8386.
    Springfield Court of Appeals. Missouri.
    April 14, 1965.

      James H. Keet, Jr., of Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for defendants-appellants.
    Charles J. Fain, Branson, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is an appeal from a judgment rendered in a case which commenced as a suit for accounting and wound up as a general free-for-all melee.

Plaintiff H. P. Scheid brought suit naming as defendants V. E. Pinkham, V. V. Pinkham, and Ladeo Wood Brick Mills, Limited, a corporation. The substance of plaintiff’s claim was that he was a minority stockholder of the Ladeo Corporation and had been a minority of one on the three-man board of directors; that the two Pink-hams were majority stockholders and constituted the majority of the board of directors, as well as president and vice-president; that the two Pinkhams conspired together and as a result of such conspiracy V. V. Pinkham issued a check against the account of the corporation in the amount of ten thousand dollars, which check was payable to Pinkham Construction Company (owned by V. E. Pinkham) in order to pay an obligation of V. E. Pinkham; that the withdrawal was not for the purpose of, or in the course of business of, the Ladeo Corporation but was a misappropriation of such corporation funds and for the purpose of defrauding the corporation; that plaintiff learned of such misappropriation and sought to require repayment by appeal first to the board of directors and then to the shareholders but failed in his efforts. The prayer is for judgment for an accounting for and on behalf of the corporation “in the sum of Ten Thousand and no/100 Dollars.”

To this pleading all defendants filed answer. Defendants V. V. Pinkham and V. E. Pinkham (each) filed separate counterclaims in which it was alleged that plaintiff had maliciously libeled each defendant by accusing him of misappropriation of funds. Each separate counterclaim demanded ten thousand dollars actual and fifty thousand dollars punitive damages.

Defendant Ladeo filed counterclaim in which (by Count I) it was alleged that plaintiff had been issued shares without consideration and had been guilty of misfeasance as an officer of the corporation and prayed that the shares be cancelled. Count II sought to recover $2,929.15 which had been paid plaintiff for services, to which sum he was not entitled. Count III alleged that while plaintiff was secretary of the corporation he was guilty of misfeasance in said office by making false accusations against the other officers of the corporation ; by forming a competing business and soliciting suppliers and licensors of Ladeo to cancel their contracts with such corporation; and by injuring the name and reputation of the corporation. Because of this conduct Ladeo prayed for twenty-five thousand dollars actual damages.

Count IV charged that the acts done as alleged in Count III were malicious and prayed for twenty-five thousand dollars punitive damages.

After trial of the case, the court found: As to plaintiff’s petition, judgment in favor of the defendant Ladeo and against V. E. Pinkham in the sum of ten thousand dollars; on the separate counterclaims of V. V. Pinkham and V. E. Pinkham, judgment in favor of plaintiff and against each defendant; on the counterclaim of Ladeo, judgment in favor of the plaintiff and against defendant Ladeo as to Counts I, II, and III. No judgment was rendered on Count IV.

All defendants filed motion for new trial. Such motion was not ruled upon within ninety days, and all three defendants appeal. The appeal is from the judgment on the plaintiff’s petition and on all three counterclaims.

Our first question: Is the case here? That is, was there a final and ap-pealable judgment disposing of all the parties and all issues? The whole case was tried to the court. There was no order for separate trial. There was no specific finding or judgment in respect to Count IV of Ladco’s counterclaim. In ordinary circumstances this would require dismissal of the appeal. State ex rel. State Highway Commission v. Hammel, Mo., 290 S.W.2d 113 (4); McNabb v. Payne, Mo.App., 280 S.W.2d 864, and cases cited; Collier v. Smith, Mo.App., 292 S.W.2d 627. But one of the exceptions to the general statement is that if the finding and judgment on the other issues in the case “necessarily excludes and effectively disposes of” the issue which is not specifically adjudged, then the judgment is final and appealable. Capitol Stores, Inc., v. Storms-Green Constr. Co., Mo.App., 346 S.W.2d 549, 554-555; J. G. Jackson Associates, Inc. v. Mosley, Mo. App., 308 S.W.2d 774, 776; Commercial Nat. Bank of Kansas City, Kan. v. White, Mo., 254 S.W.2d 605, 609.

Ladco’s Count III was a claim for actual damages in the sum of twenty-five thousand dollars on account of alleged conduct of the plaintiff. Count IV is a reiteration of the charges made in Count III with the added statement that the acts so alleged were done maliciously and wilfully; and the prayer is for punitive damages in the sum of twenty-five thousand dollars.

There can be no recovery for punitive damages if there are no actual damages. 25 C.J.S. Damages § 118, p. 713; Adelstein v. Jefferson Bank and Trust Co., Mo., 377 S.W.2d 247, 252; Thompson v. Hodge, Mo.App., 348 S.W.2d 11, 15, and cases at Footnote 15. Therefore, the judgment which denied Ladco’s recovery on Count III denied and effectively disposed of Count IV,

There is the added factor that neither plaintiff nor defendant complained of the failure to dispose of Ladeóos count for punitive damages, nor was such called to the attention of the court in the appellant’s after-trial motion. Under these circumstances such Count IV will be deemed to have been abandoned or dismissed. Albrecht v. Piper, Mo.App., 164 S.W.2d 105, 110; Villmer v. Household Plastics Co., Mo., 250 S.W.2d 964, 970. We consider this a final appealable judgment.

But we are of the opinion that the amount in dispute exceeds fifteen thousand dollars, and that judisdiction is in the Supreme Court. The sum adjudged against V. E. Pinkham on plaintiff’s .petition is ten thousand dollars, and the total denied to him on his counterclaim for actual and punitive damages is sixty thousand dollars. The total denied to defendant V. V. Pink-ham on his counterclaim is sixty thousand dollars. Even if we should consider the question of whether or not plaintiff’s claim and V. E. Pinkham’s claim are such that they cannot co-exist so as to permit simultaneous recoveries, the same would not necessarily apply to the V. V. Pinkham counterclaim. As to Ladeo, if we discount the corporation’s appeal from a ten-thousand-dollar judgment (against V. E. Pinkham) in its own favor on the plaintiff’s petition, there still remains the amount denied on its counterclaim (or cross-claim?) against Scheid (Count II) of $2,929.15 for wages or salary claimed to have been wrongfully obtained; and (Count III) twenty-five thousand dollars actual damages claimed because of Scheid’s alleged misfeasance in “working against” the interests of Ladeo— a total of $27,929.15.

We assume that, under the pronouncements made in Wilson v. Tonsing, Mo., 375 S.W.2d 140, and Endermuehle v. Smith, Mo., 372 S.W.2d 464, the “monetary effect” of the judgment appealed from is the aggregate of that denied to, and that taken from, the appealing party. But we think that by any other method of computation (see cases compiled in Washington University Law Quarterly, No. 4, December, 1964, § 9.023(a), p. 662) the result would still be the same. Accordingly, we transfer the case to the Supreme Court.

STONE and HOGAN, JJ., concur.


author: HOWARD, Judge.

text:
    LeRoy LANDUM, Respondent, v. Robert LIVINGSTON and Don Melching and Don’s Car and Financing, a corporation, Appellants.
    No. 24226.
    Kansas City Court of Appeals. Missouri.
    June 7, 1965.
    Application to Transfer Denied Nov. 8, 1965.

      Robert G. Duncan, Simon & Pierce, Kansas City, for appellants. „
    Robert J. Taylor, Louis A. Tritico, Kansas City, for respondent.
   HOWARD, Judge.

This case originated in magistrate court and on appeal to the circuit court there was a judgment for the plaintiff in the amount of $1,488.50, plus costs, consisting of $488.50 actual damages and $1,000.00 punitive damages.

The evidence shows that on January 31, 1961, the plaintiff, LeRoy Landum, purchased a 1953 Nash automobile from defendant Don’s Car and Financing Company. Plaintiff dealt with defendant Don Melch-ing. Plaintiff made payments of $11.00 per week on the car to Mid-States Investment Company. These payments were occasionally late, but were made up to August 28th or August 29th, and the record shows plaintiff was not in default until September 4, 1961.

Late on the night of August 29th, or early in the morning of August 30, 1961, plaintiff came out on the front porch of his apartment house because of the heat and noticed that his car was missing from its parking place on the street in front of the apartment house. Plaintiff immediately called the police and was advised that his car had been re-possessed by Mid-States Investment Company. The police records showed that on 11:50 P.M. August 29, 1961, a call had been received from one Don Taylor advising that plaintiff’s car had been re-possessed from plaintiff’s address by Mid-States Investment Company.

The next morning, August 30, 1961, plaintiff went to the place of business of Don’s Car and Financing Company and talked to Don Melching. Defendant Mel-ching told plaintiff that his car had been re-possessed by mistake, that “they had his car” and “they would bring it back”. Plaintiff’s car was never returned. Plaintiff testified he had personal property in the car to the value of $100.00 to $150.00.

The police department records also revealed that plaintiff’s car was taken to the police department tow-in lot on September 2nd and was released on September 12, 1961, to Mid-States Investment Company. The company’s records showed a payment of $17.00 tow charge and $5.00 fine for a ticket.

The evidence showed that defendant Mel-ching was vice-president of Don’s Car and Financing Company, which was a Missouri corporation, and also a director and stockholder of the company. He had also, at one time, been employed by Mid-States Investment Company and was treasurer of that corporation. Although he testified that he did not have charge of the records of Mid-States Investment Company, he produced the records of this corporation at the trial. He was the only witness for defendants and testified that the note and mortgage given by plaintiff was sold or assigned to Mid-States Investment Company but the place provided for assignment on the back of the mortgage was blank or “left open”.

Melching testified that he did not remember selling the car to the plaintiff, or talking to him about its re-possession, but from the records bearing his name or initials, he admitted that he did, in fact, sell the car to the plaintiff. The records do not show what happened to the car after September 12, 1961.

On argument both parties agreed that the most important issue in the ease was raised by defendants’ complaint that the award of punitive damages was beyond the jurisdiction of the trial court because this case originated in magistrate court and magistrate courts do not have jurisdiction to award punitive damages. Further, on appeal, the circuit court has only derivative jurisdiction which can not exceed that of the magistrate court from which the appeal is taken. Counsel for the parties have cited no cases from Missouri, or any other jurisdiction, directly ruling this point. Extensive research by the writer has likewise failed to reveal a ruling case.

In our consideration of this issue we are mindful of the well established principles that magistrate courts are courts of limited jurisdiction and have only such jurisdiction as is specifically conferred upon them by statute; that they have no common law jurisdiction, and that no in-tendment or presumption can be indulged to enlarge their jurisdiction beyond that specifically granted by statute.

The applicable statute is Section 482.090 RSMo 1959, V.A.M.S., as amended, Laws 1959, Senate Bill No. 173, (all statutory references are to RSMo 1959 and V.A.M.S.). The pertinent part of this statute reads as follows:

“ * * * magistrates shall have original jurisdiction of all civil actions and proceedings for the recovery of money, whether such action be founded upon contract or tort, or upon a bond or undertaking given in pursuance of law in any civil action or proceeding, or for a penalty or forfeiture given by any statute of this state, when the sum demanded, exclusive of interest and costs, does not exceed * * * two thousand dollars *

Here plaintiff’s recovery totalled $1,488.50 plus costs and thus we have no issue as to the jurisdictional amount.

The important and determinative part of the statute, as above quoted, is that which grants jurisdiction to magistrate courts in “all civil actions and proceedings for the recovery of money.” This unquestionably is a “civil actions * * * for the recovery of money” and thus unless other parts of the statute, as above quoted, deny jurisdiction to the magistrate court, such jurisdictional issue must be decided in the affirmative.

Defendant contends that an action for punitive damages is an action for a penalty; that in Missouri punitive damages are not recoverable by virtue of any statute, but by virtue of the common law; that, therefore, the action does not come within the statutory provision “for a penalty or forfeiture given by any statute of this state”; that magistrate courts do not have common law jurisdiction, and, therefore, the magistrate court is without jurisdiction to award punitive damages.

The case of State ex rel. and to the Use of Berra v. Sestric, 349 Mo. 182, 159 S.W.2d 786, considered the similar and almost identical statute covering jurisdiction of a justice of the peace court. This was a suit to recover delinquent sales taxes due the State of Missouri, which originated in a justice of the peace court. It was not a suit either “founded upon contract or tort” and the contention was that, therefore, the justice of the peace court was without jurisdiction because such court’s jurisdiction of “civil actions and proceedings for the recovery of money” was limited to such actions as were “founded upon contract or tort.” The Supreme Court gave careful and detailed consideration to this contention and concluded that the phrase “whether such action be founded upon contract or tort” did not limit the general scope of jurisdiction granted by the phrase “all civil actions and proceedings for the recovery of money.” The court therefore held that the justice of the peace did have jurisdiction of suits for the collection of delinquent sales taxes, even though such suit was not founded on either contract or tort. In arriving at this conclusion, the court said: “As has been seen, the statutes, supra, expressly confer jurisdiction upon justices of the peace ‘of all civil actions and proceedings for the recovery of money’ within prescribed monetary limits. We think it clear that the investure of jurisdiction, under the general head ‘of all civil actions * * * for the recovery of money,’ comprehends and embraces actions for the recovery of delinquent sales taxes, unless it can be said that the phrase immediately following it — ‘whether such actions be founded upon contract or tort,’ etc., — is a qualification of that general heading so as to restrict it to the particulars enumerated. We are satisfied that such effect does not follow for reasons pointed out in the decisions of other jurisdictions (none having been found in our own) construing phraseology involving the term ‘whether’ in statutes quite similar to those now under scrutiny.” The court’s conclusion was explained in this language: “We do not think it was the intention of the Legislature, by enumerating the particulars hereinabove set out, that the jurisdiction it had just conferred on justices of the peace ‘of all civil actions and proceedings for the recovery of money’ should extend only to, and no further than, the instances particularized. A suit to recover delinquent sales taxes as for debt, under Section 11437, supra, undoubtedly falls under the general head of civil action for the recovery of money; and as it does not appear that jurisdiction in such an action has been restricted or denied by any other provision of law, we are of the opinion that the justice had jurisdiction to hear and determine the cause in question.”

It appears to us that the same reasoning is applicable and the same conclusion should follow in the case at bar. The clause in the statute introduced by the word “whether” covers four kinds or classes of cases. These four classes can be set out as follows: whether such action be (1) founded upon contract, (2) founded upon tort, (3) founded upon a bond or undertaking given in pursuance of law in any civil action or proceeding, or (4) for a penalty or forfeiture given by any statute of this state. Each has the same status in the statute and the same relation to the word “whether” which must be read in connection with each phrase. Likewise, each has the same relation to the clause granting general jurisdiction of “all civil actions and proceedings for the recovery of money.” The Sestric case supra pointed out that the phrase “whether such action be founded upon contract or tort” was not a limit on the jurisdiction of an action for the recovery of money, and the same should be true of the phrase “whether such action be * * * for a penalty or forfeiture given by any statute of this state.” In each instance the phrase introduced by the word “whether” is illustrative and descriptive of what is included in the general phrase “all civil actions and proceedings for the recovery of money.” It is not a limitation on the general grant of jurisdiction contained in this last stated phrase, but merely makes certain that these various classes or types of action enumerated after the word “whether” are included within the general phrase “all civil actions and proceedings for the recovery of money.”

Thus, even if we assume (which we do not) that punitive damages constitute a penalty not created by a Missouri statute, Section 482.490 does not deny jurisdiction to the magistrate court to award punitive damages in an appropriate case.

While punitive damages do have the function of punishing the defendant and are designed to deter the defendant, and others, from committing like wrongful acts in the future, they do not constitute a penalty as that word is used in this jurisdictional statute.

The case of Tabor v. Ford, 241 Mo.App. 254, 240 S.W.2d 737, was an action under the Federal Emergency Price Control Act for the recovery of triple damages for a rent overcharge. The contention was made that the magistrate court where the action was commenced did not have jurisdiction thereof because it was an attempt to recover a penalty created by federal statute, and not by Missouri statute. The opinion carefully considered whether or not such increased or multiplied damages did, in fact, constitute a penalty and concluded that the word “punishment” can not be equated with the word “penalty”, and that triple damages recovered by the person overcharged did not constitute a penalty; that the statute and remedy given thereunder were remedial rather than penal in nature when applied to the person overcharged, even though it might be considered to provide for punishment only, and thus be penal, when the recovery was had by the government instead of the individual, as authorized by the statute in certain circumstances.

In arriving at this decision, the court considered many cases from other jurisdictions and said:

“The leading and often cited case of Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 227, 36 L.Ed. 1123 states: ‘Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given are strictly penal.’
“In Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 66, 51 L.Ed. 241, the court holds that an action for treble damages under an anti-trust act is not a suit for a penalty, that: ‘The construction of the phrase “suit for a penalty,” and the reasons for that construction, have been stated so fully by this court that it is not necessary to repeat them.’ Citing Huntington v. Attrill, supra.
“In James-Dickinson Farm Mortgage Company v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed 569, the court speaking through Mr. Justice Brandéis, and relying upon the Huntington case, supra, held that a statute of the State of Texas, allowing exemplary damages to the extent of double the actual damages (for false representations) was not a penal law, and that recovery thereunder might be had in the courts of another state.”

In the case of Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 227, 36 L.Ed. 1123 cited and relied upon in the Tabor case, the U. S. Supreme Court described the distinguishing factors between a remedial and penal statute as follows, 13 Sup.Ct. 1. c. 228:

“The test whether a law is penal, in the strict and primary sense, is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual, according to the familiar classification of Blackstone: ‘Wrongs are divisible into two sorts of species: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed “civil injuriesthe latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community, and are distinguished by the harsher appellation of “crimes and misdemeanors.” ’ 3 Bl.Comm. 2.”

The mere fact that the plaintiff may be allowed to recover more than would ordinarily be embraced in the concept of compensatory damages does not necessarily mean that a penalty is involved. Thus, in Jones v. Prudential Insurance Company of America, 173 Mo.App. 1, 155 S.W. 1106, the court had for consideration the statute giving 10% added damages to an insured against the insurance company for vexatious refusal to pay. Although this is often referred to as a penalty statute in common parlance, and even in court opinions where the precise point is not in issue, the court in the above case held that the 10% added damages were not in fact a penalty, but constituted instead punitive damages, and that because of this the requirement of what is now Section 510.270 requiring that where punitive damages are allowed they must be separately stated in the jury verdict, applied. The court held that failure of the verdict to conform to this statutory requirement was not so prejudicial as to require reversal. This case originated in a justice of the peace court and thus we do have a Missouri case wherein a justice of the peace awarded punitive damages, and the award was approved on appeal, although the case was reversed on other grounds. However, our specific issue as to the jurisdiction of the justice of the- peace to award punitive damages was not. presented or decided by the court.

Punitive damages can not constitute an independent cause of action. They can only be an incident of another cause of action. See 15 Am.Jur., Damages, Sec. 274. They are given, in the discretion of the jury, where the necessary elements such as malice, fraud, etc. are present. Before punitive damages can be recovered there must be a cause of action for compensatory damages. Also, there must be a recovery of at least nominal compensatory damages before punitive damages can be awarded. See Hoagland v. Forest Park Highlands Amusement Company, 170 Mo. 335, 70 S.W. 878. However, where a case independent of punitive damages has been made, and where the evidence shows the existence of circumstances justifying punitive damages, then the plaintiff has a right to, and the court is required to, submit such issue to the jury. See Spitzengel v. Greenlease Motor Car Company, 234 Mo.App. 962, 136 S.W.2d 100.

Thus it appears that Section 482.090 does not specifically deprive the magistrate court of jurisdiction to award penalties not created by Missouri statutes and that, in fact, punitive damages do not constitute penalties, but are a part of the basic cause of action, in tort, asserted by the plaintiff in the case at bar, and that the plaintiff has a right in connection with and as an incident to his basic cause of action to have the issue of punitive damages submitted to the jury when the necessary factual basis exists. Thus, we are persuaded that punitive damages are an integral part of the plaintiff’s “action for the recovery of money” within the specific grant of jurisdiction found in Section 482.090. In this we are buttressed by the decision of the Arkansas Supreme Court in Leep v. St. Louis, I. M. & S. Ry. Co., 58 Ark. 407, 25 S.W. 75, 1. c. 85, 23 L.R.A. 264, where the court determined that punitive damages did not constitute a penalty and held that the justice of the peace did have jurisdiction to award punitive damages (no authority was cited for this assertion) but did not have jurisdiction to award a statutory penalty.

We therefore conclude that the circuit court did have jurisdiction derivative from the magistrate court, on appeal, to award punitive damages in the case at bar.

Defendants complain that there was not sufficient evidence to sustain the verdict for the plaintiff and no evidence to connect either defendant with re-possession of the car by Mid-States Investment Company. From the evidence, as heretofore outlined, the court to which this case was tried without a jury could find that plaintiff was not in default in his payments under the note and mortgage covering his car, that the re-possession thereof was wrongful, and that defendant Melching admitted that the re-possession was mistaken, that he had the car and that he would return it. It also appears that Melching was vice-president of and actively conducted the business of Don’s Car and Financing Company and was closely connected with the Mid-States Investment Company, to which payments were made by plaintiff. Although Melching claimed a sale or assignment of the note and mortgage to the investment company, the assignment “was left blank” on the note and mortgage which Melching produced in court.

From this we can not say that there was not sufficient evidence to charge the defendants with the wrongful acts shown and to support the verdict.

Defendants also complain of error in admitting the police court records showing repossession of plaintiff’s car. The objection made at the trial was that police court records do not come under the “Uniform Business Records Act and consequently are hearsay”. The police clerk who produced the records testified in detail and without objection to their content before the record was offered, and the above set out objection made. The clerk also stated that they were contained in a book which was a part of the Kansas City, Missouri Police Department records, and it was his duty, as clerk, to maintain such records and that he was in charge thereof.

It seems to be defendants’ position that police records, by their very nature and under all circumstances, are excluded from the operation of the Uniform Business Records as Evidence Law (Sections 490.660 et seq. RSMo 1959, V.A.M.S.) and consequently such records are hearsay and can never be admitted in evidence. Such position is refuted by Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239. It would appear that police records can meet all of the tests and requirements for admissibility set forth in such cases as Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663, Phillips v. Board of Adjustment, Mo.App., 308 S.W.2d 765, and Hancock v. Crouch, Mo.App., 267 S.W.2d 36, but we need not decide this point. The witness was permitted, without objection, to testify to all of the detailed contents of the record. It was only when the record itself was offered in evidence after the clerk had testified, that the above mentioned (and only) objection was made. Thus any error in the admission of the record itself could not be prejudicial. See White v. Hasburgh, Mo.App., 124 S.W.2d 560.

Having found no error, we affirm the judgment.

All concur.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. TAYLOR COUNTY BANK, Appellee.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.
    Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Tildón McMasters, Harold K. Huddleston, Elizabethtown, for appellant.
    Clyde Williams, Jr., Campbellsville, for appellee.
   STEWART, Judge.

In this condemnation proceeding instituted in Taylor Circuit Court by the Commonwealth of Kentucky, Department of Highways, against the Taylor County Bank, the jury awarded the landowner $2250 for a temporary easement and $19,500 for the land taken. The Department appeals.

The property affected is located between First and Second Streets in the City of Campbellsville, and a portion thereof was condemned for additional right of way for the purpose of widening Second Street. Appellee’s original parcel of land had a frontage of 132 feet on both streets and a uniform depth of 165 feet, and a newly erected drive-in bank was situated in the center of the lot. This building faces First Street which carries one-way traffic in a westerly direction toward town. Prior to the reconstruction work done on it, Second Street was one way in the opposite direction, and was without eurb, gutter or sidewalks, and was in a poor state of repair.

The first ground for reversal. is that the jury allowance of $2250 for the rental value of the easement was unsupported by competent, relevant and substantial evidence, with the result that the amount granted was grossly excessive.

The record reveals a temporary construction easement fifteen feet in depth was secured across the entire frontage of the property on Second Street; and that the duration of the use of this easement was for a period of six or seven months. Appellant’s witnesses, two in number, placed a rental value of $400 and $500 on the easement. Appellee’s appraisal witnesses, only two of whom testified on this point, estimated the rent for the fifteen-foot strip at $6500 and $4000.

The higher figure was testified to by the president of the bank and the lower by a commissioner of the Taylor county court. Both sought to show a loss of business was occasioned to the bank from the utilization of the temporary easement by appellant. These witnesses stated that customers, in order to reach the bank, were compelled to travel over to and thence on First Street; and, in leaving the premises, they had to circle the building or turn around on the same side they had entered in order to get back on the same street. A timely motion to strike this testimony was overruled.

This Court has uniformly held that the rental value of the land involved, not the business loss estimated to have occurred during the time the new road was under construction, is the proper measure of damages for the use of a temporary easement. See Commonwealth Department of Highways v. Fister, Ky., 373 S.W.2d 720. Actually, no loss of business was established under the evidence presented; there was only some inconvenience shown while Second Street was undergoing construction. The loss of dominion over the easement did not of itself prohibit the passage of traffic to and from the bank; it was solely produced by the construction work in progress on the right of way acquired for widening Second Street.

We have held that any interference with the enjoyment of property upon the part of the owner, which results from reasonable construction operations on an adjoining highway, is not a valid compensable factor. See Commonwealth, Department of Highways v. Eubank, Ky., 369 S.W.2d 15. See also the recent case of Commonwealth, Department of Highways v. Ray, Ky., 392 S.W.2d 665, where the point under consideration was discussed in detail.

We conclude the evidence in this case does not support any award other than one for nominal damages for the temporary easement utilized by appellant during the time it reconstructed Second Street.

We now turn to the next ground advanced for reversal, namely, that the verdict of $19,500 for the land taken was based upon improper criteria of value. Appellant’s two witnesses appraised the difference in market value of the property before and after the taking at $14,600 and $15,250. Five witnesses, testifying for appellee, estimated this difference at amounts as high as $40,000 and as low as $20,000.

When cross-examined, appellee’s witnesses explained that their appraisals were arrived at because of the loss of about 22% of the parking area, because the building is now off-center and as a consequence its appearance is injuriously affected, and because the north side does not drain toward Second Street, with the result that the space around the bank floods after a heavy rain.

We believe this evidence was of sufficient probative weight to support that portion of the verdict concerning the land taken. There is no claim this particular award by the jury was excessive.

Appellant’s counsel elicited from appellee’s witnesses certain statements that appellant now argues are legally noncom-pensable factors of damage. None of these statements was objected to during the trial. It is now too late to complain as regards these alleged errors in this appeal.

The function of the Court of Appeals is to review possible errors made by the trial court, and if such court had no opportunity to rule on a question, there is no alleged error before this Court for review. See Commonwealth, Department of Highways v. Williams, Ky., 317 S.W.2d 482.

The final complaint is that certain pictures were introduced, over appellant’s objection, to show the parking condition that existed after one end of the lot had been cut off and acquired by appellant. It is contended they show a rush-hour condition. Clearly these pictures were admissible, since they accurately portrayed the true effect of the taking-at a time when parking space was most needed.

Wherefore, the judgment is reversed as to the allowance of $2250 for a temporary easement and affirmed as to the award of $19,500 for the land taken.


author: DAVIS, Commissioner.

text:
    Glenn Aaron FRIAR, Appellant, v. Tommie WEBB, Appellee.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.

      Wm. A. Watson, Watson & Watson, Middlesboro, for appellant.
    William S. Tribell, Middlesboro, for ap-pellee.
   DAVIS, Commissioner.

This litigation arose from a two car collision on Kentucky Highway 74 at the outskirts of Middlesboro. Appellee, Tommie Webb, was a passenger in the automobile operated by her husband, Wesley Webb. Appellant was the driver and sole occupant of the other car. Each of the Webbs sued appellant, and there have been two trials of the case. At the first trial the jury’s verdict awarded $445 to Wesley Webb for property damage (he made no claim for personal injury), and $831 to Tommie Webb for her asserted medical expenses incident to her personal injuries. The trial court granted Tommie Webb a new trial, limited to her claims for pain and suffering and the impairment of her earning power. Wesley Webb made no effort to obtain a new trial. On the second trial the jury awarded appellee $11,683.65, and judgment went accordingly. Appellant’s motion for judgment n. o. v. or, alternatively, for a new trial, was overruled, and this appeal followed.

Appellant advances five bases for reversal: (1) The court erred in granting appellee a new trial' after the first verdict; (2) the court erroneously permitted appellee to be recalled for redirect examination; (3) the instructions should not have permitted any finding for permanent injuries; (4) the jury verdict was void because not signed by all of the ten jurors agreeing to it; (5) the substantial rights of appellant were prejudiced by failure of the circuit clerk to call the names of the jurors when they returned the verdict into open court, and by failure of the trial judge to poll the jury.

The entire thrust of appellant’s claim of error as to setting aside the first verdict is that the first verdict was proper. Appellant is mindful of, but seeks to distinguish our cases which have held that when the jury finds the defendant to be liable for hospital and medical expenses it must make an award for pain and suffering. Among these decisions are Vittitow v. Carpenter, Ky., 291 S.W.2d 34, and Wall v. Van Meter, 311 Ky. 198, 223 S.W. 2d 734, 20 A.L.R.2d 272. The asserted distinction which appellant urges is that in the case at bar the jury could have found (and according to appellant should have found) the claimed pain and suffering of appellee to be vaporous or nonexistent. The difficulty with the position is its inconsistency with the verdict. The first trial jury awarded appellee the full amount claimed for her medical expenses; it could have done so only upon its finding that the medical services were rendered in reasonably appropriate efforts to administer to the injuries of appellant. It will not do to say the jury believed it proper for ap-pellee to incur the medical expenses for non-existent injuries. Ergo, the rationale of the cited cases is applicable, and the effort at distinguishing them fails. We have reviewed the motion for new trial filed after the first verdict and perceive no basis for appellant’s assertion that it failed to conform to CR 59.01. Appellant does not claim that the question of liability should have been resubmitted.

The second point of. error is also without merit. In a vivid argument, appellant charges that appellee was permitted to “tortuously” make her way to the witness stand while wearing a back brace — she had not worn such a brace at the first trial — after which she “slowly and deliberately” returned to her seat at counsel table. Then, to use appellant’s florid prose: “ * * * she was recalled to the stand, by her attorney for the purpose of redirect examination. Once again Mrs. Webb proceeded to the stand, a gallant, chin-up effort. When she got there she was asked a few irrelevant questions and dismissed. Again, the long, halting, difficult trek back to her seat.” In effort to show an abuse of the admitted discretion of the trial judge in such circumstances, appellant’s brief continues: “However, when she creeps to the stand in her metal corset, displaying the agony of Christ with every step, we think the court clearly abused its discretion.” Histrionics in the course of jury trials is not an innovation to our system of jurisprudence—some of the most eminent trial lawyers cherished by the profession have been able to capitalize on forensic powers and breadth of dramatic expression. Perhaps it may be said that the quoted language from appellant’s brief reflects something of the tradition. However, courts are quick to denounce fakery or chicanery during trials. In the present case there is no basis for concluding that the physical condition of appellant was feigned—indeed, there is no charge that it was. Had she availed herself of her prerogative of walking in and out of the court room during recesses of court, or for other legitimate purposes, her physical condition would have been evident to the jury. Doubtless, intelligent jurors and alert trial judges are able to discern deliberate malingering efforts flaunted by litigants. There is no showing of anything of the sort here. Cf. Robinson v. Lunsford, Ky., 330 S.W.2d 423, 77 A.L.R.2d 1248, and the authorities cited therein. We find that the trial court exercised a proper discretion in overruling appellant’s objection on the point at hand.

We think the trial court properly submitted the issue as to whether appellee had sustained permanent injuries as a result of the accident. Her doctor (an osteopathic physician and surgeon whose professional qualifications are not assailed) gave it as his opinion that appellant will have a “50% partial permanent disability.” When her counsel asked what he meant by “permanent” he replied: “I think this particular trouble will continue to bother her permanently.” The condition from which appellant will so suffer was described by the doctor as “traumatic or degenerative arthritis in the cervical and lumbar areas.” We consider this evidence adequate to warrant the permanent injury instruction; it is not a mere possibility as treated in H. & S. Theatres Co. v. Hampton, 300 Ky. 677, 190 S.W.2d 39. See Slusher v. Miracle, Ky., 382 S.W.2d 867, and cases of like import collated in 7 Ky.Dig., Damages, «=>216(6).

Next, appellant asserts that the majority verdict (bearing the names of ten jurors) was not actually signed by ten of the jury members. The assertion rests on appellant’s claim that the first four names of jurors as written on the verdict appear to have been written by the same hand. In support of this appellant has included in the record a photocopy of the signed verdict. No evidence of any kind is adduced to sustain the allegation that a single individual signed the first four names. Our nonexpert perusal of the exhibit indicates to our untrained eyes that the first four names appear to have been signed in the same ink and probably by the same pen, but we will not pose as examiners of questioned documents in such a case. Assuming, without deciding, that it would be a valid ground-to attack the verdict that some one member had subscribed the names of three others, we think the bare minimum of orderly procedure imposes on appellant the affirmative duty of making some qualified showing that the names were so signed. Here, there is not a shred of evidence to that effect. Accordingly, the question is not available for review.

Finally, the appellant contends that a new trial must be granted because the circuit clerk did not call the names of the jurors when they returned the verdict into court, nor was inquiry made whether or not the reported verdict was the jury’s verdict. KRS 29.235, 29.335. The short answer to these contentions is that appellant made no request of the court to require the clerk to “call” the jury, nor was any request made that the jury be polled. It is not suggested that the verdict was spurious, or that the members of the jury failed to realize what the verdict was. They all returned into open court and heard the verdict read in their presence. In the complete absence of a showing of prejudice— or even a claim of it — we will not upset the judgment. CR-61.01.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Elbert BOTKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.

      Don B. Mills, Barhourville, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Elbert Botkins was convicted of embezzling $11.65 paid to him as Justice of the Peace on a fine. He was sentenced to one year’s confinement. He appeals and argues that he was indicted under KRS 434.010 which does not cover the offense of which he was convicted; the indictment is invalid and the instruction is erroneous for failure to charge intent as provided in KRS 434.-020; and the verdict is flagrantly against the evidence.

In substance the testimony for the Commonwealth shows that Tom Black paid appellant $11.65 on a fine for his son, Charles Foley Black; that appellant received the money in his capacity as Justice of the Peace of the Third Magisterial District of Knox County; that appellant executed a receipt dated October 2, 1962, for the payment of the fine; and that the Knox County records with respect to the collection of fines and forfeitures did not show that appellant had ever turned in or reported a fine against Charles Foley Black in any amount. From this testimony the jury could have believed that appellant, in his official capacity, collected and failed to account for $11.65 of the Charles Foley Black fine. It is sufficient to sustain the verdict.

Appellant said that to the best of his knowledge he had never collected a fine from Charles Foley Black and that he did not know what the receipt to Tom Black was for or what it represented.

The indictment, in part, charged as follows:

“EMBEZZELMENT (sic) A Justice of the Peace of the Third Magisterial District, Knox County, Kentucky, embezzled Eleven dollars sixty five cents ($11.65) cents (sic) of said County’s money, same being paid by Tom Black on a fine for Charles Foley Black.”

Apparently in obedience to RCr 6.-10(3) the indictment contained a reference to KRS 434.010. Appellant moved to dismiss the indictment for failure to state any offense and charged that the statute referred to was inapplicable. The reference to KRS 434.010 was erroneous, but RCr 6.10(3) provides that an error in such citation “shall not be ground for dismissal of the indictment * * * if the error or omission did not mislead the defendant to his prejudice.”

The charge of the indictment as set forth above contained “a plain, concise and definite statement of the essential facts constituting the specific offense” with which appellant was charged. This is sufficient. RCr 6:10(2). Eisner v. Commonwealth, Ky., 375 S.W.2d 825; Brown v. Commonwealth, Ky., 378 S.W.2d 608.

The remainder of appellant’s argument on the motion to dismiss was addressed to the failure to allege the fact of incorporation as contained in KRS 434.010. Generally embezzlement may be defined as the fraudulent appropriation or conversion by an agent, an employee, a corporate officer, a trustee, or other person acting in a fiduciary capacity, or character, of money or property, the possession of which has been entrusted to him by another. 18 Am. Jur., Embezzlement, Section 2, page 571. The use of the words “embezzlement” and “embezzled,” as well as other descriptive words, plainly charges an offense under KRS 434.020. It was unnecessary to allege incorporation as the indictment states an offense under KRS 434.020. Commonwealth v. Bain, 240 Ky. 749, 43 S.W.2d 8.

Lastly, it is argued that the instruction was faulty for failure to say that the act must be done with intent to deprive the owner of his property. Appellant relies on Watkins v. Commonwealth, Ky., 298 S. W.2d 306, wherein the instruction required the jury to believe that the defendant “misapplied” a certain sum.

The Watkins case is distinguishable. Here, the instruction required the jury to believe beyond a reasonable doubt that the appellant did “unlawfully, fraudulently and feloniously, convert to his own use” the money entrusted to him. While it would have been better practice to include the statutory language referring to intent, it is considered that the use of the phrase “convert to his own use” connotes a purposeful or intentional diversion of the money from its proper use to his own use, which is sufficient for the jury’s understanding of the offense and its nature. There is no such connotation in the use of the word “misapplied” in the Watkins instruction. The instruction given was not prejudicial. However, appellant cannot now question the correctness of the instruction since the record does not reveal any objection to it at any stage of the proceeding. Hence, it is too late to raise it for the first time on appeal. Hartsock v. Commonwealth, Ky., 382 S.W.2d 861; Rice v. Commonwealth, Ky., 387 S.W.2d 4; Piper v. Commonwealth, Ky., 386 S.W.2d 13.

Judgment affirmed.


author: MILLIKEN, Judge.

text:
    Ralph THACKER, Appellant, v. T. Ed ASHER, Jailer, Bell County, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.
    J. C. Helton, Grant F. Knuckles, Pine-ville, for appellant.
    William S. Tribell, Middlesboro, Farmer Helton, Pineville, Thomas Z. Board, Mid-dlesboro, for appellee.
   MILLIKEN, Judge.

The appellant, Ralph Thacker, an inmate of the Bell County jail charged with murder, was denied bail by the quarterly court, filed a petition in the circuit court for a writ of habeas corpus in an effort to obtain bail and again was denied it. The sole question on this appeal is whether he is entitled to bail. He had waived examination •in the quarterly court which referred the charge against him to the Bell County grand jury for consideration at its next session.

Section 16 of the State Constitution stipulates that “All prisoners shall be bailable by sufficient securities, unless for capital offenses when the proof is evident or the presumption great * * *.” The shooting occurred at dusk when an out of doors poker game broke up because of the darkness. The record discloses that the deceased, Luke Maiden, and other players, had been drinking moonshine most of the afternoon and that Thacker, a late arrival at the game, apparently drank no alcoholic beverage while there. An hour or so before the shooting Thacker had whipped out a pistol and threatened Maiden when the latter started to rake in the pot which Thacker had just won. Peace was immediately restored by the participants and the game continued for a couple of hours afterward without a recorded, untoward incident.

The best we can make out of the testimony offered on the hearing in the circuit court is that shots were fired after the game broke up, two men were hit in the legs, and Luke Maiden’s dead body lay sprawled on its back with a revolver lying two to three inches from his hand. Maiden’s revolver smelled of gunpowder indicating it -had been fired recently, and two live cartridges were in the cylinder and three empty hulls. No one testified that Thacker or any specific person fired a shot, but only that shots had been fired and that they probably came from two guns. Thacker voluntarily went to the jailer later that evening and told the jailer that he had been in a shooting scrape, but didn’t know whether anyone had been hit because he left. The testimony of the coroner suggested that Maiden had been shot in the back and that the bullets had passed through his body, emerging in the front.

It is the contention of the appellant that the record presented does not sustain a denial of bail, because there is nothing to sustain a charge of premeditated or willful killing “and if Ralph Thacker did shoot and kill Luke Maiden it was either in self-defense or in sudden heat and passion and in a case such as this the only time a defendant can be held without bond pending his trial is when the proof is evident and the presumption great,” a presumption which he contends the present record does not sustain.

The burden is on the Commonwealth and it is the consensus of this Court that the proof offered here is not evident nor is the presumption great and that, consequently, the appellant is entitled to his release from detention upon the execution of sufficient bail.

The judgment is reversed.


author: PALMORE, Judge.

text:
    Garrett WHITE, Appellant, v. Worley HOWARD et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.

      D. G. Boleyn, S. E. Duff, Hazard, for appellant.
    Harold Garland Wells, Hazard, for ap-pellees.
   PALMORE, Judge.

The appellant, Garrett White, brought this suit against the appellees, Worley Howard and wife, Zola Howard, to quiet his title to a 25-acre tract of land near Grapevine Creek in Perry County. The Howards counterclaimed for similar relief with respect to their adjacent property and demanded damages for the wrongful cutting of timber. In the beginning the dispute was confined to one boundary line, but as the evidence developed during the course of taking depositions it spread to two other areas, with the result that White eventually filed an amended complaint alleging that the Howards were claiming the very land on which his house and barn are located. Upon submission of the case the trial court found the boundaries to be as contended by the Howards, awarded them $25 on the counterclaim, and dismissed White’s complaint and amended complaint. Hence this appeal.

The 25-acre tract originally was part of a larger tract of land owned by the Howards. They conveyed it to their son and' his wife, Ralph and Lena Howard, in 1952. In the following year, 1953, having moved to Indiana, Ralph and Lena sold it to White, and in the same deed conveyed him a 1-acre tract they had acquired from Elvin White and wife in 1947. The 1-acre lot is not in dispute but is of importance as a boundary reference in the description of the 25 acres.

We need not discuss in detail any of the trial court’s findings except those pertinent to the triangular area on which Garrett White’s house and barn are located. There being substantial and credible evidence both ways on the other boundaries in issue, CR 52.01 seals those findings against appellate intervention. But with respect to the triangular portion we are of the opinion that the findings were clearly erroneous. CR 52.01.

For an understanding of this phase of the case a brief description of the topography is necessary.

Grapevine Creek in this vicinity runs from southeast to northwest. Charley Fork runs almost due north and empties into Grapevine Creek from the south. The ravine or defile through which Charley Fork flows as it approaches the creek is called Charley Cove, or Charley Hollow. Charley Fork is sometimes referred to as a drain, or the main drain, there being another and smaller drain which empties into it and forms one of the other two boundaries in dispute.

The 1-acre lot acquired by the Ralph Howards from Elvin White in 1947 and conveyed to Garrett White in 1953 by the same deed in which the 25 acres were conveyed is located at the mouth of Charley Fork, on the south side of Grapevine Creek and east or left-hand side of Charley. Fork. Its description runs counterclockwise and is as follows (emphasis added):

“Beginning on a sycamore tree at the mouth of Charlie Fork; thence up the Charlie Fork as it meanders approximately 150 yards to a rock marked x; thence straight around the hill binding on Worley Howard’s land approximately 70 yards to a rock marked x; thence a straight line down the hill to a rock marked x on the south bank of Grapevine Creek; thence down the creek back to the beginning, containing one acre, more or less.”

The description of the 25 acres contained-in the 1952 and 1953 deeds from the Worley Howards to the Ralph Howards and from the latter to Garrett White runs clockwise and is as follows (emphasis added):

“Beginning at the corner of the Elvin White and Worley Howard line at a rock marked x; thence a straight line binding on Worley Howard land to a drain and a big rock marked x, approximately 200 yards; thence up the drain as it meanders to a black oak in angle to middle of field'; thence a straight line to top of the hill to a rock marked x; thence down the ridge binding on the Campbell line to the corner of Nan Napier line to a cherry tree; thence a straight line down the hill binding on said Nan Napier land approximately 185 yards to a rock marked x; thence turn straight back to the head of Charley Cove approximately 185 yards; thence a straight line down the hill to main hollow and a rock marked x; thence straight around the hill to the beginning. Containing 25 acres, more or less.”

The disputed triangle is the area bounded on the north by the 1-acre lot, on the west by Charley Fork, and on the east by a line running southwestwardly from the southeast corner of the 1-acre lot to the point on Charley Fork identified in the first call of the 25-acre description as “a drain and a big rock marked x, approximately 200 yards.”

The Howards contend, and the trial court in substance found, that the 25-acre tract is not contiguous to the 1-acre lot, but is situated entirely on the west or right-hand side of Charley Fork and corners thereon at a marked rock some distance up the fork (southward) from the 1-acre lot. The surveyor who testified for the Howards, and whose plat was accepted as correct by the findings of the trial court, frankly conceded that in order to achieve this result it was necessary to omit the first two calls of the description as contained in the deed. He testified that in making the survey on which his plat is based he did not use the deed (though he had theretofore used it in making a partial survey), but followed directions given him by Worley Howard.

It is admitted that when the Ralph Howards bought the one acre from Elvin White in 1947 Worley Howard owned the land in back of it on both sides of Charley Fork. Some time thereafter the Worley Howards permitted Ralph to build a house on this property (now the disputed triangle) in order to be on higher ground, since the one acre consisted mostly of a bottom. All of the Howards (other than Ralph’s wife, who did not testify) now say that Ralph was never given a deed to the land on which the house was built. Garrett White contends, and it is our conclusion that the evidence unmistakably demonstrates, that the triangle on which the house is located was intended to be and was included in the con-veyancés to Ralph and wife in 1952 and to Garrett White in 1953.

In the first place, the description expressly calls for a beginning point at the Elvin White-Worley Howard corner. This has to be one of the corners of the 1-acre lot formerly owned by Elvin White, either the rock in Charley Fork at the southwest corner or the rock up the hill at the southeast corner. The last call identifies this rock as the one at the southeast corner, because the last call begins at the rock in the “main hollow” (Charley Cove) and runs “straight around the hill” (the same language, except for omitting the distance, as the second call of the 1-acre description) to the beginning. It is no wonder that these two calls are eschewed by the Howards; they are fatal.

In the second place, Worley Howard knew that Garrett White thought he was buying the house. He does not make a categorical admission to that effect, but the evidence fairly shouts it. The deal was closed in the house itself and in Worley Howard’s presence. White either had moved into it already or did so shortly thereafter, and there is no suggestion that he occupied the premises through any grant from or understanding with the Worley Howards. But that is not all. Some time afterward White decided to build a barn on these same premises now in dispute and paid Worley Howard and another man to build it. Through all of this, and at no time until this litigation was in progress, did the Howards ever by word or deed indicate to Garrett White that they owned or claimed any interest in the property on which he lived and which they knew he regarded as his own. These acts and circumstances obviate any descriptive ambiguity that may-otherwise have tended to obscure the intent of the parties to the respective deeds in which the 25 acres were conveyed. Cf. Hensley v. Lewis, 278 Ky. 510, 514, 128 S.W.2d 917, 920, 123 A.L.R. 537, 540 (1939); McGiboney v. Newman, 277 Ky. 835, 840, 127 S.W.2d 860, 862 (1939). Moreover, it will be recalled that the description of the 25 acres originated in the deed from the Worley Howards to the Ralph Howards. That being so, any ambiguities are to be resolved against the Worley Howards, the parties who provided the description. Cunagin v. Parker, 303 Ky. 112, 116, 196 S.W.2d 976, 977 (1946).

It is obvious from the testimony that when Garrett White bought the property from Ralph and Lena Howard he did not know the exact metes and bounds. Even as this suit got under way he seems to have been under the impression that the house, which had been constructed by Ralph, was within the bounds of the 1-acre lot. But whatever may have been the misapprehensions under which he labored at first, his amended complaint was pitched on the theory that the land on which the house and barn are situated is embraced within the 25-acre tract as it is described in his deed. That theory, as we view it, is correct and he- was entitled to a judgment consistent with it.

As heretofore mentioned, the case began with a dispute over one of the other boundaries of the 25 acres, and while admitting that they claim title to the triangle of land on which White’s house and barn are situated, the Howards have steadfastly taken the position that they are not presently “lawing” about the triangle, because, according to their version, it is not within the 25 acres. That argument begs the question, of course. Were they to prevail, the result of any further or separate “lawing” over the triangle would be foreordained.

The boundary lines of the 25-acre tract as established by the findings of fact place it entirely on the west or right-hand side of Charley Fork, thus excluding the disputed triangle adjacent to the 1-acre lot. Proceeding on that premise, the trial court concluded that White must fail because he did not prove his title from the Commonwealth or a common source, etc. Cf. Noland v. Wise, Ky., 259 S.W.2d 46, 48 (1953). The factual premise being clearly erroneous, the conclusion of law is irrelevant and inapplicable. If the house and lot are within the 25 acres, as we hold they are, a common source of title is established.

The cause is affirmed in part and reversed in part with directions that the judgment Be amended in accordance with this opinion.

      . This is the smaller drain mentioned earlier in the opinion.

      . Evidently meaning “toward.”

      . The first call, incidentally, running 200 yards from the 1-acre corner to the rock at the mouth of the smaller dram, appears to give White a larger triangle than his own surveyor claims.

      . The ease being essentially no more than a dispute concerning the location of boundaries, proof of title may not be necessary anyway. See Jones v. Wheeldon, 309 Ky. 184, 217 S.W.2d 221, 222 (1949).


author: HILL, Judge.

text:
    FRANKLIN PLANNING AND ZONING COMMISSION, etc., Appellants, v. SIMPSON COUNTY LUMBER COMPANY, etc., Appellees.
    Court of Appeals of Kentucky.
    Oct. 1, 1965.
    G. D. Milliken, Jr., and Milliken & Milliken, Bowling Green, for appellants.
    Harold I>. Ricketts and Harlin, Parker & Ricketts, Bowling Green, for appellees.
   HILL, Judge.

This appeal concerns the propriety of a judgment interpreting the rights of these litigants under a planning and zoning ordinance of the City of Franklin.

Appellee Desford Potts for about seven years owned a six-acre tract of land within the corporate limits of Franklin. It lies between Railroad and Morris Streets. During this period, Potts maintained a livestock barn on the tract in which was stored lumber and other building materials. Outside, and mostly to the rear of the barn, brick was stored in stacks four or five feet high. In 1959 the City of Franklin passed a zoning ordinance by virtue of which Potts’ lot was classified as residential (R-2.) property.

Shortly before this suit was instituted, Potts moved some saw logs onto his lot back of the bam where he had recently had a bulldozer level the lot. The city complained. Potts sued to enjoin interference by the city. The chancellor decided in favor of Potts.

The city contends the continued use by Potts of his property for storage of building materials is a “nonconforming” use, and under the law cannot be enlarged by storing saw logs thereon. Potts contends it is not an enlargement of the “nonconforming” use and therefore not in violation of the zoning ordinance. We should say here that a “nonconforming use” means simply a use which does not conform to the classification provided for in the ordinance, residential in this instance.

The applicable portion of the ordinance is as follows:

“Section 33, Continuance of NonConforming Uses. Any use of land or structure existing at the time of enactment or subsequent amendment of this ordinance, but not in conformity with its use provisions may be continued * *

Regardless of our sadness at seeing the elimination of the “spreading chestnut tree”, and the village smith, it must be admitted that in the interest of progress the law favors the gradual elimination of “nonconforming” uses of property in our cities. Attorney General v. Johnson, Ky., 355 S.W.2d 305 (1962). It naturally follows that such nonconforming uses as are tolerated under the law cannot be enlarged. City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, 87 A.L.R.2d 1 (1962); Feldman v. Hesch, Ky., 254 S.W.2d 914 (1953) ; McQuillin on Municipal Corporations, 3rd Ed., Vol. 8, Sec. 25.183.

So, our question is whether the storage of saw logs on Potts’ lot is an enlargement of the “nonconforming use” he enjoyed previously. The chancellor found as a matter of fact the use was not- enlarged. We have numerous photographs of the stored logs, and they appear to be stacked higher than the brick, perhaps eight feet high; but it cannot be said they are unsightly, obnoxious, or a health hazard.

Admitting the saw logs were stacked higher than the brick and not so symmetrically, unless they obstruct the view or impede the natural flow of air we cannot see wherein their storage back of the barn is materially different from the storage of the stacks of brick. Accordingly, we agree with the chancellor that the “nonconforming use” by Potts of his property has not been enlarged by the storage of saw logs on the property. There is no contention Potts plans a sawmill. It goes without saying that a sawmill in such a residential community would be such an enlargement as appellants oppose.

The judgment is affirmed