author: WARD, Justice.

text:
    RANGER INSURANCE COMPANY, Appellant, v. Beatrice VALERIO, Individually and as next friend of Corina Yvette Valerio, a minor, Appellee.
    No. 6578.
    Court of Civil Appeals of Texas, El Paso, Texas.
    July 6, 1977.

      Rassman, Gunter & Boldrick, James P. Boldrick, Midland, for appellant.
    Bobby R. Bearden, Edward T. Garza, Don E. Williams, Midland, for appellee.
   OPINION

WARD, Justice.

This is a workmen’s compensation death case. Judgment was entered for the claimant-widow based on the one issue submitted to the jury which found that the accidental injury was received by the deceased in the course of his employment. The appellate points are those that challenge the legal sufficiency of the evidence to support the finding and assert that, as a matter of law, the deceased, Esteban Valerio, at the time of injury was on a purely personal mission. We will deny the recovery and reverse and render.

The parties stipulated to the controlling facts except those relating to the one question submitted. While those facts are almost without dispute, they and the inferences arising therefrom will be viewed in the light most favorable to support the jury finding because of the law points attacking that finding.

Viewing the evidence most favorable to the finding, we see that Esteban Valerio, Alfonso Calvio, and Robert Oaks were employed by Earl Newcomer who did business as Newcomer Butane & Oil. The principal business was that of delivering butane and butane tanks to the farms and residences in Martin County. One farmer had transferred his account and on the afternoon of May 16, 1973, the three employees were directed to pick up the butane tanks from that farm and return them to the company yard. There were some ten or more 500-gallon tanks at the farm, and Valerio and the two fellow employees were sent in two separate trucks to perform the task. Each truck had a trailer attached which carried a hoist. When they arrived at the farm, Val-erio wrenched up and secured one tank to his trailer, then parked his truck and was helping his two fellow employees load a tank onto the other trailer. -Oaks moved the truck he was driving to a point where the trailer would straddle the tank, and he and Calvio then hand-cranked the tank up onto the trailer. In the process, a rabbit came out from under the tank and ran into an irrigation pipe which was stacked with other pipes some 40 or 50 yards from the truck. When the tank had been lifted, Val-erio helped secure the tank and completed that particular task. While Oaks was parking his truck next to the other one, Valerio and Calvio went over to the pipe to get the rabbit. They lifted the irrigation pipe, which was some 30 or 40 feet long, and in the process the pipe came in contact with an overhead power line and Valerio was electrocuted. The three men at the scene were of equal employment status and there was no boss at the job, although Oaks testified that he had called to the two men while they were after the rabbit to stop what they were doing and to proceed with the work at hand.

Mr. Newcomer knew that his employees took coffee breaks when they desired and consented to the practice, although no specific times were assigned for the breaks. He testified that the employees had never been permitted nor instructed to move any irrigation pipe, nor had they any business hunting rabbits on company time, and it would not have helped the employer in any way for any employee to shake a rabbit out of an irrigation pipe.

The phrase “injury sustained in the course of employment” is defined in Tex.Rev.Civ.Stat.Ann. art. 8309, Sec. 1, and specifically excludes certain injuries not material here but includes:

“ * * * all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.”

As often stated, the requirements of the Statute are not satisfied by proof that injury occurred while a workman was engaged in or about the furtherance of his employer’s affairs or business. The claimant must also establish that the injury was of a kind and character that had to do with and originated in the employer’s work, business, trade or profession. Shelton v. Standard Insurance Company, 389 S.W.2d 290 (Tex.1965). Thus, coverage under the compensation law ceases during deviations by the employee from the course and scope of his employment and injury sustained during a deviation is not compensable. Texas Employers’ Insurance Association v. Blessen, 308 S.W.2d 127 (Tex.Civ.App — Amarillo 1957, writ ref’d n.r.e.); 62 Tex.Jur.2d Workmen’s Compensation, Sec. 72 at p. 627 (1965).

Appellee’s position is that here the employee was actually on the job; the employer knew and condoned the coffee breaks and therefore could reasonably anticipate some small form of innocent relaxation on the part of the employee during the period of the working day; and that the small deviation, both in time and space, from the course and scope of employment should not cause the employee or his beneficiary to lose the protection of the compensation act. A slight deviation and the common habits of most people were condoned in Texas General Indemnity Company v. Luce, 491 S.W.2d 767 (Tex.Civ.App. — Beaumont 1973, writ ref’d n.r.e.). There, the cafeteria employee was required to return to the place, of business to get her paycheck while she was on vacation, and after being paid, then, deviated to the extent of walking behind the serving line to greet fellow employees. There she was injured and that simple deviation was held not to remove her from coverage.

Similar reasoning was applied to a personal-assault-type of case by the same Court in St. Paul Insurance Company v. Van Hook, 533 S.W.2d 472 (Tex.Civ.App.— Beaumont 1976, no writ). There, the 17-year old claimant-janitor attempted to protect his employer’s property from rock throwers. Although the ensuing fight occurred at a nearby boxing ring instead of at the scene, the slight departure did not prohibit the recovery of compensation.

Appellee further points out that the deceased and his fellow worker were on the job waiting to go to the next tank while Oaks completed his task of driving his truck to the other truck. The Appellee compares these facts to a case where it was stressed that the employee was in readiness and merely waiting. Millers Mutual Fire Insurance Company of Texas v. Monroe, 495 S.W.2d 625 (Tex.Civ.App. — Waco 1973, writ ref’d n.r.e.). There, the manual laborer had completed a task and was waiting for freight cars to be positioned when he sat on his shovel, fell off the shovel, and struck, his head on the floor. At that time, he was required to hold himself in readiness for work and to be ready, able and available to perform whatever duties he might be called upon to perform. The Court pointed out that to hold that the injury did not originate in the work or did not occur when he had been acting in furtherance of the business of the employer would be to give a strict interpretation to the workmen’s compensation law contrary to the direction that it be liberally construed.

Somewhat similar was the pumper who lived on the isolated lease and who was hired to keep the engine on the well and the pumping operations going twenty-four hours a day. In that assault-type case which resulted in the brutal murder of the pumper, the employee was held not to forfeit the claim for compensation where he embarked on what he thought would be a wolf hunt which would be held within hearing distance of the pump and where he could at all times determine if the engine was still performing. Southern Surety Co. v. Shook, 44 S.W.2d 425 (Tex.Civ.App.— Eastland 1931, writ ref’d).

In the last case it was pointed out that when a man is employed to work at any job, the fact that he is a human with ordinary human habits and requirements is necessarily taken into consideration. That being the case and considering the behavior of Valerio as being a natural impulsive act under the circumstances, the issue then to be determined is how far could he have gone in chasing his rabbit? At what point does the deviation become so distinct that he can be considered to have left his employment and the coverage?

In the travelling-man-type of case, the rule has been liberalized to the extent that it is considered that the injury arose in the course of the employment when the injury had its origin in a risk created by the necessity of sleeping or eating away from home. Even there, the coverage ceases upon a showing of a distinct departure on a personal errand of the employee not connected with the necessity of sleeping or eating. Shelton v. Standard Insurance Company, supra. When a departure upon a personal errand is shown which was not contemplated by the employment, the exclusion has been strictly applied. Thus, coverage was denied in Walker v. Texas Employers’ Insurance Association, 443 S.W.2d 429 (Tex.Civ.App. — Fort Worth 1969, writ ref’d). There, the travelling man late at night decided to go to the motel room of a stranger for a shot of liquor but instead received a shot in his back. In Hardware Mutual Casualty Company v. McDonald, 502 S.W.2d 602 (Tex.Civ.App. — San Antonio 1973, writ ref’d n.r.e.), recovery was denied where the travelling salesman late at night on a personal mission drove down to the river and was drowned where the mission had nothing to do with the furtherance of his employer’s business. ■

After reviewing the authorities, we feel that we are governed by the deviation rule as was applied in Roberts v. Texas Employers’ Insurance Association, 461 S.W.2d 429 (Tex.Civ.App. — Waco 1970), where the writ of error was marked “refused.” There, the Court, after expressly stating that the incident occurred on the employer’s premises during working hours, held against coverage where the employee took a pasteboard box she had obtained for her own use to her car, which was parked on the company parking lot, and there sustained an injury. She testified that the purpose for which she wanted the box was purely personal, and the injury was held not compensable.

Here, the risk to which Valerio subjected himself when he raised the irrigation pipe to get the rabbit and touched the power line was foreign to anything that had to do with his employment in picking up butane tanks. The origin of the harm was clearly personal to him and could not be attributed to the employment, even though it occurred when he was on the job. The positional risk doctrine is of no aid to the claimant as no “neutral force” or unexplained occurrence was involved. See Larson, “The Positional-Risk Doctrine and Workmen’s Compensation Laws,” 1973 Duke L.J. 761.

The Appellant’s points are sustained. The judgment for the Plaintiff is reversed and judgment is here rendered that the Plaintiff take nothing by her suit.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    STANDARD FIRE INSURANCE COMPANY, Appellant, v. Kenneth Ray BARNARD, Appellee.
    No. 5707.
    Court of Civil Appeals of Texas, Waco.
    July 7, 1977.
    C. Edward Fowler, Jr., and G. David Westfall, Bailey, Williams, Westfall, Lee & Fowler, Dallas, for appellant.
    Don B. Hinds, Yarborough, Hinds & Sha-han, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case. Trial by jury resulted in a jury verdict and judgment in favor of Appellee Kenneth Ray Barnard for total and permanent benefits, from which Appellant Standard Fire Insurance Company appeals. We affirm.

The jury made the following findings in answer to special issues pertinent to this appeal, to wit:

(1) Plaintiff received an injury on or about May 26, 1974; (2) in the course of his employment; (3) which was a producing cause of total incapacity; (3A) beginning May 26, 1974; (3B) which was permanent. The trial court entered judgment in favor of Plaintiff-Appellee Barnard against Defendant-Appellant Insurance Company pursuant to and in harmony with the jury verdict.

Appellant Insurance Company appeals on ten points of error which may be divided into two categories as follows:

(1) Points one through seven inclusive complain of the failure of the court to suppress the testimony of Dr. Ross Carmichael, a Plaintiff’s witness who testified Plaintiff was totally and permanently disabled.

(2) Points eight through ten inclusive complain of assertedly inadmissible hearsay evidence which was first admitted and later withdrawn from the jury’s consideration by the trial court.

We revert to Appellant’s points one through seven inclusive. On the date trial commenced, August 23, 1976, Defendant-Appellant filed a motion to suppress the testimony of Dr. Ross Carmichael, a medical witness called by Plaintiff, claiming surprise brought about by Plaintiff’s asserted violation of Rule 168, Texas Rules of Civil Procedure.

On March 10, 1976, Defendant submitted written interrogatories to Plaintiff, which were answered by Plaintiff on or about April 2,1976. Number 21 of said interrogatories asked Plaintiff if he had been “examined and/or treated by a doctor or doctors since the date of the incident which is the subject matter of this lawsuit,” and if so, to furnish the name, address, dates, and nature of treatment. In answer to this question, Plaintiff listed the names and addresses of four doctors, including Dr. R. M. Carmichael, and two hospitals.

Interrogatory Number 26 asked Plaintiff to list the names and addresses of “all experts which have consulted with you or your attorney about this case in any respect,” to which Plaintiff answered “I have not had any consultations with anyone about this case.”

Interrogatory Number 27 asked Plaintiff to “state the factual observations and opinions of the person or persons referred to in question 26 who will be called as a witness in this case,” to which Plaintiff answered: “I do not know which expert witnesses my attorney plans to call and he has made no decision on this.”

The trial court heard evidence on Defendant’s Motion to Suppress Dr. Carmichael’s testimony outside the presence and hearing of the jury, and overruled said motion. At this hearing, the Plaintiff-Appellee’s lawyer testified that on June 4,1976 (about 80 days prior to trial), he told the Defendant-Appellant’s lawyer that he (Plaintiff-Appellee) intended to use Dr. Carmichael as a witness. The Defendant-Appellant’s lawyer testified that Plaintiff-Appellee’s lawyer did tell him “he intended to use a doctor,” but denied that Plaintiff-Appellee’s lawyer told him he was going to call Dr. Carmichael.

Appellant points to the following language in Rule 168:

“A party whose answers to interrogatories were complete when made is under no duty to supplement his answers to include information thereafter acquired, except as follows: (1) a party is under a duty seasonably to amend his answer if he obtains information upon the basis of which (a) he knows that the answer was incorrect when made, or (b) he knows that the answer though correct when made is no longer true and the circumstances are such that a failure to amend the answer is in substance a knowing concealment; . . .” (emphasis supplied).

Appellant says when Appellee decided to use Dr. Carmichael as a witness, that at that time he owed the duty to amend his answers to the interrogatories so as to let Appellant know; and since Appellee failed to do this, Appellant was caught by surprise at the time of trial, and the trial court erred in refusing to suppress Dr. Carmichael’s testimony.

We overrule this contention. In this state of the record, the trial court had the right to believe Plaintiff’s lawyer’s testimony to the effect that Defendant’s lawyer was told eighty days prior to trial that Plaintiff intended to call Dr. Carmichael as a witness. The trial court in overruling the “Motion to Suppress” impliedly found that Defendant’s lawyer had eighty days’ notice of this fact, in which event Appellee’s failure to amend his answers to interrogatories did not amount to a “knowing concealment,” and in which event the Defendant was not surprised.

We express no opinion as to whether Plaintiff-Appellee under these circumstances should have amended his answers to the interrogatories in question. What we do hold is that the trial court resolved a conflict in the evidence against the Defendant-Appellant in the hearing on the motion to suppress, as said court had the right to do, which negated surprise on Defendant’s part as well as negated a “knowing concealment” on Plaintiff’s part. For these reasons, the trial court did not err in overruling the motion to suppress Dr. Carmichael’s testimony, and Appellant’s points one through seven are overruled. See Texas Employers Insurance Association v. Thomas (San Antonio, Tex.Civ.App., 1974) 517 S.W.2d 832, NRE.

Appellant’s points eight through ten inclusive deal with the problem wherein the trial court permitted Plaintiff Kenneth Ray Barnard to testify over a hearsay objection substantially as follows: “Dr. Casey Patterson told me, ‘You have a bump, but we are not going to operate now,’ ” referring to an analysis of a myelogram which had previously been taken of the witness Barnard. Appellant asserts the admission of this testimony was calculated to cause and probably did cause an improper verdict, even though the trial court subsequently instructed the jury not to consider this evidence for any purpose. We overrule these points.

Plaintiff Barnard was sent by his employer to Dr. Williams on the day after his injury. Dr. Williams put Plaintiff in traction in the hospital and referred him to Dr. Casey Patterson who ran a myelogram on Plaintiff’s back. Barnard was permitted to testify over a hearsay objection that Dr. Patterson told him, “You have got a bump, but we’re not going to operate for what you have.”

After Barnard completed his testimony there was a recess, immediately after which the trial court instructed the jury not to consider the purported statement of Dr. Patterson for any purpose. After Plaintiff-Appellee rested, Defendant-Appellant introduced testimony of Dr. Patterson from his deposition, in which Dr. Patterson testified that the myelogram was “perfectly normal except where there was a little bulge of the capsule at the lumbar ‡⅛ space.” On subsequent occasions in his testimony, Dr. Patterson referred to this “bulge” or “central protrusion” in Plaintiff’s spine.

We believe that the error, if any, on the part of the trial court in admitting the testimony in question was harmless. Rule 434, Texas Rules of Civil Procedure. Moreover, since Appellant introduced similar evidence by its own witness Dr. Patterson, Appellant could not complain of the Plaintiff Barnard’s testimony in question. See City of Houston v. Howe and Wise (Houston, 1st Tex.Civ.App.1959) 323 S.W.2d 134, 138, NRE. Appellant’s points eight through ten inclusive are overruled.

Finding no reversible error, judgment of the trial court is affirmed.

AFFIRMED.


author: McCLOUD, Chief Justice.

text:
    Ray AGNEW, Appellant, v. David E. BRAWNER et al., Appellees.
    No. 5059.
    Court of Civil Appeals of Texas, Eastland.
    July 7, 1977.
    Rehearing Denied July 28, 1977.
    Bryan Bradbury, Bradbury, Tippen & Cross, Abilene, for appellant.
    Virgil T. Seaberry, Turner, Seaberry & Warford, Eastland, for appellees.
   McCLOUD, Chief Justice.

Plaintiff, Ray Agnew, sued defendants, David E. Brawner, Willie Lee Brawner, Au-try Truman Brawner, May Roach and Lucille Handlin, for specific performance of a contract to convey real property. Prior to trial, David E. Brawner died and it was stipulated the other named defendants inherited part of his interest in the property. The land in question was owned in common by seven persons. The contract made the basis of this suit was drawn to be executed by six of the seven owners. The five defendants and plaintiff executed the contract, but the other common owner named in the contract, Harold Brawner, refused to sign the contract. Defendants alleged the contract was never delivered.

The case was tried before the court without a jury. No findings of fact or conclusions of law were filed. Judgment was rendered for defendants. Plaintiff appeals. We affirm.

The judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W .2d 869 (Tex.1962). The trial court impliedly found that the contract was never delivered. Plaintiff must, therefore, conclusively establish that the contract was delivered. We can only consider the evidence that supports the judgment and must disregard all contrary evidence. Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769 (1957).

A written contract is not effective until it is delivered. Alaga v. Stubblefield, 174 S.W .2d 627 (Tex.Civ.App. — El Paso 1943, no writ). Only the plaintiff testified at trial. On cross-examination, he stated the contract was never “delivered” to him nor did he know where the contract was. This is some evidence in support of the judgment. The court could properly conclude that the defendants did not part with dominion and control over the contract. In Hart v. Rogers, 527 S.W.2d 230 (Tex.Civ.App. — East-land 1975, writ ref. n. r. e.), this court said:

“We hold, that in order to constitute legal delivery it is not necessary that a deed be manually transmitted to the grantee, nor is it always necessary that a deed be placed out of the grantor’s physical possession, but it is essential that the grantor relinquish dominion and control over the deed. 26 C.J.S. Deeds § 42; 23 Am.Jur.2d, Deeds, § 89; 19 Tex.Jur.2d, Deeds, § 84; 129 A.L.R. 11; 87 A.L.R.2d 787, Kincheloe v. Kincheloe, 152 S.W.2d 851 (Tex.Civ.App. — Amarillo 1941, writ ref’d w. o. m.); Sides v. McDonald, 228 Ark. 673, 310 S.W.2d 16 (1958); Dallas Joint Stock Land Bank of Dallas v. Burck, 102 S.W.2d 1074 (Tex.Civ.App.— Waco 1937, writ dism’d); Sgitcovich v. Sgitcovich, 229 S.W.2d 183 (Tex.Civ.App. —Galveston 1950, writ ref’d n. r. e.).
Defendants rely upon Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912) and Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661 (1917), in support of their contention that it is not essential that a grantor lose dominion and control over a deed. Language supporting defendants’ argument is found in the opinions. However, it is clear in both cases the grantor did part with dominion and control over the deeds. In Eckert v. Stewart, 207 S.W. 317 (Tex.Civ.App. — Amarillo 1918, writ ref’d), the court, after reviewing Henry and Taylor, held:
‘It is elementary that, in order for a deed to operate as a conveyance, there must have been delivery with the intent and purpose on the part of the grantor to relinquish control of the deed. Steffian v. Milmo Bank, 69 Tex. 513, 6 S.W. 823.’
Chief Justice Hickman in Ragland v. Kelner, 148 Tex. 132, 221 S.W.2d 357 (1949), after citing Henry and Eckert, said:
‘The test established by those cases is whether or not the grantor parted with all dominion and control over the instrument at the time he delivered it to the third person, with intent at the very time of its delivery that it take effect as a conveyance.’ ”

Plaintiff has failed to conclusively establish the contract was delivered. Judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Lucy D. MITCHELL et al., Appellees.
    Supreme Court of Kentucky.
    June 10, 1977.
    Lee E. Sitlinger, Jr., Hogan, Taylor, Den-zer & Bennett, Louisville, for appellant.
    F. Thomas Conway, Stephen F. Schuster, Louisville, for appellees.
   PER CURIAM.

State Farm Mutual Automobile Insurance Company appeals from a judgment entered on a jury verdict awarding Lucy D. Mitchell $5,015.88 in damages for injuries sustained in an automobile accident.

The dispositive issue presented on this appeal is stated as follows: “Is the ‘physical contact’ requirement in the ‘hit and run’ clause of the uninsured motorist provision of State Farm’s automobile liability policy in conflict with KRS 304.20-020?”

An automobile being driven by Timothy Moran crossed the grass median on Highway 1-65 and struck the automobile of Lucy D. Mitchell. Moran testified that a utility truck tried to pull over in his lane of travel, causing him to steer to the left and lose control of his automobile, cross the grass median, and collide with the Mitchell automobile. Moran admitted that there was no physical contact between his vehicle and the truck. Further, no witness observed the presence of this truck at any time before or after the accident.

Mitchell filed an action against Moran and her insurance carrier, State Farm, under the uninsured motorist provision of her automobile liability policy on the theory that the truck came within the purview of a hit-and-run automobile.

The trial court denied State Farm’s motion for a summary judgment and submitted the case to a jury. The jury awarded Mitchell $5,573.20 and apportioned the award 10% against Moran and 90% against the “unknown motorist (State Farm).” The judgment entered by the court ordered that Mitchell recover of Timothy Moran $557.32 with interest. The judgment further ordered that Mitchell recover of State Farm $5,015.88 with interest.

In the course of the trial, State Farm moved for a directed verdict at the close of the plaintiff’s evidence and again at the conclusion of all the evidence. State Farm also moved for a judgment notwithstanding the verdict or, in the alternative, a new trial. All of these motions were overruled.

Moran admitted that there was no “physical contact” between his automobile and the utility truck. The uninsured motorist provisions of the policy of insurance issued by State Farm to Mitchell extended coverage to a “hit-and-run automobile as defined.” Such vehicle was defined as follows:

“Hit-and-run automobile means a land motor vehicle which causes bodily injury to an insured arising out of physical contact of such vehicle with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or owner of such ‘hit-and-run automobile’; ‡ * * »

This court’s recent opinion in Jett v. John Doe and Kentucky Farm Bureau Mutual Insurance Company, Ky., 551 S.W.2d 221, decided April 22, 1977, concluded that a “physical contact” requirement in the “hit- and-run” clause of the uninsured motorist provision of an automobile liability policy is not in conflict with KRS 304.20-020.

Suzanne Jett was forced off the road by an automobile that neither stopped nor came into “physical contact” with her automobile. The ensuing damage was the direct result of the negligence of the driver of the oncoming motor vehicle. Lucy D. Mitchell’s automobile was damaged when it collided with one driven by Timothy Moran. There was physical contact between the Mitchell and Moran vehicles. However, it is admitted that the utility truck which triggered the chain of events did not come into physical contact with the Moran vehicle. This being true, did the physical contact between the Mitchell and Moran vehicles satisfy that requirement of the “hit- and-run” clause of - the uninsured motorist policy?

The majority rule in this respect holds that where an unknown hit-and-run motorist strikes a third vehicle, which in turn strikes the insured vehicle, there is “actual physical contact” within the meaning of the contractual requirements contained in an uninsured motorist policy. State Farm Mutual Automobile Insurance Company v. Carlson, 130 Ga.App. 27, 202 S.E.2d 213 (1973); Louthian v. State Farm Mutual Insurance Company, C.A. 4th Cir., 493 F.2d 240 (1973). See also Motor Vehicle Accident Indemnification Corporation v. Eisenberg, 18 N.Y.2d 1, 271 N.Y.S.2d 641, 218 N.E.2d 524 (1966).

This court is of the opinion, nevertheless, that where there has been no actual physical contact between the hit-and-run vehicle itself and either the insured vehicle or the intermediate vehicle, the “physical contact” requirement of the hit-and-run clause of the uninsured motorist policy under consideration in this case has not been met.

The judgment against State Farm Mutual Automobile Insurance Company is reversed.

All concur.


text:
    Arthur CALDWELL and Delvia Caldwell, Appellants, v. Mae H. BROWN and Cora Weindel, Appellees.
    No. 75-1073.
    Supreme Court of Kentucky.
    July 1, 1977.

      Thomas B. Givhan, Shepherdsville, for appellants.
    Norman R. Lemme, Pike, Lemme & Conway, Shepherdsville, for appellees.
   PER CURIAM.

On November 5, 1869, J. D. Cundiff conveyed to the Louisville & Nashville Railroad one acre adjoining its right-of-way on the condition that the lot was to be used for depot purposes. The deed provided: “Said parcel of ground to revert to said party of the first part should the party of the second part at any time abandon or fail to use it for the purposes herein set forth.”

The railroad company ceased to use the lot for depot purposes, dismantled the buildings it had placed on the lot, and made no further use of the property. On January 6, 1969, it conveyed the lot to Arthur and Delvia Caldwell by quit-claim deed.

On July 14,1969, Mae H. Brown and Cora Weindel as heirs of J. D. Cundiff filed this action to quiet their title to the lot, claiming that title had reverted to them upon the abandonment of the lot by the railroad and, consequently, the quit-claim deed to Caldwell was void. The judgment of the trial court held the reservation in the 1869 deed to be a possibility of reverter, and the title to the lot had automatically vested in Brown and Weindel upon its abandonment by the railroad. Finally, the court held that Caldwell acquired no interest by the quitclaim deed as the railroad had no title to convey. The trial court also held that KRS 381.221 did not apply.

Caldwell asserts upon appeal that KRS 381.221 did apply and that the failure of Brown and Weindel to timely file a notice of intent extinguished their rights under the possibility of reverter. KRS 381.221 is a part of the Kentucky Perpetuities Act of 1960 and provides that every possibility of reverter and every right of entry created prior to July 1,1960, cease to be enforceable thirty years after its creation unless a declaration of intention to preserve it was recorded before July 1, 1965.

It is admitted that Brown and Weindel did not file the required declaration of intention to preserve. KRS 381.221 was enacted by the 1960 General Assembly and became effective June 16, 1960. On July 16, 1973, Cora Weindel testified as follows:

“Q. Do you know approximately when the L & N ceased using that as a depot?
A. Oh, it’s been about twenty-five or thirty years ago.”

This is the only evidence in the record concerning the time of abandonment by the railroad. A rather elementary mathematical calculation makes it clear that the railroad ceased using the lot as a depot as early as 1943 and, in no event, later than 1948. Caldwell correctly stated that under the common law the language in the 1869 deed created a possibility of reverter which carried with it an automatic termination on cessation of the use. This being true, the possibility of reverter did not exist on June 16, 1960, as the reversion had already occurred. KRS 381.220 could not have controlled this issue.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, ALCOHOLIC BEVERAGE CONTROL BOARD, et al., Appellants, v. LEXINGTON JOHNNIE’S, INC., Appellee.
    Supreme Court of Kentucky.
    July 1, 1977.
    Robert F. Stephens, Atty. Gen., Frankfort, R. Coleman Endicott, Lexington, for appellants.
    Rudy Yessin, Frankfort, for appellee.
   PER CURIAM.

Lexington Johnnie’s, Inc., filed a petition for a declaration of rights seeking to have the trial court resolve a controversy concerning the proper construction of KRS 244.090(l)(a) and KRS 243.500(4). Both sections of the statute are a part of the act governing the licensing and sale of alcoholic beverages. Each section prohibits the employment by an establishment licensed to sell alcoholic beverages of any individual convicted of a felony or a misdemeanor.

Lexington Johnnie’s, Inc., proposed to employ Booker T. Jones who had previously been convicted of the felony of knowingly receiving stolen property. This felony was not attributable directly or indirectly to the use of intoxicating liquors.

The trial court concluded as a matter of law that the construction of KRS 244.-090(l)(a) and KRS 243.500(4) did not prohibit the employment of a convicted felon unless the conviction was directly or indirectly attributable to the use of intoxicating liquors. The Alcoholic Beverage Control Board appeals, asserting that felony convictions and misdemeanor convictions occupy distinct categories and that there is no qualification regarding felony convictions; therefore, the prohibition applies to all felons.

KRS 244.090(l)(a) provides:

“(1) No person holding any license under KRS 243.020 to 243.670 shall knowingly employ in connection with his business, in any capacity whatsoever, any person who:
(a) Has been convicted of a felony or of any misdemeanor or offense directly or indirectly attributable to the use of intoxicating liquors, within the last two (2) years.”

By way of emphasis, it is apparent that employment is prohibited under circumstances where an individual has been convicted (1) “of a felony”; (2) “or of any misdemeanor”; (3) “or offense directly or indirectly attributable to the use of intoxicating liquors”.

Criminal offenses are defined in KRS 431.060 as follows:

“Offenses are either felonies or misdemeanors. Offenses punishable with death or confinement in the penitentiary are felonies. All other offenses, whether at common law or made so by statute, are misdemeanors.”

The Kentucky Penal Code, KRS 500.080, defines felonies and misdemeanors in substantially the same language, with traffic violations being excepted from the definition of misdemeanors. As all offenses must be either felonies or misdemeanors, both categories (2) and (3) above must be classified as misdemeanors. Any doubt concerning the applicability of these two sections of the statute is put to rest by KRS 243.500(4) wherein it is provided that a license previously issued must be revoked or suspended for the following causes:

“If, within a period of two (2) consecutive years, there shall have been two (2) or more convictions of any licensee or of any of his clerks, servants, agents or employes for any violations of the terms and provisions of chapter 241, 243 or 244 or any act heretofore or hereafter in effect relating to the regulation of the manufacture, sale and transportation of alcoholic beverages or if, within such period, any licensee or any of his clerks, servants, agents or employes shall have twice been convicted of any felony or of any misdemeanor directly or indirectly attributable to the use of intoxicating liquors, or of one (1) such felony and one (1) such misdemeanor.”

Here, the conclusionary statements of this particular subsection impose sanctions where a licensee or any of his clerks, servants, agents, or employees have been twice convicted of any felony or of any misdemeanor directly or indirectly attributable to the use of intoxicating liquors. Thus, in this subsection we have two distinct classifications, the first being a felony conviction and the second a misdemeanor conviction attributable to the use of intoxicating liquors. A reading of the two sections of the statute and an analysis of the ends sought lead to but one conclusion: No person convicted of a felony or an individual convicted of a misdemeanor which involves the use of intoxicating liquors may be employed in an establishment licensed to sell alcoholic beverages.

The clear intent of the Legislature in passing the act regulating the licensing and sale of intoxicating liquors is shown in KRS 244.120 wherein it is provided that “no person licensed to sell alcoholic beverages at retail shall cause, suffer, or permit the licensed premises to be disorderly or allow criminals and people of ill repute to congregate on the premises.” If the Legislature intended to exclude as customers of such establishments criminals and people of ill repute, it is even more apparent that it intended to exclude from employment in such establishments persons who had been convicted of a felony, no matter the circumstances under which the conviction was had.

The conclusion of this court in regard to felonies is well within the bounds of rules of statutory construction concerning those of a like nature. In Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262, 130 S.W.2d 756 (1939), this court said:

“It is a familiar rule of statutory construction that the entire act is to be considered with the judicial eye upon the historical setting, the public policy, the objects to be accomplished, the mischief intended to be remedied, and all other attendant facts and circumstances which throw intelligent light upon the intention of the law-making body. Sewell v. Bennett, 187 Ky. 626, 220 S.W. 517. The reason and spirit of the law must be considered. If a literal meaning of the language used would defeat the intention, such will not be given it for the real purpose of the legislature must prevail over the literal import of the words used. * * * >>

This court is of the opinion that the operator of an establishment licensed to sell alcoholic beverages may not employ a person who has been convicted of a felony within two years prior to the date of employment.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


author: WHITE, Judge.

text:
    Grace E. STARNS, Appellant, v. Glenn R. LANCASTER, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1977.
    H. Carlton Buchanan, William I. Mark-well, P. S. C., Henderson, for appellant.
    Ronald G. Sheffer, King, Deep & Brana-man, Henderson, for appellee.
    Before WHITE, COOPER and LESTER, JJ.
   WHITE, Judge.

This appeal concerns the liability of a landlord for injuries resulting from a fall occurring on the landlord’s rental property.

The evidence shows that in August of 1974, the appellee leased to William and Judy Rose a mobile home and lot located in Henderson, Kentucky. The only entrance to the mobile home was by means of a porch and steps. The porch was wider than the steps and had handrails only along the ends. The steps had no handrails at all. There was no outside light on the mobile home.

On August 11, 1975, the appellant, along with Mrs. Rose’s father, arrived at the Rose home. She entered the mobile home at about dusk by using the porch and steps. Later that night, at about 11:00 to 11:30 p. m., she left to take some salt and pepper shakers out to her truck. While holding onto the rail with one hand and carrying the shakers with the other, she stepped off the side of the porch and fell to a concrete patio below.

In her complaint, the appellant alleged that appellee was negligent “in maintaining said premises” and further that appellee “knew or reasonably should have known of the existence of certain dangerous conditions existing upon said premises” and that her injuries and damage were the direct and proximate result of the appellee landlord’s negligence. No action was filed against the tenants, William and Judy Rose.

After depositions were taken appellee Lancaster made a motion for summary judgment which was granted October 13, 1976. A motion to alter, amend and vacate the summary judgment was made and was overruled on November 3, 1976. This appeal comes from those actions by the trial court. There are no affidavits in the record in favor or in opposition to any of these motions. Neither the summary judgment nor the order state the rule of law upon which they are based.

Appellant contends in her brief that the reason for summary judgment was because the trial court ruled that Grace E. Starns was a licensee at the time of the accident and that Glenn R. Lancaster breached no duty to her; the court ruled that, in any case, she was contributorily negligent. On this appeal, counsel for Mrs. Starns contends vigorously that this court should follow the modern trend and abolish the distinction between licensees and invitees following the lead of Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 448 P.2d 561 (1968); 32 A.L.R.Sd 496 (see cases collected in the supplement).

We decline to do so in this case. The facts here clearly lead us to the general rule of law stated in 49 Am.Jur.2d Landlord and Tenant § 982, at 954-55 (1970):

At common law, a tenant in full and complete control of premises which he occupies owes the same duty to persons coming there upon his invitation, express or implied, to keep such premises in a reasonably safe condition as he would if he were the owner, and is prima facie liable for damages proximately caused by defects in or dangers on the premises that reasonably could have been avoided by appropriate care taken by him, irrespective of whose duty it was, as between landlord and tenant, to make such repairs. Such invitees, when seeking redress for injuries sustained by them by reason of defects in the premises, must seek such redress from the tenant and not from the landlord, at least in the absence of any statutory provision making the landlord liable.

The rule is stated in 52 C.J.S. Landlord and Tenant § 417(3), at page 33 (1968), as follows:

As a general rule, a landlord who, without covenanting to repair, and without knowledge of latent defects, puts a tenant into full possession and control of the demised premises, not intended for public purposes, and which are free from defects of construction constituting a nuisance, will not, in the absence of statute, be liable for personal injuries sustained on the demised premises, by reason of the defective condition thereof, by the tenant and others entering on the premises under the tenant’s title.

This rule was adopted in our jurisdiction in Clary v. Hayes, 300 Ky. 853, 190 S.W.2d 657 (1945) and was re-affirmed in Mackey v. Allen, Ky., 396 S.W.2d 55 (1965). No allegations were made and no proof was taken which would place the appellee landlord within any of the numerous exceptions. This being so, appellant has no cause of action against appellee and the summary judgment was properly entered. In view of our holding, we need not reach the issue of contributory negligence.

The judgment is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    BROADWAY RUBBER COMPANY, and Aetna Life & Casualty Insurance Co., Appellants, v. Bernice CECIL, James R. Yocom and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    July 1, 1977.

      Stuart E. Alexander, Louisville, for appellants.
    Cyril E. Shadowen (Sp. Fund), Dept, of Labor, Louisville, Kenneth E. Hollis (Sp. Fund), Dept, of Labor, Frankfort, Donald L. Cox (Appellee Cecil), Louisville, for ap-pellees.
    Before HOWERTON, GANT and WIL-HOIT, Judges.
   HOWERTON, Judge.

This case involves the single issue of the apportionment of a Workmen’s Compensation award between the employer and the Special Fund.

James D. Cecil filed an application for adjustment of claim on October 8, 1974, alleging disability due to an occupational disease as of April 24, 1974, namely “silicosis”. The finding of the Board of “permanent total disability” is not challenged. Subsequent to the award, and while an appeal was pending, Cecil died. In the present appeal, all parties are in agreement that Cecil’s widow, Bernice, is entitled to the survivor benefits under KRS 342.750 and is the proper party to this action.

The Board divided the award liability 60% to the employer and 40% to the Special Fund, pursuant to KRS 342.316(13Xa), in keeping with its finding of fact that the disease resulted from a single occupational exposure. This division was affirmed by the Jefferson Circuit Court on December 13, 1976. KRS 342.316(13)(a) relates to whom is liable for compensation for occupational diseases which are developed over a period of time. Where it is not conclusively proven that the disease is the result of exposure during the last employment before disability, the employer is liable for 25% of the award and the Special Fund is liable for 75% of the award. In other cases where it is shown that the disability resulted from the single occupational exposure, the employer is liable for 60% of the compensation and the Special Fund pays for 40% of the award. Appellants, therefore, attempt to prove that the disability resulted from exposure to hazards in previous employments.

Cecil had held numerous jobs involving various types of work. He had worked for Broadway Rubber almost six years as a sandblaster of metal. His exposure to the hazards resulting in silicosis at Broadway Rubber are not disputed. The record also reveals that Cecil was employed by the General Plywood Company from 1946 to 1956. Though not a sander himself, Cecil worked in the area where the sanding of plywood took place. Appellant argues that the record indicates Cecil was exposed to silica dust from the sandpaper or sand belts used at the plywood plant. Should that be the case, the Appellant would only be responsible for 25% of the compensation award, as the Special Fund would be liable for 75%.

Appellants rely on Yocom v. Eastern Coal Corporation, Ky., 523 S.W.2d 882 (1975). In that case, the court made it clear that KRS 342.316(13)(a) would be strictly followed. In that action, the claimant had worked in coal mines for thirty-six years. He had worked in mines for one employer for all but a two day period in 1948. During that time, he worked as a miner for another company. All medical experts testified to the effect that the silicosis resulted from the claimant’s entire work experience and the court concluded, “It cannot be said to have been conclusively proved that it was attributable solely to his exposure during the employment with Eastern.”

One might argue that ten years employment in a saw-mill or plywood company would equal two days in any coal mine, as far as a cumulative exposure for the development of silicosis is concerned. The same arguments might also be carried to such employments as a carpenter or even a lifeguard on a sandy beach. The distinguishing factor, however, appears to be that employment in lumber yards is an occupation not generally recognized as producing occupational diseases such as silicosis. Coal mining is such an occupation, and even though the two day period out of thirty-six years in Eastern is minimal, it was nevertheless a recognized exposure to the same occupation and occupational hazard; and, as such, shared in the contribution to the disease.

As to the work record of James Cecil, we have reviewed the record in this case and must agree with the trial court that the evidence presented regarding work at the plywood company exposed Cecil to sawdust (wood), and did not expose him to silica or sand.

The judgment of the trial court is affirmed.

ALL CONCUR.


author: BARDGETT, Judge.

text:
    STATE of Missouri, Respondent, v. David Lee AMOS, Appellant.
    No. 59774.
    Supreme Court of Missouri, En Banc.
    July 11, 1977.
    Rehearing Denied July 11, 1977.
    Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

On application of appellant David Lee Amos, this appeal was transferred by this court after opinion in the Missouri court of appeals, Kansas City district, pursuant to art. V, sec. 10, Mo.Const., as amended 1970, and Rule 83.03. The principal reason for transfer was to consider whether the trial court erred in giving an additional verdict-directing instruction — murder in the second degree — after the jury had deliberated for about four hours and after the jury had requested the court to define the clause appearing in the murder-in-the-first-degree instruction which states, “and reflected upon the matter coolly and fully before stabbing her.” The jury wanted the court to compare these words with “premeditation”.

Appellant contends (1) the evidence was insufficient to support a verdict of murder in the second degree, (2) the trial court erred in instructing the jury on murder in the second degree after the jury had deliberated for about four hours, (3) the court erred in failing to instruct on manslaughter, and (4) by pro se brief that he is entitled to release because he was charged only with murder in the first degree but was convicted of murder in the second degree.

Briefly stated, the state’s evidence in part was: The victim, Josephine Foster, was found stabbed to death in her first-floor apartment at 3126 Forest, Kansas City, Missouri, on May 20, 1974. Appellant occupied an apartment in the same building and was in the building on the afternoon of May 19, 1974. His presence was thereafter unaccounted for until he was next seen in Chicago, Illinois, where his mother lived.

A forensic pathologist who performed an autopsy on the body at about 2:00 p. m. on May 20, 1974, testified that the victim died sometime during the afternoon of May 19, 1974, give or take a few hours, and the cause of death was multiple stab wounds in the victim’s chest which penetrated the aorta.

Emma Mae Lee, with whom appellant lived after arriving in Chicago, Illinois, testified appellant told her he left Kansas City because he “stabbed this white lady” because she refused to give him some money he had requested. According to the witness, appellant said the lady’s first name was Josephine.

Appellant’s argument on the issue of the insufficiency of evidence consists of an attack upon the credibility of the witness Emma Mae Lee. Her testimony constituted direct evidence that the appellant killed the deceased. The court has examined the transcript and concludes that the credibility of this witness was for the jury to determine. The point is overruled.

Appellant’s second point is that the court erred in giving the jury the instruction on murder in the second degree after the jury had deliberated for over four hours in response to an inquiry by the jury about a portion of the murder-first-degree instruction. Appellant argues the giving of the murder-second-degree instruction at this stage of the proceedings was overly suggestive of the verdict to be returned and was inherently coercive upon the jury to the prejudice of appellant.

The case was submitted to the jury on murder in the first degree only. The position of the defense throughout the case was that appellant did not kill the deceased. The murder-first-degree instruction is MAI-CR 6.02 and reads as follows:

“If you find and believe from the evidence beyond a reasonable doubt:
First, that on the 19th day of May, 1974, in the County of Jackson, State of Missouri, the defendant caused the death of Josephine Foster by stabbing her, and
Second, that the defendant intended to take the life of Josephine Foster, and
Third, that the defendant considered taking the life of Josephine Foster and reflected upon this matter coolly and fully before stabbing her,
then you will find the defendant guilty of murder in the first degree.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.
If you do find the defendant guilty of murder in the first degree, you will fix his punishment at imprisonment by the Department of Corrections during his natural life.”

At 4:25 p. m., after approximately four hours of deliberation, the jury sent the following message to the trial judge:

“Judge Moore, the jury has requested the interpretation of the third point of Instruction No. 4, specifically,
‘and reflected upon this matter coolly and fully before stabbing her,’ would you define this third point for us? Would you compare this with premeditation? Signed: Robert Griffle, Jury Foreman.”

In chambers, the trial judge showed this note to counsel for both sides and advised them he could not give a further definitional instruction because MAI-CR 6.02 was intended to be given without further definition. The court having given consideration to sec. 559.030, RSMo 1969 (repealed by Laws 1975, p.-, H.B. 150, sec. A), which required the jury to inquire, “and by their verdict ascertain, under the instructions of the court, whether the defendant be guilty of murder in the first or second degree”, tentatively decided to instruct on murder in the second degree, MAI-CR 6.06. The court stated:

“Now, of course, I want counsel for both the State and the defendant to have the opportunity to comment on the proposed procedure, now maybe I should say that since I have had this note, I will make one more inquiry of the jury in open Court, whether this is still a problem, the question in their inquiry. And if they are still in difficulty, I will give the instruction as No. 12, that I just indicated. With that background in mind, I will call first on the State as to any comment or objection or combination.” (Emphasis supplied.)

The procedure was agreeable to the state but appellant objected to the giving of the murder-second instruction. The court overruled appellant’s objection, noting that “the inquiry will be made as indicated and it might become academic, . . . ”

The court offered both sides the opportunity for brief additional argument if the instruction was given, which offer was declined. The jury was then brought into the courtroom and the following proceedings were had:

“THE COURT: The Court has received the message from the jury, and it has been read into the record; and counsel is familiar with that relating to a portion of Instruction No. 4. Is the situation, Mr. Griffle, unchanged from the time the note was sent?
“JURY FOREMAN: Yes, Your Honor; it is unchanged.
“THE COURT: Very well; then the Court will give you an additional instruction at this time.”

Instruction No. 12 (MAI-CR 6.06) was then read to the jury and, after a minor correction was made, the jury again retired to deliberate. At 4:45 p. m., the jury returned its verdict finding appellant guilty of murder in the second degree.

“[A]s a general rule it is regarded as within the province of the court to recall the jury and give them further instructions, when in the exercise of a proper discretion it regards it as necessary to do so in the furtherance of justice, and the court in its sound discretion may give additional instructions without the request of the jury . .” 23A C.J.S. Criminal Law § 1376, p. 998. It is therefore incumbent upon us to determine whether the trial court abused its discretion in giving the additional instruction.

The court of appeals decided the instant case under what it interpreted as the compulsion of State v. Raven, 115 Mo. 419, 22 S.W. 376 (1893). In Raven the jury was instructed on murder in the first and second degrees, manslaughter in the third and fourth degrees, and self-defense. After the jury had been deliberating for half a day they made “a written inquiry to the court, in the presence of defendant and her counsel” for “information as to whether there was a degree of punishment between murder in the second degree and manslaughter in the third degree.” 22 S.W. 377. Over the objection of the defendant the court gave the jury an additional instruction on manslaughter in the second degree. The jury returned to its deliberation with this additional instruction and subsequently returned a verdict of manslaughter in the second degree. With respect to the giving of an additional instruction, the court said at 377:

“That the jury may request further instructions under proper circumstances in open court, and in the presence of counsel for both sides, we think there is no doubt. That in this ease the trial court was exceedingly careful of the rights of defendant, the record affords no cause for doubt. The instruction was not only proper, but we think the trial court would have erred had he failed to give it. State v. Gassert, 65 Mo. 352; State v. Linney, 52 Mo. 40. The facts make a case strikingly similar to those in State v. Gassert, which this court reversed for failure to give an instruction for manslaughter in the second degree. We find no reason for interfering with the verdict of the jury.”

Our research and counsel’s research have not uncovered any other cases in Missouri directly on this point. However, we have been cited to a few cases dealing with this issue from other jurisdictions. These cases include Rush v. State, 239 Ark. 878, 395 S.W.2d 3 (1965); People v. Stouter, 142 Cal. 146, 75 P. 780 (1904); People v. Jennings, 22 Cal.App.3d 945, 99 Cal.Rptr. 739 (2d Dist. 1972); and State v. Anderson, 117 W.Va. 265, 185 S.E. 212 (1936).

In Rush the jury had been deliberating for twenty-eight hours on a sole instruction on first-degree murder and had three times announced to the court they were “hung” when the court on its own motion instructed the jury on murder in the second degree. One hour later the jury returned a verdict of guilty of murder in the second degree. The Supreme Court of Arkansas reversed and remanded the case primarily because the trial court had waited twenty-eight hours and ascertained the jury was deadlocked before charging them on the lesser degree of homicide. This, according to the court, was tantamount to “bargaining” with the jury.

In Stouter the defendant was charged with having committed a “lewd or lascivious act upon or with the body ‘of a child under the age of fourteen years’ ”. The trial court initially instructed the jury to find the defendant guilty or not guilty of this charge. After the jury had twice announced to the court they were deadlocked and had deliberated for twenty-four hours, the court gave the jury an additional instruction on attempt to commit the crime charged. The jury then retired again and returned a guilty verdict against defendant on the attempt. The Supreme Court of California held the trial court had committed reversible error and in an often-quoted passage stated at 781 of 75 P.:

“There is no doubt of the general rule that after a jury have retired for consultation they may be called into court for further instructions; but we think that it was erroneous and unfair to defendant to give the last instruction as to the attempt, at the time and under the circumstances at and under which it was given. The jury had been out for a very long time without being able to agree under the instructions which had been given them, and which had been on subsequent occasions repeatedly reiterated, and many of the jurors had practically told the court what their opinions were, and that if the instructions were changed so as to meet their views they could find a verdict of guilty, contrary to the former instructions. The project of instructing the jury for the first time, after they had been unable to agree for 24 hours, that they might, notwithstanding the former instructions, convict the defendant of the attempt, was clearly an afterthought suggested by the statements of the jurors as to how they then stood, and apparently intended to help them, not generally to arrive at a verdict, but to arrive at some sort of a verdict of guilty. Such a proceeding is, we think, a most dangerous interference with the right of a defendant to a fair trial. We do not know what occurred in the jury room. Some of the jurors may have believed the evidence too slight to convict the defendant of any offense, and, for the purpose of argument, may have admitted that he might have been convicted of the attempt if the former instructions had allowed it, and after the last instruction had been given may have been embarrassed by their former admissions. Moreover, the jury might very well have considered the last instruction as an intimation of the desire of the court that the defendant be convicted of some offense. Jurors exhausted by a long confinement, and naturally desirous of being released, are not in a suitable frame of mind to thoroughly consider an entirely new phase of the case under a new instruction which might fairly be construed as an expression of the court hostile to the defendant.”

The Supreme Court of California also commented that the evidence did not show an attempt.

In Jennings the jury was originally instructed on assault with intent to commit murder. The jury returned to court twice for further instructions and for a re-reading of some already given. The further instructions all related to the verdict director on assault with intent to commit murder. When the jury returned for a third time they informed the court they were unable to reach a verdict because they could not agree on the element of intent to murder. The trial court on its own motion over the defendant’s objection instructed the jury on simple assault and assault with a deadly weapon. The jury retired and after twenty minutes returned with a verdict of guilty of assault with a deadly weapon. The court of appeals found no difference between this case and Stouter and reversed the case for a new trial.

In Anderson the jury was instructed originally on murder in the first and second degree. After the jury had deliberated for approximately two days, the court recalled the jury and gave them an additional instruction on voluntary manslaughter. The jury then returned a verdict of guilty of voluntary manslaughter. The Supreme Court of West Virginia reversed and remanded the case relying heavily on Stouter. The court was of the opinion that a jury under the circumstances presented here is apt to seize on the later instruction and give it more weight then it should actually be accorded. Additionally, the court expressed a fear that a jury may take the belated instruction as an indication from the trial court as to its opinion of the defendant’s guilt.

As noted by the state in its brief, the court in Raven did not deal with the issue at any great length. In citing and relying upon State v. Gassert, 65 Mo. 352 (1877), the court in Raven seems to proceed on the basis that if the additional verdict-directing instruction is one that should or could have been given at the outset then no error is committed in giving it belatedly. But that is not a sufficient answer. The issue here is not whether a murder-second-degree instruction was warranted at the outset but, rather, whether the giving of the instruction at the time and under the circumstances prejudiced the appellant.

In Anderson the court reversed even though the defendant had originally requested but the trial court refused the voluntary manslaughter instruction which was later given during the jury deliberations. The prejudice occurred because the late giving of the instruction, the court believed, was calculated to influence the jury to return a guilty verdict.

Likewise in Jennings the court held the giving of a simple assault and another assault instruction after the jury had deliberated approximately twenty-four hours was prejudicial error even though there was no contention that it would have been improper if given at the outset.

The outstate cases cited recognize that the giving of a verdict director on a lesser offense after the jury has deliberated and is experiencing difficulty in reaching a verdict is essentially coercive or at least persuasive on the jury to convict of the newly submitted offense. And it is reasonable to think that a jury could view the later instruction as an easy way out of their difficulties in reaching a decision.

In the instant case the jury was having difficulty with one of the elements of first-degree murder and after four hours they had not agreed upon a verdict. The length of time a jury is out will vary from case to case and may or may not be significant. In any event, it is clear that in the instant ease the court believed the jury deliberations had become stalled. The record shows the court decided to give the murder-second-degree instruction only if the jurors had not resolved their problem. To this end the court asked the foreman if the jury’s situation remained “unchanged from the time the note was sent” and the foreman replied affirmatively. Just exactly what their problem was is not clear nor is it clear as to how the murder-second-degree instruction answered the jury’s inquiry. What is clear is that the jury’s deliberations had bogged down and in response to their inquiry the court gave the murder-second-degree instruction; thereafter, the jury returned their verdict of guilty in a very short time — probably not’ over ten minutes at the most.

As we stated supra, Raven simply ignores or avoids the real problem involved with the giving of verdict-directing instructions after the jury has begun its deliberations as recognized in Jennings, Stouter, Anderson and Rush. The prejudice, if any, arises from the timing and circumstances under which the instruction is given and is somewhat difficult to assess because the court must undertake to say what the effect of such an action would reasonably be upon a jury.

Although the state argues that the jury in the instant case was not deadlocked, it is clear that the jury was at least stalled in their deliberations and that the murder-second-degree instruction was given in an effort to get their deliberations going again. That effort succeeded as the appellant was promptly found guilty of the newly submitted offense. Did the jury understand the second-degree-murder instruction, given as it was in response to their inquiry about premeditation, to obviate their problem by simply submitting a new offense in which premeditation was apparently not an element? Or did the jury understand the action of the court in responding to their inquiry by submitting a new homicide offense to mean that they should find the appellant guilty of murder second if they were having difficulties with murder first degree? We do not mean to suggest the trial judge actually intended any such meanings but it is to say that jurors could reasonably have attached such meanings to the giving of the belated verdict-directing instruction in a response to their inquiry.

In the instant ease the court’s response actually did not answer the inquiry of the jury; it simply submitted a new and theretofore unmentioned offense for which the jury could find the appellant guilty. The circumstances under which the second-degree-murder instruction was given here are similar to those in Jennings, Stouter, Anderson, and Rush, and in each of these cases the court held that prejudicial error occurred. Other than Raven, there are no cases cited, nor have we found any, where courts have approved the giving of additional verdict-directing instructions after a jury has begun deliberating and in response to an inquiry when the jury’s deliberations have bogged down.

The court holds that under the circumstances of this case it was prejudicial error to have given the murder-second-degree instruction. To the extent that Raven holds otherwise, it is overruled.

However, it would not be appropriate to adopt a per se rule — a rule which would declare the belated giving of any instruction (except, of course, MAI-CR 1.10, 4.50-4.54, see MAI-CR, p. xviii, par. D. 14-15) to be prejudicial error. It obviously is not desirable to give any instructions piecemeal, much less verdict-directing instruction, as this tends to over-emphasize the later-given instruction. But situations can easily be foreseen where a court may inadvertently fail to give a required instruction at the outset, realize it a few minutes later, and recall the jury and give the instruction. Prejudice would not necessarily result but would depend upon the circumstances under which the new verdict-directing instruction was given and would have to be judged on a case-by-case basis.

The state’s brief evidences a sense of frustration over what a court can do when it receives an inquiry as in the instant case and not err in the process. Obviously the desire is to answer the inquiry in order to assist the jury. Nevertheless, in most instances, including the present ease, the jury should simply be referred to the instructions previously given. The jury may remain deadlocked and the case may not be decided by that jury. Undesirable as a hung jury and retrial is, it is still better than a coerced verdict.

For the error set forth, the case must be reversed and remanded for a new trial.

Appellant’s next point is that the court erred in failing to instruct on manslaughter when the court, by its own motion, instructed on murder in the second degree. The court need not decide the point because on retrial the MAI-CR notes on use under MAI-CR 6.02 will be followed.

Appellant by way of a pro se brief claims that since he was indicted for murder in the first degree he could only be found guilty or not guilty of that offense. Appellant though is mistaken since a charge and proof of murder in the first degree by definition includes and supports a definition of murder in the second degree. State v. Varner, 329 S.W.2d 623 (Mo.1959).

Reversed and remanded for new trial.

All of the Judges concur.


author: TITUS, Judge.

text:
    ADOPTION OF MIKE AND RUSS
    No. 10062.
    Missouri Court of Appeals, Springfield District.
    June 20, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 11, 1977.
    Phillip S. Huffman, Hartville, Jerry L. Redfern, Springfield, for petitioners-respondents.
    Paul F. Reichert, Sherwood, Bruer & Reichert, Springfield, for appellant.
    Before STONE, P. J., and HOGAN and TITUS, JJ.
   TITUS, Judge.

Petitioners, husband and wife, filed their petition July 12, 1974, to adopt brothers Mike and Russ. The natural mother, a sister of petitioner husband, gave her written consent to the adoption (§ 453.030-3) but the natural father did not consent and contested the action. After the trial court entered a decree of adoption pursuant to § 453.080, the father appealed.

The principal issue litigated was whether the father’s consent to the adoption could be dispensed with because he had “for a period of at least one year immediately prior to the filing of the petition for adoption, either willfully abandoned the [children] or willfully neglected to provide [them] with proper care and maintenance.” § 453.040(4). The decree was predicated upon a finding of the existence of the second statutory alternative.

Mike, born September 26,1970, was seven or eight months of age when his father separated from his mother in April or May 1971 and moved to California where he has resided ever since. Russ was born August 16, 1971, some three or four months subsequent to his father’s departure and has never seen his father. The natural parents were divorced in November 1971. While we are told the divorce decree was silent as to the amount of child maintenance required of the father, this would not relieve him of his primary and continuing duty to support his sons. State v. Arnett, 370 S.W.2d 169, 174[13] (Mo.App.1963); In re Adoption of P. J. K., 359 S.W.2d 360, 365 (Mo.App.1962); 27B C.J.S. Divorce § 319(1) b., p. 593.

The father remarried in May 1972. He and his present wife have a son who was three years old in February 1975. After the father left Missouri, the boys lived with their mother in a house trailer located on the home property of the childrens’ maternal grandparents. The mother remarried in 1972. For all intents and purposes, the boys were in the actual care and custody of the maternal grandmother all of their lives until they were placed in the custody of petitioners.

The Petitioners’ Case: The first week after the natural parents separated in early 1971, the father sent the mother $15. Thereafter nothing was heard from the father until May 1974 when he sent each boy a $10 money order, a $2.98 toy tractor, a six or eight line letter, and a picture postcard. During the same month he also placed a telephone call, briefly talked to each boy and, via letter, asked the grandmother for a picture of the boys which she sent accompanied by a letter bearing the salutation, “Dear Robert.” The grandparents “always treated [the father] like one of the family,” they had never threatened him with harm if he tried to see the boys and no one had told the father not to send money, clothing or toys to the boys or not to attempt to communicate with or about them. The grandmother said that “about three times a year” she had received from the father’s aunt small money orders with directions to buy something for the boys. These money orders usually arrived during a holiday season such as Christmas or Easter. The aunt was described as a “friend” of the grandmother and her letters did not indicate the money used to purchase the money orders or checks had been contributed by the father.

The Father’s Case: The father agreed he personally had not sent any money to the mother or the boys or to anyone in Missouri from early 1971 ($15) until May 1974 ($20). His explanation for this was that he did not have a job when he first arrived in California and thereafter when he obtained employment (although it was not the everyday-of-the-week type of employment), his working hours did not permit his attendance at the post office or at a bank during times when money orders and checks were sold. He stated, however, that when he was jobless, he borrowed money from his aunt and thereafter, subsequent to obtaining employment, gave money to his aunt which she sent, via money orders or bank checks, to the mother or the maternal grandmother. The father estimated he had sent about $1,500 “for the children” through his aunt between 1971 and 1974. Probably in 1972, according to the father, he wrote the maternal grandmother three times asking that the boys (at the most then two and one years of age) be allowed to visit him in California and offering to send them plane tickets if this was agreeable. The father said that when he received no reply to these letters he did not write again until May 1974. The father undertook to introduce as exhibits certain money order and bank check stubs or receipts supposedly representing money he had given his aunt to send to the mother or the maternal grandmother. The offers of these purported exhibits were refused because the items were not properly identified and were hearsay. Nonetheless, it is noted that the rejected exhibits, had they constituted proper evidence, showed total payments of $191.50 in 1973, $20 paid in 1974 before adoption proceedings were commenced and no payments in 1971 or 1972. No complaint is directly made on appeal concerning the trial court’s refusal to admit these purported exhibits.

Except for the possibility of equitable adoption, the right of adoption in Missouri depends upon the provisions of Ch. 453, considered to be a code unto itself. No adoption may be effected without compliance with the terms of that code. Being in derogation of the common law, the adoption statutes are to be strictly construed in favor of the natural parents. In re Adoption of J. M. K., 363 S.W.2d 67, 70[3-6] (Mo.App.1962). Nevertheless, the required degree of compliance with respect to adoption statutes is “substantial” and not “literal.” In re Adoption of J_, 396 S.W.2d 257, 261[2] (Mo.App.1965); 2 Am.Jur.2d, Adoption, § 49, at p. 900. Also, in considering the construction of any particular section of Ch. 453, regard must be had to the purpose and intent of the legislation as evidenced by all provisions of the code which contain the theme that the welfare of the child is the paramount consideration. In re E. C. N., 517 S.W.2d 709, 712[6] (Mo.App.1974); In re C., G, & C., 380 S.W.2d 510, 514[2] (Mo.App.1964).

“[T]he willful neglect contemplated by Section 453.040(4) is neglect that is intentional, deliberate, and without just cause or excuse.” In re Adoption of P. J. K., 359 S.W.2d 360, 363[5] (Mo.App.1962). “The willfulness of ‘neglect’ ... is more of a negative proposition, simply the failure to perform the duty with which the parent is charged by the law and by conscience. The intent therefore must usually be inferred from the facts and circumstances. Such facts and circumstances would, of course, exclude a finding of willfulness where the neglect occurred because of things beyond the control of the parent and which were not his fault. Consideration must also be given to the words ‘proper care and maintenance.’ . . . [N]o two adoption cases are east in the same mold. Many varying factors are to be considered, each in relation to all others. What would, or would not, be considered as proper care and maintenance in one case, might, in the light of the whole circumstances of another, be considered entirely differently.” In re C., G., & C., supra, 380 S.W.2d at 515.

Our review of this non-jury action is governed by Rule 73.01 as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), i. e., “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Id. at 32[1, 2]. Rule 73.01 further admonishes appellate courts to give due regard “to the opportunity of the trial court to have judged the credibility of witnesses.”

Giving credence to petitioners’ evidence leaves no room for doubting that the father willfully neglected to provide Mike and Russ with proper care and maintenance for a period of at least one year immediately before the adoption petition was filed. From early 1971 until May 1974, the father neglected to provide the boys or those having their actual care and custody with any money for their care and maintenance. During that time, the father did not undertake to see them or to inquire of their welfare. Although the father’s economic situation was not fully developed at trial, it was evident that he was not physically disabled or destitute throughout the time involved. The father’s testimony indicated he was so regularly employed that he was unable for some three years to get to a post office or a bank during business hours and that his affluence was not so limited as to deprive him of the pleasure of a new wife and son whom he apparently had no difficulty in supporting. Sending each of the boys a $10 money order, a $2.98 toy, a short letter, a picture postcard and talking to them briefly on the telephone in May 1974, neither served to atone for the prior months of total abandonment nor evidenced the providing of proper care and maintenance of the children in the year before the adoption petition was filed. Cf. In re C., C., & C., supra, 380 S.W.2d 510.

This court is unable to say that there was no substantial evidence to support the decree of adoption or that its award was against the weight of the evidence. Neither can it properly be said that the court nisi erroneously declared or erroneously applied the law.

Finally the father says the court erred in entering the adoption decree because the petition for adoption, which merely alleged that the father “has abandoned said children for a period over one year,” is insufficient to invoke § 453.040(4) and should be ordered dismissed. We agree that the quoted allegation falls short of the statutory requirement that the abandonment or neglect to provide proper care and maintenance must have been willful and the statutory requirement that the abandonment or neglect existed “for a period of at least one year immediately prior to the filing of the petition for adoption.” In re E. C. N., supra, 517 S.W.2d at 712. Nonetheless, we do not believe the carelessness of the pleader in this instance rendered the petition fatally defective or was insufficient to give the court jurisdiction.

It has been said that “ordinarily” (whatever that means) the filing of a proper petition is a prerequisite to the court’s jurisdiction and that the petition for adoption must state facts sufficient to give the court jurisdiction. Smith v. Benson, 542 S.W.2d 571, 573[1] (Mo.App.1976); Adoption of McKinzie, 275 S.W.2d 365, 868[1] (Mo.App. 1955); State v. Schilb, 285 S.W. 748, 749-750[1, 2] (Mo.App.1926); 2 C.J.S. Adoption of Persons § 77, pp. 507-510; 2 Am.Jur.2d, Adoption, § 54, pp. 903-904. However, a study of the just-cited authorities makes it clear that allegations in a petition sufficient to give the court jurisdiction are the facts required in § 453.020, which states: “The petition shall state the name, sex and date and place of birth of the person sought to be adopted; the name of his parents, if known to the petitioner; and if the person sought to be adopted is a minor, the fact that petitioner has the ability properly to care for, maintain and educate said person; and if it is desired to change the name of said person, the new name of said person.” This statute, setting forth the required contents necessary to give the court jurisdiction, does not mandate the pleading of any of the situations set forth in § 453.040 whereby the consent of a natural parent is not needed to effect an adoption. Albeit was necessary in this case, sans the father’s written consent to adoption, for the existence of the provisions of § 453.040(4) to be satisfactorily proved before the court could properly decree adoption, inclusion of the statutory provision in the petition was not a prerequisite to the court’s jurisdiction.

The father did not object to the petition as it related to § 453.040(4) before the decree was entered; neither did he object to any evidence at the trial on the ground that it was not within the issues made by the pleadings. “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.” Rule 55.33(b). The issue of whether or not the father had, for a period of at least one year immediately prior to the filing of the petition for adoption, willfully neglected to provide the children with proper care and maintenance, was tried by the implied consent of the parties with no objection. Consequently, the pleadings may be considered as having been amended to conform to the proof even though an amendment to the petition was not in fact made. Condos v. Associated Transports, Inc., 453 S.W.2d 682, 690[11] (Mo.App.1970).

The decree of adoption is affirmed.

All concur.

      . References herein to statutes and rules are to RSMo 1969, V.A.M.S., and to Missouri Supreme Court Rules of Civil Procedure, V.A. M.R.

      . In May 1974 Mike would have been three years and eight months of age while Russ would have been two years and ten months old.