author: DAVIS, Commissioner.

text:
    R. F. McMAHAN, Sr., Appellant, v. Claude H. HUNSINGER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.

      Boone & Triplett, Louisville, for appellant.
    John A. Fulton, Joseph Rose, Lively M. Wilson, Donald R. Pierce, Louisville, for appellees.
   DAVIS, Commissioner.

The appeal involves the interpretation of a restrictive covenant in a deed. The question is whether the restriction prohibits multifamily residence construction. The Jefferson Circuit Court entered judgment in a declaratory judgment action declaring that the restriction does preclude the construction of multifamily buildings. Appellant challenges the declaration of rights as being contrary to the law applicable to the situation.

Appellee Hunsinger owned a tract of about 35 acres of unimproved land on Hikes Lane in Jefferson County. On December 30, 1954, appellee conveyed 25 acres of the tract to Chester Villa Development Company by a deed which permitted subdivision of the land into building lots. The record reflects that 89 separate one-family residences have been constructed on lots in that subdivision. Owners of residences built on lots in that subdivision intervened in the trial court.

By a deed dated November 22, 1955, ap-pellee conveyed the remaining ten acres of the 35 acre tract to -Kentucky Christian Missionary Society. The deed provided certain restrictions relating to the use of the property as a church facility, and contained a restriction to be applicable in the event the grantee elected to sell the property to any grantee other than a church, as follows:

“The property shall be used for residential purposes only and the houses to be erected thereon shall contain at least 950 square feet floor space and shall be of at least seventy per cent (70%) brick or stone construction.”

The appellant purchased the ten acre tract from Kentucky Christian Missionary Society. Appellant desires to utilize the property for construction of multiple-family residences, to contain more than 950 square feet of floor space and of greater than 70% brick or stone construction. This action was brought to test whether the quoted restriction prohibits the contemplated multifamily dwellings.

The trial court and parties recognize that our decision in McMurtry v. Phillips Inv. Co., 103 Ky. 308, 45 S.W. 96, 19 Ky.Law Rep. 2021, would rule this case unless an announced departure from the strict rule for construction of restrictive covenants requires a different result. Cf. Struck v. Kohler, 187 Ky. 517, 219 S.W. 435.

Our cases have noted the abrogation of the strict construction rule which was applicable when McMurtry, supra, was decided. See McFarland v. Hanley, Ky., 258 S.W.2d 3; Brandon v. Price, Ky., 314 S.W.2d 521; and Macy v. Wormald, Ky., 329 S.W.2d 212, and cases discussed in those opinions. Examination of the decisions discloses that no case in this jurisdiction has specifically overruled McMurtry. None of the late Kentucky cases may be said to be completely controlling on the particular facts before us.

It was observed in the Brandon case, supra, that building restrictions are regarded more as protection to the property owner, and the public than as restrictions upon the use of property. We said there that the general scheme and plan of the subdivision is an important factor to be considered in determining the purpose and intent of the restriction.

However, in this case we do not have a general scheme or plan applicable to the instant ten acre tract. It has not been developed as such. But the 25 acre portion of the tract of which it was once a part has been developed into a purely single-family residential area. The deed from Hunsinger to the developers of the subdivision on the 25 acre tract contained substantially the same restriction now under consideration. Many owners of residences in the 25 acre tract intervened- in this action, asserting that they “understood” or “believed” that the ten acre tract was restricted to single-family residences unless the church group used it for church purposes. It is significant, however, that the conveyance for the 25 acre tract was prior to the conveyance for the ten acre tract involved iij this case.

The weight of authority is said to hold that a restriction to “residence” or “residential purposes,” of itself, does not prohibit multiple dwellings. See 14 A.L.R.2d 1403, § 9. In the same annotation, 14 A.L.R.2d 1376 et seq., the diversity of decisions in various jurisdictions is recorded. It is observed that the courts are in substantial agreement that a restriction to “residence” purposes, standing alone, does not prohibit multiple dwellings, but this unanimity disappears when the modifying term “a,” “one,” or “a single” is prefixed to the word “residence.” Op. cit, p. 1409.

The trial judge recognized the McMurtry rule, but expressed the opinion that the general intention of the grantor in the instant case, viewed in the broader focus of Brandon, supra, justifies an opposite result here. In reaching that conclusion he relied much on Arnofif v. Chase, 101 Ohio St. 331, 128 N.E. 319, and Schadt v. Brill, 173 Mich. 647, 139 N.W. 878, 45 L.R.A.,N.S., 726. We do not find those cases controlling.

The Arnofif case restriction was couched-in the words: “ * * * one house only on. each lot; all lots are sold for residence purposes only. * * * ” The Ohio court found that the quoted language, coupled with testimony concerning the general scheme of the subdivision, prohibited a four-story apartment building on two lots.

The Schadt case involved this restriction: “ * * * no store, factory or building, other than a dwelling house * * * shall be erected * * * premises shall be used for residence purposes only, * * * no dwelling shall be erected * * * at a cost of less than $5,000.” In Schadt there was testimony showing the intent of the developer to have an exclusive high grade residential section; in addition, there was evidence that the other lot owners in the development had rigidly obeyed the residential restrictions.

We must seek the intention of the grantor from the language used, considered in light of such factors as the general scheme of the subdivision. We may not substitute what the grantor may have intended to say for the plain import of what he said. Cf. Gibson v. Sellars, Ky., 252 S.W.2d 911. We believe it is proper to assume that draftsmen of restrictive covenants — including the covenant now before us — acquaint themselves with decisions of the court relating to their effect. Certainly, such draftsmen should be familiar with legal precedents touching upon the subject matter with which they deal; they should be entitled to place some reliance in past constructions by the courts. The McMurtry decision is old and well known; it was in full effect in 1955 when the instant restriction was drawn. We observed in McMurtry and in many other decisions that draftsmen of such covenants may readily use language expressly prohibiting the use of property. The failure to use such specific language warrants the view that it was a deliberate and intended. emission.

As noted, there is no general scheme ap- , plicable to the ten acre tract. We hold that the residents of the 25 acre tract cannot be considered beneficiaries of the subsequently written restriction of the ten acre tract. The scheme of the 25 acre tract subdivision affords no dispositive basis for construction of the restriction under consideration. Thus, we are left with language substantially identical with that used in McMurtry. We perceive no reason for departing from the rationale of McMurtry, as it applies to the facts of the case at bar.

The judgment is reversed for judgment ■consistent with this opinion.

      . Appellant had an option to purchase the - ten acre tract when this suit was filed; he accepted fee simple deed for the tract June 29, 1962.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Lawrence McCLELLAN, Appellant, v. CENTRAL CITY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    Paul R. Huddleston, Huddleston & Hud-dleston, Bowling Green, for appellant.
    B. R. Paxton, W. D. Bratcher, Dan Cor-nette, Jarvis & Cornette, Greenville, for appellee.
   WILLIAMS, Judge.

Central City, a fourth class city, proposed to annex 197 acres contiguous to its southeast boundary. A majority of the resident voters remonstrated. The circuit court upheld the annexation. The only issue on appeal is whether material injury would result to landowners within the limits of the proposed extension. KRS 81.220; Buchanan v. City of Dayton, Ky., 363 S.W.2d 92 (1962); City of Greenville v. Gossett, Ky., 355 S.W.2d 311 (1962); Mitchell v. Central City, Ky., 354 S.W.2d 281 (1962).

This proceeding is a sequel to Mitchell v. Central City, supra, wherein this Court held an annexation of 53 acres by Central City did not cause material injury to the landowners within the area. The burdens allegedly suffered by the remonstrants in this action are similar to those in the Mitchell case. The benefits which the city claims will be conferred on the territory are the same.

At the time this ex parte proceeding was instituted, Central City was comprised of 813 acres and the population in 1960 was 3,694. At present, the city contains 1080 acres resulting from 213 acres voluntarily annexed and the 53 acres annexed in the Mitchell case. Within the 197 acres now in controversy, there are 88 residences and businesses. Although the area includes some old inexpensive houses, many houses have been built during the last five years, some of them exceeding $20,000 in value. Some of the most desirable and expensive land for residential building is included in the area. Four subdivisions were being developed at the time of the suit. Little, if any, farm land was included in the area; the majority of the owners occupy land of an urban character. A cemetery of 30 acres is included in the proposed area of extension.

In 1960, the assessed valuation of taxable property in Central City was about $3,400,000. The city tax rate was 75 cents. The school tax of $1.60 included 10 cents to retire bonds. The city water company’s bonded indebtedness of $17,550 was to be paid in 1961; the cash.surplus of the company was $22,450. The city audit for the period ending June 30, 1960, indicated no fixed liabilities (excluding school and utilities revenue bonds) in the form of general obligation bonds. Street maintenance was financed by a car license tax and by a rebate from Kentucky Utilities Company based on the electricity used within the city.

Central City has four full time policemen, two full time firemen and fifteen volunteer firemen. It has a patrol car, rescue vehicle, and two fire trucks, all with two-way radio facilities. The fire insurance rates are substantially lower in Central City than in the 197-acre area of the proposed extension. The city plans to provide street lights, garbage collection, street maintenance, and planning and zoning protection to the residents of this area. A new sanitary sewerage system is planned for the city. The city parks, library and swimming pool will be available to these residents.

The remonstrants principally object to municipal taxation and regulation. They prefer the status quo. They complain of poor sewage disposal and inadequate fire protection by the city within its existing area. County police protection is said to be adequate. They seem to prefer being without street lights and planning and zoning. They fear street maintenance by the city will be worse than state and county maintenance. They feel the addition of this territory to that annexed in the Mitchell case will so overextend the city that no benefits will be realized. Thus, they reason, the annexation will only burden the residents with more taxes, without any corresponding benefits.

The applicable rules of law are well stated in the Buchanan, Mitchell and Gossett cases, supra. Under KRS 81.220, the burdens on landowners in an area to be annexed must be weighed against the benefits, and there “must be a substantial excess of burdens over benefits in order to defeat annexation.” City of Greenville v. Gossett, supra. Municipal taxation and regulation do not constitute material injury under KRS 81.220, but are burdens to be considered in relation to benefits. Although the appellant contends the city has the burden of proving that annexation will not materially injure the landowners of an area to be annexed, this Court has held that a showing of substantial benefits amounts to a negation of material injury which shifts to the remonstrants the burden of proving a “clear and obvious imposition of manifest and substantial burdens.” Buchanan v. City of Dayton, supra.

The services offered by the city should and will substantially benefit the inhabitants. There is no clear and obvious showing that the burdens substantially exceed the benefits to the landowners.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Mickey EISNER alias Marrianna Eisner, Appellant, v. Commonwealth of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.

      Louis W. Gorman, Covington, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague III, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of engaging in prostitution as denounced by KRS 436.075. The punishment imposed was a fine of $200 and six months in the county jail. The evidence introduced by the Commonwealth consisted primarily of the testimony of George O’Brien, who stated that he paid to have and did have sexual intercourse with appellant during the night of February 26, 1963, and of the testimony of officer Eifert, who stated that on March 22, 1963, appellant told him that she was a common whore but she was not plying her trade at that time.

Appellant was prosecuted by an information. RCr 6.02, 6.04. Appellant contends that this procedure is prohibited in this case by Section 12 of the Kentucky Constitution and by the Fifth Amendment to the Federal Constitution. The constitutional provisions upon which appellant relies have been interpreted to require an indictment by a grand jury when a person is placed on trial for a capital or otherwise infamous crime. Brede v. Powers, 263 U.S. 4, 44 S.Ct. 8, 68 L.Ed. 132; Lakes v. Goodloe, 195 Ky. 240, 242 S.W. 632; See also, Roberson’s New Kentucky Criminal Law and Procedure, Section 98, page 164.

The offense of which appellant was convicted is made a misdemeanor by KRS 431.060. Misdemeanors, generally, are not infamous offenses. They are, however, infamous if one convicted thereof is subject to an infamous punishment. See Wharton’s Criminal Law and Procedure, Volume 1, Section 31, pages 62-67.

The maximum punishment that may be inflicted for engaging in prostitution is a fine of $200 and confinement in the county jail for not more than one year. We have repeatedly held that statutory misdemeanors, such as the one here involved, do not belong to that class of crimes which are declared to be infamous. Baldwin v. Commonwealth, 314 Ky. 369, 235 S.W.2d 771; King v. City of Pineville, 222 Ky. 73, 299 S.W. 1082; Lakes v. Goodloe, 195 Ky. 240, 242 S.W. 632. Hence, proceeding in this case by information, rather than by indictment, does not violate Section 12 of the Kentucky Constitution.

The Supreme Court of the United States has held that, under the Federal Constitution, infamous crimes are those punishable by death or confinement at hard labor or in a penitentiary. Brede v. Powers, supra; Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909; Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; 42 C.J.S. Indictments and Informa-tions § 9b (1), p. 838. The maximum punishment that could be imposed upon appellant was a one-year jail sentence and a fine of $200 (ICRS 436.075(3)) and she could not be subjected to confinement at hard labor (KRS 431.140). Under these circumstances the offense charged was not an infamous one and there is no merit in the contention that the relied upon provision of the Federal Constitution was violated.

Appellant next contends that the criminal information does not comply with the requirements of RCr 6.10. We find no basis for this contention as the information •contained a caption setting forth the name -of the court, the names of the parties and •a statement of the specific offense with which the appellant was charged. It also ■stated the applicable statute which appellant was alleged to have violated and contained a formal conclusion required by Section 123 of the Kentucky Constitution.

Appellant next contends that O’Brien was an accomplice and hence the court erred ⅛ refusing to give an accomplice instruction. An accomplice has been defined as one who is subject to prosecution for the identical offense of which the accused is being tried. Warren v. Commonwealth, Ky., 333 S.W.2d 766; Head v. Commonwealth, Ky., 310 S.W.2d 285. It follows, therefore, that O’Brien was an accomplice only if he could be prosecuted for engaging in.prostitution.

The ordinary use of the term “engaging in prostitution” does not contemplate that a man can commit that act. See State v. Gardner, 174 Iowa 748, 156 N.W. 747, L.R.A.1916D 767; People v. Brandt, Cal.Super., 306 P.2d 1069. Moreover we observe that, while KRS 436.075(1) has generally defined “prostitution,” this subsection has not expressly extended the usual and ordinary definition of that word to include men. While O’Brien may be prosecuted for some other criminal offense, such as ■“fornication” (ICRS 436.070), we hold that he cannot be convicted of engaging in prostitution as that offense is presently denounced by KRS 436.075. Hence, he was not an accomplice and an accomplice instruction was not required to be given.

Appellant urges that the court erred in permitting officer Eifert to state that appellant told him she was a common whore but was not plying her trade at that time. We observe that appellant made this remark voluntarily and at a time when she was free on bail. The remark constitutes an admission against interest having probative value tending to establish appellant’s guilt of the offense charged. See, Glasscock v. Commonwealth, Ky., 307 S.W.2d 188. The court properly overruled appellant’s objection to this testimony.

Appellant next argues that she was the victim of an entrapment and therefore the conviction should not be upheld. This contention is based upon the fact that police officers assisted O’Brien’s cab driver in locating the trailer court where appellant was residing on the night of February 26, 1963. Ordinarily an entrapment is the conception and planning of an offense by a police officer and the procurement of it's commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer. See Roberson’s New Kentucky Criminal Law and Procedure, Section 35, pages 50-54; People v. West, 139 Cal.App.2d Supp. 923, 293 P.2d 166; State v. Burnette, 242 N.C. 164, 87 S.E.2d 191, 52 A.L.R.2d 1181; Bayouth. v. State, Okl.Cr., 294 P.2d 856. Entrapment is not available as a defense to a person who has the intent and design to commit a crime, originating in his own mind and who does in fact commit all the essential elements constituting it. It is clear from the testimony in the instant case that the police officers did not know of the specific trailer that O’Brien was looking for, nor did the officers attempt to induce O’Brien or the appellant to commit any offense. Under the circumstances shown in this case the claim of entrapment is frivolous.

Appellant further contends that her arrest was unlawful. The testimony shows that the appellant agreed to go with the officers to the police station where a warrant was obtained for her arrest. Appellant has not shown this testimony was untrue. Under the state of this record we are unwilling to say that her arrest was unlawful or that she was deprived of any of her constitutional rights.

Appellant finally argues that the court erred in instructing the jury in that the instructions were inflammatory. Even though appellant has failed to point out in what respect they are inflammatory, we have examined the instructions and find that this criticism is undeserved since they are merely couched in language that was necessary to cover the law of the case.

We conclude that appellant has had a fair trial.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Herbert C. HOWARD, Appellant, v. E. A. SANSON, Appellee.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    Rehearings Denied March 20, 1964.
    S. J. Stallings, Louisville, for appellant.
    Dougherty, Schilling & Gray, Louisville, for appellee.
   CULLEN, Commissioner.

In proceedings brought under KRS 418.-005 (which authorizes judgment on motion by a client against his attorney for money collected or property received), E. A. San-son was given judgment against Herbert C. Howard, an attorney, for $25,038.46. Also, under purported authority of KRS 30.190, judgment was entered suspending Howard from the practice of law for twelve months and until the judgment be paid. Howard has' appealed from both judgments.

Sanson was in the construction business. Howard became his attorney in 1960 and after a short time took over the handling of all of Sanson’s bookkeeping and accounting.

In 1961 Sanson obtained some contracts with the Middletown Water District, the total payments under which were in excess of $200,000. Howard was one of the commissioners of the water district, along with Joe T. Moore and R. J. Fanelli. After the first contract with the water district had been made, a corporation named Trinity Industries, Inc., was set up by Howard and Sanson. Thereafter, checks of the water district for payments under the contracts were first deposited in Sanson’s bank account, and then checks were drawn on that account by Howard, some of the checks being payable to Howard personally and the others to Trinity Industries. The latter checks were deposited in the Trinity Industries bank account. Howard drew some money personally from the Trinity Industries account and his secretary drew checks on that account payable to Moore and Fanelli. Over a period of several months Fanelli and Moore each received a little over $7,000, and Howard received around $11,000. The judgment in the instant action was for the recovery of those amounts.

The circuit court found in substance that there existed an arrangement among San-son, Howard, Moore and Fanelli for the payment of “kickbacks” to the latter three as water commissioners and that the payments to the three men were for an illegal purpose. Without detailing the evidence of the various facets of the dealings among the four men we shall say that the evidence supports the finding. However, the circuit court also found that the scheme was the brainchild of Howard and for that reason, and because of Howard’s superior education and his position as an attorney, he must be considered more culpable than Sanson, so as to render inapplicable the ordinary pari delicto rule under which the courts will not aid a wrongdoer to recover from a cotransgressor. With this finding we do not agree.

It may well be that Howard conceived the details of the scheme, but it appears that Sanson was a full participant in the evil purpose. While the circuit court said there was no showing that Sanson profited from the scheme, it seems obvious that he must have considered the obtaining and expediting of the contracts sufficiently advantageous to him to justify paying kickbacks. In our opinion the two men were in pari delicto, and their conduct involved such moral delinquency or turpitude as to compel the courts to refuse to entertain a proceeding by one against the other to determine their rights in the subject of their illegal transaction. See Munn v. Munn, Ky., 291 S.W.2d 560. The situation is simply that Sanson is trying to rescind an illegal deal that he knowingly entered into; it is not a matter of Howard’s taking undue advantage of his fellow wrongdoer.

The cases relied upon by the appellee, such as Clark v. Millsap, 197 Cal. 765, 242 P. 918, and Lane v. Gugsell, 113 Ind.App. 676, 47 N.E.2d 835, are not comparable. In those cases a fraudulent transaction was made with the original purpose of benefitting the client only, and the attorney later used the transaction as a means of making a personal profit. In the instant case the transaction from the very outset was for the benefit of both Sanson and Howard.

It is our conclusion that the trial court should have denied relief to Sanson by application of the pari delicto rule.

In passing, we express the opinion that KRS 418.005 was not intended to apply to a situation such as here presented. It cannot reasonably be considered that the money which was paid to Moore and Fanelli, and the money Howard took for himself, under the kickback scheme in which Sanson was a participant, was “money collected” by an attorney for his client within the meaning of the statute.

The judgment suspending Howard from the practice of law must fall with the money judgment, because it was predicated upon the existence of an enforceable claim for money by Sanson against Howard. Furthermore, it is our opinion that the instant case does not come within the scope of KRS 30.190, which in terms applies only to the situation where an attorney “collects the money of his client, an¿ * * * wrongfully neglects or refuses to pay it over * * Of course, the fact that the disciplinary measure provided for in KIRS 30.190 is not available does not mean that other appropriate disciplinary procedures may not be invoked by the proper authorities.

The judgments are reversed with directions to dismiss the proceedings.


text:
    BOARD OF EDUCATION OF NELSON COUNTY, Appellant, v. Katherine C. LAWRENCE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.
    Rehearing Denied March 20, 1964.
    Ben Fowler, Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., Frankfort, amicus curiae, Commonwealth of Kentucky.
    Robert M. Spragens, Lebanon, for ap-pellee.
    Lucian L. Johnson, Louisville, amicus curiae, Jefferson Co. Bd. of Education.
   CULLEN, Commissioner.

Katherine C. Lawrence had served as a principal of an elementary school in the Nelson County school system for seven years, and had acquired continuing service status. During the 1958-59 school year she received a base salary of $3,950 and additional compensation of $1,159 for her various added responsibilities as principal. For the 1959-60 school year she was removed by-order of the board of education from her position as principal and assigned to an ordinary teaching position, the additional compensation she had received as principal being eliminated. She brought action against the board to recover the difference in salary and judgment was entered in her favor. The board of education moved for -■an appeal to this court, which was granted.

In Williamson v. Cassady, 311 Ky. 666, 224 S.W.2d 934, Board of Education of Bath County v. Hogge, Ky., 239 S.W.2d 459, and Board of Education of Pike County v. Justice, Ky., 268 S.W.2d 648, this Court held that the position of a teacher holding a continuing service contract could be changed but that, by virtue of the provisions of KRS 161.760, her salary could not be reduced unless as a part of a uniform plan affecting the entire district. The primary contention of the appellant board of education in the instant case is that KRS 161.760 has been repealed by implication, or as appellant’s counsel says, “rendered obsolete,” by the Minimum Foundation Law, particularly KRS 157.320(13), (14) and KRS 157.350(3). The latter sections require a school district, in order to participate in the distribution of funds under the Minimum Foundation Program, to pay all teachers on the basis of a “single salary schedule,” which is based on “training, experience and such other factors as the State Board of Education may approve.”

Under the Minimum Foundation Program all teachers having the same qualifications are required to be payed the same base salary. However, the law recognizes that teachers given extra responsibilities or duties, such as those of a principal, may be allowed extra compensation therefor. The appellant board of education argues that by reason of the “single salary” provisions of the Minimum Foundation Law, “salary” as used in KRS 161.760 must now be construed as meaning base salary, and that to permit a teacher to continue to draw compensation for extra duties when she no longer is performing those duties would violate the “single salary” requirement.

We find no merit in the argument. The Minimum Foundation Law provides that the single salary schedule shall be based on training, experience and “other factors.” KRS 161.760 says in effect that if a teacher having continuing service status has been entrusted with a position of extra responsibility which carries extra compensation above the base salary, she shall be deemed to possess such experience, training and other qualifications as to command the higher pay, and is entitled to continue to receive the higher compensation by reason of such qualifications, without regard to whether she continues to be assigned extra duties.

The plain fact is that the tenure law states a clear policy that a teacher with a continuing service status, once promoted in salary, cannot be demoted in salary without such cause as would justify termination of her contract, and elimination of duties or responsibilities cannot be used as a device for demotion in salary. There is nothing in the Minimum Foundation Law that evinces a legislative intent to depart from this policy. Certainly this Court could not base a finding of repeal by implication on such a remote implication as is here argued.

The appellant, and the Board of Education of Jefferson County as amicus curiae, complain of the serious administrative problems that grow out of this Court’s interpretation of the tenure law. It appears to us, however, that the complaints are in reality addressed to the very existence of the tenure law, with which the school administrators seem to be most unhappy. Obviously any law that guarantees tenure rights to employes will create administrative problems for the employer, but that is not a ground upon which the courts can invalidate the law. The plain meaning of a law cannot be ignored by the courts simply because another meaning might be considered to state a better policy.

The Attorney General, as amicus curiae, presents the argument that because the school administrators, for a number of years, have persisted in interpreting the tenure law exactly opposite to the interpretation this Court repeatedly has given it, the administrative interpretation should prevail under the doctrine of contemporaneous construction. It strikes us that this would create a doctrine of contemptuous construction instead of contemporaneous construction.

The Attorney General further maintains that to permit a teacher to continue to be paid extra compensation, initially allowed for extra duties, after the extra duties have been eliminated, would amount to an unconstitutional diversion of school funds. The answer to this, as hereinbefore stated, is that the continuation of the extra pay is not for extra duties, but for extra qualifications.

The judgment is affirmed.


author: MOREMEN, Judge. PALMORE, Judge

text:
    Troy MULLINS and Marion Martin, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1964.
    John Y. Brown, Lexington, for appellants.
    John B. Breckinridge, Atty. Gen., Holly Conley, Commonwealth’s Atty., Prestons-burg, Ray Corns, Asst. Atty. Gen., for ap-pellee.
   MOREMEN, Judge.

Appellants, Troy Mullins and Marion Martin, were convicted in the Floyd Circuit Court of voluntary manslaughter and each was sentenced to confinement of two years and one day in the penitentiary. Both men were peace officers. They killed John May at his home where they had gone for the purpose of making an arrest under a warrant. These are the events which led up to the fatal shot:

John May had been in trouble resulting from the alleged illegal sale of intoxicating liquors. On the 25th of August, 1962, he kidnapped Deputy Sheriff Willie Johnson, and a purported witness, William Younce. He held them at gunpoint for some time, tied them with rope and finally, under the threat of death, forced them to sign a sworn statement before a deputy county clerk, whom he had summo'ned. The substance of the statement was that they knew nothing about John May’s having been in the illicit whiskey business. After he obtained the affidavit he released the two men. Later, they appeared before the police judge of Wayland and obtained a warrant for May’s arrest. The judge of that court requested appellants, Troy Mullins and Marion Martin, to make the arrest. This apparently was done because Troy Mullins, an experienced police officer, had been a friend of John May for many years and it was believed that May, who evidently was in a disturbed mental condition, would not resist arrest by Mullins. It was shown that members of the state police and the sheriff’s office were also searching for May. After going to Drift, Ky., where appellants had seen May earlier in the day, they went to his home on Cow Creek in Floyd County, where the deceased lived and had been living for some time with a woman by the name of Katherine Martin. There is a contrariety of evidence as to what happened at that time. The officers testified that they entered the room where May was seated at a table eating dinner, with a gun beside his plate. May jumped from his seat, grabbed his gun, approached the officers in a crouched position, fired and hit Troy Mullins. May was so close to him that the discharge burned Mullins’ shirt. The bullet pierced Mullins’ shoulder and the powder burned his hand. Thereupon Mullins fired, as did his companion Officer Martin. Aside from the appellants and the decedent, Katherine Martin was the only eyewitness to the homicide. She testified, in substance that appellants walked into the room and shot decedent while he was still seated in his chair.

The first trial resulted in a hung jury. After the conclusion of the second trial and the conviction, Katherine Martin left Kentucky and went to Columbus, Ohio. From there she sent for the Commonwealth’s Attorney and gave him a sworn statement which, in effect, stated that she perjured herself at the trial and that the testimony given by the officers was a true account of what actually took place. Later, counsel for appellants, upon notice, took the deposition of Katherine Martin in which she stated that during the time of the trials she was under considerable coercion from members of the decedent’s family, in that they had threatened that her four illegitimate children would be taken from the relief roll.

Appellants moved for a new trial under CrR 10.02 and 10.06 on the ground of newly discovered evidence. The court overruled the motion.

On this appeal the attorney general’s office briefed all points raised by appellants in their brief and resisted reversal of the case. However, in response to a motion for an oral argument, it was stated that the attorney for the Commonwealth could not escape the feeling that in all fairness a new trial should be granted. The response stated :

“It is the duty of this office, as we visualize it, to insure that justice is meted to each and everyone alike. By the same token, it is our responsibility to see that injustice is not done to anyone. It is for this reason that we respectfully submit that this case should be remanded to the Trial Court and tried anew. We trust that our frankness in this matter will meet with the approval of the Bench and the Bar.”

This Court has not liberally endorsed the granting of new trials in cases where the newly discovered evidence is only impeaching or cumulative in its nature. However, when it appears that there might be a miscarriage of justice if a new trial were not granted, the Court has shown no hesitancy in granting one.

In McGregor v. Commonwealth, Ky., 253 S.W.2d 624, this is written:

“We recognize the general rule to be that a new trial will not be granted for newly discovered evidence which is only impeaching in its nature. But the rule should be cautiously applied and when the discovered evidence is of such compelling weight that it probably would have induced the jury to reach a different verdict, a new trial will be granted. Tyree v. Commonwealth, 160 Ky. 706, 170 S.W. 33; Hensley v. Commonwealth, 241 Ky. 367, 43 S.W.2d 996.”

Similarly in Shepherd v. Commonwealth, 267 Ky. 195, 101 S.W.2d 918, it was said:

“Ordinarily, a new trial will not be granted for newly discovered evidence impeaching in its nature or cumulative. Yet, when it seriously affects the testimony of the sole or all of the principal witnesses upon whose testimony it is manifest the conviction was had, and it is reasonably certain that had the evidence been heard, it would probably have induced a different conclusion by the jury, the recognized exception to the rule — always to be administered with caution — becomes operative. Hensley v. Commonwealth, 241 Ky. 367, 43 S.W. (2d) 996; Elkins v. Commonwealth, 245 Ky. 199, 53 S.W. (2d) 358.”

The new evidence offered in this case is of such compelling weight that we are convinced if it had not been for the false testimony of Katherine Martin, a jury of fair minded people probably would be constrained to return a verdict of not guilty.

Judgment reversed.

PALMORE, Judge

(concurring).

I concur in the result, but only because of the position taken by the Attorney General. Of itself, the about-face of the witness, Katherine Martin, does not satisfy me that the judgment should be vacated. I cannot join in encouraging perjury.

STEWART, J., concurs in this position.


author: PALMORE, Judge.

text:
    Vincent J. HARGADON, Administrator of the Estate of Arthur Durward Frost, Appellant, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 6, 1963.
    As Modified on Denial of Rehearing March 13, 1964.

      Michael M. Hellmann, Herman E. Frick, Louisville, for appellant.
    Robert P. Hobson, Woodward, Hobson & Fulton, H. G. Breetz, M. D. Jones, Louisville, for appellees.
   PALMORE, Judge.

Arthur Durward Frost was killed when a truck he was driving was hit by a southbound railroad train at the intersection of South Park Road (Kentucky Highway 1020) and the L. & N. tracks about a half mile south of the Bullitt-Jefferson County line. This action by the administrator of his estate against the railroad company for wrongful death resulted in a directed verdict for the defendant at the close of the plaintiff’s evidence.

The principal question is whether Frost was contributorily negligent as a matter of law.

The crossing where the accident occurred is in a rural, sparsely settled area several miles south of Louisville. The topography is practically flat, with no buildings, trees or natural obstructions to impair the view of the railroad from the highway and vice versa. Proceeding from north to south the two run almost parallel, 60 to 70 feet apart, highway on the east and railroad on the west, for at least a quarter of a mile, and then the highway turns abruptly west by southwestward and crosses the double tracks of the railroad at what appears from the photographs to be an angle of about 70 degrees, so that it would be necessary for a southbound traveler on the highway, in making the turn and coming up to the crossing, to look more than 90 degrees to his right in order to have an unlimited lookout up the tracks to the north. The only fixed obstacles that might tend to interfere with such a view are a double row of telephone poles running along the strip between the highway and the tracks, a railroad cross-arm warning at the right margin of the highway several feet short of the crossing and a semaphore light post at the east edge of the tracks a short distance to the north. It is the plaintiff’s theory that these vertical structures created a momentary “blind spot” and thus contributed to making the intersection an extrahazardous crossing.

Frost was employed by the Ford Motor Company as a dump truck driver. On the day of the accident he was hauling a load of waste material southward from the Ford plant in Jefferson County to a disposal area in Bullitt County. Having done the same thing three times a day for the past three years, he was familiar with the crossing and with whatever limitations were imposed on his northward view of the tracks by the attendant physical circumstances, including the fact that because the truck bed was higher than the cab he was dependent on his side mirrors for a rear view. According to the testimony of a witness driving immediately behind him, Frost was traveling about 40 m. p. h. until he reached the curve, when his brake lights came on and the truck slowed to a speed of “two or three miles an hour.” The witness already had heard the whistle of the train, which evidently was approaching at a faster rate, and “took it for granted that the truck was going to stop.” However, “the tail lights of the truck went off and the truck went on into the track” and was struck on its right side as it crossed the west or south-bound set of tracks.

The accident happened at a little after 8:00 A.M. on a clear, cold October day. Inspection of Frost’s truck after the collision disclosed that it was in low gear and that the glass windows on both sides had been closed. It was equipped with rear view mirrors on each side of the cab.

There was some equivocal testimony, the probative value of which we need not assess, to the effect that the train whistle may not have been blowing, or its bell ringing, continuously for the full distance of 50 rods as required by KRS 277.190. However, the driver of the car following just behind Frost’s truck heard the whistle well before these two vehicles reached the curve, and the driver of another car 50 feet farther back also heard it but, as he intended to turn left into a private lane before reaching the crossing, was not paying close attention and was not sure how far up the track the train was when he first heard the whistle. On the question of how much audible warning was given by the train, this was the most favorable evidence introduced in behalf of the plaintiff. All witnesses agreed that the whistle was being sounded as the engine passed through the highway and hit the truck.

Until the last 25 years or so, if there was evidence that the railroad had not complied strictly with KRS 277.190 (then Ky.Stat. § 786), the traveler struck by a train at a public crossing could not be held contributorily negligent as a matter of law unless there was positive proof that he had entered the crossing with knowledge of the train’s approach. See, for example, Cox’s Adm’r v. Cincinnati, N. O. & T. P. Ry. Co., 238 Ky. 312, 37 S.W.2d 859, 862 (1931). The rule was cryptically stated in Cincinnati, N. O. & T. P. Ry. Co. v. Fox, 269 Ky. 242, 106 S.W.2d 973, 975 (1937), as follows:

“If one is injured at a public crossing and there is substantial evidence that the trainmen failed to keep a lookout or to give the statutory signals, the case is one for the jury.”

Thus construed, the effect of the statute (KRS 277.190) was that a full compliance with its requirements was necessary in order for it to he said as a matter of law that the ordinarily prudent traveler on the highway had enough warning to keep him off the railroad track. In recent years, however, although the statute remains the same, its force and effect have been gradually watered down to the point that this relationship to the question of contributory negligence has been severed.

The process of transition was accomplished through enlargement of the exception existing when there was proof that the traveler actually knew of the train’s approach. See Louisville & N. R. Co. v. Mitchell’s Adm’x, 276 Ky. 671, 124 S.W.2d 1025 (1939) specifically relying on that exception. In Louisville & N. R. Co. v. Brock’s Adm’r, 281 Ky. 240, 135 S.W.2d 898 (1940), it was held that such knowledge could be conclusively established “by circumstances as well as by direct testimony,” and that under the facts of that case “the circumstances described by the eyewitnesses to the accident point unerringly to the conclusion that decedent was bound to know of the approach of the train.” Theretofore, something more than circumstantial proof of such knowledge had been required. Cox’s Adm’r v. Cincinnati, N. O. & T. P. Ry. Co., 238 Ky. 312, 37 S.W.2d 859, 862 (1931). So strong, indeed, was this policy that for a time there was occasional reference to a “presumption” of non-negligence, the inaccuracy of which has been pointed out in the recent case of Louisville & Nashville Railroad Co. v. Fisher, Ky., 357 S.W.2d 683, 688 (1962). But the law today is the same in railroad cases as it is in other actions. That the railroad failed to give the warnings required either by statute or by the common law does not necessarily mean that there must therefore be a jury question as to whether, under all the circumstances of the case, there was enough warning to alert the ordinarily prudent traveler approaching on the intersecting thoroughfare. Nashville, C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493 (1947); McCarter v. Louisville & Nashville R. Co., 314 Ky. 697, 236 S.W.2d 933 (1951); Hunt’s Adm’r v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705 (1952). Louisville & N. R. Co. v. Troutman, Ky., 351 S.W.2d 516 (1961).

Upon a careful reconsideration of this position we judge it to be sound. The duties required of the railroad, especially by statute, in many instances may be far above what actually would be necessary for the protection of ordinarily prudent members of the traveling public. Like a bridge, they should be superabundantly designed to prevent the highly improbable as well as the probable, to protect the negligent as well as the careful. Therefore, what the law demands of the railroad cannot be decisive, or even materially helpful, in determining what the ordinarily prudent man in the position of the traveler would or would not do at a particular crossing at a particular time. This can be judged fairly only if it is judged separately, and on the same basis as any other case of contributory negligence.

The contention that the evidence was not conclusive on the question of Frost’s own negligence is pitched mainly on the theory that the crossing was extra hazardous. The rationale of this theory is that there are some circumstances under which the ordinarily prudent person would not be sufficiently alerted by “the usual and statutory signals” and would not appreciate the degree of danger involved unless given greater warning of the actual approach of a train. See Illinois Central Railroad Company v. House, Ky., 352 S.W.2d 819 (1961), and Illinois Central Railroad Co. v. Arms, Ky., 361 S.W.2d 506 (1962).

In addition to the heretofore mentioned physical circumstances contributing to the hazards of this particular crossing, the plaintiff introduced evidence of a traffic count showing in effect that in a 12-hour day it normally would be used by something over 1,000 vehicles on the highway, and that Ys of the 500 or so drivers going in the same direction Frost was driving at the time of the accident neither stopped nor reduced their speed in approaching the intersection.

Evidence of frequent and constant use of a crossing by the traveling public is competent on the question of whether it was extraordinarily dangerous. Cox’s Adm’r v. Cincinnati, N. O. & T. P. Ry. Co., 238 Ky. 312, 37 S.W.2d 859 (1931). Cf. Illinois Central Railroad Co. v. House, Ky., 352 S.W.2d 819 (1962). Perhaps this is because the doctrine seems originally to have applied “to dangerous crossings in incorporated towns and populous communities adjacent to cities.” Cf. Barksdale’s Adm’r v. Southern Ry. Co., 199 Ky. 592, 251 S.W. 656, 659 (1923); Southern Ry. Co. v. Barbour, 21 K.L.R. 226, 51 S.W. 159 (1899). But regardless of the amount of traffic, a review of the many decisions of this court in which the principle has been considered convinces us that it does not apply unless there is a real and substantial obstruction to sight or hearing. The latter must always be the major consideration. Moreover, the volume of traffic is a factor addressed primarily to the railroad’s rather than the highway traveler’s duties. In fact, the ultimate answer to the “extra-hazardous” argument in this case is that the principle simply does not apply when the inquiry is confined exclusively to whether the highway traveler was contributorily negligent, because the hazards of the crossing, whatever they are and whatever their degree, are necessarily embraced in that inquiry anyway.

So we come back to the basic question: Under all the facts and circumstances of this particular case, was there room for reasonable, fair-minded men to differ on the question of whether Frost exercised ordinary care? We think the answer is perfectly obvious, and that the trial court’s judgment was correct. The photographs demonstrate the absence of any real obstructions to the sight or hearing of a driver willing' to make the slightest effort to see and hear. By far and away the major restrictions on Frost’s ability to see and hear were imposed by the carapace of the truck he was driving. These were limitations of which he was fully cognizant. He was familiar as well with the physical characteristics of the crossing itself. The elementary rule that known hazards exact greater care from those who are exposed to them springs from the well-recognized fact of life that any ordinarily prudent person will exercise a caution commensurate with what he knows to be the situation confronting him.

It is further contended that the evidence warranted submission of liability to the jury on the theory of last clear chance. However, the facts of the case cited in support, Louisville & Nashville Railroad Co. v. Worthington, Ky., 354 S.W.2d 755 (1962), do not afford a valid comparison. The testimony in that trial justified a finding that the engineer could have stopped the train after seeing the automobile stalled or in difficulty on the track. Here, the engineer had no reason to anticipate that Frost, after slowing his truck to a crawl, would then attempt a crossing in the very teeth of the onrushing train, and, when he did attempt it, neither time nor distance was left in which anything could have been done to avoid the accident. If there was ever a case in which the last clear chance doctrine could not possibly apply, this is it.

During the trial the court excluded two items of testimony that are claimed to have been competent. One was an opinion by a state police officer, qualified as an expert on traffic safety, that the railroad crossing was “a very hazardous intersection,” more dangerous than normal. Counsel recognize that this type of testimony was held inadmissible in Downing v. Drybrough, Ky., 249 S.W.2d 711 (1952), but express the hope that we are ready to recant, fulfilling Wigmore’s prophecy that “the opinion rule will in substance disappear.” Wigmore on Evidence (3d ed.), § 1929. Our uneasy experience, however, with the expert testimony of medical and real estate valuation witnesses leads us to suspect that if there should be a change in policy regarding opinion evidence it might be wiser to restrict than to enlarge its scope. Certainly we are not as yet prepared to let traffic experts thus invade the province of the jury.

The other item was a proffered showing that at another crossing half a mile north of the one involved in this case, leading to the L. & N. Golf Club, the railroad company maintained gates and warning bells and lights, suggesting that if such a standard of care was observed for the pro-* tection of those entering its private golf club it should also have been exercised toward the general public using the crossing on South Park Road. Wigmore (§ 461) again is called up in support, but we doubt if he had this situation in mind. Red carpet treatment at one place is neither evidence nor a measure of ordinary care at another.

Even if competent, the two types of evidence just discussed would relate only to the duties of the railroad company, and exclusion of the testimony could not have been prejudicial to the plaintiff’s case on the decisive issue of contributory negligence.

The judgment is affirmed.

      . This witness approximated the train’s speed at 60 m. p. h.

      . See also Louisville & N. R. Co. v. Jackson, 286 Ky. 595, 151 S.W.2d 386 (1941), which did not involve a public crossing, but in which the railroad’s possible failure to observe common law duties was eliminated on the theory that the victim’s negligence was the proximate cause. Tliis concept has been followed in Hunt’s Adm’r v. Chesapeake & O. Ry. Co., Ky., 254 S.W.2d 705 (1952).

      . Cf. Piersall’s Adm’r v. Chesapeake & O. Ry. Co., 180 Ky. 659, 203 S.W. 551, 553 (1918).

      . Both involving-crossings in the general area outlying Louisville, which were held not to be so unusually dangerous as to warrant special instructions on that theory.

      . Most automobiles, of course, afford the driver a better peripheral view than did Frost’s truck. Otherwise, it would be hard to resist the inference that % of the drivers on this highway are negligent.


author: STONE, Judge.

text:
    Chester ALLEN and Blanche Allen, Plaintiffs-Respondents, v. O. L. SMITH and Hattie Smith, Defendants-Appellants.
    No. 8201.
    Springfield Court of Appeals. Missouri.
    Feb. 24, 1964.

      Powell, Jones & Ringer, Dexter, for defendants-appellants.
    John A. Casey, Poplar Bluff, for plaintiffs-respondents.
   STONE, Judge.

This is an appeal by defendants from the judgment in Case No. 15,620 (in the Circuit Court of Butler County) reforming the judgment theretofore entered in Case No. 14,851 (in the same court), which had established, pursuant to a written stipulation of the parties, a permanent easement for a private road over and across defendants’ land.

Defendants’ farm of more than 800 acres is about 12½ miles northwest of Poplar Bluff and lies on both sides of U. S. Highway 60, which runs generally east and west through the farm. Plaintiffs’ tract of approximately 63 acres lies south of Highway 60, separated from the highway and almost enclosed (i. e., bounded on the west, north and east, and on half of the south side) by defendants’ land. Prior to 1953, plaintiffs reached their tract from the north over a road identified in the record as, and hereinafter called, “the old log road.” Plaintiff Chester Allen said that he had traveled the old log road “ever since I can remember” and “I can remember it in ’22.” About 1953, and thus about the time Highway 60 was relocated and constructed along its present route, defendants so fenced their land that thereafter plaintiffs could not use the old log road and were excluded from their tract until judgment was entered in Case No. 14,851 on September 27, 1960. Plaintiffs resided on a farm about one mile distant and, during a major part of the period from 1953 to 1960, “were gone” (apparently from the neighborhood) so, after they were fenced out, they made no serious attempt to reach their tract until they instituted Case No. 14,851 against defendants.

The pleadings in Case No. 14,851 are not before us; but, whatever may have been the precise issues joined thereby, the parties by their respective counsel of record executed a written “stipulation for judgment” which included the form of judgment thereafter approved and entered of record by and in the circuit court. In that judgment, the court found (a) that plaintiffs were the owners of the 63-acre tract therein described, (b) that “there [was] no public road passing through or alongside said property owned by plaintiffs,” (c) that defendants owned the land lying between plaintiffs’ tract and Highway 60, (d) that “plaintiffs [needed] a means of ingress and egress,” and (e) that “same should be established across” defendants’ land (described in the stipulation) upon “certain conditions,” to wit, (1) that plaintiffs should pay $250 to defendants and the court costs, and (2) that two cattle guards, “one at the highway entrance' to said easement and the other at the point where said easement” joined plaintiffs’ tract, should be constructed by plaintiffs and thereafter maintained by them and their successors in title. Upon those findings, it was adjudged that defendants have judgment against plaintiffs for $250 and costs and “that plaintiffs shall have a permanent easement to run with their land as described in this judgment over and across the lands of the defendants as described in this judgment and in particular, over and across a strip of land thirty feet wide lying immediately west of and adjacent to a line beginning at a point sixty feet south of the northwest corner of [plaintiffs’ 63-acre tract] and running thence north along and with the west line of the east half of the southwest quarter of said Section 5 to the southerly right of way line of U. S. Highway 60 (as it now is) to termination, provided that at all times” the two cattle guards should be maintained at the locations aforesaid. (All emphasis herein is ours.)

Thus, the permanent easement was imposed upon a strip (hereinafter referred to as the 30-foot easement strip), which was 30 feet in width, east and west, and ran north and south “immediately west of and adjacent to” a north-and-south quarter-section line from the northwest corner of ■plaintiffs’ 63-acre tract to Highway 60, a -distance not stated in the judgment hut shown on a plat in evidence in this case as approximately 600 feet. Plaintiffs insisted that, when they read the stipulation for judgment in Case No. 14,851, they understood that it described the course of the old log road and that they were to use that road between their tract and the highway.

The cast-and-west boundary line between defendants’ land on the north and plaintiffs’ tract on the south had been run and thus the northwest corner of plaintiffs’ tract had been established by the county surveyor (employed by defendants) in 1958, but the north-and-south quarter-section line, “immediately west of and adjacent to” which the 30-foot easement strip lay, had not been run prior to entry of judgment in Case No. 14,851 on September 27, 1960. So, when the parties stipulated and judgment was entered in Case No. 14,851, none of them knew ■definitely where the north-and-south quarter-section line crossed Highway 60 or ■whether a vehicular entrance built on the ■south side of Highway 60 at the time of its relocation and construction was within the 30-foot easement strip described in the judgment.

Upon entry of judgment in Case No. 14,-.851, plaintiffs began to travel across defendants’ land using (so they said upon trial ■of this case) the old log road which was '“well-defined” and ran between two old fence rows “straight north” from the northwest corner of plaintiffs’ tract to a point some 50 to 60 feet south of the highway right of way where it veered slightly to the east and ran to the highway entrance. Upon trial, plaintiffs conceded that the old log road “wasn’t perfectly straight” and that it curved at the north end, but they insisted that, prior to August 1961 when John H. Greason, the county surveyor (then employed by defendants), had run the north- and-south quarter-section line, they had thought that the old log road, for the entire distance from their tract to the highway, was within the 30-foot easement strip.

In August 1961, Greason ran the north- and-south quarter-section line and then found that the road being used by plaintiffs (he shied from referring to it as “the old log road”) was west of the quarter-section line (and thus within the 30-foot easement strip) until “it approached Highway 60” where it veered to the east of the quarter-section line (and thus without the 30-foot easement strip) as it ran to the highway entrance. Greason fixed the middle of the highway entrance as 36 feet east of the quarter-section line; and, although he did not give the width of the entrance, he said that no part of it was west of the quarter-section line. Emboldened by this survey, defendants fenced and closed the entrance on August 28, 1961. This suit followed on September 19, 1961.

Plaintiffs’ second amended petition, upon which the case at bar was tried, alleged in substance that, when the stipulation for judgment in Case No. 14,851 was executed, it was the agreement of all parties that the stipulation described the old log road over which plaintiffs were to have an easement, but that, when defendants subsequently procured a survey of the 30-foot easement strip, it was found “that the judgment entered did not describe the road location as agreed upon by the parties.” Plaintiffs prayed for reformation of the judgment in Case No. 14,851 so that the easement would “follow the course of the old log road” and would “be in the location agreed upon by plaintiffs and defendants,” and for a permanent injunction restraining defendants from interfering with plaintiffs’ use and enjoyment of the easement (as reformed) over the old log road. Defendants’ answer admitted execution of the stipulation and entry of judgment pursuant thereto, averred that they had not interfered with or objected to plaintiffs’ use of the 30-foot easement strip, and denied the other allegations in the petition.

Following trial on the merits, the court entered its judgment and decree in this case (No. 15,620) finding “that the description * * * in the stipulation for judgment in Case No. 14,851 was erroneous and that it was the intention of both parties that said stipulation for judgment should permit plaintiffs the use of the so-called old log road * * * and that said old log road is the well-defined road running over and across defendants’ land and connecting to the highway approach for Highivay No. 60,” and “that the written stipulation for judgment as entered into in Case No. 14,851 did not express the intentions of plaintiffs or defendants.” Upon those findings, the court decree “that the stipulation for judgment and judgment entered in accordance therewith in Case No. 14,851 as said judgment pertains to the location of the road which plaintiffs were to receive the use of over and across defendants’ property, should be amended and reformed so as to read * * * that said location of said road shall be and follovu the course of the old log road running over and across [defendants’] premises in the approximate vicinity of the west line of the East Half (E1/2) of the Southwest Quarter (SW]/⅛) of Section Five (5), Township Twenty-five (25) North, Range Five (5) East, in Butler County, Missouri, connecting on the south end to the land of plaintiffs'] and connecting oh the north end to the highway approach as now located to U. S. Highway No. 60.” The decree also enjoined defendants “from interfering with plaintiffs’ use of the aforesaid described road” and taxed the costs against defendants.

Our first responsibility is to consider and determine our appellate jurisdiction regardless of whether it has been challenged. Domyan v. Dornin, Mo.App., 348 S.W.2d 360, 361; Hammonds v. Hammonds, Mo.App., 289 S.W.2d 903, 904(1), and cases there cited. Since an easement is an “interest” in land and involves the title [Dalton v. Johnson, Mo.App., 319 S.W.2d 66, 67(1), and authorities there cited], and since our Supreme Court is given “exclusive appellate jurisdiction in all cases involving * * * the title to real estate” [Art. V, Sec. 3, Const, of Mo., 2 V.A.M.S.], the situation presented on this appeal casts a heavy jurisdictional shadow. There is no doubt but that an appeal in an action to establish an easement [Rosenbloom v. Grossman, Mo., 351 S.W.2d 735, 736(1); Missouri State Oil Co. v. Fuse, 360 Mo. 1022, 232 S.W.2d 501, 503(1); Mueller v. Larison, Mo.App., 347 S.W.2d 446] or in an action to set aside an easement [Peters v. Platte Pipe Line Co., Mo., 305 S.W.2d 413, 414(1); Robb v. N. W. Electric Power Coop., Mo., 297 S.W.2d 385, 386(1) ] must go to our Supreme Court. And if the judgment in Case No. 15,620, from which defendants here appeal, had vacated the prior judgment in Case No. 14,851, certainly we would have had no jurisdiction. Juede v. Sims, 147 Mo.App. 65, 126 S.W. 251; id., 258 Mo. 26, 166 S.W. 1048. But, as counsel point out, defendants admit that plaintiffs have an easement (as adjudged in Case No. 14,851) so there is no “controversy involving the title to an easement” [Billings v. Paine, Mo., 319 S.W.2d 653, 657], and the only dispute is as to the location of the easement. Entertaining the uncertain view that, in these circumstances, the present-day current of authoritative judicial opinion would lodge this appeal with us, we retain jurisdiction. Cf. City of Marshfield v. Haggard, Mo., 300 S.W.2d 419; Ashauer v. Peer, 346 Mo. 218, 139 S.W.2d 991.

It is apparent that in the instant case the court decreed reformation of the prior judgment in Case No. 14,851 on the ground of mutual mistake of the parties in describing, in the stipulation upon which judgment was entered, the route over which plaintiffs were to have an easement. “Fraud, accident, and mistake are three great heads of equity jurisprudence * * *” [National Surety Co. v. State Bank of Humboldt, 8 Cir., 120 F. 593, 597, 61 L.R.A. 394; Chouteau v. City of St. Louis, Mo.App., 131 S.W.2d 902, 904]; and it is a familiar principle that upon timely application equity will relieve against a judgment for extrinsic fraud, accident or excusable mistake. We already have noted plaintiffs’ testimony that, when they agreed to the stipulation in Case No. 14,851, they understood that it described the course of the old log road and that they were to have the use of that road across defendants’ land. But the general rule is that equity usually will entertain a bill to reform a contract (or, as here, a stipulation and a judgment entered pursuant thereto) only if the mistake is mutual, i. e., if the contract (or stipulation) has been written “in terms which violate the understanding of both parties” [Wilhite v. Wilhite, 284 Mo. 387, 393-394, 224 S.W. 448, 449(2); Baumhoff v. Lochhaas, Mo., 253 S.W. 762, 764(1) ] or, otherwise put, if it appears “that both [parties] have done what neither intended.” Walters v. Tucker, Mo., 308 S.W.2d 673, 675; State ex rel. State Highway Com’n v. Schwabe, Mo., 335 S.W.2d 15, 19; Allan v. Allan, Mo., 364 S.W.2d 578, 581. And defendants’ counsel insist that, regardless of whether plaintiffs might have been mistaken in their understanding of the course described in the stipulation and incorporated in the judgment in Case No. 14,851, there was no evidence that defendants labored under any such mistaken understanding.

Turning again to the record, we find this relevant evidence. John A. Casey, plaintiffs’ attorney in Case No. 14,851 (and also in this one), testified that he had numerous settlement conferences with Mr. H.-, defendants’ attorney in Case No. 14,851 (but not in this one) ; that, “in those negotiations, * * * there was no dispute concerning the location of the road” — “it was agreeable to Mr. H-and myself that the road be located upon the same land as the old log road we both knew — ”; that “there was never any dissension” about location of the private road along the course of the old log road; that all of the difficulty “was over the amount of money” to be paid to defendants; and that the stipulation for judgment was prepared by Mr. H-. Witness Casey’s statements stand undisputed, for Mr. H-was not called as a witness.

Certain portions of the testimony of defendant O. L. Smith are significant and revealing. In the course of his direct examination, Smith said that “my attorney told me” that, in negotiations for settlement of Case No. 14,851, plaintiffs at first wanted the easement strip “to straddle” the north- and-south quarter-section line (i. e., with 15 feet on each side of the line) but “I wanted the road on the west of that line so it would hit the old road.” Again, Smith stated that “I didn’t want to straddle the [north-and-south quarter-section] line because when you put a road where your corners is [sic], you soon lose the corners and don’t know where they are, and putting it west of that line, put it in the old road.” When asked on cross-examination whether “you knew that if he [plaintiff Chester] was using that [old] road, he’d have to use that approach [the existing entrance] to get out” on the highway, Smith quickly agreed, “yes, sir.”

Prior to defendant O. L. Smith’s testimony, it already had been shown by other witnesses that, to permit vehicular travel to and from Highway 60 over the north end of the 30-foot casement strip, plaintiffs would be required to fill a “ravine” some 15 to 20 feet deep (just south of the highway) and to build another highway entrance (if appropriate governmental permission therefor could be obtained), all at a cost which a contractor consulted by plaintiffs estimated at $450 and which Smith conceded would be “a right smart” although he thought “it wouldn’t cost me that much.” With this evidence in the record, Smith was asked on cross-examination whether it was his “intention,” when the stipulation for judgment in Case No. 14,851 was executed, to force plaintiffs to make another fill and build their own highway entrance. His illuminating reply was: “Well, when he [plaintiff Chester] wanted to straddle that [north-and-south quarter-section] line, I thought that he’d probably get the whole [existing] approach. * * * I thought if he went west [of the quarter-section line]., we’d both get it. That’s the way I kind of had it figured. I hadn’t checked it; I didn’t know.” Before Smith left the witness stand, the court recalled the testimony “that you [Smith] honestly thought” when the stipulation in Case No. 14,851 was executed “that he’d get about half of the [existing] approach and you’d get about half of it,” and again elicited the response that "I [Smith] thought maybe he’d get half of it.”

We are not unmindful of other testimony by Smith not consistent with the foregoing, of which the following statements are typical, to wit, that, if he had testified “earlier” that he wanted to impose the easement on the old log road, “I got it a little wrong some way” — “if that is the way I testified, I am mistaken,” that the old log road never curved to the east and ran to the point where the highway entrance was built, and that, although “I [Smith] was just guessing and he [plaintiff Chester] was guessing too” since the north-and-south quarter-section line had not been surveyed, “my intention was for him to take the judgment just like I am taking it — where the judgment called for.” Smith heartily approved of the language in which plaintiffs’ counsel finally summed up Smith’s settlement philosophy, i. e., “if it [the road over the 30-foot easement strip] came out to the approach, he [plaintiff Chester] could use the [highway] approach; if it came out 10 feet on the other side, he’d have to build his own approach.”

However, the inconsistencies and conflicts in the oral testimony were for the trial chancellor. Ethridge v. Perryman, Mo., 363 S.W.2d 696, 701(5). For, although we try a suit in equity de novo and reach our own conclusions as to the weight of the evidence [Hampton v. Niehaus, Mo., 329 S.W.2d 794, 800(6); Trotter v. Trotter, Mo., 316 S.W.2d 482, 484(2); Masterson v. Plummer, Mo.App., 343 S.W.2d 352, 354 (1) ], we should and do accord appropriate respect to the plain admonition [V.A.M.R. Rule 73.01(d) ; V.A.M.S. § 510.310(4) ] that due regard should be given to the superior opportunity of the trial chancellor to judge of “the credibility and characteristics of the witnesses who testified before him.” Peine v. Sater, Mo., 289 S.W.2d 101, 102(1); Cull v. Pfeifer, Mo., 307 S.W.2d 424, 428 (5); Spaeth v. Larkin, Mo., 325 S.W.2d 767, 771(3).

Numerous cases announce and apply the settled doctrine that, to establish a mutual mistake in an instrument, it is not necessary to show that the parties theretofore had agreed upon any particular words or language to be used in the instrument, but it is sufficient to show that they agreed to accomplish a particular object by the instrument to be executed and that such instrument, as executed, is insufficient to effectuate their intention. General Refractories Co. v. Howard, 328 Mo. 1139, 44 S.W.2d 65, 66(2); Wolz v. Venard, 253 Mo. 67, 82, 161 S.W. 760, 764; Williamson v. Brown, 195 Mo. 313, 332, 93 S.W. 791, 796; Snider v. Miller, Mo.App., 352 S.W.2d 161, 165(8); Bryan v. Medical West Bldg. Corp., Mo.App., 345 S.W.2d 389, 396. True, the burden rests upon one seeking reformation to establish his case by clear, cogent and convincing evidence. City of Warsaw v. Swearngin, Mo., 295 S.W.2d 174, 181(7); City of New York Ins. Co. v. Stephens, Mo., 248 S.W.2d 648, 651(2); Bryan, supra, 345 S.W.2d loc. cit. 395(1). But, without indulging in further factual detail, we think the foregoing sufficient to demonstrate that, if plaintiffs’ evidence and certain portions of the testimony of defendant O. L. Smith be accepted here (as they were by the trial chancellor), the proof of mutual mistake in the stipulation and judgment in Case No. 14,851 was clear, cogent and convincing. Leimkuehler v. Shoemaker, Mo., 329 S.W.2d 726, 731(5).

In court-tried cases, we are under the broad general injunction that the judgment nisi should not be set aside unless clearly erroneous [V.A.M.R. Rule 73.01 (d); V.A.M.S. § 510.310(4); Southern Reynolds Co. School Dist. R-2 v. Callahan, Mo., 313 S.W.2d 35, 38(3); Erickson v. Greub, Mo., 287 S.W.2d 873, 874(1) ]; and, as the courts have put it in other suits for reformation, the chancellor’s finding “will be sustained unless the proof is palpably insufficient in clarity and cogency to warrant the finding made by him.” City of Warsaw, supra, 295 S.W.2d loc. cit. 182(9); Ethridge, supra, 363 S.W.2d loc. cit. 698(3); Snider, supra, 352 S.W.2d loc. cit. 162(2). See also Cos-sairt v. Reich, Mo., 370 S.W.2d 291, 294(2). In recognition of the foregoing principles, it necessarily follows that we should affirm the finding of the trial chancellor in the instant case on the basic issue of mutual mistake.

In reaching this conclusion, we have not overlooked defendants’ contentions (a) that “oral testimony was not admissible to vary or impeach the written stipulation” and (b) that plaintiffs were not entitled to reformation because they were negligent in failing to have the 30-foot easement strip surveyed before entering into the stipulation. Both contentions are without merit. The oral testimony was admissible to show the true intention of the parties and thus the mutual mistake in the stipulation and in the judgment. State ex rel. State Highway Com’n v. Schwabe, supra, 335 S.W.2d loc. cit. 19(5); Walters, supra, 308 S.W.2d loc. cit. 675(1); Miller v. Haberman, 359 Mo. 1012, 224 S.W.2d 1002, 1005(2); McCormick v. Edwards, 351 Mo. 1017, 174 S.W.2d 826, 829. And, in the particular circumstances here presented, plaintiffs were not guilty of such negligence as to preclude the equitable relief of reformation. Overton v. Overton, 327 Mo. 530, 542, 37 S.W.2d 565, 568; McCormick, supra, 351 Mo. loc. cit. 1023, 174 S.W.2d loc. cit. 829(5); Leimkuehler, supra, 329 S.W.2d loc. cit. 731 (8).

Defendants also present assorted complaints against the judgment itself. One is that “the reformed judgment fails to permit the defendants to construct any gates across the approach or at any other place across the easement * * * or require the plaintiffs to keep such gates as defendant might construct closed.” Defendants’ professed concern about gates is of recent origin and comes too late. Gates were not mentioned in the stipulation for judgment in Case No. 14,851, which was negotiated and prepared by defendants’ then counsel, and which provided only for “two cattle guards adequate to turn cattle, one at the highway entrance to said easement and the other at the point where said easement joins the land belonging to the plaintiffs.” Upon trial of this case, defendant O. L. Smith admitted that, after entry of judgment in Case No. 14,851, he had objected to installation of a cattle guard at the highway entrance — “I can’t run cattle over a cattle guard; we are in the cattle business,” but there still was no mention of gates and no request for permission to maintain gates across the easement strip. In fact, upon trial of the instant case reformation of the judgment in Case No. 14,851 was at issue in one respect only, to wit, as to the description of the easement strip. Aside from all of this, defendants are in no position to press here the quoted complaint about gates, for no such allegation of error was presented to the trial court ⅛ defendants’ motion for new trial in this case. V.A.M.R. Rule 79.03; V.A.M.S. § 512.160 (1); Grapette Company v. Grapette Bottling Co., Mo.App., 286 S.W.2d 34, 36-37 (2, 3); Gosnell v. Gosnell, Mo.App., 329 S.W.2d 230, 234(5, 6); Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609(10, 11).

Another complaint is that the judgment in this case “is broader than the pleadings * * * in that it establishes an easement connected with the approach [entrance] to Highway 60, whereas the petition seeks only to have the easement established along the ‘old log road’ and there was no substantial evidence that the ‘old log road’ connected with the approach.” However, the record demonstrates (and, for that matter, defendants’ brief elsewhere recognizes) that plaintiff Chester, who had known the old log road since 1922, testified positively that it ran to the highway entrance— in other words, that the highway entrance had been built in the route or course of the old log road. It is true that, as defendants’ counsel emphasize, plaintiff Chester conceded that, at the time of trial, there was no “evidence” or “sign” of the old log road for a distance of about 50 feet south of the highway. But this was not inconsistent with or destructive of the noted testimony that the highway entrance had been built in the route or course of the old log road, for, as defendant O. L. Smith pointed out, “any evidence of an old log road across Highway 60 has been obliterated by construction of Highway 60,” and, as plaintiff Chester stated without contradiction, defendant O. L. Smith also had used a bulldozer south of -the entrance. That physical indicia of the course of the old log road just south of the entrance might have been obliterated by grading or bulldozing operations should not work any benefit to defendants or any detriment to plaintiffs. Cf. Hanley v. Stulman, 212 Md. 273, 129 A.2d 132, 136(4). We cannot say that there was “no substantial evidence” that the old log road connected with the highway entrance, and the objection under discussion is disallowed.

The final assault upon the judgment is that it “fails to locate or describe the easement” in that “the description of the easement as the ‘old log road’ is not a definite description” and the judgment “does not set out the width of the easement.” It is always well to heed the broad admonition that “decrees affecting title to real estate should describe the land in question with certainty” [Williams v. Pemiscot County, 345 Mo. 415, 419, 133 S.W.2d 417, 419(6), a suit to try and determine title] ; and it may be stated as a general rule that, in a suit to establish or protect privileges with respect to a right of way the location and limits of which are in dispute, “the right of way involved should be definitely described in the judgment, at least so that its location, with the aid of such description, could readily be located; and the width of the way should be made clear.” 28 C.J.S. Easements § 113b., p. 819. But the ease with which these broad general principles may be formulated and stated belies the difficulty frequently inherent in determination of whether a particular description is sufficient.

Examination of many cases, numerically almost equally divided as to result, indicates that the extent of detail and the degree of precision required in different situations is influenced by various factors. For example, less detail and precision should be and is demanded in describing and. defining the route of a country road or way of access across a farm [e. g., Meyer v. Everett, Mo.App., 235 S.W.2d 130, 136; Muncy v. Updyke, 119 Va. 636, 89 S.E. 884, 885(3); Conley v. Brewer, 85 W.Va. 725, 102 S.E. 607; Jacobi v. Mantle, 16 Ill.2d 142, 156 N.E.2d 582, 586-587(4) ] than in fixing and limiting a driveway easement between city lots. E. g., Mueller v. Larison, supra, 355 S.W.2d loc. cit. 10; Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952. And the same detail and precision logically should not be, and usually is not, required with respect to the route of a long-established and well-defined road [e. g., Meyer, supra; Muncy, supra; Conley, supra; Hansen v. Danielson, 136 Cal.App.2d 653, 289 P.2d 50; Cuillier v. Coffin, 57 Wash.2d 624, 358 P.2d 958, 960(4) ] as with respect to the route of a road not so established and defined. E.g., Leverone v. Weakley, 155 Cal. 395, 101 P. 304. Thus, it appears that the extent of detail and the degree of precision required in country road cases is that sufficient to enable a person going upon the land to find and identify the way by reference to such description. Meyer, supra, 235 S.W.2d loc. cit. 136; Muncy, supra, 89 S.E. loc. cit. 885(3); Conley, supra, 102 S.E. loc. cit. 608(1).

After finding that the “old log road is the well-defined road running over and across defendants’ land and connecting to the highway approach for Highway No. 60,” the judgment under review provides that the road to be used by plaintiffs “shall be and follow the course of the old log road * * * in the approximate vicinity” of the north-and-south quarter-section line “connecting on the south end to the land of plaintiff [s] and connecting on the north end to the highway approach as now located to U. S. Highway No. 60.” Before entering his decree, the trial chancellor properly might have directed a survey [cf. Point Prairie Hunting & Fishing Club v. Schmidt, Mo., 44 S.W.2d 73, 75, 76(2) ] in order that the decree might have included a precise description of the relatively short segment of the old log road in dispute, i. e., the segment on the north end which is on the east side of the north-and-south quarter-section line. And, although (as already indicated) we are convinced that the case should be affirmed on the merits, we have given serious consideration to the advisability of remanding it with directions for such survey and subsequent reentry of the decree with a precise description of the north segment. Cf. Heard v. O’Dell, 335 Mo. 202, 72 S.W.2d 491, 497; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008, 1020-1021.

However, the judgment in its present form is not so wanting in descriptive detail as to be either void or unenforceable. Isenberg v. Woitchek, 144 Colo. 394, 356 S.W.2d 904, 907(1); Alvin v. Johnson, 245 Minn. 322, 71 N.W.2d 667, 668 (footnote 1). The record shows, and all of the interested parties and their counsel must know, that the route of the road runs north on the west side of the north-and-south quarter-section line (and thus within the 30-foot easement strip described in the stipulation and judgment in Case No. 14,851) from plaintiffs’ tract to a point some 50 to 60 feet (as plaintiff Chester estimated) or perhaps 75 feet (as defendant O. L. Smith thought) south of the highway right of way, where the road veers to the east across the quarter-section line and runs to the highway entrance, the center of which is approximately 36 feet east of the quarter-section line. The road runs across rough, uncultivated pastureland, and less than one-half .acre is affected by the disputed segment of the road on the east side of the quarter-section line. There already has been too much of crimination and recrimination, of litigation and relitigation, and of trouble and expense, all of which, as the benign trial chancellor appropriately intimated, might have been avoided “if these neighbors [had] loved each other and wanted to get along.” Perhaps it is too much to expect that, at this late hour, the parties yet may recall and heed the Master’s teaching that like unto “the first and great commandment” that “Thou shall love the Lord thy God * * * ” is the second, “Thou shalt love thy neighbour as thyself.” Matthew 22:36-40. Even so, we would terminate (so we trust) this controversy on that note.

The judgment is affirmed.

RUARK, P. J., and HOGAN, J., concur.

      . In re McDuffee, Mo. (banc), 352 S.W.2d 23, 26(1); Contrare v. Cirese, Mo., 336 S.W.2d 485, 489(5); Brasker v. Cirese, Mo., 269 S.W.2d 62, 65(1); Marley v. Marley, 356 Mo. 870, 204 S.W.2d 261, 264(4, 5); Overton v. Overton, 327 Mo. 530, 37 S.W.2d 565, 567(1). See 3 Freeman on Judgments (5th. Ed.), § 1246, pp. 2593 et seq.; 30A Am.Jur., Judgments, § 769, p. 713; 49 C.J.S. Judgments § 365a, p. 723.

      . Sunnybrook Groves, Inc. v. Hicks, Fla.App., 113 So.2d 239, 241(3); DeReus v. Peck, 114 Colo. 107, 162 P.2d 404, 406 (4); Leverone v. Weakley, 155 Cal. 395, 101 P. 304, 306; Tichman v. Straffin, 54 R.I. 356, 173 A. 78(2); Stevens v. MacRae, 97 Vt. 76, 122 A. 892, 894(4).

      . Descriptions sufficient in these cases: Mueller v. Larison, Mo., 355 S.W.2d 5, 10(9); Meyer v. Everett, Mo.App., 235 S.W.2d 130, 136 (no issue as to existence and location of roadway); Muncy v. Updyke, 119 Va. 636, 89 S.E. 884, 885(3); Conley v. Brewer, 85 W.Va. 725, 102 S.E. 607; Cuillier v. Coffin, 57 Wash.2d 624, 358 P.2d 958, 960(4); Hansen v. Danielson, 136 Cal.App.2d 653, 289 P.2d 50, 52(7); Jacobi v. Mantle, 16 Ill.2d 142, 156 N.E.2d 582, 586-587(4); Powell v. Wines, 179 Ky. 414, 200 S.W. 641, 642(4) (“no dispute as to the limits”); Burch v. Blair, 19 Ky.L. 641, 41 S.W. 547, 548 ("very little contrariety as to the exact location”). See also Hall v. Gernhardt, Mo.App., 174 S.W.2d 915; Neilon v. Texas Trust & Security Co., Tex.Civ.App., 147 S.W.2d 321, 326(3), error dismissed. Descriptions insufficient in these cases: Isenberg v. Woitchek, 144 Colo. 394, 356 P.2d 904, 907-908; Harrison v. Bouris, 139 Cal.App.2d 170, 293 P.2d 98, 102, 103(8); Northwest Cities Gas Co. v. Western Fuel Co., Inc., 17 Wash.2d 482, 135 P.2d 867, 869; Van De Vanter v. Flaherty, 37 Wash. 218, 79 P. 794(4); Sinnett v. Werelus, 83 Idaho 514, 365 P.2d 952, 957(16). See again the Sunnybrook Groves, Inc., DeReus, Leverone and Tichman cases, supra note 2.


author: RUARK, Presiding Judge.

text:
    CITY OF AVA, Missouri, Plaintiff-Appellant, v. Philip Jene YOST, Defendant-Respondent.
    No. 8238.
    Springfield Court of Appeals. Missouri.
    Feb. 21, 1964.

      James E. Curry, Ava, for plaintiff-appellant.
    Quentin Haden, Ava, for defendant-respondent.
   RUARK, Presiding Judge.

This is an appeal by the City of Ava from the order of the circuit court granting a new trial to a defendant convicted of having violated the ordinances of the city.

In the city court an unverified uniform traffic ticket charging speeding was filed by a city officer. According to the transcript the city attorney thereafter filed an information (see S.Ct. Municipal Rules 37.05, 37.29, and 37.46, V.A.M.R.) charging reckless driving but in only general terms. The order for new trial in the circuit court was on the stated ground (S.Ct. Criminal Rule 27.19[6], V.A.M.R.), as asserted in motion prior to trial and reasserted in the motion for new trial, that the information was insufficient. In so holding we believe the judge of the circuit court was correct (City of Raytown v. Roach, Mo.App., 360 S.W.2d 741); but in examining the transcript we have found ourselves confronted by a question of jurisdiction which, although not raised, so obtrudes itself as to require examination.

After the information was filed in police court, the defendant Yost filed an “application for change of venue” on the ground of the bias and prejudice of Hobart Gentry, police judge. This application (whether it was sworn or not we are unable to determine) requested transfer of the case to the circuit court of Douglas County. The application was “sustained” and the case was accordingly transferred to and tried in the circuit court. The question which occurs to us is did the circuit court have jurisdiction of the case on such transfer?

S.Ct. Municipal Rule 37.90, V.A.M.R., provides that in any municipal court the judge shall be incompetent and disqualified to hear and try a pending case when he is in anywise interested or prejudiced. He may disqualify himself on his own motion or upon the filing of affidavit as to interest and prejudice. S.Ct. Rule 37.91, V.A.M.R., provides that upon such disqualification the judge shall transfer the case to “another judge authorized by law to hear such case.”

Section 98.510, V.A.M.S., provides that no change of venue shall be taken from the police judge. The disqualification of a judge and substitution of another upon such disqualification is not a change of venue, and reference to such disqualification and substitution as a “change of venue” is a misnomer. The supreme court rule and ■the statute are not inconsistent in that respect.

Article 5, Section 14, Mo.Const., V.A. M.S., gives the circuit courts exclusive original jurisdiction in cases “not otherwise provided for” and concurrent and appellate jurisdiction “as provided by law.” Section 478.070, V.A.M.S., relating to jurisdiction of circuit courts does not provide for original substituted jurisdiction in police courts unless it be in the phrase “not otherwise provided for by law.” By Section 541.020, V.A.M.S., “[ejxcept as otherwise provided by law,” the circuit courts have concurrent original jurisdiction with magistrates and police courts in all cases of misdemeanor.

The violation of a city ordinance is not a crime in a constitutional sense, nor a misdemeanor under our criminal code. City of Cassville v. Jimerson, 75 Mo.App. 426; City of Webster Groves v. Quick, Mo., 319 S.W.2d 543; State v. Muir, 164 Mo. 610, 65 S.W. 285; Ex parte Hollwedell, 74 Mo. 395(2); State v. Bowen, 72 Mo.App. 66. The action taken against one accused of violating a city ordinance is a civil proceeding looking to the enforcement of a penalty, although the procedures followed may take on criminal procedure aspects. City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935; King City v. Duncan, 238 Mo. 513, 142 S.W. 246; City of Fredericktown v. Hunter, Mo.App., 273 S.W.2d 732; State v. Jackson, Mo.App., 220 S.W.2d 779.

In searching for the “otherwise provided for by law,” we return to Section 98.500, V.A.M.S., and those sections following in relation to cities of the fourth class. The mayor and the police judge are conservators of the peace with exclusive original jurisdiction to hear and determine all offenses against the city. The following sections treat of the authority and the duties of the mayor and police judge in the same language. The difference is that in Section 98.500, V.A.M.S., it is provided that the city may elect a police judge and in that event he acquires exclusive original jurisdiction to hear cases involving offenses against the ordinances. But the same section provides that in case of absence, sickness, vacancy in office, or disability in any-zmse, the mayor shall perform all such duties until the disability is removed.

In construing a statute, the object sought to be accomplished must be considered. State ex rel. Gerber v. Mayfield, 365 Mo. 255, 281 S.W.2d 295; State ex rel. Henderson v. Proctor, Mo., 361 S.W.2d 802. Taking together the provisions of all the code and procedures set up in Section 98, we think that it is apparent that the legislature intended that the mayor have all the powers and duties of the police judge (if there be one) when such judge is disabled “in anywise” from discharging the functions of his office; and that a disqualification because of interest, bias, and prejudice is such a “disability.” We think that the legislature did not intend to burden the circuit courts with the hearing of ordinance violation cases except in a derivative capacity on appeal. For that reason we hold that the mayor (acting as police judge), and not the circuit court, has jurisdiction to try cases in which the police judge is disabled by disqualification; and by the same token, the circuit court has no original jurisdiction to try the same.

There remains the question of whether jurisdiction has been waived. Jurisdiction of the court to render a certain judgment may depend upon jurisdiction of the person, which can be waived, or jurisdiction of the subject matter, which cannot be waived. When the question goes to the power of the court under a statute to determine the controversy or to render the particular judgment in the particular case, the jurisdiction partakes of the nature and character of subject matter and cannot be waived. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52; Cole v. Cole, 89 Mo.App. 228; State ex rel. Creamer v. Blair, supra, 364 Mo. 927, 270 S.W.2d 1; State ex rel. Ballew v. Hawkins, Mo., 361 S.W.2d 852; see Aetna Ins. Co. v. O’Malley, 342 Mo. 800, 118 S.W.2d 3. Unless the power can be found within the constitution or the laws enacted thereunder, there is no jurisdiction and the act is a nullity. In re Buckles, 331 Mo. 405, 53 S.W.2d 1055. And if the statute fixes the venue because of the subject matter involved, such statute is mandatory. Stoops v. Stoops, 363 Mo. 1075, 256 S.W.2d 799; March v. Gerstenschlager, Mo., 322 S.W.2d 743.

It is our conclusion that the legislature granted no original jurisdiction to the circuit court to hear cases for violations of ordinances of cities of the fourth class; that the parties could not confer jurisdiction of such cases by waiver or agreement; and that therefore the judgment of the circuit court was a nullity. We believe that the mayor is the person “authorized by law” to hear the case when the police judge is disqualified. Therefore, the judgment of the circuit court is reversed with directions to remand the case to the police court for trial by the police judge or, if he be disqualified, by the mayor as acting police judge.

It is so ordered.

STONE and HOGAN, JJ., concur.

      . 20 Mo.L.Rev. 13 (Ely); State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697; State v. Mitts, Mo., 29 S.W.2d 125; Pogue v. Swink, 364 Mo. 306, 261 S.W.2d 40; Id., 365 Mo. 503, 284 S.W.2d 868 (9); State ex rel. Creamer v. Blair, 364 Mo. 927, 270 S.W.2d 1.

      . See the distinction made in City of St. Louis v. Penrod, Mo.App., 332 S.W.2d 34, and State v. Alsup, 140 Mo.App. 194, 123 S.W. 1011.

      . State ex rel. Missouri Gravel Co. v. Workmen’s Compensation Commission, 234 Mo.App. 232, 113 S.W.2d 1034; State ex rel. MacNish v. Landwehr, 332 Mo. 622, 60 S.W.2d 4; State ex rel. Fechtling v. Rose, 239 Mo.App. 178, 189 S.W.2d 425; Johnson v. Frank, 354 Mo. 767, 191 S.W.2d 618; Wade v. Markham, Mo.App., 106 S.W.2d 939.