text:
    HOLMAN ENTERPRISE TOBACCO WAREHOUSE et al., Appellants, v. Dennis W. CARTER et al., Appellees.
    Supreme Court of Kentucky.
    March 26, 1976.

      Norman E. Harned, Cole, Harned & Bro-derick, Bowling Green, for appellants.
    Harold D. Ricketts, J. Reid Caudill, Bowling Green, Cyril Shadowen, Asst. Counsel, Dept, of Labor, Louisville, for appellees.
   STERNBERG, Justice.

This is a workmen’s compensation case. Appellee Dennis W. Carter sustained a work-connected back injury on November 11; 1972, while working for appellant Holman Enterprise Tobacco Warehouse, in Bowling Green, Kentucky. Carter is a full-time farmer and sharecropper, but for many years has worked in a warehouse during the tobacco season, which normally extends from mid November to the latter part of the following January or early part of February.

As a result of the accident, the Board found that:

Carter became occupationally totally disabled for an indeterminate period of time;
Carter suffered no active occupational disability immediately prior to the accident;
Carter should recover of his employer the sum of $60 per week for an indeterminate period, not to exceed 425 weeks.

As a result of the findings, the Special Fund was dismissed as a party to the action.

The employer and its insurance carrier filed an appeal in the Warren Circuit Court. The action of the Board was affirmed. Thus, this appeal.

Carter is 57 years of age, has a sixth grade education, is married, and has four children, one of whom is a minor. During the 12 months immediately preceding his injury Carter not only had sharecropped but had done some farm work for which he was paid compensation by the day. However, the evidence does not disclose the amount of money claimant received from this source; therefore, it cannot be considered. On one of the farms he was furnished a house in which he and his family lived. During his seasonal work for appellant he earned approximately $90 to $95 per week for a six-day work week. Carter and his wife filed a joint income tax return for 1972, which disclosed that his net farm income was $1,259, his income from seasonal work $512, and his wife’s income $4,039.

The first issue is directed at the inclusion of farm income as wages. The issue is well taken. This is a matter of first impression with this court.

Claimant is engaged in an occupation that is exclusively seasonal. The formula on which compensation is computed is thus set out in KRS 342.140(2). This statute reads as follows:

“(2) In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the average weekly wage shall be taken to be one-fiftieth (Vso) of the total wages which the employe has earned from all occupations during the twelve (12) calendar months immediately preceding the injury.”

It does not use the words “salary” or “income”, but it limits the formula to wages. The word “wages” is defined by KRS 342.-140(6) as follows:

“The term “wages” as used in this section and KRS 342.143 means, in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging, and fuel or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer to the extent such gratuities are reported for income tax purposes.”

Workmen’s compensation benefits are predicated on the employer-employee relationship, and we have consistently excluded “independent contractors” and those persons engaged in agriculture (KRS 342.-005). We must bear in mind the statutory admonition for liberal construction (KRS 342.004). It has been held that under the Unemployment Compensation Act money earned by self-employed persons cannot in any way be considered “wages”. Mississippi Employment Security Commission v. Medlin, 252 Miss. 146, 171 So.2d 496; Micca v. Administrator, Unemployment Compensation Act, 26 Conn.Sup. 16, 209 A.2d 682.

In Reddick v. Northern Accident Co., 180 Mo.App. 277, 165 S.W. 354, the court held that farm income was not wages so as to be entitled to recover from loss of earning capacity by reason of a personal injury.

In 99 C.J.S. Workmen’s Compensation § 294, it is stated:

“Employments not within act, or not insured. In case of concurrent employments, each employment considered must be such as would come within the scope of the act; and where in his employment by one employer the employee is not covered by compensation insurance, his salary therein will not be included with his salary in another employment with another employer, in which he is covered by such insurance, in determining the basis of the payment of compensation for an injury in the latter employment.
⅜ % ⅜ ⅝ ⅜ ⅜!
“Employee’s separate business. The fact that the injured employee enjoys a profit from a separate business of his own does not deprive him of the right to compensation; nor does income from a partnership in addition to earnings as an employee thereof affect the right of an injured employee to compensation. However, profits from a business enterprise of his own are not to be considered in determining the average weekly wage or earning capacity, although it has also been held that the earnings of a claimant from an outside enterprise may properly be considered in determining his average wages.”

This court, in considering whether a tobacco crop was wages so as to be exempt from a garnishment, said in Roberts v. Frank Carrithers & Bros., 180 Ky. 315, 202 S.W. 659:

“ * * * Hence a tobacco crop, which a farmer grows upon his own account and as a business venture of his own, could not in any event be wages earned by him, except the word “wage” should be used in a figurative and not a literal sense.

We do not find, even with the most liberal construction, that farm income can be considered wages within the provisions of KRS 342.140(2).

The next issue is the propriety of the Board’s failure to apportion any of the award to be paid by the Special Fund. There is no controversy over the injury. The controversy addresses itself to whether Carter had an active disabling preexisting condition.

In 1959, while working for the Field Packing Company, claimant slipped on slick concrete. He went to a doctor who gave him some pills and he recovered without any further difficulty. X-rays made on February 2, 1959, revealed an old gunshot wound, no recent reactive change, and the lumbar spine showed the body and interver-tebral spaces to be well maintained.

On May 31, 1963, Carter had a work-related back injury, for which he filed a claim with the Workmen’s Compensation Board for permanent total disability. The claim was settled for 10% permanent partial disability and claimant was paid $1,300. Carter claims that thereafter he was fully able to do hard manual labor. He not only worked as a common laborer for hire but did general farm work, which in and of itself is an arduous task. During Carter’s tenure with appellant, which extended over a period of 15 years, he had done his work so well that he was elevated from just a tobacco handler to a minor supervisory position.

Dr. Frank L. Buono, who testified for Carter, first saw him on January 15, 1973, as a referral from Dr. Beasley, of Franklin, Kentucky. He treated Carter by medication until July 20,1973. On July 22,1973, claimant was hospitalized and a myelogram showed a ruptured disk. On July 25, 1973, an operation was performed removing the disk between vertebrae L5 and SI and an exploratory was made of the space between vertebrae L4 and L5. The disk there was normal. Carter remained hospitalized until August 3, 1973. Dr. Buono testified that as a result of the injury and operation claimant “ * * * has some weakness in his leg;” has problems with his low back which are “ * * * the arthritic changes and the ruptured disk. The same problems he had before.” The range of motion in Carter’s back was “quite good.” Claimant still takes pain pills but has been released by the doctor to go back to work on light duty, which does not require lifting over 20 pounds. Dr. Buono at no time evaluated the percentage, if any, of disability suffered by claimant.

Dr. K. Armand Fischer was appointed by the Board to examine the claimant. On December 16, 1974, he took a case history from claimant and made the requested examination. As a result thereof, he reported to the Board that “ * * * (i)f this patient was able to work and do laboring work from 1963 thru 11/11/72, he apparently did not have any disabling factors with his back, but he had an underlying diseased condition of his spine; namely, arthritis with degenerated discs. Apparently the accident of 11/11/72 brought this condition into disabling reality. * * * ” The doctor diagnosed Carter as having no active disability prior to the trauma of November 11, 1972; that as a result of this last injury Carter has 40% partial permanent disability to the body as a whole. Dr. Fischer attributed 20% as a result of the injury of November 11, 1972, and 20% to the arousal of a dormant pre-existing disease condition into disabling reality. His report was filed with the Board on December 20, 1974. The employer’s motion for an extension of time to review the report so as “to determine if his deposition should be taken” was granted. However, Dr. Fischer’s deposition was neither taken nor were any exceptions filed to the report. Dr. Fischer’s report provides the only medical testimony which evaluates claimant’s disability.

The medical testimony discloses that Carter’s functional disability is the result of the trauma of November 11, 1972, and from a non-apportionable pre-existing disease condition (arthritis with degenerated disk). Young v. Bartley, Ky., 472 S.W.2d 262; Young v. Charles, Ky., 471 S.W.2d 711; and Giles Industries, Inc. v. Neal, Ky., 471 S.W.2d 5.

The Board has the responsibility to translate functional disability into occupational disability. Mitsch v. Stauffer Chemical Company, Ky., 487 S.W.2d 938. However, the Board was not required to translate the percentage of functional disability into the same percentage of occupational disability. Young v. Campbell, Ky., 459 S.W.2d 781. In Young v. Fulkerson, Ky., 463 S.W.2d 118, we said:

“ * * * the Board is to ascertain and fix the degree of occupational disability which existed immediately prior to the subsequent injury without regard to the effect of the subsequent injury. The percentage of occupational disability which existed immediately prior to the subsequent injury is noncompensable and must be excluded from any award. sjc 4c * 11

The award of the Board was wholly in accord with the medical findings of Dr. Fischer. Neither the doctor nor the Board gave any effect to the permanent partial disability that Carter sustained in 1963. The Board bottomed its finding of total permanent disability on the whole-man doctrine, and it placed the responsibility on the employer to pay the whole award. The philosophy of the whole-man theory is simply that, as between the employer and the employee, a recovery by the employee for a permanent injury is not affected by his previous condition.

In International Harvester Company v. Poff, Ky., 331 S.W.2d 712, this court was confronted with a situation where an employee (Poff) has sustained the loss of an eye which resulted in 25% permanent partial disability to the body as a whole, and he received full compensation for this injury. Four years later Poff received another injury which resulted in total permanent disability to the body as a whole. We approved an award of the Board that ordered the company to pay the employee total disability compensation, and we determined that the company should not be permitted to deduct the amount paid Poff for his first injury. In the course of the opinion, we said:

“In the case at bar we have a finding of the Board, based upon competent and sufficient evidence, that Poff’s injury of February 1,1956, in and of itself, produced total and permanent disability, which required an award to be made under KRS 342.095. It is the general rule that any finding of the Board on a question of fact will not be set aside on an appeal to either the circuit court or this Court if, as is the situation here, there is any substantial evidence of probative value to support it. * * * ”

The answer to the present issue is to paraphrase the above quotation. In the case at bar we have a finding of the Board, based upon competent and sufficient evidence, that Carter’s injury of November 11, 1972, in and of itself, produced total and permanent disability, which required an award to be made under KRS 342.095. It is the general rule that any finding of the Board on a question of fact will not be set aside on an appeal to either the circuit court or this court if, as is the situation here, there is any substantial evidence of probative value to support it.

Insofar as the judgment of the Warren Circuit Court permits the inclusion of farm income as wages in determining the amount of an award under KRS 342.140(2), it is reversed; in all other respects, it is affirmed.

All concur.


source: Caselaw Access Project

author: LUKOWSKY, Justice.

license: Public Domain

text:
    John McD. ROSS, Commissioner of Revenue and Department of Revenue, Commissioner of Kentucky, Appellants, v. ALE-8-ONE BOTTLING COMPANY and Kentucky Board of Tax Appeals, Appellees.
    Supreme Court of Kentucky.
    April 16, 1976.
    William S. Riley, William P. Sturm, Legal Staff, Dept, of Revenue, Frankfort, for appellants.
    Joseph E. Stopher, Jefferson K. Streepey, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellees.
   LUKOWSKY, Justice.

This is an appeal from a judgment of the Franklin Circuit Court which affirmed an order of the Kentucky Board of Tax Appeals.

The appellant taxing authorities levied a deficiency use tax assessment against the appellee, Ale-8-One Bottling Company, on the basis that the six-bottle cardboard cartons used by Ale 8 to market the vast majority of its beverages were “returnable containers” not sold to Ale 8 with the contents in connection with a retail sale of the contents or resold to Ale 8 for refilling.

Ale 8 appealed the assessment to the Kentucky Board of Tax Appeals contending nontaxability on the basis that these cartons were “nonreturnable containers” sold to them without the contents and that they then placed the contents in the cartons and sold the contents together with the cartons.

The Board of Tax Appeals decided in favor of Ale 8 and the taxing authorities appealed to the circuit court with the unfavorable result noted above.

This case supplies the cushion between the bottles and cases involved in Coca-Cola Bottling Works Company v. Kentucky Department of Revenue, Ky., 517 S.W.2d 746 (1975).

KRS 139.470 provides in part:

“There are excluded from the computation of the amount of taxes imposed by this chapter:
(2) Gross receipts from sales of, and the storage, use or other consumption in this state of:
(a) Nonreturnable containers when sold without the contents to persons who place the contents in the container and sell the contents together with the container;
(b) Returnable containers when sold with the contents in connection with a retail sale of the contents or when resold for refilling;
As used in this section the term ‘returnable containers’ means containers of a kind customarily returned by the buyer of the contents for reuse. All other containers are ‘nonreturnable containers’;”

The Board found as matters of fact:

* * sfc * * ⅝:
“(4) Ale-“8”-One mixes its own syrup, adds carbonated water, bottles the mixture as soft drink, and then places all but 10 to 15 percent of the bottles in six-bottle cartons and places four such cartons in a wooden case for marketing.
(5) When the soft drinks are sold, a deposit of five cents is required on each bottle, and a deposit of 30 cents is required on each case. When a bottle or case is returned to Ale-“8”-One, the full deposit is refunded. With respect to the cartons, however, there is no deposit, and nothing is paid to the customer if and when the carton is returned. Whether the soft drinks are sold with or without the carton has no effect on the price, and the customer gets his bottle or case refund whether or not the bottles are returned in ear-tons.
(6) Some cartons are, in fact, returned to Ale-“8”-One. Those returned cartons which are not wet, torn or damaged are reused. The cartons, however, are not waterproofed.
(7) Often bottles are returned to Ale-“8”One in cartons that are not Ale-“8”One cartons, but rather the cartons of another bottler. It is also a frequent practice for grocers to return bottles to Ale-“8”-One only in cases and not in cartons.
(8) The cartons in question bear no legend of ownership.
* * * * * *
(11) Paper cartons are a packaging material used for convenience in marketing soft drinks.”

The Board then concluded as a matter of law:

* ⅝5 * ⅜ * ⅜
“(6) The cartons in question are non-returnable containers within the meaning of KRS 139.470 and are therefore exempt from the sales or use tax.”

In the ultimate analysis the Board has found that the cartons are nonreturnable and nontaxable because any return of the cartons made by the buyer of the contents is for the purpose of his convenience in handling the bottles and not for the purpose of reuse of the carton. There is substantial evidence in the record to support this view. Consequently, we may not disturb the action of the Board. Trimble County Board of Supervisors v. Mullikin, Ky., 438 S.W.2d 524 (1969).

The judgment is affirmed.

All concur.


author: LUKOWSKY, Justice:

text:
    C. C. C. COAL COMPANY, INC., et al., Appellants, v. PIKE COUNTY, Kentucky, et al., Appellees.
    Supreme Court of Kentucky.
    April 16, 1976.
    John M. Stephens, Donald Combs, Stephens, Combs & Page, William J. Baird, Charles J. Baird, Baird & Baird, Henry D. Stratton, Stratton, May & Hays, Garred 0. Cline, Lowe, Lowe & Stamper, James B. Todd, Pikeville, Joseph J. Leary, Frankfort, Bennett Clark, Lexington, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellants.
    Dan Jack Combs, Pikeville, for appellees.
   LUKOWSKY, Justice:

This is an appeal from a judgment of the Pike Circuit Court which determined that the coal tax imposed by ordinance of the Pike Fiscal Court passed constitutional muster. We reverse and remand.

The preamble to and purpose clause of the ordinance reveal that in an attempt to raise funds to maintain the roads and bridges of Pike County for the benefit of all its citizens the Pike Fiscal Court adopted an ordinance in which it sought to impose a franchise tax upon “the business of receiving and/or processing coal in Pike County, Kentucky”, “the business of mining and removal of coal” and such an “extractive business enterprise”. The heart of the ordinance is:

“Section V.
1. A. On and after December 1, 1974, in addition to all other taxes imposed by law, a franchise tax is hereby levied on every person, firm, or corporation engaged in the business of receiving and/or processing coal at a fixed place of business within the county for distribution outside Pike County. Said tax shall be computed at the rate of ten ($.10) cents per ton on all coal so received and/or processed.”

The statutory foundation upon which the appellee, Fiscal Court, relies to establish its right to tax is the “Home Rule Act,” KRS 67.083, which grants to all counties the authority to:

“. . . levy all taxes not in conflict with the constitution and statutes of this state now or hereafter enacted, which the fiscal court shall deem requisite for the health, education, safety, welfare, and convenience of the inhabitants of the county . . . .”

Among other things, the appellants, coal producers in Pike County, contend that the tax imposed by Pike County violates Section 181 of the Constitution of the Commonwealth of Kentucky, which, unlike Gaul, for proper appreciation must be divided into four parts:

“(1) The General Assembly shall not impose taxes for the purpose of any county, city, town or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes.
(2) The General Assembly may, by general laws only, provide for the payment of license fees on franchises, stock used for breeding purposes, the various trades, occupations and professions, or a special or excise tax, and
(3) may, by general laws, delegate the power to counties, towns, cities and other municipal corporations, to impose and collect license fees on stock used for breeding purposes, on franchises, trades, occupations and professions, and
(4) the General Assembly may, by general laws only, authorize cities or towns of any class to provide for taxation for municipal purposes on personal property, tangible and intangible, based on income, licenses or franchises, in lieu of an ad valorem tax thereon.”

Since we have consistently held that the General Assembly cannot delegate to a subordinate unit of government the power to levy an excise tax (other than license fees) our job here is to determine whether the Pike County coal tax is a franchise or license tax or an excise tax. City of Lexington v. Motel Developers, Inc., Ky., 465 S.W.2d 253 (1971). If it is either of the former it is valid. If it is the latter it is invalid.

The appellants have no governmental grant of a special privilege to engage in the extractive business enterprise of coal production. Therefore, they have no franchise and the Pike County coal tax cannot be a franchise tax.

The Pike County coal tax is not levied upon engaging in the extractive business enterprise of coal production. In this case, receiving and/or processing coal for distribution is not an independent trade, occupation or profession. It is but one of a series of events which occur in the business of production. Therefore, this is not a license tax laid upon a trade, occupation or profession. It is an attempt to levy a license tax on but a single aspect of a trade, occupation or profession.

The Pike County coal tax is levied upon the receiving and/or processing of coal at a fixed place of business within the county for distribution outside the county, which events are only uses made of coal in the business of production. What we have here is that inevitable complement to the sales tax, the use tax. Our cases place it beyond dispute that a use tax is an excise tax. City of Lexington v. Motel Developers, Inc., supra; City of Louisville v. Churchill Downs, 267 Ky. 339, 102 S.W.2d 10 (1937); Shanks v. Kentucky Independent Oil Co., 225 Ky. 303, 8 S.W.2d 383 (1929).

This exercise in forensic logic brings us to the following rationale:

1. The General Assembly cannot constitutionally delegate to subordinate units of government the authority to levy an excise tax.

2. The “Home Rule Act” cannot validly bestow such authority upon a subordinate unit of government.

3. The Pike County coal tax is a use tax.

4. A use tax is an excise tax.

5. The ordinance which imposes the Pike County coal tax is unconstitutional and void.

This view of the case relieves us of the burden of tilting with the other legal windmills conjured up by the parties.

The judgment is reversed and the cause is remanded to the Pike Circuit Court for the entry of a new judgment in conformity herewith.

All concur.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. John R. FOX d/b/a Jackson Purchase Collection Agency, Respondent.
    Supreme Court of Kentucky.
    April 30, 1976.
    Leslie G. Whitmer, John T. Damron, Kentucky Bar Assn., Frankfort, for complainant.
    Joseph S. Freeland, Paducah, for respondent.
   PER CURIAM.

The Kentucky Bar Association charges John R. Fox, who is trading and doing business under the firm name and style of Jackson Purchase Collection Agency, with unauthorized practice of law (RCA 3.460). On September 26, 1975, a rule issued from the office of the Clerk of the Court of Appeals of Kentucky commanding the respondent Fox to show cause, if any he has, why he should not be punished for such conduct. The parties filed a stipulation dated November 11, 1975, as follows:

“Subject to the approval of the Special Commissioner and the Court, which is hereby requested, it is stipulated by and between the parties, by their undersigned counsel, as follows:
1. At all times herein mentioned, the respondent, John R. Fox, owned and operated as sole proprietor at Paducah, Kentucky, a collection agency known as Jackson Purchase Collection Agency.
2. On or about November 19, 1974, G. H. Grimm, an officer of the Paducah Bank and Trust Company, signed and delivered to respondent a writing, a copy of which is annexed hereto as Exhibit No. I.
3. On or about November 26, 1974, Hon. J. William Howerton, as counsel for said bank, signed and transmitted to respondent a letter, a copy of which is annexed hereto as Exhibit No. 2.
4. With said letter there was also transmitted to respondent, together with other documents not relevant to the particular charge involved in this proceeding, a photocopy of a promissory note and security agreement signed by Kenneth R. Brookshire and Sheila J. Brookshire, a copy of which photocopy is annexed hereto as Exhibit No. 3. At that time, there was owing to said bank on said note the sum of $331.86. However, the original note and security agreement were not at any time endorsed or delivered to respondent.
5. On or about February 20, 1975, respondent wrote and transmitted to the said Grimm, as an officer of said bank, a letter, a copy of which is annexed hereto as Exhibit No. 4.
6. At some time in May, 1975, respondent prepared, signed and filed in one of the Justice of the Peace courts of McCracken County, Kentucky, a complaint against Kenneth R. Brookshire, a copy of which complaint is annexed hereto as Exhibit No. 5. A summons was issued on the complaint and was served upon the said Brookshire.
7. No further proceedings took place in said action in the Justice of the Peace court because on June 16, 1975, the said Brookshire filed a voluntary bankruptcy petition in the United States District Court for the Western District of Kentucky. A copy of the notice of bankruptcy is annexed hereto as Exhibit No. 6.
8. This cause may be submitted to the Special Commissioner and the Court for decision upon this stipulation and such briefs as may be directed to be filed by the respective parties.
This 11th day of November, 1975.”

Without the taking of any testimony, the cause was, by agreement of the parties, submitted for judgment, on the stipulation and on briefs. The Honorable Robert M. Short, Special Commissioner, found that respondent did engage in the unlawful practice of law and recommended to this court that the respondent be fined $200, plus the costs of the action, and that he be permanently enjoined from further violations.

Respondent contends that the accounts were assigned to him for collection and as an assignee he is the real party in interest and thereby authorized to file suit for the collection of the accounts without engaging the services of an attorney at law.

The case of Mutual Bankers Corporation v. Covington Bros. & Co., 277 Ky. 33, 125 S.W.2d 202, strongly relied upon by the respondent, is not on point with the issues raised herein for at least two reasons. First, the record unequivocally reveals that the accounts were not assigned to respondent; they merely were placed with him for collection. Secondly, the record clearly demonstrates that in the event litigation became necessary on any of the accounts, the litigation would be handled by an attorney at law.

The practice of law is defined by RCA 3.020 as follows:

“The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor.”

This court finds:

1. The conduct of the respondent in filing a lawsuit in his business name erroneously designating himself as assignee constitutes the unauthorized practice of law.
2. The respondent is fined the sum of $200, plus the costs of these proceedings.
3. The respondent is permanently enjoined from engaging in the further unlawful practice of law.

All concur.


text:
    James R. YOCOM, Commissioner of Labor, etc., Appellant, v. Walter CAMPBELL et al., Appellees.
    Supreme Court of Kentucky.
    May 7, 1976.

      Earl M. Cornett, Joe A. Newberg, Dept, of Labor, Frankfort, for appellant.
    M. B. Fields, Hazard, Thomas 4. Ainley, Asst. Atty. Gen., Frankfort, for appellees.
   LUKOWSKY, Justice.

This is an appeal by the Special Fund from a judgment of the Perry Circuit Court which refused to direct the Workmen’s Compensation Board to require that the Special Fund be reimbursed for its payment to the claimant of the employer’s share of the award by the Uninsured Employers’ Fund in the event of default by the employer.

Walter Campbell filed an application for adjustment of claim with the Board on June 18, 1973, alleging that he became permanently and totally disabled due to the occupational disease of silicosis and/or pneumoconiosis on April 24, 1973. A hearing was held and the Board entered its opinion, order and award on November 18, 1974.

Campbell was found to be permanently and totally disabled and was awarded maximum benefits of Sixty-three ($63.00) Dollars a week for a period of four hundred and twenty-five (425) weeks. The award was apportioned seventy-five (75%) percent against the Special Fund, and twenty-five (25%) percent against his employer, Gwen Don Coals, Inc. and provided pursuant to KRS 342.316(13)(a) that all sums assessed be paid by the Special Fund subject to reimbursement by the employer.

The employer did not have insurance on April 24, 1973 and had not qualified as a self-insurer. The Uninsured Employers’ Fund has been a party to these proceedings since they were commenced. The Board assessed no liability against the Uninsured Employers’ Fund but did not dismiss it from the case. The Board did not find that the employer was financially unable to reimburse the Special Fund for its portion of the award.

The Uninsured Employers’ Fund filed a petition for reconsideration seeking clarification of its possible liability resulting from the opinion and award. This petition was overruled by the Board. Both funds appealed to the Perry Circuit Court with the result previously described. The Special Fund now appeals to this court for the relief refused by the Board and the circuit court.

The Uninsured Employers’ Fund is a proper party to this case only because the employer was uninsured and, consequently, it had potential, but speculative, liability. Such a specter of liability entitles it to make an original defense to a claim. Davis v. Comer, Ky., 532 S.W.2d 12 (1975). However, the propriety of its presence in the action does not imply liability. Like a surety it has no duty to pay at least until the principal, here the employer, either fails to pay or is found unable to pay. KRS 342.760(4). Davis v. Turner, Ky., 519 S.W.2d 820 (1975).

The Special Fund has not to this day paid one thin dime to Campbell. As a result, it has not sought and has not been denied reimbursement by the employer. The employer’s lack of insurance coverage and failure to qualify as a self-insurer are not conclusive or necessarily indicative of inability to pay.

Until such time as the Special Fund performs its obligation and pays compensation to Campbell and unsuccessfully seeks reimbursement from the employer, the question of its subrogation to Campbell’s rights against the Uninsured Employers’ Fund remains academic. The Board is not required by any statute brought to our attention to give advisory opinions on hypothetical fact situations. We know of no provision for an administrative declaratory judgment, and the declaratory judgment act, KRS 418.040 et seq., does not permit one to be sought for the first time within the appellate process.

We can not say that the Board’s tacit conclusions that the issue here is not yet appropriately ripe for decision and that reserving decision places no undue hardship on the parties are erroneous. Combs v. Matthews, Ky., 364 S.W.2d 647. Historically adjudicative bodies have avoided the decision of abstract disagreements. Re Constitutionality of House Bill No. 222, 262 Ky. 437, 90 S.W.2d 692 (1936).

If and when this fear of non-reimbursement matures into the certainty of a justiciable controversy it will become worthy of disposition by the Board and the courts.

The judgment is affirmed.

All concur.


author: PALMORE, Justice.

text:
    MOTORISTS MUTUAL INSURANCE COMPANY, Appellant, v. Harold A. TERRY, d/b/a Terry’s Sunoco Service Station, et al., Appellees. WORKMEN’S COMPENSATION BOARD et al., Cross-Appellants, v. MOTORISTS MUTUAL INSURANCE COMPANY, Cross-Appellee.
    Supreme Court of Kentucky.
    May 7, 1976.

      William A. Miller, Louisville, for appellant and cross-appellee.
    Shelby T. Denton, Owensboro, Richard H. Schulten, Donald H. Smith, Louisville, for appellees and cross-appellants.
   PALMORE, Justice.

Motorists Mutual Insurance Company appeals from a judgment of the Jefferson Circuit Court dismissing its suit for a declaratory judgment against Harold A. Terry, James D. Hamlet and the Workmen’s Compensation Board. The Board cross-appeals from the judgment insofar as it did not award damages occasioned by a restraining order the insurance company had obtained against the Board at the inception of the proceeding.

Assuming that the insurance company was liable for any costs and damages suffered by the Board by reason of the restraint, cf. CR 65.05(1), we are not disposed to reverse the judgment on the Board’s cross-appeal.

The restraining order merely directed the Board not to adjudicate whether the insurance company had a workmen’s compensation policy covering the claim of Hamlet against Terry then pending before the Board. It could not have precipitated any substantial costs and damages upon the Board except for the expenses of having it lifted. All of the members of the Board were attorneys. According to the papers and documents in the record, including the briefs, it has been solely represented throughout this proceeding by one of its members. Hence it cannot have incurred any counsel fee, nor need it have done so anyway, as the services of the Attorney-General or a departmental attorney were available to it.

The chancellor at first dismissed the action on the basis of improper venue, based on the last sentence of KRS 342.240, which reads: “Unless consented to by the board, all actions or proceedings against it or a member in his official capacity as such shall be brought in the courts of Franklin County.” Terry and Hamlet having failed to answer, however, the insurance company moved for entry of a judgment dismissing the Board but declaring as to Terry and Hamlet that the company had no workmen’s compensation insurance covering Hamlet’s claim against Terry and would not be liable for any benefits awarded in the compensation proceeding. The motion was denied and the action was dismissed as to all defendants.

It was the opinion of the chancellor that Lawrence Coal Company v. Boggs, 309 Ky. 646, 218 S.W.2d 670, 672 (1949), is directly in point. That case holds that just as the Board can determine whether an employment relationship existed between the claimant and the alleged employer, so also may it determine an insurance company’s rights in a compensation proceeding. It does not, however, answer the question of whether the insurance company may have its exposure to liability determined in separate litigation. The company concedes the Board’s jurisdiction in the premises, but contends it is not exclusive.

The principle that a declaratory judgment proceeding will not be entertained to determine rights already in litigation has been applied to questions within the jurisdiction of an administrative body before which they are pending. Pritchett v. Marshall, Ky., 375 S.W.2d 253, 257 (1964). The issue of coverage being within the jurisdiction of the Board, as held in Lawrence Coal Co. v. Boggs, supra, there is no compelling reason why it should be entertained in a declaratory judgment proceeding, and there is a good and sufficient policy consideration to the contrary. The Workmen’s Compensation Act is for the benefit of workmen, who often do not have the financial means demanded by conventional litigation. They should not be required to fight on two fronts, and it is not necessary to a proper resolution of the insurance company’s rights that they be required to do so. Although in this instance the Board has passed the company’s motion for a dismissal to the merits, if its position is sound there is no reason to suppose that the Board will not in due course resolve the matter accordingly, and if its action be erroneous the company’s right to have it rectified by a court of law, through an appeal to the appropriate circuit court (KRS 342.285), will be in no way diminished.

The judgment is affirmed.

All concur.


author: STERNBERG, Justice.

text:
    COMMONWEALTH of Kentucky ex rel. DEPARTMENT FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION et al., Petitioners, v. Squire N. WILLIAMS, Judge, etc., et al., Respondents.
    Supreme Court of Kentucky.
    May 7, 1976.
    R. Lee Armbruster and George L. Seay, Jr., Kentucky, Dept, for Natural Resources and Environmental Protection, Frankfort, for petitioners.
    A. Robert Doll, Ronald D. Ray, Greene-baum, Doll, Matthews & Boone, Lively M. Wilson, Winfrey P. Blackburn, Jr., Stites, McElwain & Fowler, Louisville, Homer W. Ramsey, Whitley City, J. B. Johnson, Sr., Williamsburg, J. T. Begley, Lexington, for respondents.
   STERNBERG, Justice.

In this original action the petitioners, Department for Natural Resources and Environmental Protection and Robert F. Stephens, Attorney General, Commonwealth of Kentucky, seek to prohibit a judge of the Franklin Circuit Court from enforcing an order holding them in contempt. The proceedings which resulted in the issuance of the contempt order came about in this manner.

On November 1, 1974, the petitioners herein filed a civil suit in the Franklin Circuit Court against Morris Stephens and Tombstone Junction Enterprises, hereinafter referred to as the landowners. The purpose of the litigation was to enjoin the use of certain lands in such a manner as would conflict with the “Kentucky Wild Rivers Act”, which was enacted at the regular session of the 1972 General Assembly (SB 138). Simultaneously with the filing of the injunction action, a restraining order was issued against the landowners, in words and figures as follows:

“On motion of plaintiff by verified complaint, it is hereby ordered that the defendants, their agents, and employees and all persons acting in concert with them are temporarily restrained and enjoined from cutting timber, road building and any other land uses not allowed by KRS 146.290 within the exterior boundaries of a stream section designated by KRS Chapter 146 as a Wild River, that section being the Cumberland River from Summer Shoals to the backwater of Lake Cumberland and the defendants’ activities being within the section, approximately 300 feet upstream from Cumberland Falls on the west bank of the Cumberland River in McCreary County, Kentucky, this order to be effective until further order by the Court.”

On November 20, 1974, the landowners filed a motion to dissolve the restraining order and filed a motion to dismiss the complaint. On December 6, 1974, plaintiffs therein filed a motion for a temporary injunction. The circuit judge heard the parties and on December 10, 1974, issued a temporary injunction identical to the restraining order which he had theretofore issued.

The circuit court considered the landowners’ motion to dismiss as a motion for summary judgment, and on June 24, 1975, filed his opinion in which he determined that (1) the “Wild Rivers Act” is constitutional; (2) the landowners are entitled to compensation for deprivation of their rights or interests; (3) the Commonwealth must forthwith initiate proceedings to compensate the landowners, either by negotiation or compensation; and (4) the Attorney General may enjoin landowners from unauthorized use of their land. Thereafter, on August 27, 1975, a formal judgment was entered in which it was provided as follows:

“This matter having come on to be heard by the Court and the Court having considered the record, exhibits, briefs, and oral arguments of the parties and in addition, the brief of Amicus Curiae, and being advised:
IT IS HEREBY ORDERED AND ADJUDGED as follows:
1) The Kentucky Wild Rivers Act, KRS Chapter 146 is constitutional and the injunctive process is available to the Attorney General to prevent or correct a condition constituting a violation of that Act.
2) The Commonwealth shall, simultaneously with the request for injunc-tive relief, initiate proceedings either by condemnation or otherwise to compensate the land owner for the rights to his real property taken by the Commonwealth’s enforcement of the Wild Rivers Act.
3) The Defendants’ motion to dismiss and the motion to dissolve the temporary restraining order are overruled.
4) The Defendants may apply to this Court for such relief as justice may require if the Commonwealth does not forthwith take the action required by this judgment.
5) This matter will be retained on the docket pending further orders of this Court.”

On September 23, 1975, plaintiffs filed their notice of appeal and on October 1, 1975, filed their designation of record. On October 27, 1975, the landowners filed a motion for a rule against the plaintiffs asking that they show cause why they should not be held in contempt of court for not initiating proceedings to compensate the landowners as ordered by numerical paragraph 2 of the judgment of August 27, 1975. The rule issued, and after hearing arguments of counsel for all parties, the court, on November 3, 1975, entered the following order:

“A Rule having issued against plaintiffs, returnable on November 3, 1975, to show cause why plaintiffs should not be held in contempt of this Court and the plaintiffs having appeared and the Court having heard arguments of counsel and having been sufficiently advised, is of the opinion that the plaintiffs have failed to comply with the final Order and Judgment of this Court in that plaintiffs have failed to initiate proceedings to compensate the defendants for their property. Therefore, it is hereby Ordered and Adjudged that the plaintiffs are found to be in contempt of this Court.
In order to allow the plaintiffs the opportunity to appeal to the Court of Appeals, this Order shall not become effective until November 13, 1975.”

Petitioners herein, each of whom were plaintiffs in the Franklin Circuit Court, feeling themselves aggrieved by the order holding them in contempt, on November 6, 1975, filed the present proceedings. They allege that the order holding them in contempt “ * * * is erroneous, and such action is not presently within the jurisdiction of the Franklin Circuit Court, that said order is clearly arbitrary or otherwise illegal, that there exists no adequate remedy by appeal or otherwise, and that great injustice and irreparable injury will occur to Petitioners if the aforesaid order is not prohibited.” A motion to dismiss and a response to the petition for writ of prohibition have been duly and timely filed. Many reasons have been given in support of and in opposition to the petition; however, in view of the decision we have reached, it is necessary that we discuss only two of the arguments.

First of all, appellants, by reason of their positions in government, are not privileged from complying with orders of court. Our government is divided into three branches: executive, legislative, and judicial. Each is independent of the other, yet dependent upon the other. No one, however important or of whatever high position, is above the law. In Wallace v. Sowards, 313 Ky. 360, 231 S.W.2d 10 (1950), we held that the Director of the Kentucky Division of Game & Fish, could be held in contempt. In the course of the opinion we said:

“With all due respect to the public officials of the state, they, as anyone else, must recognize the authority of court judgments.”

Next, it appears that the petitioners herein have an adequate remedy by appeal. The question has been raised as to whether this is a civil or a criminal contempt. For the purposes of these proceedings, it makes no difference. In Miller v. Vettiner, Ky., 481 S.W.2d 32 (1972), we laid to rest the question of the right of appeal in both civil and criminal contempts. In doing so, we said:

“Since it has been clearly established that civil contempts do not come within the statutory denial of an appeal, and since a principal reason for that construction seems to lie in the fact that there is no fixed limitation on the extent of punishment for civil contempt, the same logic by which it is held that the statute does not apply to civil contempts suggests that it does not apply to any contempts, civil or criminal, for which there is no statutory limitation on the amount of punishment. We so hold, but without necessarily precluding the possibility of original proceedings in this court upon appropriate grounds such as inadequacy of the appellate remedy.”

We hold that an appeal lies from the order holding these petitioners in contempt. The order does not assess a fine or fix any penalty for the contempt, but does specifically delay the effective date of contempt to permit an appeal to this court. We cannot speculate as to what will be the nature of the penalty that may be adjudged by the court. For the purpose of these proceedings we can, and do assume that whatever penalty will be adjudged by the court will be within the limits of that court’s jurisdiction.

We further hold that not only do the petitioners have the right of appeal to this court from the contempt order, but that the right of appeal provides adequate remedy under the circumstances presented in this action. Apparently petitioners are of the same mind, for they have appealed the order holding them in contempt. (File No. 75-1177).

In view of this court’s denial of the petition for a writ of prohibition, we find it unnecessary to pass on the motion of the respondent, The Honorable Squire N. Williams, Judge, for an oral argument.

The petitioners’ application for a writ of prohibition is denied.

All concur.


author: DIXON, Presiding Judge.

text:
    Stanton M. GLADDEN et al., Plaintiffs-Appellants, v. KANSAS CITY, Missouri, a Municipal Corporation, Defendant-Respondent.
    No. KCD 27320.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.
    Charles C. Shafer, Jr., H. Howard Cham-berlin, Kansas City, for plaintiffs-appellants.
    Aaron A. Wilson, City Atty., Carrol C. Kennett, Asst. City Atty., Kansas City, for defendant-respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   DIXON, Presiding Judge.

This class action was brought in 1964 in two counts by Kansas City, Missouri firemen for recovery of alleged unpaid overtime. In 1966 the case was dismissed with prejudice but reinstated after appeal. Gladden v. Kansas City, 411 S.W.2d 228 (Mo.1967). On April 11, 1974 summary judgment was granted in favor of defendant City of Kansas City. From that judgment, the plaintiff firemen appeal.

In count one, the firemen sought overtime pay in the amount of $809,113.38 plus interest, for the period October 8, 1956 to March 28, 1964. The claim is based on a construction of Sections 221 and 222 of the Administrative Code of the City then in effect. The relevant parts of the two sections are the same, and it is sufficient to set out parts of Section 221.

“The following salary schedules for positions in the Fire Fighting Group of the Fire Fighting Service are hereby adopted as the standard salary schedules for all such positions in the city service. * *
The normal working and on-duty hours for all positions listed in this section, excepting that of Fire Chief, shall average 56 hours per week.
In cases of emergency, the department head may require overtime work, and shall allow compensation for such overtime work, on the basis of a 56-hour week, at one and one-half times the daily or hourly equivalent of the rates of pay enumerated in this section.
All employees in positions listed in this section shall be separated by the department head into three groups, each group designated to work on one of three successive days and on each third day thereafter. The working day of an employee shall be a 24-hour shift beginning at 7:0Q a. m. on the day assigned and every third day thereafter. During the first 24-hour day following the employee’s assigned working day, he shall remain available for duty on a stand-by basis.”

Relying on the clauses “and shall allow compensation for such overtime work, on the basis of a 56-hour week,” the firemen claim they are entitled to overtime pay for all hours worked in excess of 56 hours in any week. The result is a claim to 4½ hours of unpaid wages every three weeks.

The Code establishes a specific work cycle for firemen. The firemen are on duty 24 hours and off duty the next 48 hours, resulting in a cycle which repeats itself every three weeks. In the first week, a fireman works 65 hours. In the second and third weeks, he works 55 and 48 hours, respectively. The fourth week begins another cycle. The average hours worked per week is 56, considering the Code-prescribed cycle as the period to be used to compute the average.

According to the firemen, however, the 56-hour average has no meaning at all except as a standard for purposes of computing overtime. Thus, in week one of the three-week cycle, 9 of the 65 hours actually worked are overtime, to be computed at the overtime rate of time and one-half. That is the equivalent of 13½ hours straight time for which the firemen were not paid. The firemen generously admit that in weeks two and three they are overpaid for a total of 9 hours. But this 9 hours is overpayment at straight time. The difference between straight time overpayment (9 hours) and overtime underpayment (13½ hours) is 4½ hours, the amount for each three-week cycle for which the firemen bring the action in count one to recover unpaid overtime.

Firemen’s first allegation of error is that the trial court’s memorandum indicates that the basis for a denial of recovery on count one rests on the assumption overtime must be computed on a daily basis (time over a 24-hour work shift), rather than on the basis of a seven-day week. The firemen insist, without citing any authority, that “overtime is, traditionally and by every known decision, computed on a weekly basis.” That assertion is incorrect. In arriving at a definition of overtime for a case before it, the United States Supreme Court said, “Sometimes it is used to denote work after regular hours, sometimes work after hours fixed by contract at less than the statutory maximum hours and sometimes hours outside of a specified clock pattern without regard to whether previous work has been done. . . . ” For that case, overtime was defined as “that extra pay for work because of previous work for a specified number of hours in the work week or workday” (emphasis added). Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948). The trial court was not bound to compute overtime on the basis of a seven-day week.

Firemen contend that their theory of overtime computation flows from the simple meaning of the words in the Code. To the contrary, the Code plainly sets out regular work schedules and overtime provisions irreconcilably at variance with the firemen’s convoluted construction. The 24-hour on, 48-hour off schedule is the regular schedule established by the Code. The fact that a 65-hour week occurs once every three weeks is a fact structured into the regularly prescribed schedule. In this context, the most reasonable meaning to ascribe to overtime is time worked beyond the regularly established working hours, i. e., beyond the 24-hour shift. (For a similar construction of the meaning of overtime, see Prosecutor’s Det. & Inv., Etc. v. Hudson Cty. Bd., Etc., 130 N.J.Super. 30, 324 A.2d 897 (1974); Taylor v. City of Cleveland, 87 Ohio App. 132, 93 N.E.2d 594 (1950), and Goodman v. Moss, 43 N.Y.S.2d 381 (Sup.Ct.1943), mod., 269 App.Div. 839, 56 N.Y.S.2d 534 (App.Div.1945). Additionally, the Code explicitly says the normal hours for firemen, excepting the Fire Chief, shall average 56 hours. If normal hours average 56 hours per week, the plain implication is that in some weeks the normal hours add up to less than 56 hours and in other weeks it is normal to exceed 56 hours. That, of course, is the result of the work cycle established by the Code’s shift pattern.

The paragraph the firemen so heavily rely on begins, “In cases of emergency, the department head may require overtime work . . . .” In this context, reference to a 56-hour week in a following clause in the same sentence — a week which in the firemen’s schedule is non-existent except as an average — surely refers to the cycle in which hours per week average 56.

This construction of the Code is consistent with the principle that provisions of a legislative enactment should be construed together and harmonized whenever possible. Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86, 160 A.L.R. 990 (banc 1944); State ex rel. McCubbin v. McMillian, 349 S.W.2d 453 (Mo.App.1961). Also, city administrators have construed the Code contrary to the firemen’s interpretation, and respectful weight should be given a construction of provisions of an ordinance by administrative officials. City of Joplin v. Joplin Water Works Company, 386 S.W.2d 369 (Mo.1965); Hogan v. Kansas City, 516 S.W.2d 805 (Mo.App.1974). It is clear that it was not intended by Sections 221 and 222 that overtime be computed in the manner the firemen contend.

Count two is predicated upon a 1964 change in the Code. The Code as amended reads, in pertinent part:

Section 213. Overtime and compensatory time. All overtime or arrangements for overtime shall be approved in advance by the department head and the city manager. Pay for overtime to any employee shall be at the straight hourly equivalent rate for his position classification, for all hours worked in excess of the stipulated standard work week.
Section 215. Working hours. Regular working hours for all full-time employees shall be forty (40) hours each week, which shall be the standard unless otherwise provided by departmental regulation approved by the city manager; all members of the fire-fighting service shall work a 56-hour week, except for the fire chief, who shall work a 40-hour week.

The construction urged in support of count two is that “stipulated standard work week” can mean only a 40-hour week for all employees, including firemen. “Week” is singular, precluding there being more than one standard work week for firemen. The result contended for is that the firemen are due full overtime pay for all hours worked in excess of 40 hours per week under the 1964 Code change.

As to count two, firemen’s insistence that there is only one standard work week ignores the fact that in legislative enactments, the singular may be taken as including the plural. In re Dean’s Estate, 350 Mo. 494, 166 S.W.2d 529 (banc 1942). Their construction also requires reading Sec. 215, which specifies a 56-hour week for firemen, as providing that firemen must work an average of 16 hours overtime per week. Yet Sec. 213 plainly says that all overtime shall be approved in advance by the department head and the city manager. Construing the two sections together, it is plain that for all employees there is a standard work week, but for firemen that standard is 56 hours rather than 40 hours.

This court in Hogan v. Kansas City, supra, clearly stated that firemen “have a completely different situation from that of other city employees.” In that case, variances in fringe benefits (hours worked, annual leave, sick leave and vacation leave) were cited as illustrative of the differences. It was held that there was a difference in the way “in lieu” holiday provisions applied to firemen and other city .employees. In this case also, there are clear differences in the applicability of “standard work week” to the situation of firemen and the situation of other city employees. The firemen are owed no overtime for weeks in which they worked over 40 hours pursuant to their normal schedule.

The reasoning in this case is in accord with cases from other jurisdictions involving analogous claims to alleged unpaid overtime. Satterley v. City of Flint, 373 Mich. 102, 128 N.W.2d 508 (1964) and Taylor v. City of Cleveland, supra.

The firemen also allege that the trial court erred in considering acquiescence a valid defense, especially to count two since it was not pleaded as a defense to that count. The trial court having correctly construed the Code and reached the correct result, its error, if any, in the reasons assigned for the result reached would be immaterial. It is thus unnecessary to consider this second assignment of error. Commercial Union Insurance Co. v. Farmers Mut. Fire. Ins. Co., 457 S.W.2d 224 (Mo.App.1970); Dill v. Poindexter Tile Company, 451 S.W.2d 365 (Mo.App.1970). The summary judgment in favor of defendant City is affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    STATE of Missouri, Respondent, v. David L. PANTER, Appellant.
    No. KCD 27455.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.

      Austin B. Speers, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

On a change of venue from the Platte County Circuit Court, a jury in the Clay County Circuit Court found David L. Pan-ter guilty of selling a controlled substance (heroin) and fixed his punishment at 20 years’ imprisonment. This appeal is from the ensuing judgment and sentence.

Stephen Dennis Courtois, who was employed by the Platte County Sheriff’s Office as a deputy sheriff for the specific purpose of investigating narcotics traffic, testified that, at around 11:00 P.M., June 27, 1973, he, accompanied by Susan Cole, went to Panter’s apartment in Platte County. There Panter handed him an envelope which Panter said contained heroin and Courtois paid Panter $155, the price Panter fixed for the contents of the envelope. Subsequent chemical analysis of the contents of the envelope confirmed that it was in fact heroin.

Panter was arrested December 12, 1973 on a charge of illegal sale of a controlled substance, based on the June 27th sale to Courtois.

Panter testified in his own behalf and denied having made the sale to Courtois. The defense also produced deposition testimony of Susan Cole that she had never seen Panter make a sale of drugs.

On this appeal two points relied upon relate to the testimony of Thomas Goodner. Goodner was a private detective whom the defendant’s attorney had employed to investigate civil cases handled by the attorney. After Panter employed him in this case, the attorney suggested to Goodner that he get in touch with Panter, that Pan-ter might want his services as an investigator. Panter did employ Goodner, paying him $1300 as a partial payment for his services. A dispute arose between Panter and Goodner about further payment and Goodner brought suit to recover for the work he claimed to have done and for which he had billed Panter $594.00. The suit was settled by a payment by Panter to Goodner of an additional $250.00.

The trial of the criminal charge was set for May 20, 1974. On Friday evening, May 17, counsel for the defendant was advised that the state intended to ask leave to endorse Goodner as a witness for the state. On May 20, the court permitted the endorsement and continued the case to May 22, to permit defendant to take Goodner’s deposition if he wished. On May 21, a motion was filed on behalf of defendant, in which it was alleged that Goodner had been employed by Panter on the advice of his attorney and that a confidential relationship existed between Panter and Goodner and that all communications, writings, statements or material obtained by Goodner in the course of his investigation were absolutely privileged and could not be used by the prosecution. The motion requested that Goodner not be permitted to testify and that no material he had obtained in the course of his investigation be allowed in evidence at the trial. The motion was overruled.

Goodner was called as a witness for the state, and, over defendant’s renewed objection that he was disqualified, testified to matters learned by him in the course of his investigation in defendant’s employ. Good-ner said that, in his investigation on behalf of Panter, he uncovered some matters which he asked Panter to clarify at a meeting at Kansas City International Airport in January, 1974. Goodner stated that he asked Panter directly whether or not he actually was involved in the June 27th sale and Panter “indicated” to him that he had sold a quantity of heroin to a man he knew as Steve Behen with Susan Cole present at his apartment. (Courtois used the name “Steve Behen.”)

On this appeal, appellant’s first claim of error in permitting Goodner’s testimony is premised upon the contention that, as Panter’s agent, Goodner’s statements could not be admitted against his principal when he was not authorized to make such statements. This contention is so obviously lacking in merit as to require little attention. This is not a case of an agent speaking on behalf of his principal. He was testifying to statements made to him by his employer, which statements amounted to admissions of the charge for which the employer was on trial. As admissions against interest, the statements were admissible on such trial.

The second assertion with respect to Goodner’s testimony is that communications between appellant and Goodner were privileged. For this purpose, he relies upon an extension of the attorney-client privilege. § 491.060(3), RSMo 1969. The attorney-client privilege is extended to the media of communication between a client and his attorney. Tyler v. Hall, 106 Mo. 313, 17 S.W. 319, 321 4. (1891); 58 Am.Jur. Witnesses, § 498, p. 279 (1948). However, there was no showing in this case that the conversation between appellant and Goodner was for the purpose of enabling Goodner to convey the information to appellant’s attorney. The role of the attorney in the Goodner investigation is vague. Except for the fact that the attorney suggested that Goodner get in touch with appellant, nothing appears of dealings between Goodner and the attorney. Absent evidence that the information was given to Goodner for the purpose of having him convey it to the attorney, the attorney-client privilege did not preclude Goodner’s testimony.

Appellant also complains of the short time before trial within which he was notified of the intention to endorse Goodner as a witness. When this complaint was voiced to the trial court, the court directed the state to make the witness available should the defense wish to depose him. The defendant did not elect to take advantage of the opportunity to learn the witness’s testimony. In such circumstances, there has been no showing of abuse of the discretion entrusted to the trial court on this matter. State v. Hampton, 172 S.W.2d 1, 3[7] (Mo.1943); State v. Cobb, 444 S.W.2d 408, 415[13, 14] (Mo.1969).

Appellant’s next assignment of error relates to the admission of Goodner rebuttal testimony.

In the cross-examination by the prosecuting attorney of appellant, the following occurred:

“Q And you never sold him [Courtois] any kind of substance at any time?

“A No, sir.

“Q You never told Mr. Goodner you did?

“A No, sir.

“Q Isn’t it a fact Mr. Goodner confronted you with the results of his investigation and that you owned up to 'Yes, I sold it,’ isn’t that what happened?

“A No.

“Q Did you make any indication to Mr. Goodner that day at Kansas City International Airport that you had ever sold anything?

“A No, sir.

“Q Any controlled substance, drugs?

“A I’ve never sold anything to anyone.

“Q I beg your pardon?

“A I’ve never sold anything to anyone at any time.

“Q Ever?

“A Just auto parts.

“Q You ever represented to anybody that you sold drugs?

“A No, sir. My business was founded basically on loving people and doing things for people which is why the doors are still open in spite of all this.”

Goodner was recalled by the state as rebuttal witness, and asked if appellant “ever wrote out a list of drugs sales and gave it to you.” Defense counsel objected that the matter was immaterial, “not proper rebuttal,” irrelevant, and sought to impeach on a collateral issue. The objection was overruled. The witness then identified a document as a list of names which Panter gave him at a conference at Kansas City International Airport and told him that it contained the names of persons he had bought drugs from and sold them to, and a code showing the drugs involved and the regularity of his activity. According to Good-ner, Panter prepared the list in his presence after Goodner told him the information he had discovered and stated that he “was tired of getting surprises.”

On this appeal, appellant’s brief is woefully deficient in stating, in its points and authorities, the reason relied upon in assigning the ruling of the trial court as error. Here the point stated is merely that the trial court erred in allowing rebuttal testimony by Goodner over defendant’s objections. Rule 84.04(d) requires “Points Relied On” to include not only the actions of the trial court sought to be reviewed but also “wherein and why they are claimed to be erroneous, * * The argument is of little assistance in revealing the basis of the claimed error. The cited cases (State v. Reed, 447 S.W.2d 533 (Mo.1969); State v. Jackson, 495 S.W.2d 80 (Mo.App.1973), and State v. Carter, 475 S.W.2d 85 (Mo.1972)) state and apply the general rule prohibiting evidence of other crimes. Appellant also cites State v. Earvin, 510 S.W.2d 419 (Mo.1974), which dealt with the admissibility of evidence of another offense as rebuttal testimony.

There can be no doubt that the general rule prohibits evidence of an accused’s involvement in another crime. Likewise, it is settled that where a defendant takes the stand and, for purposes of impeachment, is cross-examined on collateral matters, his answers to such inquiries are conclusive, and they may not be the subject of rebuttal testimony. The above cases, cited by appellant, support these general propositions.

The state relies upon exceptions to these rules, laid down in State v. King, 342 Mo. 975, 119 S.W.2d 277 (1938) and State v. Wilson, 320 S.W.2d 525 (Mo.1959). King involved a statutory rape charge against a school attendant in which the defendant, testifying on direct examination, stated, in effect, that he did not have sexual intercourse with any of the girl students. On cross-examination, he was asked about correspondence between himself and another girl student, indicating such relation with her. He denied such relation and the correspondence between the defendant and the second girl was introduced in evidence by the state as impeachment. On appeal, defendant contended that the evidence of another offense was improperly admitted and also asserted that the state was bound by his replies to the questions on this collateral matter. In holding that the introduction of the letters in evidence was not error, the court stated (119 S.W.2d 283-284):

“ * * * Undoubtedly, where there is evidence to support a charge that the accused committed statutory rape, proof that he had recently theretofore perpetrated the same or other like degenerate acts upon other female children of tender years would be corroborative, just as proof of his prior good character would tend to repel the charge. And although such proof cannot be introduced by the State to help out its case in chief, yet we think it should be allowed to do so in rebuttal when the defense initially has made a showing on that question. Certainly the accused ought not to be permitted to tender the issue and gain the benefit of so doing, and then contend there is no such issue, or that the question is immaterial, when the prosecution offers to meet it. It would be like letting the defendant put his character in issue and then denying to the State the right to introduce evidence to the contrary. Owing to the difference in its facts, we shall not go so far as to say here that State v. Buxton, supra, 324 Mo. 78, loc. cit. 85, 22 S.W.2d 635, loc. cit. 638(4) should be overruled; but we do hold the decision is not authority on the question presented by this record, and that the trial court did not err in admitting the letters in evidence.

“The appellant further contends that when the assistant circuit attorney cross-examined him about his clandestine relations with the girl M. W. and their letter writing, in an effort to elicit from him discrediting admissions of guilt with respect to these collateral matters, the State was bound by his answers and could not introduce the letters to contradict him. That is the rule where the State injects the question into the case, State v. Ansel, Mo.Sup., Div. 2, 256 S.W. 762, 764(6); State v. Bagby, 338 Mo. 951, 964, 93 S.W.2d 241, 248(11). But where, as here, the defense tenders the issue the State has a right to meet it.”

State v. Wilson, supra, was a sodomy prosecution in which the defendant on direct examination denied having committed the act with the prosecuting witness or anyone else. On cross-examination, he reiterated this broad, general denial. The state was permitted, in rebuttal, to produce testimony of another person as to defendant’s having committed the act upon him. The court followed State v. King, supra, in holding the admission of this evidence was not error.

There is one difference between those cases and the present one in that, in those cases, the broad, general denial occurred originally in the defendant’s direct examination. Here, the sweeping denial occurred in cross-examination. However, it was volunteered, not a direct reply to a question posed by the prosecutor. In this situation, the King and Wilson exceptions to the general rules remain applicable. United States v. Bell, 165 U.S.App.D.C. 146, 506 F.2d 207 (1974), supports this conclusion. There a defendant charged with illegal sale of narcotics volunteered, on cross-examination, that he had never seen narcotics. The prosecution was permitted to produce evidence, in rebuttal, of another sale in which the defendant was involved. In holding this was not error, the court stated (506 F.2d 207, 214-215):

“In the instant case, Bell represented himself not only as an industrious businessman on Pier 1 merely to buy fish and chat with friends, but also as one who had never seen narcotics except on television, and consequently one who did not traffic in them. Evidence tending to show that Bell had previously transacted a sale of narcotics obviously bore a high degree of relevance to his credibility in disclaiming any acquaintance with narcotics. And since Bell’s defense to the charges on trial was largely self asserted, the jury’s need to accurately assess Bell’s credibility was vital. Officer Miller’s rebuttal testimony went no further than the necessities of meeting Bell’s self-volunteered declaration of unfamiliarity with narcotics, and promised more than enough of a contribution to the cause of truth to outweigh the attendant risks.”

It may be well to note that the rule of the King and Wilson cases is not universally applied. Wigmore is critical of the rule and cites cases in other jurisdictions reaching a contrary result. III A Wigmore on Evidence (Chadbourn Rev.) § 1007, p. 979 (1970). However, this court is obliged to follow the most recent pronouncement of the Supreme Court and King and Wilson are such. This court will not endeavor to fix the present status of earlier pronouncements in State v. Buxton, supra, distinguished in both King and Wilson, or State v. Cox, 263 S.W. 215 (Mo.1924). King and Wilson uphold the trial court’s action in this case and the admission of the rebuttal testimony was not error.

Appellant presented the deposition of Susan V. Cole. The state lodged some general objection to the use of the deposition. It also objected specifically to a number of questions and answers and the trial court sustained a number of such objections. The defendant read portions of the deposition, above referred to. Then the defendant offered the entire deposition in evidence as an offer of proof of improper conduct on the part of Courtois. The offer of the entire deposition was rejected. Appellant now contends such ruling was error.

In advancing this assignment, appellant has made no effort to demonstrate that the state’s objections, which the court sustained, to major portions of the deposition, were lacking in merit and that the trial court’s ruling on any of them was erroneous. The offer of the deposition was in the form of an offer of proof. If any part of an offer of proof is inadequate, the entire offer fails. Lott v. Kjar, 378 S.W.2d 480, 483-484[1, 2] (Mo.1964).

Here, the trial court had previously determined an inadequacy of a large part of appellant’s offer of proof. If he is to prevail here, he must demonstrate error in such rulings and he makes no effort whatsoever to do so. It is not the duty of this appellate court to go through the deposition for this purpose. The necessary conclusion is that no error has been demonstrated.

Appellant’s final contention is that the trial court erred in overruling his motion to dismiss because of illegal conduct of prosecution witnesses and informers. The motion alleged many instances of claimed illegal activity, largely on the part of Courtois. The great bulk of the allegations had nothing to do with the charge against appellant. In support of his claim of error, appellant cites only language in Patty v. Board of Medical Examiners, 9 Cal.3d 356, 107 Cal.Rptr. 473, 508 P.2d 1121 (1973), condemning entrapment by police officers. There is no question that entrapment is a valid defense to a criminal charge, but appellant did not rely on that defense here.

Appellant has cited no authority holding that illegal activities by law enforcement officers, not related to the charge at hand, will be grounds for the dismissal of such charge. Insofar as the charges of illegal activity do relate to the charge at hand, evidence to such effect may be relied upon insofar as it might give rise to a legally recognized defense, such as entrapment, and insofar as such activities might be relevant on credibility issues. The novel contention that such activity is grounds for dismissal of the charge is rejected.

Judgment affirmed.

All concur.


author: SWOFFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Marlon HOOKER, Appellant.
    No. KCD 27848.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.

      Thomas M. Larson, Public Defender, R. William Bloemker, Asst. Public Defender, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SWOFFORD, Judge.

Appellant (hereafter defendant) was tried before a jury for the crime of rape. The jury returned a verdict of guilty but was unable to agree upon the punishment and the defendant was sentenced by the court to a term of twenty-five (25) years imprisonment. From this judgment and sentence, he appeals.

Defendant does not challenge the sufficiency of the evidence but raises two assignments of error upon which he seeks this court’s mandate of reversal. First, he asserts error by the trial court in failing to sustain his objection to a comment by the assistant prosecuting attorney in his closing argument. Second, he asserts error by the trial court in failing to sustain his objection to the presentation of certain testimony offered by the state in rebuttal. A resolution of these points requires a summary of the facts.

The prosecutrix testified that at about 5:00 p. m. on August 26,1974, she was alone at her residence at 1319 Van Brunt in Kansas City, Jackson County, Missouri; she heard a noise on her front porch which she presumed was made by the mailman; she opened the door and at first saw no one; and suddenly, a man appeared with a small handgun, threw open the screen door, grabbed her by the arm and shoved her into the house. The man checked the house for other occupants, pushed her into a bedroom, and ordered her, at gunpoint, to undress. The intruder then undressed, ordered her onto a bed, forced her to have sexual intercourse with him, dressed and left the premises. While her assailant was in the process of undressing before the rape, he held the gun in his left hand and steadied his balance with his right hand on the surface of a dresser near the bed.

After the man left, the prosecutrix called the police and upon their arrival gave them a full description of her attacker. The next day, she identified the defendant in a lineup at police headquarters, and at the trial she made a positive, unequivocal in-court identification. Investigating police officers were able to obtain three latent fingerprints from the dresser in the bedroom, which were identified at trial as being those of the defendant.

The trial of this case commenced on January 6, 1975, and approximately 30 days prior to that date, defense counsel advised the state that the defendant intended to rely upon an alibi defense, in compliance with Rule 25.34(A)(5), effective July 1,1974.

In support of this defense, the defendant’s mother, Mary Ann Hooker, testified that he was in her company on August 26, 1974, the day of the crime, from 3:22 p. m. to 6:10 p. m.; that at precisely 3:22 p. m. she, the defendant, her daughter, Rhonda Hooker, her other son, Donald Hooker, and a woman friend, Willa Moore, left her residence at 1816 Benton Boulevard by automobile for the purpose of going to Macy’s department store at 10th and Main in downtown Kansas City; en route, she stopped at a filling station for gasoline; thereafter, dropped her passenger friend at the Board of Education Building at 12th and Oak, also in the downtown area; and, then drove to a parking lot behind Macy’s, parked the car and proceeded with the defendant and her daughter to Macy’s shoe department. She stated that she purchased shoes for the defendant and her daughter, as evidenced by a charge account sales receipt. While at Macy’s at 5:00 p. m., she introduced the defendant to a Mr. Holloway, whom she met then by chance and who was a friend of hers. At 5:30 p. m., she picked her friend up at the Board of Education Building and proceeded back to her home on Benton Boulevard, arriving there at 6:10 p. m., her son, defendant, still in her company.

Rhonda Hooker, the defendant’s sister, substantially corroborated this testimony. Willa Moore testified that she was dropped off at the Board of Education Building between 3:30 p. m. and 4:30 p. m. and was picked up after 5:30 p. m., and that on both occasions, the defendant was in Mrs. Hooker’s car. Charles Holloway, Jr. testified that he met Mrs. Hooker in the shoe department of Macy’s and was introduced to defendant at around 5:00 p. m.

The defendant testified in his own behalf and corroborated his mother’s account of their activities on the afternoon in question. He further testified that he had never been in the home of the prosecutrix; that he did not know her and did not rape her; that he had no idea how his fingerprints could have gotten on the bedroom dresser and did not believe they were his prints. Thereupon, the defense rested.

The state’s rebuttal evidence (the admissibility of which is the subject of defendant’s second assignment of error) consisted of the testimony of two witnesses, employees of Macy’s.

William H. MacKinnon, Director of Security, identified and testified as to the authenticity of cash register tapes, sales audit receipts and a time card of a salesman, all with reference to Macy’s business in the shoe department for the day in question. Preliminarily, he stated that, while all use the same register, each salesman has an individual “key” for the register, which he uses to identify his personal sales, so that the same can be totaled for each day. He stated that these records showed that the sale to Mrs. Hooker by the particular salesman involved took place 12 transactions before another salesman rang up his total for the date, and that the time card showed this employee “checked out” from work at 4:10 p. m. on August 26, 1974.

The manager of this department testified that on the basis of the records and the testimony of MacKinnon and the length of time it takes to serve a customer, make a sale and write it up, the sales to Mrs. Hooker would have been made one-half hour or more before 4:10 p. m., the time the other salesman involved checked out his time. He stated that from these records the sale to Mrs. Hooker was made not later than 3:40 p. m., which time by simple arithmetic calculation would be 18 minutes after Mrs. Hooker testified she left her home in the company of the defendant.

In his opening argument, the assistant prosecuting attorney, commenting upon this facet of the state’s rebuttal testimony and after recalling Mrs. Hooker’s testimony as to her itinerary, said:

“MR. JAMES: * * * Well, it is physically impossible to get from 18th and Benton to the Board of Trade (sic), to a parking lot behind Macy’s, down to the budget shoe sales * * * ”

The defense thereupon objected:

“MR. BLOEMKER: I am going to object to that. There has been no testimony on the possibility or impossibility of accomplishing that.”

The court ruled:

“THE COURT: That is argument. I think it’s a reasonable inference to be drawn from the evidence. Overruled.”

The defendant urges this ruling as reversible error. The ruling was not error. The settled law in this state is that a prosecutor may not argue matters not in evidence. State v. Swing, 391 S.W.2d 262, 265[3] (Mo.1965); State v. Furgerson, 152 Mo. 92, 53 S.W. 427, 428-429[4] (1899). However, it is equally well-settled that, in argument, a prosecutor may draw any inferences deducible from the facts in evidence. State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, 306[7] (Mo. banc 1956); State v. Taylor, 508 S.W.2d 506, 514[16] (Mo.App.1974). It was a proper inference from the evidence for the assistant prosecutor to argue that from the defendant’s mother’s testimony of the activities, routes and stops that she and her son made between 3:22 p. m. (he omitted the stop for gasoline) and the testimony of rebuttal witness Hopewell that the records showed the shoe sale could not have been made later than 3:40 p. m., it was impossible that all this could be accomplished within a time span of eighteen minutes.

The trial court has wide discretion as to the latitude to be permitted in counsels’ closing arguments. State v. Hill, 328 S.W.2d 656, 660[7] (Mo.1959); State v. Wright, 515 S.W.2d 421, 432[8] (Mo. banc 1974). This court will not reverse the trial court’s ruling on the propriety of counsel’s argument unless there has been a * clear abuse of discretion. State v. Jewell, 473 S.W.2d 734, 741[8] (Mo.1971); State v. Hill, 328 S.W.2d 656, 660[7] (Mo.1959). No such abuse of discretion appears in this record. Defendant’s first assignment of error is ruled against him.

The basis for defendant’s second assignment of error arises from the following trial incidents:

After the defense concluded his case, the court inquired of the assistant prosecutor if it was the state’s intention to present rebuttal evidence. In response to this inquiry, the assistant prosecutor advised the court that some difficulty had been encountered in contacting the Macy’s employees to be used as rebuttal witnesses, but that “they were on their way”. At this point, the trial judge suggested that the time be utilized to settle the instructions, and this was done without objection or further discussion with reference to the state’s rebuttal testimony.

It is then evident from the record that the assistant prosecuting attorney thereafter had Mr. William MacKinnon present and ready to testify. The following appears:

“MR. BLOEMKER: (Defense counsel) Well, at this time, I am going to object to the testimony of this witness in that he hasn’t been previously endorsed. I don’t have any idea what his testimony is going to be.
“MR. SCHRADER: (Assistant Prosecuting Attorney) This is rebuttal testimony, Your Honor. We have no duty or obligation to endorse rebuttal witnesses.
THE COURT: Overruled.” (Emphasis supplied)

At the conclusion of Mr. MacKinnon’s testimony, the state called Mr. John Hopewell and the following appears:

“MR. BLOEMKER: I am going to object to the testimony of this witness on the same grounds I objected to the testimony of the previous witness in that he hasn’t been endorsed. I have had no chance to discover what his testimony will be. At this time I have no idea what it will be, and I am caught completely unaware.
THE COURT: It’s rebuttal testimony. I don’t know there is any obligation to furnish rebuttal testimony. Overruled. Proceed.” (Emphasis supplied)

Rule 24.17, Rules of Criminal Procedure, requires that the names of all material witnesses be endorsed upon an indictment or information. This rule has remained as controlling in criminal proceedings and virtually without change since 1951. Its source is found in Missouri statutes dating back to 1879. However, the decisional law has long held that rebuttal witnesses need not be so endorsed. State v. Malone, 301 S.W.2d 750, 758[25] (Mo.1957); State v. Payne, 342 S.W.2d 950, 954[4, 5] (Mo.1961); State v. Washington, 383 S.W.2d 518, 524[11, 12] (Mo.1964). In State v. Peel, 469 S.W.2d 33, 36[3] (Mo.1971), and State v. Gamache, 519 S.W.2d 34, 41[12] (Mo.App.1975), this rule was applied to witnesses called by the state in rebuttal to an alibi defense. The ruling of the trial court to the defense objections was, therefore, proper and free from error.

In his motion for a new trial, this matter was thus presented:

“7. The court erred in allowing the state to present rebuttal witnesses without allowing defendant’s attorney the opportunity to be apprised of the nature of their testimony and the opportunity to interview said rebuttal witnesses, in that counsel was placed at a gross disadvantage in efforts to effectively cross-examine the rebuttal witnesses and defendant was thereby deprived of the right to counsel, due process and equal protection of the law as guaranteed by the Fourteenth Amendment of the Constitution of the United States.” (Emphasis supplied)

In his points relied on (II) in his brief filed in this appeal, the defendant stated:

“The court erred in failing to sustain appellant’s objection to the presentation of rebuttal testimony * * (The balance of the point is substantially the same as paragraph 7 of the Motion for a New Trial, above set forth).

The state strongly asserts that the basis of defendant’s claim of reversible error (II) is different than the one asserted below; that, therefore, the trial objection has been “abandoned” pursuant to Rule 28.02; that defendant has committed several “blatant violations” of Rule 84.04(d); and, thus preserved nothing for review on his second assignment of error. While such technical faults could be justifiably found, due to the serious crime charged, the age of the defendant, and the sentence imposed, each of the charges of error in the trial, after-trial motion and here, have been given full consideration, and no error is found as to defendant’s second point.

It should be noted that in the defendant’s motion for a new trial and here upon appeal, the scope of his trial objections is at least vastly broadened and enlarged, if not completely changed. The principal thrust of his assignment of error in the motion and in his brief before this court is that by failing to sustain his trial objections and permitting the state to present the rebuttal evidence, he was deprived of an “opportunity” to make appropriate discovery, was placed at a “gross disadvantage” and deprived of substantial constitutional rights. (These asserted constitutional deficiencies are without merit and, in any event, cannot be considered because not raised at the earliest opportunity, and are untimely.) By the same token, the defendant made no attempt to avail himself of any discovery proceedings which may have been available to him under the old sections of Rule 25, Rules of Criminal Procedure, or the new 'sections of that rule, which became effective July 1, 1974, nor did he ask the court for any relief which may have been available by court order thereunder before trial. Neither did he request an adjournment or recess of the trial in order to be afforded an opportunity to interview the rebuttal witnesses. Where the discretion of the trial court has not been invoked, it cannot be said that there was an abuse of that discretion. State v. Perryman, 520 S.W.2d 126, 128[3] (Mo.App.1975).

The judgment is affirmed.

All concur.


author: WASSERSTROM, Judge.

text:
    STATE ex rel. the GAS SERVICE COMPANY, Relator-Appellant, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent.
    No. KCD 27987.
    Missouri Court of Appeals, Kansas City District.
    March 29, 1976.
    Motion for Rehearing and/or Transfer Denied May 3, 1976.

      Donal D. Guffey, Kansas City, for relator-appellant.
    Leland B. Curtis, Paul W. Phillips, Jefferson City, for respondent Public Service Commission of Mo.
    Aaron A. Wilson, Carrol C. Kennett, Kansas City, for intervenor-respondent Kansas City, Mo.
    Stanley P. Christopher, Russell D. Jacobson, Jeremiah Finnegan, Kansas City, for intervenor-respondent Jackson County, Mo.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

This case arises from a denial by the Missouri Public Service Commission of an application by The Gas Service Company for an interim increase in rates pending determination of its application for a larger permanent increase.

On December 28, 1973, Gas Service applied for a permanent increase in rates to produce additional revenues of $5,397,636. The proceedings for this permanent increase bore Case No. 17994. The Commission suspended the effective date of that proposed increase under the provisions of § 393.150(1). (All statutory references herein are to RSMo 1969.)

Thereafter on May 3, 1974, Gas Service filed another application for an interim increase in rates pending the hearing and determination of Case No. 17994. The proceeding on this additional application bears Case No. 18096 and if granted would have produced a maximum increase in revenue of $1,147,886. The effective date of the proposed interim increase would have been June 3,1974, under the provisions of § 393.-140(11). A hearing was held in Case No. 18096 on May 30, 1974, and Gas Service voluntarily extended the proposed effective date from June 3 until July 3,1974, in order to provide time for the Commission to duly consider the record. On July 3, 1974, the Commission suspended the effective date of the requested interim increase, under the authority of § 393.150. Gas Service filed motion on July 10, 1974, to set aside that suspension.

On July 18, 1974, the Commission by a three to one vote denied the requested interim increase. Gas Service filed motion for rehearing which was overruled, and it then filed petition for review in the circuit court pursuant to § 386.510. While that review prdceeding was pending in the circuit court, the Commission on September 30, 1974, issued its Report and Order in the Case No. 17994 granting an increase in the full amount requested by Gas Service. On April 17, 1975, the circuit court affirmed the Commission, and the present appeal is from that judgment.

As already noted, a permanent increase was granted to Gas Service a year and a half ago, thereby terminating the interim period for which Gas Service had sought a temporary increase. Therefore the interim increase requested has become impossible, unless it could be granted retroactively. The law of this state is clear that this cannot be done. State ex rel. Capital City Water Co. v. Public Service Commission, 298 Mo. 524, 252 S.W. 446 (banc 1923); Lightfoot v. City of Springfield, 236 S.W.2d 348 (Mo.1951).

Gas Service suggests overcoming this hurdle by calculating the amount which a reasonable interim increase would have produced and then amortizing that sum over a future reasonable time period. However that proposed procedure was rejected by the Missouri Supreme Court en banc in the Capital City Water Co. case, 252 S.W. at pp. 457-458[12]. The opinion in that case, on facts analogous to those here, concluded that the complaint, that temporary rates set by the Commission were confiscatory, had become moot by reason of expiration of the experimental period.

Gas Service argues that the ruling on mootness in Capital City Water Co. is mere dictum and therefore not valid or controlling precedent, because that opinion also held the temporary rates there in question were not unreasonably low. However, “[wjhere the opinion accompanying a decision invoked as a precedent stated several reasons for the decision, although a single reason would have been sufficient to support the holding reached, none of the reasons indicated is to be considered as a mere dictum, rather each is to be treated as a precedent embraced by stare decisis.” 20 Am.Jur.2d, Courts, § 190, p. 527.

An exception is made to the mootness doctrine when a case presents an important legal issue of public importance which is likely to recur and which would not otherwise be reached by an appellate court. Under that exception, the case of State ex rel. Laclede Gas Co. v. Public Service Commission of Missouri, Mo.App., 535 S.W.2d 561, has been decided concurrently herewith. The legal issues which control this case have already been set forth in the Laclede opinion, and there is no need to restate those principles here. The only thing which would remain for decision in this case is the application of the general principles to the particular facts here, but nothing would be gained by doing so since no judicial action could be forthcoming even if this court were to undertake that labor.

For the reason stated, the appeal is dismissed.

All concur.