author: LUKOWSKY, Justice.

text:
    William C. JACOBS et al., Appellants, v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT et al., Appellees.
    Supreme Court of Kentucky.
    Nov. 18, 1977.
    Rehearing Denied Jan. 31, 1978.

      William C. Jacobs, Jerry Anderson, Lexington, for appellants.
    Donald D. Waggener, George Rabe, Lexington, for appellees.
   LUKOWSKY, Justice.

This is the third stage of the evolutional development of urban-county government in Kentucky. The first stage is represented by our decision in Pinchback v. Stephens, Ky., 484 S.W.2d 327 (1972), in which we held that KRS Chapter 67A was not per se unconstitutional because this court could not say that every possible action taken under it would inevitably violate the constitution. Stage two is represented by our decision in Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974), in which we upheld against constitutional attack most aspects of the plan merging the City of Lexington and Fayette County into an urban-county government.

In Holselaw at 481 it was noted:

“. . . that some members of this court are of the opinion that urban county government as it is constituted in Fa-yette County may be faced with practical problems which no one has as yet foreseen. As one example we call attention to Section 157 of the Constitution which provides that cities and towns alone may levy taxes at a rate in excess of fifty cents per one-hundred dollars’ evaluation. Counties and other taxing districts are not permitted to exceed the rate of fifty cents per one-hundred dollars’ evaluation. In this opinion we hold that urban county government is not a city and thus it escapes the strictures of Section 160 of the Constitution. If it is not a city can it levy taxes at a rate in excess of fifty cents per one-hundred dollars’ evaluation in view of the limitations imposed by Section 157? This question was not litigated and we do not attempt here to answer it but only point it out as one of the practical difficulties which have yet to be resolved.”

It is this ghost which we conjured up that is back to haunt us.

Pursuant to KRS 67A.150, Sections 2.01 and 2.02 of the merger plan of the Lexington-Fayette Urban County Government permit the Council to divide the county into three service districts and designate each district as a separate taxing district. The two basic districts are the general services district which encompasses the entire urban-county government area, 1. e. all of Fayette County, and the full urban services district which is the territory previously included within the former boundaries of the now extinct City of Lexington. The third type of district provided for by the plan is the partial urban services district. At the time this action was commenced there was no such district in existence.

On November 21, 1974 the Council of the Lexington-Fayette Urban County Government passed an ordinance levying an ad valorem tax for the fiscal year beginning July 1,1974 and ending June 30,1975 on all assessed and assessable property, real, personal and mixed, tangible and intangible, of every kind and description (with minor exception), located within its boundaries. The tax rate throughout the general services district was $.1465 per one hundred dollars’ of assessed valuation. The additional rate throughout the full urban services district was $.617 per one hundred dollars of assessed valuation.

In October the Mayor acting with the approval of the Council on behálf of the urban-county government executed a contract with the Sheriff of Fayette County providing for the Sheriff to collect the taxes levied in the full urban services district for a commission of 1.3% of the amount collected.

Six days after the passage of the tax ordinance Jacobs commenced this class action demanding that the full urban services district tax be declared unconstitutional, that the contract between the urban-county government and the Sheriff be declared void and that the collection of the tax be enjoined. The case was submitted to the trial court on a stipulated statement of facts and briefs. The trial court found the tax to be constitutional and the contract to be valid. Jacobs appeals.

Jacobs attacks the tax on two grounds. The tax rate is greater than that permitted by Section 157 of the Constitution. The difference between the tax rates in the full urban services district and the general services district violates the principles of uniformity embodied in Sections 171 and 172A of the Constitution. He attacks the contract for the collection of taxes by the Sheriff on the basis that the Director of the Division of Tax Collection of the urban-county government, the person charged by law with the collection of the tax, was not a party to the contract. We discuss these issues seriatim.

I.

Section 157 of the Constitution of Kentucky provides in part:

“The tax rate of cities, towns, counties, taxing districts and other municipalities, for other than school purposes, shall not, at any time, exceed the following rates upon the value of the taxable property therein, viz.: For all towns or cities having a population of fifteen thousand or more, one dollar and fifty cents on the hundred dollars; for all towns or cities having less than fifteen thousand and not less than ten thousand, one dollar on the hundred dollars; for all towns or cities having less than ten thousand, seventy-five cents on the hundred dollars; and for counties and taxing districts, fifty cents on the hundred dollars . . .”

In Eolsdaw, supra we held that the Lexington-Fayette Urban County Government is not a city, that the City of Lexington ceased to exist on the day on which urban-county government became effective and that Fayette County remained as a geographical subdivision governed by a new creature, urban-county government. In a nutshell, Jacobs’ position is that urban-county government is not a city. Therefore, it must be either a county or a taxing district and that consequently, the fifty cents limitation is applicable.

If we were to accept this rather simplistic logic we would frustrate the intent of the legislature in adopting KRS Chapter 67A and attribute to the framers of our Constitution a rigidity of structure which we do not believe they contemplated. The general assembly has created a new form of local government possessing the combined power of a county and a city of that class of cities to which the city of the highest class in the county belonged on the day prior to merger. Holsdaw, supra at 470. KRS Chapter 67A is the legislative response to the increase in population and growing urbanization of this Commonwealth and the resultant needs of local government. Our Constitution is no barrier to this response. Pinchback, supra. We apprehend no eompélling reason why we should use the Constitution like a blanket to smother the attempts of the legislature to breathe life into local government via a form of local government unforeseen at the time of the adoption of the Constitution.

Section 157 sets forth the maximum ad valorem tax rates for “cities, towns, counties, taxing districts, and other municipalities.” This list was exhaustive at the time the Constitution was adopted. Now we are faced with a new form of local government. This form is the progeny of a marriage of city and county. It is a new generation which possesses the most desirable traits of its parents. It possesses the greater powers and lesser restrictions which were previously applicable to either of its ancestors.

The tax rates prescribed in Section 157 are graduated. This scheme reflects the relative needs of local government. The greater the demand for public services on the unit of government the higher the permissible tax rate. “With continued growth and concentration of population the need for local power to provide for special services has become a need common to most of the population in some counties yet the necessity to retain a county government in addition to the municipal government has caused a needless duplication of governmental structure in many areas.” Hol-sclaw, supra at 472.

The urban-county form of government was created to eliminate duplication but retain the power of local government to deal with complex needs and the growing demand for greater governmental services. To shackle this new structure, which was created to give more efficient services, with the ad valorem tax rates of a county or taxing district would defeat the purpose of its creation by reducing its sources of revenue to a level adequate only to provide the limited services of a county or special purpose taxing district. Certainly such a result is not required by either the language or spirit of Section 157. See Dalton v. State Property and Buildings Commission, Ky., 304 S.W.2d 342 (1957). We hold that an urban-county government is subject to the tax limitations imposed by Section 157 of the Constitution upon cities having the same population, subject to such more restrictive statutory limitations as the General Assembly may see fit to impose.

II.

Section 171 of the Constitution of Kentucky provides in part:

“. . . Taxes shall be levied and collected for public purposes only and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax, . . . ”

This section, together with Sections 172 and 174, requires not only a uniform rate of taxation within the territorial limits of the authority levying the tax but also an equality of taxation upon all property of the same class in proportion to its value. Eminence Distillery Co. v. Henry County Board of Supervisors, 178 Ky. 811, 200 S.W. 347 (1918). These principles of taxation were fundamental even before the adoption of our present Constitution and became cornerstones of our Constitution which have been jealously guarded not only as to property taxes but also as to occupational taxes. Great Atlantic and Pacific Tea Co. v. Kentucky Tax Commission, 278 Ky. 367, 128 S.W.2d 581 (1939).

KRS 67A.150 permits the territory of an urban-county government to be divided into service districts. It then provides that “Each service district shall constitute a separate tax district within which the urban-county government shall levy and collect taxes in accordance with the kind, type, level and character of services provided by the urban-county government in each of these districts.” As previously mentioned, Sections 2.01 and 2.02 of the plan of merger so divided the territory of the Lexington-Fayette Urban County Government into two basic service districts and Council then levied a tax upon all property within each district at different rates. Insofar as KRS 67A.150 and Sections 2.01 and 2.02 of the plan mandate that these service districts are separate taxing districts they are patently offensive to Section 171. The authority levying the tax is Lexington-Fayette Urban County Government. The requirement of uniformity applies throughout the territorial limits of the authority levying the tax, i. e. the metes and bounds of Fa-yette County.

What we have said thus far is not dispositive of the question of whether there may be different tax rates between the service districts, because in 1969 we adopted Section 172A as an amendment to our Constitution. This section provides in part:

“The General Assembly may provide for reasonable differences in the rate of ad valorem taxation within different areas of the same taxing districts on that class of property which includes the surface of the land. Those differences shall relate directly to differences between nonreve-nue-producing governmental services and benefits giving land urban character which are furnished in one or several areas in contrast to other areas of the taxing district.”

KRS 82.085 expressly authorizes cities of the second class, such as parent Lexington, to levy ad valorem taxes at different rates pursuant to Section 172A. These provisions legitimate the differential in rates insofar as those rates apply to real estate, other than severed mineral interests. We find nothing here to justify a differential in rates insofar as they apply to personal property and severed mineral interests. To this extent then the differential in rates is unconstitutional and void.

The difficult policy question to be decided is whether our ruling in regard to personal property and severed mineral interests should be given prospective or retrospective effect. We have reexamined our statement and disposition of the tax differential issue in Holsclaw, supra at 476 and have reached the conclusion that the language we used there was loose enough to permit a fair minded reader to infer that we approved the tax rate differential permitted by Section 172A for application to personal property and severed mineral interests as well as real property which includes the surface of the land. It is probable that Council relied on such an inference when it passed the tax ordinance. Consequently, we are persuaded to apply our ruling on this issue prospectively.

While Council did not rely on a long line of established precedents in passing its ordinance, Council did no doubt rely on the only guidance available, that which we furnished in Holsclaw. In the past we have held that our decisions would apply prospectively so that we might avoid injustice or hardship. German Gymnastic Association of Louisville v. City of Louisville, 306 Ky. 810, 209 S.W.2d 75 (1948); Payne v. City of Covington, 276 Ky. 380, 123 S.W.2d 1045 (1938). To deprive Lexington-Fayette Urban County Government of a substantial portion of its tax revenues after it relied upon our less than precise pronouncement in Holsclaw would be unjust and constitute a hardship upon all citizens of that local government. It would cause a chaotic disruption of services. We choose, as we have a right to do, to limit the application of our ruling here to taxes based on assessments made as of January 1, 1978 and thereafter. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Great Northern Railroad Co. v. Sunburst Oil and Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932).

III.

We give short shift to the contention that the Director of the Division of Tax Collection is an indispensible party to the contract for tax collection by the Sheriff. The urban-county government is the entity for whose benefit these taxes must be collected. Its merger plan provided that the collections were to be made by the Director. It is axiomatic that no one person could perform the work necessary to collect the taxes for a governmental unit of approximately 150,000 in population. This means that the person charged with this obligation must turn to the governmental unit itself to provide the means to do the job, either by furnishing personal staff and equipment or by contracting with an existing organization. The choice of alternatives belongs to the government, not to the Director of one of its departments. ■ The government through its legislative body made the choice. The government effectuated the choice by the action of its chief executive. The contract is valid.

The judgment is affirmed in part and reversed in part, and the cause is remanded to the Fayette Circuit Court for the entry of judgment in conformity herewith.

All concur.


source: Caselaw Access Project

author: REED, Justice.

license: Public Domain

text:
    Reva CAUDILL, Movant, v. MALONEY’S DISCOUNT STORES et al., Respondents.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    John David Preston, Preston, Paintsville, George Chad Perry, III, Paintsville, for movant.
    C. W. Swinford, Gary L. Stage, Stoll, Keenon & Park, Lexington, for respondents.
   REED, Justice.

Reva Caudill was awarded workmen’s compensation benefits for total and permanent disability by the Board. Her employer, Maloney’s Discount Stores, appealed the determination to the Johnson Circuit Court. That court upheld the Board’s award. Ma-loney’s then appealed to the Court of Appeals where the circuit court’s judgment was reversed and the award set aside. The circuit court was directed to remand the case to the Board “to make appropriate findings as to the availability of work which the claimant could perform and to make an award in conformity with such findings.” See Maloney’s Discount Stores v. Caudill, Ky., 547 S.W.2d 784, 785 (1977). We granted Caudill’s motion for discretionary review, and now reverse the decision of the Court of Appeals and affirm the judgment of the Johnson Circuit Court.

Reva Caudill is forty-one years old. She has eight dependents. She completed school through the seventh grade and obtained a high school equivalency certificate. Her only work prior to employment by Maloney’s was eight months as a motel maid. She was hired by Maloney’s as a stock clerk in September 1970 and worked until she was injured in a work-connected accident in August 1974. She has not worked since the accident.

Her job at Maloney’s required her to stock shelves, squat, bend and be on her feet all day. She has no training in any occupation but manual labor. The five'physicians who testified for her concurred that the accident left her with a condition called “bicipital tendonitis,” a chronic inflammation of the bicep tendon, which causes pain on movement of her right arm. Some of the medical testimony was to the effect that her disability was enhanced by the presence of obesity and a diabetic condition. She is right-handed.

Her physicians all testified that she could not perform manual labor requiring lifting, and that any kind of extensive movement of her arm and shoulder would cause her pain. One of her physicians opined that she might perform sedentary work. Another physician stated that he could find no progress to show that she could ever work. The general tenor of the testimony was that while corrective surgery was a possibility, the results from such surgery were often poor, leaving the patient in worse condition than before.

Mrs. Caudill gave considerable testimony concerning her condition as it related to her work abilities. She also testified that she could do nothing with her right arm, including housework, because of the pain.

The Board, at least implicitly, found that the claimant, Caudill, was so physically impaired that she was not capable of performing any kind of work of regular employment. That is the first standard declared in Osborne v. Johnson, Ky., 432 S.W.2d 800, 803 (1968), for the determination of total disability.

The Court of Appeals conceded that Cau-dill was not able to work in her usual occupation, but pointed out there was evidence that she could perform sedentary work, work in a sheltered workshop, or work not involving the use of her right arm for lifting. Reasoning that this evidence required Caudill to show the unavailability of such work on the local market as a prerequisite to support a finding of total disability, the Court of Appeals held that “a key element is missing” to justify the Board’s award.

We agree with the Court of Appeals in its holding that the claimant has the burden of proof and the risk of nonpersuasion on the issue of the extent of disability. As we view the total evidence, however, the question in this case is whether there is substantial evidence to support the Board’s implicit finding that Mrs. Caudill was incapable of performing any kind of work. If Mrs. Caudill with her useless and painful right arm and her obesity and her diabetic condition is unable to do any kind of work of regular employment, it becomes irrelevant whether work less onerous than her usual occupation is available or not.

The Board is the fact-finder. The claimant’s own testimony is competent and of some probative value. Johnson v. Skilton Const. Corp., Ky., 467 S.W.2d 785 (1971). The preponderance of the medical evidence introduced by Caudill is consistent with her testimony. There was contrary medical evidence introduced by the employer. The Board had the right to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary party’s total proof.

As in Tackett v. Sizemore Mining Company, Ky., 560 S.W.2d 17 (this day decided), we conclude that Caudill’s own testimony, education, work experience and physical condition, together with the medical evidence introduced by her, established an evidentiary foundation sufficient to support, but not to compel, a finding by the Board that she was incapable of performing any kind of work of regular employment and, therefore, was totally disabled under the Osborne v. Johnson formula.

The decision of the Court of Appeals is reversed and the judgment of the Johnson Circuit Court is affirmed.

All concur.


text:
    Winston TACKETT, Movant, v. SIZEMORE MINING COMPANY et al., Respondents.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    John David Preston and George Chad Perry, III, Perry & Preston, Paintsville, for movant.
    William G. Francis, Francis, Kazee & Francis, Prestonsburg, for respondents.
   REED, Justice.

The Workmen’s Compensation Board awarded Winston Tackett 100 per cent occupational disability. His employer, Size-more Mining Company, appealed to the Floyd Circuit Court where the board’s award was upheld. The employer then appealed the circuit court’s judgment to the Court of Appeals where the judgment was reversed with directions to the circuit court “to return the case to the Workmen’s Compensation Board to make a proper determination consistent with this opinion.” See Sizemore Mining Co. et al. v. Tackett, Ky., 551 S.W.2d 22 (1977). We granted Tackett’s motion for discretionary review. We reverse the decision of the Court of Appeals and affirm the judgment of the Floyd Circuit Court.

Tackett is a 32-year-old coal miner with an eighth-grade education. He has three dependents. He injured his back by falling against a machine on the belt line at which he was working. After two stays in the hospital between which he was able to work only intermittently, he ceased work in January 1975 and has not worked since. There was ample medical evidence from which the Board could believe that Tackett’s injury resulted in a herniated disc and that he was 100 per cent permanently disabled for hard manual labor, including coal mining.

Tackett testified that he could do no work; that he could stand on his feet only 20 to 25 minutes before they began to hurt; and, that he could sit in one position only 10 to 15 minutes before he had to move around.

The Court of Appeals held that the Board “failed to make a proper finding relating to the future earning capacity of a claimant being impaired considering the nature of his injury, his age and other relevant factors as to job training and the local employment market.” That court further stated: “There is no reason that Kentucky Alma Coal Co. v. Kirk, Ky., 497 S.W.2d 52 (1974) should not be applied in this case.”

We respectfully differ with the conclusion of the Court of Appeals that the Kirk case is applicable. Kirk was an 18-year-old college student majoring in accounting. He hurt his hand while working in a coal mine. At the time the award of total disability was entered he was working for a firm of certified public accountants at a substantially higher salary then he made for hard labor in the coal mines. We reversed the board’s award of 80 per cent total and permanent disability.

In the case before us, however, Tackett is a 32-year-old man with an eighth-grade education. Hard manual labor is the only work he has ever done. He has no training in other less physical fields of endeavor. His opportunities for future earning at the time the board made its award were solely in the use of the strength of his back. His own testimony and his medical evidence, which is consistent with his testimony, establish that he is no longer able to work.

“If the board finds that the workman is so physically impaired that he is not capable of performing any kind of work of regular employment, . . . the man will be considered to be totally disabled.” Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968). That language describes what the board found in this case.

It is true that the claimant has the burden of proof and the risk of nonpersuasion in establishing the extent of disability. The board was persuaded by the evidence to the extent that it found in favor of the claimant on the issue. Although the evidence did not compel a finding in claimant’s favor, it was sufficient to support a finding in claimant’s favor if the board chose to so find. Cf. Island Creek Coal Company v. Springer, Ky., 479 S.W.2d 890 (1972).

The situation is closely similar to that presented in Yocom v. Keene, Ky., 512 S.W.2d 27 (1974). There the claimant, an underground coal miner who had worked as such for 20 years, who had a limited education, and who produced medical evidence of total disability to engage in underground coal mining by reason of pneumoconiosis, was awarded benefits for total and permanent disability. As to the issue of the burden of establishing the extent of disability, we said:

“Appellant’s testimony that he is not able to work and does not know of any kind of work he could do leaves much to be desired because it does not show any application for or refusal of other employment or that he has made any investigation whatever as to the availability of other work.
“On the other hand it would appear as easy for the employer to demonstrate the availability of other regular employment as it is for the claimant to show the lack of it. Considering the appellant’s testimony in the light of the fact that his education, work experience and physical condition limit his job opportunities, and in the absence of any countervailing evidence as to the availability of regular work in the area which he could perform, the court is of the opinion that the evidence in the record is sufficient to sustain the findings of the Board.”

We, therefore, conclude that we cannot say the board’s decision on the issue lacked substantial evidentiary support.

The decision of the Court of Appeals is reversed, and the judgment of the Floyd Circuit Court is affirmed.

All concur.


author: LESTER, Judge.

text:
    DEPARTMENT OF REVENUE ex rel. Maurice P. CARPENTER, Commissioner of Revenue, Appellant, v. PULLMAN, INC. (TRAILMOBILE DIVISION), Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.
    Rehearing Denied Jan. 13, 1978.

      William S. Riley, Asst. Atty. Gen., William P. Sturm, Atty., Legal Staff, Dept, of Revenue, Frankford, for appellant.
    William P. Curlin, Jr., Hazelrigg & Cox, Frankfort, for appellee.
    Before HAYES, HOGGE and LESTER, JJ.
   LESTER, Judge.

The Department of Revenue appeals from a reversal of a favorable ruling of the Board of Tax Appeals concerning the subjection of a semitrailer retailer to the sales tax.

Appellee is in the business of selling new and used (trade-ins) non-motorized trailers that are pulled by tractors for the transportation of goods and property both within and without the Commonwealth. Appellant made a deficiency assessment against Pullman based upon gross receipts from the sales of used semitrailers (those previously registered in Kentucky) to which timely protest was made but which was denied. The Board of Tax Appeals sustained the department’s ruling and in so doing, stated “(t)he only question presented in this case is whether the used semitrailers in controversy were subject to sales tax when sold by Trailmobile.” On appeal, the Franklin Circuit Court set forth in its memorandum opinion that the issue before it as “(whether the used semitrailers in question are ‘motor vehicles’ as set out in KRS 138.450(2) and are thus exempt from sales tax?" Since appellant’s deficiency assessment was based upon gross receipts emanating from sales and since the board and court below specified the particular issue, then we will not address other arguments made and replied to such as the use tax, dealer registration and discriminatory practices.

The circuit court acting within its appellate jurisdiction, without the intervention of a jury, rendered findings of fact, conclusions of law and entered its judgment. This being the case, then we are limited to a determination of whether those findings are clearly erroneous. CR 52.01. The trial judge found that semitrailers were motor vehicles within KRS 138.450(2) pursuant to Department of Motor Transportation v. Trailer Convoys, Inc., Ky., 279 S.W.2d 815 (1955) and Department of Revenue v. Williams, Ky., 351 S.W.2d 875 (1961). The statutes of this jurisdiction provide a myriad of definitions of motor vehicles and we cite but a few which confound the researcher such as KRS 138.450(2); KRS 186.010(4); 186.010(7)(a) and (b); KRS 187.290(4); KRS 189.010(12) and KRS 281.011(2). As to semitrailers, see KRS 186.650(2) and truck tractors, see KRS 189.010(6). To the foregoing, we add regulation SU-32-1 of the Department of Revenue to the effect that motor vehicle includes trailers and semitrailers as defined in KRS 189.010(5), (10).

Appellee urges that KRS 138.450(2) alone governs this case when it states:

“[Mjotor vehicle” means any vehicle that is propelled by other than muscular power and that is used for transportation of persons or property over public highways of the state .

The foregoing definition is found in Title XI of the statutes, namely, the revenue and taxation measures and more specifically under “Motor Vehicle Usage”. The law was re-enacted in 1976 but the definition remained unchanged. Appellant argues that we should construe KRS 186.695(1) (which exempts semitrailers from the motor usage tax) together with KRS 138.450(2) and reach the conclusion that the sales of these vehicles are includable in gross receipts arid therefore, not exempted from the sales tax (see KRS 139.050(3)(f)). We disagree.

We are aware of the role of the courts that we should interpret conflicting statutes so as to make a harmonious construction but we note that KRS 186.695(1) is a motor vehicle regulation statute under Title XVI and not a tax law. Appellant cannot escape its own regulation, SU-32-1, which construes motor vehicle as including semitrailers as defined in KRS 189.-010(5)(10). What the department fails to point out is that subsection six (6) of that statute, after delimiting “truck tractor” states

[T]he semitrailer and the truck tractor shall be considered as one (1) unit.

The last mentioned statute was re-enacted in 1974 and the definition remained unchanged.

It is evident that the legislature intended that semitrailers be considered as motor vehicles since they are treated as one unit with the drawing or propelling agency. In this respect, we invite attention to KRS 187.290(4) effective June 16, 1966 (financial responsibility law) and KRS 281.011(2) effective June 18, 1970 (motor carriers).

Appellant has conveniently avoided any mention in its briefs of the Trailer Convoys, supra, and Williams, supra, cases in which the Court of Appeals reasoned in order to be classified a motor vehicle that it was not necessary that the propelling power be contained in the unit. We believe those opinions to be controlling in this litigation.

The underlying theme of the position of the Department of Revenue seems to be that a devastating situation has been created whereby some item offered for sale in this Commonwealth might not be subject to a tax of one sort or another. Although the problem is unique, we do not consider it mandatory that everything in this jurisdiction be taxable.

For the reasons set forth therein, the judgment of the Franklin Circuit Court is affirmed.

All concur.


author: COOPER, Judge.

text:
    Leonard F. BARTON, Appellant, v. Ann HUDSON, d/b/a Ann Hudson Personnel, Appellee.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.
    Rehearing Denied Jan. 6, 1978.

      William F. Burbank, Louisville, for appellant.
    Donald J. Eckerle, Jeffersontown, for ap-pellee.
    Before MARTIN, C. J., and HOWARD and COOPER, JJ.
   COOPER, Judge.

This is an appeal from a garnishment naming the First National Bank of Louisville as garnishee, and attaching a joint bank account as the result of a summary judgment in the Jefferson Circuit Court.

The appellee was granted a summary judgment on April 12, 1976, in the amount of $1,100.00 against the appellant, Leonard F. Barton.

On July 2, 1976, the appellee filed a garnishment in the Jefferson Circuit Court Clerk’s office, naming the First National Bank of Louisville as garnishee, and attaching a joint j bank account with rights of survivorship in the names of Leonard F. Barton and Marilyn J. Barton, husband and wife.

The .First National Bank, as garnishee, paid into court the sum of $962.38, and the clerk disbursed the funds accordingly.

The main issue before this Court is:

WHETHER A JOINT CHECKING ACCOUNT MAINTAINED IN THE NAMES OF A HUSBAND AND WIFE IS SUBJECT TO ATTACHMENT BY A JUDGMENT CREDITOR OF THE HUSBAND?

The question presented by this case is one of first impression in this Commonwealth. Although the cases cited by the appellant, Hoffman v. Newell, 249 Ky. 270, 60 S.W.2d 607 (1932), and Bishop v. Bishop Ex’x, 293 Ky. 652, 170 S.W.2d 1 (1943); involve an attaching, judgment creditor, they are not germane to the issue presented by this case.

The Hoffman case, supra, presented the issue of whether or not a judgment creditor of a husband could subject and sell the interest of the husband in a parcel of real estate owned jointly by the husband and his wife, as tenants by the entirety. The Court of Appeals of Kentucky therein set forth the following rule:

A conveyance to a husband and wife as tenants by the entirety creates one indivisible estate in them both and the survivor, which neither can destroy by any separate act.
Alienation by either the husband or the wife will not defeat the right of the survivor to the entire estate on the death of the other. There can be no severance of such estate by the acts of either alone without the assent of the other, and no partition during their joint lives, and the survivor becomes seized as sole owner of the whole estate regardless of anything the other may have done.

In the instant case, a judgment creditor has attached the funds in a joint bank account, not a parcel of real estate. The distinction is obvious. A joint checking account, whether by survivorship or otherwise, permits either of the parties to withdraw all or any part of the funds therein contained, during their joint lives. Upon the death of either, the remaining funds become the sole property of the survivor.

The Bishop case, supra, holds that a surviving wife is entitled to the entire amount of a joint savings account in the joint names of the wife and her deceased husband. In the instant case, both husband and wife are still alive, and each remains entitled to the entire proceeds of the joint bank account until the death of the other. The death of either the husband or wife changes the legal nature of the bank account. Upon the death of either spouse, the funds pass immediately to the surviving spouse, and a creditor of the deceased husband may not acquire any interest whatsoever in the account should he attach subsequent to the death. However, until the death of either spouse, and for the reason that either may acquire all funds in the joint account during their lifetime, an attaching creditor acquires an interest in the account to the extent of his judgment.

The general rules applying to a judgment creditor seeking the funds held in a joint bank account by a husband and wife are set forth in 11 A.L.R.3d 1470, II, § 3, as follows:

While there is some contrary authority, most courts are agreed that a joint bank account is garnishable by a creditor of only one of the joint depositors.

11 A.L.R.3d 1470, III, § 11(a), at page 1479:

Most courts uphold the right of the husband’s creditor to levy against a bank account maintained jointly between husband and wife, at least to the extent that the funds held in the account are shown to be the property of the husband.

During the joint lives of a husband and wife, neither may alienate all or any part of a joint interest in a parcel of real estate in which they are tenants by the entirety; during the joint lives of a husband and wife, either may alienate all or any part of funds contained in a joint bank account, either with or without survivor-ship; and accordingly, a judgment creditor, by attaching the joint bank account, acquires an interest in all funds therein contained to the extent of his judgment.

We have examined the record in this case, and have determined that the trial court was correct in overruling the defendant’s motion that plaintiff pay into court the sum of $533.93, and the clerk of the court pay said money and court costs to the First National Bank.

The judgment is affirmed.

All Concur.


author: PARK, Judge.

text:
    ROYAL-GLOBE INSURANCE COMPANIES, Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA and Edward B. Wickley, Appellee. SAFECO INSURANCE COMPANY OF AMERICA and Edward B. Wickley, Appellants, v. ROYAL-GLOBE INSURANCE COMPANIES and Bob Smith Chevrolet, Inc., Appellees.
    Court of Appeals of Kentucky.
    Nov. 4, 1977.
    Rehearing Denied Jan. 13, 1978.

      William A. Miller, Washer, Kaplan, Rothschild, Aberson, Miller & Dodd, Louisville, for Royal-Globe Ins. Companies.
    Armer H. Mahan, Davis & Mahan, Louisville, for Safeco Ins. Co. of America.
    Before HOGGE, PARK and REYNOLDS, JJ.
   PARK, Judge.

These consolidated appeals arise out of a declaratory judgment action commenced in the Jefferson Circuit Court to determine the respective liabilities of Royal-Globe Insurance Companies (Royal-Globe) and Safe-co Insurance Company of America (Safeco) for injuries caused by an automobile driven by Edward B. Wickley. In 75-987 Royal-Globe appeals from the judgment of the circuit court holding that Royal-Globe, rather than Safeco, was primarily liable for injuries caused by Wickley. In No. 75 — 991, Safeco and Wickley attempt to appeal from an order of the circuit court overruling their motion to amend the complaint to seek indemnity for additional amounts paid by Safeco in defending Wickley.

Royal-Globe issued a garage liability policy to Bob Smith Chevrolet, Inc., an automobile dealer. Safeco had issued an automobile liability policy to Miss Fannye B. Spaulding, who was the owner of an automobile covered by the Safeco policy. Miss Spaulding’s automobile had been damaged in an accident, and it was being repaired by Bob Smith Chevrolet at the time of the accident involving Wickley. Under a written rental agreement, Bob Smith Chevrolet furnished an automobile to Miss Spaulding while her own automobile was being repaired. On November 7,1973, the automobile rented by Smith Chevrolet was involved in an accident while being driven by Wickley with Miss Spaulding as a passenger.

Under the Safeco policy issued to Miss Spaulding, an “owned automobile” included a “temporary substitute automobile.” The automobile furnished Miss Spaulding by Bob Smith Chevrolet constituted a “temporary substitute automobile” within the meaning of the Safeco policy, and Wickley was an insured under the omnibus clause of the Safeco policy. Safeco concedes that it afforded coverage to Wickley, but Safeco contends that it provided only excess coverage. Safeco relies upon the following provision of its policy:

Other Insurance: If the insured has other insurance against a loss covered by the Liability Section of this policy SAFECO shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance hereunder with respect to a temporary substitute automobile or nonowned automobile shall be excess insurance over any other valid and collectible insurance, (emphasis added).

Royal-Globe concedes that its policy provided coverage for Wickley while he was driving the automobile provided by Bob Smith Chevrolet to Miss Spaulding. However, Royal-Globe contends that its liability is limited by the following “escape” clause contained in its policy:

Under Garage Liability Insurance, it is agreed that garage customers are not insureds with respect to the automobile hazard except in accordance with the following additional provisions:
1. If there is other valid and collectable insurance, whether primary, excess or contingent, available to the garage customer and the limits of such insurance are sufficient to pay damages up to the amount of the applicable financial responsibility limit, no damages are collectible under this policy, (emphasis added).

Similar “excess insurance” and “escape” clauses were construed in Government Employees Insurance Company v. Globe Indemnity Company, Ky., 415 S.W.2d 581 (1967). The court held that an “escape” clause in a garage liability policy which specifically referred to other “excess” insurance was a valid condition against liability. Such an “escape” clause protected the insurer against liability when another policy covering the driver contained only an “excess insurance” clause. A similar result was reached in American National Fire Insurance Company v. Aetna Casualty and Surety Company, Ky., 476 S.W.2d 183 (1972).

Bob Smith Chevrolet is a motor vehicle dealer required to be licensed under the provisions of KRS 190.010 to 190.080. As a licensed motor vehicle dealer, Bob Smith Chevrolet was required to file with the Department of Motor Transportation an approved indemnifying bond or insurance policy. KRS 190.033 provides:

The bond or policy shall provide public liability and property damage coverage for the operation of any vehicle owned or being offered for sale by the said dealer or wholesaler when being operated by the owner or seller, his agents, servants, employes, prospective customers or other persons. The amount of said insurance shall be $10,000 for bodily injury or death of any one person; and twenty thousand dollars ($20,000) for bodily injury or death in any one accident; and $5,000 property damage.

The Royal-Globe policy was filed with the department by Bob Smith Chevrolet in compliance with the statute.

Safeco contends that the “escape” clause in Royal-Globe’s policy violates the requirements of KRS 190.033 and is, therefore, void. Safeco contends that the decision in Government Employees Insurance Company v. Globe Indemnity Company, supra was “overruled” by the enactment of KRS 190.-033. The provisions of KRS 190.033 are not discussed in that decision, and Safeco assumes that the accident giving rise to that litigation occurred prior to the enactment of KRS 190.033 in 1966. Agreeing with Safeco, the circuit court held that Royal-Globe afforded primary coverage for the accident on November 7, 1973, when Wick-ley was operating Bob Smith Chevrolet’s automobile which had been provided to Miss Spaulding.

Compulsory insurance laws are intended to protect the public at large who might otherwise suffer from being injured by uninsured motor vehicles. Compulsory insurance laws are not intended to protect other insurance companies. When the controversy is between two insurers, the liability for a loss should be determined by the terms and provisions of the respective policies without regard to the rights injured third parties might assert under a compulsory insurance law. The purpose of KRS 190.033 is satisfied. As Royal-Globe concedes, it affords coverage to the extent that Safeco’s policy does not provide the statutory limits of coverage. The “escape” clause does not violate any public policy set forth in KRS 190.033 when it is asserted in a dispute between two insurers. Corcoran v. State Automobile Insurance Association, 256 Minn. 259, 98 N.W.2d 50 (1959); Michigan Mutual Liability Company v. Carroll, 271 Ala. 404, 123 So.2d 920 (1960); Continental Casualty Company v. Travelers Insurance Company, 84 Ill.App.2d 200, 228 N.E.2d 141 (1967); 12 Couch on Insurance 2d § 45:683 (1964). See also Continental Casualty Company v. Weekes, Fla., 74 So.2d 367, 46 A.L.R.2d 1159 (1954), which was approved and followed on another point by the court in Government Employees Insurance Company v. Globe Indemnity Company, supra.

The circuit court erred in holding that Royal-Globe’s “escape” clause violated KRS 190.033. Following the decision in Government Employees Insurance Company v. Globe Indemnity Company, supra, we hold that Safeco afforded primary coverage to Wickley for liability as a result of the accident of November 7, 1973.

Although neither party has cited the case, we believe that mention must be made of the decision in Ohio Casualty Insurance Company v. State Farm Mutual Automobile Insurance Company, Ky., 511 S.W.2d 671 (1974). That case also involved a garage liability policy with an “escape” clause and an automobile liability policy which provided coverage for a temporary substitute automobile. Unlike Safeco’s policy in this case, the automobile liability policy of State Farm also contained an “escape” clause. The policy provided that it did not apply to any liability with respect to a temporary substitute automobile “owned by any person or organization engaged in the automobile business.” Faced with two conflicting “escape” clauses, the court held that the liability must be pro-rated between the parties. The Safeco policy contained no such “escape” clause. Consequently, this case is determined by the decision in Government Employees Insurance Company v. Globe Indemnity Company, supra, rather than Ohio Casualty Insurance Company v. State Farm Mutual Automobile Insurance Company, supra.

Because Safeco afforded primary coverage, Safeco is not entitled to indemnity from Royal-Globe for amounts paid in settlements of claims made against Wickley. Consequently, the circuit did not commit prejudicial error by refusing to permit Sa-feco to amend its complaint to increase the amount it was seeking by way of indemnity against Royal-Globe.

In Appeal No. 75-987 the judgment of the circuit court is reversed with directions to enter a judgment dismissing the complaint; in Appeal No. 75-991 the judgment of the circuit court is affirmed.

All concur.


author: GANT, Judge.

text:
    PRYOR’S RESTAURANTS INC., and First Kentucky Trust Co., Appellants, v. Thelma M. BELILES, Appellee.
    Court of Appeals of Kentucky.
    Nov. 4, 1977.
    Rehearing Denied Jan. 6, 1978.

      B. Hume Morris, II, Greenebaum, Doll, Matthews & Boone, Louisville, for appellants.
    Kenneth L. Anderson, Louisville, for ap-pellee.
    Before GANT, HOWERTON and WHITE, JJ.
   GANT, Judge.

The appellants appeal from a judgment directing them to pay to the appellee the sum of $212.00 per month for life, credited with any sum previously paid.

This case evolved from the employment of the appellee by the appellant Pryor’s Restaurants Inc. at one of its restaurants for many years, appellee having no written contract of employment. In May of 1969, Pryor’s had established a pension plan, which plan was a voluntary plan and to which the appellee had made no contribution. Appellee was apparently the oldest member of the pension plan and had been under the plan for approximately two years when she was notified by the president of Pryor’s, her nephew, A. C. Pryor, Jr., that they were thinking about replacing her. Mr. Pryor suggested that appellee might want to consider taking early retirement. Appellee became upset about this and contacted her attorney. Much was made in the briefs and oral arguments over whether the attorney had, in fact, talked with Mr. Pryor but we feel that this is of no consequence.

Eventually, the attorney for the appellee prepared a letter for the appellee to submit to Pryor’s which read, in part, as follows:

This is also to request early retirement concerning the Pryor’s Driveln Restaurant, Inc. Pension Plan also administered by The Kentucky Trust Company, as Trustee. It is my understanding from Mr. Anderson’s conversation with Mr. Klayer of Actuarial Services that you have requested that he compute the amount of my monthly pension based on early retirement and that he has computed that figure to be $212.00 per month. On this basis, I am requesting early retirement under the Pension Plan and would appreciate the Advisory Committee approving that early retirement and so advising The Kentucky Trust Company-

Subsequently, the attorney was advised by the Trust Company that it had received authorization from the Retirement Committee to commence monthly payments of $212.00 to the appellee and appellee did begin receiving checks in that amount from August, 1971, through June, 1975. Thereafter, Pryor’s discovered that the actuary had made a mistake and immediately reduced the payments to $48.43.

The theory of the case, which was adopted by the lower court, was that the offer by the appellee in her letter of July 20, 1971, and the action of the corporation through its Pension Committee and by paying the monthly sum for some four years constituted a contract between the parties which could not be unilaterally altered or rescinded and that the appellants, jointly and severally, owed the appellee the sum of $212.00 per month for the rest of her life. We disagree.

Appellants urge the court that since Mrs. Beliles had no written contract of employment there was no consideration for the contract at all and that it must fail on these grounds. We do not feel it is necessary to consider that for the reasons which will be made clear hereafter. Assuming that there was a contract between the parties, it is obvious that this contract was based on mutual mistake, which mistake was not the fault of either party. The Kentucky courts have defined mutual mistake as follows:

A mutual mistake occurs when both parties participate in the transaction and each labor(s) under the same conception of the alleged agreement. Silver v. Overhead Door Co., 311 Ky. 650, 225 S.W.2d 115 (1949). (Citing cases).

The courts further hold in this jurisdiction that mutual mistakes are actionable and that the usual remedies for mutual mistakes are rescission of the transaction or reformation of the contract. See Bradshaw v. Kinnaird, Ky., 319 S.W.2d 475 (1958) and cases cited thereunder. In 5 S. Williston, Contracts, § 1544, Page 4334 (1937), it is stated:

a mistake vitally affecting a fact or facts on the basis of which the parties contracted renders their contract voidable by an injured party. That is, where the parties assumed a certain state of fact to exist, and contracted on the faith of that assumption, they should be relieved from their bargain if the assumption is erroneous, and the materiality of the state of facts is weighty evidence of the assumption.

In that work, at § 1557, Page 4361, it is stated:

Where reformation is possible, it is generally the only remedy permissible, since the mistake of the parties related to their expression only and to decree rescission and freedom from all obligation would be an unnecessary violation of their intent.

In the instant case we have a classic example of mutual mistake which was not the fault of or chargeable to either party and neither party was privy to the information occasioning the mistake. The actuary who handled the Pension Plan was solely responsible for the mistake, not either of the parties.

Additionally, we must examine the offer of Mrs. Beliles contained in her letter of July 20, 1971. In this letter she did not base her early retirement upon receiving the sum of $212.00 per month for life, although the evidence disclosed that this was her general understanding and that of Pryor’s. However, the letter went on to state, “On this basis I am requesting early retirement under the Pension Plan and would appreciate the Advisory Committee approving that early retirement and so advising The Kentucky Trust Company.”.

It is the opinion of this Court that this adopted the Pension Plan by reference. In referring to the Pension Plan, we find the following:

A-7.1 Although it is the intention of the Employer that this Plan shall be continued and its contributions made regularly each year, this Plan is entirely voluntary on the part of the Employer and the continuance of the Plan and the payments thereunder are not assumed as a contractual obligation of the Employer. The Employer does not guarantee or promise to pay or cause to be paid any of the benefits provided by this Plan.
A-7.2 Each Member, Retired Member, Totally and Permanently disabled Member, beneficiary or any other person who shall claim the right to any payment or benefit under this Plan, shall be entitled only to look to the Trust Fund for such payment or benefit and shall not have any right, claim or demand therefor against the Employer.

The letter and all the circumstances surrounding this ease make it clear that both parties to this contract, if any, expected payment to be made from the Pension Plan. These two sections above quoted make it clear that all payments to the Pension Plan are entirely voluntary on the part of the employer, its continuance is not assumed as a contractual obligation of the employer, the employer does not guarantee the benefits provided by the Plan and the retired member is entitled to look only to the Trust Fund for payment and shall not have any right or claim against the employer. It is our opinion that the employer was totally within his rights, under the law of Kentucky and under the provisions of the Pension Plan itself, to reform the contract between the employer and the employee.

Accordingly, the judgment is reversed.

All concur.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Richard POTTER, Appellant.
    No. 38505.
    Missouri Court of Appeals, St. Louis District, Division One.
    June 7, 1977.
    Appellant’s Motion for Rehearing or Transfer to Supreme Court Denied Dec. 27, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Ronald R. McKenzie, Pros. Atty., Marion County, Hannibal, for respondent.
    William B. Spaun, Hannibal, for appellant.
   CLEMENS, Presiding Judge.

A jury found defendant Richard Potter, acting in concert with his brother Ronald, guilty of stealing an outboard motor worth at least $50 (§§ 560.156 and 560.161), and fixed his punishment at four years’ imprisonment. Judgment and this appeal followed.

The core issue is whether the state’s evidence showed defendant was in the exclusive, unexplained possession of the recently stolen outboard between the time it was stolen on April 28,1976 and the time defendant and his brother sold it the next morning. We relate the essential evidence.

The outboard motor, worth over $300, had been attached to Roy Hark’s boat parked outside his home in Hannibal; on the morning of April 29, 1976 it was missing. Later that morning defendant’s brother had the motor in his car trunk and in defendant’s presence tried unsuccessfully to sell it to Jack Kolb for $60. Still later, defendant and his brother offered to sell the motor to Fred Brown for $75. Brown offered to pay $50; a bargain was struck and Brown “bought” it for $50. Defendant and and his brother carried the motor into Brown’s place of business. In both transactions defendant and his brother, in each other’s presence, said they had bought the motor in Michigan “quite sometime ago” for $150.

Within a few days defendant was arrested in Jefferson City and returned to Hannibal where he gave police a written statement, stating: He and his brother had come from Michigan and were doing “spot labor”; at a Hannibal bar, a man unknown to them offered to sell them the outboard motor. Defendant’s brother bought the motor for $50 and later they sold the motor to Brown for $50.

Defendant offered no evidence and he challenges the sufficiency of the state’s evidence, contending his possession of the stolen motor was neither exclusive nor unexplained, as required to support an inference of stealing.

In their briefs, both parties cite State v. Gonzales, 533 S.W.2d 268[5-6] (Mo.App.1976), holding “the term ‘exclusive’ used in describing possession under the foregoing provision does not mean that possession must be separate and apart from all others, because joint possession may give rise to the same inference (citing cases). Yet, if the possession relied on to convict the defendant is joint with another, there must, at least, be some other evidence more than mere possession connecting the defendant with the offense.” See also State v. Ransom, 500 S.W.2d 585[4] (Mo.App.1973), holding joint possession of recently stolen property gives rise to an inference of stealing. We hold the evidence concerning defendant’s joint possession and joint efforts to sell the stolen motor met the requirement of “exclusive” possession of recently stolen property.

As said, defendant also contends there was no “unexplained” possession. He bases this on his statement to police that he bought the motor at the Hannibal tavern— this, in stark contrast to his statement to prospective purchasers that he and his brother had bought the motor in Michigan for $150. As presented to the trial court at time of ruling on defendant’s motion for new trial, defendant either lied to the prospective purchasers or lied to the police. State v. Cobb, 444 S.W.2d 408[9, 10] (Mo.1969) declares: “The jury determines the credibility of the defendant’s explanation of his possession of the stolen property, and even though such explanation was not impeached [and it was here], the jury was entitled to disbelieve it and draw an inference unfavorable to him based on his possession.”

We deny defendant’s contention that exclusive, unexplained possession was not shown, and hold the evidence sufficient to warrant the guilty verdict.

Defendant contends the court committed plain error in instructing twice on the “acting in concert” element. Counsel frankly acknowledges there was no objection either at trial or in his motion for new trial. Defendant does not demonstrate— nor do we find — any “manifest injustice or miscarriage of justice,” as required for review under Rule 27.20(c).

Judgment affirmed.

DOWD and SMITH, JJ., concur.


author: SMITH, Judge.

text:
    Robert Lee HERRON, Appellant, v. STATE of Missouri, Respondent.
    No. 38664.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 22, 1977.

      Huck, Kasten, Inc., St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Jeffrey W. Schaeperkoetter, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., W. Earl Jacobs, Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Judge.

Movant appeals from the action of the trial court denying his Rule 27.26 motion and dismissing same with prejudice. We affirm.

Movant, in 1974, pleaded guilty to robbery first degree by means of a dangerous and deadly weapon and to burglary second degree. He received a sentence of nine years for the robbery and four years for the burglary, the terms to be served concurrently. His 27.26 motion attacks only the sentence for the robbery, on the basis that his plea of guilty to that offense was based upon a representation or promise by his attorney that he would receive a sentence of seven years.

At the evidentiary hearing, movant testified to the promise of seven years. His former attorney denied any such promise and testified that he negotiated a nine year recommendation from the Circuit Attorney and fully advised his client of the plea bargain which his client accepted. The court found movant’s testimony was “on the whole, not worthy of belief” and the testimony of his former attorney “credible". We defer to the findings concerning credibility by the trial court. Accepting the attorney’s testimony as true and having reviewed the transcript of movant’s guilty plea, we find the findings of fact, conclusions of law and decision of the trial court fully supported by the record.

Judgment affirmed.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: WEIER, Judge.

text:
    Harold WEATHERFORD, Plaintiff-Respondent, v. H. K. PORTER, INC., Defendant-Appellant.
    No. 38246.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 22, 1977.

      Richard 0. Funsch, St. Louis, for defendant-appellant.

      Bruce P. Robert, Michael M. Sayers, Clayton, for plaintiff-respondent.
   WEIER, Judge.

Defendant H. K. Porter, Inc., appeals from a judgment rendered pursuant to a jury verdict in favor of plaintiff Harold Weatherford in the sum of $5,500. Plaintiff sustained an injury to his left index finger when a hydraulic jack attachment broke while plaintiff was using it and the jack in an effort to push out a dented fender on a van-type motor vehicle. Plaintiff’s theory of recovery was strict liability in tort. On appeal defendant contends among other things that plaintiff failed to prove that “the jack attachment was in a defective condition at the time it left the hands of defendant.” We reverse on this ground.

In considering whether plaintiff made a submissible case, in the situation such as this where defendant presents no evidence, we consider the evidence in the light most favorable to plaintiff, with all reasonable inferences to be drawn therefrom. Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 569-70[6] (Mo.App.1977). Plaintiff testified that at the time of the trial he had fifteen years experience doing automobile body repair work. Prior to June 4, 1973, when plaintiff was injured, plaintiff had used the same type of jack attachment or fitting on other occasions without mishap. Plaintiff had purchased the attachment in question from “Mac Tool” and had used it successfully one other time before it broke. When the attachment broke plaintiff was not doing anything out of the ordinary; he was using the attachment the only way he knew how, which was to attach it to a hydraulic jack and “Pump ’til it wouldn’t go no more.” On the occasion when the attachment broke plaintiff had pumped the jack three or four times but “[bjefore I could get pressure on it, the cottonpicker popped in two” injuring plaintiff’s finger. Plaintiff did not know why the attachment broke. The foregoing testimony of plaintiff was corroborated by another workman who testified that he saw plaintiff bent over pushing out on the fender with the tool in question, which was the proper tool to use to fix dented fenders and that after the injury the jack attachment was broken.

The jack attachment, introduced into evidence as plaintiff’s exhibit 1, originally consisted of two metal parts, one of which broke in two at the time of the accident making a total of three parts at the time of trial. One part is a cylindrically shaped object, four or five inches long. A hole or depression on one end of this piece is just large enough to hold one end of the second piece. The other end of the second piece (now broken off) fans out with a v-shaped indention in the middle of the flat end. This apparently is the end that touches against the automobile frame or fender when a fender is being pushed out. A substantial amount of blue paint has been chipped or worn off from both pieces. Numerous scratches and dents are also evident on both pieces. Inscribed on the first piece is the following:

“H. K. PORTER INC.
BOSTON 43, MASS.”

Plaintiff offered no expert testimony and defendant no evidence.

From this evidence the issue is presented whether plaintiff met his burden of proof that the jack attachment was in a defective condition at the time it left the hands of defendant. The Restatement (Second) of Torts § 402A (1965), adopted as the law in Missouri in Keener v. Dayton Electric Manufacturing Company, 445 S.W.2d 362 (Mo.1969), states:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Comment g under § 402A states:

“The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes makes it harmful by the time it is consumed. The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.”

But “[t]he existence of a defect may be inferred from circumstantial evidence with or without the aid of expert opinion evidence.” Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 569[5] (Mo.App.1977). “However, when a plaintiff relies upon such proof, he does have the burden of establishing circumstances from which the facts necessary to prove his claim may be inferred, without resort to conjecture and speculation and the circumstances proved must point reasonably to the desired conclusion and tend to exclude any other reasonable conclusion.” Hale v. Advance Abrasives Company, 520 S.W.2d 656, 658 (Mo.App.1975).

The controversy on whether plaintiff proved the attachment was defective when it left the hands of defendant centers around whether other reasonable explanations for the product’s failure have tended to be eliminated. Defendant first argues that the attachment may have broken because plaintiff misused it. But the evidence and reasonable inferences to be drawn therefrom show that plaintiff was using the attachment properly. Defendant next argues that the jack attachment may have been tampered with between the time that it had worked properly and the time it broke and that even if there was a defect, plaintiff did not show that the defect was present when defendant parted with the product. Plaintiff claims the jury “could have reasonably eliminated this possibility [of misuse or tampering] on the basis of plaintiff’s testimony that he kept his tools in a tool box at the body shop and that his tool box was kept locked.” The actual testimony on this subject is as follows:

“Q. [Defendant’s attorney on cross-examination] Where are your tools?
A. [Plaintiff] Where is my tools?
Q. Uh-huh. A. They are in my tool box.
Q. Where is that located?
A. Maryland Heights
Q. That is where you went last night after trial, you went down to where your tool box is?
A. I didn’t go in my tool box. Hell, I don’t work at night.
Q. Did you have keys [for the jack attachment] in your tool box?
A. My box is locked.
Q. The keys to that particular—
A. —Yeah, I got keys for it.”

But no reasonable inferences can be drawn from this testimony that plaintiff always kept the jack attachment locked in his tool box when he was not using it and that no one else ever used the attachment. There is no evidence that plaintiff was the only person to use the attachment. There is no evidence on how long before the accident plaintiff purchased the attachment from “Mac Tool,” or even whether, when plaintiff bought it, it was new or used. From the worn and battered condition of the attachment it would be more reasonable to conclude that someone had used it many times, than to conclude that it was only used once before it broke. If, in addition to the evidence that the attachment broke when plaintiff was using it for the second time, there was evidence that the attachment was new when plaintiff purchased it and that plaintiff had been the only one who had used it prior to the accident, then the jury might be able to infer from this evidence that the jack attachment was defective when it left the hands of defendant. However, in the absence of any such evidence, the existence of a defect caused by defendant cannot reasonably be found. This is not the type of accident which common experience tells us would normally not occur in the absence of a defect. See, Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 570[8] (Mo.App.1977). In Winters at 571 the court stated that “a television set properly manufactured and properly serviced by the seller does not, in normal operation, combust.” Furthermore, the plaintiff there produced expert testimony to prove a defect was the “most probable cause” of the fire. Here the attachment could have failed because of prior misuse, tampering or simply because of metal fatigue resulting from prolonged use. This case is similar to Browning Ferris Industries of St. Louis, Missouri, Inc. v. Baden Tire Center, Inc., 536 S.W.2d 203, 205[4] (Mo.App.1976) where the mere fact that a tire blew out within minutes after it was installed on plaintiff’s truck and had been driven only about two miles did not prove that the tire was defective, the court noting that other possible causes for the blow out were not eliminated. See also, Hale v. Advance Abrasives Company, 520 S.W.2d 656, 659[3] (Mo.App.1975) (not a submissible case where evidence pointed equally to a cause for which defendants were responsible and to one for which they were not responsible).

This case differs from Williams v. Ford Motor Company, 411 S.W.2d 443 (Mo.App.1966), relied on by plaintiff. In Williams the steering failed on a new car four days after it had been purchased. The court, at 448 stated “that if a new automobile is properly operated but does not turn in the direction it is steered, then the automobile is not properly manufactured.” See also, Jacobson v. Broadway Motors, Inc., 430 S.W.2d 602, 606[3] (Mo.App.1968) (jury could infer that a fire which started under the hood of a three-month-old car while the car was stopped in a parking lot was caused by a defect in material or workmanship). In contrast to Williams and Jacobson the evidence in the case at bar is barren of any information on the age or prior history of the jack attachment, other than plaintiff’s testimony that he only used it once before it broke. Lifritz v. Sears, Roebuck and Company, 472 S.W.2d 28, 32[7] (Mo.App.1971) does not aid plaintiff’s case either. In Li-fritz plaintiff was injured when an aluminum ladder broke. The jury was permitted to infer that the accident was caused by a defect for which the defendant seller was responsible. But, unlike the case at bar, there was evidence in Lifritz that no one other than plaintiff had used the product, that it was used only at plaintiff’s house, and that the product had never been damaged prior to the accident. See also, Tucker v. Central Hardware Company, 463 S.W.2d 537 (Mo.1971) (plaintiff’s testimony that neither she nor anyone at her direction had done anything to the air conditioner after it was installed excluded other possible causes for a fire and helped show that a weak spot in the insulation around the wires existed at the time the unit was installed). As noted above, the seller is only liable if the product reaches “the user or consumer without substantial change in the condition in which it is sold.” Restatement (Second) Torts § 402A(1)(b) (1965). In the recent case of Winters v. Sears, Roebuck and Co., supra at 573, the court discussed this requirement and stated: “We hold that once the plaintiff, in a case of strict liability, produces evidence that neither he nor any third person has made alterations to the product, which would create a defect that could be the proximate cause of the damages incurred, he has made a submissible case as to the issue of the existence of a defect at the time of sale or delivery of the product.” Here plaintiff has produced no such evidence.

On the basis of the evidence in this case the jury could not reasonably infer the existence of a defect in the jack attachment at the time the attachment left the hands of defendant. Plaintiff failed to make a submissible case. The trial court erred in overruling defendant’s motion for a directed verdict. See generally, W. Prosser, Handbook of the Law of Torts § 103, pp. 671-76 (4th ed. 1971); 51 A.L.R.3d 8, Products Liability: Proof of Defect Under Doctrine of Strict Liability in Tort § 2, pp. 13-24; 54 A.L.R.3d 1079, Products Liability: Proof, Under Strict Tort Liability Doctrine, that Defect was Present When Product Left Hands of Defendant §§ 2(b) and (c), pp. 1090-93. It is not necessary to discuss the other points raised by defendant.

The judgment is reversed.

GUNN, P. J. and KELLY, J., concur.


author: RENDLEN, Special Judge.

text:
    In re the MARRIAGE OF Roger L. BERKBIGLER, Petitioner-Respondent, and Elizabeth M. Berkbigler, Respondent-Appellant.
    No. 37544.
    Missouri Court of Appeals, St. Louis District.
    Nov. 22, 1977.
    Alfred J. Rathert, Fenton, for respondent-appellant.
    Harry Gershenson, Jr., Clayton, for petitioner-respondent.
   RENDLEN, Special Judge.

This marriage was dissolved on the husband’s petition and the wife appeals, contending: (1) the evidence was insufficient to support the judgment of dissolution, (2) error in the court’s failure to order child support for the eldest of five minor children of the marriage and (3) in denying appellant’s request for maintenance. The parties shall be referred to as denominated in their roles on appeal.

Married in 1952 and separated in February 1975, the parties have six children, five of whom were minors, ranging from eight to eighteen and one-half years of age at the time of the dissolution in September, 1975. The sixth child, a married adult, is a member of the United States Air Force stationed in Texas.

We first consider appellant’s contention that the trial court erred ordering the dissolution because appellant had denied under § 452.320, subd. (2), RSMo Supp. 1975, that the marriage was irretrievably broken and respondent failed to carry his resultant burden to present evidence, sufficient to “satisfy the court” that one or more of the ultimate facts, prescribed in subsection 452.320, subd. 2(l)(a)-(e), were present. Of the ultimate facts enumerated in the subsection, respondent offered evidence only as to one; i. e., 2(l)(b), “That the [wife] has behaved in such a way that the [husband] cannot reasonably be expected to live with [her]”.

Respondent testified that continued cohabitation with appellant was intolerable because of her constant carping, criticism and nagging which frequently related to his relationship with the children and occasionally occurred in their presence. As respondent described it, “there was constant complaining and criticizing. We could never agree on any subject”. He compared the incessant questioning by his wife to being “on the witness stand” stating that “Mrs. Berkbigler complained about me, no matter what I did practically, and it was in front of the children.” At times the arguments reached the point that respondent would refuse to answer further and would just “be quiet.” One area of disagreement involved sending the girls to Catholic high school which he opposed because “I felt we were paying for high schools and taxes I was paying — I didn’t see why we should pay another high school”; on the other hand appellant was “determined” they should attend parochial school. Another fertile source of disagreement concerned his membership and attendance at meetings of several business or professional organizations. Respondent had been a member and during one year chairman of the St. Louis section of the “Society of Auto Engineers”. He was also a member of the Planning and Zoning Commission and an officer in the “Ramsey Old Guard Association”, an organization that planned activities for “families of the company” where he worked. His wife complained about his attendance at meetings of these organizations because “they were for somebody else” and that he “should be spending this time at home with her and the children.” Often during these “nearly constant” exchanges she yelled at him which produced “bitterness” continuing until the separation when he left home in February, 1975. Their quarreling also concerned the fact that respondent stayed out and drank “about every other Friday”, sometimes until 12:00 midnight. On one occasion she told the children (according to respondent quite unjustifiably) that respondent did not love them. Appellant admitted that she at times argued with respondent “to the point that he would no longer answer [me] at all”, and though she contends they didn’t argue more than ordinary married couples she complained he wasn’t home enough and that he had little time for the children. In spite of their problems, appellant believed they could “get over” their difficulties and preserve the marriage. These were matters for the trial court to weigh and evaluate in the light of the witness’ credibility.

Appellant cites In Re Marriage of Mitchell, 545 S.W.2d 313 (Mo.App.1976), as authority for reversal; however, factual differences distinguish that case from this at bar. In Mitchell there was no testimony that the quarrels of which the petitioning husband complained were the bases for his belief he could not reasonably be expected to live with his wife. As stated by the court “never once during petitioner’s testimony did he complain that it was these ‘quarrels’ or ‘discussions’ which made it unreasonable to expect petitioner to live with the respondent.” This stands in marked contrast to the testimony here. The facts which respondent alleged in his petition made the marriage intolerable were those to which he testified in great detail and which were the stated reasons for his belief that there was no “reasonable likelihood” the marriage could be preserved and that the marriage was “irretrievably broken”. This is not to say that the record was bare of evidence concerning many good qualities of his wife, which indeed respondent admitted, nor was his conduct above reproach. He admitted that on two occasions in past years he had had associations with certain other women and he also admitted having associated with another woman following the separation in 1975. While such conduct does not commend itself, it does not preclude the court’s finding that appellant had behaved in such a way that the respondent “cannot reasonably be expected to live with” her. We are unable to say there was no substantial evidence to support the finding or that the judgment of dissolution was against the weight of the evidence.

Appellant next contends the trial court erred by failing to make an award of maintenance. In determining the merit of this contention we examine the nature and value of marital property apportioned to each party, the ability of each to support themselves through appropriate employment, and all relevant factors set forth in § 452.-335, RSMo Supp. 1975. The marital property was divided by the court as follows:

Debts apparently assumed by respondent include: (1) Equitable Life Insurance Company, $1,079; (2) amount due on air compressor (apparently to Sears), $190; (3) Master Charge, $875; (4) Penney’s, $150; (5) Rameo Credit Union, $794; (6) fees due to appellant’s attorney (The judgment states: “$500 additional to respondent’s attorney”), $500; all of which total $3,588.

Respondent’s net monthly earnings (including amounts he allocated to a savings program) provides spendable income of $1,076 per month. Against this income, respondent testified to monthly expenses of $1,195. In addition, as set out above, the court allowed $468 monthly child support, making respondent’s monthly liability (not including the outstanding indebtedness listed above due unsecured creditors) of $1,663, less such amounts, if any, as appellant pays on the monthly home mortgage, property taxes and insurance of $454.23.

Appellant’s monthly income at the time of trial included $218 wages and $76 unemployment benefits which will be augmented by $468 monthly child support payments. She will thus receive $762 per month from these sources. Appellant testified to monthly expenses totaling $899 after credit for $30 a month on the children’s insurance premium which respondent is obligated to provide under the court’s decree. Both parties recited expenses, greater than available income, and it is readily apparent there will be some diminution in their respective life styles when maintaining separate homes. Against this background, we consider the prospect for appellant to support herself through appropriate employment. Appellant is in good health, had been employed full time during 1974-1975, and though at the time of trial she was employed only 24 hours per week as a clerk typist at Ultradec Incorporated, she was seeking a full time job. Admitting the necessity for a full time job to pay her bills, appellant first testified she would refuse such employment if it were offered but later conceded she would accept full time work and had applied for such employment. Though appellant felt a need to improve her skills, her background and job experience in typing, shorthand, use of dictation equipment, etc., qualified her for secretarial work. We are not told of her earlier job experience except that in 1974 she worked at the Maritz Corporation as a secretary earning about $380 per month until June of 1975. She also had worked part time selling cosmetics. In view of the marital property award, appellant’s skills and prospects for appropriate employment, the age and situation of the children in the family home, the present earnings and capabilities of the parties and other relevant factors including those set forth in § 452.-335, RSMo Supp. 1975, etc., we cannot say the trial court abused its discretion in failing to award appellant maintenance.

Finally, it is contended the court erred in not granting child support for Janet, the parties’ daughter who was then almost nineteen years of age. This young lady, a student at Miss Hickey’s College studying fashion design, attended class from 9:00 a. m. to 1:00 p. m. daily and expected to complete school by July of 1977. She had an application in process for a student loan and was employed at the Venture Store earning $2.25 per hour working between twenty and forty hours per week. Respondent had supplied Janet with a car and she purchased her own gasoline, lunches, insurance, long distance calls and personal clothing, most of which she made. She had not been paying her mother room or board. Considering all the circumstances, we find no error in the decree awarding support for only the four younger children.

The judgment is affirmed.

McMILLIAN, P. J., and STEWART, J., concur.

      . Certain evidentiary inconsistencies as to value are noted and except where contrary testimony was offered the income and expense statement and financial statement filed by respondent supply much of the information on which the judgment rests.

      . This includes monthly mortgage payments, property taxes and insurance expenses on the home of $454.23 for which the court made no specific allowance nor does there appear to have been any agreement by which appellant, who is to receive the real estate, was to hold respondent harmless. On the other hand, if these items are paid in part by her, such payments would correspondingly reduce his claimed monthly expenses.

      . Appellant stated she would refuse full time employment because she was “needed at home”. However, she had worked full time in 1974-1975 when the youngest child was six years of age, yet that child was a third grader, eight years old, at the time of the divorce. Appellant further testified that the next child, a boy twelve years of age, was able to take care of himself fairly well and the children helped take care of one another.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Steven Randolph GRANT, Defendant-Appellant.
    No. 38718.
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 22, 1977.

      Dennis N. Smith, Asst. Public Defender, St. Louis, for defendant-appellant.
    John Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant Steven Randolph Grant appeals from his conviction in the circuit court of St. Louis County, Missouri, for burglary second degree, a felony under § 560.045, RSMo 1969, and carrying a concealed weapon, a felony under § 564.610, RSMo 1969. Appellant was sentenced to two (2) years in the state department of corrections for the burglary second degree and fifty days in the county jail for carrying a concealed weapon, the sentences to run concurrently. For reversal appellant argues that the trial court erred in (1) refusing to admit into evidence appellant’s testimony about a third party’s statement as a declaration against penal interest, (2) submitting instruction No. 8 to the jury which allowed the jury to reach an inconsistent verdict, and (3) submitting instruction No. 9 to the jury which precluded the jury from considering whether a straight razor is a dangerous and deadly weapon. For the reasons discussed below, we affirm the judgment.

About 6:30 a. m. on September 24, 1975, Charles Kirkwood left his home at 8324 Pepperidge Drive in St. Louis County to go to work. About an hour later his wife Estelle left the house to go to work and drop their daughter off at school. Mrs. Kirkwood locked the side door as she left but not the outside screen door. The inner door was intact and in good repair.

About 12:30 p. m. that day Damon Cov-ington was sitting in the front door of his house reading the newspaper. Covington’s house is across the street from the Kirk-woods, at 8319 Pepperidge Drive. Coving-ton saw an automobile drive up and park near the Kirkwood’s house. A short time later Covington heard someone knocking on the Kirkwood’s front door and then saw someone kicking the side door. Although it is impossible to see anything less than three feet from the Kirkwood’s side door from Covington’s front door, Covington testified that the person moved as if he was kicking at the door and then he heard the sound of breaking glass. At this point Covington called the police. By the time Covington went outside, two police cars were outside the Kirkwood’s house.

Policeman Charles Crawford, then a member of the Berkeley Police Department, was able to respond immediately to the call. As he approached the Kirkwood’s house, he saw appellant run from the carport and place a black object in the car parked in front of the house. Appellant testified that he walked from the carport and raised his hands in the air only after Officer Crawford told him to halt. Officer Crawford then arrested appellant and later arrested another man, identified as Charles Burston, who was seen coming from the carport. Officer Crawford searched both appellant and Burston and discovered a straight razor with a rubber band wrapped around it in appellant’s rear pants pocket.

Officer Crawford found a television set and an electric typewriter covered with a blanket by the side door. The interior of the house was in disarray and there was broken glass on the floor. Officer Crawford also found two tape recorders in the car parked in front of the house.

Appellant testified that around 12:00 p. m. on September 24, 1975, he was driving through Kinloch when he was flagged down by Charles Burston. Burston offered appellant five dollars to drive him to his cousin’s house in Frostwood to pick up some things. Appellant did so and then testified that he remained in the car listening to the radio until Burston motioned for him. Appellant testified that only Burston entered the house. Appellant also attempted to testify that several weeks later Charles Burston told him that he (Burston) had broken into the house earlier in the day and then persuaded appellant to drive him to pick up the items. This conversation is the subject of appellant’s first point on appeal.

For reversal appellant contends that the trial court erred in refusing to admit Bur-ston’s statement because it was a declaration against interest and therefore admissible as an exception to the hearsay rule. “Declarations against interest are those [statements] made by persons not a party or in privity with a party to the suit, are secondary evidence and constitute an exception to the hearsay rule, admissible only when the defendant is unavailable as a witness.” Carpenter v. Davis, 435 S.W.2d 382, 384 (Mo. banc 1968) citing Neely v. Kansas City Public Service Co., 241 Mo.App. 1244, 252 S.W.2d 88, 91 (1952). Traditionally the interest had to be pecuniary or proprietary in character — -a declaration which was against penal interest in that it would probably subject the declarant to criminal liability was held not to be sufficient to constitute an exception. E. g., Donnelly v. United States, 228 U.S. 243, 273, 33 S.Ct. 449, 57 L.Ed. 820 (1913) (citing the Berkeley Peerage case, 4 Campb. 401 (1811), and the Sussex Peerage case, 11 Clark & F. 85 (1844).

Professor Wigmore has criticized the traditional position as an arbitrary distinction, arguing that “. . . the principle of experience that a statement asserting a fact distinctly against one’s interest is unlikely to be deliberately false or heedlessly incorrect. . . . which is the basis of the exception applies equally to pecuniary as to penal interest. V Wigmore, Evidence, §§ 1457, 1476 (3d Ed.). In Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 (1945), our supreme court extended the exception to include declarations against penal interest in civil cases. Id. at 289. The court discussed Wigmore’s position and concluded that “in every realistic sense” this character of declaration was a declaration against interest. Our courts have, however, continued to exclude declarations against penal interest in criminal cases, e. g., State v. Brown, 404 S.W.2d 179 (Mo.1966); State v. Williams, 309 Mo. 155, 274 S.W. 427 (1925), although an increasing number of jurisdictions have held such declarations admissible, e. g., People v. Spriggs, 60 Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (1964) (in banc); People v. Brown, 26 N.Y.2d 88, 308 N.Y.S.2d 825, 257 N.E.2d 16 (1970); State v. Gardner, 13 Wash.App. 194, 534 P.2d 140 (1975); contra, United States v. Brandenfels, 522 F.2d 1259 (9th Cir.), cert. den., 423 U.S. 1033, 96 S.Ct. 564, 46 L.Ed.2d 406 (1975); Pitts v. State, 307 So.2d 473 (Fla.App.) cert. den., 423 U.S. 918, 96 S.Ct. 302, 46 L.Ed.2d 273 (1975); see also Note, Declarations Against Penal Interest: Standards of Admissibility Under an Emerging Majority Rule, 56 B.U.L.Rev. 148 (1976). The Federal Rules of Evidence recognize an exception for statements which tend to expose the declarant to criminal liability and are offered to exculpate the accused only if corroborating circumstances clearly indicate the trustworthiness of the statement. Fed. Rules Evid. Rule 804(b)(3), 28 U.S.C.A. (1975); e. g., United States v. Barrett, 539 F.2d 244 (1st Cir. 1976); United States v. Harris, 501 F.2d 1 (9th Cir. 1974).

Even if we were to extend the exception to criminal cases, appellant’s offered declaration would still be inadmissible due to insufficient foundation. There are four requirements necessary to admit a declaration against interest: (1) unavailability of the declarant as a witness, (2) declaration relates to a fact against the apparent pecuniary, proprietary or penal interest of the declarant when made, (3) declaration concerns a fact personally cognizable by declar-ant, and (4) declaration made under circumstances which render it improbable that a motive to falsify exists. Straughan v. Asher, 372 S.W.2d 489, 494 (Mo.App.1963), citing 31A C.J.S. Evidence § 217. Although the Restatement has eliminated the requirement of unavailability of the declarant, ALI, Restatement Model Code of Evidence, § 509(1), Comment c, the Federal Rules and our supreme court have consistently required the declarant to be unavailable as a witness. Fed.Rules Evid. Rule 804(b)(3), 28 U.S.C.A. (1975); e. g., United States v. Goodlow, 500 F.2d 954 (8th Cir. 1974); Jack Neilson, Inc. v. Chicago Ins. Co., 429 F.2d 540 (5th Cir. 1970); Roush v. Alkire Truck Lines, 299 S.W.2d 518 (Mo.1957); Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284 (1945); Straughan v. Asher, supra. It must be shown that as a practical matter the declarant is unavailable, due to death, insanity, illness, absence from the jurisdiction or supervening incompetency through interest. Straughan v. Asher, supra at 495 citing V Wigmore, Evidence § 1456 (3d ed.).

In this case appellant failed to adequately demonstrate that the declarant Charles Burston was unavailable as a witness. Appellant asserted only that the declarant could not be found. Appellant’s attorney admitted that the declarant had not been subpoenaed. Appellant also argued that the declarant could have exercised his constitutional privilege against self-incrimination and would therefore have been unavailable as a witness. The declarant must, however, appear as a witness and then refuse to testify to be considered unavailable. E. g., Sutter v. Easterly, supra; Moore v. Metropolitan Life Ins. Co., 237 S.W.2d 210 (Mo.App.1951). Furthermore, appellant has not shown any corroborating circumstances or other indicia of trustworthiness. The declarant’s statement was not reduced to writing, signed or sworn to by the declar-ant, or witnessed by any person other than appellant. Because appellant failed to establish an adequate foundation for the declaration against penal interest, the trial court did not err in excluding such statement from the evidence.

Appellant’s second point concerns instructions. Appellant urges that Instruction No. 8 (MAI-GR 2.76) was improper because it allowed the jury to find appellant guilty of burglary but not guilty of stealing, which appellant argues is an inconsistent verdict. The instruction was submitted in its exact form as written. Rule 20.02, V.A.M.R.; e. g., State v. Davison, 545 S.W.2d 723 (Mo.App.1977). Moreover, when a defendant is charged with two criminal offenses that involve different elements, such as second degree burglary, § 560.045, RSMo 1969, and stealing, § 560.-156 RSMo 1969, the jury may consistently find the defendant guilty of burglary only, e. g., State v. Thomas, 452 S.W.2d 160, 164 (Mo.1970). The elements of burglary second degree are breaking and entering with the intent to steal or to commit a felony. § 560.045 RSMo 1969; e. g, State v. Sanderson, 528 S.W.2d 527 (Mo.App.1975); State v. Cox, 527 S.W.2d 448 (Mo.App.1975). Appellant’s acquittal of stealing does not necessarily contradict the element of intent to steal where there is other evidence of such intent. E. g., State v. Hooper, 494 S.W.2d 306 (Mo.1970); State v. Smith, 521 S.W.2d 38 (Mo.App.1975).

Appellant also argues that the trial court erred in giving Instructions No. 8 (MAI-CR 2.76) and No. 9 (MAI-CR 13.10) in reverse order. This is error. Failure to comply with the Missouri Approved Criminal Instructions is error; however, the prejudicial effect of such error is to be judicially determined. Rule 20.02(e) V.A.M.R.; e. g., State v. Boyington, 544 S.W.2d 300 (Mo.App.1976). Normally, the burden of demonstrating a lack of prejudice would fall upon the state, Watterson v. Portas, 466 S.W.2d 129 (Mo.App.1971), but in this case appellant failed to include this allegation of error in his motion for a new trial and therefore failed to preserve this point for review. Our review is limited to whether the reversal of the order of the instructions by the trial court was plain error. State v. Johnson, 537 S.W.2d 816 (Mo.App.1976). We conclude that it was not. The actual verdicts and the’separate verdict forms indicate that the jury considered each offense charged separately. Id. at 820; State v. Nelson, 532 S.W.2d 855, 857 (Mo.App.1975).

Appellant’s final point is that Instruction No. 9 was erroneously submitted to the jury because it precluded the jury from considering whether a straight razor is a “dangerous and deadly weapon” under § 564.610 RSMo 1969. The statute specifically includes “any kind of firearms, bowie knife, springback knife, razor, metal knucks, billy, sword cane, dirk, dagger, slung shot (sic) or other similar deadly weapons.” (Emphasis added.) Appellant was carrying the straight razor in his back pants pocket. It was not observable. In State v. Dorsey, 491 S.W.2d 301 (Mo.1973), the court specifically held that any one of the weapons enumerated in the statute is a dangerous and deadly weapon as a matter of law and that carrying one of those weapons in a concealed manner is a violation of the statute, Id. at 302. In State v. Campbell, 507 S.W.2d 431 (Mo.App.1974), the court held that since a firearm is mentioned in the statute as being dangerous and deadly, no additional proof that defendant’s gun was a deadly weapon was required or necessary. Id. at 433. Furthermore, MAI-CR 13.10, Notes on Use 2 (1973), specifies that if the weapon is one of those enumerated in the statute, then the second paragraph of the instruction which requires a jury finding that the weapon in question was a dangerous and deadly weapon should be omitted.

Appellant also argues that the razor was not a dangerous and deadly weapon because it had been wrapped with a rubber band. This does not deprive the razor of its character as a dangerous and deadly weapon. In State v. Boyd, 492 S.W.2d 787 (Mo.), cert. den., 414 U.S. 1069, 94 S.Ct. 579, 38 L.Ed.2d 475 (1973), a pistol wrapped in a sock and found in an attache case was found as a matter of law to retain its character as a dangerous and deadly weapon. Id. at 792. Appellant finally argues that the statute cannot include “straight razor” because it specifically refers to a “razor.” We do not agree and believe a straight razor is within the meaning of the statute.

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.