author: FRASER, Justice.

text:
    Marion I. SILVA, Appellant, v. SENTINEL LIFE INSURANCE COMPANY, Appellee.
    No. 5549.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 24, 1962.
    Rehearing Denied Nov. 21,1962.
    Calloway Huffaker and Harold Green, Tahoka, for appellant.
    Edwards, Belk, Hunter & Kerr, El Paso, for appellee.
   FRASER, Justice.

This is an appeal from a summary judgment denying the plaintiff in the court below, who is appellant here, any relief or recovery on a matter arising out of an insurance policy application.

Appellant brought the suit as the widow and beneficiary of Mike Marcus Silva, alleging and maintaining that the appellee is liable as an insurer of the deceased. There is some evidence that some discussions relative to a settlement took place, but apparently they were not successful, and appellant took a default judgment. This judgment was set aside by the trial court upon appellee’s amended motion, and a new trial was granted. The case was then tried to the court, with the result that the court granted a summary judgment in favor of the appellee.

Appellants’ first two points complain of the court’s action in granting ap-pellee’s motion to set aside the default judgment and granting a new trial. We overrule these two points, as we believe the law to be well settled that when a case has gone to trial on the merits, the trial court’s order setting aside the default judgment and granting the motion for such new trial is not subject to review on appeal from the judgment rendered at the second trial. We think this matter is well discussed and reviewed in the case of Ebaugh v. State, Tex.Civ.App., 342 S.W. 2d 221 (n. r. e.), which case discussed this particular situation. We do not cite additional cases, as a sufficient number are set out in the opinion of the case above cited. Appellant’s first two points are therefore overruled.

Appellant’s third point complains of the action of the trial court in granting ap-pellee’s motion for summary judgment and entering a summary take-nothing judgment against appellant. It appears that Mr. Silva, the deceased, (an employee of ap-pellee insurance company) had been in the insurance business for approximately four years; had at one time been in charge of an agency office, and had successfully taken the training course and instructions offered by the appellee here, so that he was not unacquainted with the insurance business. The deceased made his application for a type of insurance described as “President’s Family Security Guide”, which provided for $5,000 preferred risk endowment at age 85, double indemnity, and a 20-year family income rider of $100 monthly. Mr. Silva sent with his application a check to cover the first premium. Within fifteen days of making this application, deceased met his death by drowning. Thereafter, the appellee declined any liability of an insurance nature. Again, it must be remembered that the deceased was an employee of appellee, and the .record shows that he had the printed instructions relative to this type of policy and had successfully taken the training course to equip him to write this and other types of insurance. Appellant maintains that because her husband had paid the premium along with his application, and a receipt had been issued, that a contract of temporary insurance was in effect at the time of his death, and that it was not necessary for him to have had a medical examination or to have proven that one was not required. Appellant bases a large part of her position on the case entitled Colorado Life Co. v. Teague, Tex.Civ.App., 117 S.W.2d 849. However, we have examined that case and do not believe it is decisive or particularly helpful here, due to a difference in the wording of the application — which was to the effect that coverage would take effect on the date of the payment of the money (premium) if appellant was 45 years of age or under and was insurable as a standard risk on the date of application. Here, the receipt provided that the coverage would take effect “from the date of the medical examination therefor, or from! the date of the declaration of insurability accepted in lieu of a medical examination provided the company shall be satisfied that: on said date said applicant was insurable in said company as a standard risk.” The application executed by the deceased here provided these things which we have just quoted, and they were also set forth in' the advance premium receipt. The deceased did not take a medical examination, and there is no evidence that we can find' in this record, in lieu of the examination,, to show that he was either insurable or not insurable. Also, the application provided' that if application for this type of insurance be declined or postponed by the company, or if said application does not receive the company’s approval within sixty-days from the date of the medical examination, it shall be held that no insurance has ever been created, and the amount paid returned to the applicant. We do not: believe that any insurance was ever issued' or accepted by the appellee. Both the application and the receipt provide that either a medical examination must be taken or am acceptable declaration of insurability supplied in lieu thereof. Neither appears to have been done. Appellant argues that because the face of this policy mentions the figure of $5,000, a medical examination was not necessary o.r essential to the granting of the insurance. This is contradicted by the testimony of the insurance officials,, who stated that they put out all but $1,000'' of this type of insurance to other companies-for re-insurance, and that they considered' this policy’s liability at a figure of $23,000' or more, because of the double indemnity and the $100 a month income provision.. These officials testified that the application! was simply being held in a waiting category,, and that no insurance had issued or could' issue until the medical examination or proof of the lack of necessity therefor had been: presented to and accepted by the company;, also, that the company carrying the re-insurance would not accept this policy unless: these conditions were met. We refer again; to the fact that the company could, even alter the receipt of the result of medical examination, decline to issue the policy, and at the end of sixty days the matter would be all over and the premium returned. We believe this unfortunate situation falls into the category that the deceased had made application for insurance which had not been accepted or acted upon. There is no indication that he had been lulled into any sense of security or deceived in any way by the company. On the contrary, he had been trained by the same company himself, and it is brought out that in the instructions given to the deceased by the appellee relative to this type of insurance —to-wit, “President’s Family Security Guide” — there was contained in printed form on such instructions the following statement: “Each applicant for this package must have a medical examination.” Also, it is brought out that the agent has no authority to make any changes or mod-' ify or amend applications or insurance of the company.

The case of Debenport v. Great Commonwealth Life Ins. Co., Tex.Civ.App., 324 S.W.2d 566, enunciates the accepted doctrine that an insurance company has the right to accept or reject applications as it sees fit, without having to give any reason for so doing; and that case (and others) point up the settled law that a delay by the company in passing on an application for life insurance does not ordinarily give rise to action for breach of contract or for tort. Also, Southwestern Life Insurance Co. v. Evans, Tex.Civ.App., 262 S.W. 2d 512, holds that there is no contract of insurance even though the premium be paid in advance if the application provides that the insurance can take effect only after certain events have transpired. The two cases above cited, in their discussion, also make it clear that the payment of the first premium does not necessarily give rise to temporary insurance. Again, we must point out that the instructions given by the appellee to the deceased plainly pointed out that the type of insurance for which he had applied required a medical examina-ion of the applicant; also, that the record does not indicate that there was ever any declaration of insurability supplied in lieu of medical examination, nor is there any evidence in writing or verbally that the company had made any exception or modification of its rules for its employee, Mr. Silva. As we see it, this application was pending, and on the basis of the authorities cited above no temporary insurance was created by the payment of the premium along with the application; and, as a matter of fact, no insurance coverage of any kind had been extended or granted by the appellee. In other words, their contractual relations had not reached the point of consummation. We have studied the cases submitted by the appellant in her thoroughly documented brief, but we do not believe there was any error in the judgment of the trial court. Appellant’s Point of Error No. Three is therefore overruled.

Appellant has also maintained in other points that the court erred because there were matters of fact to be decided here, .and that one was whether or not it was necessary for deceased to undergo a medical examination. We think this has been disposed of in our prior discussion, and — in any event — the necessity of a medical examination as a prerequisite, we think, is a matter of law. Whether Mr. Silva was insurable or not from a medical standpoint is a matter of fact, but that is not the point at issue here. The point is that the application and the receipt, as well as Mr. Silva’s-instructions, plainly point out that a medical examination is a condition precedent to the issuance of this type of insurance;- and even then, if the company does not act within sixty days, the matter can be considered canceled. In other words, the matter decisive of this lawsuit, is the legal' construction of the uncontradicted facts as-they exist.

Summing up, Mr. Silva did not have a medical examination; there is no declaration in lieu thereof in the record; the company did not issue any insurance within sixty days of the application. Therefore, we are constrained to hold that the appellant cannot recover.

We do not pass on the matter of the statute of limitations because it is our opinion that if there was any contractual relation here at all, it would not come under the two-year statute. As we have said, we do not find from the record — and of course naturally could not, since the applicant was dead- — that there was any verbal or oral contract or modification of the company’s policy between the deceased and the company.

For these reasons appellant’s points are all overruled, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: • HUGHES, Justice.

license: Public Domain

text:
    Martin S. KERMACY, Appellant, v. FIRST UNITARIAN CHURCH OF AUSTIN, Appellee.
    No. 11008.
    Court of Civil Appeals of Texas. Austin.
    Oct. 24, 1962.
    Rehearing Denied Nov. 14,1962.
    Byron Lockhart, Austin, for appellant.
    Sam Houston Clinton, Jr., Austin, for appellee.
   • HUGHES, Justice.

This appeal involves only the questions of interest on a claim submitted to common law arbitration and the allowance of attorneys fees under Art. 2226, Vernon’s Ann.Civ.St.

Appellant, Martin S. Kermacy, an architect, entered into a contract with the First Unitarian Church of Austin by which he agreed to perform certain architectural services for the church for stipulated compensation.

Following part performance of the contract by Mr. Kermacy a controversy arose in the church regarding the acceptance of the work done by Mr. Kermacy. The congregation voted not to accept such work and the contract with Mr. Kermacy was terminated by the church. It should be stated that no fault was found by the church with Mr. Kermacy’s work. The congregation merely exercised what it conceived to be its privilege under the contract of not accepting such work and not being liable for payment for it.

The contract between the parties provided for arbitration of disputes concerning it. This provision was invoked and the controversy beween the parties was submitted to arbitration. The arbitrators found for Mr. Kermacy in the sum of $3,154.97.

The church filed this suit to vacate the award of the arbitrators. Mr. Kermacy answered by praying “That the written decision of the arbitrators dated May 25, 1960, be confirmed and ratified”, for interest from such date at 6% per annum on the amount of the award and for $1,500.00 attorney’s fees. Appellant also filed a cross-action based on the contract and in the alternative on quantum meruit.

Motion for summary judgment was filed by appellant and not answered by appel-lee. This motion prayed for judgment denying appellee any relief and for judgment for the amount of the arbitrator’s award, interest thereon from October 27, 1959, and an adjudication of appellee’s liability for attorneys fees, and for general relief.

The Court granted this motion to the extent that judgment was rendered sustaining and affirming the award of the arbitrators. Accordingly judgment was rendered for appellant for the amount of the arbitrator's award with six percent interest from the date of judgment. Liability for attorneys fees was denied.

With reference to his claim for interest, appellant, relying on Art. 5070, V.A. C.S., which provides, in part, that interest on written contracts ascertaining the sum payable but not specifying a rate of interest should be allowed at the rate of 6% per annum from the time such sum is due and payable, contends that the amount of his award was due and payable under the contract on May 13,. 1959. There is no pleading to support interest from this date. The pleaded date for interest is October 27, 1959. We presume this date was intended to coincide with the date of October 26, 1959, when the appellant was notified by letter of that date from the. church that his contract had been terminated.

It is our opinion that appellant’s claim for interest prior to the date of the award of the arbitrators was merged in the award. The arbitrators were charged with determining the “amount due to Kermacy on his claim for services” performed under the contract. Interest would be a part of the amount due, and the claim for it was merged in the award. See 6 C.J.S. Arbitration and Award § 96, p. 241.

We believe, however, that the court erred in not allowing interest at 6% per annum on the award from its date, May 16, 1960, as prayed for by appellant in its answer to appellee’s suit. An arbitrator’s award is, generally speaking, given the same effect as the judgment of a court of last resort. City of San Antonio v. McKenzie Const. Co., 136 Tex. 315, 150 S.W.2d 989, Johnson v. Korn, Tex.Civ.App., 117 S.W.2d 514, El Paso C.C.A., writ ref. Since judgments bear interest, Art. 5072, V.A. C.S., the award should bear the same interest, and the judgment herein will be so reformed.

We are of the opinion that the Trial Court correctly denied the recovery of attorneys fees.

Art. 2226, supra, provides, in part, that any person having a valid claim for personal services may, after proper presentment and if represented by an attorney, recover an additional sum for reasonable attorneys fees if he obtains final judgment for all cm a portion of such claim.

There was presentment by appellant of his claim both before and after the arbitration proceedings and appellant was represented by an attorney, both in the arbitration proceedings and in Court.

We do not determine the authority of the Arbitration Board to have allowed attorneys fees to appellant as that question is not before us. We hold that this suit, insofar as appellant successfully sought to have the award of the arbitrators ratified and confirmed, is not a suit in which judgment is sought on a claim for personal services. This claim has become merged in the award. Authorities supra. Since an award of an arbitration board has many characteristics of a judgment of a court it is, by analogy, subject to the same rules applicable to judgments one of which is that the cause of action becomes merged in the judgment which is a new debt that replaces the original cause of action except where justice otherwise demands. Judgments, 34 Tex.Jur.2d, Sec. 443, p. 484. In 6 C.J.S. Arbitration and Award § 98, p. 243, it is stated that “The cause of action on an award is a new cause of action * * * ”.

The cause of action asserted and prosecuted here by appellant is to enforce an award made by an Arbitration Board. It is not for personal services and the recovery of attorneys fees is not authorized by statute or by the agreement of the parties.

The judgment of the Trial Court is amended so as to allow 6% interest on it from May 16, 1960. As amended the judgment of the Trial Court is affirmed.

Costs of appeal are adjudged one-half against appellant and one-half against ap-pellee.

Reformed and affirmed.


author: CULLEN, Commissioner. MONTGOMERY, Judge

text:
    Reuben FORD, Individually and as Representative, etc., Appellant, v. COUNTY OF CARLISLE, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    June 1, 1962.
    Rehearing Denied Dec. 7, 1962.

      Franklin P. Hays, John K. Skaggs, Jr., Charles H. Erwin, Skaggs, Hays & Fahey, Louisville, David R. Reed, Paducah, for appellant.
    Edgar A. Zingman, Robert L. Maddox, Jr., Wyatt, Grafton & Sloss, Louisville, Robert L. Geveden, County Atty., Bard-well, Joseph Hull, General Counsel of Seiscor Co., Tulsa, Okl., for appellees.
   CULLEN, Commissioner.

The fiscal court of Carlisle County contracted to purchase 10 Seiscor electric voting machines for use in elections. A citizen and taxpayer brought action to enjoin purchase and use of the machines on the grounds that they do not comply with statutory requirements and will not function reliably. After a three-day trial, during which one of the machines was subjected to thorough and exhaustive tests and demonstrations, the circuit court handed down an opinion finding that the machines do comply with statutory .requirements and qualify for use in elections in this state, and entered judgment dismissing the complaint. The plaintiff has appealed.

At the time of the trial the Seiscor machines had not yet been used in any public election in this country, so the question of how they would work in an election was attempted to be answered through ■tests.and demonstrations. The trial judge viewed the tests and demonstrations and! personally participated in some of them..

The statute, KRS 125.030, provides that the fiscal court of any county-may in its discretion select any type and', make of voting machine that complies with the specifications and requirements of the-voting machine statutes, and may employ-engineers and other skilled persons to advise and aid in the selection. The statute-makes the selection of the machines a matter of administrative discretion. The-courts will not interfere with the exercise-of administrative discretion unless there is-a clear showing of an abuse of the discretion or of arbitrary or capricious action.. Dorman v. Dell, 245 Ky. 34, 52 S.W.2d 892; City of Middlesboro v. Byrd, 247 Ky. 348, 57 S.W.2d 49; Standard Printing Co. v. Miller, 304 Ky. 49, 199 S.W.2d: 731. Particularly in a case such as this-one, where in advance of any actual use-for the intended function it is claimed that: a product selected under discretionary administrative authority will not properly perform the intended function, the courts-should be extremely hesitant to find an. abuse of discretion.

So we approach the issues in this; case with the viewpoint that to warrant an injunction against the purchase and use-of the Seiscor voting machines there must-be clear and convincing evidence that the machines necessarily and inevitably will', not perform in accordance with the statutory requirements. We also give consideration to the fact that a mechanical or electrical device will not function always-with absolute perfection, which fact was-recognized by the legislature, specifically as to voting machines, when it made provision in KRS 125.130 for the procedure to-be followed when a voting machine “becomes in a state of disrepair so that it cannot be operated in a manner that will comply with the provisions of this chapter.”'

The first contention of the appellant is that the Seiscor machine does notr. comply with the requirement of KRS 125.--'"040(1) that it insure secrecy of the voter in the act of voting, because the machine •makes a distinguishable sound when a write-in vote is cast. It is contended that this sound not only gives information to persons in the voting place, in the case of •a general election, that the voter has not ■ completely supported his party ticket, but will enable a person in the polling place, by keeping a list of the voters, marking •the names of those whose vote was ac■companied by the sound, and then checking the list against the write-in tape after the election, to determine for whom a particular voter cast his write-in vote.

There was some dispute in the testimony ■•as to the nature and distinguishability of the sound. The trial judge stated in his opinion that he had listened and was satisfied that the machine met the statutory re■quirements concerning secrecy. We think the evidence warranted a conclusion that the sound would not always be so audible above the normal noises of the voting place as to enable a person in the voting place to determine, by a subsequent examination of the write-in tape, which voter had cast which write-in vote. For ■example, if there happened to be loud talking or other noise in the polling place when the first voter of the day voted, the listening person could never be sure whether or not the write-in sound had been made. So in our opinion there is no substantial danger that write-in votes can be identified with the voters who cast them.

concerns the matter of dis-disof the fact that a voter has not -completely supported his party ticket, there is a practical disclosure of that fact whenever a voter spends any substantial period of time in the voting booth, because a straight ticket can be voted in a few seconds. We are not prepared to say that such a disclosure is a material violation of secrecy requirements.

The Seiscor machines are so designed that when the “Vote” button is pushed a shield descends over the face of the machine. But the selectors which the voter has moved to indicate his choices do not return to a neutral position until the shield has come all of the way down. The curtains in front of the machine must be parted by hand. There was evidence that if a voter pushed the “Vote” button and then immediately parted the curtains and left the machine, a person in the polling place could observe the position of the selectors on the lower one-third of the face of the machine as the shield was coming down. It is argued that this violates the secrecy requirements

The statutes do not specifically require that a voting machine have curtains. KRS 125.110 provides that if the machine does not have a curtain “that will enable concealment of the voter and his actions during the act of voting,” the sheriff shall provide such a curtain, screen or hood. Accordingly it is our opinion that any deficiency in the curtain arrangement on the machines is not a basis for a finding that the machines do not meet the statutory requirements concerning secrecy.

The appellant maintains that the machines violate the secrecy requirements because the back of a machine can be unlocked between votes and the counters read, so that it can be determined for whom a particular person voted. Also, that the back can be unlocked if the electric power fails when a voter is in the process of voting, and the counters can be observed as they move. The statute, KRS 125.040, contains specific provisions concerning locks. There is no showing that the Seiscor machines do not comply with these specific provisions. Since the legislature has chosen to state specific requirements as to locks it is our opinion that a machine meeting those requirements cannot be held deficient, lockwise, under the general secrecy requirement.

The statute, KRS 125.040(10), requires each machine to have a “public counter” that will show at all times during an election how many persons have voted. There was evidence that if the electric power fails when the voter is in the process of voting, and the shield is cranked down by hand, the votes will register on the Seiscor machine but the public counter will not advance. It is claimed that the machine therefore does not meet the public counter requirement. Since the counter fails to advance only in case of a power failure accompanied by a hand cranking of the shield, and since there would be no good reason to hand crank the shield merely to record the vote of the voter then in the booth, instead of waiting until the electric power was restored, we do not consider the claimed defect to be a material one.

The appellant maintains that the Seiscor machine does not meet the requirement of KRS 125.040(2) that “it provide” facilities that will permit votes to be cast, because it is not completely self-sufficient but requires electric current to operate. In our opinion this contention is based upon an unreasonably tight interpretation of the statute. We find no indication of any legislative intent that the machine must be solely mechanical ánd may not be electrically operated.

On the basis of the tests and demonstrations conducted during the trial the appellant asserts that the Seiscor machine is erratic, uncertain, intermittent and subject to error. Some of the alleged deficiencies relate to things that might happen only under most extreme circumstances. Others concern improper results that could be obtained only by a planned, careful, delicate maneuvering of the selectors. Still others are predicated upon the wholly fallacious premise that the mere moving of the selectors, before pushing the “Vote” button, constitutes the casting of a vote.

Considerable argument is addressed to alleged deficiencies in the machine regarding the dependability of lights at the top of the various columns on the face of the machine by which it is indicated in whichi' races a voter is entitled to vote. It appears from the record that the lights-worked with reasonable accuracy except when there was a defective power supply or when a weak battery was used.

It was shown that the control numbers, on the write-in tape were not visible but it appears that this was due to an error-in printing that could be remedied before-the machines were put in actual use.

Many of the tests on the trial were conducted by representatives of rival voting; machine manufacturers whose interest was. of course to develop every defect that might possibly occur under any conceivable set of circumstances. We are not convinced that the tests should be accepted as a conclusive indication of how' the machines would work under normal-election conditions. Also, as stated at the-outset of this opinion, absolute perfection cannot be expected of any mechanical device.

It is our conclusion that the trial-court was warranted in finding that the-evidence did not show convincingly a failure of the Seiscor machines to meet the statutory requirements or a lack of dependability such as to justify the issuance of an injunction against their purchase- and use.

The appellant maintains that the trial court did not make adequate findings of fact. However in our opinion the court' was not required to make a specific finding on each of the separate claims of defect in the machines.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

The secrecy of the ballot is the fundamental idea of all elections. Banks v. Sergent, 104 Ky. 843, 48 S.W. 149, 20 Ky. Law Rep. 1024. The Constitution requires-that all elections by the people shall be by secret official ballot and shall be marked in private. Kentucky Constitution Section 147. In holding this safeguard mandatory, Paynter, J., in Nall v. Tinsley, 107 Ky. 441, 54 S.W. 187, 21 Ky.Law Rep. 1167, said:

“Every freeman should be independent, and free from improper influences in the expression of his pref- • erence as to who should conduct the .affairs of government, and as to the policies that should be adopted. * * He should be placed beyond reach of -intimidation. * * * it was thought wise by the makers of our constitution to throw around all honest voters .-all the protection it was possible to -give them, and the best method of do'ing so was believed to be the secret official ballot.”

The secrecy of the ballot is destroyed by ■the operation of the voting machine in question whenever the voter seeks to cast .a write-in vote. The majority opinion is ■wrong. It is recognized therein that there is a noticeable noise whenever the voter •seeks to write in a vote. The majority opinion says “there is no substantial dan•ger.” If there is any danger that the •secrecy of the ballot will not be preserved, then the voting machine should be •condemned as unsuitable.

In Helme v. Board of Election Commissioners, 149 Mich. 390, 113 N.W. 6, the use •of certain voting machines was held to be ■unlawful because it caused the voter to divulge that he was seeking to write in the names of candidates and thus destroyed -.the secrecy of the ballot. The Court said:

“It is obvious that a voter cannot ask for and vote such a ballot without indicating that he does not vote for his full party ticket, and, to the degree that he is reluctant to have his want of party fealty known, it acts as a deterrent to his voting for the persons of his choice, and operates against his independnece as a voter.”

The right to vote by secret ballot is a priceless heritage. As such the right should be preserved. No chipping away of this cornerstone of liberty should be tolerated. For this .reason I respectfully dissent.


author: WADDILL, Commissioner.

text:
    WEBB TRANSFER LINE, INC., et al., Petitioners, v. Honorable Henry MEIGS, Judge of the Franklin Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Nov. 2, 1962.

      Harry McChesney, Jr., Frankfort, for petitioner.
    Marion Rider, Frankfort, for respondent.
    George M. Catlett, Frankfort, for inter-venor and Herbert D. Liebman, Frankfort, Ky.
   WADDILL, Commissioner.

The sole question raised is whether respondent may exercise his discretion to grant or deny a request for an extension of time pursuant to CR 73.02(1) under the circumstances presented in this proceeding.

In a written memorandum opinion the respondent indicated that he is precluded from exercising discretion in view of the provisions of CR 77.04 and the fact that the petitioners signed a statement on a copy of the judgment waiving notice of its entry. Apparently respondent considered such waiver as foreclosing petitioners’ right to an extension of time based on excusable neglect under CR 73.02(1).

Under the provisions of CR 73.-02(1) an appeal may be taken within 30 days from the entry of judgment. However, if a party fails to learn of the entry of judgment this rule permits the trial judge to extend the time for filing a notice of appeal for an additional 30 days upon a showing of excusable neglect made within 60 days of the entry of judgment. United Carbon Company v. Ramsey, Ky., (1961), 350 S.W.2d 454; Resnick v. Lehigh Valley R. Co., D.C., N.Y., 11 F.R.D. 76. This procedure is specifically recognized by the terms of CR 77.04, and nothing in that rule limits this right. Since the waiver in this case did not establish that petitioners-had learned of the entry of the judgment, the only remaining question involved was-whether petitioners’ neglect was excusable. We have concluded that the waiver of notice of entry of judgment does not preclude the respondent from determining this issue of whether excusable neglect was shown.

Wherefore, respondent is directed to reconsider petitioners’ motion for extension of time in accordance with the view herein expressed.


author: STANLEY, Commisssioner.

text:
    NIAGARA FIRE INSURANCE COMPANY, Appellant, v. William CURTSINGER, Katherine Curtsinger, Brook Greer and the Peoples Bank, Appellees.
    Court of Appeals of Kentucky.
    Nov. 2, 1962.

      Percy Brown, Jr., Richard F. Newell, Ogden, Brown, Robertson & Marshall, Louisville, for appellant.
    H. B. Kinsolving, Jr., H. B. Kinsolving III, Lucian Kinsolving, Shelbyville, James F. Thomas, New Castle, Edgar Sullivan, Gladys Williams, Taylorsville, for appel-lees.
   STANLEY, Commisssioner.

The appellant, Niagara Fire Insurance Company, on October 5, 1957, issued a general and comprehensive policy of insurance on a new dwelling of the appellees, William and Katherine Curtsinger, located in Tay-lorsville. Among other indemnities were those for direct loss or damage by “Collapse of the building or any part thereof,” and by “Landslide” (both with irrelevant exceptions). This action was brought to recover for damage to the property allegedly within those coverages. The main issue in the case was and is whether there was a loss or damage to the building caused by either “collapse” or “landslide” or both. Contents of the building were also covered. The appeal is from a judgment for $3,109.50 rendered on a verdict.

The appellant contends it was entitled to a directed verdict because of failure of proof of loss within the coverages stated. It also contends that the trial court committed a number of errors in regard to the evidence and the instructions. We address ourselves first to the claim of a failure of proof.

The house, a one-story brick veneer, was built on a hillside. Considerable grading and filling of the lot were necessary. A screened porch was erected on the back of the house with a concrete floor a few inches above the land surface, which had been leveled off from the upsloping hillside. A ditch dug beyond the porch to carry off the downhill water apparently was not entirely sufficient. A carport was erected on the south side of the building on filled ground, which sloped away from the floor. About a week after the Curtsingers moved in the house, it began raining and continued for several weeks thereafter. There was unprecedented and excessive rainfall.

The recovery of the insurance was, in part, for what the appellees term a “collapse” of the porch. The legal question is whether the undisputed facts evidenced a collapse within the meaning of the policy.

The appellees testified that during the evening of November 15, 1957, while in their living room, they heard a “loud noise” and the next morning discovered the porch floor and roof had broken loose from the house, and the front “had gone down about a foot.” Much evidence was introduced, pro and con, about whether the building had been properly constructed. The appellant contended that the foundation or piers, not only of the porch but of much of the entire structure, had been laid on filled earth, whereas proper construction required that the piers go down to solid ground. On this part of the case it seems to us that was immaterial. The contract was to pay indemnity for damage sustained by a “collapse,” which is, of course, an occurrence or eventuality, irrespective of the cause. The insurance company took the building as it was for its contractual coverage.

Specific insurance against a collapse of a building or any part thereof is uncommon. Ordinarily, the term “collapse of a building,” or similar condition, is contained in an exception from liability, or a condition subsequent, of a fire insurance policy; and in such cases it is generally held that the distinctive character as a building or a substantial part thereof must have been lost or damaged in order to bring the condition within the exception. Appleman, Insurance Law, § 3080.

The word “collapse” in connection with a building or other structure has a well-understood common meaning. ■Webster’s Collegiate dictionary defines the word as, “(1) To break down or go to pieces suddenly, especially by falling in of sides; to'' cave in.” A more elaborate judicial definition is given in 14 C.J.S. Collapse, p. 1316. Compare Spears v. Commonwealth, Ky., 256-S.W.2d 362.

In Skelly v. Fidelity & Casualty Co., 313: Pa. 202, 169 A. 78, a question was whether the insured person had sustained bodily injury “in consequence of the collapse of the-outer walls of a building while the assured' is therein.” A runaway railroad car' crashed into and tore a hole through the wall of the building, and the insured person'was fatally injured. The plaintiff in the-action on the policy maintained that the-intention of the contract was to cover injury sustained by the falling of a substantial portion of the structural parts of the-exterior walls of the building. The court expressed the view that this would extend', the terms of the contract beyond what it' provided, and in ordinary speech what happened to the walls would not be deemed' their collapse, for the runaway car had. but torn a hole through the wall. Judgment on a directed verdict for the insurerwas affirmed.

Central Mutual Insurance Co. v. Royal,. 269 Ala. 372, 113 So.2d 680, 72 A.L.R.2d: 1283, is strikingly like the present case.. The house had settled and cracks appeared,. running through the walls of the building. The owners heard a “racket that sounded' like something had fallen and broken in the-house.” A little later they noticed the walls-had cracked on three sides and the foundation was broken and cracked wide open.. A segment of the wall had sunk or dropped.. The Alabama court, following Nugent v. General Insurance Co., 8 Cir., 253 F.2d 800,. and quoting from the Skelly case, suprar held that the term “collapse” in relation to a building was without ambiguity and that the condition for which indemnity was sought was not within the coverage of the policy.' The few other cases of like character are summarized in Annotations.

It seems to us that the mere subsidence of the floor of the porch, which pulled it and the roof away from the building a few inches, cannot be regarded as the collapse of any part of the building, and that the trial court should have so ruled as a matter of law.

When the Curtsingers returned home from work in the afternoon of December 18, 1957, they saw that the land had slid from the side of the carport and the carport roof had sagged and pulled away from the wall an inch or so. The landslide away from the building into a ravine was quite extensive — three or four feet in width. It took five or six loads of dirt and rock to fill in back of it. They found large cracks had come in the floor and the side of the basement wall on which the carport was located. Water was coming up through the basement floor.

The single word “landslide” in the policy as a direct cause of any change in the condition in the insured building for which indemnity was payable is in no way defined. The ordinary meaning of the word is the slipping down of a mass of earth or rock on a slope, also the mass which slips down. Webster’s Dictionary. Under a familiar rule the ambiguity in the application of the term in this case will be resolved in favor of the insured.

We cannot agree with appellant’s argument that the word means that damage to an insured building should be limited to that caused by the land sliding down upon the structure and as not including damage resulting from the land sliding from under or away from it. Where there has been a slide of land from under a highway, making it impassable, it is none the less regarded by everybody as being a “landslide.”

Prima facie, the circumstances pretty well show that the sliding of the lateral support along the edge of the carport caused damage to it. But the circumstances do not so directly show it was the cause of the cracks in the basement wall or the “collapse up” — as Mrs. Curtsinger described the bulge in the floor! The condition of the basement wall and the floor could very well have been due to another cause, such as defective drainage and construction. The insurance campany may be held liable only for the direct result of the movement of the lateral support, i. e., the landslide. In principle, the legal question is like that presented in Old Colony Insurance Co. v. Reynolds, Ky., 256 S.W.2d 362. It seems, to us that this part of the case presented a question for the jury.

The plaintiffs had joined their building contractor, Brook Greer, in the suit, alleging, in substance, that the damages to the building from the landslide and water were the direct result of his breach of contract to properly drain the lot and a breach of his warranty of the building in-that respect. When the case was called for trial, the plaintiffs dismissed the action against Greer. The defendant offered to introduce the complaint in evidence on the-ground that it contained an admission against interest, but the court sustained an-objection to the evidence. We think this-was error. Streipe v. Liberty Mutual Insurance Co., 243 Ky. 15, 47 S.W.2d 1004.

The appellant makes the point that the instructions were erroneous in that they did not restrict the right of the plaintiffs, to recover for the described conditions of the building as being a direct loss from the causes, as is provided in the policy. We think the point is well made. Druggist Mutual Insurance Co. v. Baker, Ky., 254-S.W.2d 691.

The evidence on another trial should be confined to the reasonable cost of repairing the building made necessary by damage directly caused by the landslide.

We reserve all other questions as to the evidence and to the instructions raised on the appeal, for the issues to be submitted! to the jury on another trial will be different.

Judgment reversed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Jimmie P. EVANS, Appellee.
    Court of Appeals of Kentucky.
    May 4, 1962.
    Rehearing Denied Dec. 7, 1962.

      John Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Lawrence L. Pedley, Dept, of Highways, Frankfort, for appellant.
    William C. Clay, Jr., Mt. Sterling, for appellee.
   PALMORE, Judge.

The state, through its Department of Highways, appeals from a judgment of the Montgomery Circuit Court entered pursuant to a jury verdict awarding Jimmie P. Evans $62,454 for land taken and damages resulting from the condemnation of 26.82 acres of the Evans farm incident to the construction of Interstate Highway No. 64 (1-64). It appeals also from a supplemental judgment of the circuit court requiring it to bear the cost of relocating a private gas connection.

Immediately prior to the taking the farm in question was a 433-acre tract fronting 2893 feet on the west side of U. S. Highway 460 one mile north of Mt. Sterling, the county seat of Montgomery County. It extended westwardly to a depth of about 1½ miles from U. S. 460 and was bordered on the south by an intersecting county road called the Country Club road. Since easy access from U. S. 460 to the rear or westward reaches of the property was afforded via this county road it had never been necessary that the owner construct an east-west passway within the farm itself.

1-64 is a limited access highway. It enters the Evans place from the south, closing off the Country Club road about half a mile west of U. S. 460, and runs northeast-wardly to U. S. 460, severing a 32-acre triangle in the southeast corner from the rest of the farm. The right-of-way of 1-64 is 300 feet wide until it approaches within 1100 feet of U. S. 460, and over this distance of 1100 feet it flares outward, so as to accommodate interchange ramps, to a width of approximately 925 feet at its intersection with U. S. 460. In addition to this right-of-way, which embraces 24.94 acres, the condemnation also included a strip 859 feet long and 55 feet wide bordering the west side of U. S. 460 to the north of the ramp area and a similar strip 738 feet long and 50 feet wide bordering the same side of U. S. 460 to the south of the ramp area. These strips, aggregating 1.88 acres, were taken for the purpose of 4-laning U. S. 460 on each side of the intersection, and although the landowner has taken the position throughout this litigation that by virtue of acquiring corporeal title rather than a highway easement the state may at any time shut off his access to U. S. 460 along these strips, the judgment of the county court specifically provides that he shall have such access. (Hence we need not consider whether the character of title acquired by the state has, of itself, anything to do with the right of access.) Thus his frontage on U. S. 460 has been reduced by 925 feet, that being the width of the 1-64 right-of-way and ramp area, and not by the additional 1597 feet taken for the widening of U. S. 460. There is, however, the likelihood of some limitation of access in that the plans for 4-laning U. S. 460 contemplate a median strip, which may or may not be broken for cross-over at such point or points as the owner may desire.

The county court judgment made an award of $55,215 and directed the condem-nor to make “the necessary arrangements for the continuation of the water and gas utility service to this farm.” The report of commissioners is not before us, but the documents in the record reveal that it awarded $25,815 for the 26.82 acres taken and $29,400 for damages to the remainder. Both parties appealed to the circuit court.

Prior to the eventual trial of the case,, and in response to a motion by the landowner showing that his gas utility service had been disrupted, the circuit court entered an order directing the condemnor to make necessary arrangements for the continuance of this service and reserving “the right to modify the judgment of the Montgomery County Court in this and in all other respects upon the trial of this action in the Montgomery Circuit Court.” During the trial there was no reference to utility services, but thereafter a supplemental judgment was entered showing that counsel for the respective parties had argued the matter before the court and directing the con-demnor, in effect, to install a connection between the gas line built by it under 1-64 and the service line entering the owner’s premises.

Witnesses for the state appraised the 26.82 acres taken at a value of $17,928. The owner’s evidence on this item ranged from .$62,142 to $62,465. None of the witnesses on either side figured any damages to the remainder of the farm by reason of the taking except necessary refencing and the construction of a ¾-mile rock roadway for access to the back portion of the farm. The state experts estimated $780 for 130 rods ■of fence and $7,500 for the road. The landowner’s evidence included estimates of $600 to $1,200 for fencing and $7,500 to $8,000 for the road. The jury awarded $54,204 for land taken and $8,250 for “other damages.”

The record before us divulges very little with respect to the disputed gas ■connection. Apparently, however, it was located within the right-of-way of U.S. 460, and no determination was made until after the trial as to whether it existed there by sufferance of the state or by virtue of an implied easement or other right retained by the landowner’s predecessor in title when he conveyed that particular right-of-way to the state. Appellee, in defending the supplemental judgment, points to the rule that if some of the proceedings are not reflected in the record this court “will indulge the presumption that the absent evidence supported the facts pleaded and the decision of the trial court thereon.” Willis v. Davis, Ky., 1959, 323 S.W.2d 847. This is but an- ■ other way of saying that when the evidence is not before us we can do no more than determine whether the pleadings support the judgment. Marcum v. Brock, Ky., 1953, 257 S.W.2d 55. In this case there is nothing in the record, by pleading, evidence, or otherwise, to support the supplemental judgment. Moreover, the only relief the court was authorized to give was compensation in money, and that was exclusively a jury question. KRS 177.087.

If in disrupting the gas connection the state infringed a property right of the condemnee, the resulting damage should have been considered in exactly the same manner as other damages to the remainder, such as the necessary cost of fencing. Cf. Commonwealth Dept, of Highways v. Farris, Ky., 1961, 351 S.W.2d 526, 528; Greenup County v. Redmond, Ky., 1960, 335 S.W. 2d 335; Commonwealth v. Conatser, Ky., 1959, 329 S.W.2d 48, 50. It was not proper for the trial court to reserve the question from the jury.

In its appeal to the circuit court the state excepted “to the award of the commissioners for land taken and damages to the remainder on the grounds that the award is excessive.” The owner contends that this language was insufficient to embrace that portion of the county court judgment requiring the state to provide for a continuation of the utility services. Under KRS 177.083 and KRS 177.086 the authority of the county court is limited to determining the petitioner’s right to condemn and awarding the owner the value of the property taken and any damages resulting to his adjacent lands. There is no provision for equitable relief in such a proceeding. But if we should assume that the particular type of relief granted by this direction of the county court judgment were properly within the scope of the statutes, as “damages resulting to the adjacent lands of the owner,” then necessarily it would fall also within the state’s exception to the award for “damages to the remainder.”

We hold, therefore, that the controversy with respect to the utility service was essentially a question of damages and was included in the state’s appeal to the Montgomery Circuit Court.

The next assignment of error is that the trial court declined to instruct the jury to set off benefits against the damages to the remaining portions of the Evans farm. See KRS 177.083. Though no specific grounds for objection to the instructions given by the court were stated, the condem-nor’s rights in this respect were preserved by tender of instructions clearly setting forth its theory on the point in question. See Commonwealth Dept, of Highways v. Farris, Ky., 1961, 3S1 S.W.2d S26, 528. The obvious answer to this contention is that since the court had refused to permit any of the evidence offered by the state to show that the value of the remaining property would be enhanced by the construction and prudent maintenance of the project, there was no testimony to support any mention of the matter, one way or the other, in the instructions. The argument therefore addresses itself to the rejection of the proffered testimony instead of the instructions, hut in view of the possible retrial of the case we shall consider it anyway.

The rule in this state has been given as follows: “It was first held in Kentucky that benefits could not be set off from the value of the land taken, hut might be from the damages to the remaining land. Subsequently it was decided that both the value of the land taken and the direct damages to the remaining land must be paid for in full, without allowance for benefits, but that benefits, both general and special, might be set off against damages for consequential injury and inconvenience.” 3 Nichols on Eminent Domain, Sec. 8.6211 [18].

“It is difficult to define every character of damage that is direct * * Asher v. Louisville & N. R. Co., 1888, 87 Ky. 391, 8 S.W. 854, 10 KLR 185. However, it has been definitely settled that the cost of additional fencing made necessary by the taking “is to be included as part of the direct damages, which cannot he abated by any benefits arising from the building of the road.” Big Sandy Ry. Co. v. Dils, 1905, 120 Ky. 563, 87 S.W. 310, 27 KLR 952; Louisville, St. L. & T. R. Co. v. Barrett, 1891, 91 Ky. 487, 16 S.W. 278, 13 KLR 57; Crittenden County v. Towery, 1936, 264 Ky. 606, 95 S.W.2d 233. In Louisville & N. R. Co. v. Hall, 1911, 143 Ky. 497,136 S.W. 905, the same principle was applied to “such improvements * * * as may be necessary to establish new means of ingress and egress to and from the buildings on the land * * * or may otherwise he necessary for the reasonable enjoyment of defendant’s premises.”

Though it is no longer proper for the instructions to permit separate assessment of these “direct damages” to' the remainder, except for fencing, (see Commonwealth Dept, of Highway v. Farris, Ky., 1961, 351 S.W.2d 526) we see no reason to question Louisville & N. R. Co. v. Flail, 1911, 143 Ky. 497, 136 S.W. 905, as good authority for the proposition that the cost of a roadway “necessary to the reasonable enjoyment of defendant’s premises” is an item of direct damage.

The state’s witnesses conceded the reasonable necessity of the roadway by treating its cost as the principal element in estimating damages to the remainder of the Evans property. Neither side sought to prove that the remainder was damaged in any way except for the necessity of this roadway and new fencing. Thus under the decisions above cited there were no incidental damages against which benefits could have been allowed.

The state complains that counsel for the landowner was permitted to cross-examine one of its witnesses with respect to prices paid other property owners for rights of way. Had this occurred it would have been improper and prejudicial. Commonwealth, by State Highway Comm. v. Crutchfield, 1935, 261 Ky. 272, 87 S.W.2d 598. See also Stewart v. Commonwealth, Ky., 1960, 337 S.W.2d 880, 882. However, the fact is that it did not happen. The questions were directed not to sale prices, hut to appraisals the witness had made of other property in the area. Without a showing that the other places mentioned by counsel in his cross-examination were comparable with the Evans property the questions were incompetent, but by the same token the answers elicited did not have enough meaning or significance to be prejudicial. On another trial this type of interrogation should not be permitted unless a foundation has been laid for comparison of the different tracts appraised.

One of the valuation witnesses used by the landowner at the trial testified that he had acted as a commissioner in the county court proceeding. He did not, however, indicate the amount of the county court award. In fact, the transcript of his testimony leaves the impression that the appraisal given by him in circuit court was formulated subsequent to his services in the county court. A witness may testify “that he acted as commissioner and as to the character of the inspection that he made of the premises, and then * * * be interrogated as any other witness as to the damage * * *.” Webb. v. Kentucky & West Virginia Power Co., 1926, 216 Ky. 64, 287 S.W. 232, 234; Akers v. Kentucky & West Virginia Power Co., 1926, 216 Ky. 326, 287 S.W. 889. We find nothing unusual or improper in the testimony of this witness relating to his services as commissioner. If he gave a higher value at the trial than the award in which he had acquiesced in county court, the state was at liberty to impeach his testimony by inquiring into the amount of the award.

All of the witnesses agreed that the most valuable property taken in this case was that portion of the farm nearest to U. S. 460, which the state appraisers estimated at $1,250, and the landowner at $2,500, per acre. Although each witness ultimately couched his opinion in terms of market value of the whole farm before and after the taking, it is clear that the “after” value was forced by subtracting from the “before” value the figure at which he appraised the 26.82 .acres actually taken, together with the amount of direct damages for fencing, etc. We do not question this technique, but mention it in order to point out that since the testimony focused on the value of the 26.82 acres, as such, the manner in which the evaluations were made and conveyed to the jury was of great substantive importance. Now, all of the witnesses agreed that the highest and best use of the land fronting on U. S. 460 was for residential subdivision. The landowner caused a plat to be made and introduced showing how 13.5 acres of the property could have been laid off into 48 building lots. One of his expert witnesses was permitted, over objection, to testify that these lots would be worth $1,000 each and, therefore, that this portion of the land taken was worth $48,000. To this figure he added $9,582 for 1597 feet of road frontage at $6 per foot for the approach strips on U. S. 460, $4,560 for 11.4 acres to the rear of the “subdivided” acreage at $400 per acre, $1,200 for fencing, and $8,000 for a new farm road, thus arriving at a grand total of $71,342.

A map or plat may be admitted for the purpose of showing “the susceptibility of the tract of land to platting and its adaptability to residential purposes.” Northern Indiana Public Service Co. v. McCoy, 1959, 239 Ind. 301, 157 N.E.2d 181; 5 Nichols on Eminent Domain, Sec. 18.11 [2], “The measure of compensation is not, however, the aggregate of the prices of the lots into which the tract could be best divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and is too uncertain and conjectural to be computed.” 4 Nichols on Eminent Domain, Sec. 12.3142 [1].

The price for which individual lots will sell at retail involves various elements of effort, enterprise and expense. A tract of land that has not been subdivided and made physically ready for sale in lots must be valued at wholesale, as is. It can no more be priced at what it will bring after development than a vacant lot can be valued at what it will bring after a building is erected on it. Certainly a man who intends to subdivide a tract and sell lots at $1,000 each would not pay $1,000 per prospective lot for the whole tract. Hence it was improper and prejudicial for the trial court to permit valuation testimony in this case on a per lot basis. See Northern Indiana Public Service Co. v. McCoy, 1959, 239 Ind. 301, 157 N.E.2d 181; State v. Deal, 1951, 191 Or. 661, 233 P.2d 242. We cannot, of course, assume that the jury was not influenced by it.

In St. Agnes Cemetery v. State, 1957, 3 N.Y.2d 37, 163 N.Y.S.2d 655, 143 N.E.2d 377, 62 A.L.R.2d 1161, cited by the landowner in support of this testimony, the Court of Appeals of New York, in a 4 to 3 decision, approved the valuation of a portion of an existing cemetery on a per lot basis. Though we find ourselves more in accord with the viewpoint expressed in the dissenting opinion, nevertheless the case is distinguishable in that the property already had been acquired by the cemetery company and substantially improved for purposes of resale in the form of lots.

The judgment is reversed with directions that a new trial be granted.


author: HYDE, Judge.

text:
    STATE of Missouri, Respondent, v. James Edward WILLIAMS, Appellant.
    No. 49200.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1962.
    Charles W. Meoley, Flat River, Robert A. Mcllrath, Flat River, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
   HYDE, Judge.

Defendant sentenced to death on plea of guilty to a charge of forceable rape. (Sec. 559.260, statutory references are to RSMo and V.A.M.S.) Defendant’s motion to withdraw plea was overruled and he has appealed.

Under the circumstances of this case our conclusion is that defendant should have been permitted to withdraw his plea and have a trial on the merits. (See Mo. Rule 27.25, V.A.M.R.; see also Federal Rule 32 (d) and discussion in Barron and Holtzoff Federal Practice and Procedure, Sec. 2264 and cases cited.) Defendant was represented by appointed counsel, who made very thorough investigation, taking depositions of the principal witnesses and attempting to find where defendant had been during the period from noon when defendant was in St. Louis on the day the crime was committed (in St. Francois County) and the next morning when he was located at his father’s home in Flat River. Defendant’s lawyers told the court that defendant had taken “dope of some sort” in St. Louis and did not remember anything until the next morning; that defendant took the dope because he was disturbed over a divorce suit against his wife who had taken their children out of the state; that from their investigation they were not convinced of defendant’s guilt; that defendant had only told them “I don’t know”; and that they hated to enter a plea of guilty in a case they were not sure of but did so because defendant did not know where he was and they could not find out. Upon entry of this plea, with the State making no recommendation, the court pronounced a sentence of death and defendant’s counsel immediately asked leave to withdraw the plea of guilty. This was denied and a written motion to withdraw the plea was thereafter filed.

In the first place, the plea made by defendant’s counsel was of an equivocal nature stating they hated to make it because defendant did not know where he was or what he did and that, after most thorough investigation, they were not sure of his guilt. Our Rule 25.04 provides: “If a defendant refuses to plead or pleads equivocally, or if the court refuses to accept a plea of guilty, * * *"' the court shall enter a plea of not guilty.” One ground of the motion to withdraw the plea was based on facts showing the equivocal nature of the plea.

Second: Our Rule 25.04 (as does Federal Rule 11) provides: “The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.” This plea was accepted by the court without questioning, cautioning, or saying anything to the defendant or in any way asking if he assented to the plea. The only inquiry made by the court was to defendant’s counsel, saying: “You have explained to the defendant the possibilities of punishment that cata' prevail. It can be death, it can be life imprisonment or less ? Mr. Mcllrath: That’s-right.”

Concerning the same requirements of the-federal rule, the United States Court of Appeals, Second Circuit, said: “Rule 11 of theFederal Rules of Criminal Procedure, 18 U.S.C. provides that the court 'shall not accept the plea [of guilty] without first determining that the plea is made voluntarily with understanding of the nature of the charge.’ While such a determination does not require observance of a particular ritual, United States v. Davis, 7 Cir., 1954, 212 F.2d 264; United States v. Swaggerty, 7 Cir., 1955, 218 F.2d 875, the Rule clearly contemplates that there be something more than a perfunctory examination conducted by the prosecutor that does not serve to inform the judge of the extent of the prisoner’s knowledge of the consequences of his choice of a guilty plea. A mere routine inquiry- — the asking of several standard questions — will not suffice to discharge the duty of the trial court. It is the duty of a federal judge before accepting a plea of guilty to thoroughly investigate the circumstances under which it is made.” United States v. Lester, 247 F.2d 496, 499.

In the Davis case, 212 F.2d 1. c. 267, the court said: “We do not mean to say that a District Court must in every case follow a particular ritual in order to comply with Rule 11. A brief discussion with the defendant regarding the nature of the charges may normally be the simplest and most direct means of ascertaining the state of his knowledge. Or there may be other circumstances from which it is evident that the defendant has the requisite understanding. See Michener v. United States, 8 Cir., 181 F.2d 911, 918; United States v. Denniston, 2 Cir., 89 F.2d 696, 698, 110 A.L.R. 1296. Whatever the means employed, a fair compliance with the Supreme Court rule would insure that the defendant has the knowledge and understanding essential to a valid plea.” Certainly in a case where the punishment may be death, the court should proceed with care, cautioning the defendant as to the gravity of his admission and making sure that he voluntarily and understandingly desires to enter a plea of guilty. See 14 Am.Jur. 9S1, Criminal Law, Sec. 271; see also 22 C.J.S. Criminal Law § 422(5), p. 1172; 4 Wharton’s Criminal Procedure 767-769, Sec. 1900; 110 A.L.R. 228 Annotation. Of course, this does not mean that the court must tell the defendant, before his plea is entered, what sentence he intends to impose.

Third: At the hearing on defendant’s motion to withdraw the plea, an offer of proof was made, which was in accordance with the allegations of the motion to withdraw the plea of guilty and was in part, as follows:

“We would further prove that for several weeks prior to the date this case was set for trial the Prosecuting Attorney’s Office was insisting on recommending a sentence of life imprisonment if a plea of guilty were entered, and that the Defendant’s attorneys refused to plead him guilty under such circumstances.
“We would further prove that several days prior to October the 13th, 1961, and the exact date we do not know, that the Assistant Prosecuting Attorney was in a conference in Judge Swink’s chambers in Farm-ington, and there was present at that conference the Assistant Prosecuting Attorney Mr. Hyler, Judge Swink, Mr. Sonn-tag the Court Reporter, and other persons who we do not know, know their names, and at that time that Judge Swink advised Mr. Hyler that he thought this was a heinous crime and that if Mr. Williams entered a plea of guilty he might give him a death sentence. We will further prove that we had absolutely no knowledge of this conference or no knowledge that the Court might or was considering rendering a death sentence on a plea of guilty * * (At this hearing the Judge said: “No effort was made to confer with me about my ideas in the matter. I think you would have been informed as to what they were if I had been interviewed.”) The offer of proof continued as follows: “We will show that about three days prior to October the 13th the Prosecuting Attorney and Assistant Prosecuting Attorney contacted Defendant’s Attorneys in Farmington, Missouri in the courthouse and in the courtróom, and advised Defendant’s attorney that they would allow Defendant to enter a plea without any recommendation, and that they would withdraw a charge under the Habitual Criminal Statute, and, it was only at that time that Defendant’s attorneys considered entering a plea of guilty.”

The record does show that while the State was saying its only recommendation would be life imprisonment, the charge against defendant was under the Habitual Criminal Statute (Sec. 556.280) but that, on the day the plea of guilty was entered and before it was made, the State filed a second amended information withdrawing the charge of a prior felony conviction; so that the charge against the defendant, when his plea of guilty was entered, was not a charge under the Habitual Criminal Statute. The court erroneously refused to hear any evidence on the motion.

We have said: “The guiding rules are that a plea of guilty is but a confession in open court. Like a confession out of court it should be received with caution. It should never be received unless it is freely and voluntarily made. If the defendant should be misled or be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded, he should be permitted to withdraw his plea. The law favors a trial on its merits.” State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2; see also State v. Hare, 331 Mo. 707, 56 S.W. 2d 141; State v. Harris, 336 Mo. 737, 81 S. W.2d 319; State v. Hovis, 353 Mo. 602, 183 S.W.2d 147; State v. Blatherwick, 238 Mo. App. 1005, 191 S.W.2d 1021. A leading Missouri case is State v. Stephens, 71 Mo. 535, 536, in which it is said: “Courts have always been accustomed to exercise a great degree of care in receiving pleas of guilty, in prosecutions for felonies, to see that the prisoner has not made his plea by being misled, or under misapprehension or the like.” Thereafter in State v. Dale, 282 Mo. 663, 669, 222 S.W. 763, 764, this Court said: “It is immaterial whether the misleading was intentionally or unintentionally done. The material inquiry is: Was the defendant misled, or under a misapprehension, at the time he entered his plea of guilty?”

We conclude that misapprehension could reasonably result from the circumstances of the withdrawal of the charge against defendant under the Habitual Criminal Statute, which usually is intended to authorize more severe punishment, and the State’s statement that their previously intended recommendation of a life sentence would not be made so that defendant could enter a plea without any recommendation from the prosecution. Of course, if the defendant’s evidence had been heard, explanation by the State could also have been heard. While we do not believe that the court or the State intentionally misled defendant or his counsel, we do consider that this could be the result of what was done under the circumstances of this case. Therefore, for all the reasons hereinabove, discussed, we must hold that manifest injustice within the meaning of Rule 27.25' appears in this situation and defendant should be permitted to withdraw his plea of guilty and have a trial on the merits.

The judgment is reversed and the cause-remanded.

All concur.


author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. Roy E. HAWKINS, Appellant.
    No. 49156.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1962.

      Whitsitt & Ehrlich, John R. Whitsitt, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., John C. Baumann, Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

By an information filed in the Circuit Court of Henry County, defendant was charged with altering a check with intent to defraud by increasing the numerals “$500.00”, therein handwritten in ink as the amount payable, to “$5,000.00”, contrary to the provisions of § 561.011 RSMo 1959, V.A.M.S. (to which revision all statutory references herein are made). On application of defendant for change of venue, the case was transferred to the Circuit Court of Bates County, where, upon trial, the jury returned a verdict finding him guilty as charged and assessing his punishment at imprisonment in the state penitentiary for a term of two years. His motion for new trial was overruled and he was thereupon sentenced to custody of the Department of Corrections for the term designated by the verdict. He has appealed.

Defendant’s brief contains five points. Four of them are predicated upon his contention that the alteration here shown did not constitute a crime. That contention, in substance, runs thus: inasmuch as the only alteration alleged and shown in the evidence was the alteration of the handwritten numerals purporting to set forth the face amount of the check to conform with the purported amount payable, ■ as stamped in the body of the check by the drawer thereof with a check protector, to wit: “Exactly $5000 & 00 Cts.”, such alteration was immaterial. The remaining assignment is that, assuming the information alleged and the evidence supported a finding of defendant’s guilt, yet there was no evidence that the offense was committed in Henry County, Missouri. That contention was specifically set forth in defendant’s motion for an acquittal filed at the close of the evidence and thereafter duly carried forward in his motion for new trial.

Defendant offered no evidence. That adduced in behalf of the State, to the extent here material, supports a finding of the following facts: On the 12th day of May, 1960, defendant and Irving Lee Bush, Sr., met in the offices of S. & J. Sales Co., Inc., in Kansas City, Missouri, to consummate an exchange of real estate. Mr. Bush was a resident of the city of Clinton, Henry County, Missouri. The transaction consisted of the trading of property owned by defendant in Colorado for certain properties owned by Mr. Bush in Kansas and Texas. Also present on that occasion were Waldon E. Jones and Mrs. Loretto Smith, respectively, the president and secretary of said sales company. As a result of that transaction, it was agreed that Mr. Bush owed defendant a balance of $481.40, which he would pay by check. Defendant suggested that there was an air conditioner in his property in Colorado and that if Mr. Bush would make the check for $500.00, he could have the air conditioner. Mr. Bush agreed and instructed Mr. Jones, who was representing and receiving a commission from Bush, to make out a check for that amount, and he, Bush, would repay him, Jones, when the deeds were executed and the amount of commission owed by Bush to S. & J. Sales Company was determined. Mr. Bush then went to his home in Clinton. Later that afternoon, defendant insisted that he and Jones go to Clinton and close the deal with Bush that evening. It was then late in the day and Jones did not want to go, but defendant was “rushing and pushing”, saying that he had to go to Oklahoma at 4:00 o’clock the next morning, so Jones finally agreed to go. At the direction of Jones, Mrs. Smith thereupon prepared the check here in question. In so doing, she used a form of check printed for the use of the S. & J. Sales Company in issuing checks drawn on its account in the Southeast State Bank of Kansas City, Missouri. She wrote thereon in ink the date of “S/12/60”, the name “Irving Lee Bush, Sr”, as payee therein, and, following that, she wrote in ink in the space provided therefor the numerals “500.00”, so that the face of the check as written by Mrs. Smith read “$500.-00”. She then placed the check in a check protector and (inadvertently) caused to be stamped in the blank line provided for writing out in full the face amount of the check “Exactly $5000 & 00 Cts.” Immediately beneath the amount stamped upon the check by means of the check protector she wrote in ink in a space for listing the item or items for which the check was given the words “Loan to complete Colorado transaction $481.40”; and, finally, beneath the name of S. & J. Sales Co., Inc., printed on the check as the drawer, she wrote her name, “Loretto M. Smith”. When she had thus completed the check, she handed it to Mr. Jones. He noticed only that the face amount written in ink thereon was $500.00 and that the check was payable to Mr. Bush. He placed the check in his pocket for delivery to defendant upon exchange of the documents required to complete the transaction. Mr. Jones at that time also called Mr. Bush and suggested that he obtain the services of a notary so that he and defendant could come to Clinton that evening and finally close the transaction. In compliance with that suggestion, Bush arranged with a Mr. Potter, a notary public, to take the necessary acknowledgments at his, Potter’s, office in the basement of the courthouse in Clinton that evening. Defendant and Jones arrived at Bush’s office after 6:00 p. m. Following some discussion and examination and signing of certain documents, Jones delivered the check to Bush, who looked at it and saw that it was made to him and bore the ink-written numerals “$500.00” as the purported amount payable. He then and there endorsed his name on the back thereof and handed it to defendant. Insofar as the evidence shows that was the first time defendant had seen the check. Jones, Bush and defendant then rode together in the same car to Potter’s office. They were there approximately thirty minutes. During that time defendant left Potter’s office to get some “cokes” from a vending machine on the second floor of the courthouse. After an interval of “several minutes”, “more than five minutes”, “ten or more minutes”, he returned with the “cokes”. He was in a hurry to get finished up; he seemed nervous and excited. At 10:00 o’clock the next morning, May 13, 1960, Mrs. Smith talked over the phone with defendant at his home in Grandview, Jackson County, Missouri, and he promised to come by the office to pick up the abstracts and a “closing statement” prepared for him. He did not come and never has. About 4:00 o’clock that afternoon, Mr. Bush went to the home in Grandview where defendant and his wife had been living. They were not there and Mr. Bush received information that they “had moved out that morning.”

At the trial, Mrs. Smith produced an exact carbon copy of the check which was made at the time she prepared it in the manner hereinabove detailed. It was on a printed form for use as a carbon copy and was affixed in the checkbook under the original check form, with carbon paper placed between the original and the form for carbon copies of checks used out of that book. It shows beyond question, and the brief filed in behalf of defendant concedes, that when the check was received by defendant the handwritten numerals appearing thereon were “$500.00”. A duly qualified expert testified in detail as to the manner in which the numerals had been altered to show $5,000.00 instead of $500.00. At a “hearing” held either in Jackson or Henry County defendant admitted he had cashed the check as a $5,000.00 check in Fort Smith, Arkansas, in the purchase of a Buick automobile. When the check was paid by the Southeast Bank of Kansas City on May 19, 1960, it bore the following endorsements: (1) “Irving Lee Bush, Sr”; (2) “Roy E. Hawkins”; (3) “For deposit only, Brac-keen Bros. Buick”; and (4) an illegible stamped endorsement of a bank in which it had been deposited. The alteration was discovered when Mrs. Smith examined the statement of account and cancelled checks of S. & J. Sales Company, Inc., received through the mail from the Southeast State .Bank.

Of course, if the evidence does not support a finding that venue of the charge filed against defendant and of which he was convicted was properly laid in Henry County, Missouri, the judgment herein rendered cannot stand. We, therefore, direct our attention first to that question.

Section 541.030 provides: “Offenses committed against the laws of this state shall be punished in the county in which the offense is committed, except as may be otherwise provided by law.” Although there are special statutory provisions as to jurisdiction and venue of other offenses in the State of Missouri, there is none with respect to forgery. In the absence of such a statute, the venue of a prosecution for forgery is in the county where the forgery was actually committed and the offense of uttering a forged instrument must be tried in the county in which it was uttered. 22 C.J.S. Criminal Law § 185(15), page 476.

Due to the difficulty of proving the place of a forgery, the courts of this state have, in some instances, indulged in prima facie presumptions in order that a case may he made in the absence of evidence contradictory to the prima facie presumption so indulged. In these cases, it has been stated that possession of a forged instrument, or, at all events, the uttering of it in the county where the indictment or information is found is cogent evidence to be addressed to-the jury that the forgery was committed by the defendant in that county. State v. Yerger, 86 Mo. 33, 39; State v. Willard, 228 Mo. 328, 128 S.W. 749, 751-752; State v. Douglas, 312 Mo. 373, 278 S.W.1016, 1022.

These cases, .however, are of no aid in determining venue in this case. The evidence shows that it was uttered by defendant in Arkansas and there is not a scintilla of evidence to establish that the check was altered while in the possession of defendant in Missouri. The,only evidence even hinting at an effort to show that the check was altered by defendant in Henry County was-to the effect that he left the presence of the State’s witnesses for several minutes on the mission to get “cokes” and when he returned he seemed nervous, excited and in a hurry. (The evidence also shows that even before the check was executed he was “rushing and pushing”, saying that he had to go to Oklahoma.) It may also be noted that after leaving Potter’s office in Henry County defendant was in Jackson County, Missouri, as late as 10:00 o’clock the following morning. These facts present at most evidence that defendant had an opportunity to alter the check in Missouri; on the other hand, he also had an equal opportunity to alter it after he left Missouri. Consequently, any conclusion reached by the jury that the check was altered in Missouri could only rest upon pure speculation.

In this state of the record, the Attorney General, in the brief filed in behalf of the State, admits with commendable candor that although the guilt of defendant may be deemed evident, yet no rule of evidence has been found to support the proposition that a mere opportunity afforded him to alter the check in Missouri, especially when it was not uttered until he reached Fort Smith, Arkansas, would support a finding that the alteration occurred in Missouri. We are forced to the same conclusion and must hold that there is no evidence that defendant committed the crime here charged in the State of Missouri.

We find no indication in the record that there is any likelihood whatever that, upon remand and retrial, the State would be able to adduce evidence sufficient to support a finding that the check was altered in Henry County, or even in Missouri. Consequently, we are persuaded that no good purpose would be served by remanding the case for a new trial.

The judgment is reversed.

All concur.