author: GANT, Judge.

text:
    DEPARTMENT OF REVENUE ex rel. J. E. LUCKETT et al., Appellants, v. ALLIED DRUM SERVICE, INC., Appellee.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.
    Discretionary Review Granted June 8, 1977.

      William S. Riley, Asst. Atty. Gen., William P. Sturm, Atty., Legal Staff Dept, of Revenue, Frankfort, for appellants.
    Irwin G. Waterman, Louisville, for appel-lee.
    Before GANT, HOWERTON and REYNOLDS, JJ.
   GANT, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court overruling an order of the Kentucky Board of Tax Appeals which affirmed a ruling of the Kentucky Department of Revenue assessing additional sales and use taxes against the Appellee, Allied Drum Service, Inc. The issue is whether Allied Drum Service, Inc. is entitled to an exemption under Ky.Rev.Stat. 139.480(8) from imposition of the sales tax with respect to the purchase of new machinery for use in its plant.

Prior to December, 1960, the Allied Drum Service, Inc. operated a metal drum servicing plant which was almost entirely a manual operation. In December, 1960, the company acquired some buildings for use as its metal drum servicing plant and installed modern machinery to aid in the servicing of the drums.

In the fall of 1962 the company began installing a series of new machines which were to be used in a separate operation from that mentioned above. The controversy before this Court concerns the sales tax assessment on the purchase price of this machinery.

The following is a brief description of the process utilized in preparing the drums for use. The drum is reduced in height by slicing the top of the drum and all paint and any contents remaining from the previous use of the drum are removed by incineration. The incombustibles are removed by a shot blast operation which returns the metal to its original state. After the drum is reshaped by rolling, the open end is finished either by:

(1) placing the drum on a flanging machine which puts a bevel on the cut edge, creating a shoulder on which a new head is fitted. The drum is then placed on a double seamer, sealing it into a liquid tight container which is mechanically tested by air pressure for leaks. Drums completing this process are used for the shipment of liquids.
(2) running the cuthead of the drum through a beating machine which rolls the cut edge, converting the drum from a tight head to an open end drum. A lid and separate locking ring device are added. These drums are designed to be used for the shipment of solids or semi-solids.

The final step consists of painting the drum and coating its interior with various protective liners according to the customer’s specifications.

Ky.Rev.Stat. 139.480 provides for property exemptions to the Sales and Use Tax and provides in pertinent part as follows:

“Any other provision of this Chapter to the contrary notwithstanding, the terms “sale at retail,” “retail sale,” “use,” “storage,” and “consumption,” as used in this chapter do. not include the sale, use, storage or other consumption of:
* * 4c 4t * *
(8) Machinery for new and expanded industry;
4e 4< 4c”

“Machinery for new and expanded industry” is defined in Ky.Rev.Stat. 139.170 as being “. . . machinery used directly in the manufacturing process, which is incorporated for the first time into plant facilities established in this state, and which does not replace machinery in such plants.” Therefore, the sole issue on appeal is whether the Appellee is engaged in a “manufacturing process.”

The former Court of Appeals of Kentucky has on several occasions determined whether a certain operation constituted “manufacturing.” The following have been held to be “manufacturing”: (1) Production of railroad rolling stock at railroad machine shops; (2) Cutting up junk metal into commercial scrap; (3) Production of crushed rock for use as road material; (4) The generation of electricity; (5) Production of ice cream; (6) Assembling of buggies from ready-made parts, accompanied by some original structural work; (7) Sorting, cleansing, roasting, polishing and cutting of green coffee; and (8) Bottling of whiskey.

These processes have been held not to constitute “manufacturing”: (1) Pasteurization of milk; (2) Sorting, classifying, stemming and curing of tobacco; (3) Filtering of water; (4) Television broadcasting; (5)Laundering, and (6) Cooking, mechanized crushing, screening and washing coal for the purpose of removing impurities.

In so holding, the Court of Appeals formulated several tests to aid in defining “manufacturing.” They include:

(1) The application of labor or skill by hand or machinery to material, so that as a result thereof a new, different and useful article of commerce is produced. Hughes & Co. v. The City of Lexington, 211 Ky. 596, 277 S.W. 981 (1925).
(2) To work, as raw or partly wrought material, into suitable forms for use. Commonwealth v. W. J. Sparks Co., 222 Ky. 606, 1 S.W.2d 1050 (1928).
(3) A process which takes something practically unsuitable for any common use and changes it so as to adapt it to such common use. City of Louisville v. Howard, 306 Ky. 687, 208 S.W.2d 522 (1947).
(4) A process whereby a transformation must occur and a new and different article must emerge having a distinctive name, character or use. City of Louisville v. Ewing Von-Allmen Dairy Co., 268 Ky. 652, 105 S.W.2d 801 (1937).
(5) A change from the original material to a new and different article. American Tobacco Co. v. City of Bowling Green, 181 Ky. 416, 205 S.W. 570 (1918).
(6) That meaning which corresponds with the common understanding of mankind. City of Lexington v. Lexington Leader Co., 193 Ky. 107, 235 S.W. 31 (1921).
(7) A consideration of all the facts and circumstances surrounding the operation, including the size of the plant, the number of men employed, the nature of the business or the article to be manufactured. City of Louisville v. J. Zinmeister & Son, 188 Ky. 570, 222 S.W. 958 (1920), and this test was tempered in Commonwealth ex rel. Luckett v. WLEX-TV, Inc., Ky., 438 S.W.2d 520 (1969), when the court stated that “It is not the number of processes or the various kinds of treatment through which the alleged manufactured article is subjected that determines the question, but rather the character and kind of article that is produced, after being so subjected, is the decisive fact.”

The variance in the above-mentioned standards shows that the court formulated a definition to meet the facts of the case before them. This view was acknowledged in Burke v. Stitzel-Weller Distillery, 284 Ky. 676, 145 S.W.2d 861 (1940) when the court stated:

“The meaning of the word ‘manufacture’ as used in the statute, supra, may vary according to the facts and circumstances of each particular case. This court has often held that the word ‘manufacture’ as used in the statute is not susceptible of accurate definition or of a definition that is all-embracing or all-exclusive and that there is no hard and fast rule which can be applied, but that each case must turn upon its own facts, having regard for the sense in which the term is used and the purpose to be accomplished.”

Therefore, the definitions set out above are merely guidelines and are not determinative of whether an operation is a “manufacturing process.”

Appellant urges that the Appellee does not produce a new article but begins with the used drum and ends with the used drum. For this contention, he cites the cases involving the purification of water, the pasteurization of milk and the separation of impurities from coal. However, this is an invalid analogy. In the case at bar, there is some physical change in the form of the article itself whereas in the cases cited by the Appellant there is a mere separation of unwanted materials from the article. Appellee actually changes the physical aspects of the drum by reshaping, rerounding, sometimes shortening and adding a top to the steel drums. This is not a case of taking a used drum and ending up with a used drum but is one where the Appellee takes a virtually unusable and non-marketable damaged drum and converts it into a serviceable and marketable commodity.

The case of David J. Joseph Co. v. City of Ashland, 223 Ky. 203, 3 S.W.2d 218 (1928) is analogous to the situation at bar. In Joseph the Court of Appeals held that the shears, electric torches, and other machinery and mechanical appliances used in a scrap yard to change the form and dimensions of metals by cutting them into smaller pieces of relatively uniform size and shape so as to convert them into commercial scrap was manufacturing machinery. Of course one could argue that prior to the treatment by the dealer the metals were scrap and immediately thereafter they were scrap. But the essence of the opinion is that the dealer transformed a non-marketable item into a marketable one. Furthermore, this Court has held that a “manufactured article” does not have to be made out of crude material in its natural state. City of Henderson v. George Delker Co., 193 Ky. 248, 235 S.W. 732 (1921).

This Court agrees with the Appellant’s contention that every change or conversion of material from one form to another is not manufacturing. Standard Tailoring Co. v. City of Louisville, 152 Ky. 504, 153 S.W. 764 (1913). A guideline for determining which changes are manufacturing was set forth in Commonwealth ex rel. J. E. Luckett v. WLEX-TV, Inc., supra, which stated:

“One of the important circumstances in construing the word ‘manufacturing’ as used in a tax-exemption statute is the apparent objective of the legislature in enacting it. * * * The ultimate purpose of the exemption is to enhance a competitive position of this state as against other states in encouraging the location and expansion of the industries whose ‘manufacturing’ processes require volume employment of people.”

Appellee purchased the machinery in question for a new and additional facility necessitated by the expansion of Allied Drum Service’s activities. Prior to the expansion, the work was almost entirely a manual operation and the total employment of Allied reached about 70 to 80 employees in its plant. We believe the Appellee’s expansion was of the type envisioned by our Legislature.

Appellant urges that the Appellee repairs and reconditions, rather than manufactures, the steel drums. In a case strikingly similar, Eastern Machinery Co. v. Peck, 160 Ohio St. 144, 114 N.E.2d 55 (1953), the Ohio Supreme Court differentiated between “manufacture” and “repair.” Eastern was engaged in the business of purchasing used but unusable machine tools, rebuilding or reconditioning them for service by supplying needed parts, and reselling them to the trade generally. Some of the tools were comparatively new, others were very old, and virtually all were unusable when purchased. Ohio had a statute defining a manufacturer as “A person who purchases, receives or holds personal property * * * for the purpose of adding to the value thereof by manufacturing * * * or by the combination of different materials with a view of making a gain or profit by so doing * * However, the logic in Eastern is applicable to the case at bar. The Ohio court, citing Clawson and Bals, Inc. v. Harrison, 108 F.2d 991 (7th Cir. 1939), stated as follows:

“The situation here seems to be much like the situation iin the worn-out tire case. These worn-out connecting rods undoubtedly look like connecting rods, and one can recognize that they have been connecting rods, just as one can by looking at a worn-out tire recognize the fact that it has been a tire. But in each case, the articles are worn out. A manufacturing process is, in the opinion of the court, required to make a serviceable product; and in the case of the connecting rod, the plaintiff carries on that manufacturing process.
* * * * * *
‘There is obvious difficulty in treating the taxpayer as a repairer in view of the normal concept of the relation of a repairer to the repaired article. Ordinarily, the repairer furnishes labor and material to the owner of some article for the purpose of restoring the article to its normal condition. The article remains the property of the one for whom the service is performed. If this taxpayer is a repairer, it is a repairer of its own property, not for the purpose of restoring its own property for efficient use in the ordinary operations of the taxpayer’s business, but for the purpose of preparing the property for sale in the trade. In the transactions between the taxpayer and its vendees the connecting rods, whether prepared from new forgings or from old connecting rods, are treated as newly and freshly produced automobile accessories. Neither taxpayer nor the trade recognizes that the finished connecting rods are repaired rods. Looked at from the standpoint of production and distribution in the trade the taxpayer is performing the function of a manufacturer rather than a repairer. The taxpayer is producing connecting rods for the trade in a very true sense and not repairing old connecting rods for owners or users.’ ”

In the same case, the Ohio court, citing Broad Motors Co. v. Smith, 86 F.Supp. 4 (E.D.Penn.1949), stated that “The ‘used’ parts utilized by the taxpayer had lost their identities as such parts for commercial, as well as for practical usage purposes. * * It was necessary to remake them into useful articles so as to enter into the flow of commerce * * * The rebuilt motor was a new article, something entirely different from the worn-out motor turned in, and made up of component parts which, because of the machining and cleaning done on them, were different from the used parts salvaged from the turned-in motors.” In the case at bar, the Appellee purchases damaged drums with the intent of selling them to the trade at large. The “remanu-factured” steel drums are treated by Appel-lee’s customers as “newly and freshly produced” articles of commerce sufficient to perform the function required. Therefore, this Court is of the opinion that the Appel-lee manufactures rather than repairs the steel drums.

Appellant, in his reply brief, maintains that the Appellate Court should affirm the Board of Tax Appeals decision since the findings of an administrative tribunal, upon review by court, may not be disturbed if such findings are supported by substantial evidence. A basic premise necessary to Appellant’s contention is that the definition of the term “manufacturing process” is an issue of fact rather than law. In Burke v. Stitzel-Weller Distillery, supra, this Court held that “. . . the definition of the term (manufacture) is a question of law and for the courts is plain . . .” Therefore, this Court is not bound by the decision of the Ky. Board of Tax Appeals.

For the above stated reasons, the judgment is affirmed.

ALL CONCUR.


source: Caselaw Access Project

author: COOPER, Judge:

license: Public Domain

text:
    In re CITIZENS FIDELITY BANK AND TRUST COMPANY, as Trustee Under Will of Clarence F. Bryan for Frances Bryan Hoke. William C. BRYAN and Maude E. Bryan, Appellants, v. William M. HARVIN, Appellee.
    Court of Appeals of Kentucky.
    April 15, 1977.
    Martin Roach, Roach, Cox & Brown, Louisville, for appellants.
    William M. Harvin, Harvin & Runner, Louisville, for appellee.
    Before COOPER, REYNOLDS and VANCE, JJ.
   COOPER, Judge:

This is an appeal from a judgment of the Jefferson Circuit Court awarding the Ap-pellee, William M. Harvin, certain fees for the sale of real estate located in Jefferson County, Kentucky. A part of said Order and Judgment is as follows:

“1. William M. Harvin is hereby entitled to, and hereby awarded a fee in the amount of $81,595.00, subject to a credit of $18,793.20 heretofore paid; subject to Arthur W. Howard, Trustee, completing and fulfilling the terms of the sale entered into April 1,1975, said sum shall be paid one-half by Citizens Fidelity Bank and Trust Company, Trust Department; and one-half by William C. Bryan and Maude E. Bryan, his wife.
2. In the event Arthur W. Howard, Trustee, should not be required to complete and fulfill the terms of the Contract and sale for reasons mentioned in this Contract dated April 1, 1975, then William M. Harvin shall be entitled to and hereby awarded an additional fee of $20,-000.00 for services rendered in this matter, payable fifty (50%) percent by Citizens Fidelity Bank and Trust Company, Trust Department; and fifty (50%) percent by William C. Bryan and Maude E. Bryan, his wife.”

On April 1, 1942, Clarence F. Bryan died testate survived by his wife, Margaret C. Bryan and their children, William C. Bryan and Frances Bryan Hoke.

The Trustee qualified on February 6, 1968, and the Appellee, William H. Harvin was retained as Attorney for the estate.

On March 26, 1973, the Trustee and Mr. and Mrs. Bryan entered into a contract for the sale of the Bryan Farm to John S. Sherman, et al for the consideration of $980,000.00. Appellee was paid a sum of $15,000.00 for legal services to this date.

Subsequently, John S. Sherman and his partner refused to purchase this property and Appellee filed a specific performance suit, which was later settled for the sum of $24,683.85.

John S. Sherman, one of the defaulting purchasers, entered into another contract with Trustee and the Bryans for sale of same property at same purchase price, $980,000, all of which was approved by the Court under the legal direction of the Ap-pellee. For his services the Appellee was paid a fee of $18,793.20.

On April 15, 1975, Appellee went to the hospital where Mr. Bryan, age 77, was recuperating and Mr. Bryan signed a letter authorizing a fee equal to ten (10%) percent of total proceeds received, which was later repudiated by Mr. Bryan.

On August 4,1976, Appellee sought an ex parte order to award him a fee in the amount of $101,993.80 (less $18,793.20 he had been paid) for preparing a six-page contract for sale of lands and other services rendered.

The Chancellor determined that Appellee, Harvin, was entitled to a fee of $81,595, less the $18,793.20 he had been paid if this contract is consummated by purchases, if not he is awarded a fee of $20,000 in addition to the $18,793.20.

The question presented to this Court is whether or not the Chancellor abused his discretion in awarding Appellee, William M. Harvin, an attorney’s fee of $81,595 for preparing a six-page Contract providing for the contingent sale of a farm when two years earlier he had been paid a fee for preparing an eight-page Contract for the sale of the same farm at the same sales price.

In determining a fee, the Court in Boden v. Boden, Ky., 268 S.W.2d 632 (1954) considered the following factors:

(a) Amount and character of services rendered
(b) Labor, time and trouble involved
(c) Nature and importance of the litigation as business in which services were rendered
(d) Responsibility imposed
(e) The amount of money as the value of property affected by the controversy, as involved in the employment
(f) Skill and experience called for in the performance of the services
(g) The professional character and standing of the Attorneys
(h) The results secured

We recognize that fixing fees in cases of this type is a delicate matter for the Court. However, as stated in Brickell v. Di Pietro, 152 Fla. 429, 12 So.2d 782:

“[It] should be done with a view to common sense realism, that is to say, it should pose an amount that public standards will approve for the work done, time consumed and the skill required.”

This Court is unable to determine from the record in this case whether or not the Trial Court abused its discretion in awarding this fee. It is our opinion that the record does not adequately reflect the basis upon which the fee was allowed. Ap-pellee prepared a contract for the sale of the farm in March 1973, and was paid $15,-000.00 for his services. The purchasers defaulted and Appellee filed a suit for specific performance. This suit was settled and Ap-pellee was paid a fee of $18,793.20 for his services.

The record does not make it plain what the settlement consisted of. Appellee argued that the settlement was for cash and after the settlement he entered into further intricate negotiations which resulted in another contract of sale and he has not been paid for his services in drafting this contract as well as finding a buyer and negotiating the sale.

On the other hand, Appellants argued that the re-negotiation of the new sale was a part of the settlement of the suit for specific performance, and Appellee has been fully paid for the filing and settlement of that suit.

If the re-negotiation of one sale and the new contract were, in fact, a part of the settlement of the suit for specific performance, the Appellee has already been paid for his services and is not entitled to an additional fee. If, on the other hand, the specific performance suit was settled for cash payments, the fee paid to Appellee for his services in connection with the filing and settlement of the lawsuit would not preclude his right to an additional reasonable fee for services rendered subsequent to the settlement.

The Trial Court should make findings as to whether the settlement of the specific performance suit was conditioned upon the re-negotiation of the sale. If it was not, the findings should detail in a more specific way what services were rendered after the settlement and the fee deemed appropriate therefor. The findings should be sufficiently specific that the Court of Appeals will have a proper basis for review and if new evidence is necessary for the Court of Appeals to make such findings, each party should be given leave to present further evidence.

The Judgment of the Court is reversed and remanded to the Circuit Court for further proceedings consistent with this opinion.

All concur.


author: PARK, Judge.

text:
    John H. BOONE, Appellant, v. Martha Ferry Boone GONZALEZ, Appellee.
    Court of Appeals of Kentucky.
    April 29, 1977.

      W. Allen Schmitt, John T. Fowler, Louisville, for appellee.
    Sidney Baer, Louisville, Clay & Clay, Danville, for appellant.
    Before HOWARD, LESTER and PARK, JJ.
   PARK, Judge.

This is an appeal from a judgment entered by the Jefferson Circuit Court awarding the plaintiff-appellee, Martha Ferry Boone Gonzalez, the sum of $9,500.00 and costs. The trial court had directed a verdict against the defendant-appellant, Mark M. Boone, a/k/a John H. Boone, on the issue of fraudulent misrepresentation of his marital status and submitted only the question of damages to the jury.

In her initial complaint filed January 18, 1972, the appellee alleged that she and Boone had been lawfully married on October 3,1966, and sought a judgment of absolute divorce, division of the marital property, and alimony. The complaint was amended on September 8, 1972, alleging that the marriage between the two parties was bigamous and that she had been ignorant of the appellant’s previous marriage. She sought annulment and again a division of property and periodic maintenance. A second amended complaint was filed April 13, 1973, seeking not only annulment but damages for the fraudulent misrepresentation of Boone’s marital status. There being no denial by the appellant that his second marriage was bigamous, a decree of annulment was entered on July 2, 1973. Boone’s response to the second amended complaint was filed November 27,1973, and included a motion to dismiss the complaint on the ground that the action was barred by the statute of limitations under KRS 413.120 and 413.130. Boone affirmatively alleged that the appellee Gonzalez knew at the time of the purported marriage that Boone was already married.

This court need only consider the appellant’s motion to dismiss on the ground that the claim of fraud was barred by the statute of limitations. The appellant elected to introduce no evidence, seeking only to impeach, the testimony of Gonzalez as to the date she first learned their marriage was bigamous and the extent of her damages. The motion to dismiss was orally overruled by the trial court in chambers immediately prior to trial.

The appellant in arguing that this action is barred by the statute of limitations embodied in KRS 413.120 and 413.130 cites the court to two lines of cases: the first holding that an action for fraud must be brought within five years of the date of its perpetration or within five years of its discovery if in the exercise of ordinary care the plaintiff could not have discovered the fraud earlier and in no event beyond ten years from the commission of the fraud; the second holding that, when an action is brought beyond the initial five year period, the burden is on the plaintiff to allege and prove that the fraud was not discovered nor could have been discovered by the exercise of ordinary care within that period. See, e. g., Gillardi v. Henry, 272 Ky. 188, 113 S.W.2d 1158 (1938); Justice v. Graham, Ky., 246 S.W.2d 135 (1952).

The appellee argues that the defense of statute of limitations is unavailable to the appellant contending that there has been no affirmative pleading. CR 8.03. The authorities cited for this position are cases in which an affirmative defense had not been raised anywhere in the pleadings or in which the defense was raised by an improper party. See Young v. Tackett, Ky., 481 S.W.2d 661 (1972); Johnson v. Lohre, Ky., 508 S.W.2d 785 (1974); Crowder v. Stenson, Ky., 401 S.W.2d 761 (1966).

Although failure to plead the statute of limitations constitutes a waiver of that defense, if the complaint on its face shows that the action is barred by time the statute of limitations may be raised by a motion to dismiss. Tomlinson v. Siehl, Ky., 459 S.W.2d 166 (1970). The statutes controlling the time within which actions for fraud may be brought, KRS 413.120(12) and KRS 413.130(3), provide in effect that the action must be brought within five years of the date of discovery, but in any event within ten years of the date of the perpetration of the fraud. The appellee raised the issue of fraud for the first time in her second amended complaint filed on April 13, 1973. The complaint specifies the time of the alleged fraudulent misrepresentations as “on or about the third day of October, 1966.” Nowhere in the complaint is a date of discovery alleged. Therefore, the six and one half year interval between the alleged fraud and the filing of the complaint places this action beyond the five year period allowed under KRS 143.120(12). The appellant raised the issue of the statute of limitations when in his answer to the second amended complaint he included the motion to dismiss.

It has long been the rule that in order to recover damages resulting from a recently discovered fraud, the plaintiff must allege the time and means of discovery, why earlier discovery had not occurred and the diligence exercised by the injured party to discover the fraud. 37 Am.Jur.2d Fraud and Deceit § 432. Kentucky has followed the general rule requiring that when an action is brought later than five years after the alleged perpetration of the fraud there must be an allegation and proof that the fraud was not discovered within the five years and by the exercise of ordinary care could not have been discovered within that time. Justice v. Graham, supra.

Gonzalez, on the other hand, contends that the subsequent adoption of the civil rules has superseded the holdings in the cases relating to the duty to plead the exception to the five year statute of limitations. In support of her position, she cites a number of cases which set out the philosophy behind CR 8, that of giving fair notice. Those cases are not concerned with actions for fraud. See Cincinnati Newport and Covington Transportation Company v. Fischer, Ky., 357 S.W.2d 870 (1962) (personal injury action). Folks v. Bell, Ky., 462 S.W.2d 895 (1971) (easement by adverse possession). Despite the appellee’s argument to the contrary, the decision in Madison County v. Arnett, Ky., 360 S.W.2d 208 (1962), indicates that the adoption of the Civil Rules of Procedure has not relieved a plaintiff proceeding in fraud from the burden of pleading and proving the exception to the general statute of limitations. See also Skaggs v. Vaughn, Ky.App., 550 S.W.2d 574, decided this day. It should be noted as well that CR 9.02 reflects a departure from “notice” pleading in that the circumstances of fraud must be pled with particularity.

The rules are somewhat relaxed when a confidential relationship exists between the parties. The statute of limitations does not begin to run until actual discovery of the fraud, there being no duty on the part of the injured party to exercise due diligence to discover the fraud. Lemaster v. Caudill, Ky., 328 S.W.2d 276 (1959); Hernandez v. Daniel, Ky., 471 S.W.2d 25 (1971). However, when the exception for confidential relationship is applicable, the pleader seeking to prosecute an action in fraud after the expiration of the general statutory time limit is not wholly relieved of the burden of pleading and proving that his tardiness is excusable. See Wilson v. Wilson, 199 Cal.App.2d 542, 18 Cal.Rptr. 768 (1962); Bainbridge v. Stoner, 16 Cal.2d 423, 106 P.2d 423 (1940); Stark v. Equitable Life Assurance Society, 205 Minn. 138, 285 N.W. 466 (1939) (by implication). Schaefer v. Berinstein, 140 Cal.App.2d 278, 295 P.2d 113 (1956).

Gonzalez’s complaint is silent as to the date and circumstances of the discovery of the fraud. There is, however, ample evidence in the record that the appellee did not discover Boone’s marital status until sometime after January 1972. Since the appellant elected to offer no affirmative proof and relied instead on an attempt to impeach the testimony of Gonzalez, her version of the, date of discovery stands uncon-tradicted. No motion to amend has been made under CR 15.02. Gonzalez’s attorney did make an oral offer to amend prior to the trial court’s ruling on Boone’s motion to dismiss, but trial court overruled the motion rather than permitting an amendment to the complaint. Since facts may exist which, had they been pleaded, would have cured the defects in the complaint, the proper procedure was to dismiss the complaint with leave to amend. This is consistent with the liberalized procedure under the civil rules. See Sidebotham v. Robison, 216 F.2d 816, 826 (9th Cir. 1954).

We conclude, therefore, that the decision of the Jefferson Circuit Court must be reversed and remanded with instructions to dismiss the complaint without prejudice to a further amendment.

All concur.


text:
    Joe SKAGGS, Appellant, v. Wilma Jean VAUGHN et al., Appellees.
    Court of Appeals of Kentucky.
    April 29, 1977.

      Carl Howell, Hodgenville, for appellees.
    William A. Miller and William A. Miller, Jr., Louisville, Morris Butler, Greensburg, Shelby M. Howard, Hodgenville, for appellant.
    Before HOWARD, LESTER and PARK, JJ.
   PARK, Judge.

The appellant, Joe Skaggs, appeals from a judgment of the LaRue Circuit Court granting a summary judgment dismissing his complaint. By his complaint, Skaggs attacked the validity of a deed dated November 29, 1968, apparently executed by Skaggs and his wife, Allie. This deed purported to convey a farm to Allie’s two nieces, the appellees Wilma Jean Vaughn and Winnie Ree Vaughn Reed, subject to a joint life estate reserved by the grantors. Following Allie’s death in 1969, Skaggs remarried and moved from the farm to Chattanooga. This action was precipitated by a dispute over the cutting of trees on the farm by Skaggs.

In his complaint and in his pre-trial deposition, Skaggs asserted that he did not sign the deed of November 29, 1968. Skaggs’ position with respect to his signature on the deed is somewhat modified on appeal. The appellant’s brief states:

“Joe maintains that the signature on the deed is not his and that he never signed a deed. Joe admits that he did sign something, and he admits that he knew he could live on the land during his lifetime, but he maintains that he thought he was signing a will and not a deed, a will being freely revocable at any time prior to death.” (Emphasis added)

According to the depositions of both Wilma Jean Vaughn and Winnie Ree Vaughn Reed and the affidavit of the attorney drafting the deed, Skaggs did in fact sign the deed in the attorney’s office.

Although Skaggs denied that the signature on the deed was his, this court concludes that the pleadings are not sufficient to raise the issue of forgery. The deed of November 29,1968, contains a notary’s certificate that Skaggs and his wife acknowledged the deed to be their act and deed. The complaint does not allege fraud on the part of the grantees in obtaining the notary certificate, nor does the complaint allege mistake on the part of the notary. In the absence of such allegations, Skaggs cannot allege that he did not execute the deed. KRS 61.060; Spicer v. Spicer, 314 Ky. 560, 236 S.W.2d 474 (1951); Grigsby v. Mosley, 297 Ky. 571, 180 S.W.2d 99 (1944); Atkins’ Guardian v. McCoy, 263 Ky. 846, 93 S.W.2d 839 (1936).

The primary issue on appeal is whether the statute of limitations bars that portion of the complaint which alleges that the execution of the deed was obtained by fraud, mistake and undue influence. The parties agree that the applicable provisions relating to limitations are set forth in KRS 413.120(12) and KRS 413.130(3). KRS 413.-120 provides:

“The following actions shall be commenced within five (5) years after the cause of action accrued: * * * (12) An action for relief or damages on the ground of fraud or mistake.”

KRS 413.130(3) provides:

“In an action for relief or damages for fraud or mistake, referred to in subsection (12) of KRS 413.120, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake. However, the action shall be commenced within ten (10) years after the time of making the contract or the perpetration of the fraud.”

The deed in question is dated November 29, 1968. Skaggs’ complaint was filed January 21, 1974, more than five years after the date of the deed. Thus this action would be barred under the provisions of KRS 413.-120(12) unless saved by the provisions of KRS 413.130(3).

In a written opinion, the trial judge concluded that this action was barred by the five year statute limitation set forth in KRS 413.120(12). The trial judge stated:

“If the five year statute is allowed to lapse, as in the present case, plaintiff must allege facts to excuse the delay or he fails to state a cause of action. Plaintiff has failed to allege that a confidential relationship existed between him and the defendants who were Allie’s nieces and not otherwise related to him and who did not live with him and he has failed to allege that the purported fraud or mistake was not only not discovered within the five year period but that it could not have been discovered sooner by reasonable diligence.”

The trial judge’s opinion was apparently based upon the line of cases which established the following rule: If the five year period of KRS 413.120(12) has elapsed, the plaintiff must allege and prove that the fraud or mistake was not only not discovered within the five year period, but that it could not have been discovered sooner by the exercise of reasonable diligence. E. g., Justice v. Graham, Ky., 246 S.W.2d 135 (1952). The answer of the appellees affirmatively pleads the statute of limitations. However, neither the complaint nor the amended complaint alleged any facts which would justify the application of the saving clause of KRS 413.130(3).

Skaggs argues that it is no longer necessary to allege in the complaint facts necessary to overcome the affirmative defense of the statute of limitations. Since the adoption of the Kentucky Rules of Civil Procedure, only “notice” pleading is required. CR 8.01. However, the adoption of the Kentucky Rules of Civil Procedure did not abolish the rule referred to above. In Madison County v. Arnett, Ky., 360 S.W.2d 208, 210 (1962), decided since the adoption of the Kentucky Rulés of Civil Procedure, the Court of Appeals stated:

“In order to enlarge the five-year statute of limitations to ten years, on a charge of fraud, appellant must allege and prove the fraud was not discovered with the five-year period and also allege and prove the fraud could not have been discovered within that period by the exercise of reasonable diligence.” (emphasis added)

This rule is consistent with CR 9.02 which requires that the circumstances constituting fraud or mistake must be stated with particularity in pleadings. The Kentucky rule is also consistent with the general rule in the United States. In order to recover damages for a recently discovered fraud, the plaintiff must allege the time and means of discovery, why earlier discovery had not occurred, and the diligence exercised by the plaintiff to discover the fraud. 37 Am.Jur.2d Fraud and Deceit § 432. See Boone v. Gonzalez, Ky.App., 550 S.W.2d 571, decided this day.

The deed in question was recorded on November 29, 1968, in the office of the Clerk of the LaRue County Court. As a general rule, the recording of a deed obtained by fraud is notice to the grantor, and the grantor must bring an action to set aside the deed within five years after the recording of the deed, or within ten years of the execution of the deed, whichever is earlier. Hollifield v. Blackburn, 294 Ky. 74, 170 S.W.2d 910 (1943). Skaggs relies upon an exception to the rule in cases in which a confidential relationship exists between the parties. As stated in Hernandez v. Daniel, Ky., 471 S.W.2d 25, 26 (1971):

“The five-year statute of limitations set forth in KRS 413.120(12) does not commence to run until the alleged fraud or mistake is discovered or, in the exercise of reasonable diligence, should have been discovered. When a confidential relationship exists between the parties, however, the statute does not begin to run until actual discovery of the fraud or mistake. Constructive notice such as the recordation of the instrument containing the mistake is not sufficient to commence the • operation of the statute.”

In the present case it is neither pled nor proved that any confidential relationship existed between Skaggs and Allie’s two nieces. Nevertheless, a confidential relationship did exist between Skaggs and his wife, Allie. With respect to the execution of the deed, Skaggs complains of the activities of Allie, rather than her two nieces.

With respect to Allie’s conduct at the time of the execution of the deed, Skaggs testified by deposition as follows:

“Q.127 Jqe, was it you or your wife that called Winnie and said that you wanted to come over to my office to make a deed, which one of you called?
A. It was my wife, she wanted that made.
Q.128 She called?
A. She run things over me, that’s what she done.
Q.129 Now, she called, and you all came over in a car, is that right?
A. What? No, me, I come down this road.
Q.130 All right. Who picked up Winnie and Jean and came over to my office? Was it Allie or was it you?
A. Who fixed up what?
Q.131 Who picked them up in the car?
A. Well, they come in their own car.
Q.132 All right. Did you come with Allie or did she come by herself, or did you drive her?
A. No, I drove. I come right down 210. I never did go around that way where they lived.
* * * * * *
Q.136 Whose idea was it to deed this property?
A. My wife’s.
Q.137 All right. Did you have any objection to doing it?
A. Well, I was forced into it. I didn’t—
Q.138 Who forced you into it?
A. My wife.
Q.139 Allie, your first wife?
A. That’s right.
Q.140 All right.
A. She thought I was going to die and she would get it, and she wanted something done — but I’m still living.
Q.141 Now, at that time, in ’68, November, you all were both in my office. You said it was her idea, but both of you came there.
A. I had to come and bring her.
Q.142 What did you say?
A. I had to come and bring her.
* * * * * *
Q.150 You said you came over with Allie. Who was driving the car, you or she?
A. She couldn’t drive a car.
Q.151 You drive the car?
A. Yes.
Q.152 Now, she gave me the old deed to use to go by, didn’t she, when you all were sitting in the office there?
And she said draw the deed?
A. Yes.”

Nowhere in the complaint or amended complaint does Skaggs allege the date he discovered the existence of the deed of November 29, 1968. At no time did Skaggs offer to amend the complaint to allege the circumstances justifying application of the exception to the five year statute of limitations provided in KRS 413.130(3). Based upon the deposition of Skaggs as well as the affidavit of the drafting attorney and the depositions of the two nieces, the trial court correctly concluded that Skaggs was aware of the existence of the deed on the date of its execution.

Skaggs did not file an affidavit claiming that he believed that he was signing a will, rather than a deed, until after the trial court had granted a motion for summary judgment. All parties had filed motions for summary judgment. As the affidavit of Skaggs was not filed until after the date of the hearing on the motions for summary judgment, the affidavit was filed too late. The trial court properly declined to consider the affidavit. CR 56.03; Mills v. Reserve Life Insurance Company, Ky., 335 S.W.2d 955, 959 (1960). Based upon the pleadings and the entire record, the trial court correctly held that Skaggs’ claim for fraud and deceit was barred by the statute of limitations.

Skaggs claims that the trial court erred in failing to grant his motion for summary judgment. Skaggs argues that the deed of November 29, 1968, should be set aside because it was made without consideration. In support of this contention, Skaggs relies on the decision in Beliles v. Whittaker, 199 Ky. 431, 251 S.W. 190 (1923). The case does contain language to the effect that the grantor, Mrs. Whittaker, was not bound by a deed because it was without consideration. However, the Beliles case involves a failure of consideration, not a gift by deed. Mr. and Mrs. Whittaker had joined in a deed to a son-in-law, Beliles, in consideration of the promise of Beliles to support and maintain Mr. and Mrs. Whit-taker during the remainder of their lives. Mrs. Whittaker proved that Beliles breached his agreement by failing to care for and support her following the death of Mr. Whittaker. Mrs. Whittaker later joined in a deed from Beliles to a third party. The Court of Appeals held that this deed could be set aside because there was no new consideration for the deed and the third party was aware of all of the facts including the failure of Beliles to perform the original contract. As a general rule, a gift of real estate by deed is valid upon delivery without the necessity of any consideration. Damron v. Damron, 301 Ky. 636, 192 S.W.2d 741 (1945); Sullenger v. Baker, 296 Ky. 240, 176 S.W.2d 382 (1943); Schimmelpfennig v. Jungkind, 273 Ky. 182, 115 S.W.2d 895 (1938).

In his complaint, Skaggs alleged that he was without sufficient mental capacity to execute the deed. On the date the deed was executed, Skaggs was 74 years of age. The records of the Veterans Administration were made a part of the record in this case, and they established that Skaggs was suffering from pulmonary emphysema for which he was taking medication. However, there is absolutely nothing in his medical record which indicates that Skaggs was suffering from any mental disability. In cases such as this, the question is whether the grantor had mind enough to understand the nature and the character of the transaction, the property he was disposing of, and how he was disposing of it, and whether he was executing the deed in accordance with his own fixed purpose. See Schimmelpfennig v. Jungkind, supra. There is nothing in this record that indicates that Skaggs lacked the necessary capacity to execute the deed. In fact, the record including the deposition of Skaggs himself clearly indicates that he possessed sufficient capacity to execute the deed. There was not a genuine issue with respect to Skaggs’ mental capacity.

The complaint raises the issue of undue influence. Skaggs contends that this issue also affects the question of mental capacity. However, an action to set aside a deed on the ground of undue influence is also governed by the five year statute of limitations set forth in KRS 413.-120(12) as may be extended by KRS 413.-130(3). Bostic v. Bostic, Ky., 264 S.W.2d 59 (1954); Tucker v. Tucker’s Ex’r, 201 Ky. 383, 257 S.W. 46 (1923). That portion of this opinion dealing with fraud and mistake is equally applicable to any issue of undue influence. Under both the pleadings and the record before the trial court on the motions for summary judgment, any claim of undue influence was barred by the statute of limitations.

In his amended complaint filed June 14,1974, Skaggs sought to recover the sum of $8,500.00 for money loaned to Raymond Reed on January 4, 1967. The trial court correctly held that this claim was barred by the five year statute of limitations relating to contracts not in writing. KRS 413.120(1).

For the foregoing reasons the judgment of the circuit court is affirmed.

All concur.


author: WEIER, Judge.

text:
    Sandra Kay NEAL, Plaintiff-Appellant, v. The JUNIOR COLLEGE DISTRICT OF EAST CENTRAL MISSOURI, a body corporate, Defendant-Respondent.
    No. 37915.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 22, 1977.
    Motion for Rehearing or Transfer Denied May 6, 1977.
    Prudence L. Fink, Union, for plaintiff-appellant.
    William D. Kimme, Briegel & Kimme, Washington, for defendant-respondent.
   WEIER, Judge.

Plaintiff Sandra Kay Neal filed suit against The Junior College District of East Central Missouri alleging breach of an oral contract to teach educational psychology. Count I of the petition alleged breach of contract to teach during the 1974 fall semester and Count II alleged breach of contract for the 1975 spring semester. The trial court sitting without a jury found for defendant on both counts and plaintiff appeals. We affirm.

Plaintiff’s first Point Relied On states: “The Court of Appeals is obliged to review both the law and evidence in a court tried case.” We do not quarrel with this abstract statement of law but as a point relied on it violates Rule 84.04(d) and presents nothing for our consideration. Plaintiff next contends that valid executo-ry, bilateral, parol contracts existed between her and the defendant relating to appellant teaching educational psychology for defendant for each of the semesters in question and that the court erred when it determined the evidence failed to establish such contracts.

Appellate review of court-tried cases is governed by Rule 73.01 as interpreted by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Under this standard “the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong.” Murphy v. Carron, supra at 32[1, 2]. Plaintiff is apparently contending either that there is no substantial evidence to support the ruling of the trial court or that the ruling is against the weight of the evidence. The sole issue is whether the record supports the trial court’s determination that there were no contracts between plaintiff and defendant for the fall 1974 and spring 1975 semesters. We review the record in this light.

Plaintiff taught educational psychology as a part-time instructor at the junior college during the 1973 spring semester, the 1973 summer session, the 1973 fall semester and the 1974 summer session. For the first session plaintiff was personally contacted by Boyd H. Eversole, Dean of Academic Affairs, inquiring whether she wanted to teach educational psychology for the 1973 spring semester. Thereafter communication from the school concerning plaintiff’s teaching other sessions came through plaintiff’s husband, Thomas L. Neal, then an instructor of psychology and sociology at the college. Thomas received his information from Terry A. Zanin, chairman of the division, who was relaying information from either Dean Eversole or Dean Edward B. Conway. During each session’s registration, plaintiff and her husband kept track of the number of students who were signing up for the class because instructors were only paid the full salary if twelve or more students enrolled. If less than twelve registered the class would either be dropped or taught by an instructor who was willing to be paid at a lower rate. In each session the course scheduled to be taught by plaintiff had enough students so that it was not dropped. No one ever officially told plaintiff to start teaching; she just showed up, knowing the class had enough students. In each session plaintiff signed a written contract several weeks after she had begun teaching the new class. Before the start of the 1974 fall semester plaintiff again received, but only through her husband, communication from the college inquiring as to plaintiff’s interest in teaching the same course again. Plaintiff expressed interest and prepared for class and ordered books. During registration, however, plaintiff’s husband was informed another instructor would be teaching educational psychology in place of plaintiff. The course was given but it was taught by this other person.

Plaintiff made no complaint about the action of the college. Her husband, however, wrote a memorandum to Terry A. Zanin, division chairman, requesting that he request Dean Eversole to write plaintiff to the effect that if a class in educational psychology was to be taught the next semester (spring 1975) that plaintiff would be the one to teach it. Dean Conway responded by writing, in effect, that it was against school policy to give a commitment like that. Later plaintiff received the usual oral communication from the college inquiring about her availability to teach during the 1975 spring semester but again the class was taught by someone else. Plaintiff was unable to secure another teaching position either semester, despite her efforts.

Plaintiff’s husband testified that the communications he received from the college concerning plaintiff were inquiries as to plaintiff’s availability, willingness and interest in teaching the course. Zanin testified that he only asked plaintiff’s husband if plaintiff would be interested in teaching if the opportunity arose and that he had no authority to do more. The college president, Dr. Donald E. Shook, stated that deans had no authority to offer teachers a contract but could only locate faculty. He further stated that the college does not commit itself to part-time faculty (such as plaintiff) until after registration. Plaintiff agreed that the inquiries from the college were no more than requests as to her availability and interest. However, plaintiff believed from her past experience that if the college asked about her availability, then she would be the one to teach the class if it was given.

The facts of this case do not compel a finding that there was an oral contract between the parties. There was sufficient evidence from which the trial court could find that there was no contract and such a determination is not against the weight of the evidence. Murphy v. Carron, supra at 32[1, 2],

Furthermore, although not advanced by defendant on appeal, § 432.070, RSMo 1969, requires that a teacher’s contract must be in writing. Lynch v. Webb City School District No. 92, 418 S.W.2d 608, 613[1—3] (Mo.App.1967). This statute is mandatory and is a part of the substantive law. It was therefore necessary that plaintiff allege and prove a written contract to be entitled to judgment. Pfitzinger v. Johnson, et al., 177 S.W.2d 713, 721[12] (Mo.App.1944); Massie v. Cottonwood School Dist. No. 36 of Nodaway County, 70 S.W.2d 1108[2] (Mo.App.1934). All of the evidence proved there was no written contract between the parties for the fall semester of 1974 and the spring semester of 1975.

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.

      . The evidence proved plaintiff merely occupied a part-time status under prior written contracts and hence did not come under the protection of the Teacher Tenure Act, §§ 168.102 to 168.130, RSMo 1969.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Hervis PAIGE, Jr., Defendant-Appellant.
    No. 37933.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 22, 1977.
    Motion for Rehearing or Transfer Denied May 6, 1977.

      Richard L. Turner, Bruntrager & Brun-trager, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, Bruce Anderson, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Judge.

Defendant Hervis Paige, Jr., was found guilty by a jury of robbery in the first degree. Under the second offender act, he was sentenced by the court to ten years in the custody of the Department of Corrections. In this appeal, he challenges three of the court’s rulings during the course of the trial. We affirm.

Willie Lee, employed as a route salesman by a potato chip company, was accosted by the defendant on November 1, 1974, after making a delivery to a retail establishment in the City of St. Louis. Upon returning to his truck, he placed several empty cartons behind the driver’s seat and when he backed out, the defendant told him, “This is a stick-up. Give me your money.” Lee informed the defendant that he had no money but the defendant repeated his former command and put his hand in Lee’s pocket. A struggle ensued and the pocket was torn off. The defendant escaped with approximately $360 in funds belonging to the potato chip company. The police were notified. They took Lee’s statement and also received custody of some clothes worn by the defendant that Lee had seized during the struggle. Later on November 22, 1974, Lee saw the defendant at an intersection in the city. He notified the police and when the police arrived, they arrested the defendant.

Defendant first challenges the propriety of the court’s ruling which denied his application for continuance. Defendant sought to sustain this application by an affidavit in which he stated that his wife and witness, Verter Paige, was in Barnes Hospital and was unable to testify on behalf of the defendant because she gave birth to a baby the night of February 4, 1976. The case was assigned to division for trial on February 3, 1976. The jury was selected on February 4 and the affidavit was filed on the morning of February 5, 1976. The court noted that the ease had already been continued seven times, twice for lack of time to try, once when defendant did not appear and was ordered arrested, once when the defendant’s lawyer entered his appearance, and three times at the request of defendant’s attorney. The judge further indicated that the defendant did not inform the court that his wife was at full term when the case was set nor when he announced ready on the previous day. The court offered to delay the trial and bring the witness in but denied any continuance.

There are several reasons why the court’s denial of the application for continuance is not prejudicial error. First, defendant’s affidavit failed to comply with Rule 25.08 which requires that the application for continuance on account of an absent witness must, among other things, show the probability of procuring that witness’s testimony and within what time and the facts the applicant believes the witness will prove. The application must also show that applicant believes these facts to be true and that he is unable to prove such facts by any other witness. The only matters set forth in the affidavit were the name, address and location of the witness together with an unsupported assertion that she was unable to testify. Such failure to comply with Rule 25.08 would justify the trial court denying the application. State v. Cuckovich, 485 S.W.2d 16, 21[7] (Mo.banc 1972); State v. Collie, 503 S.W.2d 445, 446[3] (Mo.App.1973). Secondly, an application for a continuance in a criminal case is addressed to the sound discretion of the trial court and an appellate court will not interfere unless it clearly appears that such discretion has been abused. State v. Collie, supra at 446[1]. The testimony of the defendant’s wife would have been merely cumulative. Defendant was in the company of his brother for the entire period from 10:30 a. m. until 2:15 p. m. the day of the robbery. His brother was present and testified in support of the defendant’s alibi. During the crucial time period, from 1:20 p. m. to 1:30 p. m., when the robbery was effected, defendant testified that he had left the house with his brother at about 1:30 p. m. to perform errands for his wife. Defendant’s father-in-law, Reverend Smith, testified that defendant left with his brother at 1:25 p. m. Another witness verified that defendant arrived at his house at about 2:15 p. m. Even had the wife been present, she could not have accounted for his whereabouts during the time of the robbery. See State v. Bolden, 525 S.W.2d 625, 631[4] (Mo.App.1975).

Defendant next contends that his request for a mistrial should have been granted when the prosecutor told the judge that there were two felony cases pending against the defendant involving drugs. This conversation occurred in chambers pri- or to sentencing. Defendant bases his contention upon the reason that defendant was deprived of his right to be sentenced by an impartial court because the court was prejudiced in advance of sentencing by this information. A judge, however, may consider “any prior criminal record of the defendant” before passing sentence. Rule 27.07. See also, State v. Jackson, 476 S.W.2d 540, 542[2] (Mo.1972). Since defendant was charged under the second offender act, his guilt or innocence of the robbery of Willie Lee would be decided by the jury and if guilty, his sentence would be imposed by the court. The mere fact that this information was reported to the judge prior to the time of verdict and sentencing could not be erroneous or prejudicial.

Defendant’s third and final contention charges error in the failure of the court to sustain a defense objection to testimony by the victim that he thought the defendant had a gun in his pocket. Appellant has failed to preserve this point for review in that he has cited no authority to support this point relied on in his brief. Rule 84.-04(d); State v. Schulten, 529 S.W.2d 432, 433[2] (Mo.App.1975).

The judgment is affirmed.

CLEMENS, P. J., and DOWD, J., concur.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    Ralph HOUK, Appellant, v. B. F. PENNINGTON, Respondent.
    No. 28357.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Rehearing Denied May 3, 1977.

      M. Sperry Hickman, M. Sperry Hickman, Inc., Independence, for appellant.
    Max W. Foust, Bart L. Strother, Morris, Foust, Beckett & Ponick, Kansas City, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ANDREW JACKSON HIGGINS, Special Judge.

Appeal from verdict and judgment for defendant in action for personal injuries from a gunshot wound sustained by plaintiff March 15,1970, in a hunting accident in Henry County. The question is whether the instruction which submitted plaintiff’s contributory negligence was supported in the evidence. Affirmed.

Plaintiff’s version of the facts follows:

Plaintiff and a friend, Earl Parks, were hunting. Plaintiff had shot a deer the day before and the plan was that plaintiff would quail hunt while Earl Parks took a deer stand below him hoping plaintiff would flush a deer. They were in a milo field west of the Milo Parks or Estella Parks (no relation to Earl) property. Defendant and other friends were hunting on the Parks land.

Earl Parks “dumb up in a sycamore tree about 30 feet” on the south side of the milo field and plaintiff “merged out in the open field” from the north walking south. Plaintiff was wearing an orange fluorescent cap and vest with a red sweatshirt and was walking 20 or 25 feet west of the boundary line between the field and the Parks property. Five or ten minutes before plaintiff emerged from the brush, Earl Parks heard three shotgun shots in the area where plaintiff came out of the brush. Plaintiff was carrying a Model 12-gauge Winchester shotgun.

Parks saw defendant out in the field and heard a heavy shot fired; he swung his glasses back to plaintiff and saw him go down out of sight in the grass and then heard three more shots. Plaintiff was then 30 to 40 yards south into the open field.

The first shot was a high-caliber rifle fired by “somebody right close up on top” of plaintiff, within 40 to 50 yards of him. Parks thought plaintiff was going down as an experienced hunter will when a shot is fired close. Plaintiff was only on the ground a few seconds while the other three rifles shots were fired, then he raised up and fired three shotgun shots. The four rifle shots were “pretty well” in succession. When Parks heard plaintiff fire three shotgun shots, he thought it was to let the rifleman know where he was. Plaintiff had raised up and fired three shots with his shotgun after Parks heard the first rifle shot followed in a matter of seconds by three additional rifle shots.

Parks swung his glasses away to look for a deer and when he looked back plaintiff got up and walked across the fence into the brush. Parks did not see plaintiff again until he learned later that evening that he was in the hospital. Parks did not realize at the time he saw these events that plaintiff had been shot.

Before he was injured, plaintiff had flushed a covey of quail at the edge of the timber and shot twice. He was 20 to 30 feet west of the Parks line fence. He reloaded and took a few steps to the south and was out in the open when he heard a big crack of a gun and thought his own gun had gone off, it seemed so close. From the time he shot at the quail until he was shot was three to five minutes. There were three more shots as he went down, he yelled and fired three shots in the air as a signal, yelled again and somebody answered from close across the fence.

He walked east to the fence and walked to the east about 50 feet from the fence when he saw the defendant coming from the east and south. Defendant was carrying a 7.65 millimeter Mauser rifle which he said he did not know much about and had difficulty reloading after he shot one warning shot.

Before he shot at the quail, plaintiff heard deer rifle shots around him, some close and some far away, “sounding like the Civil War.” The shooting was within 100 to 500 yards but he did not think there was any to the south of him. The shot which struck him came from the east and south of him just across the fence on the Parks land.

Defendant Pennington admitted that he was the only one who shot close to plaintiff, that he did not see him before he was shot and he called that he had been hit after defendant fired the second shot.

Defendant’s version of the facts adds the following:

Testimony of Clive Wright, Donald Voss, Charles Becker, and Harold Corwin described the topography, established the existence of posted no-hunting signs, and detailed the arrangements for the hunters in defendant’s party to take assigned stands on the Parks land.

Defendant had visited the Parks farm .the week before the accident with other hunters in the group for the purposes of planning the deer hunt, assigning locations to the hunters, walking the property and finding these locations, and knowing where everyone else was to be.

On the day in question defendant had taken his assigned hunting stand on the Parks property. He was aware of the location of each of the other hunters. He believed that there was an occupied assigned position to his north.

Defendant was located to the south of a gully. Beyond the gully there was a clearing, and beyond the clearing there was timber. There was foliage on the trees and there was chest-high ground cover. There was heavy dense cover between defendant’s location and the spot where he later found plaintiff.

Defendant had heard heavy shooting all around that morning. He had heard shots from the north approximately a thousand yards away. He had heard shotgun blasts from a generally northerly direction approximately one thousand feet distant. Defendant did not believe anyone was close enough to his location to be in any danger because of the dense timber.

Quite awhile after hearing the shotgun blasts, defendant was looking north when two deer appeared on the north side of the gully in the opening. Defendant fired, one deer went down, got up, and he shot again. After the second shot, he heard “hollers” for help and ran straight north through the timber towards the sounds. Defendant was looking for whoever was “hollering" as he walked and ran north, but could not see anyone because there was too much brush. Defendant was unable to see plaintiff for the first time until he was approximately 30 to 40 feet from him. Plaintiff’s location was approximately 500 feet from the spot where defendant had been hunting and approximately 300 feet inside or east of the west boundary of the Parks farm. Plaintiff was wearing green coveralls that blended with the foliage and was wearing nothing red or fluorescent. ,,. , .Vj ,-n,(nu

Defendant knew there was not supposed to be anyone that close to his location or in the location where plaintiff was found. The plaintiff was familiar with the Parks property and its boundaries. The Parks property was posted, and plaintiff knew it was posted. Plaintiff had heard shooting prior to the accident, describing it like a Civil War was going on, some of the shooting coming from the Parks property. Plaintiff knew these were deer rifles. From the time plaintiff left the timber where he had shot at quail, he did no more shooting, did not yell or give any other warning to any hunters that were on the Parks property.

Plaintiff’s verdict-directing instruction was Instruction No. 3:

“Your verdict must be for plaintiff if you believe:
“First, that defendant knew or by using ordinary care could have known that plaintiff was in the range of defendant’s firearm and that the discharge from his firearm was capable of reaching and injuring plaintiff, and
“Second, plaintiff did not know and by using ordinary care could not have known of this condition, and
“Third, that defendant discharged the firearm in the direction of plaintiff and shot plaintiff, and
“Fourth, such discharging of said firearm and shooting of plaintiff was negligent, and
“Fifth, as a direct result of such negligence the plaintiff was injured, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 5.”

Instruction No. 5 submitted plaintiff’s contributory negligence:

“Your verdict must be for defendant whether or not defendant was negligent if you believe:
“First, plaintiff was on Estella Parks property without permission, and
“Second, plaintiff failed to warn defendant of his presence on Estella Parks property, and
“Third, defendant had no reasonable means with which to learn of plaintiff’s presence on Estella Parks property, and
“Fourth, such conduct of plaintiff was negligent, and
“Fifth, such negligence directly caused or directly contributed to cause any damage plaintiff may have sustained.”

Appellant charges the court erred in giving Instruction No. 5. He asserts that it submitted three elements, i. e., (1) that plaintiff was on the Parks land without permission; (2) that he failed to warn defendant of his presence, and (3) that defendant had no reasonable means to learn of plaintiff’s presence, which were not supported by substantial evidence from which the jury might reasonably find them to be true, and that defendant admitted that he had warning of plaintiff’s presence and means to learn of plaintiff’s presence. He concludes, “Therefore these elements are not the proximate cause of plaintiff’s injury.” See Bridgeforth v. Proffitt, 490 S.W.2d 416 (Mo.App.1973); Taylor v. Vestal, 304 S.W.2d 820 (Mo.1957); Saupe v. Kertz, 523 S.W.2d 826 (Mo. banc 1975).

Appellant concedes evidence sufficient to support element (1) when he recognizes in his brief that “defendant’s evidence on the first finding * * * was that he heard someone shout that he was hit and the shout was to defendant’s north. * * * it can be inferred from his testimony that plaintiff was on Estella Parks’ property. For the purpose of this appeal, * * * this issue is not of consequence.”

There is no question that plaintiff failed to warn defendant of his presence on the Parks property, element (2). It was his theory that he was injured while on property to the west of the Parks land and was never on the Parks land until he made his way there after he was injured.

The jury reasonably could find that defendant had no reasonable means with which to learn of plaintiff’s presence on the Parks land, element (3), from the following evidence: Defendant was located where timber, foliage, and brush obscured his vision to the north. It was sufficiently dense to conceal plaintiff until defendant was within 30 to 40 feet of him when defendant was searching for him after the cry for help. Defendant was aware of hunting in the area, but had heard no shots from any direction closer than 1,000 feet, and a shotgun blast at 1,000 feet from a northerly direction preceded the accident. Plaintiff was dressed in drab clothing which did not stand out in the foliage. Defendant knew the assigned location of his hunting partners and knew no one was to be in the area into which he shot or as close to him as the place where he found the injured plaintiff.

It is not contended that the elements submitted by Instruction No. 5 did not constitute negligence; neither is it contended that the shooting was intentional. Because proximate cause is ordinarily a jury question, Pollard v. General Elevator Engineering Co., 416 S.W.2d 90, 95[2], (Mo.1967), it was properly left to the jury to say whether defendant reasonably could believe no one was close enough to him to be in danger, and that plaintiff’s failure to warn of his presence where he was not supposed to be cause or contributed to cause his injury.

Judgment affirmed.

All concur.


author: PER CURIAM.

text:
    Delores I. MULLEN, Trustee, et al., Appellants, v. ROBERTS AND ROBERTS REAL ESTATE, INC., a corporation, et al., Respondents.
    No. KCD 28383.
    Missouri Court of Appeals, Kansas City District.
    April 4, 1977.
    Motion for Rehearing and/or Transfer Denied May 2, 1977.

      Haskell Imes, Kansas City, for appellants.
    Sol M. Yarowsky and William J. Gilwee, Kansas City, for respondents.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   PER CURIAM.

The plaintiff trustee appeals from the dismissal of her petition by the trial court on the separate motions to dismiss by the defendants that a prior judgment entered on the same cause of action was res judica-ta to a subsequent proceeding on the same subject matter.

We gather from an imperfect transcript on appeal that a judgment had been rendered earlier in favor of defendants Roberts and Roberts Real Estate, Inc. in an action brought by Delores I. Mullen and Leo M. Mullen, her husband, in a cause identified as No. 75-6300 in the Circuit Court of Jackson County. That action [we are informed from the memoranda of counsel to the trial court on the motions to dismiss the subsequent action — made a part of the transcript] claimed recovery for fraudulent misrepresentation by defendants to plaintiffs of the acreage to be conveyed under a contract between them. That action was tried to a jury and resulted in a directed verdict for the defendants.

Within months Delores I. Mullen, as trustee for the benefit of the two minor children of her marriage to Leo M. Mullen, brought another action which pleaded — in gist — the authority of Leo M. Mullen to contract for property for the trust in the name of the trustee, that within the exercise of that authority he executed with defendants an offer to purchase certain real estate, that the defendants misrepresented the actual acreage of the parcel promised for conveyance, and prayed for actual and punitive damages. That action also brought in the Circuit Court of Jackson County, nominated Delores I. Mullen as trustee, etc. v. Roberts and Roberts Real Estate, Inc., et al., defendants, and was identified as No. CV75-3030.

The motions to dismiss, entry of judgment of dismissal against the plaintiff designated as a final order for the purpose of appeal, and the engagement of our jurisdiction followed.

The plaintiff makes three contentions on appeal: that the principle of res judicata does not apply where the parties in the suits are different or act in a different capacity; that the two cases involved different subject matter; and, that the exclusion of the contract by the trial court in the first action [brought in her individual capacity] because it was executed by the plaintiff in her representative capacity did not adjudicate such proof in the second action brought in her lawful capacity.

These contentions, however plausible, are not open to our review simply because the transcript is not adequate for that purpose. The record here presents the petition in case No. CV75-3030, but not in case No. 756300. There are the separate motions of the defendant here to dismiss subsequent cause No. CV75-3030 [and the memoranda of counsel] on the ground that the judgment for them in case No. 756300 estops the subsequent proceeding, but there is no authentic source of facts as to what the contentions were in the prior trial, or the proof on them. The contentions cannot be determined without reference to the pleadings in both litigations and the evidence in the first. The defendants, respondents here, have filed no brief to the contentions of the plaintiff and the pleadings and memoranda submitted with the motion to dismiss — and reported in the transcript — do not admit the contentions on appeal.

While it is apparent the designation of the plaintiff(s) is different in each case, the scope of res judicata transcends such nominal difference where the subject matters of both disputes are essentially the same. Smith v. Preis, 396 S.W.2d 636, 640[4—7] (Mo.1965). The doctrine of res ju-dicata, whether applied as an estoppel by judgment, collateral estoppel, or as a more restrictive preclusion of issue, depends not only upon parties in privity by legal effect, but also upon the description and dimension of the subject matter actually litigated within the pleadings. Butler v. Manley, 416 S.W.2d 680, 682[1, 2] (Mo.App.1967); Hunter v. Delta Realty Co., 350 Mo. 1123, 169 S.W.2d 936, 939[6—10] (1943). We are denied access to these sources by a request for review which violates the requirement of Rule 81.12(b) that the “transcript on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented to the appellate court”. Thus, we are denied informed opportunity to determine whether the plaintiff is entitled to litigate her claim as an issue not already precluded by the prior judgment, or to relitigate the issue for other valid reason. In the absence of stipulation, we take the record as we find it and confine our judgment to what it shows. Rawlings v. Taylor, 477 S.W.2d 737, 739[1] (Mo.App.1972).

The appeal is dismissed.