text:
    Cheryle Sue HIBDON, Appellant, v. Charles Edward HIBDON, Respondent.
    No. 41175.
    Missouri Court of Appeals, Eastern District.
    Oct. 23, 1979.

      William G. Reeves, Farmington, for appellant.
    Michael L. Maynard, Flat River, for respondent.
   CLEMENS, Senior Judge.

Petitioner and wife have appealed the trial court’s order quashing a writ of garnishment previously issued by the court to enforce payment of her temporary maintenance and child support allowances. The respondent-husband sought quashal on the asserted ground that his wife had, contrary to the court’s order, taken the child and left the state “for parts unknown.”

The record reflects the following pertinent factors: In June 1977 the wife filed her petition for dissolution and child custody, and the court granted her temporary child custody, $75 a week maintenance and $37 a week child support. Three months later the court ordered the allow-anees paid into court. In September 1977 the husband filed an unverified answer also seeking dissolution and child custody.

In September 1978 the wife was granted execution for $4,144 in unpaid allowances. Thereafter, from October to December the husband paid into court $675 for maintenance and $111 for child support. In October 1978: the husband filed a motion to quash the execution on the grounds he had paid “certain funds” on the judgment and that petitioner had, contrary to the court’s order, taken the child out of the state; the wife then dismissed her petition without prejudice; the garnishee filed answer asserting it held $1,101 of the husband’s funds. On October 27, 1978 the court took up the husband’s motion to quash; the wife was represented by counsel but did not appear in person; the parties then stipulated there “was no dispute as to the amount of alleged arrearage prior to 1978, January 1.” At the hearing the gist of the husband’s uncontradicted evidence was that at first he had to pay his wife “50 or 100” to get to see their child, and, in addition to paying her $112 a week, had to buy the child’s clothing and was willing to pay child support; that he bought his wife a car for $1000 on her promise that he would not have to pay her maintenance until “the price of the car was ate up.”

At the outset we must note a significant point in this proceeding: On October 17, 1978, just six days after the husband had moved to quash the garnishment, the wife dismissed her petition. That had no effect on the unpaid amount under the June 30, 1977 order granting temporary allowances, but the dismissal terminated the husband’s liability for future allowances. In Gross v. Gross, 319 S.W.2d 880[4, 5] (Mo.App.1959), we held pendente lite allowances are temporary pending final disposition of the divorce action. In Williams v. Williams, 349 S.W.2d 422[3, 4] (Mo.App.1961) we held temporary allowances, although incidental to the suit for divorce, are in force only during pendency of the underlying suit. To the same effect in an action to quash execution, see Lohmann v. Lohmann, 246 S.W.2d 368[3-5] (Mo.App.1952). This is statutorily applicable to child support. Section 452.380 2. declares: “If a proceeding for dissolution of marriage or legal separation is dismissed, any temporary custody order is vacated . .” It follows that the trial court upon dismissal of the petition lost jurisdiction to thereafter continue in force its continuing order for temporary allowances.

On the wife’s appeal she first contends the court erred in quashing her garnishment because, she says, the court based that ruling on her act in removing the child from the state contrary to the court’s order. If that was, in fact, the ground for the court’s order for quashal it would have been improper because § 452.365, RSMo.1973 Supp., provides a debtor’s obligation to pay support or maintenance allowances is not suspended by the beneficiary’s failure to comply with the terms of the temporary order. Although that ground for quashal was pleaded, it is not in the court’s final order:

“AFTER HEARING THE EVIDENCE of Respondent and Argument of Petitioner’s Counsel the Court sustains Respondent’s Motion to Quash Garnishment above styled; and further orders that such funds that are presently held under said Garnishment to the Circuit Clerk of St. Francois County, Missouri, be released to the Respondent with the exception of Seventy-Five Dollars ($75.00) which is to be held by the Circuit Clerk of St. Francois County, Missouri.”

We deny the wife’s first point.

By her second and third points the wife contends the court erred in discharging the husband from making maintenance payments to the extent of the $1,000 value of the car he bought at her request. She contends this agreement was void because it was not in writing, which is required of property settlements. The parties’ agreement was to allow the husband credit for $1,000 on the wife’s maintenance allowance. It was not a property settlement; it was an executed agreement to partially settle the husband’s debt to her for decreed maintenance. The parties had a right to so contract. Cervantes v. Cervantes, 239 Mo.App. 932, 203 S.W.2d 143[3] (1947). Nor do we find anything unconscionable in the agreement; the wife wanted her husband to buy her a $1,000 car in lieu of weekly maintenance, and he did so. We hold the court did not, to the extent of this $1,000, err in that limited quashal of the garnishment.

By her last point the wife contends the court erred in quashing the garnishment because, even allowing for the $1,000 claimed credit, she had an unsatisfied judgment for an amount in excess of the funds held by the garnishee. We agree. The issue was squarely ruled by this court in Hedgeeorth v. Hedgecorth, 463 S.W.2d 596[6-10] (Mo.App.1971), where the defendant, as here, sought to quash an execution based on a partly paid judgment. We held there, and so hold here, that “the execution should be allowed to stand as to that part which remains unpaid and quashed only as to that part which has been paid.”

The cause is reversed and remanded to the trial court with instructions to set aside its order quashing the execution and garnishment, except as to the $1,000 credit and such other payments the husband has by then made on the judgment for temporary maintenance and child support.

REINHARD, P. J., and GUNN and CRIST, JJ., concur.

      . Section 452.310, Laws 1973, requires both a petition for divorce and answer thereto be verified. Such verification is jurisdictional. McCarthy v. McCarthy, 300 S.W.2d 394[9] (Mo.1957), citing State exrel. Knapp v. Cowan, 230 Mo.App. 226, 88 S.W.2d 424[1] (1935).


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    NATIONAL AUTOMOBILE & CASUALTY INSURANCE CO., a corp., Plaintiff-Appellant, v. NATIONAL INDEMNITY CORPORATION, E. Sterling Martin and Hattie Martin, John Oliver, Oliver Trucks, Inc., and Ralph Howd, Defendants-Respondents.
    No. 40421.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 23, 1979.
    Jerome W. Seigfreid, Louis J. Leonatti, Mexico, for plaintiff-appellant.
    Gary A. Tatlow, Moberly, J. David Collins, Macon, for defendants-respondents.
   SMITH, Judge.

Plaintiff appeals from an order of the trial court quashing service of process on National Indemnity Corporation and dismissing its cause of action as to John Oliver, Oliver Trucks, Inc., and Ralph Howd.

Defendants E. Sterling Martin and Hattie D. Martin (the Martins) filed a separate suit against defendants John Oliver, Oliver Trucks (the Oliver defendants) and Ralph Howd for damages sustained by them as a result of an accident involving a truck owned by the Oliver defendants and operated by their servant Howd.

Plaintiff in the case at bar alleged that it had issued a policy of automobile insurance to John Oliver and Oliver Concrete Company and that defendant National Indemnity Company had issued a policy of automobile insurance to the Oliver defendants. Each policy contained an “other insurance” clause limiting liability to a pro rata share of the loss based upon the total applicable limits of liability. The petition also alleged a demand by plaintiff upon defendant National Indemnity to defend the Martin suit and a refusal by that defendant to do so.

Plaintiff prayed for declaratory relief determining the respective obligations of the two insurance companies and for an injunction to prevent prosecution of the Martin suit until decision in the case at bar. The Martins, the Oliver defendants and Howd were all joined as parties defendant with National Indemnity.

The Martins filed a motion to dissolve the “injunction prayed for” and an answer. The Court granted the motion to dissolve although no injunction had been issued. The Oliver defendants and Howd filed a motion to dismiss on the basis “that there is no justiciable controversy sufficient to invoke the Court’s power to grant a declaratory judgment.” This motion was granted by the trial court without explanation. National Indemnity entered a special appearance and moved only to quash service of process on the basis that the statute authorizing the method of service attempted had been repealed and, even if it had not been, the statute was inapplicable. This motion was also granted. All motions were ruled on in the same document. Plaintiff appealed and now challenges the trial court’s action as to the Oliver and Howd motions to dismiss and the National Indemnity motion to quash.

We first must deal with the Martins’ motion to dismiss the appeal as premature, a matter we would examine sua sponte had it not been raised by a party. An order quashing service of process is not a final, appealable order. E. H. Fischer, Inc. v. National Industrial Chemical Co., 526 S.W.2d 403 (Mo.App.1975) [1], National Indemnity is still a party to the law suit pending in Circuit Court, albeit an unserved one. No order of the court has dismissed the Martins; they are still parties to the suit. The orders of the trial court did not indicate that the motion to dismiss covered any defendant except those filing it. Ordinarily for a judgment to be final it must dispose of all issues and all parties. Spires v. Edgar, 513 S.W.2d 372 (Mo. banc 1974) [2].

Plaintiff, relying upon Skatoff v. Alfend, 411 S.W.2d 169 (Mo.1966), contends that the trial court’s order had the effect of disposing of all issues and all parties and was therefore appealable. The cases in Missouri have stringently applied the “issues and parties” requirement. Cooper v. Barr, 413 S.W.2d 219 (Mo.1967); Thomas v. Orrick Special School Dist., 246 S.W.2d 523 (Mo.App.1952); Beezley v. National Life and Accident Ins. Co., 464 S.W.2d 535 (Mo.App.1971); Wile v. Donovan, 514 S.W.2d 177 (Mo.App.1974). Skatoff does, however, present a situation in which the court found that the relief sought against the non-dismissed defendants was purely ancillary to the relief sought against the dismissed defendant. In such a circumstance it was held that the dismissal of the main defendant necessarily operated to settle all questions and issues between all the parties and the judgment was appealable. See also, J. G. Jackson Associates v. Mosley, 308 S.W.2d 774 (Mo.App.1958) [1, 2]; Capitol Stores, Inc. v. Storms-Green Construction Co., 346 S.W.2d 549 (Mo.App.1961) [3, 4]; Scheid v. Pinkham, 394 S.W.2d 570 (Mo.App.1965) [1, 2]. In Skatoff, supra, the remaining defendants had only an ancillary liability dependent solely upon the existence of a cause of action against the dismissed defendant. That is not the case here. The real dispute in plaintiff’s cause of action is between the two insurance companies, both of which are still parties to the suit.

Although the case at bar is distinguishable from Skatoff, the question still remains whether the order of the trial court dismissing as to the Olivers and Howd was necessarily decisive of all issues presented by plaintiff’s cause of action.

The following was stated in Hanover Fire Ins. Co. v. Commercial Standard Ins. Co., 215 S.W.2d 444 (Mo.1948) [2]:

“The record shows that the motion to dismiss . . . presented only the issue as to whether plaintiff’s first amended petition stated any claim against the particular defendant filing the motion to dismiss. Only that issue was ruled by the court in sustaining the motion of the particular defendant to dismiss the cause. Such a dismissal did not affect the cause as to the other defendant, who had previously filed an answer. As to such defendant the cause was at issue and was pending and undisposed of. Accordingly, the appeal by plaintiff-appellant was premature and must be dismissed as there was no final appealable judgment in the cause, when the appeal was taken.”

Our interpretation of that language is that if the record indicates that the motion to dismiss reaches the entire cause of action and the dismissal was intended to apply to the entire suit the action of the trial court is appealable. If on the other hand, the dismissal is directed only to a given defendant or defendants, but not to the entire cause of action, the trial court’s order is not appealable. Normally the court’s intention is clear from the record. Here it is not.

The question then is whether the order of the trial court sustaining the Oliver and Howd motions disposed of the entire case or whether it applied only to the parties filing the motions. On the face of the order entered it served only to grant the motions of the moving defendants and did not purport to dispose of the Martins or National Indemnity. The ground raised in those motions, however, could be considered to be one reaching to the entire cause of action and the trial court made no indication whether it so considered the motion or not. The motions themselves were directed to the court’s power to grant a declaratory judgment and not specifically to plaintiff’s allegations concerning the moving defendants.

Our review of the petition leads us to conclude that the trial court may have considered the “justiciable controversy” contention applicable to the Oliver and Howd defendants but not necessarily applicable to National Indemnity. We emphasize that our discussion and finding is not to be considered a holding on whether the action of the trial court in dismissing the Oliver and Howd defendants was correct or incorrect. We deal only with whether the pleadings may have led the trial court to accord a different legal treatment to the various groups of defendants, not whether that treatment was correct.

The allegations of the petition insofar as the Oliver defendants and Howd are concerned do not indicate the existence of any dispute between them and plaintiff. Most notable there is no allegation that plaintiff has been requested to defend the Martin action or that it has refused to do so, either conditionally or absolutely. On the other hand there is a direct allegation that plaintiff has requested National Indemnity to assume the defense and that that company has refused to do so. In this regard the allegations of the petition treat these two groups of defendants in different ways. It is possible that this difference in treatment may have led the trial court to a conclusion that no actual controversy existed between plaintiff and the dismissed defendants but that one did exist between the insurance companies. At any rate, we cannot with certainty conclude that the decision concerning the Oliver and Howd motions was a determination that no justiciable controversy existed as to the other defendants or the remainder of plaintiff’s cause of action. The orders of the trial court did not dispose of all parties and issues before it and those orders are not appealable. Hanover Fire Ins. Co., supra; Allstate Insurance Co. v. Northwestern National Ins. Co., 539 S.W.2d 118 (Mo.App.1976).

Plaintiffs contend that the dismissed parties are indispensable parties and that the dismissal as to them serves to effectively terminate the litigation. We need not reach the question of the indispensability or necessity of those parties. The order of the court dismissing them is interlocutory and subject to reexamination during the pend-ency of the litigation, and there are both writ possibilities and right of appeal after final judgment to test the correctness of the trial court’s ruling. The dismissal of an indispensable party, even if proper, does not, without more, terminate the litigation. Some further action is required. Rule 52.-04(b).

Appeal dismissed as premature.

DOWD, P. J., and SATZ, J., concur.


author: PER CURIAM.

text:
    INDEPENDENT GRAVEL COMPANY, Plaintiff-Respondent, v. Theodore ARNE, Defendant-Appellant.
    No. 10821.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 29, 1979.
    James B. Fleischaker, Roberts & Flei-schaker, Joplin, for plaintiff-respondent.
    Robert R. Parrish, Jr., Joplin, for defendant-appellant.
   PER CURIAM.

The plaintiff brings this action to enforce the lien of a special tax bill. The tax bill was issued by the City of Joplin, a constitutional charter city, as part payment for street improvements. The trial court found the tax bill valid and ordered enforcement by special execution. In his first two points on appeal the defendant asserts error because the description of the real property was insufficient.

The plaintiff introduced copies of the cover sheet and two pages of the “Atlas of the City of Joplin”. The atlas appears to be a compilation of plats or maps of the city completed in 1933. The cover sheet recites it “is made for general purposes and uses. It is not in strict accord with recorded plats”. The city disclaimed any responsibility for accuracy. Page 55 of the atlas is a plat of the area in question. It was stipulated that the defendant owned a tract designated on that plat as M-16. The plat also showed a railroad right-of-way traversing approximately the east half of that tract from the northwest to just west of the southeast corner of that tract. There is a designation of the area west of the right-of-way “M — 16-A” and of the area east of the right-of-way (adjoining the improved street) “M-16-B”. On page 50A the atlas sets forth the description of M-16 as follows:

All of the S. ½ of the N.E. ¼ of the S.E. ¼ of said section, except the public road (McClelland Boulevard) and the R/W of the Mo.Pac.R.R. containing 18.23 acres.

The original atlas was kept in the office of the city engineer. There was a copy in the office of the assessor and an abstract office. The atlas was never recorded.

While neither the original nor a copy was introduced, apparently the area in question was the subject of a survey and plat which was recorded in 1922. The recorder testified, “Our plat book is entirely different from that (referring to the plat in the atlas) . .” The recorder further testified the recorded plat showing Miscellaneous 16 was similar to the atlas plat, but without the breakdown of 16-A and 16-B. The field notes (apparently the description of Miscellaneous 16) were the same. It is not known if the recorded plat shows a railroad right-of-way.

There had been railroad tracks across the tract, but they had been removed sometime within the past 20 years. The defendant testified there was no railroad right-of-way across the tract as long as he owned it. That length of time was not shown but the county collector checked back to 1972 and found paid tax statements for those years in the name of the defendant. In the ad valorem tax statements the property assessed to the defendant was described as Miscellaneous 16. The defendant had no knowledge of “any 16-B”.

The special tax bill describes the property as “Miscellaneous Tract 16-B, Section 16, Township 27, Range 33, City of Joplin, Jasper County, Missouri”. By its petition the plaintiff seeks to enforce the special tax bill against that property “also described as that part of the South Half (S ½) of the Northeast Quarter (NE ¼) of the Southeast Quarter (SE ¼) of said Section 16 lying east of the Missouri Pacific Railroad right-of-way”.

It is well settled that the plaintiff’s right to prevail must stand or fall on the basis of the tax bill. A defective description in a tax bill cannot be cured by a petition to enforce that tax bill. State ex rel. Flentge v. Burrough, 174 Mo. 700, 74 S.W. 610 (1903); State ex rel. Ward v. Linney, 192 Mo. 49, 90 S.W. 844 (1905); Elsberry Drainage Dist. v. Seerley, 329 Mo. 1237, 49 S.W.2d 162 (1932).

Defendant’s property is described as Miscellaneous Lot 16 on the recorded plat. The special tax bill imposes a lien upon Tract 16-B, a designation shown only on a plat in the unrecorded atlas. The plaintiff contends that description, even though the property can be located only by reference to an unrecorded plat, is sufficient. The defendant contends it is not. As presented, the question is not whether or not the tax bill could be construed as imposing a lien upon the whole of Lot 16 as designated on the recorded plat. It is whether or not an ambiguous description in a tax bill may be made certain by reference to an unrecorded plat. The question may be better put into proper perspective by assuming the defendant owned the N.E. ¼ of the S.E. ¼ and the city had prepared a plat designating a portion of that forty adjoining the street as Lot 1 and the tax bill described Lot 1 of the N.E. ¾ of the S.E. ¼ of a given section, township and range.

The charter contains no specific standard for the description to be used in special tax bill proceedings. Upon the completion of an improvement, the director of public works is required to levy an assessment against the “tracts of land” to be charged. Article XI, § 11.32, Charter of the City of Joplin. The record of his assessments, which is to be certified to the director of finance, is required to set forth the names of the owners of the several tracts. Perhaps the most specific requirement of the charter concerning the description is the declaration that a special tax bill shall be a lien on “the land described therein”. § 11.58.

In the absence of a more explicit standard in the charter, it is appropriate to examine the general case law on the subject. It has been said that a description in a tax bill is adequate if contained in a deed it would be sufficient to pass title. Adkins v. Quest, 79 Mo.App. 36 (1899). In view,of the fact the issuance of a special tax bill is a unilateral act, as will be hereafter more fully discussed, a more appropriate standard has been expressed: “We have followed the general rule in this State that a description is sufficiently definite and certain if the description by its own terms will enable one reasonably skilled in such matters to locate the land.” National Cemetery Ass’n of Missouri v. Benson, 344 Mo. 784, 793, 129 S.W.2d 842, 845 (1939). (Emphasis added)

The use of an unrecorded plat to make a description sufficiently definite and certain is generally prohibited. “A plat or map that has not been duly recorded according to a statutory requirement may not be used to help out the description in a deed; . . . .” 6 Thompson on Real Property, § 3052, p. 615 (1962).

While not too often succinctly expressed, the basis of the rule seems to be that a description in terms of a lot and block number not referable to a recorded plat does not provide the required definiteness and certainty. What, if any, plat is referred to and where it may be found is a matter of conjecture.

Exceptions to the general prohibition have been recognized where that uncertainty was removed. An unrecorded plat may be recognized where it is specifically referred to and in effect incorporated in the instrument. Brewington v. Jenkins, 85 Mo. 57 (1884). Such a description has also been held sufficient when the party who questions the description has so dealt with the property on the basis of that description that he is bound thereby. Marvin v. Elliot, 99 Mo. 616, 12 S.W. 899 (1890); Parker-Washington Co. v. Bradley, 197 Mo.App. 447, 196 S.W. 111 (1917); Sharp v. Richardson, 353 Mo. 138, 182 S.W.2d 151 (1944). While the applicability of the same under present day conditions is doubtful, the use of an unrecorded plat has also been approved where it has been so used and recognized by the community that there can be no doubt concerning the property described. Shewalter v. Pirner, et al., 55 Mo. 218 (1874); Hammond v. Johnston, 93 Mo. 198, 6 S.W. 83 (1887); Marvin v. Elliot, supra, 99 Mo. 616, 12 S.W. 899.

Where a description in a conveyance'or similar instrument creates an ambiguity, the books abound with cases concerning the admission of evidence of surrounding circumstances and parol evidence to establish the intent of the parties. Becker v. Work man, 530 S.W.2d 3 (Mo.App.1975); Czarnecki v. Phillips Pipe Line Company, 524 S.W.2d 153 (Mo.App.1975). While its significance is now being questioned, a distinction has been drawn between patent and latent ambiguities. Meinhardt v. White, 341 Mo. 446, 107 S.W.2d 1061 (1937). Although no Missouri case has been found, such admissible evidence may include an unrecorded plat acted upon by both parties to the transaction. 6 Thompson on Real Property, § 3052, pp. 611-612 (1962). Also see Schreiber v. Osten, 50 Mo. 513 (1872).

However, making an assessment and the issuance of a special tax bill is a unilateral act. In construing and in determining the certainty of descriptions in tax bills by reference to monuments and recorded instruments the principles applicable to the construction of deeds and similar instruments should be applicable. City of Higginsville ex rel. and to Use of Kasco, Inc. v. Alton R. Co., 237 Mo.App. 1204, 171 S.W.2d 795 (1943); National Cemetery Ass’n of Missouri v. Benson, supra, 344 Mo. 784, 129 S.W.2d 842. But, this does not mean that the scope of the evidence available to resolve an ambiguous description in a tax bill is the same as that available to establish the intent of the parties to a bilateral transaction, such as a deed. It has been said: “The property on which the assessment is intended to be levied must be sufficiently described for identification, as parol evidence is not admissible to show what property was intended.” 14 McQuillin Municipal Corporations, § 38:110, p. 273 (3rd ed.). Wig-more has analyzed the matter as the required integration of a unilateral act: “On the other hand, the levy of an assessment has been treated as embodied solely in the book-entry.” IX Wigmore on Evidence, § 2427, p. 94 (3rd ed.). This rationale has also been recognized in reference to a tax deed in which the court said: “So that the question of intent has no place in this discussion, nor was extrinsic evidence admissible for the purpose of showing such an intent.” Talley v. Schlatitz, 180 Mo. 231, 239, 79 S.W. 162, 164 (1904).

While not necessarily on that basis, in the absence of statutory authorization to the contrary or an applicable exception, the cases generally condemn tax bills upon the basis of an unrecorded plat. Annot., 137 A.L.R. 184 (1942). Also see State ex rel. and to Use of Jennings v. Hamilton, 293 S.W. 378 (Mo.1927). In State ex rel. and to Use of Lancaster v. Kennedy, 207 S.W. 71 (Mo.App.1918), Block 21 on a recorded plat had been vacated and an assessment by that description was held invalid.

The plaintiff cites § 11.50 of the charter which among other things provides “no defect or mistake in said books, or in the description therein of the parcels of land, or in the names in such apportionment, shall impair or affect the validity of the tax bills”. It is difficult to see how such a provision, even if it referred to the original assessment or tax bill, could serve to provide a lien upon defectively described real property. In any event, the provision refers to the books certified to the director of finance and does not aid the plaintiff. Plaintiff also cites Parker-Washington Co. v. Bradley, supra, 197 Mo.App. 447, 196 S.W. Ill, in which a tax bill was upheld because by reason of his dealing upon the basis of the same, the landowner was bound by an unrecorded plat. The evidence in this case does not establish that or any other exception to the general rule.

The court recognizes that property benefited by a public improvement should stand charged with a proportionate share of the cost and is not inclined to “search ‘as with a lighted candle’ for technicalities, in-advertences, and minor defects, . . . .” Scales v. Butler, 323 S.W.2d 25, 27 (Mo.App.1959). A sufficient description in a special tax bill is mandatory. University City, to Use of Schulz v. Amos, 236 Mo.App. 428, 156 S.W.2d 65 (1941). We are loathe to reverse the judgment but must when to do otherwise would add an element of uncertainty to the law dealing with real property-

The remaining points advanced by the defendant have been considered and have no merit. While no opinion is expressed concerning the validity of the same, the plaintiff may seek relief under § 11.80 of the charter. Or it may have additional evidence to support the validity of the present tax bill. The judgment is reversed and cause remanded.

All concur except MAUS, J., recused.

      . Although in State ex rel. and to Use of Jennings v. Hamilton, 293 S.W. 378 (Mo.1927) it was held that an assessment based upon an unrecorded plat did not comply with the applicable statute and was invalid even though the unrecorded plat was designated by name and date.

      . In dealing with an erroneous reference to a recorded plat in Arsenault v. Inhabitants of Town of Roxbury, 275 A.2d 598, 600 (Me. 1971) the court said: “We hold that, granting the propriety of a description of real estate taxed by reference to a recorded document, when the assessors do so an inspection of that particular document must, either by its own terms, or by a reference therein, supply a description of the real estate taxed sufficiently accurate to identify it without going further, and without the aid of parol evidence.”

      . Also see State ex rel. Wyatt v. Wabash R. Co., 114 Mo. 1, 10, 21 S.W. 26, 28 (1893) in which in reference to an assessment said: “ ‘[T]he intention of the parties must be contained in the instrument or its references, expressed or implied, with such certainty that the locality of the land can be ascertained from it’ ” and in Worthington Drainage Dist. v. Davis, 235 Mo.App. 949, 151 S.W.2d 469, 471 (1941) in speaking of the sufficiency of a description in a deed the court said: “In matters of taxation wherein liens are created, we conclude that more certainty of description should be had.”

      . Also see § 88.107 RSMo, V.A.M.S.


author: REINHARD, Judge.

text:
    STATE of Missouri, Respondent, v. Poradi MAMUSKA, Appellant.
    No. 41059.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 30, 1979.
    Lee, O’Hanlon & Brady, Robert J. O’Han-lon, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Philip M. Koppe, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
   REINHARD, Judge.

Defendant appeals her conviction for the offense of robbery first degree. She was sentenced to a term of five years in the Department of Corrections.

The elderly victim, Loraine Vogelsang, and her sister, Effie Totten, lived on Winnebago Street in the City of St. Louis. Mrs. Vogelsang testified that on March 9, 1978, three women knocked on the front door. She was upstairs while her sister was downstairs in the basement. When Mrs. Vogelsang opened the door, the women pushed their way in over her protest, claiming they had recently moved into the neighborhood and were calling on neighbors. One woman held Mrs. Vogelsang by her wrists on the couch in the living room, while another woman sat on a nearby chair and the third went into the bedroom. Miss Totten heard voices and walked upstairs to the back hall where she was stopped by one of the women and held by the arms. When Mrs. Vogelsang asked her sister to call the police, the women hurriedly left. They had been in the house about fifteen or twenty minutes. Mrs. Vogelsang subsequently identified the defendant in a lineup as one of the women who had entered her home uninvited.

Both sisters testified that Mrs. Vogelsang kept $400 in an envelope in the second drawer of a chest in the bedroom. The chest of drawers was not within her view while she was restrained on the sofa. After the three women departed, the sisters found that this second drawer had been rummaged through and the money was missing. Mrs. Vogelsang could not recall when she had last seen the money because she “didn’t count it every day.” Other than the sisters, no one had access to the bedroom.

Defendant first challenges the sufficiency of the evidence, contending that the court should have sustained her motion for judgment of acquittal. Specifically, she contends the State failed to prove anything was taken from Loraine Vogelsang. “Taking” is an essential element of the charge of robbery. Defendant admits the sufficiency of the proof of the other elements.

The victim and her sister testified that the money was present prior to the entry into the home by the defendant and her cohorts. Although the victim could not recall the exact date on which she had last seen the money, no one other than her sister had access to the room. One of the uninvited visitors was in the room and the drawer’s contents had been rearranged. The money was gone after the women left. We believe State v. Hampton, 509 S.W.2d 139 (Mo.App.1974), a case involving the armed robbery of a supply store, is controlling. In Hampton, evidence that a determined amount of money was in the cash drawer shortly before the robbery and was missing immediately thereafter was sufficient to sustain a conviction of first degree robbery. Id. at 143. In the case at bar, the jury had before it substantial evidence from which to infer that one of the women took the money. The evidence here is sufficient to sustain a conviction of robbery.

Defendant relies on State v. Cornett, 520 S.W.2d 146 (Mo.App.1975). Our facts are distinguishable from those in Cornett. Here the victim testified as to the exact amount missing and the limited access to the bureau drawer where the money was kept. These factors were not present in Cornett. The holding in Cornett has limited application.

Defendant additionally contends the court erred in not excusing the jury when one juror, Murrell H. Jones, disclosed after the jury was selected and before it was sworn that he was a cousin of a St. Louis Circuit Court Judge. Defendant claims that this information was material to her determination of Jones’s suitability as a jur- or, and that the timing of the disclosure deprived her of a “prudent exercise of peremptory challenges.”

The record demonstrates that juror Jones revealed to the court that he was a cousin of Circuit Judge Cahill after the attorneys made their challenges for cause, after the discharge of the balance of the jury panel, but before the swearing of the jury. The juror was questioned by the court with leave for questions by counsel. Jones said he never talked to Judge Cahill about his work and did not think the family relationship would affect him in any way.

A relative of a circuit judge is not automatically disqualified from jury service. Nothing in the record indicates grounds for challenge for cause and defendant does not contend that Jones should have been so disqualified. The general rule is that the qualification of a juror should be determined before the jury is sworn and the parties must develop such exception on voir dire. State v. Hermann, 283 S.W.2d 617, 618 (Mo.1955); Massman v. Kansas City Public Service Co., 119 S.W.2d 833, 837 (Mo.1938). In this case, the jury had not been sworn, but strikes had been made. The record indicates no inquiry during voir dire into the area for which defendant now contends she would have exercised one of her peremptory challenges. There is absolutely no evidence of deception. We find no abuse of discretion in the failure to discharge the panel.

The judgment is affirmed.

DOWD, P. J., and CRIST, J., concur.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eric C. SHELTON, Defendant-Appellant.
    No. 40926.
    Missouri Court of Appeals, Eastern District, Division Three.
    Oct. 30, 1979.
    Hale W. Brown, Jr., Hale W. Brown, Kirkwood, Stuart Cofman, St. Louis, for defendant-appellant.
    Paul Robert Otto, Asst. Atty. Gen., John Ashcroft, Atty. Gen., Jefferson City, Sean J. O’Hagan, Asst. Pros. Atty., Courtney Goodman, Jr., Pros. Atty., Clayton, for plaintiff-respondent.
   DOWD, Presiding Judge.

Eric Shelton, herein defendant, was charged with three counts of tampering with a motor vehicle. He was convicted under Count I of the information and sentenced to one year imprisonment in County Jail. The defendant was acquitted on Counts II and III.

Defendant raises two points on appeal, the first being that the trial court erred in denying his motion for acquittal at the close of all the evidence on the ground that the evidence presented by the State was insufficient to submit the case to the jury.

There was no direct evidence of the defendant’s guilt presented by the State in this case, however, it is well settled that a conviction based solely on circumstantial evidence is as legitimate as one founded on direct evidence. State v. Brown, 375 S.W.2d 126, 128 (Mo.1964). The circumstantial evidence upon which the conviction is based need not prove the impossibility of the defendant’s innocence. Such evidence must merely be consistent with the theory of guilt and inconsistent with reasonable theories of innocence. State v. Turnbough, 497 S.W.2d 856, 858 (Mo.App.1973).

It is not within the province of this court to weigh the evidence as presented at the trial. State v. Lowery, 565 S.W.2d 680, 684 (Mo.App.1978). We will only review the evidence for the purposes of determining whether it was of such a nature as to be inconsistent with reasonable theories of innocence and whether it was sufficient, when viewed in a light most favorable to the verdict, to support the conviction. State v. Johnson, 447 S.W.2d 285, 287 (Mo.1969); State v. Cobb, 444 S.W.2d 408, 412 (Mo. banc 1969).

The State’s evidence showed that Mr. Owen, witness for the prosecution, looked out of his window and saw the hood of his Chevrolet raised. He also saw another automobile parked in the street next to his car. He described the parked car as a white over dark colored Buick or Oldsmobile. He recognized the make of the vehicle by the shape of the taillights. In addition to the car parked in the street Mr. Owen saw two figures leaning over his car. He called to them from his window causing them to flee in the car which had been parked in the middle of the street. Mr. Owen immediately called the police to report the alleged tampering. He described the escape vehicle but was unable to describe the individuals. Twelve minutes after Mr. Owen’s call two officers stopped a white over dark Oldsmobile near the scene of the tampering. The auto was driven by Curtis Davis. Eric Shelton, the defendant was the passenger. Mr. Owen later made a positive identification of the Oldsmobile at the scene of the arrest on the basis of the automobile’s color and taillights. Mr. Owen also testified that after he notified the police of the tampering he inspected his Chevrolet and found that one of the cables had been removed from the battery.

Officer Adams testified at trial, that upon conducting an inventory of the Oldsmobile at police headquarters several automobile batteries were found. These batteries were later identified by their owners as having been stolen earlier the same evening as that of the tampering. Defendant had a pair of vice grips in his jacket pocket.

In deciding whether this evidence was sufficient to sustain a conviction this court will regard as true all evidence which supports the verdict as well as logical inferences which may be drawn from such evidence. State v. Turnbough, supra, at 858. It is reasonable to infer from the above testimony that someone was tampering with Mr. Owen’s car in an attempt to remove the battery. Defendant’s involvement in this tampering is a logical inference from the fact that he was arrested in a vehicle containing stolen batteries minutes after the tampering was reported. This inference is further bolstered by the fact that the vehicle in which defendant was apprehended matched the description of the vehicle at the scene of the offense as given by Mr. Owen. The inference of defendant’s involvement in the tampering is also supported by Mr. Owen’s testimony that he discovered that one of the cables had been removed from his car’s battery.

This evidence leads to the logical conclusion that the defendant was involved in tampering with Mr. Owen’s car in an attempt to remove its battery. This theory, which is supported by the evidence, precludes any reasonable hypothesis of the defendant’s innocence.

Point one is ruled against the defendant.

Defendant’s second contention is that the trial court erred by not submitting to the jury an instruction on circumstantial evidence. Defendant argues that the court was required to submit the instruction despite the fact that defense counsel did not request, and in fact, explicitly waived, the submission of such an instruction.

Defendant has not referred this court to any case which holds that the trial court must, sua sponte, submit an instruction on circumstantial evidence where such an instruction is warranted. Furthermore, the cases cited by defendant in his brief are of dubious value because they were decided pri- or to the enactment of MAI-CR 3.42 which currently regulates the submission of a circumstantial evidence instruction. The instructions for the use of the Missouri Approved Criminal Instructions direct that “[e]ach set of instructions (submitted to the jury) must also include the following instructions, if requested, applicable and proper: . . . One or more instructions in the 3.00 Series, . . .” (emphasis theirs). MAI-CR 3.42, the circumstantial evidence instruction, is part of the 3.00 series which is entitled “Instructions Required If Requested.” Following the text of the Rule, in the “Notes on Use”, it is stated that “[t]his instruction must be given if a circumstantial evidence instruction is appropriate and is requested in the manner provided by Rule 20.02” (emphasis added) MAI-CR 3.42.

It is apparent from a reading of the instruction and the directions for its use that the drafting committee clearly intended to impose no affirmative duty upon the court to submit such an instruction in the absence of a request. Nor has this court been able to find any case which holds that such a duty exists. The court in State v. Lewis, 482 S.W.2d 432, 435 (Mo.1972), plainly states that even where all the evidence relied on for conviction is wholly circumstantial, an instruction on circumstantial evidence must be given only if requested. Although the court is responsible for submitted instructions to the jury on questions essential to the cause, the responsibility for requesting and formulating instructions on matters considered collateral rests with the parties. State v. Barnes, 442 S.W.2d 932, 934 (Mo.1969). Whether the evidence presented is circumstantial or direct is held to be a collateral matter and, therefore, an instruction as to the effect of such evidence must be requested by the party desiring its submission. State v. Barnes, supra, at 934; State v. Wyre, 87 S.W.2d 171, 174 (Mo.1935).

The circumstances attending the instant case are certainly more persuasive than a mere failure to request the instruction. Here, the defendant’s counsel expressly waived the submission of the instruction. Because defendant has not shown in which manner he was harmed by his counsel’s waiver and because to rule otherwise would set a precedent for misinterpretation of MAI-CR 3.42, we rule against defendant on his second point.

Judgment affirmed.

CRIST and REINHARD, JJ., concur.


author: HARBISON, Justice.

text:
    NELSON TRABUE, INC., Appellant-Plaintiff and Counter-Defendant, v. PROFESSIONAL MANAGEMENT-AUTOMOTIVE, INC., Appellee-Defendant and Counter-Claimant.
    Supreme Court of Tennessee.
    Nov. 13, 1979.
    Stanley M. Chernau, Denney, Lackey & Chemau, Nashville, for Nelson Trabue, Inc.
    David S. Zinn, Ingraham, Young & Cor-bett, Nashville, for Professional Management-Automotive, Inc.
   OPINION

HARBISON, Justice.

Although other questions were involved in the trial court, in this Court the only issue is whether a corporate manager-employee is entitled to compensation for services for the full term of its contract even though it was discharged for cause by the employer. The Chancellor allowed recovery only through the date of discharge, but the Court of Appeals reversed and allowed recovery for the remainder of the contract term.

The employee, Professional Management-Automotive, Inc., was a corporation, all of the stock in which was owned by Mr. J. Kenneth Dockery. It apparently had no other personnel and was, in effect, a one-man corporation. Mr. Dockery had been engaged in an automotive transmission repair business prior to being employed by appellant, Nelson Trabue, Inc. Apparently Mr. Dockery organized Professional Management-Automotive, Inc. after he had decided to accept employment with appellant. He testified that he formed the corporation for certain income tax advantages. The company apparently had no other clients, and it is clear from the record that the personal services of Mr. Dockery were sought by appellant and were essential to the contract of employment. While there is no reason to ignore the corporate form, nevertheless, insofar as pertinent here, it appears that the contract was essentially one for the employment of Mr. Dockery as general manager of several automotive transmission repair shops owned by appellant.

The contract between the parties was for a term of one year, effective October 15, 1974. It was renewable for annual periods, subject to written confirmation. That Mr. Dockery’s personal services were indispensable is evidenced by the twelfth paragraph, which provided that if at any time during the term Mr. Dockery should die, be disabled or become disassociated from appel-lee, appellant, would have the right to terminate the agreement. Further, the tenth paragraph provided that so long as appellee “conscientiously performs its duties hereunder its employment shall be irrevocable during the time hereof . . . Apparently, therefore, if appellee should have failed conscientiously to perform its duties, it was contemplated that appellant would have the right to terminate.

In exchange for services rendered, appel-lee was to receive the sum of two thousand five hundred dollars per month, together with other considerations no longer involved in the litigation. Appellant discharged appellee on June 23, 1975, after what both the trial court and Court of Appeals found to be a material breach of the contract by appellee. The Chancellor awarded appellee the amount due under the contract through the date of discharge. The Court of Appeals, however, allowed appellee the balance of its annual compensation at the rate of twenty-five hundred dollars per month through October 15,1975. The dispute between the parties in this Court is confined to that award. The decision of the Court of Appeals was predicated upon the language of the fourteenth paragraph of the contract of employment, the pertinent part of which is as follows:

“Either party may terminate this agreement by giving proper written notice to the other party hereto within thirty (30) days prior to the termination of this agreement. In the event TRABUE terminates the agreement, all compensation to the COMPANY for its services under this agreement, both monthly salary and percentages of profit of TRABUE, for the balance of the time remaining under this agreement, shall be due and payable to the COMPANY, unless otherwise agreed by the parties.”

The Court of Appeals was of the opinion that since the employer elected to terminate, appellee was entitled to the entire balance for the remaining period of the contract, inasmuch as appellant failed to establish by proof any monetary damages to mitigate the award.

Both the Chancellor and the Court of Appeals found that Mr. Dockery performed many services commendably, particularly the organization of books and records. Nevertheless they found that he had often been rude and discourteous to customers. He failed to respond to numerous inquiries and complaints made by customers through the local Better Business Bureau. Both courts found that this was a serious breach of the contract. The Court of Appeals stated:

“Trabue was a service-oriented business and, in order to manage the business in an efficient and business-like manner, it was necessary to ‘keep customers happy’. PMA was required under the terms of the contract to operate the repair shops in a ‘proper, efficient and businesslike manner’. Dockery’s attitude with customers was a violation of the contract.”

Although Dockery denied any breach on his part, there is material evidence in the record to support the findings of both the Chancellor and the Court of Appeals that he did in fact engage in unseemly disputes with customers, failed to answer complaints, and conducted himself in a manner detrimental to a service type of business such as appellant’s. Appellant was unable to prove any specific damages as a result of Dockery’s actions, although there was testimony that gross monthly sales had declined by fifty percent between November 1974 and June 1975. Despite the failure or inability of appellant to establish damages by a specific monetary figure, it is not contended by either party that the breach of contract by appellee was immaterial or inconsequential. In our opinion it was sufficiently serious to justify the employer’s terminating the management services of appellee.

The general rules with regard to contracts of employment are well settled. They are stated in the case of Little v. Federal Container Corp., 61 Tenn.App. 26, 452 S.W.2d 875 (1969) as follows:

“Generally, a contract of employment for an indefinite term is a contract at will and may be terminated by either party, [citations omitted]. Whereas, a contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract. 56 C.J.S. Master and Servant § 30, p. 411.
“An employer has the right to discharge an employee at any time for just cause. The fact the employer bears with the incompetency or irregularities of such employee for a time does not estop the employer from discharging the employee for such incompetency if it continues.” 61 Tenn.App. at 31-32, 452 S.W.2d at 877-78.

In the earlier case of Jackson v. The Texas Company, 10 Tenn.App. 235, 244 (1929), it was held that even where an agency is for a definite term, the principal has a right to revoke it before the expiration of the term without incurring liability for damages because of the failure of the agent faithfully to perform his express or implied undertakings. See also Moyers v. Graham, 83 Tenn. 57 (1885). In the latter case an attorney had been employed to represent a client in a claim before the United States Treasury. The attorney was later disbarred, and the client obtained other counsel. Thereafter the attorney was reinstated and sought compensation from his client who had been successful in the prosecution of his claim. No basis for a quantum meru-it recovery was found, and the client was otherwise held to have had just cause to discharge the attorney.

As stated in 53 Am.Jur.2d, Master and Servant § 49 (1970):

“While an employer may discharge at will one employed for no definite term without incurring liability, the employer, in order to justify dismissal of one employed for a specific period, must be able to show a breach on the part of the employee of some express or implied provision of the contract of service. The implied provisions of such a contract are violated when the servant does something inconsistent with the relation of master and servant or incompatible with the due and faithful performance of his duties.”

Similar principles obtain in the discharge of an agent, as distinguished from a servant. See 3 Am.Jur.2d, Agency § 48 (1962).

While we do not understand that appellee takes serious issue with these rather basic principles of employment contracts, it insists that they are not applicable here because of language found in section 7 of the contract to the effect that

“All provisions of this agreement are individual and severable, and any breach or any invalidation of any provision will not affect the remaining portions.”

Appellee insists that this language shows that the parties intended that appellant’s obligation to compensate appellee for a one-year term was “independent” of ap-pellee’s obligation to perform efficient and competent services. The Chancellor rejected this contention, and we are of the opinion that there is insufficient evidence in the record to justify a conclusion that appellant would have employed appellee for a one-year period and agreed to compensate it therefore irrespective of the quality and competence of the services rendered by ap-pellee. While Mr. Trabue, the principal in Nelson Trabue, Inc., did seek out Mr. Dock-ery and offer him employment, it was Dockery’s supposed expertise in automotive transmission repairs and in the management of similar businesses which led Trabue to do so.

Appellee concedes that ordinarily contracts, particularly those calling for personal services, will be construed as containing dependent, rather than independent, covenants unless a contrary intention clearly appears. See International Correspondence School, Inc. v. Crabtree, 162 Tenn. 70, 75, 34 S.W.2d 447 (1931).

While the seventh paragraph of the present contract does contain the language above quoted, the preamble to the contract recites that the agreement is made “in consideration of the mutual covenants and promises of the parties hereto . . . .” We have already referred to the tenth paragraph, entitling appellant to terminate for failure of appellee to perform conscientiously. We are unable to agree with appellee that its right to compensation for services was independent of its obligation to perform and was not subject to the basic rule governing employment contracts that the employer may terminate for cause even though the employment is otherwise for a definite term.

The judgment of the Court of Appeals is reversed and the judgment of the Chancellor is reinstated. All costs, including those on appeal, will be divided equally between the parties. The cause will be remanded to the trial court for enforcement of the judgment and collection of costs accrued there.

BROCK, C. J., and HENRY, COOPER and FONES, JJ., concur.

      . As indicated previously, there were other features of the contract and other issues tried before the Chancellor, both at an injunction hearing and at trial on the merits. Some of the covenants in the contract, such as transfer of corporate control in the event of the death of Trabue, under some circumstances might have been of an “independent” nature, but we do not so regard the provisions relative to Mr. Dock-ery’s services.


author: SANDERS, Judge.

text:
    William S. ZWICK, Appellant, v. Howell JONES, d/b/a Howell Jones Rentals et al., Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    May 25, 1979.
    Certiorari Denied by Supreme Court Sept. 17, 1979.

      Larry C. Vaughan, Knoxville, for appellant.
    Robert M. Child, with Child, O’Connor, Ellis & Petty and Earl S. Ailor, with Asquith, Ailor & Jones, Knoxville, for appel-lees.
   OPINION

SANDERS, Judge.

The Plaintiff has appealed from a judgment in favor of the Defendants on a petition to hold them in contempt. The Plaintiff-Appellant, William S. Zwick, filed a petition in the Circuit Court against the Defendants-Appellees, Howell Jones and his attorney, Earl Ailor, seeking to hold them in contempt of that court.

Prior to August 27, 1976, the Plaintiff filed suit in the Chancery Court against the Defendant, Howell Jones, for unliquidated damages. At the same time he attached a 1966 model Great Dane trailer belonging to the Defendant. The trailer was stored with Southern Avenue Wrecker Service. On August 27, 1976, the Chancellor dismissed the suit on the grounds the Chancery Court did not have jurisdiction of a claim for unliqui-dated damages. At the same time the Chancellor ordered the attachment released on the trailer. The trailer remained in storage until November 4, when it was released to the Defendant, Jones.

On September 13,1976, after the case had been dismissed in the Chancery Court, but before the trailer was released, the Plaintiff filed his suit against Defendant Jones in the Circuit Court. On September 14 a new attachment was issued from the Circuit Court for the same trailer. The Plaintiff subsequently secured a judgment against the Defendant, Jones, after which he learned the trailer had been released. It is the insistence of the Plaintiff the Defendants knew of the existence of the attachment issued on September 14 at the time they procured the release of the trailer on November 4 and for this reason they should be held in contempt.

The Defendants both denied they had any knowledge of the September 14 attachment at the time the trailer was released.

The case was heard by Judge Roy A. Miles, who was sitting by special designation. He found the issues in favor of the Defendants and dismissed the petition. The Plaintiff has appealed and assigned the action of the Court as error.

The proof shows the Defendant, Jones, was a resident of the State of Georgia. The Plaintiff attempted to get service of process in the last case on him through the Secretary of State. The letter sending a copy of the summons, etc., from the Secretary of State was returned marked “refused”. Defendant Jones denied the slip which was signed when the letter was refused was signed by him. His testimony was that he did not know of the second lawsuit until January, 1977, when he received a copy of a default judgment in the mail. There is no proof in the record to refute this testimony.

Mr. Ailor also testified he had no knowledge of the attachment in connection with the second case until January, 1977, when the Defendant, Jones, contacted him concerning the default judgment.

The proof does show that about the time the second suit was filed the attorney for the Plaintiff called Mr. Ailor and asked him if he could accept service of process for the Defendant, Jones. Mr. Ailor told him he could not. There is no showing the attorney for the Plaintiff mentioned an attachment of the trailer at the time he called Mr. Ailor.

We concur with the finding of the Trial Judge that there is no proof to establish either of the Defendants had any knowledge of the second attachment at the time the trailer was released.

There is also another reason why the judgment of the Trial Court must be affirmed. In this jurisdiction there is no right to appeal from an acquittal in a contempt case. Plumb v. Plumb, 52 Tenn.App. 267, 372 S.W.2d 771; Schwalb v. Schwalb, 39 Tenn.App. 306, 282 S.W.2d 661; Collier v. City of Memphis, 160 Tenn. 500, 26 S.W.2d 152; Gunter v. Seaboard Copper Mining Co., 142 Tenn. 14, 215 S.W. 273.

The assignments of error are overruled. The judgment of the Trial Court is affirmed and the cost of this appeal is taxed to the Plaintiff.

The Appellees, in their brief, ask the court to hold this appeal to be frivolous under T.C.A. § 27-124.

Since there is no factual evidence contrary to the Trial Court’s holding and since, as a matter of law, the Appellant has no right to appeal, we think the Appellees are entitled to such relief.

The case is, accordingly, remanded for the Trial Court to fix damages in accordance with the statute.

PARROTT, P. J., (E.S.), and FRANKS, J., concur.


text:
    Charles Douglas SAMPLEY, Plaintiff-Appellee, v. Charles D. AULABAUGH and Vol-State Chemical Corporation, Defendants-Appellants.
    Court of Appeals of Tennessee, Eastern Section.
    Aug. 2, 1979.
    Certiorari Denied by Supreme Court Sept. 17, 1979.

      Noone, Stringer, Breazeale & Associates, Chattanooga, for defendants-appellants.
    Morgan, Garner, Wood & Guthrie, Chattanooga, and Bennett & Womack, Rossville, Ga., for plaintiff-appellee.
   OPINION

SANDERS, Judge.

Defendants have appealed from a jury verdict in favor of the Plaintiff for personal injuries. The Plaintiff-Appellee, Charles Douglas Sampley, sued the Defendants-Appellants, Charles D. Aulabaugh and Vol-State Chemical Corporation, for personal injuries. Plaintiff was injured when, as a result of the crane or hydraulic lift on which he was standing being struck by a truck, he fell to the sidewalk from the crane while working on a neon sign.

The accident occurred near the intersection of the easterly side of Dodds Avenue and the north side of 34th Street in the City of Chattanooga. At this point the two streets run at right angles. Dodds Avenue, which is a four-lane street, runs in a north-south direction and 34th Street, which is a two-lane street, runs in an east-west direction. Shortly before the accident the Plaintiff had driven his employer’s truck to the intersection of the two streets for the purpose of repairing a neon sign located near the intersection. The truck he was using was equipped with a 64-foot hydraulic crane called a sky hook, commonly known as a cherry picker except this crane did not have a bucket on the end of it for a person to stand in. The base of the neon sign was located in a parking lot and set back approximately six feet from the east side of Dodds Avenue and about eight feet from the north side of 34th Street.

Upon arriving at the location the Plaintiff pulled his truck into 34th Street and backed it into the parking lot with the rear of the truck near the east end of the sign and the front wheels in 34th Street against the curb on the north side. In this position the truck was parked parallel with Dodds Avenue. After positioning the truck the crane was swung around at a 90° angle to the truck, parallel with 34th Street. It was raised to a height of approximately 12 feet above and perpendicular to the ground. In this position the end. of the crane extended 12 to 18 inches beyond the curb into Dodds Avenue. The Plaintiff had two yellow cone markers which he placed on 34th Street but nothing was placed on Dodds Avenue to warn oncoming traffic of the obstruction in that street.

Immediately before the accident the Defendant, Charles Aulabaugh, was operating a truck of his employer, Defendant Vol-State Chemical Corporation, in a northerly direction on Dodds Avenue. The truck had a van-type body which was approximately 20 feet long and 12 feet high. Immediately before reaching the intersection he was driving on the right side, or curb lane, of the street and stopped to let a fellow employee out of the truck. In the meantime the traffic light at the intersection turned to red on Dodds Avenue. When it turned green the Defendant pulled across the intersection. It was his intention to pull into the center lane of Dodds Avenue after passing the intersection and he was looking into his side mirror to check for traffic coming from the rear. As he did, the right front top corner of the van on his truck struck the portion of the crane that was extending out over Dodds Avenue.

As the result of this collision the Plaintiff was knocked off the crane and seriously injured. In his complaint the Plaintiff charged the Defendant failed to keep a proper lookout ahead, he did not have his vehicle under reasonable control and he was guilty of operating his vehicle in violation of T.C.A. § 59-858.

In their answer the Defendants denied all allegations of negligence. They also charged the Plaintiff was guilty of contributory negligence. They said he was negligent in placing the crane on which he was working where it extended out over Dodds Avenue, in failure to warn approaching traffic of the extended crane over Dodds Avenue, he failed to keep a proper lookout for and to warn approaching traffic of the obstruction, his placing the crane out over the street constituted an obstruction in violation of T.C.A. § 54-925 and a violation of Chattanooga Code Section 34 — 28. They also contended the Plaintiff was in violation of certain safety regulations by not wearing a safety belt at the time of the accident.

The case was tried before a jury which found the issues in favor of the Plaintiff and fixed his damages at $72,500. Defendants’ motion for a judgment notwithstanding the verdict, or a motion for a new trial, was overruled and they have appealed and assigned error.

The Defendants have assigned 41 assignments of error, many of which are repetitious or frivolous or do not comply with the rules of this court and serve only to burden the record. However, we do find merit in a limited number of the assignments. In their first assignment of error Defendants say there was no evidence to support the verdict.

We cannot agree. Although there is an extremely close question on the issue of contributory negligence, we conclude there was a question for determination by the jury.

The Defendants, in their answer, say that at the time of the accident the Plaintiff was in violation of T.C.A. § 54-925, which provides as follows:

“Obstructing roads a misdemeanor— Commissioner failing to sue incurs penalty — Disposition of fines and penalties. Any person who shall place, or cause to be placed, on any public highway, any brush, briers, or any other material or thing which may obstruct or damage such highway, or render it inconvenient or hurtful to the traveling public, or who may encroach upon the same in constructing any fence, wall, or like improvement, shall be guilty of a misdemeanor, and be fined as in other misdemeanors. The commissioners shall bring suit against any person thus obstructing, damaging, or encroaching on any highway, within thirty (30) days after such fact comes to his knowledge, and, on failure to do so, shall be subject to a fine of five dollars ($5.00), which may be recovered by any person subject to highway duty in his district suing therefor. Such fine, when collected, and also any fine if collected by the commissioners under this section, shall be paid on receivable warrant of county judge or chairman to the county trustee, for the benefit of the roads of the said commissioner’s district.”

In his charge to the jury the Court did not charge the jury with reference to this statute. The Defendant requested the following special charge based upon the statute: “You are instructed that it is unlawful to place or cause to be placed on any public highway any material or thing which may obstruct such highway or render it inconvenient or hurtful to the traveling public.”

The Court declined to give this special request and Defendants assigned this as error.

The Defendants also relied upon the following city ordinance for the City of Chattanooga as a defense. It provides:

“SEC. 34-28. BOXES, BARRELS, MERCHANDISE, OTHER ARTICLES.
“It shall be unlawful for any person to obstruct the streets or sidewalks with boxes, barrels, machinery, agricultural implements, etc., except when receiving and forwarding goods, wares and merchandise, and then only for a reasonable time.”

The Court failed to instruct the jury on this ordinance and the Defendants made the following special request: “You are instructed that under the Ordinances of the City of Chattanooga, it is unlawful for any person to obstruct the streets of said City with machinery except when receiving or forwarding goods, and then only for a reasonable time.”

The Court also refused this special request and the Defendants assigned this as error.

The only instructions of the Court to the jury with reference to the duty of the Plaintiff was as follows: “The Court also charges you that it was the duty of the Plaintiff in this case, Mr. Charles Sampley, to exercise reasonable care and caution for his own safety. He must keep a proper lookout for his own safety, to locate his truck in a proper or safe position and condition. He must position his crane or boom in a safe or proper manner. He must be careful as best as he can to not protrude his crane or boom into the street without giving proper warning to others who may be operating the same, if it is not readily discernible by anyone on the street.

“In general, Mr. Sampley must exercise that degree of care and prudence as would be expected of an ordinary prudent man repairing a sign using that truck and that type of boom under the same or similar circumstances. If the Plaintiff, Mr. Samp-ley, failed to do that, then he would be guilty of contributory negligence. If that contributory negligence proximately caused or contributed to this accident, then he cannot recover.”

Under the circumstances we think it was error for the Court to refuse to properly instruct the jury on the statute and the city ordinance and to also refuse the Defendants’ special requests. The undisputed proof shows the Plaintiff was in violation of both the statute and the city ordinance. The jury should have been so instructed and further instructed that the violation of such statute and ordinance was negligence per se. The instruction as given by the Court was insufficient to correct this error and the assignments of error are sustained.

Our ruling on these assignments of error will require the case to be remanded for a new trial. In view of this we feel constrained to address another assignment to possibly avoid further error in a new trial.

Defendants say it was error for the Court to charge the jury as follows: “The separate paragraph of this complaint filed by Mr. Sampley is predicated on the alleged violation of a section of the Tennessee Code Annotated. In particular, TCA 59-858, which is entitled reckless driving, any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. The Court instructs you that it was the duty of the Defendant, Charles Aulabaugh, to observe the statute that is set out in the complaint just read to you. If at the time of this accident the Defendant was operating his truck in violation of this statute, that would be negligence per se. That is, negligence as a matter of law. If that was the proximate cause of the accident, then the Defendant would be liable.”

Although in his complaint the Plaintiff alleged a violation of T.C.A. § 59-858, there is no proof in the record to warrant a charge under this statute. The proof shows the Defendant was operating his vehicle in a careful, prudent manner at a speed of five to eighteen miles per hour at the time of the accident. The only act of negligence of which he could possibly have been found to be guilty was failure to see the crane protruding out over the street before the accident.

In the case of Fontaine v. Mason Dixon Freight Lines (1961) 49 Tenn.App. 598, 357 S.W.2d 631, the court, in addressing T.C.A. § 59-858, said:

“On the question of gross negligence it was said in Inter-City Trucking Co. v. Daniels, 181 Tenn. 126, 129, 178 S.W.2d 756, 757:
“Tn Stagner v. Craig, 159 Tenn. 511, 517, 19 S.W.2d 234, 236, since approved and followed in Consolidated Coach Co. v. McCord, 171 Tenn. 253 at page 258, 102 S.W.2d 53, citing other cases, “gross” negligence was defined as, “such entire want of care as would raise a presumption of a conscious indifference to consequences.” If one knowingly, consciously, violates a duty imposed upon him to take measures prescribed to protect the lives of others, he is guilty of more than a mere neglect to exercise ordinary care. * * “a common definition of negligence. And yet, it does not cross the border line of studied or deliberate intent to do the specific injury. The mental attitude is one of indifference to injurious consequences, conscious recklessness of the rights of others. Such conduct may well be characterized as wanton. Bou-vier defines wanton negligence as: ‘A heedless and reckless disregard for another’s rights, with the consciousness that the act or omission to act may result in injury to another.’ ” ’ ”

Clearly, there was no such willful or wanton conduct manifested on behalf of the Defendant in the case at bar.

In the case of Westmoreland v. Memphis Transit Company, 305 F.2d 71 (1962) the Sixth Circuit held that where there was no evidence of willful and wanton misconduct it was error for the court to read the statute in his charge to the jury. They concluded, however, that under the circumstances in that case it was harmless error.

We, likewise, conclude it was error in the case at bar.

There are numerous other assignments of error but in view of our holding on the Court’s charge, they are pretermitted.

The judgment of the Trial Court is reversed and the case is remanded for a new trial. The cost of this appeal is taxed to the Appellee.

PARROTT, P. J. (E.S.), and GODDARD, J., concur.