text:
    John ALONZO et ux., Appellants, v. NORTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 1715.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Jan. 25, 1978.
    Rehearing Denied Feb. 15, 1978.
    Conway L. Wallace, John L. Mendoza, Houston, for appellants.
    Frank B. Stahl, Jr., Larry W. Hohle, Lorance, Thompson & Wittig, Houston, for ap-pellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a summary judgment granted the defendant in a personal injury suit filed under the uninsured motorists provision of an insurance policy.

John and Maria Alonso (appellants) were married in December 1973. Mrs. Al-onso purchased automobile insurance with Northern County Mutual Insurance Company (Northern or appellee) in July 1974. Approximately two months later, she signed a Form 119 exclusion to her existing automobile insurance policy. The exclusion provided that her insurance policy with Northern would not apply to any claim that arose from accidents that occurred while any automobile was being operated by Mr. Al-onso.

The appellants alleged in their original petition that they were involved in an accident with an uninsured motorist on December 23, 1974. At the time of the collision, Mr. Alonso was driving his wife’s car and Mrs. Alonso was a passenger in the car. The appellants alleged that the accident was proximately caused by the negligence of the uninsured motorist and that Mr. Al-onso was not at fault in the accident. The appellants claimed that they were entitled to recover for their injuries under the uninsured motorists coverage provided by Mrs. Alonso’s policy with Northern. The appel-lee pled that the appellants’ claims were excluded by the Form 119 endorsement to the policy. The trial court granted the appellee’s motion for summary judgment on the ground that the Form 119 endorsement excluded coverage of the appellants’ claims as a matter of law.

The appellants assert in their sole point of error that the trial court incorrectly granted the appellee’s motion for summary judgment. That point is sufficient to challenge the summary judgment on appeal. Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.Sup.1970); Tex.R.Civ.P. 418. Summary judgment is a harsh remedy. As a result, the summary judgment rule, Tex.R.Civ.P. 166-A, is strictly construed against the movant. Summary judgment should be granted only if the record establishes as a matter of law that there is no genuine issue as to any material fact in the case. In re Price’s Estate, 375 S.W.2d 900 (Tex.Sup.1964).

The appellants contend, for the first time on appeal, that the trial court erred in granting the appellee’s motion for summary judgment because the exclusion relied upon by the appellee in seeking summary judgment was not supported by consideration. The law in Texas is clear that a subsequent modification of the coverage provisions of an insurance policy must be supported by new consideration. Travelers Indemnity Company v. Edwards, 462 S.W.2d 533 (Tex.Sup.1970). We believe there was some evidence of lack of consideration. It appears from the declarations page of the original policy between Mrs. Alonso and Northern that the original policy provided coverage for all passengers, including Mr. Alonso, while riding in Mrs. Alonso’s automobile. Under the modified policy, Mr. Alonso was entitled, at most, to coverage while a passenger in Mrs. Alonso’s car. Mrs. Alonso, on the other hand, purportedly relinquished her right to recover under the uninsured motorists provision of her policy for personal injuries sustained while Mr. Alonso was driving her car. Mrs. Alonso apparently received nothing by signing the exclusion but lost much. We conclude that there was a genuine issue of material fact concerning the validity of the policy exclusion. Because this is an appeal from a summary judgment, however, we do not reach the issue whether the exclusion was actually supported by consideration, and we express no opinion thereon.

The appellee argues, in support of the summary judgment, that the appellants waived the affirmative defense of lack of consideration by failing to plead that defense at the hearing on the motion for summary judgment. The pleadings of the parties normally determine the issues that may exist in a case. A motion for summary judgment will not be granted, however, if the depositions, admissions or affidavits disclose that the nonmovant could have amended his pleadings to state a cause of action. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956). A motion seeking summary judgment solely on the basis of matters actually pled is per se an impermissible general demurrer. Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972). Appellee’s counsel asserted during oral argument that the rule enunciated in Womack is no longer applicable because it has been changed by amendments to Rule 166-A that became effective on January 1, 1978. The suggestion that the rule change, promulgated after the improper rendition of summary judgment, is sufficient to rehabilitate that judgment is devoid of merit. We do not believe that the supreme court intended for the amendments to Rule 166-A to be applied retroactively.

The appellants also could have amended their pleadings in an attempt to recover damages under the personal injury protection (PIP) provision of their insurance policy. Both parties agree that, if applicable, the PIP coverage would not have been barred as a matter of law by the Form 119 exclusion. Schaefer v. Unigard Security Ins. Co., 559 S.W.2d 103 (Tex.Civ.App.-Dallas, 1977, writ granted). If the appellants had amended their pleadings in an attempt to recover PIP benefits, those pleadings would have presented a genuine issue of material fact regarding the applicability of the PIP provision.

The trial court erred in rendering summary judgment. The court should have allowed the appellants the opportunity to litigate the issues of lack of consideration and applicability of PIP coverage.

The judgment is reversed, and the cause remanded for a trial on the merits.

Reversed and remanded.

      . Appellants’ name, although spelled incorrectly throughout the proceedings as “Alonzo,” should be spelled “Alonso.”


source: Caselaw Access Project

author: LUKOWSKY, Justice.

license: Public Domain

text:
    William WELLS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 10, 1978.

      Frank W. Heft, Jr., Asst. Dist. Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

Wells was convicted of first-degree assault, first-degree wanton endangerment, trafficking in a controlled substance (second offense), and several counts of receiving stolen property. He was sentenced consecutively on each offense for a total of 42 years of imprisonment. He appeals. We affirm in part and reverse in part.

On May 20, 1976, pursuant to a proper search warrant, police officers forcibly entered the vacant apartment of Wells and his girl friend, Sharon Bene. During the search, Wells and Bene came home. Believing that their apartment was being burglarized, Bene gave Wells a pistol. She remained in the car while he approached the apartment. There was conflicting testimony as to the sequence of events that took place at the entrance to the apartment. Wells testified that a hand holding a pistol appeared from behind the door and shot at him and that he returned fire in self defense. Officer Cline testified that he identified himself as a police officer and was then fired upon by Wells. There is no dispute that there was an exchange of gunfire which commenced at the apartment and ended in the parking lot outside of the building where Wells surrendered. During this affray a police officer was wounded. The search produced three one-gram bundles of powder containing heroin, assorted drug paraphernalia and numerous items of stolen property which were introduced in evidence at trial.

Wells assails his convictions on numerous grounds. Only two merit discussion.

I.

Wells complains of a part of the court’s instructions on the receiving stolen property counts. The court instructed the jury on the rebuttable presumption of knowledge, embodied in KRS 514.110(2), that arises from the possession of recently stolen moveable property. To so instruct was prejudicially erroneous. Reversal of these convictions, and a new trial of these counts are required.

When the court tells the jury what presumption arises from certain stated facts, it invades the province of the jury. Tines v. Commonwealth, Ky., 77 S.W. 363 (1903). This rule applies to the statutory evidentiary presumption of guilty knowledge which arises from the possession of recently stolen moveable property. Jones v. Commonwealth, 291 Ky. 719, 165 S.W.2d 566 (1942); Botnick v. Commonwealth, 266 Ky. 419, 99 S.W.2d 188 (1936). The arguments of the Commonwealth do not persuade us to either abandon or modify this rule.

This rule of law is not to be confused with the permissible use of the presumptions embodied in KRS 189.520(4). These statutory presumptions are legislative substitutes for expert testimony devised for prosecutorial convenience in narrowly limited situations. They are not rules of law given by the court to the jury, but rather evidence which may be read without judicial comment, upon proper motion, in connection with the testimony concerning blood-alcohol content in driving while under the influence cases. As such they are the only presumptions of fact, essential to establish a crime, of which the trial court is permitted to inform the jury. Overstreet v. Commonwealth, Ky., 522 S.W.2d 178 (1975); Marcum v. Commonwealth, Ky., 483 S.W.2d 122 (1972).

II.

The following instruction was given on the charge of assault in the first degree:

“You will find the defendant, William Wells, guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:
(a) That in this county on or about May 21, 1976, and before the finding of this indictment herein, he inflicted serious physical injury upon Rodney Cline by shooting him with a pistol, a deadly weapon.
(b) That the injury was a serious physical injury;
(c) That in so doing, the defendant: (1) Intended to cause serious physical injury to Rodney Cline and that said pistol was a deadly weapon. Or, (2) Was wantonly engaging in conduct which created a grave risk of death to another and that he thereby caused Rodney Cline’s injury under circumstances manifesting extreme indifference to the value of human life; And,
(d) That in so doing, the defendant was not justified.”

Wells correctly contends that he could have been convicted under this instruction if some of the jurors believed one interpretation of the evidence, that he acted intentionally, and if the remainder of them believed the other interpretation, that he acted wantonly. However, he incorrectly asserts that such a result would deprive him of a unanimous verdict and thereby violate his due-process right to proof beyond a reasonable doubt on each element of the offense. The 6th and 14th amendments of the United States Constitution do not require a unanimous verdict in criminal cases tried in state courts, and lack of unanimity among jurors does not violate the requirement of proof beyond a reasonable doubt. Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

Section 7 of the Kentucky Constitution requires a unanimous verdict reached by a jury of twelve persons in all criminal cases. Coomer v. Commonwealth, Ky., 238 S.W.2d 161 (1951); Cannon v. Commonwealth, 291 Ky. 50, 163 S.W.2d 15 (1942). In conformity with this requirement, the court instructed the jury that their verdict must be unanimous. The issue now becomes whether a verdict is unanimous if jurors are split in their belief as to which of two alternative elements the evidence establishes when proof of either element alone would justify the conviction. This question was recently raised in Eversole v. Commonwealth, Ky., 550 S.W.2d 513 (1977), but was not properly before the court. We now deem it appropriate to dispose of this contention. Because we have not dealt with the merits of this question in the past, an examination of the decisions of other courts on this matter is influential.

Wells refers us to the rule in the State of Washington. Under its practice the instructions to the jury must clearly separate the two modes of commission and require unanimity on either of the alternatives before the jury can return a verdict of guilty. State v. Golladay, 78 Wash.2d 121, 470 P.2d 191 (1970); State v. Parmenter, 74 Wash.2d 343, 444 P.2d 680 (1968); State v. Cadena, 74 Wash.2d 185, 443 P.2d 826 (1968). Yet this practice does not require a particular clause to that effect in the “to convict” instruction. A general unanimity instruction is sufficient so long as the alternatives are clearly set forth elsewhere. State v. Rogers, 5 Wash.App. 347, 486 P.2d 1125 (1971); State v. Mayner, 4 Wash.App. 549, 483 P.2d 151 (1971). We are not persuaded to adopt either the reasoning or the result reached by the Washington courts which seem to represent the minority position among the states that have considered this matter.

The issue has often arisen in the context of first-degree murder cases in which the prosecution proceeds on either of two theories, premeditation or felony murder, as in People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903). There the jury was instructed on both theories of the case, which were supported by the evidence, either of which constituted the crime of first-degree murder. The verdict of guilty was attacked upon the grounds that the jurors could have believed different interpretations of the evidence. The court responded at 65 N.E. 989, 990:

“It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict can not be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other. .
So in this case, it was not necessary that all jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one. It was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as the offense is defined by statute.”

The reasoning and result of People v. Sullivan, supra, have been followed in numerous other jurisdictions: People v. Chavez, 37 Cal.2d 656, 234 P.2d 632 (1951); State v. Wilson, 220 Kan. 341, 552 P.2d 931 (1976); State v. Souhrada, 122 Mont. 377, 204 P.2d 792 (1949); Candy v. State, 8 Neb. 482, 1 N.W. 454 (1879); State v. Reyes, 209 Or. 595, 308 P.2d 182 (1956); State v. Hazelett, 8 Or.App. 44, 492 P.2d 501 (1971); State v. Flathers, 57 S.D. 320, 232 N.W. 51, 72 A.L.R. 150 (1930). The rationale has also been applied to cases other than murder. People v. Theodore, 121 Cal.App.2d 17, 262 P.2d 630 (1953) (grand theft); People v. Failla, 64 Cal.2d 560, 51 Cal.Rptr. 103, 414 P.2d 39 (1966) (burglary).

We are convinced that the logic of People v. Sullivan, supra, is sound and applicable here. KRS 508.010 brings together two distinct culpable mental states (intent and wantonness manifesting extreme indifference to the value of human life) and punishes them equally under specified circumstances. Either mental state will support a conviction of assault in the first degree and punishment for such crime. The legal effect of the alternative conclusions is identical. There was ample evidence to support a verdict on either theory of the case. We hold that a verdict can not be successfully attacked upon the ground that the jurors could have believed either of two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense.

The jury returned a verdict signed by the foreman. The jury was polled and each juror affirmed the verdict to be his own. Wells was convicted by a unanimous jury as required by Section 7 of the Kentucky Constitution.

The judgment of conviction of the counts of receiving stolen property is reversed and the cause is remanded for a new trial on these counts. In all other respects, the judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. Gary L. LITTLETON, Respondent.
    Supreme Court of Kentucky.
    Jan. 31, 1978.

      Leslie G. Whitmer, Kentucky Bar Ass’n, Frankfort, for complainant.
    Gary E. Conn, Grayson, for respondent.
   PER CURIAM.

The respondent, Gary L. Littleton, is a duly licensed attorney of this Commonwealth, with offices in Grayson, Carter County, Kentucky. On or about September 7, 1970, he was employed by Ralph Suttles and Lillie Suttles to file a personal injury lawsuit for them, and on or about September 1, 1971, he filed such an action in the Carter Circuit Court demanding damages in the sum of $129,200. On July 7,1976, nearly five years after the filing of the action, it was dismissed for failure to prosecute.

This proceeding was commenced on July 25, 1977, by the filing of a complaint with the Kentucky Bar Association in which the respondent was charged with having negligently failed to protect the legal interests of his clients, Mr. and Mrs. Suttles. Respondent was duly notified of the filing of the complaint by certified mail. He made no response to the complaint, and on October 19, 1977, the record was submitted to the Board of Governors of the Kentucky Bar Association for consideration and action. On November 14, 1977, the Board of Governors unanimously found the respondent guilty as charged. A majority of the members of the Board recommended that respondent be suspended from the practice of law for a period of two years and be required to pay the costs of the action. A minority of the Board recommended that respondent be disbarred.

On November 23, 1977, the action and recommendations of the Board of Governors, together with the entire record relative to this particular disciplinary proceeding, were filed in the office of the clerk of this court and a summons issued by the clerk commanding respondent to appear before the Supreme Court or file a response .and show cause, if any he could, why he should not be adjudged guilty of unprofessional conduct and disciplined therefor. On December 5, 1977, the summons was served on respondent by the sheriff of Carter County, Kentucky, and on December 27, 1977, 22 days after the service of the summons, the respondent, by counsel, filed with the Director of the Kentucky Bar Association a pleading which he captioned “Answer.” At that time the record had already been filed in this court; however, the Director, at the request of counsel for respondent, on the same date the answer was received by him forwarded it to the clerk of this court, where it was placed with the balance of the record. Although the answer was not timely filed, we will consider it in the disposition of this action.

Mr. and Mrs. Suttles were involved in an automobile collision and seriously injured. They employed the respondent to represent them in their claims for damages, and a suit was filed in the Carter Circuit Court by respondent for and on behalf of his clients seeking damages in the sum of $129,200. The action was dismissed without prejudice by the trial court on October 1, 1974. On January 2,1975, three months after the suit had been dismissed without prejudice, respondent filed a motion to redoeket. The motion was responded to by opposing counsel. On July 7,1976, the motion to redocket was denied and the action dismissed, which result respondent contends came as a surprise to him.

This court is fully cognizant of the fact that some cases come to trial sooner than others and that the time of preparation for a trial may differ from case to case. In this case all that the respondent has told this court, and that by answer tendered after it was due to be filed in this court, is that he had taken numerous depositions and in June, 1974, had filed a motion to have the case set for trial.

From the record it appears that the respondent is the County Attorney of Carter County, Kentucky, and has been elected to that office on three occasions. This court is also advised that heretofore respondent had served as a member of a disciplinary trial committee. Counsel for respondent suggests that respondent’s conduct reflects only on the manner in which he carried out his personal and private practice of law, not his proficiency in carrying out his duties as county attorney, and for that reason he should not be limited in his carrying out his duties as county attorney.

Be that as it may, we are faced squarely with the proposition that his personal and private clientele have suffered at his hands and his conduct is such that it cannot help but bring disrepute to the bar. This is not the only occasion wherein respondent is charged with conduct calculated to bring the bench and bar in disrepute. While this present proceeding was in process, another disciplinary action was in progress (Kentucky Bar Association v. Gary L. Littleton, No. SC-481-KB). In neither case did respondent file a timely answer or make response to the charges made against him. In the present case his answer was first filed on December 27,1977, which is 22 days after he was served with a show-cause summons issued from the office of the clerk of this court. It was 39 days after the opinion in the other disciplinary action against respondent (Opinion rendered November 18, 1977 — No. SC-481-KB). This court cannot help but equate the manner in which respondent defends himself in this disciplinary action and in the one in which the opinion from this court was handed down on November 18, 1977. There was no response made to the charges preferred against him, only his act of ignoring the charges until after he was made to understand the significance of his conduct by his suspension from the practice of his profession. Respondent, as County Attorney for Carter County, is an officer of the court and charged with a greater responsibility than the average practitioner. He must attempt to set a standard above the ordinary rather than below the ordinary.

It is the opinion of this court that the recommendations of the Board of Governors of the Kentucky Bar Association should be, and they are adopted. The respondent is suspended from the practice of law for a period of two years and required to pay the costs of this proceeding. The period of suspension in this action (SC-566KB) shall run concurrently with respondent’s suspension from the practice of law for a period of two years in SC-481-KB.

All concur except STEPHENSON, J., who did not sit.


text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. M. C. CLEM, Jr., Suspended Member of Kentucky Bar Association, Respondent.
    Supreme Court of Kentucky.
    Jan. 31, 1978.
    Leslie G. Whitmer, Director, Kentucky Bar Ass’n, Frankfort, for complainant.
    No attorney for respondent.
   PER CURIAM.

The respondent was convicted on November 8, 1977, in the Henderson Circuit Court on a plea of guilty to the offense of theft by deception of property of a value of less than $100. KRS 514.040. Respondent was sentenced to a jail term of three months and a fine of $100. There was no appeal from the conviction.

The offense for which respondent was convicted is a Class A misdemeanor. It is a misdemeanor which involves dishonesty within the meaning of RAP 3.320.

This conviction has been brought to the attention of this court by the president of the Kentucky Bar Association in accordance with RAP 3.320. No response has been filed. Further it appears that on July 1, 1977, this respondent was suspended from the practice of law in this Commonwealth for a period of two years. Kentucky Bar Association v. Clem, Ky., 554 S.W.2d 360 (1977).

We are of the opinion that, by this conviction, Clem has demonstrated his unfitness to continue as a member of the bar of this Commonwealth. The integrity of the profession and the ethical standards of the bar demand that dishonesty such as portrayed here be punished by permanent disbarment from the practice of law in this Commonwealth. Kentucky Bar Association v. King, Ky., 535 S.W.2d 83 (1975). Accordingly, we forthwith disbar the respondent and direct him to pay the costs of these proceedings.

It is so ordered.

All concur.


author: PALMORE, Chief Justice.

text:
    Ronnie Earl DAVIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 31, 1978.

      Edward C. Airhart, Schaefer & Airhart, Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for appellee.
   PALMORE, Chief Justice.

On our initial review of this case we affirmed the judgment of the Bullitt Circuit Court convicting Ronnie Earl Davis and sentencing him to 10 years in prison for having had carnal knowledge of a female under the age of 18 years, a felony punishable by imprisonment for not less than two nor more than 10 years. Davis v. Commonwealth, Ky., 545 S.W.2d 644 (1977). After granting certiorari, the Supreme Court of the United States vacated the judgment of this court and remanded the proceeding for further consideration in light of Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

In Brown, the defendant, having stolen an automobile in East Cleveland, Ohio, was arrested while driving it nine days later in Wickliffe, Ohio. The authorities at Wick-liffe caused him to be prosecuted and convicted for driving a motor vehicle without consent of the owner, a misdemeanor. In a separate proceeding thereafter he was convicted of auto theft, a felony, in Cuyahoga County (Cleveland). Though recognizing the misdemeanor of operating a motor vehicle without consent of the owner to be a lesser included offense within the crime of auto theft, the Ohio Court of Appeals upheld the felony conviction on the theory that driving the vehicle nine days later was a separate offense. The United States Supreme Court disagreed, observing that although “the Wickliffe and East Cleveland authorities may have had different perspectives on Brown’s offense, it was still only one offense under Ohio law.” 432 U.S. at p. 169, 97 S.Ct. at p, 2227. In holding that the felony trial violated the Double Jeopardy Clause of the Fifth Amendment the Supreme Court quoted from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as follows: “The applicable rule is that where the same act or transaction constitutes a violation of two distinct provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

“If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.” Brown v. United States, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

Davis transported Holly Payne, a 16-year-old girl, from Jefferson County into Bullitt County where, according to his own testimony, he had intercourse with her. He was tried in Jefferson County for the offense of detaining a woman against her will (a felony under KRS 435.110) and was acquitted. He was then tried in Bullitt County for the offense of having carnal knowledge of a female under the age of 18 years and was convicted.

According to the girl, Davis forced her at gunpoint to leave a parked automobile in which she had been sitting with another man and to get into Davis’ automobile. According to Davis, however, she willingly got into his car outside a night club in Jefferson County and accompanied him to a place in the country, where they parked. Soon after they got into Davis’ car a police vehicle drove up, and the officer looked at Davis’ driver’s license and then departed, following which Davis drove to a place in Bullitt County, where the intercourse took place. Despite the young lady’s testimony that she had been forced into Davis’ car, obviously the jury in Jefferson County was not convinced that if that were true she would have made no outcry to the police officer. So Davis was found not guilty of detaining her against her will.

It is here that we enter the never-never land of determining how many angels can stand on the head of a pin. We concede, as recognized in our first opinion, that Davis’ trial on the charge of detaining a woman against her will precluded a subsequent conviction for the greater offense of rape because, as indicated in Brown (432 U.S. at p. 168, 97 S.Ct. 2221), it makes no difference whether it is the greater or the lesser charge that is the first tried. In either event, the accused cannot thereafter be convicted of the other. We concede also that a trial on the charge of rape would have precluded a subsequent conviction for having carnal knowledge of a child under the age of 18 years, because under the law in effect at the time this case arose it was settled that carnal knowledge was a lesser included offense within the crime of rape. Cf. Prewitt v. Commonwealth, 248 Ky. 845, 60 S.W.2d 122 (1933); Gilley v. Commonwealth, 280 Ky. 306, 133 S.W.2d 67, 73 (1939); Merriss v. Commonwealth, 287 Ky. 58, 151 S.W.2d 1030, 1036 (1941); Carter v. Commonwealth, Ky., 307 S.W.2d 561 (1958). But it does not follow, we think, that simply because Davis could no longer be tried for rape he could not be tried for carnal knowledge. What, after all, really is the objective of the protection against double jeopardy? Brown itself suggests the reasonable answer:

“Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s benefit.’ . . . That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal . . . and from attempts to secure additional punishment after a prior conviction and sentence . .” Brown v. Ohio, at 432 U.S. 165, at 97 S.Ct. 2225.

The fundamental reason Davis cannot be tried for rape is that an essential issue embraced in that charge (force) has been litigated and he is entitled not to have it relitigated. Had he been charged with and tried for rape itself, rather than the lesser offense of detaining a woman against her will, the reason he would be protected against a subsequent trial for carnal knowledge is that one of the essential issues embraced in each of these two charges (intercourse) is the same, and he would be protected against having to litigate that issue twice. Considering, however, that a trial for the offense of carnal knowledge does not involve a relitigation of any issue necessarily presented by the charge of detaining a woman against her will, there is no sound reason for holding that one bars the other under the principle of double jeopardy. It is our opinion that the separate offenses of detaining a woman against her will and of having carnal knowledge of that same woman could be legally joined in one trial and result in consecutive sentences. As emphasized in our previous opinion, neither contains an element or is a lesser included offense within the other.

In reaching the foregoing conclusion we are not unmindful that the intent to have carnal knowledge is an essential element of the crime of detaining a woman against her will, and that the fact of subsequent intercourse would be admissible evidence of the intent with which the victim had been detained. However, the fact of intercourse is not an essential issue in a trial for detaining a woman against her will and is not requisite to a conviction of that offense. Conversely, neither is intent an element of statutory rape (carnal knowledge). That the fact of intercourse either may have been or actually was injected into a trial of the detaining offense as evidence tending to prove the essential element of intent does not, we think, make it one of the “facts underlying a prior acquittal” (or conviction) of that offense, and thus erect the barrier of double jeopardy against a trial for another offense in which the same evidence is indispensable to a conviction. Cf. Trowel v. Commonwealth, Ky., 550 S.W.2d 530, 532 (1977), holding that a directed acquittal of capital murder occurring in the course of rape did not preclude a subsequent conviction of simple murder (a lesser included offense) even though the fact of rape was used at the second trial as evidence of motive.

To bring this matter into sharper focus, here is a case in which the defendant admits having committed the offense of carnal knowledge but seeks to avoid conviction on the ground that he has been acquitted on the isolated charge of having acted without her consent, which of itself was utterly irrelevant to the question of whether he had carnal knowledge of the victim. As we understand them, the great protections contained in the Bill of Rights were put there for the purpose of preventing oppression and unfairness to the individual, and certainly not as handicaps to enhance the excitement of the contest. Where is the oppression, the unfairness, in this case? If there is any, we doubt that it could ever be explained to the general public, for whose satisfaction and by whose will, presumably, the Constitution exists.

Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), presents an entirely different question, and in this we concede error.

Price was tried for murder and found guilty of the lesser included offense of voluntary manslaughter. After the verdict had been set aside by reason of a trial error he was again tried for the same offense of murder, was again found guilty of voluntary manslaughter, and was sentenced to 10 years’ imprisonment. Under Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), his conviction of manslaughter at the first trial constituted an acquittal of the murder charge, so he should not have been retried for murder. The second conviction having been affirmed on appeal to the Georgia courts, the Supreme Court granted certiorari and reversed. Rejecting the argument that because Price had not been convicted of murder the second trial of that charge was harmless error (the same basis on which we affirmed Davis’ conviction of carnal knowledge though he had been improperly tried at the same time for rape), the Supreme Court said this:

“The Double Jeopardy Clause . is cast in terms of the risk of hazard of trial and conviction, not of the ultimate legal consequences of the verdict. To be charged and to be subjected to a second trial for first-degree murder is an ordeal not to be viewed lightly. Further, and perhaps of more importance, we cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue to debate his innocence.” Price v. Georgia, at 398 U.S. 331, at 90 S.Ct. 1762.

Likewise it is in this case. Having been acquitted of a crime that was an essential element of the rape charge, Davis could not be tried for rape, and we cannot determine whether the trial of that charge induced the jury to find him guilty of the alternative offense of carnal knowledge. He therefore is entitled to be tried on the carnal knowledge count alone, unalloyed with the rape and detaining charges..

The judgment is reversed with directions that the appellant be granted a new trial solely on the charge of carnal knowledge.

All concur.


author: VANCE, Judge:

text:
    Patricia Ann HERRING, Individually and as next friend of Karla Diane Herring, a minor, Appellant, v. Jo Ann Bolton MOORE, Executrix, etc., Appellee. Jo Ann Bolton MOORE, Executrix, etc., Cross-Appellant, v. Patricia Ann HERRING, Individually, etc., Cross-Appellee.
    Court of Appeals of Kentucky.
    Aug. 5, 1977.
    Rehearing Denied Feb. 10, 1978.

      W. Pelham McMurry, Paducah, for appellant.
    Michael R. Tilley, Charles A. Williams Associates, Paducah, for appellee.
    Before HOGGE, VANCE and WINTER-SHEIMER, JJ.
   VANCE, Judge:

The primary question presented by this appeal is whether, under the circumstances of this case, the death of Ted F. Herring terminated, by operation of law as of the date of his death, his obligation to make payments for the support of his infant adopted daughter. The trial court held as a matter of law that the payments terminated upon his death. We reverse.

Ted Herring and his wife, Patricia Herring, entered into a separation agreement on December 8, 1971 which provided that the husband would pay to the wife for the maintenance, support and education of the parties’ infant child, the sum of One Hundred Fifty Dollars ($150.00) per month to continue until said child attains the age of eighteen years or becomes emancipated, whichever occurs first. The divorce judgment incorporated the terms of the contract.

Ted Herring died in December, 1974 at which time his infant daughter was only twelve years old. His will bequeathed to her the sum of $10.00 and directed that sum to be the only amount paid to her out of his estate.

Patricia Herring, on behalf of her daughter, petitioned the court to commute the future child support payments to a lump sum pursuant to KRS 403.250(3). The ap-pellee responded that: (1) child support payments should be revoked due to changed circumstances; (2) no need could be shown for commutation to a lump sum; and (3) KRS 403.250(3) is unconstitutional. KRS 403.250(3), which became effective after the agreement was signed but before the judgment was entered, provides that:

“Unless otherwise agreed in writing or expressly provided in the decree, the provisions for the support of a child are terminated by emancipation of the child but not by the death of the parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted, to a lump sum payment, to the extent just and appropriate in the circumstances.”

The case was tried on a stipulation of facts wherein it was agreed that Ted Herring made the payments required by the contract and the judgment until he died; that the daughter presently resides with her mother who has not remarried; that the daughter is an eighth grade student who has no estate of her own; that the mother is self-employed and has adequate resources to support the child, and that Ted Herring left a net estate of approximately $64,000.00. Under the terms of his will, all except for $10.00 of his estate would pass to Jo Ann Bolton Moore who qualified as the executrix of his estate. As a result of Ted Herring’s death, the Social Security Administration pays to Patricia Herring the sum of $259.50 per month for the use and benefit of the infant daughter.

On December 31, 1975 judgment was entered holding that $1,800.00 in child support payments had accumulated to that time and should be paid from the estate and the future payments should be commuted to a lump sum as provided in KRS 403.250(3).

Within 10 days a motion was filed to amend the judgment pursuant to CR 52.02. By reason of the general election of November, 1975, a different judge occupied the bench when the motion was heard. The motion was granted upon the ground that the right of the child to receive child support was based upon a contract devoid of any expression of an intention of the parties that payments would continue beyond the lifetime of Ted Herring. The chancellor concluded therefore that the obligation for child support ceased as of the date of the death of Ted Herring. The judgment, as amended, absolved the estate of Ted Herring from further liability for child support.

The first attack made on the judgment is that a successor judge is without authority to reverse a decree of his predecessor on a motion to amend judgment, citing 48 C.J.S. Judges § 56, page 1021 and 20 A.L.R.Ped. pages 16-18.

There is ample authority for the proposition that a successor judge should use the greatest restraint and caution in reversing the judgment of a predecessor.

This concept was well expressed in U. S. v. First National Bank and Trust Co. of Lexington, 263 F.Supp. 268 (E.D.Ky., 1967) by Judge Swinford as follows:

“ . . . For a judge of coordinate jurisdiction to reverse a judgment of a fellow judge who tried the case, saw and heard the witnesses testify and recorded his findings and conclusions, both of law and fact, in a lucid opinion, is to do disservice to the law and create disrespect for it. There must be an end to litigation and I can well understand why lay people would be thoroughly confused if a question of law at nine o’clock was decided by one judge and at ten o’clock the same question in the same case was decided to the contrary by another judge from the same bench. While there may be instances in which such a reversal would be justified, this is not one of them. Such a legal prerogative is questionable under any circumstance and I personally hold to the view that the law would be best served if reviews of decisions of trial judges were limited to appellate tribunals.
Notwithstanding my personal view of the matter, I recognize that a judge of coordinate jurisdiction does have the power to reexamine a prior decision of a fellow judge where there is a patent error. I find no such error in this record. A succinct statement of the law on this subject is found in the following quotation from the opinion in the case of In re Carmona, D.C., 224 F.Supp. 497.
It is also expressed in the many cases which hold that ‘judges of co-ordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other,’ except in the most unusual circumstances. TCF Firm Corp. v. Gourley, 240 F.2d 711 (3d Cir. 1957). See, United States v. Wheeler, 256 F.2d 745 (3 Cir.), cert. denied, 358 U.S. 873, 79 S.Ct. 111, 3 L.Ed.2d 103, rehearing denied, 358 U.S. 913, 79 S.Ct. 229, 3 L.Ed.2d 234 (1958), and Carnegie Nat. Bank v. City of Wolf Point, 110 F.2d 569 (9th Cir. 1940). A further expression of this concept is found in the rule that where a judge had decided the effect of a particular document or transaction, a judge of co-ordinate jurisdiction should not, even in an entirely separate case, decide that the same document is of a different effect. See e. g. United States v. Citizens National Trust and Savings Bank, 166 F.Supp. 410 (S.D.Cal.1958), affirmed, 270 F.2d 128 (9th Cir. 1959).’”

Although a successor judge should exercise extreme caution in undertaking to review a judgment of his predecessor on a timely motion to amend, we hold he does have that authority. Kentucky has long adhered to the prevailing view that a successor judge may, upon timely motion or sua sponte, complete the uncompleted acts of a predecessor. Jackson v. Commonwealth, Ky., 445 S.W.2d 835 (1969); Golden v. Grace Faith Tabernacle, Ky., 424 S.W.2d 829 (1968). The court is an entity, not a person, and when one judge is replaced by another, whether the reason be death, disability, election or otherwise, the new judge is empowered to carry on the business of the court to the same extent as his predecessor, had he remained on the bench.

It is settled that a trial judge who has entered findings, conclusions and judgment can, upon timely motion, change his mind and enter new findings, conclusions, or judgment directly opposite to those first entered. Department of Human Resources, Commonwealth of Kentucky v. Moore, Ky., 552 S.W.2d 672, rendered April 8, 1977; Carpenter v. Evans, Ky., 363 S.W.2d 108 (1962). We see no reasonable basis for holding that a successor judge is without power to take an action which would have been appropriate by his predecessor.

We think, however, the amended judgment is erroneous. It absolves the estate of Ted Herring from further liability for child support payments on the ground that the obligation for such payments terminated as a matter of law at his death.

It is true that a contract for child support entered into prior to the enactment of KRS 403.250(3) is a personal obligation which terminates at death in the absence of expression of an intention that the support shall continue beyond the death of the obligated party. We need not consider here the applicability of KRS 403.250(3) because the contract for support and the judgment each specify that the payments shall continue until the child reaches her eighteenth birthday, unless sooner emancipated.

Shepherd v. Shepherd, Ky., 521 S.W.2d 74 (1975) is controlling. Although it related to maintenance for the wife rather than support for a child, the principle is the same. When a contract for maintenance or child support specifies that payments shall continue for a fixed period or until the happening of a contingency, the payments do not terminate as a matter of law with the death of the obligor.

The appellee filed a cross-appeal by which it sought a review of the correctness of the first judgment that was entered and later amended by the entry of the judgment appealed from. We are not cited authority for such a procedure. A cross-appeal can only be taken from a judgment. CR 74. The document cross-appellant seeks to have reviewed was amended pursuant to a timely motion and therefore never became a final judgment. For this reason the cross-appeal is dismissed.

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

ALL CONCUR.


author: LESTER, Judge.

text:
    CARMICHAEL-LYNCH-NOLAN ADVERTISING AGENCY, INC., and Tony Nolan, Appellants, v. BENNETT & ASSOCIATES, INC., Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.
    As Modified Nov. 2, 1977.
    Rehearing Denied Feb. 10, 1978.

      John F. Rogers, Nold, Mosley, Clare & Rogers, Louisville, for appellants.
    William A. Miller, Leslie D. Aberson, Washer, Kaplan, Rothschild, Aberson, Miller & Dodd, Louisville, for appellee.
    Before HAYES, HOGGE and LESTER, JJ.
   LESTER, Judge.

On July 5, 1972, Bennett & Associates, a Kentucky Corporation, brought suit against Carmichael-Lynch-Nolan Advertising Agency, a Missouri Corporation, and Tony Nolan, a resident of Missouri, for intentional interference in the contractual relationship Bennett had formed with Woodson Bend, Inc. Bennett notified the out of state defendants by service of process on the Secretary of State under KRS 454.210. C-L-N and Nolan, in their answer, asserted that the court did not have jurisdiction over them; however, the court overruled their motion to quash the summonses. C-L-N then counterclaimed for a portion of the fees Bennett collected from Woodson Bend. The court having heard the proof without a jury awarded Bennett a total of $27,070.00 for the years 1972 and 1973 subject to a credit of $813.92 for fees owed by Bennett to C-L-N and retained the case on the docket should any damages arise in 1974. Counsel did not deem it necessary to have the testimony transcribed.

Appellants continue to challenge the court's jurisdiction over them. The appellants’ other main points of contention center on whether the court incorrectly applied the legal standard of intentional interference wit£- contract rights and committed clear error in its findings of fact.

We summarize the trial court’s recital of the facts as follows.

In March of 1971, Woodson Bend engaged Bennett & Associates by oral agreement to conduct advertising and public relations in preparation for the opening of Woodson Bend Resort Club at Lake Cumberland. For this work, Bennett received payment of $12.50 per hour, one half of its usual fee. This reduction reflected the understanding that Bennett would do the advertising and public relations for the project for a period of three to five years.

William Clarkson, III, the Vice-President of Woodson Bend, had sole responsibility for advertising and public relations. Clark-son had dealt with Tony Nolan of Carmichael-Lynch-Nolan Advertising Agency in a similar venture which proved unsuccessful and caused Nolan a loss. Out of this prior contact, Clarkson felt some obligation to Nolan. Clarkson informed Tevis Bennett of Bennett Associates that C-L-N would handle a portion of the advertising. '

On February 9, 1972, Woodson Bend entered into a contract with the firms of Bennett and C-L-N concerning the total advertising and public relations program which Bennett and C-L-N agreed to carry out as a joint venture. The contract made a general division of duties putting Bennett in charge of media placement, public relations, publicity, printing and client billing while C-L-N would take care of copywriting for radio, television and newspapers, production for radio and television, newspaper artwork and collateral material design. They would make a combined effort in other areas. For their efforts, they would get $600.00 per month for public relations and payment for advertising work at a schedule of rates which came to approximately 15% of the advertising budget. They would share all compensation equally.

The relationship worked smoothly for about three months. Bennett arranged the placing of advertising and reserved prime time radio and television spots. However, it appears Nolan became dissatisfied. At the end of April, Nolan met with Clarkson and George Brown, President of Woodson Bend, at Clarkson’s home. During this meeting, Nolan induced Woodson Bend to release C-L-N from the contract of February and allow it to do all the advertising work. They agreed that Bennett could bid on the public relations aspect. The meeting occurred without Bennett’s knowledge. Nolan called Tevis Bennett and told him he should talk to Clarkson. When Clarkson informed Bennett of the new arrangement, Bennett considered himself out of the operation. On May 5th, C-L-N sent Bennett a letter notifying Bennett that C-L-N had withdrawn from the agreement to take care of all the advertising because of economic reasons. Bennett later received a conference report from C-L-N which indicated the occurrence of the meeting and its outcome.

Nolan stated that C-L-N desired to drop the joint venture due to Woodson Bend’s reduction of its advertising budget to $80,-000.00. However, the actual advertising budget for 1972 turned out to be $142,-000.00,15% of which went to C-L-N in fees. The budget and the fees remained the same for 1973. In 1974, Woodson Bend provided C-L-N with a retainer of $2,000.00 per month.

The appellants had sufficient contacts in Kentucky to bring them within the jurisdiction of the trial court. The parties executed the contract in Kentucky. Although C-L-N may have done a good deal of the preparation for the advertising outside of the Commonwealth, the great bulk of the material was designed for dissemination in Kentucky. Also the meeting at which Nolan, on behalf of C-L-N, induced the breach occurred in Kentucky. The alleged tortious interference in Kentucky of contract rights created and to be performed in Kentucky comes within the bounds of KRS 454.210(2)(a)3, “[cjausing tortious injury by an act or omission in this Commonwealth” and therefore subjected the appellants to the jurisdiction of the court below.

Appellants’ attack on the trial court’s findings of fact must fail. After the trial, they attempted to interject testimony of Clarkson into the record by affidavit. The Supreme Court, by order entered January 21, 1976, struck this affidavit from the record. Consequently, we cannot consider it. Because we have neither a transcript of testimony nor a condensed statement in narrative form of the testimony provided for by CR 75.03, we have to assume that the evidence supported the findings of the lower court. Porter v. Harper, Ky., 477 S.W.2d 778 (1972). The discovery depositions contained in the record do not take the place of the narrative statement since we have no way of knowing whether the witnesses changed their testimony before the court.

Appellants’ argument of inconsistency in the lower court’s findings has no merit. The court made findings of fact and conclusions of law on May 31st. On June 3rd, the court again made findings of fact and conclusions of law. The appellant attempts to set out conflicts between the two. We need only point to CR 52.02 which states in part

[n]ot later than 10 days after entry of judgment the court of its own initiative may amend its findings or make additional findings and may amend the judgment accordingly.

We attach no relevance as to who actually drafted what findings of fact or which conclusions of law.

A party damaged by interference with his contract rights can recover even though he cannot establish fraud or coercion or a master servant relationship. Derby Road Building Co. v. Commonwealth, Ky., 317 S.W.2d 891 (1958) and Coca-Cola Botling Works v. Hazard Coca-Cola Bottling Works, Ky., 450 S.W.2d 515 (1970) indicate a change in the law since Brooks v. Patterson, 234 Ky. 757, 29 S.W.2d 26 (1930). Walt Peabody Advertising Service, Inc. v. Pecora, D.C., 393 F.Supp. 328 (1975) contains an excellent analysis of the transition. Dictum in Brooks, supra, 234 Ky. at 762, 29 S.W.2d at 28 stated “[o]nly those who are parties to or in some manner bound by the contract are liable for breach thereof, although the third party may have been actuated by malicious motives.” However, a closer reading reveals that an action would lie if the defendant procured the breach by deception or coercion or caused a severance of the master servant relationship. The departure came in Derby Road Building Co., supra, overruled on other grounds in Foley Construction Co. v. Ward, Ky., 375 S.W.2d 392, 396 (1963). Of interest to us is Derby Road Building’s appeal from an unfavorable summary judgment in its suit against utility companies whose failure to remove their installations Derby claimed caused a delay which under its contract resulted in its liability for liquidated damages. The court affirmed but wrote the following at 895:

Ordinarily only those who are parties are liable for the breach of contract, and the parties cannot impose any liability upon a stranger to the contract under its terms. As strangers to this contract, the utility companies could be held liable only for having wrongfully procured or induced the Department of Highways not to perform its contract. Such liability is predicated upon an intentional interference, malicious or without justification with known contractual rights possessed by the party suing to recover damages therefor.

Unfortunately, the court referred to Brooks v. Patterson, supra, and authorities cited therein as standing for this proposition. But juxtaposed with Brooks v. Patterson, supra, the court cited Restatement, Torts, § 766. Coca-Cola Bottling Works, supra, again recognized the tort, but found that no substantive evidence showed an inducement to cancel the contract. We feel confident that Brooks v. Patterson, supra, no longer governs and that the Restatement of Torts § 766 presents the correct guidelines. § 766 provides,

[e]xcept as stated in Section 698, one who, without a privilege to do so, induces or otherwise causes a third person not to
a) perform a contract with another, or
b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.

The lower court could reasonably conclude Nolan and C-L-N not justified in persuading Woodson Bend to permit C-L-N to handle all the advertising to the exclusion of Bennett.

Damages in this case should not exceed Bennett’s lost profits. It appears that the court awarded Bennett the fees it would have received without taking into account its cost. We reverse only so that damages can be recomputed.

The discussion in Orr v. Coleman, Ky., 455 S.W.2d 59 (1970) of apportionment between joint tort-feasors relates only to jury trials.

The judgment is reversed in part and affirmed in part.

All concur.


author: GANT, Judge.

text:
    ATHENS CHRISTIAN CHURCH OF ATHENS, Kentucky, Charles Baesler, Homer Turner, S. B. Kelley, Edward Guilfoil, and Douglas Guilfoil, Trustees of Athens Christian Church of Athens, Kentucky, Appellants, v. John H. STEVENS, Jr., Lisa Lane Rice, William K. Rice, Jr., Carter McLeod Rice, the Unborn Issue of John H. Stevens, Jr. Born after February 24, 1943, Henry L. McLendon, White, McCann & Stewart, Saco, Inc., Robert L. Gullette, Individually and as Warning Order Attorney for the Unborn Issue of John H. Stevens, Jr. Born after February 24, 1943, Robert Walker, Individually, and as Guardian ad litem for Lisa Lane Rice, William K. Rice, Jr., and Carter McLeod Rice, and William K. Rice, Statutory Guardian for Lisa Lane Rice, Appellees.
    Court of Appeals of Kentucky.
    Nov. 18, 1977.
    As Modified On Denial of Rehearing Feb. 10, 1978.
    Frank S. Ginocchio, Lexington, for appellants.
    White, McCann & Stewart, Winchester, for appellees, John H. Stevens, Jr. and White, McCann & Stewart, and Henry L. McLendon.
    Brown, Sledd & McCann, Lexington, for appellees, Robert Walker, individually, and as guardian ad litem for Lisa Lane Rice, William K. Rice, Jr. and Carter McLeod Rice.
    Robert L. Gullette, Nicholasville, for ap-pellees, the unborn issue of John H. Stevens, Jr., and Robert L. Gullette.

      Julius E. Rather, Lexington, for appellee, Saco, Inc.
    Before GANT, HOWERTON and WHITE, JJ.
   GANT, Judge.

This is a many faceted case involving judicial approval of a private sale. The matter begins with the will of Lillie Sharp Stevens, who died July 21, 1943, and who devised certain property in the following manner:

ITEM III. I give and devise my farm in Jessamine County, Kentucky on the Lexington-Nicholasville Road and such other farm or farms as I may own at the time of my death to my son, JOHN H. STEVENS, JR., for and during his natural life, and with the remainder in fee simple to the issue of my said son as shall be born hereafter, share and share alike, but if my said son does not leave a living issue, born after the date of this writing, surviving him, then, in that event, and if my husband, JOHN H. STEVENS, SR. of Fayette County, Kentucky, survives my said son, I give and devise said farm and such other farm or farms that I may own at the time of my death, to my said husband, for and during his natural life, with remainder in fee simple to the Trustees of the Athens Christian Church of Athens, Kentucky. Should my said husband predecease my said son, and if my said son leaves no living issue, which shall hereafter be born, surviving him, then, in that event, at the time of his death, I give and devise the said remainder estate in said farm and such other farm or farms that I may own at the time of my death, to the Trustees of the Athens Christian Church of Athens, Kentucky, in fee simple. I hereby request that my son provide a home for my husband as long as he lives. My son shall have the privilege of selling my said farm in Jessamine County, Kentucky, and such other farm or farms that I may own at the time of my death, upon such terms, provisions or conditions as he deems best and without authorization, consent or approval of any other person or tribunal, provided, however, that the proceeds from said sale shall be invested by him in other real estate, subject to the limitations, provisions and terms of this item of my will.

The son of the testatrix, John H. Stevens, Jr., violated the terms of the will in 1947 by conveying one of the farms placed in trust and failing to invest the proceeds under the terms thereof. Thereafter, a suit was filed in the Jessamine Circuit Court, which court entered a judgment divesting the appellee of any right, power or authority to sell or convey the other farm and requiring court approval of any future sale. The farm in question in this action is a 125-acre tract situated on the Lexington-Nicholasville Pike in Jessamine County, Kentucky, about one to one and one-half miles south of the Fayette County line.

In January, 1972, Saco, Inc. submitted an offer to Stevens, the life tenant, to purchase the 125-acre farm for $200,000. This offer was apparently made through one Henry L. McLendon, who is a cousin of Stevens and who obtained a Power of Attorney from Stevens at a time when he was in the penitentiary in Eddyville. This offer, in pertinent part, was as follows:

1. We have deposited with White, McCann & Stewart, attorneys of Winchester, Kentucky, the sum of $100.00 as a good faith binder to be applied towards the purchase price as hereinafter set forth or to be refunded to us if this offer is not accepted or if the unencumbered fee simple title to said property, subject only to existing utility easements, public roads, and a lease thereon, is not conveyed to us or our assigns prior to July 10, 1972.
2. It is understood that if the offer is accepted by John H. Stevens, Jr. as life tenant, it will be necessary to file or redocket an action in the Jessamine Circuit Court to secure approval of the contract and the execution of a proper deed. This offer shall continue in effect until January 17, 1972, for acceptance by the life tenant. If so accepted within said period of time, it is understood that the execution and Court approval of the deed will be obtained as soon as is reasonably possible thereafter, and in any event not later than July 10, 1972. When accepted by the life tenant, we will deposit an additional $9,900.00 with the attorneys above, as additional good faith binder to be held or returned as provided in paragraph 1.

The offer further provided that the realtor/cousin/Attorney-in-Fact receive a commission of 8% ($16,000.00), that payment be made in ten equal annual installments, and contained other provisions.

The lower court entered judgment approving the sale and adjudicating certain other points raised by the appellee and others, and it is from that judgment that an appeal was taken.

Many issues were raised on this appeal, only two of which will be considered here. The first is the offer, which had expired under its own terms. The offer provided for two acceptances, the first by the life tenant which had to be made within seven days of the date of the offer and which acceptance was apparently received. The offer provided that, upon receipt of that acceptance, the offeror would deposit an additional $9,900.00 with the attorneys for the life tenant. There was absolutely no proof that this $9,900.00 had ever been deposited, although the life tenant, in his deposition, stated that it was his understanding that some sum had been deposited.

The second acceptance was required by “Court approval of the deed . . not later than July 10, 1972.” The complaint was filed in this action on May 1, 1972, when only approximately six weeks remained on the offer. An amended complaint was filed February 2, 1973, over six months after the offer had expired. The judgment was entered January 21, 1975, over two and one-half years after the offer had expired.

The sole proof in this action was the deposition of an appraiser, who stated that $200,000, under the circumstances, was the fair market value of the land in question. The other deposition was a rather jumbled and inconclusive deposition of the life tenant. There was not one scintilla of evidence that the offer had ever been amended or extended. Thus, the effect of the judgment was to permit an offer to sell, not to accept an evaporated offer. It is beyond the power of the court under KRS 389.030 to approve an offer. The function of the court thereunder is to approve a sale pursuant to a binding offer, not to try to breathe life into a dead offer. The judgment of the court in approving a sale “in accordance with the terms and conditions of said contract” when there was no contract is obviously a nullity.

Additionally, KRS 389.030 provides that the court may authorize the consummation of a private sale provided “the chancellor finds the terms and price satisfactory.” In the instant case, there was certainly sufficient evidence for the chancellor to find the “price” satisfactory but there was a total absence of evidence concerning the “terms” of the contract. In the instant case, the contingent remaindermen were infants and a church. The offer was made to a life tenant who had previously abused his trust through a cousin who conveniently wrote himself into the contract for an 8% real estate commission, admittedly 2% to 3% higher than the rate customarily charged in this county. This was not a case in which the offeror had made arrangements for financing through a reputable agency, but the life tenant and the remaindermen were required to finance some 80% of the purchase price. Under these circumstances, there was an obligation on the part of the court, pursuant to repeated requests by the contingent remaindermen, to investigate the solvency and financial condition of the offeror to determine that the terms and conditions of the offer could be met and performed by the offeror. In the absence thereof, there was a breach of duty by the chancellor.

Accordingly, the judgment herein is reversed and the circuit court is directed to enter judgment dismissing the action.

All concur.


author: COOPER, Judge.

text:
    Ralph HILL, Appellant, v. Harold D. GARNER and Glenda Garner, Deana Chrie Hill, an infant, Kentucky Department of Human Resources, Bureau for Social Services, Appellees.
    Court of Appeals of Kentucky.
    Dec. 16, 1977.
    Rehearing Denied Feb. 10, 1978.
    Gary Haverstock, Hughes, Gregory & Haverstock, Murray, for appellant.
    Jo Hern Curris, Hurt & Christopher, Murray, for appellees.
    James Overby, Murray, Guardian Ad Li-tem.
    Before COOPER, HAYES and HOWER-TON, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Calloway Circuit Court in favor of the ap-pellees, Harold D. Garner and Glenda Garner. Harold D. and Glenda Garner filed a petition in the circuit court for adoption of the infant child, Deana Chrie Hill, on December 29, 1975.

After submission of memoranda, judgment was entered on December 1, 1976, dismissing the allegations of the appellant, Ralph Hill, for lack of standing since his rights had been previously terminated. The court also consolidated Civil Action File No. 3683 and Adoption File No. 255 in order that the records of both files would be made available for appeal. A motion for new trial by the appellant, Ralph Hill, was timely filed and overruled.

On December 7, 1971, judgment was entered in the Fulton Circuit Court whereby Mary Frances Hill was granted an absolute divorce from Ralph Hill and restored to all the rights and privileges of an unmarried person. On October 4, 1973, Mary Frances Hill was murdered by Ralph Hill leaving three (3) children: Jacqueline Ellis and Johnnie Ray Ellis by a prior marriage, and Deana Chrie Hill, age nine (9) months, a child born out of wedlock.

On November 1, 1973, Ralph Hill, a former husband of Mary Frances Hill, submitted a Petition Ex Parte stating that he was the only surviving parent of the infant, Deana Chrie Hill; and unable to provide proper parental care for said infant due to the fact that he was incarcerated in the county jail in Murray, Kentucky, charged with a felony. The felony referred to being the shooting death of his former wife, Mary Frances Hill, mother of the infant Deana Chrie. Subsequently, Ralph Hill was sentenced to fifteen (15) years at the state penitentiary for Manslaughter. The petitioner relinquished all parental rights to Deana Chrie Hill and indicated he was willing and anxious for Jimmy Rutland and his wife, Martha Rutland, sister of Ralph Hill, to adopt said infant. Judgment was entered by the Calloway Circuit Court on November 9, 1973, terminating the parental rights of the petitioner in and to the infant, Deana Chrie Hill.

At the time of the demise of Mary Frances Hill, her three (3) children were in the care of her sister, Glenda Garner, who immediately by motion to the court, moved that the judgment of November 9th, be vacated and she be permitted to intervene in this cause of action noting that at the time of death of Mary Frances Hill, she was not married to Ralph Hill; and at the time of the birth of the infant child, Deana Chrie Hill, she was not married to Ralph Hill.

By affidavit, Glenda Garner then stated that she was willing, able and anxious to have the care and custody of the infant child, Deana Chrie Hill, along with the other two (2) children; that adequate facilities were available; that she was a suitable individual to care for the children; and most importantly, that it would be in the best interest of all the children belonging to the deceased, Mary Frances Hill, to remain in one household. An order was entered on August 9, 1974, in the Calloway Circuit Court ordering and directing that Glenda Garner be granted the permanent custody of the three (3) children of the deceased, Mary Frances Hill. The order did not vacate the judgment rendered by the Callo-way Circuit Court on November 9, 1973.

Since that time, Ralph Hill, Jimmy Rut-land and his wife, Martha Rutland, have by various motions attempted to vacate the order entered on August 9, 1974, and enter into the proceedings.

The order of August 9, 1974, was followed on December 29,1975, with a Petition for Adoption by Harold D. Garner and wife, Glenda Garner, to which Ralph Hill responded with a Motion to Dismiss and Answer. He alleged that the consent for adoption was not gained from the natural parent Ralph Hill, and that the petition did not plead or set out the grounds for termination of parental rights as required by KRS 199.600. Also, he alleged that if voluntary consent is not received from the natural parent, involuntary termination, as provided by KRS 199.600, is necessary.

The appellees, Harold D. Garner and Glenda Garner, responded that it was unnecessary to plead the grounds for termination due to the fact that the natural mother is deceased, and the appellant did not fall within the category outlined in KRS 199.-480(3) as a necessary party defendant.

On December 1, 1976, the court entered Findings of Fact, Conclusions of Law and Judgment stating that Ralph Hill had voluntarily terminated his parental rights as to the infant child, Deana Chrie Hill. The judgment was declared final and appeala-ble.

On December 9, 1976, motion to alter, amend and vacate the judgment was made by the appellant, Ralph Hill, pursuant to CR 59.05 on the grounds that the voluntary termination relied upon by the court was ineffective. On December 16, 1976, said motion was overruled.

While a number of questions have been raised by both sides in this case, we believe the main issue is:

WHETHER THE PARENTAL RIGHTS OF A PARENT, ONCE VOLUNTARILY TERMINATED AND JUDGMENT ENTERED, CAN BE RESTORED.

If this question is answered in the negative, then all other questions raised become moot.

KRS 199.620, Voluntary Termination of Parental Rights, states that:

(1) . . . if paternity is established in legal action or if an affidavit is filed stating that the affiant is father of the child, the father may present to the judge of any circuit court of this state a written petition setting forth facts alleging that such parents or parent as the case may be (a) is unable to provide proper parental care for such child, and (b) is willing to relinquish all parental rights to such child, and alleging . . some suitable person is willing to accept the care of the child.
(3) . . . if it is proved to the satisfaction of the court that termination of parental rights and commitment to the suitable person will be for the benefit of the child, the court may order the child to be so committed and the parental rights of the natural parents terminated. (Emphasis added)

KRS 199.630(2) specifically speaks as to the status of parties after termination:

(2) . . . where parental rights have been terminated pursuant to KRS 199.600 to 199.620, all legal relationships between the parents and child shall cease to exist, the same as if the relationship of parent and child had never existed, except that the child shall retain the right to inherit from its parents under the laws of descent and distribution.

The court outlined the purpose and stringency of this position in the case of Commonwealth, Department of Child Welfare v. Helton, Ky., 411 S.W.2d 932, 934 (1967); in which the court spoke accordingly:

The order of the Pike Circuit Court terminated the parental rights of Mrs. Hel-ton. Nothing has occurred which could be held to have legally restored those rights. So long as that order remains in force, Mrs. Helton stands at bar as a stranger to the child from a legal point of view. . . . Although we are fully mindful of the claims which may be made in behalf of a mother’s rights to her child, we are equally aware of the salutary purpose underlying the laws of adoption. Occasions do arise when parents realize the unhappy necessity of their surrendering parental rights sometimes involuntary (as prescribed by KRS 199.600) and sometimes voluntarily (as prescribed by KRS 199.620). The entire adoption program would be utterly frustrated if judgments terminating parental rights were to be lightly regarded. The prospective adoptive parents, the Department, and indeed the parents whose rights have been terminated would have no assurance of when or if an adoption could be effected if the termination were regarded as revocable. That this condition would militate against the best interests of the child and the public at large hardly needs elaboration.

The appellant, Ralph Hill, assuming he was the legal parent of the infant, Deana Chrie Hill, presented to the Calloway Circuit Court his petition and affidavit as outlined by the statute. He was granted his request, the termination of parental rights to the named infant. The trial court, after reviewing these documents obviously decided Ralph Hill had complied with the basic requirements of KRS 199.620 and entered judgment.

We believe the decision of the trial court to be correct and that the parental rights of the appellant were terminated.

The judgment is affirmed.

All concur.


author: FINCH, Judge.

text:
    In the Matter of the ESTATE of Ida A. ARMACK, Deceased, Derbin Fleming, Executor, Respondent, v. STATE of Missouri, Appellant.
    No. 59606.
    Supreme Court of Missouri, En Banc.
    Feb. 8, 1978.
    John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for appellant.
    Max B. Benne, Mound City, for respondent.
   FINCH, Judge.

The State appeals from a judgment affirming the assessment of inheritance tax in the Estate of Ida A. Armack, deceased. We have jurisdiction because construction of the revenue laws of the state is involved. Art. V, § 3, Mo.Const.

This case was submitted in the circuit court on an agreed statement of facts. Only two questions are presented on appeal. The first is whether a bequest to a cemetery to be used for the care and maintenance of the graves of certain members of decedent’s family is exempt from inheritance tax. The second question is whether various devises to a husband and wife are to be taxed to them separately or whether the devises are to be taxed singly to the married devisees as tenants by the entirety.

The inheritance tax appraiser in the probate court recommended that no tax be assessed on the devise in trust to the officers of the Mound City Cemetery on the basis that it was a charitable trust and, hence, exempt from inheritance tax under §§ 145.090(1) and 145.100.1. He recommended that taxes on the devises under the Ninth, Tenth and Twelfth clauses of the will be assessed to the husband and wife for purposes of inheritance tax as separate gifts to each of an undivided one-half interest in the real estate rather than as a gift to the tenants by the entirety as a single unit. These recommendations were followed by the probate court and the inheritance tax was assessed accordingly. On appeal by the State to the Circuit Court of Holt County, the judgment of the probate court was affirmed.

Bequest to Maintain Cemetery Lots

The bequest to the Mound City Cemetery is not exempt from inheritance tax under §§ 145.090(1) or 145.100.1 because it creates a private rather than a charitable trust. The nature of a bequest very similar to the one we consider was addressed by this court in Earney v. Clay, 462 S.W.2d 672 (Mo.1972). In that case the testatrix had left the residue of her estate in trust to the county court “for the purpose of the perpetual care and maintenance of my gravesite, and the gravesite of my husband, Frank Clay, and the gravesite of the Clay family located in the Liberty Cemetery which is situated near Steelville, Missouri. . The bequest was attacked as a violation of the rule against perpetuities. The court recognized that if the bequest was considered charitable it would not be subject to the rule against perpetuities. The court determined that the trust was not for a charitable purpose and would be subject to the rule against perpetuities unless specifically exempted by statute, the issue upon which the case was ultimately resolved. In its analysis of whether the bequest was one in trust for a charitable purpose, the court held, at 673:

“We are not informed whether the Liberty Cemetery is public or private, but in either event the cemetery as such is not the beneficiary of the trust. The income is to be spent for the improvement and maintenance of only certain graves therein. In the absence of a statute, a bequest for the perpetual care and improvement of individual burial lots is not a bequest for a charitable purpose and is void as a perpetuity. Clark v. Crandall, 319 Mo. 87, 5 S.W.2d 383; 14 C.J.S. Charities § 14; 15 Am.Jur.2d, Charities § 83; Annot., 47 A.L.R.2d 623. ...”

The court then determined that under § 214.140 a trust for the maintenance of graves was exempted from the rule against perpetuities by statute. However, it is clear that the court reached the question of the application of § 214.140 only after it had held that the bequest there involved was not charitable.

In Stewart v. Coshow, 238 Mo. 662, 142 S.W. 283 (1911), decedent’s will left property to trustees to establish and maintain a cemetery for the benefit of testator’s “large circle of friends and relatives.” The will did not spell out or limit who constituted the circle of friends and the court concluded that the bequest was for the benefit of an indefinite number of persons and was to establish a public rather than a private cemetery. As such, the court held that it qualified as a bequest for a charitable purpose. That case is not authority for holding that the bequest to the Mound City Cemetery created a public trust.

Respondent also seeks to justify the exclusion from inheritance tax of the bequest under clause Fifth on the basis that it is exempt under Art. X, § 6, of the Missouri Constitution as amended in 1972. The relevant portion of that section provides:

“All property, real and personal, of the state, counties, and other political subdivisions, and nonprofit cemeteries, shall be exempt from taxation . . . .”

This section is clearly inapplicable because it speaks of taxing property of a cemetery whereas the inheritance tax is not a tax on property at all. Rather, it is a tax on the right to receive or take property. In re Gartside’s Estate, 357 Mo. 181, 207 S.W.2d 273, 275-276 (1947); 85 C.J.S. Taxation § 1111. It follows that the trial court erred in excluding the bequest under clause Fifth from the assessment of inheritance tax.

Bequests to Husbands and Wives

The section of Chapter 145 which imposes a tax in this situation is § 145.020 which provides for a tax on all property, real, personal or mixed, unless it is specifically exempted. Those exemptions appear in another section. The rates of tax imposed pursuant to § 145.020 are specified in § 145.060. There is no contention that these devises were exempt. The sole issue is how the tax is to be computed. In such determination the tax laws are construed strictly against the taxing authority and in favor of the taxpayer. In re Gerling’s Estate, 303 S.W.2d 915, 919 (Mo.1957).

The devises made in clauses Ninth, Tenth and Twelfth do not state specifically how the husband and wife named in each are to take the property. However, it is clear that in Missouri, as at common law, a conveyance to husband and wife as joint grantees during coverture ordinarily creates a tenancy by the entireties. Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 297 (1945). Neither party contends that the devises upon which the tax was assessed in this case created anything other than tenancies by the entireties. The dispute involves only the method of determining the amount of tax owed by the recipients of a devise to them by the entireties.

The State’s position is a restatement of Attorney General’s Opinion No. 40, January 6, 1971, which relies heavily upon decisions of this court discussing the nature of the estate by the entireties in the light of other circumstances. Central to the State’s position is Otto F. Stifel’s Union Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 67 (1918), where the court quoted Warvelle on Real Property, § 111, to the effect that “in the estate by entirety neither tenant is seised of a part, or moiety, but both of them have the entire estate, and as this involves in itself a physical impossibility in the case of ordinary individuals it necessarily follows that effect can only be given to the grant by regarding both tenants as constituting but one person.” From this point the State reasons that each husband and wife constitute a single legatee and that the devise to them is to be taxed as one devise. The State would accomplish this by adding together the exemptions granted the husband and the wife based upon their relationship to the decedent, subtracting this amount from the value of the property, averaging the rate of tax for the husband and for the wife based upon their relationship to the decedent, and applying this average rate to the remaining sum.

The approach utilized by the inheritance tax appraiser and adopted by the probate and circuit courts apparently recognized that, as a practical matter, an estate by the entirety is closely akin to a joint tenancy for purposes of the inheritance tax. For tax purposes the devise was treated as having given each spouse a one-half interest in the property. Those were then taxed, after applying the respective exemptions, at the applicable rates specified in the statute.

The latter approach was the one adopted in In re Zipperlein’s Estate, 367 Pa. 622, 80 A.2d 817 (1951). In that case the Supreme Court of Pennsylvania recognized the established incidents of an estate by the entirety (which are identical with those recognized in Missouri) but decided that for the purpose of determining the amount of inheritance tax due, the husband and wife each should be regarded as having a one-half interest in the devised property to which their respective rates of tax should be applied. This appears to be the only reported case which has considered the question.

We conclude that the approach utilized by the appraiser and adopted by the lower courts is the correct one. It seems to more reasonably reflect the intention of the legislature. To adopt the method proposed by the State, it is necessary to lump two exemptions and apply them against a single devise, something not provided for in the statute, and then to apply against the resulting sum a tax rate not specified in the statute but rather determined by taking the mean of two rates of tax which are specified. The result is to impose a tax somewhat higher than if the husband and wife are treated as joint tenants. Under such circumstances, we interpret the statute strictly against the State and in favor of the taxpayers and approve the assessment contained in the judgment of the circuit court.

Accordingly, the judgment is reversed and the cause remanded with directions to enter judgment in accordance with the views herein expressed.

All concur.

      . The clause of the will providing for this bequest provides:
      “Fifth: I give and bequeath the sum of three thousand dollars to the duly elected officers or Trustees of the Mound City Cemetery who are holding such office at the time the bequest shall be paid, and to their successors in trust nevertheless for the investment of such sum in U.S. bonds or other investments of a type lawfully permitted as investments for trustees and guardians under the law of Missouri with income from the same to be used for the care and maintenance of the graves of my three brothers, my grandmothers, grandfather, mother and uncle located in said cemetery.”

      . The various clauses providing for these devises provide in pertinent part as follows:
      “Ninth: I give and devise to Derbin F. Fleming and Connie Fleming, husband and wife, all the North one-half of the Northwest one-fourth of Section Twenty-seven and all the South one-half of the Southwest one-fourth of Section Twenty-two all in Township Sixty-two North, Range Thirty-eight West of the 5th P.M. Holt County, Missouri, consisting of 160 acres more or less, PROVIDED that the said Derbin F. Fleming and Connie Fleming shall be legally married at the time of my death. If said devi-sees be not married on said date, I give and devise all of the premises heretofore described in this paragraph to the said Derbin F. Fleming to be his absolutely.
      “Tenth: I give and trant [sic] to Lois Byron and Walter A. Byron, her husband, my residence property where I now live, which is located on the east part of Lots 6 and 7, Block One, original town of Mound City, Missouri, to be theirs absolutely. In the event that either Walter A. Byron or Lois Byron shall predecease me, I give and devise said property to their two children, Mrs. Janet Price and Mrs. Kay Smith, share and share alike.
      “Twelfth: I give, devise and bequeath to Lester Young and Ruby Young his wife, of Mound City, Holt County, Missouri or to the survivor of them, all the Southeast one-fourth of the Southeast Quarter of Section Four and the West Half of the Southwest Quarter of Section Three, all in Township Sixty-one North, Range Thirty-eight West of the 5th P.M., Holt County, Missouri, together with all unharvested crops on the devised premises at the time of my decease, and all of my interest in any livestock owned jointly by either or both of said beneficiaries and myself at the time of my decease.

      . All statutory references are to RSMo 1969 unless otherwise indicated. The two sections relied on by the appraiser provide:
      “ § 145.090. The following are exempt from taxes imposed in this chapter:
      “(1). All transfers, direct and indirect, including transfers from a trustee to another trustee of any property or beneficial interest therein to be used solely for county, municipal, religious, charitable or educational purposes in this state.”
      “§ 145.100.1. When any property, benefit or income shall pass to or for the use of any hospital, religious, educational, Bible, missionary, scientific, benevolent or charitable purpose in this state, or to any trustee, association, or corporation, bishop, minister of any church, or religious denomination in this state to be held and used and actually held and used exclusively for religious, educational, or charitable uses and purposes, whether such transfer be made directly or indirectly, the same shall not be subject to any tax, but this provision shall not apply to any corporation which has a right to make dividends or distribute profits or assets among its members.”

      . Under this section the rate of tax is determined by reference to statutory classifications based on the blood relationship of the beneficiary to the deceased. In the case of a husband and wife the rate applicable to them individually will only rarely be the same because one spouse will nearly always have either no blood relationship or a different degree of blood relationship.


author: SEILER, Judge.

text:
    STATE of Missouri ex rel. Eunice WEBB and Randall Webb, Plaintiffs-Relators, v. Honorable Harold L. SATZ, Judge, Respondent. STATE of Missouri ex rel. NORANDA ALUMINUM, INC., Relator, v. Honorable Keith P. BONDURANT, Judge, Respondent.
    Nos. 60231 and 60269.
    Supreme Court of Missouri, En Banc.
    Feb. 8, 1978.
    Ray A. Gerritzen, Gerritzen & Gerritzen, St. Louis, for relators.
    John J. Hummed, G. N. Beckemeier, Jr., Holtkamp, Beckemeier & Liese, St. Louis, for respondent.
    Stephen H. Ringkamp, Hullverson, Hull-verson & Frank, Inc., St. Louis, for amici.
    Lawrence H. Rost, New Madrid, for relator.
    William E. Simmons, Kansas City, for respondent.
   SEILER, Judge.

These two cases, which have been consolidated and were argued here on the same date, involve the question of the proper venue in an action involving only corporate defendants. More precisely, the question is whether the language of the final clause of § 508.040, RSMo 1969, authorizes suit to be filed in any county where at least one of the corporate defendants has an office or agent for the transaction of usual and customary business or whether the clause applies only to a county, if one can be found, where each of the several corporate defendants maintain such an office or agent. We hold the former.

In the Webb case, plaintiffs filed suit in the circuit court of the city of St. Louis against Ford Motor Company, the manufacturer, a Delaware corporation, and Valley Ford, Inc. the seller, a Missouri corporation with offices in St. Louis county, to recover damages for injuries incurred in St. Louis county by reason of alleged defects in a Ford automobile. Defendant Ford Motor Company was served in the city of St. Louis, where it maintains its registered agent. Defendant, Valley Ford, Inc., was served at its corporate office in St. Louis county.

In the Noranda case, plaintiff filed suit in the circuit court of Jackson county, Missouri, against four corporate defendants, three of which had their registered offices in the city of St. Louis, while the fourth had its in St. Louis county. Of the four corporate defendants, only one maintains an office and agent for the transaction of its usual and customary business in Jackson county. The cause of action arose in New Madrid county.

In both these cases it is claimed by the original defendants that venue is improper; that in the Webb case, the action did not accrue in the city of St. Louis, and that in the Noranda case, the action did not accrue in Jackson county, and that in neither case did each one of the corporate defendants have an office or place of business in the county where suit was filed; that § 508.040, RSMo 1969, requires actions against multiple corporate defendants to be brought either in the county where all such defendants maintain an office or agent or in the county where the cause of action accrued. Therefore, it is maintained that neither of the actions can proceed over the venue objections of defendants.

Section 508.040 provides as follows:

Suits against corporations shall be commenced either in the county where the cause of action accrued, or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this state, then in either of such counties, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.

While there are cases which declare, and properly so, that § 508.040 is the applicable venue statute when a corporation is the sole defendant, State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62 (banc 1956); McNeal v. Manchester Insurance & Indemnity Company, 540 S.W.2d 113 (Mo.App.1976), and there are other cases, to which we refer later herein, declaring § 508.040 is applicable only when a corporation is the sole defendant, the present situation, where each of the several defendants is a corporation and suit is filed not in the county where the cause of action arose, but in a county where only one of the corporate defendants has the requisite type of office and agent, has not been before the court for decision.

The development of the statute over the years does not throw much light on the situation, other than to display a consistent pattern of broadly subjecting corporations to suit. The predecessor of § 508.040 goes back to the Revised Statutes of 1845. Chapter 34 of that revision dealt with corporations and was divided into two articles: the first dealt with the general powers, etc., of corporations; the second dealt with the mode of procedure against corporations. Article II, § 4 provided “Suits against corporations shall be commenced in the proper court of the county wherein the general meetings of the members, or the officers of such corporation, have usually been holden, or by law, ought to have been holden.”

In the 1855 revision, Art. II, Sec. 4 was changed to read as follows: “Suits against corporations shall be commenced, either in the county where the cause of action accrued, or in any county where such corporation shall have, or usually keep, an office or agent for the transaction of their usual and customary business.” Chapter 34, Art. II, § 4, p. 376.

The statutes on corporations were changed in 1866, following the change made in the 1865 constitution whereby corporations were to be organized under general laws rather than by specific legislative action, but no change was made in the venue provisions. They remained the same as in the 1855 revision. Laws 1866, Ch. 69, § 26, p. 24, approved March 19, 1866.

However, in the 1866 revision, published in August 1866 and known as the “General Statutes of Missouri”, two small changes were made, Ch. 62, § 26, p. 330. The comma after the word “commenced” was deleted and the word “corporation” in the final clause was changed to the plural “corporations”. The 1866 revision read as follows: “Suits against corporations shall be commenced either in the county where the cause of action accrued, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” No explanation appears for these changes, nor have we been able to find a session act making such changes.

There was no further change until 1903, when by S.B. 250, approved March 3, 1903, the provisions about suit against a railroad company were added. Laws 1903, p. 115. We note that the title of S.B. 250 is quite broad. It reads, “to amend sections 995 and 997 of article 1, chapter 12, of the Revised Statutes of Missouri, of 1899, relating to the service of summons in actions against corporations and where the same may be instituted and presented.”

Thereafter the statute has remained unchanged.

We observe that the statute commences in broad terms by stating that “Suits against corporations shall be commenced”; this language refers both to a suit against a single corporation or against several corporations. There is nothing which would in the ordinary understanding of these words limit their application to one or the other and not include both. The statute then, after first naming the county where the cause of action accrued as one place for venue, and then making provision for railroads, goes on to provide that venue will also lie “in any county where such corporations” have certain offices or agents. The words “in any county” are plain enough. What is meant by the next succeeding words, “where such corporations”?

These words refer back to the corporations against which suits can be commenced mentioned at the beginning of the sentence and, as said, this can be either one or more. Accordingly, the meaning is that any county where one or more of the corporations has an office or agent of the specified type is a county where an action against corporations can be commenced. The statute applies, true, when the only defendant is a single corporation, but to declare that it has no application when there are plural defendants, all corporations, is to ignore the broad language with which the statute begins. Thus, venue in both cases before us is proper.

Earlier cases, e. g., State ex rel. Bowden v. Jensen, 359 S.W.2d 343, 350 (Mo.banc 1962); State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298, 299 (banc 1954); State ex rel. Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W.2d 152, 156 (1940); State ex rel. Atkinson Paving Co. v. Aronson, 345 Mo. 937, 138 S.W.2d 1, 2 (1940); State ex rel. Henning v. Williams, 345 Mo. 22, 131 S.W.2d 561, 563 (banc 1939); State ex rel. Columbia National Bank v. Davis, 314 Mo. 373, 284 S.W. 464, 470 (banc 1926), to the extent they declare that § 508.040 is limited in application to the situation where a corporation is the sole defendant, should no longer be followed.

In No. 60231, State ex rel. Webb et al. v. Satz, the writ of prohibition is made absolute. In No. 60269, State ex rel. Noranda Aluminum v. Bondurant, the provisional rule is quashed.

All of the Judges concur.

      . The Webb case is a prohibition action transferred here after the court of appeals, St. Louis district, had quashed its preliminary writ. Rule 83.03.

      . The Noranda case, also prohibition, was transferred here from the court of appeals, Kansas City district, prior to opinion, at the request of the parties. Rule 83.06.