author: DOERNER, Commissioner.

text:
    Dorine VAN BERG, Plaintiff-Respondent, v. Frank KOCH and Florence Koch, his Wife, d/b/a June’s Beauty Service, Inc., Defendants-Appellants.
    No. 32465.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.

      Edward O. Hancock, St. Louis, for defendants-appellants.
    Ziercher, Tzinberg, Human & Michen-felder, George J. Bude, Clayton, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff instituted this action in the Magistrate Court of St. Louis County to recover for rent alleged to be due under a written lease. Defendants admitted execution but denied the indebtedness and pleaded in bar fraud in the procurement of the lease. Before the case was tried plaintiff amended her petition so as to extend the period during which defendants had allegedly failed to pay rent and to pray for a judgment for $1150 in lieu of $800. Trial to a jury resulted in a verdict and judgment in favor of plaintiff for $1150, from which defendants appealed to the Circuit Court. While the case was pending in that court the plaintiff, on motion and over defendants’ opposition, was permitted to similarly amend her petition, which increased the amount sought to $2,000. A jury was waived and the case tried to the court, resulting in a judgment for plaintiff for the amount prayed, from which defendants prosecute this appeal.

The first two points raised by defendants present nothing for review. Defendants’ initial complaint is that error was committed in permitting plaintiff to twice amend her petition in the respects stated. Defendants’ only after-trial motion is titled, “Motion to Set Aside Judgment and to Enter Judgment in Favor of Defendants.” The allegation of error now claimed was not stated therein and hence was not presented to the trial court or preserved for our review. Civil Rule 79.03, V.A.M.R.; State v. Keiter, Mo., 394 S.W.2d 399; Runnion v. Paquet, 241 Mo.App. 112, 233 S.W.2d 803.

Defendants next contend that the court erred in overruling their oral motion to dismiss plaintiff’s case at the close of plaintiff’s evidence because the evidence was insufficient to show the amount claimed to be due. After the court overruled defendants’ motion they introduced evidence on their behalf. Defendants are therefore not in a position to complain. For the rule is that when a motion such as theirs, equivalent to one for judgment, is made and denied at the close of the plaintiff’s evidence the error, if any, of such ruling is waived by the introduction of evidence thereafter by the party making such motion. Wilt v. Waterfield, Mo., 273 S. W.2d 290. The fact is, however, that no error was committed because the plaintiff’s testimony (subsequently corroborated by the defendants) was sufficient to show that the amount of rent due under the lease and remaining unpaid was $2025, and by her pleadings plaintiff had voluntarily given defendants a credit of $25.00.

Defendants also orally moved for a dismissal of plaintiff’s action at the close of the whole case, on the grounds of plaintiff’s alleged misrepresentation in the procurement of the lease, and assign the courts denial of their motion as their final point. The record discloses that plaintiff’s commercial building, numbered 6559 University Drive, in St. Louis County, is located at the intersection of University Drive and an alley. The building is situated on the edge of a residential neighborhood bounded on the north by Delmar Boulevard, on the south by University Drive, on the east by Melville Avenue, and on the west by Big Bend Boulevard. Delmar, Melville and Big Bend are public thoroughfares, but University Drive, which extends from Big Bend eastwardly for three or four blocks, where it dead-ends at the alley, is a private street. Pershing, Waterman and Kingsbury, the intermediate east-west streets between University and Delmar, are also private streets, as are Trinity and Kingsland, the intermediate north-south streets between Big Bend and Melville.

Defendants operate several beauty shops, and leased the premises in plaintiff’s building for that purpose. Their evidence was that the first time they inspected the store they drove south on Melville from Delmar, made a jog onto the alley, and then south in the alley to the building; and that when they left on that occasion they drove west on University to Big Bend. At Big Bend they noticed a traffic barrier, called a “horse,” sitting lengthwise on University. The next day they went back to the building by driving eastwardly on University Drive from Big Bend, and as they turned onto University they saw a sign which read “Private-No Thoroughfare.” The interval of time which elapsed between the second of their two inspection trips and the date on which the lease was signed was not stated, but Koch testified that, “It worried us whether we could get in or out after seeing all the chains up here”; and that on the day they executed the lease they first inquired of plaintiff about the sign and barrier. According to Koch, plaintiff said, “ * * * ‘you can get through there at all times.’ ” Mrs. Koch’s version of plaintiff’s statement was that, «* • * * you would have no problem getting in University Drive at any time, you could always get in or out.” Both stated that they relied on plaintiff’s statement in executing the lease. While Koch testified on direct that he was not too familiar with that particular neighborhood he admitted, on cross-examination, that he had driven on Big Bend between University Drive and Delmar Boulevard on numerous occasions over the years, that he had noticed chains and barricades up on the private streets, and that he had such knowledge at the time they signed the lease. Koch also admitted that although they became aware within a week after executing the lease that University Drive and the other private streets were closed off from time to time, which made access to their shop difficult, they paid their rent promptly as it fell due from September 1, 1962 through March, 1964, and continued to occupy the premises until June, 1964, when they moved out. The record is totally devoid of any evidence that they ever complained or protested to the plaintiff regarding her alleged representation, nor does it show that they gave any reason for removing at the time they did so.

No findings of fact or conclusions of law were requested or made, and the trial court found the issues generally in favor of the plaintiff. In such a situation all fact issues are “ * * * deemed found in accordance with the result reached.” Civil Rule 73.01(b), V.A.M.R.; McCullough v. Newton, Mo., 348 S.W.2d 138. It is evident from the result reached that the trial court rejected defendants’ defense of fraud on the part of plaintiff. By the rule referred to we are required to review a case such as this upon both the law and the evidence as in suits of an equitable nature, but admonished that the judgment should not be set aside unless clearly erroneous. Civil Rule 73.01 (d); Terry v. City of Independence, Mo., 388 S.W.2d 769.

The elements necessary to sustain a plea of fraud are so well-known as not to require enumeration. Yerington v. Riss, Mo., 374 S.W.2d 52; Lowther v. Hays, Mo., 225 S.W.2d 708; 37 C.J.S. Fraud § 3, pp. 215, 216. Proof of each element is essential, either to make a submissible case in an action for fraud, Yerington v. Riss, supra, or to establish it where it is pleaded as a defense to the plaintiff’s suit. Lewis W. Thompson & Co. v. Conran-Gideon Special Road Dist. of New Madrid County, 323 Mo. 953, 19 S.W.2d 1049. Among the other essential elements which one who asserts fraud must prove are the hearer’s ignorance of the falsity of the representation and his reliance on its truth. As was said by this court in Maupin v. Provident Life & Accident Ins. Co., Mo.App., 75 S.W.2d 593, 596: “Deception is the very essence of actionable fraud. A false representation of a material fact made for the purpose of deceiving is not sufficient; it must appear that it accomplished its purpose, that is, that it did in fact deceive. In other words, it must appear that the person to whom it was made was ignorant of its falsity and relied on its truth.”

Assuming that plaintiff made the statement attributed to her by defendants; and assuming further, without deciding, that it was a representation of a then presently existing fact rather than a mere expression of an opinion or a statement as to the expectation of future events, Lowther v. Hays, supra, a careful consideration of the record convinces us that defendants were not deceived by plaintiff’s statement and that they did not rely upon it in executing the lease. Defendant Koch’s testimony clearly showed that prior to the execution of the lease he was fully aware that University Drive and the intermediate streets south of Delmar were private streets, and that he had long known they were closed to traffic from time to time by chains and barricades. It is inconceivable that defendants, thoroughly cognizant that plain- ' tiff’s building was located in a residential area of private streets, which they knew were intermittently closed, would not have known of the falsity of plaintiff’s statement (if made), or that they would have relied upon it in the light of their knowledge. Our opinion in this regard is supported by defendants’ conduct subsequent to their execution of the lease. They admitted that although they learned within a week of the intermittent barricading of Universiy Drive they continued to occupy the premises thereafter for 20 months, paid their rent promptly as it fell due from September 1, 1962 through March, 1964, and eventually removed from the premises all without any apparent complaint or protest regarding the alleged representation attributed to plaintiff. It may well be that their choice of location was a poor one and that the blockading of University Drive from time to time interfered with the access of their customers to their shop. But in the light of their own evidence it appears to us, and presumably appeared to the trial court, “ * * * that the claim of false representation, reliance and damage was wholly ‘an after thought,’ arising subsequently as a defense * * * ” to plaintiff’s claim for the rent due under the lease. Lowther v. Hays, supra, 225 S.W.2d 1. c. 714.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Edward W. CLASEN, and Southtown Professional Pharmacy, Inc., a Corporation, Plaintlffs-Appellants-Respondents, v. MOORE BROTHERS REALTY COMPANY, Inc., Defendant-Respondent-Appellant.
    Nos. 32395 & 32396.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Motions for Rehearing or to Transfer to Supreme- Court Denied March 17, 1967.
    Application to Transfer Denied May 8, 1967.

      Edward C. Schneider, Harry A. Frank, Milton F. Napier, St. Louis, for plaintiffs-appellants.

      Ackerman, Schiller & Schwartz, Clayton, for defendant-respondent.
   BRADY, Commissioner.

Cross appeals arising from an action for declaratory judgment as to the rights and duties of the parties to a ten-year lease of certain real estate in the City of St. Louis, Missouri. We will refer to the parties by their general designation in the trial court except that the individual plaintiff will sometimes be referred to by his name and the corporate plaintiff as such. Specifically, plaintiffs seek to avoid the percentage rental called for under the lease and request a declaration that Southtown Professional Pharmacy, Inc. is the lessee. Defendant seeks cancellation of the lease and the payment of certain disputed rentals.

Defendant owns a medical office building called “St. Louis Hills Medical Center”. It entered into a lease with plaintiff Edward Ciasen for space on the ground floor of that building to be used as a drug store. The provisions covering rental, forfeiture for non-payment of rent and for assignment or subletting of the leased premises read as follows: “For and during the term commencing thirty days after building is ready for occupancy and ending ten years thereafter, at the yearly rental of $6,400.00 payable in monthly installments of $533.33 each, plus 8% of the gross sales of said drug store business over annual gross sales of $80,000.00; rent payable $533.33 on the 1st day of each month and at the end of each twelve month period the gross sales for said 12 months will be determined and the balance of the rent paid within thirty days of the expiration of each twelve month period.” This provision of the lease also provided: “In computing gross sales under the aforementioned provisions, cost sales to doctors and nurses shall be excluded therefrom.” In referring to “annual gross sales” in this opinion, that term excludes such cost sales. “Failure on the part of the Lessee to pay any installment of rent * * as and when the same becomes due and payable * * * shall at the option of the Lessor cause the forfeiture of this lease.” “This lease is not assignable, * * * and if this lease is assigned or the premises or any part thereof sublet without the written consent of the Lessor, * * * this lease may by such fact or unauthorized act be cancelled at the option of the Lessor. * * ”

These parties also executed a “Supplement to Lease” which provides: “The parties to this lease agree that in no event shall the annual payments hereunder be less than $5.00 per square foot of rental area covered by this lease; however after the expiration of one year from the date of commencement of the term under this lease, the lessee hereunder shall have the option of requesting a review of those provisions hereof dealing with the payment of additional rental amounts over and above the $5.00 per square foot amount, said request to be for the purpose of determining whether or not the 8% of gross sales in excess of $80,000.00 is a hardship on the lessee. In the event said hardship is found to exist by the lessor said 8% payment on gross sales in excess of $80,000.00 shall be reduced to an amount necessary to relieve said hardship but in no event less than 6% on gross sales in excess of $80,000.00.”

We find the facts to be that in negotiations for the lease defendant, acting through its president Graham, dealt with the plaintiff Ciasen who never informed the president that a corporation would occupy the leased premises; that as a rental policy the defendant preferred that the drug store in this medical building be owned by an individual; that for the first year’s operation of the drug store the gross sales were less than $80,000.00; that for each of the second, third and fourth years the gross sales were in excess of $80,000.00 but the plaintiffs did not pay any of the percentage rentals called for under the lease; and that defendant made demands for certified public accountant statements concerning the figures of the drug store operation from the plaintiff Ciasen but that these were never furnished to defendant. Ciasen acknowledged there was no tender of the percentage rentals to the defendant for this four-year period of time. He contended that he was trying to get a “proper percentage” and had his auditor handle this matter for him. Ciasen wanted to go on the “hardship” basis covered by the “Supplement to Lease” but failed and refused to give any statements regarding his operations to the defendant until May of 1963. The lease was entered into in May of 1959. In May of 1963 defendant received some notations on a piece of paper from the plaintiff Clasen’s auditor. These are not in cogent form and the figures which are in proper form as prepared by Clasen’s auditor were not given to Graham until the trial of this case. Clasen’s contention was that the percentage rental in the lease should be reduced from eight to six percent because of “hardship” and he arranged a meeting with Graham to discuss that matter. As a result of that meeting defendant’s auditor wrote a letter dated March, 1963, and addressed to Ciasen, calling his attention to the percentage rental provisions of the lease and requesting that plaintiffs’ auditor send a statement as to gross sales for the previous three years as required by the terms of the lease. Later in that same month Graham wrote to Ciasen informing the latter of the defendant’s decision to deny his request for a lower rental stating “It is not our wish to alter the lease in any respect as we are not convinced it results in a hardship in any respect.” The letter closed with the demand that Ciasen remit the amount due under the lease. In July of that same year another meeting was held between Graham, Ciasen, and the latter’s auditor. Again defendant refused to change the lease.

Graham also testified that the first he learned that a corporation was in possession of the drug store and operating it was when he received and read the plaintiffs’ petition. There were three exhibits which were identified as checks given by Ciasen in payment for the basic monthly rentals called for by the lease. On each of these at the top lefthand corner appear the words “Southtown Professional Pharmacy” and at the lower righthand corner above Clasen’s signature appear the words “Southtown Professional Pharmacy”. In April of 1964 defendant received a check in payment of the basic monthly rental upon which, immediately above Clasen’s signature, appeared the words “Southtown Professional Pharmacy, Inc.” This was the first check upon which the corporate character of Southtown Professional Pharmacy was ever indicated. Defendant refused this check and it was returned to Ciasen together with a letter from defendant’s attorneys stating that defendant did not recognize the corporation as the lawful tenant or assignee of Clasen’s lease. Since that date defendant has refused acceptance of the basic monthly rental of $533.33 per month since it was tendered by the corporation and these payments were tendered into the court. It is undisputed that Ciasen never received any written permission from the defendant to the use, occupancy and possession of the leased premises by Southtown Professional Pharmacy, Inc.

Ciasen testified that the plaintiff corporation was formed prior to the time he entered into the lease. It appeared from other evidence and exhibits that he paid for the purchases of equipment and fixtures used to set up the drug store by checks showing that he was an individual doing business as Southtown Professional Pharmacy. There is a sign in the window of the drug store overlooking the parking area and a sign on a vehicle used for delivery purposes by the drug store, both of which read “Southtown Professional Pharmacy”. These photo exhibits showing such signs were taken by defendant’s president after he was served with the petition stating that the premises were being operated by a corporation.

The trial court found for the defendant on plaintiffs’ contention as to the percentage rental called for by the lease and awarded a money judgment for $15,882.06, the amount of percentage rental due computed at eight percent of the gross annual sales over $80,000.00 plus interest at six percent of $2,025.77, and the sum of $6,933.33 as monthly basic rental from April 1, 1964 to May 1, 1965, about which there was no dispute.

The decree also specifically provided the trial court “ * * * retains jurisdiction to order an accounting therefor by plaintiffs to defendant * * * ” for the annual periods covered by the lease after the date of this action when the defendant shows the court the plaintiffs have failed or refused to furnish defendant figures on the gross sales for the year. The trial court found for the plaintiffs on the issue of cancellation of the lease. Its ruling as to plaintiffs’ contention that the corporate plaintiff should be named the lessee does not clearly appear. In that portion of its decree refusing cancellation of the lease the trial court referred to the lease between the defendant “ * * * and Edward W. Ciasen, Lessee * * * ” as being in full force and effect. However, in that portion of the decree dealing with the percentage rental due defendant the trial court specifically held that “ * * * plaintiffs Edward W. Ciasen and Southtown Professional Pharmacy, Inc., a corporation, are obligated to pay to defendant * * * ” the rentals due.

In accordance with its contention the percentage rental due was to be computed at six percent, the plaintiffs had paid into the registry of the court a sum equal to six percent of the annual gross sales over $80,000.00; i. e., $11,886.50. Of this amount $7,255.15 was paid in when this action was filed on July 2, 1963, and $4,631.35 was paid in on December 10, 1964. The trial court entered its judgment on the 17th of May, 1965, and on June 25th, 1965, the defendant withdrew from the funds deposited with the court, by leave, the sum of $11,886.50 “ * * * as and for percentage rental, and the same shall be paid out in partial satisfaction on account of the judgement of $17,907.83 as the same applies only to the said percentage rental judgment and nothing herein contained shall effect payment nor satisfaction of the judgment for basic rent, * * *

The rules of review in such cases are well known. We are to try this action de novo ruling upon both the law and the evidence, but we are to give due deference to the findings of the trial court where credibility of the witness is involved. See § 527.070, RSMo 1959, V.A.M.S., and cases cited under Note 1.

We will first deal with the plaintiffs’ appeal, but before proceeding to the merits of plaintiffs’ contentions in that regard we must first dispose of plaintiffs’ attacks upon this judgment as not being final and therefore not properly the subject of an appeal. The first argument advanced in support of the contention this judgment is not final has reference to that portion of the decree providing the trial court retains jurisdiction to order an accounting by plaintiffs to defendant for the remaining annual periods covered by the lease upon a proper showing by the defendant that the plaintiffs have failed or refuse to furnish figures for such periods to the defendant. This contention is without merit. The question of what is or is not a final judgment depends upon the circumstances of each individual case. Bennett v. Cutler, Mo., 245 S.W.2d 900. The decree in the instant case settles the equities and the rights and duties of the parties under the lease and it is nonetheless final because after doing so there remains the necessity for some future action or direction of the court in execution of the decree as it stands. Thompson v. Hodge, Mo. App., 348 S.W.2d 11, l.c. 13 [3, 4], citing Black on Judgments, 2nd Edition, Volume I, § 41, p. 60.

The second contention advanced by plaintiffs in support of this contention is that the trial court failed to specifically rule upon their request the corporate plaintiff be declared to be the proper lessee under said lease. Before passing upon this contention we note that while the petition alleged the corporate plaintiff had paid the basic rent and been accepted and recognized by defendant as the actual tenant under the lease from the very beginning of the term thereof, this was not borne out by the proof. There was nothing to inform the defendant that its stated policy with regard to avoiding corporate lessees was being violated. The signs, the checks, every indication of ownership of this drug store was that it was privately owned by the plaintiff Ciasen who was doing business as Southtown Pharmacy. Immediately upon receipt of the check of April 1, 1964, which, so far as the record shows, was the first information which would have given defendant knowledge the corporate plaintiff was in fact occupying these premises, the defendant objected, returned the rental check, and demanded cancellation of the lease on the grounds of an improper assignment of the lease. Be that as it may, passing to the merits of plaintiffs’ argument, we hold the trial court disposed of this issue when it refused to decree cancellation. The somewhat contradictory language in the later portion of the decree which requires the corporate plaintiff to join with the individual plaintiff in paying the defendant the amount of rentals adjudicated as due may or may not be erroneous, but it does not affect the finality of the ruling upon this issue. We hold the plaintiffs’ contentions with regard to this judgment as not being final are without merit.

Passing now to the merits of plaintiffs’ allegation of error, their first contention is that the trial court erred in awarding defendant a money judgment based upon eight percent of the annual gross sales of the drug store in excess of $80,000.00. The plaintiffs’ argument in this regard is that the provisions of the “Supplement to Lease” are void for the reason it is therein provided that whether a hardship on the plaintiffs is found to exist is to be determined by the defendant alone. They contend this provision is “unilateral and lacking mutuality” and therefore void. Those interested in the applicability of plaintiffs’ argument to the situation presented in the instant case may refer to Conservative Federal Savings and Loan Association v. Warnecke, Mo.App., 324 S. W.2d 471, 1. c. 480, where it is held: “ * * It might be said that it was unwise for lessee to enter into such a contract where unfairness might be practiced against it, but that is no reason for declaring the provision void. We cannot alter the terms of the contract merely because the court is of the opinion there is a possibility that some of the provisions of the contract might operate unfairly to one of the parties. * * *” The same language would seem applicable where one of the parties is of that opinion. However, we need not decide this point. Assuming arguendo that the “Supplement to Lease” is void for the reasons contended by the plaintiffs, this allegation of error must still be ruled adversely to them. This for the reason that the lease itself clearly provides that in addition to the regular monthly installments of $533.33 the rental shall consist of eight percent of the annual gross sales of the drug store over and above $80,000.00. Assuming the “Supplement to Lease” is void as the plaintiffs contend, it would follow that the provisions as to percentage rental contained therein are also void. However, plaintiffs’ argument in this regard is based upon the lack of “mutuality” in the determination of when a “hardship” exists. There is no mention of “hardship” in the rental provisions of the lease itself. Ño decision of any nature is called for by that document ; the eight percent is due without any conditions. It would not follow that the provisions as to percentage rentals as contained in the lease itself are in any way affected by the decision as to the validity of the “Supplement to Lease”. We are not cited to any authority supporting such a contention and cannot perceive of any reason why this should be so.

In this connection the basic contradiction inherent in plaintiffs’ position becomes apparent. On one hand plaintiffs contend the “Supplement to Lease” is void for the reasons before stated. On the other hand they contend they owe six percent on the annual gross sales over $80,000.00. The contradiction lies in the fact that this figure of six percent does not appear anywhere else in the lease nor. in any other instrument with which we are here concerned. The figure of six percent can come only from the very language plaintiffs contend is void. This is but another reason why plaintiffs’ contention is without merit and why there was no error in the trial court’s finding that in addition to the basic monthly rental the defendant was due percentage rentals on the basis of eight percent of the annual gross sales of the drug store over and above the amount of $80,000.00.

Plaintiffs then advance an argument which is in the nature of an allegation that defendant is estopped to collect any percentage rental. We will not rule that issue for reasons that will appear later in this paragraph. However, we desire to parenthetically state that we find the evidence to be that defendant made a prompt decision upon finally receiving the figures it had repeatedly requested from the plaintiff Ciasen and so cannot be held to have caused the delay. Moreover, as heretofore noted, it is difficult to see how any decision with regard to the provisions of the “Supplement to Lease” could suspend the provisions of the lease itself without some clear indication of agreement by the parties that such should be the case. No evidence of that notice appears in this record. Be that as it may, we do not rule this issue for the reason that if the defendant is estopped from collecting any percentage rental then what was the purpose of that portion of the petition which, in effect, pled that six percent was the correct percentage rental; why did plaintiffs pay a sum equal to six percent of the annual gross sales over $80,000.00 into the registry of the court stating it was the amount they owed defendant; and why have they maintained that position throughout the trial and upon appeal? The contention now advanced is not the theory upon which plaintiffs pled or tried this case and it is not available to them now. In view of their actions and the admission they owe six percent on annual gross sales over $80,000.00, they have waived any requirement for decision on our part as to whether the defendant so delayed its decision as to the existence of a hardship within the meaning of the “Supplement to Lease” as to suspend the requirement of the lease itself with reference to percentage rental.

The plaintiffs next contend the trial court erred in awarding interest in the amount of $2,025.77. Their argument in this regard is two-fold. First they contend that the trial court has erroneously computed the interest due on the unpaid percentage rental. Plaintiffs’ argument is that since the lease is dated May 1, 1959, the percentage rental would become due and payable on that date each succeeding year. They then refer to that provision of the lease which states that the percentage rental is to be “paid within thirty days of the expiration of each twelve-month period” contending the percentage rental was not delinquent until June 1st. They then restate their previously referred to argument that the defendant caused the delay in the payment of the percentage rental and, referring to the letter from defendant’s president under date of May 31, 1963, seize upon that date as the date the rental becomes due and urge that no interest should have been figured until July 1, 1963. We cannot agree with this contention. As stated earlier herein, we find the defendant cannot be held to have caused any delay but that such delay as existed was the result of plaintiffs’ actions in failing to furnish defendant with proper figures so that defendant could make a decision upon plaintiffs’ request to involve the “hardship” provisions of the “Supplement to Lease”.

However, we do hold the interest was incorrectly computed. The trial court began the computation of the interest due on each year’s percentage rental with May 1 of that year. The general rule is that “ * * * ‘interest, when allowed as damages, runs from the date when the right to recover a sum certain is vested in the plaintiff. In actions for breach of contract, it ordinarily runs from the date of the breach or the time when payment was due under the contract.’ 15 Am.Jur. p. 584, Sec. 168. See, also, 17 C.J. 919, 920, 922; 25 C.J.S., Damages, § 92, pp. 637, 639.” Prudential Ins. Co. of America v. Goldsmith, 239 Mo.App. 188, 192 S.W.2d 1, l.c. 3. April 30th of each year is the date the annual period to which the percentage rental applies is to end, but it is neither the date when the right to recover a sum certain was vested'in defendant nor the time when the payment of such a sum was due under the contract. The lease grants a 30-day period after the April 30th date and provides the percentage rental due is to be paid within that time. It follows that May 30th of each year is the date that payment of the percentage rental was due under the lease and interest does not begin to run until May 31st. The trial court therefore was in error in computing interest as it did.

Plaintiffs then contend that the trial court erred in awarding interest on the entire percentage rental. Their argument in this regard is that by paying into the registry of the court, after commencing this action, a sum equal to the six percent percentage rental which they contended was the correct amount due, plaintiffs made a tender which prevented the trial court, even though it found this sum was not the full amount due, from awarding interest based upon the eight percent figure. They urge that the trial court could only award interest on the difference between the six percent figure and the eight percent figure. There is no evidence in this case as to any tender being made prior to the filing of this action. Accordingly §§ 514.230 and 514.240, RSMo 1959, V.A.M.S., are not applicable. It was so held in Emerson v. Treadway, Mo.App., 270 S.W.2d 614. Thus the court’s ruling in City of Mexico v. Baysinger, Mo. App., 313 S.W.2d 166, where we held that a tender sufficient to have the effect of stopping the accrual of further interest must be for the full amount due, does not dispose of this issue for the tender in that case was made prior to suit. § 514.250, RSMo 1959, V.A.M.S., is inapplicable as that section of our statutes does not make any reference to interest but confines itself solely to costs that may have accrued. Also, it should be noted that we are not here dealing with the interest due upon a judgment. See City of St. Louis v. S enter Commission Company, 343 Mo. 1075, 124 S.W.2d 1180.

We think there are several reasons why plaintiffs’ contention must be ruled adversely to them. In the first place we note that plaintiffs’ deposit of the sum they alleged due defendant was unconditional. If the defendant had accepted it he would not be allowed to afterwards claim that he had done so as a payment on the account or in partial satisfaction of the total amount he alleged was due. Haeussler v. Duross, 14 Mo.App. 103; Adams v. Helm, 55 Mo. 468. Unless some express agreement to the contrary was reached by the parties to this regard, and there is no evidence of that nature in this case, acceptance of this tender would have prejudiced defendant’s case for payment of a greater amount. Careful to avoid this result, defendant refrained from any action that might be construed as acceptance of plaintiffs’ tender and did not withdraw the funds deposited until after judgment, doing so then only upon a recitation that such withdrawal was “in partial satisfaction”. Plaintiffs content themselves with the statement that defendant could have withdrawn this money at any time. As illustrated by Haeussler v. Duross, supra, and Adams v. Helm, supra, defendant could only have done so with prejudice to its case. Plaintiffs cannot compel defendant to accept their tender. Emerson, v. Treadway, supra. Defendant had its choice in the matter and chose not to accept. It is entitled to the benefit of the chance it took in the instant case in the form of interest upon the full amount adjudicated due it from plaintiffs. As pointed out earlier herein in City of Mexico v. Baysinger, supra, we held that in order to stop the running of interest the tender must be for the full amount adjudicated due. The tender in that case was made prior to suit hut we can perceive of no reason why the rule should be different when the tender is made after suit is filed. There is authority for the decision we reach on this issue. In Wheeler v. Cantwell, Mo.App., 140 S.W.2d 744, there was both a tender before and after suit was filed. It was there held that tender was obviously for less than the amount due and therefore insufficient to affect the running of interest. While stated as dictum the same view is expressed in Emerson v. Treadway, supra, at Head Note [6-8], 1.c. 618 of 270 S.W. 2d.

It follows from what has been above held that the issues presented by plaintiffs’ appeal must be ruled against them with the exception that the trial court should be •ordered to re-compute the interest allowed and in so doing to use May 31st of each year as the start of the interest period. That disposes of plaintiffs’ appeal and we •pass now to the contentions raised by defendant in its appeal.

The defendant presents one basic proposition; i. e., the trial court erred in refusing to decree a cancellation of this lease. It advances two arguments why cancellation ■should be decreed; first, due to the lease being assigned or the premises being sublet to the corporate plaintiff without defendant’s written consent, and second, the ■failure to pay the rentals due.

It is universally recognized that when leasing its property to Ciasen the defendant could validly impose a restriction such as that here involved and provide forfeiture as a penalty for violation of that covenant. 32 Am.Jur., Landlord and Tenant, § 325, p. 295. Plaintiffs contend there is no proof of violation of this restriction.

Under the language of the covenant in this lease it is clear the parties contemplated two separate restrictions; one against subletting the premises or any part thereof and the other prohibiting an assignment of the whole lease. Stephenson v. Morrissey, Mo.App., 230 S.W.2d 124 [2, 3]. Our courts have held that the word “sublet” means to make a sublease accompanied by a surrender of the possession and control of the premises or at least a part thereof. Stephenson v. Morrissey, supra. There is no evidence in this case whatsoever of any sublease, and we will not deal further with that restriction. Does the record disclose an assignment of the lease to the corporate plaintiff? The defendant takes the position that that matter cannot now be in dispute due to the allegation of plaintiffs’ petition ; ' to wit, “* * * the Southtown Professional Pharmacy, Inc., a corporation, of which Edward W. Ciasen is an officer and stockholder, owned the fixtures and property and assets put into said drug store hereafter referred to, and since the beginning of the lease said corporation has paid to the defendant, the basic rent as provided by the terms of said lease, and the defendant has accepted and recognized said corporation as the actual tenant of said property and the actual lessee under the terms of the lease hereinafter mentioned." We cannot agree that the petition constitutes proof of this matter. This allegation was denied by the defendant in its answer and moreover, as stated earlier herein, is clearly contrary to the facts as we find them which are that the corporate plaintiff never paid the basic rent nor did the defendant ever accept or recognize the corporate plaintiff as the actual tenant or the actual lessee. However, this does not mean we agree with plaintiffs that there is a total failure of proof as to this issue. An assignment of a lease is presumed where one other than the lessee is found in possession of the leased premises. Lucas Hunt Village Company v. Klein, 358 Mo. 1054, 218 S.W. 2d 595; 51 C.J.S. Landlord and Tenant § 37 e., pp. 558-559; 18A Mo.D. 265, Landlord & Tenant, Of course, such a presumption may be rebutted but in the instant case the plaintiffs not only failed to introduce evidence which would constitute a rebuttal but cannot now be heard to deny that there was such an assignment. Plaintiffs’ proof and theory throughout the trial and the presentation of this appeal have been based upon the contention there was an assignment of this lease from Ciasen to the corporate plaintiff who was in possession as, to quote from plaintiffs’ petition, the “actual tenant” and the “actual lessee”. There being no proof to the contrary, the presumption stands. It follows that plaintiffs have violated that provision of the lease forbidding assignment without written permission of the defendant. In view of the fact the plaintiffs’ own evidence shows the plaintiff corporation was organized prior to the time Ciasen entered into this lease with the admitted plan of operating these leased premises through it; that he never informed the defendant of that fact; signed the lease as an individual; and paid his rent and otherwise held himself out to be operating as an individual, we hold that the enforcement of the very wording of the lease he signed is not too harsh a remedy and should be decreed. This decision renders unnecessary a ruling upon the contention non-payment of rent requires us to decree cancellation.

It follows from what has been held above that this judgment should be reversed and the cause remanded to the trial court with directions to enter its judgment declaring the lease cancelled and the premises restored to the defendant; that a money judgment be entered in favor of defendant in the amount of the basic monthly rental due plus a sum equal to eight percent of the annual gross sales over $80,000.00 less cost sales as provided by the lease together with interest on such percentage rental at the rate of six percent to be computed by using May 31, 1961, as the date upon which interest is to start running. Costs of this appeal are to be taxed against the defendant.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment should be reversed and cause remanded to trial court with directions to enter its judgment declaring lease cancelled and premises restored to defendant; that a money judgment be entered in favor of defendant in the amount of the basic monthly rental due plus a sum equal to eight percent of the annual gross sales over $80,000.00 less cost sales as provided by the lease together with interest on such percentage rental at the rate of six percent to be computed by using May 31, 1961, as the date upon which interest is to start running. Costs of appeal to be taxed against defendant.

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


author: STONE, Presiding Judge.

text:
    Alice SEABAUGH, Plaintiff-Appellant, v. Jay SISK, Administrator of the Estate of Charles Junior Webb, Deceased, Defendant, and American National Fire Insurance Company, a corporation, Defendant-Respondent.
    No. 8576.
    Springfield Court of Appeals. Missouri.
    Feb. 16, 1967.
    Motion for Rehearing or to Transfer Denied March 14, 1967.
    Application to Transfer Denied May 8, 1967.

      Dempster, Edwards & Robison, Robert A. Dempster, James R. Robison, Sikeston, for plaintiff-appellant.
    Manuel Drumm, Sikeston, for defendant-respondent.
   STONE, Presiding Judge.

This action arises out of an ill-fated deer-hunting expedition on which plaintiff, her husband, a male hunting companion and his teen-age son, all residents of Sikeston, Missouri, embarked before daybreak on Sunday, October 13, 1963. About one hour later while it was yet dark, tragedy struck when the 1958 Pontiac coach owned and driven by plaintiff’s husband, then westbound on its right (the north) side of a straight, level stretch of the two-lane, 24-foot concrete roadway of U. S. Highway 60 in Scott County, Missouri, collided “approximately headon” with an eastbound 1954 Chevrolet coach owned and driven by Charles Junior Webb. The crushing impact resulted in the death of Webb, plaintiff’s husband and the teen-age son of his hunting companion, and in injuries to plaintiff and the companion.

Plaintiff’s amended petition, upon which she proceeded to trial before the court (a jury having been waived), was in three counts. On Count I, she was awarded for her bodily injuries a judgment in the sum of $5,000 against defendant Jay Sisk, as administrator of the estate of Charles Junior Webb, deceased. On Count II, she was awarded for the alleged wrongful death of her husband a judgment in the sum of $25,000 against defendant Sisk as such administrator. On Count III, she prayed for, but was denied, a judgment in the sum of $5,000 against defendant American National Fire Insurance Company, on the theory that Webb had been driving an “uninsured automobile” and that she, as an insured under the “family automobile policy” issued by defendant American National to her husband on the 1958 Pontiac coach, was entitled to the maximum permissible recovery by one person under the uninsured motorists coverage afforded by that policy. Defendant Sisk filed no after-trial motion and took no appeal, so the case is here solely on plaintiff’s appeal from the adverse judgment on Count III, thereby delivering into our hands another of the perplexing problems with which uninsured motorists coverage is pregnant.

The American National policy, on which plaintiff seeks to recover, defines an “uninsured automobile” as “(a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state . . ., no bodily injury liability bond or insurance policy applicable at the time of the accident . . . [hereinafter referred to as the no policy definition], or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder [hereinafter referred to as the denial of coverage definition] or (b) a hit- and-run automobile . . .(All emphasis herein is ours.)

At the time of the accident under consideration, i. e., on October 13, 1963, an insurance policy theretofore issued by Crown Insurance Company of Huntington, West Virginia, afforded bodily injury liability coverage in the amounts then required by our Motor Vehicle Safety Responsibility Law [V.A.M.S. § 303.030, subd. 5] with respect to any person legally responsible for the use of Webb’s 1954 Chevrolet coach. On October 18, 1963, attorney Dempster wrote Dillon Claims Service, “insurance adjusters” at Cape Girardeau, “as I (Dempster) had been informed they were adjusting for Crown,”.that he represented plaintiff and also the hunting companion and his teen-age son (apparently then still alive) in their respective claims against Webb. By letter dated October 21, 1963, which showed “cc Crown Insurance Company, St. Louis, Missouri,” Dillon acknowledged receipt of Dempster’s letter and added, “I will meet with you in the near future to discuss this matter”; and, as Dempster testified upon trial, “Mr. Ken Dillon did discuss it with me at one time.”

During January, February and March, 1964, Dempster corresponded with one Henry Tager in Crown’s “Executive Offices” at Clayton, Missouri, in an unsuccessful effort to arrange for a personal conference at a mutually convenient time. Some of this correspondence was produced and offered in evidence by Dempster. For the purposes of this discussion, suffice it to say that Tager’s replies were courteous, evidenced no effort or inclination on the part of Crown to deny coverage, expressed Tager’s willingness to confer with Demp-ster, and in each instance coupled a statement of Tager’s “unfortunate” inability to do so on the date last suggested by Dempster with an invitation for him to come at some later time, e. g., “in the early part of March” or “sometime the week of March 23, 1964.” Dempster did talk with Tager “on the telephone a time or two, one time when I was in St. Louis.” Upon trial, Dempster said that he had written Crown “because I had knowledge that there was a policy of insurance in existence on the Webb motor vehicle.”

On April 2, 1964, Jay Sisk was appointed as “personal representative and administrator of the estate of Charles Junior Webb, deceased,” by and in the Probate Court of Scott County, Missouri. V.A.M.S. § 537.020. On the following day, to wit, on April 3, this action was instituted in the circuit court by the filing of plaintiff’s petition against defendant Sisk, as such administrator; and, on April 4, service was obtained upon said defendant. On April 7, Sisk mailed to Crown’s office at Clayton, Missouri, a certified copy of his appointment by the probate court and the summons and petition herein. Crown made no response and did not contact Sisk with re spect to defense of the instant suit.

Plaintiff’s attorney Dempster received during May 1964 a long printed notice (received in evidence without objection) dated at Huntington, West Virginia, on May 7, 1964, from “Harlan Justice, Insurance Commissioner State of West Virginia and Receiver” to “the Policyholders, Creditors, Stockholders, and All Other Persons Interested in the Affairs of Crown Insurance Company, of Huntington, West Virginia, a West Virginia corporation.” Those portions of the notice relevant to this discussion were to the effect (a) that, by order of the Circuit Court of Cabell County, West Virginia, entered on May 7, 1964, Justice in his official capacity as Insurance Commissioner had been directed “to take possession of the property and to liquidate the business of Crown,” (b) that, by the aforesaid order, Crown’s charter as a -West Virginia corporation “is forfeited, surrendered and annulled” and the rights and liabilities of Crown and of all persons under insurance and other contracts “ceased and are fixed” as of twelve o’clock midnight on May 20, 1964, (c) that “all persons having any unsatisfied claims or demands of any character against [Crown] are hereby required to file with, deliver, and present the same in writing duly verified” to Justice within four months, to wit, on or before September 7, 1964 (d) that “all persons against whom actions are now pending concerning which [Crown] may be liable on its policies and which have been defended up to the date of liquidation order on their behalf by an attorney employed or retained by [Crown], are advised that the employment or retainer of the said attorney has been terminated by the entry of the order of liquidation,” and (e) that “liabilities will be determined as to all claims duly presented and all assets will be distributed according to the Insurance Law of the State of West Virginia.” On cross-examination, Demp-ster frankly conceded that instant plaintiff had filed a claim with Justice, although “we have heard nothing from it.”

On this state of facts, it is clear that the Webb Chevrolet was not an “uninsured automobile” under the no policy definition in the American National policy on which plaintiff seeks to recover, i. e., an automobile on which there was “no bodily injury liability bond or insurance policy applicable at the time of the accident.” Swaringin v. Allstate Insurance Co., Mo.App., 399 S.W. 2d 131; Stone v. Liberty Mutual Insurance Co., Tenn.App., 397 S.W.2d 411; Hardin v. American Mutual Fire Ins. Co., 261 N.C. 67, 134 S.E.2d 142, 147-148(4, 5); Rice v. Aetna Casualty and Surety Co., 267 N.C. 421, 148 S.E.2d 223, 225(3); Federal Insurance Co v. Speight, D.C. S.C., 220 F.Supp. 90, 94-95(5). But plaintiff insists that the Webb Chevrolet did become an “uninsured automobile” within the meaning of the denial of coverage definition, i. e., an automobile on which there was a bodily injury liability insurance policy “applicable at the time of the accident but the company writing the same denies coverage thereunder.” Before proceeding to a discussion of that contention, we emphasize preliminarily that plaintiff’s counsel specifically disavow any belief “that the definition provided by the policy is ambiguous.”

Reduced to its simplest terms, the determinative question here becomes whether Crown denied coverage by going into receivership during the seventh month after the accident of October 13, 1963, and failing to defend Webb’s administrator against Counts I and II of plaintiff’s petition. Counsel have cited, and we have found, no reported Missouri case defining the critical words “denies coverage” or dealing with the precise problem here presented. However, both the verb “deny” and the noun “coverage” are familiar words frequently used and, in the absence of any indication that the parties to the policy contract entertained a contrary intention, should be accorded their plain and ordinary meaning. Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 554, 142 S.W.2d 474, 477(2), 129 A.L.R. 1094; Allen v. Globe-Democrat Publishing Co., Mo., 368 S.W.2d 460, 466(6). See Kisling v. MFA Mutual Ins. Co., Mo.App., 399 S.W.2d 245, 253 (11); Katz Drug Co. v. Kansas City Power & Light Co., Mo.App., 303 S.W.2d 672, 680(8).

To “deny” is “to refuse to grant; to withhold.” Webster’s New International Dictionary (2nd Ed.), p. 700. In the field of insurance, “coverage” refers to “[t]he aggregate of risks covered by the terms of a contract of insurance.” Id., p. 613. Or, as several courts have said, “ ‘coverage’ means ‘the sum of risks which an insurance policy covers.’ ” Federal Life Ins. Co. v. Wells, 98 Colo. 455, 56 P.2d 936, 938; Freimuth v. Glens Falls Ins. Co., 50 Wash.2d 621, 314 P.2d 468, 471(3); Government Employees Ins. Co. v. Woods, 59 Wash.2d 173, 367 P.2d 21, 26(6). In short, “coverage” ordinarily refers to the risks or hazards assumed by the insurer and covered by the policy. Both of the policies in evidence here, i. e., the policy issued by defendant American National on which plaintiff seeks to recover and that issued by Crown on the Webb Chevrolet, are generously flecked with the terms “coverage” and “coverages.” Careful examination of both policies, with particular attention to the context in which those words appear, leaves us in no doubt but that they were used throughout both policies in their ordinary and usual sense. For example, on the “declarations page” of defendant American National’s policy there is a column captioned “Coverages” under which are listed seven categories of risks or hazards, including “A. Bodily Injury Liability, B. Property Damage Liability . . . G. Uninsured Motorists,” with parallel columns for “Limits of Liability” and “Premiums” which show, inter alia, that the policy afforded uninsured motorists coverage with limits of $5,000 for each person and $10,000 for each accident, for which a premium of $2 was charged. And that portion of the policy dealing with this coverage is prefaced by the bold-faced heading “Coverage G — Uninsured Motorists (Damages for Bodily Injury).”

All of the prior cases, still a mere handful in number, which have undertaken to define, or have turned upon the meaning of, the words “denies coverage” or the phrase “to deny coverage,” have been reported within the past six years and all have arisen in states in which public policy theretofore had been formulated and declared in legislative enactments designed to provide compensation for innocent persons injured by negligent uninsured motorists, either by making uninsured motorist coverage mandatory in all automobile liability policies issued in those states (e. g., as in Virginia, North Carolina, South Carolina and California) or by establishing so-called unsatisfied claim and judgment funds (e. g., as in New Jersey and Maryland) or by setting up a statutory plan combining the features of the first two alternatives (e. g., as in New York).

Defendant American National leans heavily on Uline v. Motor Vehicle Accident Indemnification Corp., 28 Misc.2d 1002, 213 N.Y.S.2d 871, 874, where it was held that postaccident receivership of the tortfeasor’s liability insurance carrier did not bring plaintiff Uline within the statutory provision permitting the filing of claims for benefits on account of injuries inflicted by “insured motor vehicles where the insurer disclaims liability or denies coverage.” Insurance Law, McKinney’s Consol.Laws, c. 28, § 600. Pertinent to our inquiry are the following definitive statements in-the opinion: “To deny coverage is to take the position that for some reason or other the policy does not encompass the particular accident. No such claim is made here. A disclaimer of liability usually arises where there is coverage, but because of some action on the part of the insured, the company refuses to respond. This refusal could be for lack of cooperation by the insured, fraud perpetrated by the insured on the company or serving late notice of the accident, just to mention a few. There is no disclaimer in the present case.” 213 N.Y.S. 2d at 874(3, 4). The above-quoted definition of the phrase “to deny coverage” was commended as “accurate” in Rivera v. Motor Vehicle Accident Indemnification Corp., 44 Misc.2d 585, 254 N.Y.S.2d 480, 482, motion for leave to appeal denied 15 N.Y.2d 485, 258 N.Y.S.2d 1025, 206 N.E.2d 363 (1965). And both definitions in the foregoing excerpt from Uline, supra, were quoted with approval in Parrot v. Chiselko, 74 N.J.Super. 138, 180 A.2d 710, 714 (1962), and in Unsatisfied Claim and Judgment Fund Board v. Holland, 241 Md. 294, 216 A.2d 525, 528-529 (1966). Furthermore, it has been held that even the failure of a solvent insurer to defend a suit against one reported to have been an insured or to make any response to repeated inquiries as to the reason for its nondefense did not constitute either a denial of coverage or a disclaimer of liability. Application of DiStefano, 34 Misc.2d 68, 228 N.Y.S.2d 404.

Instant plaintiff relies principally upon State Farm Mutual Auto. Ins. Co. v. Brower, 204 Va. 887, 134 S.E.2d 277, where it was held that, by failing to defend the damage suit brought by Brower, State Farm’s insured, against tortfeasor Mazza and to pay the judgment rendered therein, Mazza’s liability insurer in receivership “denie[d] liability” and thereby made the Mazza automobile “an uninsured motor vehicle” within the meaning of the denial of liability definition in the Virginia statute. In the course of reaching that conclusion, the court, after a proper definitive statement that “[t]o deny means to withhold, to refuse to grant,” suggested that “[a] person in distress is denied help when one who hears his cries says nothing but walks away.” 134 S.E.2d at 280. However, it seems to us that the position of an insolvent insurer in receivership is more nearly like unto that of one who hears the cries of another in distress but, already prostrate and impotent himself, simply cannot respond. But that aside, the overriding consideration in State Farm, supra, appears to have been that “the Virginia uninsured motorist legislation is remedial in nature” and “ ‘is to be liberally construed so that the purpose intended may be accomplished.’ ” 134 S.E.2d at 281(4).

After pointing out that the South Carolina mandatory uninsured motorist statute had been modeled after the Virginia statute and after expressing the view that the holding in State Farm, supra, “is consistent with the language of the statute and with its spirit and purpose,” the Supreme Court of South Carolina reached the same conclusion in North River Insurance Co. v. Gibson, 244 S.C. 393, 137 S.E.2d 264 (1964), also cited by instant plaintiff. In this connection, it is worthy of note that the South Carolina statute, theretofore containing a no policy definition and a denial of coverage definition of an “uninsured motor vehicle,” had been amended in 1963 (after the accident out of which North River, supra, arose but before determination of that case) by including a third definition, to which we refer as an insolvency definition, to wit, “a motor vehicle as to which . . . there was such [liability] insurance, but the insurance carrier who wrote the same is declared insolvent, or is in delinquency proceedings, suspension, or receivership, or is proven unable fully to respond to a judgment.” 1963 Code Supplement § 46-750.31 (3) (c). We are aware that in North River, supra, the Supreme Court of South Carolina discovered a trail of escape from the principle that a statute as amended should be construed on the theory that the legislature intended to accomplish something by the amendment [State v. Chadeayne, Mo. (banc), 323 S.W.2d 680, 684 (2); State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W.2d 877, 880(6)] and arrived at the conclusion that “the purpose and effect of the amendment was to clarify rather than to broaden the coverage afforded by the statute” prior to amendment. 137 S.E.2d at 267. However, we observe also that, subsequent to the 1963 amendment but prior to North River, supra, a contrary result had been reached in Federal Insurance Co. v. Speight, D.C.S.C., 220 F.Supp. 90, that court more logically and realistically (so it seems to us) having believed “[i]t . . . apparent from this [statutory] amendment that the Legislature realized that the existing law failed to provide for a situation where a motorist . . . was insured at the time of the collision, but his insurance carrier subsequently became insolvent before the claimant could collect his damages” [220 F.Supp. at 95] and having construed the amended statute on the above-noted theory that the legislature had intended to accomplish something by the amendment.

The North Carolina statute making uninsured motorist coverage mandatory in all automobile liability policies issued in that state [G.S. § 20-279.21] was amended in 1965 to include an insolvency definition of an uninsured motor vehicle, to wit, “an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability within the limits specified therein because of insolvency.” Chapter 156, Session Laws of 1965. The same amendatory act included other appropriate provisions, i. e., (a) affording this statutory “insolvency protection” only “where the liability insurer oí the tort-feasor becomes insolvent within three years” after the date of accident, and (b) giving the uninsured motorist carrier the right of subrogation against the tort-feasor’s insolvent liability carrier. Although unnecessary to determination of that case, the Supreme Court of North Carolina commented in Buck v. United States Fidelity & Guaranty Co., 265 N.C. 285, 144 S.E.2d 34, 37-38 (1965), that the above amendatory act would “preclude the result” theretofore reached by the same court in Hardin v. American Mut. Fire Insurance Co., 261 N.C. 67, 134 S.E.2d 142 (1964), where it had been decided that the tortfeasor’s automobile “did not become an ‘uninsured automobile’ by reason of the subsequent receivership and insolvency of the liability insurer.” 144 S.E.2d at 37.

The only other case found by us which deals with the question under consideration is Katz v. American Motorist Ins. Co., Cal. App., 53 Cal.Rptr. 669 (1966), where the court followed State Farm, supra, in deciding that “an insurer who becomes insolvent ‘denies coverage’ within the meaning of [West’s Ann.Insurance Code] section 11580.2, subdivision (b)” [53 Cal.Rptr. at 672(4, 5)], the California statute containing a denial of coverage definition of an “uninsured motor vehicle.” Again, the rationale was that the cited statute was “a part of a pattern of statutes . . . ‘designed to give monetary protection’ ” to innocent persons injured by negligent uninsured motorists, that “[s]uch statutes must be liberally construed to carry out this objective,” and that “[t]he statutory objective is not attained by giving the injured person a claim against an insolvent.” 53 Cal.Rptr. at 672. Ergo, insolvency was a denial of coverage.

However, none of the cited cases reflecting judicial efforts to implement and attain statutory objectives reach or rule our case. For, in Missouri uninsured motorist coverage is permissive and has not been a subject of special legislative attention and action; and, in the absence of inhibition by statute or public policy, the parties to an insurance policy are free to make their own contract containing such provisions as the contracting parties are willing to accept and adopt. Kisling v. MFA Mutual Ins. Co., supra, 399 S.W.2d at 252-253(10), and cases there cited.

“Denies coverage” is not a linguistic “Mother Hubbard” within whose enveloping warmth may be gathered all circumstances, conditions and contingencies arising subsequent to an accident which might prevent an injured person having uninsured motorist coverage from making full financial recovery from the tortfeasor. We regard the hereinbefore-quoted definitions in Uline, supra, 213 N.Y.S.2d at 874 (approved in the cited New Jersey and Maryland cases), as accurate and sound. But, even if “denies coverage” as used in defendant American National’s policy be considered as including all that was embraced in the Uline definitions of “to deny coverage” (i. e., “to take the position that for some reason or other the policy does not encompass the particular accident”) and “disclaimer of liability” (i. e., “there is coverage, but because of some action on the part of the insured, the company refuses to respond” as “for lack of cooperation by the insured, fraud perpetrated by the insured on the company or serving late notice of the accident”), there was not a scintilla of evidence that Crown denied coverage under the policy issued to tort-feasor Webb or that it failed to afford protection to defendant Sisk, Webb’s administrator, for any reason other than that it had become insolvent and had been placed in receivership. Crown’s failure to defend was a breach of contract, not a denial of liability. Application of DiStefano, 34 Misc.2d 68, 228 N.Y.S.2d 404. In our considered judgment, Crown’s insolvency and its failure to defend Sisk are neither to be equated with, nor reasonably to be found within the legitimate connotations of, “denies liability"

“Courts are without authority to rewrite contracts, even insurance contracts, although it may appear that in some respects they operate harshly or inequitably as to one of the parties . . . .” Prange v. International Life Ins. Co. of St. Louis, 329 Mo. 651, 661, 46 S.W.2d 523, 526(5), 80 A.L.R. 950; State Mut. Life Assur. Co. of Worchester, Mass. v. Dischinger, Mo., 263 S.W.2d 394, 402(6); Lachterman v. Mutual Ben. Health & Acc. Ass’n., Mo. App., 60 S.W.2d 646, 648(3).

The judgment for defendant American National on Count III of plaintiff’s petition is affirmed.

HOGAN and TITUS, JJ., concur.

On Motion for Rehearing or to Transfer

PER CURIAM.

In the interval since our opinion was handed down, Pattani v. Keystone Insurance Co., 209 Pa.Super. 15, 223 A.2d 899 (Nov. 1966) has been reported. The opinion in Pattani disposed of two consolidated cases which involved the same determinative issue as that in the case at bar and, by the same reasoning, reached the same conclusion as we have. As in Pattani, supra, 223 A.2d at 902: “The court is well aware of the detriment suffered by the innocent appellants in this decision. Any broadening of the coverage provided by such [uninsured motorists] insurance must, however, be the result of legislation or contractual bargaining, and not by this court.”

Instant plaintiff’s motion for rehearing or, in the alternative, to transfer this cause to the Supreme Court of Missouri is overruled.

All concur.

      . In Swaringin v. Allstate Insurance Co., Mo.App., 399 S.W.2d 131, the policy in suit did not contain the denial of coverage definition, and the determinative issue there presented and ruled was as to the alleged ambiguity of the no policy definition.


author: DAVIS, Commissioner. STEINFELD, Judge

text:
    CITY OF SOMERSET, Kentucky, and Clarence E. Love, Appellants, v. Thomas H. REID, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.
    Rehearing Denied May 5, 1967.
    Viley O. Blackburn, Somerset, for appellants.
    Fritz Krueger, Somerset, for appellee.
   DAVIS, Commissioner.

The question presented requires interpretation of statutory provisions as they affect the salary of the police judge of Somerset for the term beginning on the first Monday in January, 1966. The trial court held that Somerset’s ordinances undertaking to fix the salary at $237.50 per month failed to supersede KRS 26.170 wherein the appropriate salary is fixed at $6,000 per annum. This appeal challenges the propriety of that ruling.

KRS 26.170 became effective June 18, 1964, and provides:

“The police court in cities of the third class shall have one police judge. The judge shall enter upon the discharge of the duties of his office on the first Monday in January next after his election. He shall receive an annual salary of $6,000.00 unless the city legislative body fix such salary by ordinance in which event the salary shall not be less than $2,400.00 per annum. The salary will be paid in equal bi-monthly installments out of the city treasury, and he shall receive no other compensation except the fees allowed to judges for holding examining trials. He shall have each year, a vacation of one month. No person shall be eligible to be police judge unless, at the time of his election, he is at least twenty-four years of age, is a qualified voter in the city, and has been an actual resident of the city for at least two years next preceding his election.”

Somerset is a city of the third class. KRS 81.010.

By an ordinance designated as No. 309, adopted June 28, 1965, the legislative body of Somerset undertook to fix the salary of its police judge for the term beginning on the first Monday in January, 1966, at the sum of $237.50 per month, payable monthly.

The parties stipulated below that a Somerset ordinance had been in effect for several years by which the salary for the police judge was set at $237.50 per month. There appears to be no dispute that the older ordinance had specified the police judge’s salary at $237.50 per month, on a term-to-term basis.

The appellee was elected as police judge at the election held November 8, 1965, pursuant to his having filed a petition of nomination in September, 1965, after the adoption of Ordinance No. 309 fixing the salary at $237.50 per month.

There are two other statutory provisions which merit consideration, since they are injected into the contentions of the litigants. The first of these is KRS 64.580, and is thus worded, so far as here pertinent:

“The legislative body of each city shall fix the compensation of every city officer and employe, * * *. In the case of city officers elected by popular vote for terms commencing after June 30, 1950, the annual compensation of the officer shall be fixed by the city legislative body not later than the first Monday in May in the year in which such officers are elected, and shall not be changed during the term. * * * ”

The third statute to be considered is KRS 64.730, which we quote for convenient reference :

“Where any public body is required by KRS 64.480 to 64.760 to fix the compensation of an officer, and of his deputies and assistants, for terms commencing after June 30, 1950, not later than the first Monday in May in the year in which such officers are elected, and the body fails to do so, the compensation of the officer, and of his deputies and assistants, shall be the same as for the preceding term.”

The position of appellee, and the one adopted by the trial court, is that KRS 64.730 has no application, and cannot “save” the old salary ordinance which existed prior to June 18, 1964, ■ effective date of KRS 26.170. Moreover, reasons the appellee, Somerset’s ordinance No. 309, having been adopted on June 28, 1965, fails of affecting the salary in question because it was adopted after the first Monday in May, 1965, the year in which the election for the office was held.

It is our view that the construction urged by appellee and adopted by the trial judge is not the proper one. We start from the premise that until June 18, 1964, when KRS 26.170 became effective, Somerset was required by the provisions of KRS 64.580 to-fix the salary of all officers, including the salary of the police judge. That same statute not only required Somerset to fix the-salary of the police judge, but provided a. deadline not later than the first Monday in May of the year in which the election for police judge was to be held. KRS 64.730 enunciates a “saving” law to provide for instances in which the legislative body of the city may have failed to fix the salary as. required by KRS 64.580.

But on June 18, 1964, KRS 26.170 removed the requirement that Somerset fix the salary of the police judge. The General Assembly fixed that salary at $6,000. We think it is manifest that Somerset could not be “required” to fix the salary of the police judge (as it formerly had been required by KRS 64.580) in face of the subsequent legislative action specifically fixing it.

However, KRS 26.170 did not stop at fixing the salary of the police judge at $6,000. Rather it contains in its provisions an option permitting the city to fix the salary of its police judge, provided only that the city may not fix that salary at a sum less than $2,400 per year. Conspicuously absent from the provisions of KRS 26.170 is any “deadline” after which the city is precluded from exercising its legislatively granted option to fix the salary of the police judge. We have seen that the General Assembly was careful to spell out a deadline in KRS 64.580, when it required the city to fix the police judge’s salary, and we can perceive no basis for assuming that the legislature “forgot” to put a deadline in KRS 26.170. Neither can we discern any basis in law or logic which impels the conclusion that KRS 64.580 yet has the effect of imposing a deadline as to the salary of the police judge. It seems anomalous to us to suggest that KRS 26.170 removed the police judge from the provisions of KRS 64.580 as respects its previous mandate to fix his salary and then in some mysterious and unwritten way left the police judge’s salary in that category which is required to be fixed before the May deadline.

We think our position is buttressed in the fact that the legislature fixed the salary of the police judge at $6,000 vis-a-vis the former permissive statute which required only that the minimum for that office should be $600 per year. KRS 26.170 so provided prior to its enactment in its present form in 1964. When that significant change was made in the fiscal responsibility of third class cities the legislature providently afforded the affected municipalities a modicum of “home rule” by permitting them to fix the salary at a lesser sum, so long as it was at least $2,400. It is obvious, therefore, that KRS 26.170 fixed the salary at $6,000 unless the city should fix the salary. This meant that the city had the affirmative duty to act, but nowhere was the city told that this important .affirmative duty had to be accomplished at a specified time. In our judgment, if the legislature had intended to impose a fixed deadline for this significant municipal action it would have said so in clear terms. Its pointed omission of such a deadline lends strong support to the proposition that none was intended.

We do not reach the question as to whether Somerset could have acted after the filing of nominating petitions, or after the November election. The simple fact is that Somerset acted before either of those events, and all persons desiring to offer themselves for the office were on notice of the emoluments thereof. We conclude that Somerset acted in a timely manner in compliance with the option afforded it in KRS 26.170, and the judgment of the lower court to the contrary is erroneous.

The judgment is reversed with directions to enter a new judgment in conformity with this opinion.

WILLIAMS, C. J., and HILL, MILLI-KEN, MONTGOMERY and PALMORE, JJ., concur.

OSBORNE and STEINFELD, JJ., dis-. sent.

STEINFELD, Judge

(dissenting).

The General Assembly did not repeal KRS 64.580. The council fixed the salary after the “deadline.” That ordinance was void as to Reid.

The General Assembly set the salary of the police judge at “$6,000.00 unless the city legislative body fix such salary by ordinance * * *.” KRS 26.170. Fix means “to establish; give permanence or a permanent character to; make permanent, confirm.” Century Dictionary and Cyclopedia. Fix is defined by the Standard Dictionary as “to decide definitely; make sure ; settle; determine.” Ft. Miller Pulp & Paper Co. v. Bratt, 119 App.Div. 685, 104 N.Y.S. 350, 356. Webster defines the word, “fix” as meaning “to settle or remain permanently.” Huck v. Gaylord, 50 Tex. 578, 582. In Woodcock v. Dick, 36 Cal.2d 146, 222 P.2d 667, 669 it was said that to “fix compensation” is to prescribe a rule or rate by which it is to be determined. The council did not fix a salary.

It is my opinion that the trial court was correct in holding that Reid, Police Judge is entitled to $6,000 salary, per annum.

OSBORNE, J., joins in this dissent.


author: CLAY, Commissioner.

text:
    Jesse TAYLOR, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Rehearing Denied May 5, 1967.
    David Kaplan, Stuart L. Lyon, Louisville, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

Appellant was found guilty of indecent and immoral practices and sentenced to five years in prison. He raises two questions on appeal.

During the course of the trial, when appellant’s attorney was cross-examining one of the prosecution’s witnesses, the trial judge in the presence of the jury twice reprimanded the attorney and fined him for contempt of court. It is contended that the court’s conduct was improper and was highly prejudicial to appellant.

In examining the cold record before us, it appears the action of the court, particularly the fining of the attorney in the presence of the jury, may have created an atmosphere so unfavorable to appellant as to have constituted reversible error, provided the question had been preserved for appellate review. See Merritt v. Commonwealth, Ky., 386 S.W.2d 727.

However, the objection appellant now raises was not presented to the trial court and must be deemed waived. Appellant did not object to the alleged misconduct nor did he request any curative relief at the time it occurred or at any time during the trial. See Taylor v. Commonwealth, Ky., 403 S.W.2d 713. Assuming the alleged misconduct was of such character that appellant’s counsel was not required to make an objection (and further prejudice his client’s position) at the time of the occurrence, certainly the question should have been raised in a motion for a new trial. Although such a motion was filed and one of the grounds was “the court should have declared a mistrial during the proceedings”, this still did not specify the alleged error. It is fundamental that we will not review a case for an alleged error of this nature that is never called to the trial court’s attention for a ruling. See Collins v. Commonwealth, Ky., 297 S.W.2d 54; Young v. Commonwealth, Ky., 335 S.W.2d 949; York v. Commonwealth, Ky., 395 S.W.2d 781. The alleged error is not before us for review.

The other contention of appellant is that the trial court erred in failing to advise the wife of appellant, who appeared as a prosecution witness, that she could refuse to testify against him. KRS 421.210(1) provides (among other things) that neither spouse may be compelled to testify for or against the other. Here again appellant failed to raise this question by objection or otherwise. In any event, we know of no reason or authority which would require the court to admonish a witness as appellant proposes. See York v. Commonwealth, Ky., 395 S.W.2d 781.

The judgment is affirmed.

WILLIAMS, C. J., and PALMORE, MONTGOMERY, MILLIKEN, STEIN-FELD and OSBORNE, JJ., concur.


author: R. C. TARTAR, Special Commissioner.

text:
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellant, v. Janies W. WALTERS, Appellee.
    Court of Appeals of Kentucky.
    Jan. 20, 1967.
    Rehearing Denied May 5, 1967.

      Carl L. Wedekind, Jr., Stites, Peabody & Helm, Louisville, for appellant.
    Benjamin Mazin, Louisville, for appellee.
   R. C. TARTAR, Special Commissioner.

The plaintiff, James W. Walters, obtained a judgment in the sum of $6,182.25 against the defendants, Southern Bell Telephone and Telegraph Company and Margaret L. Gray, in a trial before a jury. The defendant Southern Bell appeals. Mrs. Gray has not appealed.

The complaint alleged that while an invitee in the place of business of Margaret L. Gray, known as Sportsman’s Bar, plaintiff was caused to and did trip over a metal strip which had been installed and maintained by the defendant Southern Bell; that said metal strip which had been screwed to the floor had become unsafe and dangerous ; that the screws had worked their way out, and the strip had become loose and unfastened ; and that, due to the negligence of the defendants individually, jointly and concurrently, in maintaining the strip of metal in such dangerous and defective condition, he was caused to trip over same, and was thereby injured, for which he sought damages, including recovery of medical and hospital bills and wages alleged to have been lost.

The defendant Southern Bell pleaded among other things that at the time and place of his injury the plaintiff was himself guilty of negligence, and that his own negligence contributed to cause and bring about his injuries, if any.

At the conclusion of all the evidence Southern Bell’s motion for a directed verdict was overruled. After judgment had been entered Southern Bell moved for a judgment notwithstanding the verdict, and this motion also was overruled.

The arrangement of the Sportsman’s Bar, so far as material here, was similar to other bars providing both food and drink. There was a front or service bar at which patrons were served standing, and a back bar parallel to it along the south wall of the interior, used mainly for the display and storage of wares dispensed over the service bar. The two bars were some 25 or more feet long, and there was a concrete walkway between them, about 3 feet wide, for the use of bartenders and other service personnel. At the front a flap or panel connected the two bars, which lifted up on hinges to provide passage into the walkway and inner bar area.

Also at the front, a pay telephone rested on a swivel on the corner of the service bar. The telephone wire entered the building through the south wall, crossed the floor and walkway area near the front of the two bars, and then ran up the side of the service bar to the telephone connection. In crossing the floor and walkway the wire was encased in a metal molding or floor duct, the bottom strip of which was secured to the floor by screws set in lead anchors, and the top strip was fastened over the bottom with snaps. The center of the top strip was from three-eighths to one-half inch above the surface of the concrete floor, and for safety the sides of this strip were beveled or slanted downward from the center to their connection with the bottom or floor strip. The inner walkway between the two bars was partially covered by rubber mats running from near the metal molding to the rear of the bars.

Margaret L. Gray had owned the Sportsman’s Bar for five years. The pay station and the metal molding encasing the wires as they crossed the floor and walkway were there when she took possession and had remained there. The metal molding was in plain view, visible to all who used the walkway.

The accident in suit occurred about 1:00 A.M. on April IS, 1964. Walters had entered the bar some minutes earlier. He was on familiar ground. The owner of the bar, Margaret L. Gray, was his mother-in-law, and his stepfather-in-law, Lee Gray, was its manager. Walters was having a cup of coffee at the service bar when Gray asked him to take some currency from the cash register to the Franklin Liquor Store a short distance away and exchange it for silver to meet the morning trade. Walters said he would do this.

To obtain the currency Walters walked to the front of the two bars, through the flap, over the metal molding, and down the walkway to the cash register which stood on the back bar about half way down the walkway. He took $40 in bills from the cash register, and his testimony is that while retracing his steps along the walkway toward the front of the bar his foot went under the metal molding, causing him to fall and sustain injuries.

It is uncontradicted that the metal molding had deteriorated from rust, that the screws holding the bottom strip to the floor had rusted away and were loose, and that this condition had existed for some time. Lee Gray testified that he had notified Southern Bell of this fact and asked that the strip be repaired or replaced.

At the time of his fall Walters was an invitee on the premises. It is undisputed that the telephone equipment in the bar, including the strip and wire it protected, were the property of Southern Bell and that Southern Bell had pre-empted the small space on the floor of the walkway between the service bars occupied by the metal strip.

It was the duty of Southern Bell to keep the metal strip or molding in reasonable repair, and in a reasonably safe condition, and it owed this duty to all persons having proper business to use the walkway including Walters, in this instance, but Southern Bell was not the insurer of the safety of such persons. Branham’s Adm’r v. Buckley, 158 Ky. 848, 166 S.W. 618; Bridgford v. Stewart Dry Goods Co., 191 Ky. 557, 231 S.W. 22; J. C. Penney Co. v. Mayes, Ky., 255 S.W.2d 639.

It is also the law in this jurisdiction that an invitee’s right to assume that the premises which he has been invited to use are reasonably safe does not relieve him of the duty to exercise ordinary care for his own safety, nor license him to walk blindly and nonchalantly into dangers and obstacles which are obvious, plainly to be seen by him and entirely visible, or which are known to him, or would be anticipated by any person of ordinary prudence. Lyle v. Megerle, 270 Ky. 227, 109 S.W.2d 598; J. C. Penney Co. v. Mayes, Ky., 255 S.W.2d 639.

As stated, Walters was on familiar ground at the time and place of the accident. His own testimony is that he was not only a frequent visitor at the bar, but a member of the family that owned and operated it. More than this, he had worked there as a bartender two years before, and from time to time since then he had “filled in” for his stepfather-in-law at the bar and had performed other occasional jobs for him.

For five years he had known the Sportsman’s Bar as an employee, handyman, relative and visitor.

Walters’ own testimony is that he was familiar with the metal molding enclosing the telephone wires, had seen it many times, knew exactly where it was, and had walked over it many times. On his way to the cash register that night he had walked over it without difficulty. And he knew, although he testified that he had forgotten it, that the metal molding was loose, and in a defective condition. Lee Gray had told him about it a month before the accident.

At the time and place of his injury, did Walters exercise ordinary care for his own safety? Did he keep the proper lookout to discover and avoid dangers and obstacles in his path, plainly visible and obvious, and known by him to be on the walkway, or that would be anticipated by any person of ordinary prudence?

We will let the further testimony of Walters answer this question.

Q- “How high is this metal strip on the floor, how — ”
A- “Well, (interrupting) normally it is — it is just a thin metal strip, that covers the wire that — screws to the floor. As far as I know of.”
Q- “Well could you tell me about how high it extends above the floor?”
A- “Well it — normally it stands say maybe a quarter of an inch. Something like that.”
Q- “Now on this particular occasion was it more than a quarter of an inch?”
A- “I don’t know. Couldn’t tell you, I didn’t — ”
Q- (Interrupting) “Sir ?”
A- “I couldn’t tell you, because I don’t know. I wasn’t looking. If I was looking I might not have tripped over it.”
Q- “All right, sir. Now as you went behind the bar the first time (to the cash register) it was necessary for you to walk in the area where the floor duct was, is that correct?”
A- “That’s right.”
Q- “All right did you have any difficulty in walking over it?”
A- “No.”
Q- “All right. Now as you returned from the cash register heading toward the floor duct and towards the outside of the bar I will ask you whether or not you looked down in the direction in which you were walking on the floor ?”
A- “I didn’t look at my feet.”
Q- “You did not?”
A- “I don’t look down when I walk.”
Q- “Did you on this occasion look in the vicinity in front of you down where you were going to walk?”
A- “I was looking straight ahead.”
Q- “Is the answer to my question then no, you did not ?”
A- “I answered the question. I was looking straight ahead.”
Q- “Did you look at the floor ahead of you where you were going to walk ?”
A- “No.”
jfe * ⅜ * >{c *
Q- “Were there any obstructions to keep you, or to keep anyone from seeing that floor duct, when they were standing behind the bar, and walking in the general area that you were walking from the cash register out from behind the bar ?”
A- “In other words,, where you couldn’t see it, no, sir.”
Q- “Your answer was: ‘No, sir’?”
A- “That’s right, I don’t know.”
Q- “There are none that you know of are there?”
A- “No, sir.”

We find striking analogies in fact and in legal principles with the case at bar, in the cases of J. C. Penney Co. v. Mayes, Ky., 255 S.W.2d 639; Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405; and O. K. Tire Store v. Stovall, Ky., 392 S.W.2d 43. The decision here clearly falls within the compass of the law stressed by the court in those opinions.

In the J. C. Penney case the plaintiff tripped over a step-down from a sidewalk to the vestibule of the store. She admitted that she was looking at a boy in the store window instead of looking where she was walking. The court held that she was con-tributorily negligent as a matter of law on the following grounds:

“An invitee’s right to assume that premises which he has been invited to use are reasonably safe does not relieve him of the duty to exercise ordinary care for his own safety nor license him to walk blindly into dangers which are obvious, known to him, or that would be anticipated by one of ordinary prudence. Lachat v. Lutz, 94 Ky. 287, 22 S.W. 218, 15 Ky.Law Rep. 75, and Lyle v. Megerle, 270 Ky. 227, 109 S.W.2d 598.
“Appellee testified that she walked toward the step-down in broad daylight and that her eyes were riveted on a boy who was picking up something in a show window at the time she fell. She confessed she could have seen the step if she had been looking down at the time. It appears that appellee’s accident resulted from her own conceded negligence; therefore, the company is not legally responsible for injuries she brought upon herself by her lack of ordinary care for her safety. There is no justification for her failure to watch her step because her gaze was irresistibly drawn to movements in the show window, as counsel seem to imply in their brief. To uphold this theory would make the company liable as an insurer and not because of negligence. Cates v. Evans, Mo.App., 142 S.W.2d 654.” 255 S.W.2d at p. 643.

The Humbert case parallels the case at bar both in substantial details and in applicable legal principles. Humbert, on a visit to the Audubon Club, of which he was a member, slipped and fell in an aisle from which the usual rubber runner had been temporarily removed. He had walked over the same area only a short time before. The court in sustaining the trial court’s direction of a verdict for the defendant said:

“Dr. Humbert’s testimony shows that he was paying no attention at all to his footing. According to his testimony, if he had looked down at the floor upon which he was walking, he could have well observed not only the changed position of the runner but also the slick condition of the floor. He testified that he fell as he started to make the right turn to go into the vestibule. What was he doing when he started to make the turn? The following testimony answers the question:
Q- “What were you looking at as you turned the corner ?”
A- “Looking straight ahead.” 313 S. W.2d at p. 407.

In the O. K. Tire Store case the plaintiff stepped backward into a bucket of lye and was burned. The court held that he was contributorily negligent and could not recover. After quoting with approval from the J. C. Penney case the opinion states:

“Under the testimony in this case the only negligence shown by the undisputed facts is that of the appellee in stepping backward into a hazard which he should have seen. A five-gallon bucket is a sizable article that would require some high stepping in order to put one’s foot into it. As was pointed out in Allen v. Dillman, Ky., 249 S.W.2d 23, ‘The duty to make reasonable use of faculties to observe and discover conditions of danger is included within the duty to exercise ordinary care to avoid injury.’ To the same effect see Price v. T. P. Taylor Co., 302 Ky. 736, 196 S.W.2d 312; Humbert v. Audubon Country Club, Ky., 313 S.W. 2d 405; and Leslie Four Coal Co. v. Simpson, Ky., 333 S.W.2d 498, 84 A.L.R. 2d 728.” 392 S.W.2d at pp. 44-45.

Walters relies on Winn-Dixie Louisville, Inc. v. Smith, Ky., 372 S.W.2d 789. In that case plaintiff stepped into a cardboard box, which according to her testimony was hidden from view. She also testified that she did not see the cardboard box until after she fell. There was no suggestion that she had any reason to anticipate its presence. We quote from the opinion:

“We are not convinced that the evidence in this case showed without substantial doubt that appellee could have seen the cardboard box in the position it was located as. she pushed the cart down the aisle of appellant’s store to the position where she removed the produce from the cart and handed it to appellant’s employee.” 372 S.W.2d at p. 792.

There are plain distinctions-between the facts in the case at bar and those in Winn-Dixie. As we have seen, Walters’ own testimony is that he knew the metal strip or molding was there, that he knew exactly where it was; and that he had been told it had become loose and that there was nothing to keep him from seeing it if he had looked.

It is manifest from this record that at the time and place of his injury Walters failed to use ordinary care for his own safety, and that his own negligence so contributed to his injury as to preclude recovery from Southern Bell.

Therefore we conclude that the trial court erred in overruling Southern Bell’s motions for a directed verdict and for a judgment non obstante veredicto.

The cause is reversed with directions that a judgment be entered dismissing the action as to Southern Bell.