text:
    Estil JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1977.
    Discretionary Review Denied Sept. 13, 1977.
    David W. Lamar, Owensboro, for appellant.
    Robert F. Stephens, Atty. Gen., Guy Shearer, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOGGE, WINTERSHEIMER and VANCE, JJ.
   VANCE, Judge.

Appellant was convicted of selling alcoholic beverages in violation of local option laws. This appeal raises the question of entrapment.

The conviction was based upon the testimony of a seventeen-year-old high school student, the son of a peace officer, who, in cooperation with police authorities, purchased a six-pack of beer from appellant. Appellant did not testify. The pertinent testimony of the young man who made the purchase was as follows:

“XQ. When you got there, did you knock on the door or did you stay in your car or what happened?
A. When I pulled up, he was out so I got out of the car.
XQ. Who said something to who first?
A. He said, ‘What do you need?’ And I told him six Strohs.
XQ. He asked what you needed?
A. Yes, sir.
XQ. And you said you wanted six Strohs?
A. Yes, sir.
XQ. And what did he say?
A. ‘Okay’.”

KRS 505.010, which became effective January 1, 1975, provides as follows:

“(1) A person is not guilty of an offense arising out of proscribed conduct when:
(a) He was induced or encouraged to engage in that conduct by a public servant or by a person acting in cooperation with a public servant seeking to obtain evidence against him for the purpose of criminal prosecution; and
(b) At the time of the inducement or encouragement, he was not otherwise disposed to engage in such conduct.
(2) The relief afforded by subsection (1) is unavailable when:
(a) The public servant or the person acting in cooperation with a public servant merely affords the defendant an opportunity to commit an offense; or
(b) The offense charged has physical injury or the threat of physical injury as one of its elements and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
(3) The relief provided a defendant by subsection (1) is a defense.”

By the provisions of this statute, as under our case law before its enactment, an essential ingredient of entrapment is a showing that the defendant was induced by police authorities, or someone acting in cooperation with them, for the purpose of obtaining evidence for prosecution, to commit an act which he was not otherwise disposed to commit. When the authorities only afford the defendant an opportunity to commit the offense it is not entrapment. See Dumon v. Commonwealth, Ky., 488 S.W.2d 343 (1972) and Delaney v. Commonwealth, Ky., 520 S.W.2d 747 (1975).

We find nothing in the new criminal code which changes the law of the defense of entrapment.

We think the testimony shows that appellant was ready and willing to commit the offense charged. The only thing the police did was to afford him an opportunity. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GANT, Judge.

license: Public Domain

text:
    SEG EMPLOYEES CREDIT UNION, Appellant, v. W. S. SCOTT and Geneva Scott, his wife, Appellees.
    Court of Appeals of Kentucky.
    Aug. 5, 1977.

      William L. Montague, Stoll, Keenon & Park, Lexington, for appellant.
    E. Durward Weldon, R. Bruce Lankford, Georgetown, for appellees.
    Before GANT, HAYES and LESTER, JJ.
   GANT, Judge.

Appellees purchased a home in Georgetown, Kentucky, on May 10,1962, assuming an existing loan with Equitable Insurance Company of approximately $17,000.00. Immediately thereafter, W. S. Scott attempted to purchase credit life and disability insurance from the lender but could not qualify after three physical examinations. Being an employee of Southeastern Greyhound for about 30 years and a member of the Credit Union at this company, Mr. Scott had received flyers and advertisements from the appellant soliciting loans from its members. One of these which was received by the appellees contained the following language:

Besides all this . . . our loans are insured at no extra cost.
In other words, if I borrowed from my credit union, and then died or became permanently disabled . . . my loan would be paid in full with interest as provided in our credit union’s Loan Protection Insurance Contract and as I said before, at no additional cost. Loan Protection means credit union debts shall die with the debtor.
1. How is my loan insured?
Our credit union has a contract for loan protection insurance with CUNA MUTUAL, the credit union insurance company. The life of each eligible borrower is insured in the amount of his loan balance . up to $10,000.00.
2. Who is eligible for this insurance? Every borrower under the age 70, who is able to perform (or within a reasonable time to resume) the usual duties of his livelihood when he makes the loan.
3. Who pays for this insurance?
The credit union pays for it out of its earnings. Borrowers and members pay no individual charges.
4. How are the claims paid?
If an insured borrower dies before age 70, or is totally and permanently disabled before age 60, CUNA MUTUAL sends our credit union a check for his loan balance.
5. Here’s a good example of Loan Protection at work.
Let’s suppose that today I borrowed $300.00 to buy a refrigerator . and that tomorrow I became disabled or died. My loan would be paid for me, with interest, as provided in the insurance contract.
(The . . . above are verbatim and do not signify omissions.)

After being denied coverage for credit life and disability insurance, Mr. Scott contacted an officer of the credit union about changing his loan to that organization, subsequently made application therefor, the application was approved and the loan made. It is significant that at no time was any mention of insurance made by either the appellees or any officer of the company throughout these proceedings, but it is stipulated that both parties knew of the existence of the insurance and that it was with CUNA Mutual Insurance Society.

At the time of closing, or just prior to closing or possibly just after closing, the borrowers, appellees, were delivered a certificate of insurance and accepted it. This certificate contained the following clause:

(g) TERMINATION Insurance shall continue only so long as the required premium is paid by the Credit Union to CUNA Mutual. Upon written notice from either party to the other and given not less than 30 days in advance, both CUNA Mutual and the Credit Union reserve the right to terminate the entire contract as to further and future coverage.

The appellees were furnished with only the Certificate of Insurance and the actual policy was never exhibited to them, the policy being kept on file at the offices of the appellant. The appellees were never advised by the appellant that the policy was there and were never invited to inspect the policy.

Some 19 months after the loan was closed, the credit union terminated the policy with CUNA Mutual because of increase in premium. The record discloses that the original contract between CUNA Mutual and appellants, dated in 1957, called for a monthly premium payment of $0.65 per $1,000.00 and that by May 1, 1964, the premium had risen, by various steps, to $1.26 per $1,000.00. Appellees, along with all others in Mr. Scott’s position, were notified of the cancellation. They made no protest of the cancellation and did not talk with anyone at all about the insurance until after Mr. Scott’s disability retirement on December 31, 1967.

After retirement, appellees continued to pay their loan until it reached about $9,000.00 and then discontinued payments after July 13,1970, bringing this action and asking the court to determine their rights under the contracts and for an order directing the credit union to release the mortgage.

The lower court held that the appellant “by representing to (appellees) that their loan would be insured, promised to keep the credit life and insurance in force for the life of the loan.” The court went on to hold that when the appellant cancelled the policy it breached the contract and became a “self-insurer of the loan.”

There are two contracts at issue in this case. The first is one implied in fact between the appellant and appellees. The second is a written contract between appellant and CUNA Mutual Insurance Society, under which the appellees were donee third party beneficiaries.

We can quickly dispose of the second contract. This is not an action by the donee third party beneficiaries against the insurance company, as the policy had been terminated pursuant to an action by the appellant under the terms of the policy. The law is quite clear that where the right to alter, terminate or rescind a contract is specifically reserved in that contract, it may be rescinded by the parties without liability to the donee third party beneficiary. See Rhodes v. Rhodes, Ky., 266 S.W.2d 790 (1953).

If the appellees are to recover, it is clear that they must base their action on a contract implied in fact between the appellees and the appellant. It has long been the law in Kentucky that a contract implied in fact is where there was a meeting of the minds upon the promises of the respective parties but without any definite expressed or categorical agreement, the mode of proof of the promises being by evidence of facts and circumstances from which the promises may be inferred or reasonably deduced. See Thompson v. Hunter’s Ex’r, Ky., 269 S.W.2d 266 (1954). We have related the relevant facts and circumstances of this case as indicated in the stipulation upon which this case was tried and conclude that there was a meeting of the minds between the appellees and appellant on three things, to-wit:

1. That appellant would lend appellees the sum of $17,500.00 at 5% interest for 15 years, with stipulated bi-monthly payments.

2. That appellees would execute a note and mortgage reflecting these terms.

3. That appellant would furnish to ap-pellees, without cost, a credit life and disability insurance policy on said loan up to $10,000.00.

In considering the proof of the promises from the facts and circumstances of this case, we must look to the pamphlet distributed by the appellant to all of its members, including the appellees, and upon which the appellees relied. Our first determination must necessarily be whether the appellees were reasonable in their assumption that they would have credit life and disability insurance for the duration of their loan. In examining this pamphlet, we find these phrases:

In other words, if I borrowed from my credit union and then died or became permanently disabled ... my loan would be paid in full with interest as provided in our credit union’s Loan Protection Insurance Contract .
Loan Protection means credit union debts shall die with the debtor.
If an insured borrower dies before age 70, or is totally and permanently disabled before age 60, CUNA Mutual sends our credit union a check for his loan balance.

It is apparent to this court that the appel-lees were, in fact, reasonable in their assumption that their loan would be protected for the life of the loan under the circumstances that if Scott died before age 70 or became disabled before age 60 his loan would be paid in full, with interest.

We must then examine the effect of this pamphlet on the contract and determine whether it became a part of this contract.

We have been able to find two cases in Kentucky which touch upon this subject. The first is the case of Southern Mutual Life Insurance Company v. Montague, 84 Ky. 653, 2 S.W. 443 (1887). In this case, the insurance company had issued a pamphlet to its agents and representatives making certain representations as to the plans upon which the company insured. The pamphlet was exhibited to the insured and he purchased a policy from the company. The pamphlet represented that if the insured paid as many as four premiums the company would issue him paid-up life insurance for the amount of the cash premiums in excess of the cost of the insurance for the period covered by the policy. The actual policy did not so provide and the court held in that case that the pamphlet became a part of the contract and should be considered in connection with the policy in determining what the contract was. In that ease the court held that the pamphlet was “an inducement for the appellee to take the insurance and pay the premium.” The court went on to say:

The printed pamphlet was not only the inducement, but formed a part of the consideration for which the premium notes were executed and the contract entered into by the assured. The rights of the assured under it was the prime cause for his accepting the policy, and gave the appellant as an insurance company . the preference over all others, and to hold that it was not intended as a part of the contract would be sustaining a fraud that no court of conscience could sanction.

This case was subsequently cited with approval in the case of Forman v. Mutual Life Insurance Co., 173 Ky. 547, 566, 191 S.W. 279, 286 (1917). That case differed from the instant case and from the Montague case, in that the pamphlet was actually attached to the policy but the language in the holding in that case reads as follows:

(2) That if there is a reasonable doubt as to the meaning of the contract, that construction should be adopted that will carry out the understanding of the insured as to the meaning of the contract at the time he accepted it, if it is fairly made to appear that his understanding of its meaning was produced by and based on representations and assurances in writing made to him by the company before or at the time the contract was executed, and these representations and assurances were of such a nature as to reasonably induce the insured to believe that his understanding and construction of the contract would be carried out.

In the case of Lewis v. Continental Life & Acc. Co., 93 Idaho 348, 461 P.2d 243, 36 A.L.R.3d 529 (1969), there was an action by a widow to recover benefits under her husband’s group life policy. In that case a handbook had been distributed explaining the coverage and the handbook was at variance with the actual terms of the policy. The court pointed out that the handbook explained the coverage in clear, formal, and easily read English and that it could be reasonably expected that employees would read and rely upon it, and the court upheld the right of the widow to recover the death benefits based upon the representations made in the handbook.

The inducement and reliance in the instant case occurred when a pamphlet was circulated to a particular group of employees by the appellant. The pamphlet was obviously a solicitation for loans from this particular group of people by an association to which the appellees belonged. It is our opinion that the representations made in the pamphlet became a part of the contract implied in fact between the appellant and the appellees.

In the case of a breach of contract, the goal of compensation is not the mere restoration to a former position, as in tort, but the awarding of a sum which is the equivalent of performance of the bargain— the attempt to place the plaintiff in the position he would be in if the contract had been fulfilled. See C. McCormick, Damages § 137.

For the reasons above stated, the judgment of the lower court is affirmed.

All concur.


text:
    AETNA LIFE AND CASUALTY COMPANY (AETNA CASUALTY AND SURETY COMPANY), Appellant, v. David Allen LAYNE and Chester Layne, and Aetna Insurance Company, Appellees.
    Court of Appeals of Kentucky.
    Aug. 5, 1977.

      Polly, Craft & Asher, Whitesburg, for appellant.
    David Allen Layne and Chester Layne, Clifford B. Latta, Latta, Damron & Fitzpatrick, Prestonsburg, for appellees.
    Fred G. Francis, Francis, Kazee & Francis, Prestonsburg, for appellee Aetna Ins. Co.
    Before GANT, HAYES and LESTER, JJ.
   GANT, Judge.

This action, basically, is a fight between two insurance companies to determine liability for personal injuries and property damages to the appellees, David Allen Layne and Chester Layne.

On Saturday, September 6, 1969, Wiley Adams and his son, Gerald Adams, went to the Chevrolet dealer in Ezel, Kentucky, and purchased a 1969 Camaro. As to which of these was the actual purchaser, we have the following record in the deposition of the father:

Q. And the vehicle was purchased for your son?

A. That’s right.

Q. He was to pay for it?

A. Yes, sir.

Q. What occasioned you to take the title in your name?

A. I never was to take the title; the car was bought for him himself, but he was under 21 and they just preferred to put it in my name.

Q. But he was to be the owner of the car?

A. Yes, sir, he was the sole owner.

Q. And although the Bill of Sale was to be issued to you, it was understood that he was the owner of the car?

A. He was the owner of the automobile, that’s right.

Q. He paid the down payment for it?

A. Yes, sir.

Q. How much was it?

A. I forget now what it was. I think is was six — something—almost seven hundred dollars.

Clearly the son was the owner of the car, irrespective of the fact that the Bill of Sale was subsequently made in the father’s name.

On Monday, September 8, 1969, the father went to the agent for the appellant, Aetna Casualty and Surety Company, to inquire about some kind of insurance, but talked only to the secretary as the agent was out of town. This company already had a policy on a 1968 Ford Fairlane, the policy having been issued to Ella Jean Adams, wife of Wiley Adams. Wiley Adams paid no premium and informed the secretary that he would return Friday and talk with the agent when he returned. Two days later, the son was in an accident with the appellee, David Allen Layne, which was subsequently determined to be the fault of the son and judgment was recovered against the father. Aetna Casualty refused defense on the ground that the vehicle involved was not covered by the policy. The Laynes then brought this action against Aetna Casualty, the liability company of the Adamses, and Aetna Insurance Company (separate and unrelated companies), with which company they had insured their own vehicles and on which policy there was an uninsured motorist provision. The lower court determined that the liability carrier should pay. We reverse that judgment.

The trial court correctly found that Wiley B. Adams, as husband of Ella Jean Adams, was a “named insured” under the policy of Ella Jean Adams and that Gerald Ray Adams was an “insured” although not a named insured, under the same policy. However, the trial court erred in applying the coverage to the vehicle involved. Under the policy with the appellant, Aetna Casualty, coverage was extended to two types of automobiles. The first was an “owned automobile.” This was defined in the policy as the “private passenger automobile . . . described in the policy for which a specific premium charge indicates that coverage is afforded” and a replacement automobile acquired by the named insured or a subsequent automobile “owned by the named insured” if the named insured notified the company within thirty days of the acquisition of the subsequent automobile. The 1969 Camaro was not the private passenger automobile described in the policy. It did not replace the 1968 Ford Fair-lane which was described in the policy and it had not been acquired by the “named insured” but by his son under the circumstances previously described. Thus, we find that the 1969 Camaro did not meet the policy definition of an “owned automobile.”

The second situation under which the vehicle involved would have been covered by the policy of the appellant, Aetna Casualty, would be if the 1969 Camaro was, in fact, a “non-owned automobile” within the definition provided in the policy. This standard policy defined a non-owned automobile as “an automobile . . . not owned by or purchased for the regular use of either the named insured or any relative, other than a temporary substitute automobile.” The typical situation of a non-owned automobile is where the named insured, spouse or relative is operating an automobile owned by a friend or even a stranger, with his permission. However, inasmuch as the 1969 Camaro was “owned by” the son of Ella Jean and Wiley Adams, it was not an insured vehicle within the policy definition of a “non-owned automobile.” Thus we see that there are three basic categories of automobiles under the policy. The first is the automobile owned by the named insured and listed on the policy or .one subsequently purchased and added to the policy or one which replaces that vehicle. The second is the automobile belonging to a stranger, friend, a temporary replacement for the owned vehicle, etc. The third category is the automobile owned by the named insured, spouse or relative which is not included in the policy. The persons covered by the policy under its terms are insured against liability in the first two categories but not in the third. Appellees urge that because the vehicle here involved “did not fall within the definition of a non-owned automobile” it must be an owned automobile, but these two categories are not mutually exclusive.

Appellees further urge that the rule in Kentucky, as stated in Kentucky Farm Bureau Insurance Co. v. Vanover, Ky., 506 S.W.2d 517 (1974), is that any doubt in the coverage or terms of a policy of insurance should be resolved in favor of the insured. We agree that this is the rule in Kentucky and has been for many decades. However, we feel that the holding in the case of Carr v. Home Indemnity Co., 404 Pa. 27, 170 A.2d 588, 83 A.L.R.2d 922 (1961) is a proper corollary of this rule. That case states as follows:

The rule that an ambiguity in an insurance policy is to be resolved against the insurer has no application to a term so clearly defined in the policy as to exclude coverage under the circumstances involved in the case.

In the Carr case, the driver was the brother of the named insured who was a member of her household and coverage was excluded.

An almost identical case is the case of Jones v. Falcon (La.App.) 297 So.2d 746 in which the court held that a policy provision defining “non-owned” automobile as “not owned by . any relative” was unambiguous and excluded a car owned by the son of the insured from coverage. It is our opinion that there is no ambiguity in the policy of the appellant, that the 1969 Camaro was “owned by or purchased for the regular use of . any relative.” The automobile herein having been operated by an “uninsured motorist,” the appel-lees, David Allen Layne and Chester Layne, must look to the appellee, Aetna Insurance Company, their own carrier, for coverage under the uninsured motorist provisions of their policy.

The other point in this case, whether the appellees Laynes could recover their attorney’s fee, is rendered moot by our holding.

For the reasons above stated, this case is reversed and remanded for judgment consistent herewith.

ALL CONCUR.


text:
    Jettie WARD, Executrix of the Estate of Drewie Ward, Deceased, Appellant, v. EASTERN COAL CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Aug. 5, 1977.
    Dan Jack Combs, Lawrence R. Webster, Pikeville, for appellant.
    John M. Stephens, Stephens, Combs & Page, Pikeville, for appellee.
    Before GANT, HAYES and LESTER, JJ.
   GANT, Judge.

Appellant is the owner of a certain tract of land situated in Pike County, Kentucky, which was improved to the extent of a dwelling house, barn, canning house and chicken house. The evidence was that the appellant and her husband, prior to his death, had maintained a two-acre garden on the property, an orchard of some 12 trees and that they had a dependable well containing about 14 feet of water and a spring, together with other outbuildings. The ap-pellee was engaged in the deep mining of coal in the area of the appellant’s property and actually came somewhat closer to the buildings on the appellant’s property than originally intended. The evidence further indicated that some six months prior to May 7, 1971, the appellant heard noises which appeared to her to be the sounds of blasting and the blasting shook the house at the time she was sitting there. About three weeks prior to May 7, 1971, the well suddenly went dry, causing the appellant to have to carry water from the spring. On the evening of May 5 there was apparently quite a rain which went on until Friday morning when appellant noticed water up above the house and, in her words, “the mountain had broke all the way in back of the barn, it was just a big dark crack there, and I went back in and woke my husband up and he got up and went out on the porch and when he went out on the porch the slide was coming on out and the apple trees were coming down the hill at the same time.”

The testimony and exhibits indicated that there was a crack in the well foundation, a crack in the canning house, damage to the house, uprooting of trees, numerous cracks in the earth and landslides blocking the roads. Immediately after this incident, the spring dried up. The appellants’ proof was further that as the appellee moved out of the mine it “split the pillars.” This is a process by which pillars of coal which are left in the mine for support during the mining operation are partially removed as the mining operation ceases. Maps were introduced showing the approximate size of the pillars left in the proximity of the appellants’ property. In the instant case, however, ho one had been in the mine for observation for several months prior to May of 1971.

The general appearance of the property of the appellee was not disputed. Two phrases were prevalent throughout the trial of this case. These phrases are “mountain breaks” which are generally defined as partings of the earth caused by the removal of subjacent support by mining; and “slide cracks” which are cracks in the earth caused by landslides which are the result of numerous things, one of which being an excessive amount of rainfall. All the witnesses for the appellants, being neighbors, friends and coal miners, said that the numerous openings in the earth were “mountain breaks.” All the witnesses for the appellee, who were generally employees of the appellee, stated that these openings were “slide cracks.”

At the conclusion of the appellants’ evidence, the appellee made a motion for a directed verdict, upon which ruling was withheld and the case was submitted to the jury at the conclusion of all the evidence, the jury being unable to agree. Thereafter the trial court granted the motion of the appellee for a judgment n. o. v. and this appeal resulted. The sole question presented by this appeal is whether the trial court erred in removing this case from consideration by a subsequent jury.

The law with respect to a judgment notwithstanding the verdict is clearly set out in the case of Commonwealth Department of Highways v. Enoch, Ky., 523 S.W.2d 633 (1975) which states as follows: “The only ground on which a motion for judgment n. o. v. can be granted is that the movant asked for and was entitled to a directed verdict at the end of all the evidence.”

This the appellee did, and thus we must examine the law applicable to a motion for directed verdict. That law is well stated in the case of McCoy v. Carter, Ky., 323 S.W.2d 210 (1959), as follows:

The question of proximate cause in connection with the occurrence ... is one of fact to be left to the jury where such cause is open to a reasonable difference of opinion. Stated somewhat differently, the issue of proximate cause should be withheld from the jury only if there is no dispute about the essential facts and but one conclusion may reasonably be drawn from the evidence. (Citing cases.)

Appellees rely basically upon three cases in Kentucky, these being the cases of Consolidation Coal Company v. Ramey, 271 Ky. 48, 111 S.W.2d 438 (1937); Fordson Coal Company v. Whitt, 253 Ky. 484, 69 S.W.2d 992 (1934); and Bogar v. Fordson Coal Co., 283 Ky. 594, 142 S.W.2d 143 (1940). However, each of these cases was distinguishable from the present case. In each of these cases, the coal company had gone into the mine both immediately before and subsequent to the action and had, by competent proof, proved that the roof of the mine was unbroken, that supports had not been withdrawn, that there were no cracks in the roof of the mine and that there was no subsidence whatsoever. This was not true in the instant case, in that the mine had been sealed pursuant to Federal regulation and no one had entered the mine for several months prior to May 7, 1971.

It is the opinion of this court that this case should have been submitted to the jury in light of the facts above stated and further in light of the statement attributed to the chief engineer of the appellee to the effect that “The mining started it and the water finished it.” The law is well stated in W. Prosser, Torts § 41 (4th ed. 1971) as follows:

The defendant’s conduct is a cause of the event if it was a material element and a substantial factor in bringing it about. Whether it was such a substantial factor is for the jury to determine, unless the issue is so clear that reasonable men could not differ.

For the reasons above stated, the judgment of the lower court is reversed and this cause is remanded for a new trial consistent herewith.

ALL CONCUR.


author: WILHOIT, Judge.

text:
    Elvin SMITH and Martha Smith, his wife, Appellants, v. R. Fred COMBS and Linda Combs, his wife, Appellees.
    Court of Appeals of Kentucky.
    Aug. 5, 1977.
    Moss Noble, Jackson, for appellants.
    Michael E. McGrath, Miller, Stidham & McGrath, Jackson, for appellees.
    Before VANCE, WILHOIT and WIN-TERSHEIMER, JJ.
   WILHOIT, Judge.

This is an appeal from a judgment of the Breathitt Circuit Court holding that the appellees, Fred and Linda Combs, have the right to use a roadway constructed by the appellants, Elvin and Martha Smith, and enjoining the appellants from interfering with the appellees’ use of the roadway.

Sollie Combs and his daughter, Marie F. Hollon, were the owners of a tract of land located on Highway 15 in Breathitt County, Kentucky. This tract was bounded by the highway on the east, by Lost Creek on the north, and by other property of Combs and Hollon on the west and south. On August 22, 1974, they sold a one-acre lot from this tract to the appellants. The southeastern corner of this lot was located approximately six hundred feet west of the highway and the deed to appellants also granted to them “a road right-of-way” of about eight hundred feet in length running across the property of Combs and Hollon from Highway 15 to the southwestern corner of appellants’ lot. This right-of-way adjoined the “front” or southern boundary of their lot for slightly over two hundred feet.

Previously, Combs and Hollon had conveyed another lot from this tract to Roy Warrix. This lot adjoined appellant’s lot on the east and its southeastern corner was approximately three hundred feet west of the highway. A third lot adjoining Warrix and running to the highway was conveyed to Arnett Noble during the month after the conveyance to appellants. The right-of-way contained in appellants’ deed passed in front of these two lots. Both Warrix and Noble were also given by Combs and Hollon the right to use that portion of the right-of-way bordering the fronts of their respective lots and running to the highway.

On February 26, 1974, Marie F. Hollon, her father having died, conveyed another lot from the tract to Arnett Noble. This lot contained 3.80 acres and lay to the north or “rear” and to the west of the three other lots already conveyed. The northern boundary of the lot ran to Lost Creek. The deed of conveyance had a plat attached to it and incorporated into it by reference showing a “roadway easement” running from Highway 15 to the southwestern boundary of appellants’ lot. To that point it described the same right-of-way previously granted to appellants. This “roadway easement” then made a ninety degree turn to the north and ran adjoining the western boundary of appellants’ lot to the southwestern line of the 3.80 acre lot.

In July, 1974, Noble conveyed this lot to the appellees. The deed of conveyance made no mention of the “roadway easement”. Appellees then subdivided the 3.80 acre lot into nine smaller lots and proposed to sell these lots.

This action was brought to enjoin the appellants from blocking the road which they had constructed along the right-of-way described in their deed and from interfering with the appellees’ use of the right-of-way. Appellants argue that the deed to appellees made no mention of the “roadway easement” and therefore granted them no use of it and that even if it had, such a grant would be of no effect without appellants’ consent since it placed an unreasonable burden on appellants’ easement.

We disagree with the argument that the fact that the deed from Arnett Noble to the appellees made no mention of the “roadway easement” necessarily results in the appellees having no right to use the roadway. Such a roadway under the facts of this case would clearly be an easement appurtenant to the 3.80 acre lot. Martin v. Music, Ky., 254 S.W.2d 701 (1953). Easements appurtenant pass with the land to which they are appurtenant without mention in the deed. KRS 381.200; Eastham v. Church, 310 Ky. 93, 219 S.W.2d 406 (1949).

The more difficult question presented here is whether the grant of the easement to Noble which passed to appellees and is sought to be used by them and their prospective grantees places an unreasonable burden on the easement already given to the appellants. In McBrayer v. Davis, Ky., 307 S.W.2d 14 (1957), the Court seemed to hold that no unreasonable burden is placed on a private roadway easement by granting additional parties the right to use it as long as the right of use is given only to land which constituted a part of the original tract subdivided. The subsequent case of Delph v. Daly, Ky., 444 S.W.2d 738 (1969), involved a situation in which a roadway was being extended to another part of the original tract owned by the subdividers. While citing the McBrayer case for the proposition that the use of the roadway could not be extended beyond the original tract, the Court went on to consider whether the additional use of the roadway would be an unreasonable burden on the existing easement. Finding that the additional use was contemplated by the parties the Court concluded, therefore, that it could not constitute an unreasonable burden. The present status of our case law, then, is that extending the use of a roadway easement to land not a part of the original tract constitutes an unreasonable burden, McBrayer v. Davis, supra. Whether or not anything short of that can be an unreasonable burden seems to be a question of fact, although when the additional use was contemplated by the parties such use cannot be held unreasonable, Delph v. Daly, supra.

The trial court made no findings of fact bearing upon whether the additional use would constitute an unreasonable burden on appellants’ easement or upon what was contemplated by the parties at the time appellants were conveyed their lot. No request was made for any such findings. CR 52.04. The trial court, however, reached no conclusion on the determinative issue of the reasonableness of the additional burden to the appellants’ easement. CR 52.01.

The judgment herein is vacated and this cause is remanded to the circuit court with instructions that it make findings of fact based on the record and conclusions of law concerning the reasonableness of the added burden to the appellants’ easement and that it enter a new judgment in conformity therewith.

All concur.

APPENDIX


author: HOWERTON, Judge.

text:
    James R. YOCOM, Commissioner of Labor of the Commonwealth of Kentucky and Custodian of the Special Fund, Appellant, v. Edward Eugene CONLEY, General Telephone Company of Kentucky and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Aug. 5, 1977.
    Gemma M. Harding, Deputy Gen. Counsel for Appeals, Dept, of Labor, Louisville, for appellant.
    Stanley R. Hogg, Ashland, for appellee Conley.
    Charles E. Palmer, Jr., Lexington, for appellee Gen. Tel.
    Kenneth E. Hollis, Dept, of Labor, Frankfort, for Dept, of Labor.
    Before HOWERTON, GANT and WIL-HOIT, JJ.
   HOWERTON, Judge.

Edward Eugene Conley suffered an injury to his back when he fell approximately thirty-five to forty feet while working as a lineman for General Telephone Company of Kentucky. Conley had suffered a previous injury for which he had received a settlement of Workmen’s Compensation benefits based upon a 20% disability of the body as a whole.

For his present disability, the Workmen’s Compensation Board found that Conley was 80% permanently disabled and determined that 50% of this 80% was an active occupational disability which existed immediately prior to the injury. Thus, only the remaining 30% was compensable and was the responsibility of the employer, General Telephone Company. The Board dismissed the Special Fund, finding that there was no arousal of a dormant, non-disabling disease condition, nor was there an excess of disability from the cumulative effect of the recent accident coupled with the prior disability.

On review, the circuit court reversed the findings of the Board. The circuit court found that there was no evidence whatsoever that Conley was presently partially disabled. Rather, all evidence pointed to the fact that Conley was 100% disabled. Further, the court found that only 20% of the current 100% total disability was attributable to prior injury which had already been compensated, leaving 80% disability to be compensated. Based upon KRS 342.120 and the test developed in Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), the court determined that the Special Fund should not have been dismissed. The circuit court found that the evidence dictated a finding that the 80% disability should be apportioned 30% and 50% between the employer and the Special Fund, respectively, for 30% disability would have resulted from the latter injury had it been the sole injury. The court determined that the Special Fund would be responsible for the disability ascribable to the combined effects of the latter injury and the pre-existing disability, namely 50%. In making such determination, the court found that there was no evidence of any occupational disability which existed prior to the injury other than 20%. Also, it held that the Board’s finding of 50% pre-existing occupational disability was unsupported by any evidence in the record.

The appellant, Special Fund, argues that the court erred when it reversed the findings of fact of the Board which dismissed the Special Fund from all liability. It is argued that the report of the doctor appointed pursuant to KRS 342.121 was mandatory upon the Board in the apportionment as no specific objections were filed to the report by any party, pursuant to KRS 342.121(4). Such claim was not made until the present appeal and enough is said to state that appellant has waived this argument. See, Heucker v. Clifton, Ky., 500 S.W.2d 398 (1973). Nevertheless, we would point out that this section of KRS was amended on June 18,1970, doing away with the necessity of objecting to the doctor’s report. The procedural nature of this amendment made it applicable to the present case. See, Carey Lumber Company v. Newsome, Ky., 472 S.W.2d 691 (1971).

While we are in agreement with numerous conclusions made by the circuit court, we have concluded that this case must be remanded to the circuit court since it exceeded its authority in directing specifically the award which the Board should render. KRS 342.285; Young v. Tackett, Ky., 481 S.W.2d 661 (1972); Greathouse Company v. Yenowine, 302 Ky. 159, 193 S.W.2d 758 (1946).

Upon a review of the record, we agree with the circuit court that the finding of the Board that Conley is 80% occupationally disabled is unsupported by any evidence and is clearly erroneous. Further, we agree with the circuit court that the record does not support the Board’s conclusion that 50% of the occupational disability was preexisting. Last, we determine that it was error for the Board to find that there was no percent of disability ascribable to the combined effects of the newest injury and the pre-existing injury.

This case is remanded to the circuit court for correction of its previous judgment which will necessitate a remand of the case to the Board for an award consistent with the correct and authorized findings of the circuit court as discussed above.

ALL CONCUR.


author: HOGAN, Judge.

text:
    Edward L. MANGAN, Petitioner-Appellant, v. Joseph J. MANGAN, Jr., et al., Respondents-Respondents.
    No. 9840.
    Missouri Court of Appeals, Springfield District.
    May 10, 1977.

      Benjamin J. Francka, Springfield, for petitioner-appellant.
    Wayne T. Walker, Theo C. Salveter, Jr., Walker, Salveter & Stoner, Springfield, for respondents-respondents.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   HOGAN, Judge.

In this bench-tried will contest, the Circuit Court of Greene County has found that an instrument dated and executed February 23,1972, is the Last Will and Testament of Ralph A. Mangan, deceased. Petitioner (contestant) Edward L. Mangan, the testator’s brother, appeals. We affirm.

As material here, the record shows that the testator Ralph A. Mangan, died August 22, 1972, at age 72. At the time of his death, testator was a widower who had no children.

On February 2, 1968, the testator executed a will, shortly before his wife’s death. In substance this will provided that should the testator’s wife die before the testator, all the testator’s property would be divided equally between Edward L. Mangan (petitioner) and Joseph J. Mangan, Sr., the testator’s brothers. The validity of this will— when it was executed — is not in issue; the question is whether the 1968 will was revoked by the execution of either of the testator’s two subsequent wills.

On November 16, 1971, the testator sustained a gunshot wound either as a result of an accident while cleaning his gun, or perhaps as the result of an attempt to take his own life. Testator was hospitalized for the treatment of that wound and he remained hospitalized until December 22, 1971, at which time he was moved to a nursing home. On February 26, 1972, the testator left the nursing home and took up residence with his brother Edward, the petitioner here. He remained with Edward until April 5, 1972, when he was again hospitalized with a bleeding ulcer, arteriosclerotic cardiovascular disease and other secondary ailments. On May 9,1972, the testator was again moved to the nursing home where he remained until he expired August 22, 1972. On June 6, 1972, testator was adjudicated an incompetent.

While the testator was in the nursing home from December 1971 to February 1972 he executed two wills. The first of these wills was executed January 19, 1972, and the second on February 23, 1972. The provisions of these wills differ considerably from those of the February 1968 will in that Edward L. Mangan’s share of the estate is greatly reduced, and that part left to Joseph J. Mangan, Jr., is substantially increased.

The contestant (petitioner) sought to invalidate both wills executed in 1972, on the grounds that the testator lacked testamentary capacity and was unduly influenced by Joseph Mangan, Jr., and his wife, Helen, on both occasions. To support his contention that the testator lacked testamentary capacity in 1972, petitioner had some evidence that as early as the summer of 1971, Ralph A. Mangan was confused and disoriented, and while he was hospitalized in 1971 and thereafter was thoroughly disoriented because of his advanced age, arteriosclerosis and the trauma of the gunshot wound. The contestant further had evidence that on January 19,1972, the testator also executed a warranty deed conveying the same real property to proponents Joe and Helen Man-gan as was devised to them in the will of the same date. Moreover, it appears that in the final will, this property was devised to Joseph Mangan, Sr., for life then to Joseph Mangan, Jr., and another nephew, Bernard J. Mangan. There was evidence testator had no nephew named Bernard J. Mangan. The petitioner also contended, and had some proof to the effect, that Joe and Helen Mangan managed the testator’s business affairs, insinuated themselves into his confidence and thereby unduly influenced him in the execution of the 1972 wills and the deed of January 19, 1972.

The proponents had the evidence of many witnesses that during his first stay in the hospital and later at the nursing home testator appeared competent. Further, the proponents’ witnesses more or less uniformly stated that the testator was a self-reliant person who attended to all his business affairs even after the 1972 wills had been executed. The substance of their evidence concerning the will and deed of January 19, 1972, was that the property involved was under the testator’s sole control, implying that it would be reasonable for a layman to believe he could still devise the property. There was testimony that Helen Mangan contacted an attorney about the January 19,1972, will upon the testator’s instruction, and that the attorney went over that will in detail with the testator. The attorney who prepared the final will — the will admitted by the Probate Court of Greene County— was called, and having detailed his past acquaintance with the Mangan family and having gone over in some detail his observation of the testator prior to the actual execution of the February 23, 1972, will, gave it as his opinion that the testator was of sound and disposing mind, that testator “was capable, competent and that he did know the — what he wanted and what the objects of his bounty were.” The testator, according to this attorney, “mentioned dollar amounts . . . street addresses and that sort of thing”; the testator also “went over various names”, mentioning a number of “nephews, cousins and so on.” In substance, this attorney testified that at and near the time the February 23, 1972, will was drafted and executed, the testator was of sound mind, understood the ordinary affairs of life, knew the nature and extent of his property and the persons who were the natural objects of his bounty, and appreciated his natural obligations to those persons. Such, as this court has very recently pointed out, Cockrum v. Cockrum, 550 S.W.2d 202, are the requirements for testamentary capacity. Lewis v. McCullough, 413 S.W.2d 499, 505 (Mo.1967); Sturm v. Routh, 373 S.W.2d 922, 928[3] (Mo.1964); Crum v. Crum, 231 Mo. 626, 638, 132 S.W. 1070, 1073[4] (1910).

In this court the petitioner has briefed and argued five assignments of error. The proponents — respondents here— have answered each point, but in addition complain that the contestant’s brief is so deficient the appeal should be dismissed. In the circumstances, we do not find it so, even though it is technically subject to criticism because the “argument” part of the brief does not contain any specific page references to the transcript on appeal as required by Rule 84.04(h), V.A.M.R. Otherwise, the contestant simply questions the sufficiency of the evidence, a matter we must consider anyway. Rule 73.01, para. 3(a). In this connection, we may observe that Rule 73.01, para. 3, as construed in Murphy v. Carron, 536 S.W.2d 30, 32[1—3] (Mo. banc 1976), requires us to affirm the judgment 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. We are further enjoined by Murphy v. Carron, supra, 536 S.W.2d at 32, to exercise our power to set aside a decree or judgment with caution in a court-tried case, and to affirm the judgment unless we firmly believe it is wrong. Further, the trial court, when sitting as the trier of fact, may believe all or none of the testimony of a witness, or accept it in part and reject it in part. Cockrum v. Cockrum, supra, 550 S.W.2d at 205; Long v. Lincoln, 528 S.W.2d 512, 513 (Mo.App.1975).

The contestant, as noted, has questioned the validity of both wills executed in 1972. All three wills were offered in the Probate Court, and it is true that under the present statute, § 473.083, RSMo Supp. 1973, the circuit court may decide the issue devisavit vel non as to several purported wills, provided those purported wills have been offered for probate. § 473.083, paras. 1 and 5; 3 Maus Missouri Practice § 288 (1960). Nevertheless, in the view we take of this appeal, it is unnecessary to decide the validity of the instrument of January 19, 1972. We think it was proper for the trial court to hear and consider evidence concerning the execution of the January 19 instrument, Yant v. Charles, 219 S.W. 572, 574[3, 4] (Mo.1920), but because both wills executed in 1972 expressly revoked all former wills, it follows that the will of February 23, 1972, if it is valid, is the Last Will and Testament of Ralph Mangan.

The contestant argues at length that a presumption of undue influence arises when it is shown that 1) a confidential or fiduciary relationship existed between the testator and the beneficiaries; 2) the beneficiary or beneficiaries were given a substantial bequest or devise; 3) the beneficiary or beneficiaries were active in procuring the execution of the will. We agree, and further agree that once the presumption is raised, it does not disappear from the case but raises an issue for the trier of fact. Cockrum v. Cockrum, supra 550 S.W.2d at 208. Nevertheless, the law does not ban as undue the natural influence of affection or attachment or the desire to gratify the wishes of one beloved or trusted by the testator, Switzer v. Switzer, 373 S.W.2d 930, 938 (Mo.1964); Glover v. Bruce, 265 S.W.2d 346, 353[7] (Mo.1954); Metter v. Janssen, 498 S.W.2d 581, 583[3] (Mo.App.1973), cert. den., 414 U.S. 1115, 94 S.Ct. 848, 38 L.Ed.2d 742 (1973), and the fact that the testator made an unequal or even unjust distribution of his property does not of itself support an inference of undue influence. A man has the right to will his property to whomsoever he chooses, and the beneficiary in his will is not bound to account for the choice, Hammonds v. Hammonds, 297 S.W.2d 391, 395 (Mo.1957); Schierbaum v. Schemme, 157 Mo. 1, 12, 57 S.W. 526, 528 (1900), particularly when, as here, the discrimination is made between collateral, rather than lineal heirs. We think there is considerable merit in the respondents’ argument that Joe Mangan, Jr., had been the object of the testator’s affection and respect for many years, and that the will of February 23, 1972, represented no drastic change in the testator’s plans. In any event, it was incumbent upon the petitioner to prove the existence of a confidential relationship in order to avail himself of the presumption of undue influence, Metter v. Janssen, supra, 498 S.W.2d at 584, and the evidence, considered as a whole, does not compel any such conclusion. It is true enough that proponents Joe Mangan, Jr., and his wife Helen attended to the testator’s business affairs from time to time, but the record clearly permits the inference that they did so only when the testator was too ill to take care of business, and that when his health improved, testator took charge again. The testimony of witness Charles LeGrande is illustrative. His testimony was that on March 3,1972 — after the final will was executed and before the testator’s final hospitalization — he saw the testator at 1630 N. Clay, in Springfield, at the testator’s request. At that time, LeGrande talked to the testator for “about an hour”, made an estimate of the cost of a new roof and made a contract to put a new roof on the dwelling. After LeGrande had finished, testator wrote him a check for $520, and signed the check. Without going into evidentiary detail, we may say the record justifies the conclusion that the testator and other members of his family were independent to the point of being quarrelsome, and that the testator had the proponents attend to his business affairs only when he was physically unable to do so, not because he reposed any particular confidence or trust in them.

We reach the same conclusion on the issue of testamentary capacity. There was evidence from two physicians that at times the testator was confused and disoriented as a result of cerebral arteriosclerosis and the medication given him to paíliate his anxieties. However, these physicians testified, in substance, that patients suffering from cerebral arteriosclerosis enjoy periods of lucidity, that the testator was given a drug to improve his cerebral circulation, and both physicians were, in the event, unable to state with reasonable certainty that the testator lacked testamentary capacity on February 23, 1972. The attorney who prepared the final will testified that upon the basis of his observation, the testator had testamentary capacity when he executed that will. The attorney’s evidence was competent upon the issue of mental capacity, Norris v. Bristow, 358 Mo. 1177, 1189, 219 S.W.2d 367, 371[9], 11 A.L.R.2d 725, 730 (1949), and may well have been accepted by the trial court. The contestant makes a great deal of the fact that the testator mistook the first names of some of his collateral kindred. Contestant argues that this lack of memory, if such it was, clearly demonstrates testamentary incompetence. We do not agree; the testator had a great many kinsmen, and he could have had testamentary capacity without knowing whether all of them were alive, and without remembering the names of all his nephews. Hall v. Mercantile Trust Co., 332 Mo. 802, 814, 59 S.W.2d 664, 669[3] (1933); Winn v. Matthews, 235 Mo.App. 337, 346, 137 S.W.2d 632, 635[1, 2] (1940); Havens v. Mason, 78 Conn. 410, 62 A. 615, 616 (1905); 79 Am.Jur.2d Wills § 72 (1975).

For the reasons indicated, the judgment of the trial court is affirmed. It is ordered that a copy of the mandate of this court be certified to the Probate Court of Greene County, Missouri, so that court may continue to administer upon the estate of Ralph A. Mangan, deceased.

All concur.

      . Who was also known as R. A. Mangan and Bill Mangan, and is so referred to in the transcript.

      . A specific bequest of a “yellow gold diamond ring” and a “yellow gold diamond stick pin” was made to testator’s nephew Joe Mangan, Jr., one of the respondents (proponents) in the trial court.

      .The Probate Court of Greene County admitted the will last executed to probate; by agreement, the contestant’s (petitioner’s) evidence was received before the proponents’ when the cause was tried in the circuit court, but of course the proponents had the burden to prove the validity of the instrument executed February 23, 1972. Brug v. Manufacturers Bank & Trust Co., 461 S.W.2d 269, 276[8] (Mo. banc 1970).


author: ALDEN A. STOCKARD, Special Judge.

text:
    STATE of Missouri, Respondent, v. Leroy ELDRIDGE, Appellant.
    No. 37912.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 17, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.
    Application to Transfer Denied Sept. 12, e1977.

      Mary Louise Moran, Asst. Public Defender, Robert C. Babione, Public Defender and Joseph W. Warzycki, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   ALDEN A. STOCKARD, Special Judge.

Leroy Eldridge, charged by indictment under the Second Offender Act, § 556.280 RSMo 1969, was found guilty of murder in the second degree by a jury and sentenced by the court to the custody of the Department of Corrections for a term of twenty-four years.

Appellant does not challenge the sufficiency of the evidence, but does contend the trial court erred in refusing a requested instruction on self-defense. We shall set forth with particularity the evidence bearing on this issue.

Thomas Davis and his wife resided in the first floor apartment at 1901 Virginia Avenue in St. Louis City. They rented the second floor apartment to Margaret Rick-ard and her mother. Sometime in September 1974, a Mrs. Brione and her five children moved in with the Rickards. About the same time appellant, a brother of Margaret, began to stay in the Rickard apartment.

On the evening of December 7, Mrs. Davis delivered a note to the Rickard apartment in which she stated that the rent was to be increased from $60 to $65 a month, and that appellant and the Briones would have to leave. When appellant returned to the apartment he was informed of the note from Mrs. Davis. Shortly thereafter he started to go' to the basement where his daughters, Cindy and Tina, were doing some laundry. He had been drinking, and on the way he stumbled and fell. Mrs. Davis heard a “stomping” and went to the steps and called, “What in the world happened?” Her husband, who also had been drinking, shouted, “What in the ‘H’ is he trying to do, tear the house down?” Margaret had followed her brother downstairs and she and Mrs. Davis exchanged some words. Mr. Davis then appeared at the doorway shouting and brandishing a .22 caliber rifle. He and appellant shouted at each other, during which appellant said, “I’ll get you, I’ll get you,” and Mr. Davis waived the rifle in the direction of appellant and his daughters. Mrs. Davis got her husband back inside their apartment and closed the door. Appellant then went to the second floor apartment where he obtained a .30 caliber rifle. As he came down the stairs he loaded the rifle and “levered” it, and then went to the Davis apartment where he beat on the door with the rifle, shouted an obscenity, and called out “Shoot me now.” Mrs. Davis told her husband that appellant “was coming to kill him and he’d better be prepared.”

Mrs. Davis either did call or attempted to call the police. Her husband picked up his rifle and went to the door. At least two shots were fired. Appellant was hit in the neck and Davis was shot through the heart.

Cindy and Tina were the only eye-witnesses to the actual shooting. Their testimony was offered by the State after having them declared to be hostile witnesses. Cindy, 16 years of age at the time of trial, testified that when appellant first went to the basement she pleaded with him to go back upstairs, but he loaded the rifle and hit the door to the Davis apartment with the rifle, shouted an obscenity and said, “Shoot me down, now.” Mr. Davis then opened the door and there was some shouting between the two. According to Cindy, appellant was “looking down” and the gun was “pointing down.” He never held the rifle so it was pointing toward Mr. Davis. She and Tina were both asking or telling appellant to go back upstairs and appellant was in the “process of turning” toward Cindy “as if he was coming back down;” he “was turning away” then Cindy heard a gunshot and appellant was hit. He then “fell back” and his rifle “went off.” According to Cindy, the second shot was the loudest of the two. She did not see appellant cock the rifle, pull the hammer back, pull the trigger, or “lever” the gun.

Tina, age 15 at the time of the trial, testified to the events prior to the shooting substantially the same as Cindy. As to the actual shooting she testified: “He [appellant] looked up, and I kept screaming and my sister too to put the gun down. He looked at me and looked up again, and he started bringing the rifle down and started turning and just began to turn. * * * He was turning away. * * * He had just began to turn, * * * [and his rifle] was slanted at the ground, but not completely down.” She then heard a shot and appellant fell back, and his weapon then went off.

Appellant argues that “viewed as a single episode” the evidence supports a finding that Davis was the aggressor, that both parties were armed, and that the jury could have found that Davis fired first. We do not agree that the events can be viewed as a single episode. There were two episodes. When Davis returned to his apartment the first episode ended. There was no continuing threat to appellant, and no occasion for him to take any action to protect himself or others. What occurred thereafter was a new and different occurrence in which appellant, not Davis, was the aggressor. One who is the aggressor or who provokes the encounter in which he kills another is not entitled to invoke the right to self-defense, unless he previously, in good faith, withdraws from the conflict in such a manner as to have shown his intention to desist. State v. Spencer, 307 S.W.2d 440 (Mo.1957); State v. Sherrill, 496 S.W.2d 321 (Mo.App.1973).

The court gave Instruction No. 8 on excusable homicide by reason of accident in the form of MAI-CR 2.28. Appellant requested an instruction on justifiable homicide by reason of self-defense and submitted an instruction in the form of MAI-CR 2.40 which contained a paragraph submitting the issue of whether appellant had in good faith withdrawn or attempted to withdraw from the difficulty in which he previously had been the aggressor. No instruction submitting self-defense was given.

As a general rule, the defenses of self-defense and accident are inconsistent. State v. Randolph, 496 S.W.2d 257 (Mo.banc 1973). If the shot was fired in self-defense, it required the voluntary act of appellant; if the shot was accidental, the act was involuntary. State v. Peal, 463 S.W.2d 840 (Mo.1971); State v. Brown, 502 S.W.2d 295 (Mo.1973). However, there are situations in which a defendant is entitled to the inconsistent defenses if supported by the evidence. In State v. Peal, supra, it was stated that “a defendant alone cannot provide the basis for such inconsistent defenses,” but it was noted, by way of example, that if a defendant by his own testimony provides the basis for an accident instruction it must be given though he is entitled to an instruction on self-defense by reason of evidence offered by the State. We see no reason why an accused should be denied the benefit of both defenses when the evidence supporting each is supplied by the State.

The instruction submitting murder in the second degree required a finding that appellant caused the death of Davis by shooting him, and that in doing so appellant intended to take his life. The State’s case was based in part upon circumstantial evidence. There was no direct evidence that appellant fired the gun at Davis with intent to kill. From the circumstances that the bullet that caused Davis’ death came from the rifle in appellant’s hands the jury could infer that appellant shot Davis, and from the circumstance that appellant shot Davis the jury could infer that appellant intended to shoot him.

The State offered the testimony of Cindy and Tina, who testified that before any shot was fired appellant turned or was turning away from facing the direction of Davis and that appellant’s rifle was pointed downward (i. e. not toward Davis). It was not until then that the Davis rifle was fired. From this evidence the jury could have found, but would not be required to find, that appellant was attempting in good faith to withdraw from the difficulty in such a manner to have indicated to Davis his desire to withdraw, but that Davis fired and shot appellant in the neck, and that as appellant fell back his rifle fired. This evidence supported the giving of the instruction on excusable homicide on the theory that appellant’s rifle was discharged accidentally as he fell backwards. Accidental discharge, however, is not the only reasonable inference to be drawn from this evidence. Equally reasonable is the inference that appellant discharged his rifle intentionally, in self-defense, in an effort to prevent Davis from shooting him a second time. By refusing to instruct on self-defense the court in effect ruled as a matter of law that the testimony of Cindy and Tina would permit only a finding that appellant accidentally fired his rifle. We do not agree. The evidence entitled appellant to an instruction on justifiable homicide based on self-defense, and the court erred in refusing to so instruct the jury.

In the absence of direct evidence that appellant intentionally shot and killed Davis the State had to rely upon circumstantial evidence of the fact. If the State is entitled to go to the jury on the circumstantial evidence of a voluntary shooting with intent to kill, the appellant is likewise entitled to submit a circumstantial case of a voluntary shooting in self-defense. What is sauce for the goose is sauce for the gander.

Other matters presented by appellant need not be ruled on this appeal.

The judgment is reversed and the cause remanded.

SIMEONE, C. J., and NORWIN D. HOUSER, Special Judge, concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    STATE of Missouri, Respondent, v. Peron GLASS, Appellant.
    No. 37477.
    Missouri Court of Appeals, St. Louis District, Division Four.
    May 24, 1977.
    Motion for Rehearing and/or Transfer Denied July 21, 1977.
    Application to Transfer Denied Sept. 12, 1977.

      Anderson, Fredrick, Preuss, Eickhorst & Geissal, Anthony L. Anderson, Clayton, Robert J. O’Hanlon, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

Perón Glass appeals from a judgment convicting him of murder in the second degree and 25-year sentence following trial by jury.

The State’s evidence tended to show that appellant, having been denied admittance to the home of Daisy Knox, entered the home by force, pistol in hand, after threatening to shoot through a window, and there killed Robert Wright, shooting him three times, in the neck, abdomen and thigh; that after the first two shots the victim was heard to groan or mumble, whereupon appellant re-entered the room where the victim was lying on the floor bleeding, and shot him a third time. This evidence made a case of second degree murder under § 559.020, RSMo 1969.

Appellant urges error in restricting cross-examination of State witnesses and refusing a requested instruction.

First, appellant asserts error in not allowing appellant to inquire on cross-examination as to the present address of State’s witness Patricia Franklin. Appellant claims the inquiry was relevant on the question of credibility; that he had a constitutional right to cross-examine her on this subject absent a showing that she had reason to fear for her well-being if she disclosed the information, which showing was not properly made, and that the error was not “constitutionally remedied by allowing other general background questions.”

After the question was asked and objected to on grounds of irrelevancy and immateriality counsel for the State (out of the hearing of the jury) said: “These witnesses are fearful. They didn’t want to come down here in the first place. I had to get a writ of attachment to bring them down, at least use that in order to secure their attendance, and they are particularly frightened over this case about any retaliation that may occur from the defendant or his friends. I am not alleging anything of that nature, but I say they are extremely fearful, and any address that they are living at now would not be material to the issues of this lawsuit. What would be the purpose? . What other purpose would there be other than to force a witness to state where she was living at now than to advise the defendant? I think it would be extremely bad procedure to allow witnesses to be forced to give their address presently where they reside . . . .” The judge was willing to allow the question upon a showing how the address would be of some value in the proof of any issue in the case other than simply for exploratory and investigative purposes. Appellant’s counsel made no such showing and admitted that it “would just be exploratory”; that he did not know where it would lead. Counsel stated he wanted to bring out the witness’ background for the jury; to “place her in the proper perspective before the jury if they knew where she lived.” The court ruled that counsel could elicit the city she lives in and what street she lives on, but not the number; whether she was living with her mother; whether she was married, and for whom she worked. The cross-examination resumed. Appellant’s counsel conducted a thorough, searching cross-examination in the course of which he asked the witness with whom she presently lived (her mother); whether she was married (no), and whether she was employed (no). Asked whether she could tell the street on which she was presently living she answered “No.” On direct examination the witness, asked where she was living on the day of the shooting, answered, “5346 Arlington.”

A witness’ address is an appropriate subject of inquiry on cross-examination in order to place the witness in his proper setting and identify the witness with his environment, factors which bear upon the credibility and weight of his testimony. Another reason: the witness’ name and address “open countless avenues of in-court examination and out-of-court investigation.” Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968). Ordinarily “[t]o forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” Idem. As with most other rules, however, there are limitations which circumscribe this general statement of law. One limitation, referred to in the earlier case of Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931), is that the court should protect a witness from questions which go beyond the bounds of proper cross-examination merely to harass, annoy, or humiliate the witness. Another is that referred to by Justice White in his concurring opinion in Smith v. Illinois, i.e., where inquiries are made which tend to endanger the personal safety of the witness. In this situation the State or witness should come forward “with some showing of why the witness must be excused from answering the question.” 390 U.S. l.c 133-134, 88 S.Ct. l.c. 751. In this case there was no evidentiary showing of a possibility that the witness or her property might become subject to reprisals by the defendant or his friends — nothing but the statement of the assistant circuit attorney. Although unsupported his statement was uncontradicted. In the circumstances we consider, as did this Court in Kirk, that the announcement of the reason for objection by the representative of the State was sufficient to alert the court to the possibility of danger and call upon the court to exercise a sound and informed discretion in ruling on the extent of cross-examination to be allowed.

We find no abuse of discretion in this case. From the statement of the assistant prosecuting attorney the court could conclude that in fact the witness feared retaliation from defendant or his friends if she testified against him. Considering counsel’s statement, together with the type of crime committed and the witness’ relation to the crime, there was sufficient reason to justify the court in making a protective order. The house where the homicide occurred was occupied by Daisy Knox and her ten children. The witness Patricia Franklin, was a daughter of Daisy. Patricia lived in her mother’s house and was present at the scene of the crime. Appellant, who was denied entrance to the house, had threatened to shoot through a window. He forcibly entered the house, shot and killed one person, and threatened to kill everyone present. Patricia, terrorized, fled from the house. The trial court gave appellant an opportunity to show how knowledge of the house number would bear on any issue in the case but, as in Kirk, appellant’s counsel “made no attempt to show that his need to bring such information [the witness’ address] out before the jury outweighed the court’s interest in protecting the physical safety of prosecution witnesses.” 510 S.W.2d l.c. 200.

Furthermore, appellant’s right of cross-examination, for the announced reason and purpose of eliciting the witness’ background and placing her in the proper perspective, was not prejudicially affected. On the contrary, except for the house number, appellant was accorded a broad opportunity to cross-examine Patricia for this purpose. Having testified on direct examination that she previously lived at 5346 Arlington, where the killing occurred, the court permitted cross-examination as to the name of the street where she lived at trial time. When Patricia answered she could not tell counsel did not further interrogate with respect to the name of the street. Patricia, aged 15, was cross-examined as to her unemployed and unmarried status; that she was living with her mother; concerning her and her mother’s relationships with appellant prior to the night of the killing, the events immediately preceding the homicide, the comings and goings of the various participants before she went to sleep, and what she observed after she was awakened by the pistol shots. Patricia’s cross-examination occupies 35 pages of transcript. Discrepancies between her testimony before the grand jury and that given at trial were elicited from her. The jury had an adequate opportunity and sufficient information from extensive cross-examination to judge the credibility of Patricia.

Appellant’s second point: the court erred in not allowing appellant to inquire on cross-examination of State’s witnesses Patricia Franklin and Debra Patrick as to disagreements they had with appellant concerning questionable associates, illegitimate pregnancies and abortions, and resulting hostility and settled ill will. Appellant claims inquiry on these subjects was relevant to show interest, bias and prejudice affecting the weight and credibility of their testimony.

“It is always relevant to show the interest or bias of a witness, State v. Nebbitts, 498 S.W.2d 762, 764 [2] (Mo.1973), even though such evidence has no bearing on the issues of the case. Thornton v. Vonallmon, 456 S.W.2d 795, 798 [2] (Mo.App.1970). How far the inquiry into the bias or interest goes is left largely to the discretion of the trial court. State v. Pigques, 310 S.W.2d 942, 947 [8] (Mo.1958). Absent a clear abuse of discretion, we will not interfere with the trial court’s ruling. Aiple v. South Side Nat’l Bank in St. Louis, 442 S.W.2d 145, 152 [7] (Mo.App.1969).” State v. Neal, 526 S.W.2d 898, 901 (Mo.App.1975).

Debra Patrick, a daughter of Daisy Knox, gave testimony incriminating appellant. On cross-examination appellant’s counsel asked Debra if appellant ever had a discussion with her, or her mother and sister, about Debra and her sister Patricia keeping company with two boys who had criminal records. Debra answered “No.” Counsel asked whether appellant had not argued with her or told her she should not keep company with those boys. Following objection on the ground of irrelevancy counsel for appellant (out of the hearing of the jury) proposed to show that Debra had a feeling against appellant — prior ill will— growing out of appellant’s objection to the sisters going out with these two boys because of their prior criminal records, and that there had been an argument or quarrel because one of the two sisters had been pregnant and had had an abortion. The court ruled that appellant could ask general questions eliciting the fact of disagreements and ill will but could not bring out details or specific instances concerning other activities that caused the ill will; that if the witness admitted ill will that would end the inquiry; if she denied ill will the court might allow further cross-examination. Appellant’s counsel did not ask Debra whether there had been disagreements but did ask her if there had been any ill will between appellant and Debra or her sister. She answered “Yes.” The ultimate fact (the existence of ill will between appellant and the sisters) was thus revealed. To allow further cross-examination for the purpose of exploring the basis of the ill will or the details of the disagreements necessarily would have involved collateral issues. It was within the competence of the trial judge in the exercise of a sound judicial discretion to limit and circumscribe further inquiry. In State v. Washington, 320 S.W.2d 565 (Mo.1959), the Supreme Court did not find prejudicial error in the action of the trial court in limiting the cross-examination of State’s witness Hattie Washington as to disputes between her and the defendant over her drinking and associations with other men on the ground that such testimony would establish bias and prejudice of the witness against defendant. In State v. Cox, 360 S.W.2d 668 (Mo.1962), a State’s witness in a tavern shooting case denied on cross-examination that he ran a dice game at the tavern. Counsel for defendant pursued the subject until the court sustained an objection to further inquiry along that line. Commenting that “No connection of gambling with the events of the night involved appears,” 360 S.W.2d l.c. 671, the Supreme Court held that in the exercise of the court’s discretion there was no improper restriction of cross-examination. In the case before us there was no demonstrated connection between the boy friends or the pregnancies and abortions of these girls, and the facts surrounding the homicide. The trial court’s discretion in deciding the permissible scope and extent of cross-examination is particularly wide with reference to collateral matters, State v. Johnson, 486 S.W.2d 491 (Mo.1972), and appellate courts will not interfere unless a clear abuse of discretion is shown. State v. Williams, 492 S.W.2d 1 (Mo.App.1973). The limitation on the cross-examination of Debra was permissible. It did not constitute a clear abuse of discretion.

At the conclusion of Patricia Franklin’s incriminating direct testimony the assistant circuit attorney asked her whether she ever had had any arguments or disagreements with appellant before the homicide. She answered “No.” Thereupon counsel for appellant stated (out of the hearing of the jury) he wanted to show ill will between Patricia and appellant arising out of her going with someone who had a criminal record; that “they” got pregnant out of marriage; that appellant had objected to this; that “she” then had an abortion, concerning which she had an argument with appellant; and that at the time of the homicide she was again pregnant out of marriage and appellant had objected to this. The court restated its ruling on the offer of proof in Debra’s case — that counsel could elicit the fact of ill feeling between the two but could not explore collateral issues or specific items of misconduct; that if Patricia admitted ill feeling there was no need to go into the nature of the controversy between them; that if she denied ill feeling the court might allow counsel to further explore the situation. Thereupon appellant’s counsel asked Patricia whether she had any quarrels with appellant or ill will or feeling against him about the time of the homicide. She answered “No.” Notwithstanding the court’s ruling that further exploration might be permitted in the event of a “No” answer appellant’s counsel did not further pursue the cross-examination with respect to quarrels and ill feeling but abandoned the inquiry, thus waiving the opportunity to further cross-examine Patricia on this question. Thereafter appellant, testifying in his own behalf, placed before the jury evidence that he had “got on” Patricia about her keeping company with a boy named Benny, who had a criminal record; that Patricia, like other teenagers, did not approve of appellant talking to her about what she should do; that Patricia hated him, and that in his opinion she would testify against him because all of them, all the kinfolks, boy friends and girl friends, had “got together and figured on what they are going to say . . . going to stick together.” Under this record appellant was not prejudiced by the rulings as to further cross-examination of Patricia.

Finally, appellant asserts error in failing to include in given self-defense Instruction No. 8 a paragraph on appearances that later turn out to be false, such as that contained in refused Instruction No. A offered by appellant. The latter was drawn on the order of paragraph 5 of MAI-CR 2.40, directing a not guilty verdict if appellant had reasonable cause to believe and did believe that he, his friends or acquaintances were in immediate danger of death or serious bodily harm, and that it was necessary to act as he did to protect him or them from danger; that if he had reasonable cause for that belief and necessity it is of no consequence that the appearance later turned out to be false; that he must be acquitted if he acted in lawful self-defense under this instruction even though Robert Wright had no purpose to kill him or them or do him or them harm, no immediate danger that it be done, and no actual necessity to use the force he used. Appellant claims the following testimony, given by him, lends the necessary evidentiary support to require the giving of this type of instruction: Before appellant went to Daisy Knox’ house she told him by telephone that a visitor at her house, Robert Wright, had been threatened with death earlier in the evening over some narcotics. Appellant, concerned about what was going on, worried about Daisy and the safety of her children, decided to go by the house and check to see that everything was all right. His knocks on front and back doors and calls to those inside got no response. The doors were locked, which was unusual. Returning to his car, intending to go to work on the night shift, appellant observed Daisy’s front door open and two fellows come out, one carrying a pistol, the other carrying a rifle. The two talked to each other for a couple of minutes, then went around to the back of the house for several minutes, then returned to the front, entered the house and locked the door. Appellant did not know the man with the pistol; the other man looked like Charles Sanders, but appellant could not say. He did not hear what the men were saying. Appellant remained in his car 15-20 minutes. He saw no one enter or leave the house and heard nothing come from the house during that period. He decided to go to the house. Appellant got his pistol from the car trunk, approached and entered the house by shoving on the front door. The living room was dark. A fellow who had been sitting in a chair arose, reached behind his back, came out with a pistol, aimed it at appellant, something “clicked,” the other man fired the pistol, and appellant fired 3 or 4 shots.

The appearances counted upon by appellant were two armed men leaving, reconnoitering and then re-entering the house. His alleged right to come to the assistance of Daisy and family was based on “the appellant’s close relationship with Daisy Knox and her family.” (Appellant and Daisy Knox were never married but he had lived at her house for several months and according to his testimony helped support the family, although he and Daisy had come to a parting of the ways and he had been obliged to leave the house two weeks before the homicide.)

The sight of two men emerging from the front of the house with weapons, going to rear of the house and then returning to enter the house from the front, is as consistent with a belief that they were guarding the inhabitants of the house from harm, and searching for possible intruders, as to draw the conclusion that the two men were endangering the lives and safety of those within. Assuming however, that these facts would provide the basis for a reasonable belief that Daisy and her children were in immediate danger of death or great bodily harm, the relationship between appellant and Daisy was not such as to justify or entitle him to take up arms in the lawful defense of Daisy or her children under § 559.040(2), RSMo 1969 Appellant claims he had a right to come to Daisy’s defense because she was his “mistress,” a term used in § 559.040(2), but the word as there used means a female employer of another, not a concubine. Daisy Knox “bore no such relation to the defendant as would authorize him to wreak his vengeance upon the deceased for some alleged wrong upon her.” State v. Kennedy, 207 Mo. 528, 106 S.W. 57, 60 (1907). None of the children in Daisy’s household belonged to appellant. Instruction No. 8, copied from MAI-CR 2.40, including subpara-graphs 1, 2, 4 and the material in the third parentheses (on uncommunicated threats), amply covered the only self-defense available to appellant under the evidence, and there was no error in not including therein subparagraph 5.

Judgment affirmed.

SIMEONE, C. J., and STOCKARD, Special Judge, concur.

      . This Court recognized this exception in State v. Kirk, 510 S.W.2d 196, 200 (1974), citing federal decisions in the 8th and 10th circuits. Other such holdings include United States v. Rich, 262 F.2d 415 (2d Cir. 1959); United States v. Baker, 419 F.2d 83 (2d Cir. 1969); and United States v. Varelli, 407 F.2d 735 (7th Cir. 1969).

      . § 559.040(2): “When committed in the lawful defense of such person, or of his or her husband or wife, parent, child, brother, sister, uncle, aunt, nephew, niece, master, mistress, apprentice or servant, when there shall be reasonable cause to apprehend a design to commit a felony, or to do some great personal injury, and there shall be reasonable cause to apprehend immediate danger of such design being accomplished; * * *”