author: DUNAGAN, Chief Justice.

text:
    Richard C. BOKHOVEN, Appellant, v. Nancy A. BOKHOVEN, Appellee.
    No. 1057.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 1, 1977.
    Rehearing Denied Dec. 22, 1977.

      Jerry A. Stewart, Anderson & Peters, Reyburn U. Anderson, Dallas, for appellant.
    Patricia A. Hill, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a divorce decree. Appellant Richard C. Bokhoven, petitioner below, filed a petition seeking a divorce from the appellee, Nancy A. Bokhoven. The suit tried before the court also concerned the parent-child relationship involving Jeffrey Richard Bokhoven, a child born of the marriage on December 6, 1970. The parties were married on October 9, 1965, and separated in March of 1975. In his petition, appellant asked that appellee be appointed managing conservator of the child.

The trial court granted its decree of divorce and appointed appellee managing conservator and appellant possessory conservator. The appellant states in his first and second points of error that the trial court abused its discretion by unfairly dividing the community property. The appellant’s third point of error concerns the amount of child support ordered by the court.

We affirm the trial court.

The appellant in his brief sets out the community property division ordered by the court as follows:

Wife takes:
House $33,500.00
Volkswagen 1,687.10
Majority of furniture 2.000.00
$37,467,00
Wife pays:
1st Lien $17,065.03
Future debt to be paid on sale of house 6.000.00
$23,065.03
Net to wife: $14,401,97
Husband takes:
Motorcycle $ 350.00
Retirement Alcon 288.00
Navy Credit Union 151.98
Future Cash (from sale 6,000.00 of house)
100 shares Redman 437.50
Capital Corp. Stock 848.46
Furniture 500.00
$8,575.94
Husband pays:
Note to Navy Federal Credit Union $3,226.88
Net to Husband: $5,349.06

Judgment against the husband for the wife’s attorney’s expense of $1,250.00 was ordered.

The appellee in her brief states that the community property division as ordered by the court awards the wife $8,723.00 and the husband $4,833.00. The major differences in the appellant’s and the appellee’s figures appear to result from conflicting values on the car, the furniture, and closing costs for the sale of the home that the appellee has included in her figures. The closing costs have their basis in the trial court’s property division which orders a sale of the home with the appellant receiving $6,000 from the sale, such sale to occur after the first of the following occurs.

1. Jeffrey Richard Bokhoven attains the age of eighteen (18) years;
2. Jeffrey Richard Bokhoven marries, permanently leaves home or dies; or
3. Appellee voluntarily leaves, abandons or sells the home.

The record presented to us in this case does not enable us to determine the values of most of the items of community property. An unsworn inventory and ap-praisement was filed in the papers of the cause and was referred to briefly by the appellant in his testimony, but it was never introduced into evidence. We cannot consider this inventory and appraisement on appeal because it is not before us. Llast v. Emmett, 526 S.W.2d 288, 290 (Tex.Civ.App.—Tyler 1975, n.w.h.); Tex.R.Civ.P. 376. The value of most of the items of community property was never touched upon during the testimony of either party. Therefore, the evidence is non-existent regarding the value of most items of community property.

The only findings of fact concerning the value of any of the community property states the value of the home is between $32,500.00 and $33,500.00, and sets the community equity in the home at approximately $10,000.00. It was incumbent upon the appellant to request additional findings of fact about the valuation of any of the remaining items of community property if he had presented evidence on their value and if he desired such findings. Tex. R.Civ.P. 298. Not having done so, such findings are waived. Tidwell v. Lange, 531 S.W.2d 384, 386 (Tex.Civ.App.—Waco 1975, n.w.h.); Dillingham v. Dillingham, 434 S.W.2d 459, 462 (Tex.Civ.App.—Fort Worth 1968, writ dismissed); Nelson v. Flache, 487 S.W.2d 843 (Tex.Civ.App.—Amarillo 1972, writ ref’d n.r.e.). In the absence of a sufficient valuation of the community property of the parties, we cannot say the trial court abused its discretion in the division of such property.

Even if this court were to accept the values of the community property division as set out in appellant’s brief and stated above, we could not say such division by the trial court was an abuse of discretion.

Section 3.63, Texas Family Code, provides:

“In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

The division of community property need not be made equally. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Roye v. Roye, 404 S.W.2d 92, 95 (Tex.Civ.App.—Tyler 1966, n.w.h.); Nelson v. Nelson, 436 S.W.2d 200, 202 (Tex.Civ.App.—Dallas 1969, n.w.h.); Smith v. Manger, 449 S.W.2d 347, 349 (Tex.Civ.App.—San Antonio 1970, n.w.h.); Dobbs v. Dobbs, 449 S.W.2d 119, 120 (Tex.Civ.App.—Tyler 1969, n.w.h.). The trial court has wide discretion in ordering a division of community property, and there is a presumption the trial court exercised its discretion properly. Waggener v. Waggener, 460 S.W.2d 251, 254 (Tex.Civ.App.—Dallas 1970, n.w.h.); Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App.—Fort Worth 1963, writ dismissed). At the same time, such discretion is not unlimited and cannot be used in an inequitable manner. Bowling v. Bowling, 373 S.W.2d 829, 831 (Tex.Civ.App.—Houston 1964, n.w.h.); Hooper v. Hooper, 403 S.W.2d 215 (Tex.Civ.App.—Amarillo 1966, writ dismissed).

There are many factors to consider in ascertaining whether a trial court abused its discretion in dividing the community property. The trial court may take into consideration a number of things including the difference in earning capacity, capacity and abilities of the parties, the business opportunities, probable future need for support, fault in breaking up the marriage, and the benefits the innocent spouse would have received from a continuation of the marriage. Miller v. Miller, 463 S.W.2d 477, 480 (Tex.Civ.App.—Tyler 1971, writ ref’d n.r.e.). In this particular instance, the trial court’s division of community property could be based solely upon the difference in earning capacities of the parties as set out in the findings of fact.

We think the property division in this case falls within the language of the Texas Supreme Court as set out in Bell v. Bell, 513 S.W.2d 20 (Tex.1974), at page 22:

" . . . Texas courts have held that such division does not have to be equal, and appellate courts have held it must be presumed that the trial court exercised its discretion properly, and that a case should be reversed only where there is a clear abuse of discretion. . . . It is well established that Texas divorce courts are given wide discretion in making division of the property of the parties. That discretion will not be disturbed on appeal unless the court has clearly abused its discretion. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1928).”

As we view the record, appellant has failed to discharge his burden showing that the court’s order dividing the property was manifestly unjust or unfair or that there is a flagrant abuse of discretion to such an extent that the order should be set aside. Williams v. Williams, 537 S.W.2d 107, 111 (Tex.Civ.App.—Tyler 1976, n.w.h.). Appellant’s first and second points of error are overruled.

The appellant asserts in his third point of error that the trial court erred in setting the amount of child support at $400.00 per month. The setting of the amount of child support is a matter in the sound discretion of the trial court. Dennis v. Dennis, 512 S.W.2d 699, 701 (Tex.Civ.App.—Tyler 1974, n.w.h.); Schwartz v. Jacob, 394 S.W.2d 15 (Tex.Civ.App.—Houston 1965, writ ref’d n.r.e.); Madden v. Madden, 365 S.W.2d 427 (Tex.Civ.App.—Fort Worth 1963, n.w.h.). The fact that a trial judge may exercise his discretional authority in a matter differently than an appellate judge would have done under similar circumstances does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959). After reviewing the entire record, we cannot agree that the trial court abused its discretion in setting the amount of child support payments. Appellant’s third point of error is overruled.

The appellee’s cross-point of error is overruled as being without merit.

The judgment of the trial court is affirmed.

      . The $37,467.00 figure is mathematically incorrect in the brief and should read $37,187.10.

      . The $14,401.97 figure is mathematically incorrect in the brief and should read $14,122.07.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. Don L. BAKER, Appellee.
    No. 12644.
    Court of Civil Appeals of Texas, Austin.
    Dec. 7, 1977.
    Rehearing Denied Dec. 21, 1977.

      Davis Grant, Gen. Counsel, Robert C. Bass, Jr., Asst, to Gen. Counsel, State Bar of Texas, Austin, for appellant.
    Bob Gibbins, Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for ap-pellee.
   PER CURIAM.

This is the second appeal brought by the Grievance Committee for State Bar District Number Nine in this disbarment proceeding. The first appeal is reported in State v. Baker, 539 S.W.2d 367 (Tex.Civ.App.1976, writ ref’d n. r. e.).

In the first proceeding, the trial court entered judgment on a jury verdict exonerating appellee from all charges of professional misconduct except for a violation of Disciplinary Rule 5-107 (Avoiding Influence by Others Than the Client). For this violation the court entered a judgment of reprimand against appellee. On appeal this Court reversed the judgment and remanded the cause to the district court to consider, in its discretion, the assessment of punishment against appellee for additional violations of Rules 5-103 and 7-101(A)(3), citing State v. Ingram, 511 S.W.2d 252 (Tex.1974), and Smith v. State, 490 S.W.2d 902 (Tex.Civ.App.1972, writ ref’d n. r. e.).

Upon remand the trial court entered a judgment reprimanding appellee for each of the two additional violations relating to appellant’s course of conduct from which judgment appellant has duly perfected this appeal.

Appellant is before us on a single point of error to the effect that the trial court, upon remand for an assessment of the measure of discipline pursuant to the mandate of this Court in the former appeal, abused its discretion and erred by merely reprimanding appellee for each of the two violations of the Code of Professional Responsibility found, as a matter of law, by this Court.

We must overrule this point and affirm the judgment of the trial court.

The facts of this case and our previous holding thereupon are fully set out in State v. Baker, supra. In remanding that case to the trial court, we pointed out that although the additional violations had been established under the facts pertinent thereto as a matter of law, punishment therefor was within the discretion of the trial court, citing State v. Ingram, supra, and Smith v. State, supra. The court has exercised its discretion in this matter and, in our judgment, we are bound thereby.

Nor do we believe that the court has abused this discretion under the law of this state as it is presently construed. Appellant concedes that there is little authority in Texas concerning a trial court’s abuse of discretion in assessing the measure of discipline in a grievance proceeding; however, the Supreme Court in State v. Ingram, supra, held that the trial court did not abuse its discretion in refusing to order disbarment and merely ordering a three-year suspension from practice when the unchallenged facts found by the court established professional misconduct that would render disbarment compulsory under criminal process. We note that there was a strong dissenting opinion in Ingram ; however, if any changes are to be brought about in this regard, an intermediate appellate court is not the proper forum in which to effectuate them.

The Supreme Court has also held that the mere fact or circumstances that a trial judge may decide a matter within his discretionary power in a manner different from what an appellate judge would decide if placed in a similar circumstance does not demonstrate that an abuse of discretion has occurred. It has also been repeatedly held in this state that the abuse of discretion to justify interference by an appellate court with the exercise of the discretionary power by a trial court, implies more than an error of judgment.

It is apparent from the record before us that the trial court, in good faith and using its best considered judgment, fit the punishment to the offenses before it, thus leaving this Court no alternative but to affirm this judgment.

Affirmed.

      . Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290 (1959).

      . Johnson v. City of Richardson, 206 S.W.2d 98 (Tex.Civ.App.1947, no writ); Grayson County v. Harrell, 202 S.W. 160 (Tex.Civ.App.1918, writ ref'd); County School Trustees of Callahan County v. District Trustees of District No. 15, 192 S.W.2d 891 (Tex.Civ.App.1946, writ ref'd n. r. e.).


author: STEPHENSON, Justice.

text:
    Julius Victor NEWMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    Jack Emory Farley, Public Defender, Mark A. Posnansky, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

Julius Victor Newman was indicted for the offense of first-degree robbery, KRS 515.020, carrying a concealed deadly weapon, KRS 527.020, and persistent felony offender, KRS 532.080.

On the trial of the case, the jury found Newman guilty of first-degree robbery and fixed his punishment at twenty years’ confinement. On the second stage of the bifurcated trial, the jury found Newman guilty of being a persistent felony offender and fixed his punishment at life imprisonment. The trial court sentenced Newman to life imprisonment in accordance with the jury verdict.

The trial court granted a severance on the charge of carrying a concealed deadly weapon as requested by Newman.

The series of events culminating in Newman’s trial and conviction commenced when police officers on a routine patrol were checking automobiles around a garage where there had been an incident of an unspecified nature previously. A routine check of a license tag revealed that the license tag did not match the automobile to which it was attached. Newman, who was at the garage, identified himself as the owner of the automobile. A police officer testified that as they approached the building Newman appeared to be trying to make himself less conspicuous to the officers. The police officers read the Miranda rights to Newman, questioned him, searched him finding a .38-caliber pistol on his person, then placed him under arrest. The officer testified that Newman was evasive in answering questions as to his identity. He further testified that in a situation such as presented here arrest was standard procedure in the absence of a reasonable explanation for the license tag and the automobile not matching.

The pistol found on Newman was later identified as the pistol used in a robbery and the victim identified Newman as the perpetrator. Newman’s defense was an alibi and that he had never seen the victim before the trial. Four previous convictions of robbery and armed robbery were used by the Commonwealth at the trial of the principal offense for impeachment purposes. These convictions were again introduced by the Commonwealth during the course of the second stage of the trial for the purpose of proving the persistent felony offense.

At the trial, Newman did not object to the introduction of the pistol into evidence; but, on motion for a directed verdict he argued there was a lack of probable cause for the arrest. On appeal this argument is extended. Newman now argues that the search for the pistol was an unreasonable search and seizure in that there was no probable cause for the arrest. Newman relies on Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968), a “stop and frisk” situation. Insofar as we can ascertain from Newman’s brief, this entire argument is based on the fact that after the pistol was discovered there were no charges made with respect to the mismatch of the license tag and the automobile and that the more serious charges were developed against him. We do not perceive this to be a “stop and frisk” situation and do not regard Terry as applicable here. We are of the opinion that the police officer had probable cause to place Newman under arrest for the mismatch of the license tag and the automobile. In a situation as here one example comes to mind, that is, it would not be unreasonable for the police officer to suspect a stolen automobile. There is no explanation in the record as to the reason for the license tag not matching the automobile. We do not consider this as necessary in view of the development into the charges resulting in Newman’s conviction. We know of no rule of law which would require charging Newman with an offense growing out of the mismatch between the license tag and the automobile, which gave rise to the probable cause to arrest. In our view, there was probable cause to make an arrest. With probable cause to arrest, it follows that a search of the person is not unreasonable.

The other issues presented on this appeal do not merit discussion.

The judgment is affirmed.

All concur.


author: HAYES, Judge:

text:
    John McD. ROSS, Commissioner, Department of Revenue, Commonwealth of Kentucky, and James T. Lansden, Chairman, Earl R. Searcy, L. C. Coffey, Members, Kentucky Board of Tax Appeals, Commonwealth of Kentucky, Appellants, v. GREENE AND WEBB LUMBER COMPANY, INC., Appellee.
    Court of Appeals of Kentucky.
    April 1, 1977.
    As Modified On Denial of Rehearing July 8, 1977.
    Discretionary Review Granted Oct. 24, 1977.

      William S. Riley, Asst. Atty. Gen., Ky. Dept, of Revenue, Frankfort, Glenn McDonald, Louisville, for appellants.
    Ronald G. Polly, Polly, Craft & Asher, Whitesburg, for appellee.
    Before GANT, HAYES and VANCE, JJ.
   HAYES, Judge:

The appellant, Kentucky Department of Revenue, assessed appellee, Greene and Webb Lumber Company, Inc., $5,438.40 in sales and use tax under KRS 139.170. The assessment was based on the appellee’s purchase of certain items of equipment which the Department of Revenue contends do not qualify for exemption as machinery for new and expanded industry under KRS 139.480(8) and KRS 139.170.

Appellee is a Kentucky corporation conducting its business in Letcher County, Kentucky, as a sawmill and lumber yard. Some twenty-nine pieces of equipment were installed or used by the appellee in its business during the years, 1967, 1968 and 1969. Two items, an 120 volt guide line single block line attachment and some magnetic starters and breakers, were determined by the Board of Tax Appeals to be exempt from the sales and usage tax and therefore are not in contention here. Of the remaining twenty-seven items, the Letcher County Circuit Court found fifteen items exempt. The Kentucky Department of Revenue appeals from that finding.

The only testimony before the trial court was from Mr. Ivan Greene, owner. He listed the items in controversy and explained each as follows:

ITEM USE
2. Pettybone Fork Lift “. . . used to supply the mill with logs. Separates the logs on the yard and sends them to the mill.”
3. Caterpillar 950 Wheel Loader “Used to supply logs to mill.”
4. Slab Conveyor Used to remove “waste from debarking machine to burner.”
ITEM USE
5. 2 Saw-Single Belt Tailer Portable saw used to saw logs.
13. Air Compressor Supplies air to operate the carriage of the logs to the debarker.
15. Main Dust Chain “. . conveys the dust into the conveyor that conveys it onto the burner.”
16. Conveyor Under Debarker “Conveys waste into same channel which goes to refuse burner.”
17. Dust Conveyor “Conveys waste to the burner.”
18. Dust Conveyor “Conveys waste to the burner.”
20. 40' Industrial Burner “Refuse burner which some of Conveyors carry waste to.”
21. Conveyor for Refuse Disposal “Main conveyor which takes waste to the refuse burner. The smaller ones mentioned are lines into this main refuse disposal.”
22. Hanchett Filing Room Equipment “Saw sharpening equipment.”
24. Knife Grinder & Wheel Dresser “Sharpens the chipper knives that chip the slabs into pulp for the paper mills.”
28. Clark Highlift Truck and 29. Fork Lift Truck “Removes the lumber when it is taken off the chain, piled in compact piles on little trolley buggies. These lifts remove the lumber, stack it into the stacking shed to be stacked in proper piles, they carry the lumber onto the yard.”

Greene’s testimony revealed that the operation of the sawmill begins with the movement of logs from the yard stacks to a conveyor moving onto the debarker. The logs are squared and the slabs are conveyed to a chipper, which produces pulp chips. The squared logs are rough sawed and stacked for drying. Bark, unused slabs and dust are conveyed to a burner for disposal. Maintenance and repair of saws, chippers and equipment assures a continuous operation of the mill.

We believe that this sawmill operation is a “manufacturing process” as defined in Commonwealth ex rel. Luckett v. WLEX-TV, Inc., Ky., 438 S.W.2d 520 (1969), and the appellant does not contend otherwise. The appellant argues that these items of machinery and equipment are not used directly in the manufacturing process under KRS 139.480(8) and therefore, are not exempt from the tax under KRS 139.170. We disagree and affirm the lower court’s judgment.

In Schenley Distillers Inc. v. Commonwealth ex rel. Luckett, Ky., 467 S.W.2d 598 (1971), the court formulated the “integrated plant” theory in determining when the manufacturing process begins and when it ends. Applying the theory of Schenley, which concerned the bottling of whiskey, to the processing of logs to usable lumber, this court concludes that all the machinery in dispute in this case is “machinery used directly in the manufacturing process” within the meaning of KRS 139.480(8). The beginning product is a log and the end product is marketable rough-sawed lumber or pulp and the entire process occurs on the sawmill yard.

The judgment is affirmed.

All concur.


author: COOPER, Judge.

text:
    DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellant, v. STATE CONTRACTING AND STONE COMPANY, INC., Appellee.
    Court of Appeals of Kentucky.
    July 22, 1977.
    Discretionary Review Granted Nov. 14, 1977.
    William S. Riley, Asst. Atty. Gen., Dept, of Revenue, William P. Sturm, Legal Staff, Dept, of Revenue, Frankfort, for appellant.
    Clarence Bartlett, Bartlett, McCarroll & Nunley, Owensboro, for appellee.
    Before COOPER, LESTER and WHITE, JJ.
   COOPER, Judge.

This is an appeal from a judgment of the Ohio Circuit Court overruling an order of the Kentucky Board of Tax Appeals which affirmed a ruling of the Kentucky Department of Revenue assessing additional sales and use taxes against the appellee, State Contracting and Stone Company, Inc., in the amount of $8,688.86, excluding interest, for the audit period of January 1, 1970, through December 31, 1973.

There are three (3) items in controversy as follows:

1. One Model A-2250 Hot Storage Bin consisting of:
(a) Hot storage bin
(b) Service stairway
(c) Bin insulation and exterior siding
(d) Bin heat coils and blending and homogenizing units
(e) Temperature indicator
(f) ABC electronic truck loading facility
2. Pollution Control Unit, and being: A system of specially designed piping consisting of main and numerous laterals, each lateral containing jets, having a pump, an integral part thereof, which pumps water through the system along with properly proportioned chemicals required in pollution control system.
3. Loader and being: An item of machinery, a wheel propelled piece of machinery, with bucket on front end, the control of which is caused and regulated by and through hydraulic appliances, a built-in portion of the aforementioned loader; the loader being used to transport limestone aggregate from stockpiles and occasionally from pit and to dump such material into the asphalt mixing plant for further processing.

The issues are (1) whether State Contracting and Stone Company, Inc. qualifies for a tax exemption under KRS 139.480(4) and KRS 139.170 as, “ . . . machinery for new and expanded industry that is used directly in the manufacturing process, which is incorporated for the first time into the plant facilities established in this state, and which does not replace machinery in such plants”, and (2) whether there was lack of substantial evidence to support the Board’s decision that the equipment in controversy is not used directly in the manufacturing process.

It appears from the record in this case that in the storage bin the manufacturing process is concluded.

When the bituminous substance leaves the preliminary mixing plant it consists of limestone rock, some being coarse particles and some of it fine particles which segregate, with the large particles of rock coming to rest on the outside of the bin and the fine particles to the middle. Particular note is taken of these questions on cross-examination and the answers thereto in the hearing before the Board of Tax Appeals:

“Q. What happens to the asphalt in the holding bins? Is it held there until it’s ready to be weighed and put into a truck?
A. Yes, it’s homogenized and the temperature stabilized and—
Q. What do you mean by homogenized?
A. Well, in the operation of an asphalt plant, you have a, you don’t have a constant temperature, you would like to have, but it’s difficult to maintain a constant temperature of the mixed (sic), it if’s dumped directly into the truck.”

The bin in controversy contains blending units. There are baffles in the bins which are used for cross blending as the material flows out of the bin into the truck.

Mr. Dean McClatchey, the only witness who testified in the case, was asked this question and made this answer:

“Q. What would happen if you did have this blending unit? What would happen to the asphalt? (Of course, the word ‘not’ is left out of the question)
A. It would not meet any uniform grade issuance and temperature. As the asphalt is dumped into the bin, the coarser particles have a tendency to segregate to the outside of the load and the bin, and the fine particles to the middle.”

And this question and answer:

“Q. Why did you decide to install the hot mix storage bins in controversy?
A. Well, ... It makes a better mix, a more workable mix . . ”

The trial court held that said Board’s Findings of Fact relating to said bin are not supported by substantial or any evidence and, therefore, do not support the Board’s order, decision or award; and it is ordered that same be reversed, set aside and held for naught. The trial court also held that said bin involved is exempt from the Kentucky Sales and Use Tax, being machinery for new and expanded industry and “directly used in the manufacturing process.”

We agree with the trial court.

In Schenley Distillers, Inc. v. Commonwealth ex rel. Luckett, Ky., 467 S.W.2d 598 (1971), the court held that maintenance materials which are essential to the manufacturing process are “used directly” in the manufacturing process and, therefore, are exempt from sales and use tax.

The Board contends that the pollution control equipment is not exempt, even though it is mandatorily required by state and federal regulations before the plant can be operated.

The trial court found that the pollution control equipment involved is exempt from the Kentucky Sales and Use Tax because without the pollution control system, the asphalt bituminous product cannot be manufactured at all, and for that reason it is “directly involved in the manufacturing process”.

We agree with the trial court.

The Board found that the scoop loader was taxable.

Mr. McClatchey testified the scoop loader spent 80% of its time loading limestone into trucks for use by appellant and its customers. We disagree with appellant’s argument that Schenley Distillers, supra, is in point here. We think the Kentucky Supreme Court’s recent decision in Department of Revenue v. Indian Head Mining Co., Inc., Ky., 534 S.W.2d 805 (1976) is controlling. The controversy in Indian Head, supra, centered around a wheel loader the function of which was to load coal as it came from the mine into trucks for transportation to the tipple. The Court stated:

The processing of coal following its extraction from the earth has been categorically held not to be manufacturing. It is inescapable that neither can the mere physical transfer of material from one place to another in the course of a non-manufacturing process be itself called “manufacturing”. (Emphasis added)

Since the scoop loader here functions similarly to the wheel loader in Indian Head, supra, in that both machines were used primarily for the “physical transfer of material from one place to another”, we conclude the scoop loader is taxable.

The trial court found the scoop loader to be exempt from taxation for the reason it is “directly involved in the manufacturing process”.

We disagree with the trial court for reasons above stated.

It is our opinion that the trial court should be affirmed as to the storage bin and the pollution control equipment, and reversed as to the scoop loader.

The judgment is affirmed in part and reversed in part and remanded to the trial court to direct the Board for findings not inconsistent with this opinion.

All concur.


author: HOWARD, Judge.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Kling Company, and Aetna Life and Casualty Insurance Company, Appellants, v. Carolyn WEINBERGER, widow of Maxwell S. Weinberger, and the Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 21, 1977.
    Rehearing Denied Dec. 16, 1977.

      Gemma M. Harding, Deputy Gen. Counsel, Dept, of Labor, Louisville, for appellant, James R. Yocom.
    Stuart E. Alexander, Louisville, for appellants, Kling Co. & Aetna Life & Cas.
    William Kiel, Louisville, for appellee, Carolyn Weinberger.
    Before MARTIN, C. J., and COOPER and HOWARD, JJ.
   HOWARD, Judge.

This is an appeal from the Jefferson Circuit Court which affirmed the Award and Order of the Kentucky Workmen’s Compensation Board which found that the death of Maxwell S. Weinberger was the result of a “fortuitous unexpected injury traceable to the work by virtue of it having occurred in the course of his employment” and apportioned the award paid to plaintiff-appellee, Carolyn Weinberger, as follows: a) 10% to be recovered from defendant-appellant, Kling Company, and b) 90% to be recovered from defendant-appellant, The Special Fund.

Maxwell S. Weinberger, deceased (hereinafter referred to as Weinberger), was a buyer-salesman for the defendant-appellant, Kling Company (hereinafter referred to as the Kling Company), when he suffered a fatal heart attack on June 8,1973. Wein-berger had been an employee for the Kling Company for some twenty-five years. Following a heart attack in 1966, Weinberger had been off work eight months and had returned to work for the Kling Company with a 90 percent reduction in his work activities. He had been under constant medical care, consisting of check-ups, prescription of an anticoagulant, restricted diet, and an exercise program.

Since his heart attack in 1966, part of Weinberger’s job was to twice yearly update a portion of a catalogue and prepare for a showing of those items handled by the Kling Company. During the week prior to his death, he had been preparing for the Christmas show and catalogue. Plaintiff-appellee, Carolyn Weinberger (hereinafter referred to as Mrs. Weinberger), testified that during that week, Weinberger had worked overtime at home, and that to her he seemed to be under a tremendous strain and pressure. Weinberger had 15 pages out of the catalogue to keep up-to-date. The other salesman all had more than 115 pages to keep up-to-date and testified that they did not have to work overtime and that there was no pressure on them at the Kling Company.

Mr. David Kling, vice-president of the Kling Company, testified that he knew We-inberger was working overtime, and further stated that Weinberger was conscientious and a perfectionist. Following Weinber-ger’s explanation to the other employees of the items he was responsible for in the catalogue, he suffered the fatal heart attack.

The Special Fund questions on appeal whether Weinberger’s heart attack was work-related and whether the apportionment for liability of 90% against the Fund and 10% against the Kling Company is supported by the evidence.

In Moore v. Square D Company, Ky., 518 S.W.2d 781 (1975), the court stated at page 783 that:

. medical evidence is not to be exclusively determinative but that the board shall make the factual determination, from the totality of circumstances, of whether there was a work-connected event, means what it appears to say— that medical testimony is not exclusively determinative that there was a work-connected event or was not such an event.

In the present case, as in Moore, supra, the evidence warrants “a finding of a fortuitous unexpected injury traceable to the work by virtue of having occurred in the course of the work.” In addition to the testimony of Mr. Kling and Mrs. Weinber-ger heretofore mentioned, the doctors testified that the stress that Mr. Weinberger was under could have caused the fatal heart attack. The totality of circumstances sustain the Board’s findings that the heart attack was work-connected.

KRS 342.120(l)(a) provides that the Special Fund shall be made a party if “The employee is disabled, whether from . a preexisting disease, or otherwise, and has received a subsequent compensable injury by accident.”

Under subsection (4) of KRS 342.-120, any prior occupational disability attributable to Weinberger’s pre-existing heart disease should have been excluded in determining the percentage of causation for which the Special Fund was liable when the fatal heart attack occurred. Young v. Campbell, Ky., 459 S.W.2d 781 (1970); Yocom v. Spalding, Ky., 547 S.W.2d 442 (1977); Yocom v. Reid, Ky.App., 24 Ky.L.Summ. 9 (June 17, .1977). In light of the advanced stage of Weinberger’s pre-existing heart disease, it is difficult to see how the Board could have avoided finding that there was prior functional impairment and occupational disability after Weinberger’s 1966 heart attack. Nevertheless, this issue was never presented to the Board. At no time did the Special Fund claim that there was prior occupational disability which was non-com-pensable under KRS 342.120(4). The Special Fund argued only that the apportionment should be divided half for it and half for the Kling Company.

The Workmen’s Compensation Board apportioned 90% of the award against the Special Fund because of Weinberger’s preexisting heart condition. There is evidence in the record to support this apportionment since a vice-president of the Kling Company testified that Weinberger’s workload had been reduced by 90% following his 1966 heart attack. We cannot say that the Board’s finding was “clearly erroneous.” CR 52.01.

The judgment of the trial court is affirmed.

All concur.


author: GANT, Judge.

text:
    Jewell TURNER, Delores J. Rickard, John Anthony, and David L. Cullen, Appellants, v. Wayne COLE, Judy Green, Chris Villines, Ralph Duncan, Townes Summers, Martin Boswell, Charles McDowell and City of Providence, Webster County, Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Dec. 2, 1977.

      Steve P. Robey, Providence, for appellants.
    Aubrey R. Mooney, Chandler & Mooney, Providence, for appellees.
    Before GANT, VANCE and WILHOIT, JJ.
   GANT, Judge.

Appellant, Jewell Turner, was the Chief of Police in Providence, Kentucky, a city of the fourth class, having been appointed to fill out the unexpired term of his resigned predecessor. On October 27, 1975, the “lame duck” city council enacted an ordinance adopting the provisions of “Sections 90.310 to 90.410 of the Kentucky Revised Statutes” and applying them to “all employees in the Police and Fire Departments of the City of Providence except as specifically included (sic) from time to time.” A civil service commission was created, its members sworn in, but no pension fund was created nor was any tax levied or provided for. On December 22,1975, the same “lame duck” council “voted” to include all other departments of the city under Civil Service but did not enact an ordinance to that effect. On January 5, 1976, a new council was in office and voted to repeal the ordinance of October 27, 1975, and did not rehire the appellant but hired a new Police Chief, one Raymond Ray. This action was filed by appellant seeking restoration to his position as Chief of Police, which was denied by the Webster Circuit Court in a summary judgment. In that action, a motion to intervene was filed by two members of the Civil Service Commission, Delores J. Rickard and John Anthony, and by a city employee who was not a member of the police or fire department, David L. Cullen. This motion was denied.

There are four questions presented to this Court. The first is whether a city of the fourth class can adopt the provisions of KRS 90.300 to KRS 90.420 and apply them to police and fire departments. Those particular sections include KRS 90.300(2) which provides:

The provisions of KRS 90.310 to KRS 90.410 are independent of and do not affect the laws governing the police and fire departments, nor their pension funds, in cities of the second and third classes.

The conflict occurs when we consider KRS 95.761, which section is contained under the chapter entitled “City Police and Fire Departments” and states in pertinent part as follows:

(1) Any city of the fourth or fifth class which has now, or in which there may be hereafter established a regular police or fire department in the future, may by ordinance create a civil service commission, whose duties shall be to hold examinations as to the qualifications of applicants for employment within the police or fire departments.
* * * * * *
(3) A city of the fourth or fifth class is authorized to adopt the provisions of KRS 90.300 to 90.420 governing civil service, the same as a city of the third class.

Thus we have one provision which says that cities of the fourth and fifth class have the same rights concerning the civil service commission statute as a city of the third class and another statute stating that a city of the third class cannot apply those sections to a police or fire Department. The question presented is one of statutory construction. The courts have long held that “where two statutes seemingly conflict, courts must harmonize them and give them such construction as will give effect to each if possible.” General Motors Acceptance Corporation v. Shuey, 243 Ky. 74, 47 S.W.2d 968 (1932); Tubbs v. Commonwealth, 248 Ky. 24, 58 S.W.2d 236 (1933); Lewis v. Moseley, 215 Ky. 573, 286 S.W. 793 (1926). In Louisville Railway Company v. Dugan, 179 Ky. 825, 201 S.W. 324 (1918), it was said: “An often invoked rule of construction, where two acts or sections of the statutes appear to conflict, requires that each section or act shall be given meaning which will most completely effectuate the legislative intention without running counter to the other, thus harmonizing and bringing the two into a consistent whole.”

The provisions of KRS 90.300 to 90.420 set out the means of creating a civil service commission. It includes the method of passing an ordinance, the method for appointment of members by the mayor, the terms of office of the members, etc. KRS 95.761(1) granted to cities of the fourth or fifth class the right to create a civil service commission but made no provision for the steps as set out in KRS 90.300 to 90.420. Without provisions for the method of appointment and terms of office there could hardly be a commission set up to “hold examinations as to the qualifications of applicants for employment within the police or fire departments.” The statutes are quite different relating to cities of the second and third class. In those two classes of cities, the examinations are conducted by the legislative body and thus there is no necessity for establishing a civil service commission for that purpose. Another indication of legislative intent is clearly shown by an examination of KRS 95.762, which provides in Paragraph (1): “The commission shall require all applicants for appointment as members of the police and fire departments to be examined as to their qualifications . . . ”

Thus, it is the opinion of this Court that the exclusionary provisions of KRS 90.-300(2) are not applicable to cities of the fourth and fifth class and that the ordinance adopted October 27, 1975, was valid and applied to all employees of the police' and fire departments of the City of Providence. In this respect, the judgment of the lower court is reversed.

The second question presented to the Court is whether the ordinance could be repealed by the action of the “new council” of January 5,1976. KRS 95.761(4) provides as follows:

The legislative body of the city of the fourth or fifth class after adoption of the provisions of KRS 95.520 to 95.620 relating to a policemen’s and firemen’s pension plan or KRS 90.300 to 90.420 relating to a civil service, may not revoke, rescind or repeal these adoptions.

It is our opinion that the statute is quite clear. Whether the fourth class city provided for civil service by the establishment of a commission or provided for a pension plan pursuant to other sections of the statute, these provisions, once adopted, cannot be repealed. The judgment of the lower court is therefore reversed in its finding that there was, in fact, a valid repeal of the ordinance.

The next question presented to us is whether the ordinance as adopted applied to the office of chief of police. The ordinance itself, under Sec. 6.6, entitled “Department Employees Under Service,” reads as follows:

The provisions of this chapter and of Sections 90.310 to 90.410 of the Kentucky Revised Statutes shall apply to all employees in the Police and Fire Departments of the City of Providence .

It is our opinion that this does not include the chief of police. Throughout the ordinance, reference is made to only “employees” and never to “officers.” As a matter of fact, the ordinance, in provisions for sick leave, vacation time, official holidays, residency, etc. refers to the fact that the “employee” must obtain permission from or report to his “department head.” The chief of police is the department head for the police department. KRS 95.761(5)(a) provides as follows:

Any of the following offices, positions, and places of employment, in the police and fire departments, may be excluded from the classified service: The chief of police, assistant chief of police, chief of firemen and assistant chief of firemen.

It is the opinion of this Court that the wording of this ordinance relating solely to employees effectively excluded the chief of police therefrom. The Kentucky courts have long recognized a difference between an employee and an officer. See Black v. Sutton, 301 Ky. 247, 191 S.W.2d 407 (1945). The best definition of an officer is contained in City of Lexington v. Thompson, 250 Ky. 96, 100, 61 S.W.2d 1092 (1933). There is no question in our mind that the chief of police is an officer within the standards imposed by the courts and not an employee and was therefore not covered by the civil service ordinance of October 27, 1975, but specifically excluded therefrom. The city council could have included the chief of police by using the phrase “employees or officers” but did not do so. The judgment of the lower court is affirmed in this regard.

The final question coming before the Court concerns itself with the order dismissing the intervenors. Inasmuch as this Court has ruled that the ordinance of October 27, 1975, was valid and that the creation of the civil service commission which follows was also valid, the question is moot insofar as it relates to the appellees Rickard and Anthony. It is our further opinion that the appellee Cullen, a building inspector, did not have any interest in the transaction which was subject to the action, viz., the ordinance relating to policemen and firemen and was therefore not a proper party for intervention. Any ruling of the lower court which affected his rights or implication thereof would be mere dictum and not binding upon him and not determinative of any cause of action which he may have had. We therefore affirm the action of the lower court in dismissing the petition to intervene.

All concur.


author: SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. William ELLIOTT, Appellant.
    No. 59744.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.
    Robert A. Simons, Kansas City, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, for respondent.
   SEILER, Judge.

The state, by information substituted for indictment, charged defendant with assault under § 559.180, RSMo 1969 — specifically, that he did willfully, feloniously, knowingly, on purpose and with malice aforethought, “shoot at Carol A. Medley with a .12 gauge shotgun . . with intent to injure . . . the said Carol A. Medley ...”

Defendant, on this information, was convicted of the felony of shooting into a dwelling and sentenced to two and a half years imprisonment. He appeals, contending that it was error to submit to the jury the crime of shooting into a dwelling as he was not charged with that and it is not a lesser included offense of the crime of assault, and also that the court erred in refusing to submit common assault to the jury.

We agree with the first contention and reverse and remand.

The facts are that defendant and one Dennis Medley and their families lived in the same general residential area. The two men had an argument on the evening of January 2, 1976 over Medley’s having shot defendant’s dog a month or so earlier with a pellet from an air gun. Defendant demanded Medley reimburse him for a $150.00 veterinarian’s bill allegedly incurred in having the dog’s injury treated. Medley refused. Later that evening and continuing into the early morning hours, Medley received a series of telephone calls from defendant, threatening, so Medley said, his life and “to have a contract put out” on him.

Around 5:20 a.m., defendant called and said he was coming over to kill Medley and his family. Defendant admitted making the call but insisted that what he said was “I was going to come by and damage his property”.

After receiving the last telephone call, Mr. Medley went to the rear of the house, to the bathroom window, thinking defendant might approach from the rear, while his wife, Carol Medley, went to the window in the upstairs spare bedroom in the front of the house, next to the bedroom where their small boy was sleeping. It was dark outside. There was no evidence as to whether there were lights on in any part of the Medley house or whether Mrs. Medley could have been or was seen from the street.

Within a few minutes defendant drove past the front of the Medley residence and fired four shots from a .12 gauge shotgun. One and perhaps two shots went through a window in the living room. Another went through the window of the front bedroom, near where Medley’s wife was standing and looking out. The fourth apparently struck the roof. Mrs. Medley was not hit or injured.

Defendant admitted he fired the shots. He said he was drunk and that he had no intention of shooting anyone in the house, that he expected the occupants to be out of the house. Defendant testified he fired two shots in the air and two into the picture window. He denied being “mad” at Mrs. Medley, or that he had threatened her, or that he had any intention of shooting anyone. His explanation of his purpose in shooting out the window was, “I just figured he shot my dog, I’d shoot his window out and be even.”

The state concedes that under two cases, State v. Amsden, 299 S.W.2d 498 (Mo.1957) and State v. Friedman, 398 S.W.2d 37 (Mo.App.1965) shooting into a dwelling is not a lesser included offense of assault with intent to injure or do great bodily harm, but urges us to reconsider that position.

In State v. Amdsen, supra, defendant, in a case where he was convicted of rape, § 559.260, RSMo 1949, complained of the failure to instruct as part of the law of the case on the offense of carnal knowledge of an unmarried female of previously chaste character between the ages of 16 and 18 by a person over the age of 17 years, § 559.300 RSMo 1949. The prosecutrix was 16 and the defendant was 18. The court held there was no error; that there were necessary elements in § 559.300, which were not included in § 559.260. Hence, the lesser was not necessarily included in the greater.

In State v. Friedman, supra, defendant was charged with passing a no account check, § 561.450, RSMo 1959, and convicted of passing an insufficient funds check, under § 561.460, RSMo 1959. One contention by defendant was that the latter was not a lesser included offense of the former. The court agreed, citing State v. Amsden, supra, and pointing out that under § 561.460 it must be alleged both that the drawer knew he had insufficient funds and no credit arrangements with the bank for the payment of such a check. This element of knowledge of lack of funds and credit is an additional element under § 561.460 and hence the court said it followed that a § 561.460 offense is not a necessarily included offense under § 561.450.

The state argues that even though shooting into a dwelling is not a legal element of assault, an assault can be committed by firing a weapon into a dwelling; therefore the offense of firing into a dwelling is necessarily included in the assault charge. This confuses the means of execution with the conduct prohibited and overlooks the fact that the lesser offense requires a shooting into a dwelling, something not required for felonious assault. As we know, Mrs. Medley was not struck by any of defendant’s four shots, but an assault may be committed without a touching or striking. State v. Hawkins, 418 S.W .2d 921, 924 (Mo.banc 1967); State v. Eddy, 199 S.W. 186 (Mo.1917). If the jury had found defendant guilty of a felonious assault upon Mrs. Medley, it would be from his act of intentionally discharging four shots in her direction from close range. The fact that to reach her the shots had to penetrate a dwelling was only incidental to the assault. In State v. Treadway, 558 S.W.2d 646, decided November 10, 1977, this court held that the fact that the crime of first degree robbery is committed by use of a gun does not make its use an element of the crime. The crime was not in using a gun — it was in the taking of property by means of violence or fear, even though the gun was actually a part of the transaction. Id., 652. The same reasoning applies here. The crime of assault was in putting Mrs. Medley in fear of serious injury. When exposed to defendant’s conduct she happened to be inside a dwelling, but that is not an element of assault.

On the state’s theory any crime which defendant committed in making the assault would be a lesser included offense of assault. If the assault consisted of using an automobile without the permission of the owner and driving it into the victim, then tampering with a motor vehicle would be a lesser included offense, and so on. What the state suggests would subject a defendant to being charged with one crime and convicted of another even though the latter was not a lesser included offense of the former. This cannot be done. State v. Billingsley, 465 S.W.2d 569, 570 (Mo.1971).

Defendant’s first contention is sustained.

As to defendant’s second contention — that the court should have given an instruction on common assault — we think it is pointless to discuss the matter because of the operation of § 556.240, RSMo 1969, which, although not mentioned in the briefs, we believe, in the interest of judicial economy, we cannot ignore.

Section 556.240 provides as follows:

“When the defendant shall be acquitted or convicted upon any indictment, he shall not thereafter be tried or convicted of a different degree of the same offense, nor for an attempt to commit the offense charged in the indictment, or any degree thereof, or any offense necessarily included therein, provided he could have been legally convicted of such degree or offense, or attempt to commit the same, under the first indictment.”

Here defendant, as stated, was charged with assault with intent to injure Carol Medley with malice under § 559.180, supra. This charge was submitted to the jury by instruction No. 5 in the form prescribed by MAI-CR 6.22. By the next instruction, instruction No. 6, the jury was instructed on the felony of shooting into a dwelling. The jury found the defendant guilty of the latter offense only. Instruction No. 6 on shooting into a dwelling house commences with these words: “If you do not find the defendant guilty of felonious assault with malice aforethought, you must consider whether he is guilty of shooting into a dwelling house.” It follows, therefore, that the jury acquitted defendant of the assault charge. As common assault is necessarily included in the larger charge of assault with intent to kill with malice and as defendant unquestionably could have been convicted of common assault under an information charging felonious assault, § 556.240 applies and the question of whether the court should have given a common assault instruction becomes moot.

See also State v. Hamlin, 171 S.W.2d 714, 715 (Mo.1943), citing § 4846, RSMo 1939 (now § 556.240, supra) and stating: “One convicted of an offense may not thereafter be tried of any offense necessarily included therein for which he legally could have been convicted under the first indictment.” By the express terms of the statute, the same would be true of one acquitted of the offense, as is the case here. See also State v. Stroemple, 355 Mo. 1147, 1150, 199 S.W.2d 913, 915 (1947) and the constitutional provision against double jeopardy, Mo.Const. Art. I, § 19 (1945); Miller, The Plea of Double Jeopardy in Missouri, 22 Mo.L.Rev. 245, 269 (1957); Scurlock, Basic Principles of the Administration of Justice with Particular Reference to Missouri Law, 44 U.M. K.C. L.Rev. 139, 212 (1975).

The judgment is reversed and the cause is remanded for a new trial on a proper information on' the charge of shooting into a dwelling.

MORGAN, C. J., BARDGETT, HENLEY, DONNELLY and RENDLEN, JJ., and HOUSER, Special Judge, concur.

FINCH, J., not sitting.

      . Sections 562.070 and 546.490, RSMo 1969.

      . Normally, of course, an appeal on grounds such as above would be to the court of appeals, not here, but defendant also appealed on the constitutional ground that the provision of the Missouri constitution giving women the right to be excused is, in the abstract, per se invalid and unconstitutional. In the meantime, the point has been decided against defendant’s position in State v. Duren, 556 S.W.2d 11 (Mo. banc 1977). So we need not pass on that again, but having acquired appellate jurisdiction on a constitutional issue, we will decide the remaining issues. City of St. Louis v. Flynn, 386 S.W.2d 44, 47 (Mo.1975).

      .A snapshot of the upstairs window was a exhibit in evidence. The shotgun pellets went through the window in a concentrated pattern. Obviously, had Mrs. Medley been standing in their path the results would have been disastrous.


author: SEILER, Judge. HENLEY, Judge,

text:
    STATE of Missouri, at the information of Gary W. FLEMING, Prosecuting Attorney, at the relation of Wilbur Alexander, Walter Fricke and Ralph Houchen, Plaintiffs-Appellants, v. Larry ZIMMERSCHIED, Marvin M. C. Keage, Lester Harms, C. A. Stapels, Max Thomas, and H. T. “Bud” Borchers, all members of the Board of Directors of the Sweet Springs Ambulance District, and Robert S. Leftwich, County Collector of Pettis County, Missouri and Russell Whitlock, County Collector of Saline County, Missouri, Defendants-Respondents.
    No. 59575.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.

      M. Craig Cassing, Sedalia, for relators.
    R. L. Alexander, Marshall, for respondents.
   SEILER, Judge.

This case involves an attack by quo war-ranto on the validity of the existence of an ambulance district sought to be organized under provisions of §§ 190.005-085, RSMo Supp, 1975. We have jurisdiction because title to an office under the state is involved, Mo.Const., Art. V, § 3. The trial court entered judgment in favor of respondents.

The attack centers upon the failure to hold a hearing on the date originally set and in failing to include certain information in the notice of hearing.

This is what happened: A petition requesting the creation of an ambulance district was filed with the county court of Saline County on April 30, 1975. Section 190.020-1, supra, requires the county court to set the petition for hearing within not less than 30 nor more than 40 days after the filing and requires publication on three separate occasions in the newspaper, the first such publication to be not less than 20 days prior to the date set for the hearing. Section 190.020-2, supra, requires that the notice is to include a description of the territory as set out in the petition, names of municipalities located therein, name of the proposed district and the question of creating an ambulance district. On May 5,1975, the county court scheduled a public hearing on the petition for June 2, 1975 in Sweet Springs at 7:30 p. m. Apparently no notice was ever published for the proposed hearing to be held on June 2, 1975, nor was any meeting held on that date. However, a public hearing was held in Sweet Springs, in the city hall, on June 25. Notice for the June 25 meeting was published in the Sweet Springs Herald, a weekly newspaper published in Sweet Springs, three times, June 5, 12, and 19, but the notice did not include the description of the territory as set out in the petition nor the names of the municipalities to be included.

Those attending the June 25, 1975 meeting unanimously approved the establishment of the district and called on the county court to conduct and supervise the necessary election. On August 8, 1975 the election was held, proper notice of the same having been given in the Sweet Springs Herald July 3, 10 and 17, 1975. The proposition carried at the election by a comfortable margin, the results were certified to the county court, and a subsequent election was held for the election of directors. The directors organized and have caused taxes to be levied and collected which are now being held in escrow pending determination of the legal existence of the district.

The informants, all Pettis County based, maintain that failure to hold the hearing on' the petition within the prescribed period of not less than 30 nor more than 40 days after the filing of the petition (which would have meant a hearing on some date between May 30 and June 9,1975) is fatal and additionally that the notice which was given by the county court of the public hearing to be held on June 25, 1975 was also fatally deficient because of failure to include in it a description of the territory sought to be annexed or the names of the municipalities included therein. The respondent ambulance district directors, of course, take the position that these deficiencies did not void the proceedings and that the trial court was correct in its finding that the notices of the public hearing were sufficient, that the procedure leading up to and the hearing itself were sufficient, that the other proceedings were in accordance with the statutes and that the defendant Sweet Springs Community Ambulance District was and is a bona fide entity under the law, a body corporate and political subdivision of the state under the aforesaid chapter 190.

Section 190.020.2 provides that, with respect to the notice to be given of the hearing on the petition the first of the three publications “shall” be not less than 20 days prior to the date set for hearing; § 190.-020.1 provides that upon presentation of the petition to the county court the court “shall” set the petition for hearing within not less than 30 days or no more than 40 days after the filing and § 190.020.2 provides that the notice “shall” include a description of the territory as set out in the petition and names of municipalities located therein. The statute says nothing, however, as to the effect of failure to include such material or to comply with the time schedule.

In the case before us, the hearing originally was set for June 2 in Sweet Springs for 7:30 p. m., but no notices were published whatever with respect to that date, nor was any hearing held. At some undisclosed time a hearing was set by the county court for June 25, which was more than 40 days after the filing of the petition. As said, three notices were published for the June 25 hearing, the first of which was, as required, published not less than 20 days prior to the date set for the hearing, but the notices did not include a description of the territory as set forth in the petition nor the names of the municipalities located therein. Subsequently the county court set an election date and there is no dispute but what proper notice was given of the election and that in the election the proposition for establishing the ambulance district carried. There is no indication anyone was prevented from exercising the franchise on account of any departure from statutory provisions mentioned above.

The parties have not cited, nor have we been able to locate, a case precisely in point, but we find it difficult to conclude that it was the intention of the legislature that failure to set the hearing date on the petition not less than 30 nor more than 40 days after filing and failure to include in the notice of the hearing when it was given a description of the territory as set out in the petition and the names of the municipalities therein necessarily means that the entire proceedings are void.

It is difficult to see where any substantial rights depend upon literal compliance with these details. The hearing on the petition was held 56 days after the petition was filed rather than a maximum of 40 days thereafter. The added 16 days did not destroy orderly procedure nor make the petition so stale that circumstances as to the need for or advisability of having an ambulance district would have changed in the meantime. Notice of hearing stated that the hearing would be at the Sweet Springs City Hall and that it would be “on the Sweet Springs and surrounding area proposed ambulance district." Sweet Springs, which is only a few miles from the Saline-Pettis county line, is rather close to the center of the proposed district and contains approximately 35 per cent of the population of the district. It seems to be a reasonable choice for the meeting place, judging from the map of the proposed district filed as an exhibit. The other three towns and villages in the district are within ten to twenty miles of Sweet Springs.

Under the statutes no particular action is required to be taken at the hearing. The statutes do not call for a vote at the hearing and the county court is not bound one way or the other by what the public response is.

The real test comes when the election takes place. In the case before us the notices with respect to the election were in order. Even though the notice of the public hearing in Sweet Springs did not include a description of the territory of the proposed district or the name of the municipalities included therein, the notices of election included both, together with the proposition to be voted upon, form of ballot and list of voting places. The election was held as scheduled. It is the election which determines whether or not there shall be an ambulance district and whether taxes are to be levied.

One of the purposes of the legislature in enacting Chapter 190 was, as is seen from the emergency clause which was part of the original enactment, S.B. 108, 1971 Mo. Laws 236, to meet the “serious and urgent need to create ambulance services in the rural counties due to a reduction of such services by funeral homes and those other persons who have formerly operated such services.” The statute is primarily remedial and enabling in character, making possible that which otherwise there would be no authority to do.

State ex rel. Rogersville Reorganized School District v. Holmes, 363 Mo. 760, 253 S.W.2d 402 (banc 1952) involved statutes with explicit time requirements which were not met. Section 165.673(2), RSMo 1949 required a county board of education to submit a specific plan for initial reorganization of the school districts of the county not later than May 1, 1949. The county board did not submit the Rogersville plan until February 1, 1950, nine months after the statutory deadline.

Section 165.677, RSMo 1949 required that in cases where the state board of education rejected a proposed plan, the county board could nevertheless present its own plan to the voters at the election to be held on the first Tuesday in November, 1949, which would be November 7. But the election in Washington County was held on November 1, 1949. Section 165.693, RSMo 1949 provides that if the plan failed to carry (as it did in Washington County) the board can submit another plan not sooner than one year nor later than two years after the disapproval of the first. Instead, the second election in Washington County was held on November 6, 1951, which was five days beyond the two year limit.

In all these instances, the court held that despite the mandatory provisions of the statutes, the provisions with which relators failed to comply were directory only and did not render invalid their organization and subsequent existence as a legal entity. Portions of the court’s opinion are worthy of quotation here, because of their aptness to the situation before us:

“As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order, and convenience, and neither public nor private rights will be injured or impaired thereby. If the statute is negative in form, or if nothing is stated regarding the consequence of effect of non-compliance, the indication is all the stronger that it should not be considered mandatory” . . .
“For the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory. A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer . . . ”
The object and purpose of the law is to effect a general reorganization of the school districts of this State. It should be liberally construed to the end that its ultimate objective may be attained . And especially should this be done where no contention is made that any public or private right has been impaired or injured by mere tardiness of action.
It is readily apparent that the schedule was placed in the law primarily because the Legislature deemed a general reorganization of the school districts of this State to be of urgent need. But it was the need that prompted the urgency. No suggestion is made that the need became any the less subsequent to expiration of the schedule. Surely, therefore, the legislature did not intend that a belated or tardy compliance with either of these two provisions of the schedule would be construed to defeat the end to be accomplished when both are so clearly intended to expedite rather than to abort the fulfillment of the need. As stated in St. Louis County Court v. Sparks, 10 Mo. 117, 122: “It would be strange if a statute specifying an early day at which an act must be done with a view to its speedy execution, should be construed that the act could not be done at all after the day when the necessity for its performance is as great, if not greater, afterwards than before.”

Id. at 405-06 (citations omitted); see also, State on Inf. Dalton v. Dearing, 364 Mo. 475, 263 S.W.2d 381 (banc 1954), where this court held that the failure of the governor to appoint the nineteenth member of the board of freeholders within the required time of 30 days as required by a constitutional provision, the appointment being made 67 days too late, did not invalidate the legality of the appointment of the board or its actions.

We believe the view we take of the effect of the failure to comply literally with the statutory provisions as to the date set for the initial public hearing and the information to be included in the notice thereof comes closer to the legislative intent in solving this mainly rural problem involving ambulance service than would be a holding that such a failure nullifies all that was done in compliance before and after. We see nothing to indicate that the legislature intended that the penalty for noncompliance in each and every respect with §§ 190.015 and 190.020 should be invalidation of the entire proceedings under the chapter.

We do not believe the failure to abide by statutory provisions here under discussion as to form of the notice of and the date for the hearing on the petition are sufficient to make void the subsequent election conducted in full compliance with the election requirements and the resulting order declaring the organization of the district and the election of the directors, or the levying and collecting of the taxes. The judgment of the trial court is therefore affirmed and the trial court is directed to act accordingly with respect to the tax revenues being held in escrow.

MORGAN, C. J., and BARDGETT, FINCH and RENDLEN, JJ., concur.

HENLEY, J., dissents in separate dissenting opinion filed.

DONNELLY, J., dissents and concurs in separate dissenting opinion of HENLEY, J.

HENLEY, Judge,

dissenting.

I respectfully dissent for the following reasons.

The Ambulance District Law, enacted in 1971, provides that persons owning property in an area sought to be incorporated as an ambulance district be given notice that a hearing will be held by the county court at a certain time and place. The purpose of the hearing is to determine the sufficiency of the petition and whether the territory and the proceedings meet the requirements of the law. Sections 190.020 and 190.030. Subsection 2 of § 190.020 requires that “[t]his notice shall include a description of the territory as set out'in the petition, [and] names of municipalities located therein * * *.” It is admitted that the notice published did not meet either of these requirements.

The purpose of the requirement that the notice describe the territory proposed to be incorporated was to inform those who had property therein, those whose pocketbooks would be affected thereby, that they might appear on the day assigned to contest the granting of the petition or the inclusion of part or all of their lands. Without a description of the territory, those who would bear the tax necessary to support the district would not have the notice the law requires, nor the knowledge the notice was designed to impart, i. e., that they were the persons the notice was intended to identify and reach with the message they had a right to appear and to be heard. In this respect, the notice published was fatally defective.

In State ex rel. Major, Atty. Gen. v. Wood et al., 233 Mo. 357, 135 S.W. 932 (banc 1911) this court held the county court of St. Louis county (an administrative body) was without jurisdiction to incorporate the city of Wellston, because the incorporating petition was fatally defective. 135 S.W. at 936. What was said by the court (135 S.W. at 935) regarding the effect on jurisdiction of the county court of a fatally defective petition is applicable by analogy to the notice published in this case:

“The petitioners go into a court of limited and inferior jurisdiction and invoke a high statutory power granted to that court to be used only on the strict condition precedent thát a petition be presented of the character prescribed by the same statute. In such case, the rules are: (1) That where a statute creates a right and provides a remedy, as here, the remedy so provided is preclu-sive and must be followed. State ex rel. v. Trust Co., 209 Mo. [472], loc. cit. 493, 108 S.W. 97; Clark v. Railroad, 219 Mo. [524], loc. cit. 538, 539, 118 S.W. 40. (2) That on direct attack, as here, presumptions are not indulged to support or eke out the jurisdiction of courts of inferior and limited jurisdiction (these not proceeding according to the course of the common law), but their jurisdiction must affirmatively appear on the face of their proceedings. State ex rel. v. Wilson, 216 Mo. [215], loc. cit. 277, 115 S.W. 549.

“We have no call to read anything of substance out of that statute that the lawmaker has taken the pains to put into it, or read anything into it that he has taken pains to leave out of it. In clear words he has said what the petition shall set forth, and for what it shall pray. The commands of the statute are simple and few. They lay out a straight and narrow road to follow. Prosperous and happy is he who walks therein, for obedience to those commands is a jurisdictional requirement.” See also: State ex rel. Attorney General, at relation of Bales et al. v. Hyde et al., 2 S.W.2d 212, 215[5, 6] (Mo.App.1928).

I would hold that the failure of the published notice to describe the territory sought to be incorporated imparted no notice to the persons the statute required that it reach; that for this reason the county court did not have jurisdiction of the person of these owners (the absence of which is apparent from the face of the record) and, therefore, was without jurisdiction to sustain the petition and call an election.

      . Under Sec. 190.010, supra, an ambulance district may cross county lines. The district before us consists of territory in Saline and Pettis counties. About three-fourths of the territory lies in Saline County and includes the towns of Sweet Springs, Blackburn and Mt. Leonard. The remainder lies in Pettis County and includes the town of Houstonia. Sweet Springs, with a 1970 population of 1,716, is by far the largest of the four towns or villages.
      Under Sec. 190.015, supra, where the proposed ambulance district crosses county lines, the petition is required to be filed with the county clerk of the county “in which the greater part of the area is situated.” In the case before us, this is Saline County.

      . No contention is made that the Sweet Springs Herald does not qualify as a newspaper qualified to publish legal notices under Sec. 493.050, RSMo 1969. Under Sec. 190.020-2, supra, the newspaper selected must have “a general circulation within the territory proposed to be incorporated as an ambulance district.” Judging from the newspaper guide published in the 1975-76 Official State Manual, the Sweet Springs Herald is the only newspaper published in the proposed area.

      . The June 25, 1975 hearing was set for Sweet Springs, at 7:30 p. m., in the city hall.

      . Section 190.035 gives an ambulance district power to levy a property tax not to exceed 15 cents on the $100.00 valuation.

      . The early opinion of State ex rel. Major v. Wood, 233 Mo. 357, 135 S.W. 932 (banc 1911), relied upon by the dissent, is distinguishable. There the statute, § 8529, RSMo 1909, required that the county court declare a city incorporated upon presentation of a valid petition signed by a majority of the inhabitants of the proposed city. No vote of the people was required as a prerequisite to incorporation. Said petition being found invalid, the county court was clearly without jurisdiction to declare the municipal incorporation. Under that statute the petition was the singular device of public approbation of the proposed incorporation. Such is not the case here. The county court called a hearing for which notice was published. There the assemblage gave unanimous approval to the establishment of the district; a subsequent election, proper public notice in all respects having been given, resulted in a second round of community approval. An election of directors followed. Thus the crucial importance of the original petition is not a factor here, and the appealing psalmistry of Lamm, J. in Major,

        supra, is not applicable. Here, additionally, rather than seek to enjoin the election which they now insist was ordered without jurisdiction, as they could have done if their position were correct, Wann v. Reorganized School Dist. No. 6, 293 S.W.2d 408 (Mo.1956); Baum v. City of St. Louis, 343 Mo. 738, 123 S.W.2d 48 (1939), relators have waited until after the election results were against them to protest.

      . Sections 190.005 to 190.085, RSMo Supp. 1971.


author: FINCH, Judge.

text:
    Vernell McGEE, Respondent, v. ST. FRANCOIS COUNTY SAVINGS AND LOAN ASSOCIATION et al., Appellants.
    No. 60314.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.

      Geoffrey L. Pratte, Farmington, for appellants.
    Eric C. Harris, Flat River, for respondent.
   FINCH, Judge.

This is an appeal by defendants from a judgment which determined that plaintiff as surviving joint tenant was the owner of two savings certificates issued by the St. Francois Savings and Loan Association (hereinafter S & L). The Court of Appeals, St. Louis District, reversed and remanded with directions to enter judgment that the certificates were the property of the estate of Walter McGee. One of the participating judges concluded that the majority opinion is contrary to the decision of this court in the case of In re Estate of LaGarce, 487 S.W.2d 493 (Mo. banc 1972), and requested transfer of the case to this court pursuant to Mo.Const., art. V, § 10. We now decide it as though here on direct appeal. We reverse and remand with directions.

The facts are undisputed because the case was tried on a stipulation of facts. Prior to February 11, 1974, Walter McGee owned certificate No. 207 for $2,000 issued by S & L. It had been issued originally in the names of Walter McGee and his wife. At her death in September 1973, S & L, at McGee’s request, simply lined through her name so that the certificate stood in the name of Walter McGee, the surviving spouse. Walter McGee also owned a savings certificate for $18,000 which was renewable on February 11, 1974. On that date McGee presented that certificate and received a renewal certificate, No. 964, which listed him as sole owner.

Sometime later during the day on February 11,1974, Walter McGee brought certificates 207 and 964 to S & L and requested that the name of Vernell McGee, his nephew, be added as joint tenant with right of survivorship. Pursuant to that request the officers and agents of S & L added “Vernell McGee 2/11/74” to certificate No. 207 and stamped thereon the words “as joint tenants with right of survivorship and not as tenants in common.” In addition, “Vernell McGee” was added to S & L’s account card and a new signature card was signed by both Walter and Vernell McGee. On certificate No. 964 they added “and Bernell McGee” and stamped the words “as joint tenants with right of survivorship and not as tenants in common.” At the same time the words “and Vernell McGee” and “as joint tenants with right of survivorship and not as tenants in common” were added to S & L’s account card and both Walter McGee and Vernell McGee signed a new signature card.

On March 7, 1974, Walter McGee again appeared at S & L with the two certificates. He requested that both be changed to his name only. In response, the officers and agents of S & L, in the case of the savings account represented by certificate No. 964, lined through the words “and Bernell McGee” on the certificate and added figures “3/7/74.” On the signature card for this account, S & L lined through the name and signature of Vernell McGee and added the figures “3/7/74.” On the account card, S & L lined through the name “Vernell McGee” and the words “as joint tenants with right of survivorship and not as tenants in common” and added the figures “3/7/74.” In response to the request concerning the account represented by certificate No. 207, the officers and agents of S & L lined through the words “Vernell McGee 2/11/74” on the certificate. The name and signature of Vernell McGee likewise was stricken from the signature card and the figures “3/7/74” added thereto. Vernell McGee’s name also was lined through on the account card.

Walter McGee died on June 28, 1974. At the time of his death the two savings certificates were in his safety deposit box. Ver-nell McGee was appointed executor of his estate and on August 2,1974, at the suggestion of the attorney for the estate, he cashed in certificate No. 207 and applied the proceeds on the funeral bill. Thereafter, he made a claim against the estate, asserting that certificate No. 207 was his personal property as surviving joint tenant and that he should receive the proceeds thereof.

After numerous demands on S & L to pay him on certificate No. 964, plaintiff brought this suit against S & L and against the Walter McGee estate, seeking a determination that he owned both certificates and was entitled to recover thereon. The probate claim on certificate No. 207 was consolidated with this action. The trial court held that the actions of Walter McGee and the officers and agents of S & L on February 11, 1974, established a statutory joint tenancy with right of survivorship in both savings certificates but that the action of Walter McGee and the officers and agents of S & L on March 7,1974, did not have the legal effect of destroying the joint tenancies in the two certificates theretofore created on February 11, 1974. Accordingly, the trial court held that the joint tenancy continued until the death of Walter McGee and that plaintiff then became the owner of the certificates as surviving joint tenant.

This is a court tried case. Our review is pursuant to Rule 73.01, V.A.M.R., as interpreted in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976). We are to uphold the judgment unless there is no substantial evidence to support it or it is against the weight of the evidence or it erroneously declares or applies the law. In this case the facts were stipulated and the trial court found the facts in accordance with that stipulation. We accept those findings and do not disturb the judgment on an evidentiary basis. We do conclude, however, that in holding that the actions of Walter McGee and the officers and agents of S & L on March 7,1974, did not have the effect of terminating the joint tenancy in certificates 207 and 964, the trial court erroneously declared and applied the law.

The single issue to be resolved is whether what Walter McGee and personnel of S & L did on March 7,1974, had the legal effect of terminating the joint tenancy and transferring the two accounts to Walter McGee. Plaintiff argues that under LaGarce, supra, it did not. LaGarce dealt with a situation wherein August LaGarce owned a savings certificate which he had transferred by the savings and loan association to the names of August LaGarce, James Mouldon and Leona Mouldon as joint tenants with right of sur-vivorship and not as tenants in common. After the revised certificate was handed to him by an employee of the association, La-Garce handed it to the Mouldons. There was conversation to the effect that if La-Garce later wanted the certificate back, he could get it. Subsequently, LaGarce and his wife, who had been separated, were reconciled and he requested that the Moul-dons return the certificate in order that it could be changed and placed in the names of LaGarce and his wife. However, the Mouldons did not turn over the certificate and LaGarce died while it was still in the possession of the Mouldon’s-attorney.

In a proceeding to discover assets, the executrix of the estate of August LaGarce sought to recover the funds in the savings account. Her primary contention was that under existing decisions the revised certificate did not create a valid joint tenancy because LaGarce intended only to make a testamentary disposition, not surrender control at that time, and that this did not constitute a valid inter vivos gift. This court held that a joint account with right of survivorship had been created pursuant to § 369.150, RSMo 1969. Overruling earlier cases which, in spite of the provisions of § 369.150, had held that a joint tenancy was not created if the intent was primarily to arrange a disposition at death, the court held, 487 S.W.2d at 500, that if a certificate is issued in the statutory form it creates a statutory joint tenancy which must be recognized and given effect without applying common law concepts to determine whether a valid joint tenancy has been created.

In LaGarce the executrix also contended that even if the savings account had been converted to a joint account by means of the addition of the names of the Mouldons to the certificate and the execution of the other papers, the joint tenancy was revoked by LaGarce prior to his death by his efforts to get the certificate back and his expression of an intention to revoke the joint tenancy with the Mouldons and create a new one with his wife. This contention was rejected. The court determined that, at most, it disclosed an intention to revoke and that such intent could not be equated with actual termination. In so holding the court said at 501: “Even if the certificate had been delivered to August and he had possession thereof, there could not be an actual termination of the joint tenancy unless August had actually cashed in the certificate. An intent to terminate the joint tenancy agreement cannot be equated with actual termination.”

Relying on the foregoing statement, plaintiff herein contends that LaGarce holds that the only method of terminating a statutory joint tenancy is to cash in the certificate and that Walter McGee did not do that with certificates 207 and 964. We disagree with plaintiffs interpretation of LaGarce. The quoted language holds simply that the evidence established only an intent on the part of LaGarce to terminate the joint tenancy and that this was insufficient to accomplish termination. Instead, said the court, the evidence must show that actual termination was accomplished. The question of what actions by a joint tenant and the association would result in termination of a joint tenancy was not before the court. When the opinion said that there could not be a termination unless the certificate was cashed in, it was not undertaking to spell out specifics as to the method of terminating the joint tenancy in the savings account. It simply underscored by that language that mere intent to terminate is not enough and that the joint account must actually be terminated.

Section 369.174 provides that funds in a joint account “may be paid to any one of such persons during his lifetime.” It does not provide any specific procedure or ritual which must be followed. Payment could be accomplished in various ways. For example, Walter McGee could have surrendered the certificates to S & L and received cash or a check therefor. He also could have surrendered the old certificates and asked that they be cancelled and new replacement certificates issued in his individual name or in his name and the name of some other person or persons as joint tenants. The latter clearly would have constituted a “cashing in of the certificate” mentioned in LaGarce.

In this instance Walter McGee simply presented the certificates and asked that they be changed to his name alone. S & L instead of cancelling the old certificates and preparing new certificates, account cards and signature cards, elected to make the change on the face of the existing certificates and account and signature cards. It seems obvious that this represented a method regularly employed by S & L because they had utilized similar procedures in converting the certificates to jointly owned accounts and in changing the records to reflect the ownership of account 207 after the death of Walter McGee’s wife.

We conclude and hold that the procedure utilized by S & L to accomplish the request by Walter McGee was permissible and effectively terminated the joint accounts, replacing them with accounts owned by Walter McGee individually. Section 369.154(3) provides that an association may issue any evidence of ownership of an account not prohibited by law or by a regulation of the savings and loan division. Minimizing record keeping and printing by utilizing the method employed was permissible. Perhaps it should be observed that such a practice may lead to disputes and litigation as it has in this case and, hence, is less desirable than cancelling old certificates and issuing new ones. However, that is not to say that the method used was not permissible. It should be noted that McGee did not undertake to make changes on the face of the certificates himself. He presented them to S & L with statements as to what he wanted to accomplish, first to create joint tenancies and later to terminate those tenancies and place the accounts in his individual name. These were things he had a right to do. He had contributed all the money. He held the certificates. Under § 369.174, and under the terms of the signature cards signed by Walter and Ver-nell, he was entitled to have the sums in the account paid to him. In legal effect, the actions taken by him and by S & L in response to his request did just that.

The decision we reach is consistent with and supported by Jackson Savings & Loan Association v. Seabaugh, 395 S.W.2d 260 (Mo.App.1965), Carroll v. Hahn, 498 S.W.2d 602 (Mo.App.1973), and In re Estate of Hampton, 547 S.W.2d 886 (Mo.App.1977). Seabaugh was a case in which Mr. Sea-baugh, after opening a joint savings account with his daughter-in-law Lucy, took the certificate and passbook to the association and asked to have the account changed to the names of Seabaugh and his son Everett. The association made the changes on the certificate and passbook, striking Lucy’s name, adding Everett’s, and dating the changes.

In Carroll plaintiff’s stepfather had plaintiff’s name added to his account but six weeks later closed that joint account by surrendering the certificate and receiving in lieu thereof a certificate representing a joint account of the stepfather and a niece.

Hampton was a case in which the association, at Fred Hampton’s request after he remarried, added the words “and Edna Hampton or either or survivor,” to two certificates which he produced. Later, Fred Hampton surrendered the two certificates and received a single certificate issued in his name alone. He retained the certificate and at his death it was in his safety deposit box.

In all three of these cases it was held that the acts of the joint tenant who had contributed the money and held the certificate, together with the actions of the association to comply with the requested termination of the existing joint account, were sufficient to terminate the joint account. Whether the savings and loan association elected to cancel the old certificate and issue a new one or to . make the changes on the existing certificate and records, the result was the same. The fact that Seabaugh preceded LaGarce is of no consequence. As noted previously, LaGarce did not undertake to define what actions by the joint tenant and association constituted termination or “cashing in.” Rather, the court in LaGarce referred to termination only insofar as necessary to distinguish an intended act, or perhaps more precisely, a contemplated act, from a completed act. Thus, the holding in Seabaugh was not disturbed by LaGarce.

We hold that the acts of Walter McGee and S & L on March 7,1974, terminated the joint tenancies in certificates 207 and 964. Thereafter, the accounts were the property of Walter McGee. Accordingly, the judgment is reversed and the cause remanded with directions to enter judgment that the estate of Walter McGee is the owner of the certificates in question.

All concur.

      . Vernell McGee was also known as Bernell McGee.

      . Chapter 369, including § 369.150, was repealed in 1971 and a new chapter was enacted. Laws 1971, S.B. 3, § A. Sections 30 and 34 of S.B. 3 (now §§ 369.154 and 369.174) are the sections which pertain to joint accounts.

      . The statute does provide that by written instructions the joint tenant may require signatures of more than a single joint tenant to withdraw funds but that procedure was not utilized in this case.