source: Caselaw Access Project

author: FENDER, Chief Justice.

license: Public Domain

text:
    Jimmy F. JOHNSON et ux., Barbara Johnson, Appellants, v. Adolphus Glenn FOX, Appellee.
    No. 2-84-106-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 17, 1985.
    M. Ward Bailey & Associates, and M. Ward Bailey, Fort Worth, for appellants.
    Borden, Hand & Westhoff, and John E. Westhoff, Weatherford, for appellee.

      Before FENDER, C.J., and BURDOCK and HILL, JJ.
   OPINION

FENDER, Chief Justice.

This is an appeal from a judgment in a trespass to try title action involving a mineral reservation in a deed in which the trial court held that the mineral reservation was ambiguous, and then construed it favorably to appellee.

We reverse and reform.

On June 15, 1971, appellants, Jimmy F. Johnson and wife Barbara, purchased through the Texas Veterans Land Program 40.44 acres of land in Parker County, Texas. The grantors of the land, Edward W. Sears and wife, reserved a royalty interest, which in pertinent part states:

SAVE AND EXCEPT: Grantors herein reserve unto themselves, their heirs and assigns, an undivided Vieth royalty (same being V2 of the usual Vs) interest in and to all of the oil, gas, and other minerals, in, to, and under, or that may be produced from the land herein conveyed, ...

On June 17, 1974, appellants conveyed the 40.44 acres to Jack Julian Williams, et al. The deed contained the following reservation:

“SAVE AND EXCEPT one-half Mineral reservation as reserved in Warranty Deed dated June 15, 1971, recorded in Volume 500, page 128, Deed Records, Parker County, Texas. GRANTORS HEREIN reserve unto themselves, their heirs and assigns the remaining one-half mineral interest in and to the herein-above described property.”

Four years later, by deed dated April 15, 1978, Williams conveyed the land to appel-lee Fox, subject to the following mineral reservation:

Save and Except an undivided V2 of the usual ⅛ or V16 non-participating royalty interest reserved as set out in the Warranty Deed dated June 15,1971, executed by Edward Sears, et ux, to Veterans Land Board, of record in Vol. 500, Page 123, Deed Records, Parker County, Texas. Also Save and Except Mineral reservation as set out in Warranty Deed dated June 17, 1974, executed by Jimmy F. Johnson, et ux, to Jack Julian Williams, et al, of record in Volume 582, page 436, Deed Records, Parker County, Texas, being a one-half (½) mineral reservation as described herein.

Approximately one year later, on April 6th, 1979, appellee Fox leased the land to Chester R. Upham, Jr., who agreed to pay appellee a ⅛ royalty on production. Although the record does not go into these transactions, it appears that appellee entered into the lease without notifying the appellants. It further appears that the appellants became aware of this lease a few months later, and at such time persuaded Upham to sign an identical lease with them covering the land in question. Because Upham was thus subject to double liabilities for royalties on the two leases, he placed in suspense the royalty payments due to appellants, and this action in turn caused appellants to bring this lawsuit to determine ownership of the royalties and the mineral estate.

In their trespass to try title petition appellants claimed to own “an undivided V2 interest or an undivided Vi6 royalty interest in and to all of the oil, gas, and other minerals in and under” the land. At the hearing, held in December, 1983, appellants introduced into evidence the 1971 deed from the original grantors to the Veterans Land Board, and the 1974 deed from themselves to Williams. Appellants also tried to testify as to their intent in the 1974 conveyance, but appellee objected on the ground that, no ambiguity having been pled by appellants, the trial court must determine title exclusively from an examination of the instruments in question. Appellee did not present any evidence of his own.

In his judgment the trial court held that appellants and appellee were each vested with a ½ mineral interest in and under the land and a V32 royalty interest. The trial court also subsequently filed findings of fact and conclusions of law. He concluded that the mineral reservation contained in the 1974 deed from appellants to Williams was ambiguous, and that rules of construction require that such ambiguity be construed against the grantor (appellants) and in favor of the grantee. (Appellee is apparently the grantee’s [Williams’] successor in interest).

Appellants raise four points of error. In point of error number one they claim that the trial court erred in considering any question of ambiguity in the involved document, since none was raised by any affirmative pleading by the appellee or in the pleadings of appellants. In their second point of error appellants claim that the trial court erred in holding that appellants and appellee each own ¾⅛ of all the minerals subject to a pre-existing royalty interest. In their third point of error, the appellants urge that the trial court erred in not holding that appellants are owners of ½ interest in all minerals in and under the involved property and ¼6 of the royalties from the production of oil and gas. Finally, appellants claim that the trial court erred in failing and refusing to quiet title in themselves to ½ of the minerals in and under the involved property, and ½6 of the royalties from the production of oil and gas.

In response, appellee argues in his brief that it was proper for the trial court to consider ambiguity because appellants raised the issue at the hearing. Furthermore, appellee contends that accepted rules of construction require the purported ambiguity to be construed against appellants and in favor of Williams.

We find it unnecessary to respond directly to appellants’ and appellee’s arguments because we find that, as a matter of law, the trial court erred in holding that the mineral reservation in the 1974 deed from appellants to Williams was ambiguous. As a preliminary matter, we note that courts can construe an instrument containing a reservation or exception together with other instruments to which it refers. See Tipps v. Bodine, 101 S.W.2d 1076 (Tex.Civ. App. — Texarkana 1936, writ ref’d); Williams v. J. & C. Royalty Co., 254 S.W.2d 178 (Tex.Civ.App. — San Antonio 1952, writ ref’d). Bearing this possibility of construction in mind, we make two conclusions: (1) it is proper to read the mineral reservation in the 1974 deed in conjunction with the 1971 mineral deed; and (2) when the instruments are read in conjunction, it is evident that appellants reserved unto themselves a Vi6 royalty interest, but not any interest in the minerals in place. To arrive at these conclusions we make two initial observations about the mineral reservation in the 1974 deed. First, we note that appellants explicitly excepted from the interest which they conveyed to Williams the “one-half Mineral reservation as reserved” in the 1971 deed from the original grantors to appellants. Second, we note that appellants reserved unto themselves “the remaining one-half mineral interest.” (Emphasis added.) Appellants’ use of the word “remaining” indicates that the nature of appellants’ reserved interest must be determined in relation to what the original grantor reserved to himself. In other words, before we can determine the interest which “remains” to appellants, we must first determine what the original grantor reserved to himself.

The original grantor reserved unto himself “an undivided Vieth royalty (same being xk of the usual Vs) interest.” We find that the word “remaining,” when construed in relationship to this parenthetical phrase in the 1971 deed, shows appellants’ intent to reserve to themselves a “½ of the usual ⅛ royalty,” or a Vie royalty. In other words, the original grantor reserved a Vie royalty interest in 1971, and appellants reserved another Vie royalty interest in 1974. Together, these two royalty interests total the “usual” royalty interest. Because Upham, the lessee, agreed to pay only a ⅛ royalty, we find that appellee Fox has no royalty interest under the present leases.

But while the language of the mineral reservation indicates that appellants intended to reserve a Vi6 royalty interest, it does not indicate that appellants retained any interest in the minerals in place. Interests in minerals in place and interests in royalties are separate and distinct estates in land. Selman v. Bristow, 402 S.W.2d 520, 524 (Tex.Civ.App. — Tyler), writ refd n.r.e. per curiam, 406 S.W.2d 896 (Tex.1966); Pick v. Lankford, 157 Tex. 335, 302 S.W.2d 645, 648 (1957). The 1971 mineral reservation reserved only a royalty interest. The 1974 reservation, which is defined in terms of the 1971 reservation, through the use of the words “remaining one-half,” must therefore also reserve only a royalty interest.

Appellants note in their brief that the trial court referred in its findings of fact to a deed from Jack Julian Williams to appellee. Appellants assert that this deed was never introduced into evidence, and that therefore, appellee has not shown any evidence of title. See TEX.R.CIV.P. 798. After examining the record, we agree with appellants that there is no evidence of any deed from Williams to appellee. Therefore, the trial court’s finding of fact no. 4, in which he discusses this deed, must be stricken, and we cannot consider it. The result of rejecting the trial court’s finding is that there is no evidence that appellee has any interest at all to the land. Under the record before us, therefore, we cannot determine appellee’s title to the land.

We therefore hold that Sears, the original grantor, has a ¼6 royalty interest and that appellants have a Vis royalty interest because that is what appellants reserved to themselves through the 1974 deed to Williams. We also hold that the 1974 deed vested Williams with a 100% interest in the minerals in place, subject to the royalty interests of Sears and appellants contained in the mineral reservation. Finally, we hold that we can make no determination as to any interest which appellee might have received from Williams because appellee did not present any evidence to show his title to the land.

The judgment is reversed and reformed, with appellants recovering the costs of this court from appellee.


author: GANT, Justice. WINTERSHEIMER, Justice,

text:
    Douglas Wayne McNAMES and Carol Lou Schmidt, Appellants, v. Phyllis Ann CORUM, et al., Appellees.
    Supreme Court of Kentucky.
    Sept. 13, 1984.
    As Modified Jan. 17, 1985.
    Theodore H. Amshoff, Jr., Richard W. Hill, Amshoff & Amshoff, Louisville, for appellants.
    Kelly Ann Miller, Robert Frederick Smith, Legal Aid Society, Inc., Louisville, for appellees.
   GANT, Justice.

Appellants, husband and wife, filed an action in the Trimble Circuit Court seeking to adopt the infant son of appellee, Phyllis Ann Corum, or, in the alternative, seeking custody of said child. The adoption proceeding was dismissed as premature under KRS 199.470(3), which appellants concede was correct. The only issue remaining herein is the judgment of the trial court awarding custody of the infant child to the natural mother. This Court granted transfer from the Court of Appeals in order to expeditiously determine this matter and to attempt to minimize the inevitable heartache which arises in such cases.

The facts of this ease fall into the classical pattern of private adoptions. The appellants are college educated, successful persons, motivated by a true desire for children, and frustrated by four miscarriages, a prematurely born infant who died, and the prospect of a five-year wait for public placement. The appellee is a 16-year-old unwed mother, who was denied financial support by the father of the child who lived in Alabama. Her mother and stepfather insisted, upon learning of the pregnancy in the seventh month, that appellee decide for herself whether to keep or surrender the child, without any promise of financial aid from them. It should be added at this point that, once her decision to keep the child was made, the parents became completely supportive.

Faced with her position of poverty, despair and depression, appellee contacted a physician who was recommended to her as specializing in private adoptions. This physician, in turn, contacted an attorney with the same specialty. The attorney then contacted Phyllis and her mother and a deal was struck by which she would place her expected child for adoption in return for the agreement that the prospective parents would pay her doctors’ and hospital bills, and, of course, the attorney would be paid by the prospective parents.

At this juncture, according to the testimony, Phyllis understood that no one could have custody of her infant until her rights were terminated by court and that she “could get the baby back any time” until then. The appellants were aware that Phyllis could change her mind before her parental rights were terminated or surrendered and that “there was a risk involved.”

On February 9, 1984, the child was born, and Phyllis signed an affidavit to release the child to the attorney so the attorney could take the child from the hospital, which he then did a few days later. After telephone and personal confrontation with the father and further denials of assistance, Phyllis made her decision to keep the child, whereupon her parents pledged their support. She notified the attorney of this decision on March 6, 1984, and requested return of the child, this being about three weeks after the child had been lodged with the appellants. Return was denied, and this action was filed March 17, 1984.

In the instant case, there is no contention that the natural mother has terminated her parental rights or that she has abandoned the child; nor does the evidence justify any holding that she entered into an agreement of a permanent nature that the appellants should have custody of her child. There is also no circumstance from which quasi-es-toppel could arise.

The thrust of the argument of appellants focuses almost entirely on their contention that the court failed to consider the best interest of the child. Under the circumstances of this case, the best interest of the child was properly excluded by the trial court. It is our holding that, before any court even considers the best interest of the child in an action involving parent and non-parent, except in unusual circumstances not present here, there must first be a showing that the parent is not a fit person to have custody. As the court stated in Chandler v. Chandler, Ky., 535 S.W.2d 71 (1975):

Since there appears to be some confusion as to the nature of a parent’s right as against those of non-parents with respect to child custody, the rule is that not only must it be shown that the child’s welfare will be better served under custody of the non-parent, but also it must be found that the parent is not a suitable custodian. Cf. James v. James, Ky., 457 S.W.2d 261, 263 (1970); Bond v. Shepherd, Ky., 509 S.W.2d 528, 529 (1974).

Worded another way, custody of a child by a suitable natural parent and best interest of the child are one and the same.

The lower court having found that the natural mother is, in fact, a suitable parent, the judgment awarding her custody is affirmed.

All concur except WINTERSHEIMER, J., who dissents and files a dissenting opinion.

WINTERSHEIMER, Justice,

dissenting.

I must respectfully dissent from the majority opinion.

Although it is difficult to dispute the cold legal logic of the majority, I believe this Court should give a broader interpretation to the phrase “best interests of the child.”

In this type of case, any jurist must be blessed with Solomon-like wisdom when faced with the agonizing decision between a biological mother and adoptive parents of obvious sincerity and good will. Either party faces an agonizing loss. In any such proceeding, the truly innocent party is the infant child. Therefore, I believe it is entirely appropriate to carefully consider the best interests of the child at all stages of the proceedings. The infant baby boy who is the subject of this litigation, is most certainly “an important human being” as in Van Wey v. Van Wey, Ky., 656 S.W.2d 731 (1983). It is the infant child who will be impacted with the consequences of the ultimate decision. No other action involving an unmarried infant could ever be more important in this child’s life than the ultimate adjudication of his custody and future home. Consequently, I believe this Court should direct that a guardian ad litem be appointed in all such proceedings.

I would extend the “best interests” principle to all stages of the proceedings. For an additional discussion of this concept, see Natural Parent Preferences, or the Child’s Best Interests, 12 U.C.L.A.-Alaska Law Review, 141 (1983), and Alternatives to Parental Rights in Child Custody Disputes Involving Third Party, 73 Yale Law Journal, 151 (1963).

Here the result will not be in the best interests of the child and I cannot agree to it.

      . This is a different attorney from the attorney who prosecuted this action on behalf of the appellants.


author: AKER, Justice.

text:
    HOLLOWAY CONSTRUCTION COMPANY, Appellant, v. Sidney SMITH & Lynchia Smith, Commonwealth of Kentucky, Department of Transportation, Bureau of Highways, Appellees. and COMMONWEALTH of Kentucky, Department of Transportation, Bureau of Highways, Appellant, v. HOLLOWAY CONSTRUCTION COMPANY, Sidney Smith and Lynchia Smith, his wife, Appellees.
    Supreme Court of Kentucky.
    Dec. 20, 1984.

      Eugene C. Rice, Rice & Frazier, Paints-ville, Stephen G. Bolton, Rudy Yessin, Frankfort, for movant.
    Kelsey E. Friend, Pikeville, for Sidney and Lynchia Smith.
    Dan Stockton, Lexington, for Department of Transp.
   AKER, Justice.

Holloway Construction Company contracted with the Commonwealth of Kentucky, Department of Transportation, Bureau of Highways, to construct a highway running through Pike County, Kentucky.

The highway construction plans called for blasting and excavation near the home of Sidney and Lynchia Smith. However, Holloway discovered that the house was in fact closer to the right of way than the plans indicated. There were discussions between Holloway and the Bureau of Highways concerning the acquisition of the Smith house, but before the property was purchased, Holloway began the blasting work, causing extensive damage to the house.

The Smiths filed an action in the Pike Circuit Court against Holloway for compensatory and punitive damages for the negligent destruction of the house. Holloway filed a third-party complaint against the Bureau of Highways seeking indemnity or contribution from it for any judgment on the complaint. The trial court dismissed the third-party complaint on the grounds that the Bureau of Highways was insulated from liability for its negligence by the doctrine of sovereign immunity and on the grounds that the “hold harmless” provision of Holloway’s contract barred contribution and indemnity from the Bureau of Highways.

The Smiths did obtain a judgment against Holloway in the amount of $79,-859.00 on compensatory and $25,500 for punitive damages.

The Court of Appeals affirmed the damages award, but reversed the trial court on the dismissal of the third-party claim and directed the trial court to enter an amended judgment awarding Holloway contribution against the Bureau of Highways for one-half of the compensatory damages award.

This court granted both Holloway Construction’s and the Department of Transportation’s motions for discretionary review, and have consolidated the cases for review.

The Court of Appeals reasoned that the trial court improperly dismissed the third-party claim brought by Holloway because the action was the “reverse condemnation” of the Smith’s property by the state of Kentucky. The court further stated that the “hold harmless” agreement was ineffective under the present facts because “it is highly unlikely that the contractor would have intended to indemnify Bureau of Highways against the wrong of reverse condemnation.” We reverse the Court of Appeals on this issue.

Generally, under Sec. 231 of the Kentucky Constitution no one can sue the state without its consent. Foley Construction Co. v. Ward, Ky., 375 S.W.2d 392 (1964). This prohibition is deemed to be waived when a party brings suit against the state under a theory of “reverse condemnation.” Lehman v. Williams, 301 Ky. 729, 193 S.W.2d 161 (1946).

For a party to assert a claim under this theory there must be an unauthorized taking, destruction or injury to their property. Commonwealth v. Davidson, Ky., 383 S.W.2d 346 (1964). In the present case Holloway attempts to assert this claim by means of a third-party complaint against the state, but it is not Holloway’s property which is alleged to have been taken, but that of another party, the Smiths. Since Holloway cannot assert a “taking” of its property by the state, it cannot proceed under a theory of “reverse condemnation.” For Holloway to assert a claim against Bureau of Highways it must do so by means of the statutory remedies available to them.

The next issue to be considered is whether the Court of Appeals erred by affirming the jury award of $25,000 in punitive damages against Holloway Construction. Holloway asserts that the evidence does not support an award for punitive damages.

Punitive damages are authorized only when the circumstances surrounding a tortuous act indicate malice, willfulness or a reckless or wanton disregard for the rights of others. Harrod v. Fraley, Ky., 289 S.W.2d 203 (1956).

Evidence was introduced at trial which showed that Holloway knew before blasting began of the potential for damage to the Smith’s house, that Holloway was put on notice by the Smiths after various detonations of mounting damage to the home, and that Holloway continued to blast even though it was aware that the house was being destroyed. The award of punitive damages on the amount of $20,000 bears some relationship to the injury and the cause thereof, and therefore, they are not excessive. Hensley v. Paul Miller Ford, Inc., Ky., 508 S.W.2d 759 (1974).

The opinion of the Court of Appeals is reversed to the extent that it imposes liability on the Bureau of Highways and orders an entering of an amended judgment for contribution against the Bureau. In all other respects the opinion of the Court of Appeals is affirmed.

All concur.


author: LEIBSON, Justice. VANCE, Justice,

text:
    Daniel G. FOWLER, Movant, v. Billy Joe MANTOOTH, Respondent.
    Supreme Court of Kentucky.
    Dec. 20, 1984.

      Thomas W. Miller, Miller, Griffin & Marks, PSC, Lexington, for movant.
    John R. Cook, Jr., Lexington, for respondent.
   LEIBSON, Justice.

Daniel G. Fowler sued Billy Joe Man-tooth for assault, seeking both compensatory and punitive damages, claiming he was intentionally struck and injured at the “Sin The Sports Center” in Lexington, Kentucky, on April 7, 1981. The Sports Center is a health club owned by Sin The, where Fowler was employed. Mantooth was a customer. Both are ex-football players, persons of exceptional size and strength.

According to Fowler and his witnesses he was knocked unconscious by a sudden, unexpected punch, thrown without provocation. There had been a disagreement over the customer’s use of certain equipment, but Fowler was merely doing his job and had made no abusive remarks or threatening gestures before the attack.

Fowler’s testimony was that he was unconscious for more than an hour, needed hospital and medical attention, suffered from a sore jaw, headaches and numbness, and lost time from his employment. Because of the circumstances of his employment, he was particularly humiliated by the experience.

On the other hand Mantooth’s testimony was that he was provoked into throwing the punch.

The jury accepted Fowler’s version, found for the plaintiff, and awarded $2,210 in compensatory damages and $20,000 in punitive damages.

Mantooth appealed claiming both awards were excessive. The Court of Appeals held that the $2,210 for compensatory damages was not excessive, but reversed the $20,000 award for punitive damages as excessive, and ordered a new trial on punitive damages alone. The Court of Appeals took the view that this was a “single blow with practically no injury,” although the plaintiff’s evidence indicated that the injury could be considered substantial, and the Court of Appeals found that the $2,210 award for compensatory damages “was well within” the evidence. Our analysis of principles set out in Kentucky cases regarding the nature and extent of punitive damages leads to the conclusion that Fowler’s evidence is sufficient to support the jury’s findings that punitive damages were appropriate, and that the amount awarded was not excessive.

The principles governing when punitive damages should be permitted and what should be the limitations on the award have proved somewhat elusive and difficult to define. This is because the misconduct involved cuts across the spectrum of tort litigation, rather than being restricted to one type of tort, or one type of injury.

It is a rule of longstanding in this Commonwealth that exemplary or punitive damages may be recovered in an assault and battery case in addition to punitive damages where the assault is willful, malicious and without justification. Shields Adm’rs v. Rowland, 151 Ky. 136, 151 S.W. 408 (1912). This is true even when no serious bodily harm results. Watts v. Lingenfelton, 10 Ky.Op. 535 (1880).

The threshold for the award of punitive damages is misconduct involving something more than merely commission of the tort. The “something more” necessary in the present case was defined in the ’ instructions as a finding “that the assault was willful, malicious, and without justification.” Malice may be implied from outrageous conduct, and need not be express so long as the conduct is sufficient to evidence conscious wrongdoing. Hensley v. Paul Miller Ford, Inc., Ky., 508 S.W.2d 759 (1974). Hensley cites Prosser, Law of Torts § 2 (4th Ed.1971), stating that punitive damages are “permitted” “[where the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage.” Id. at 762.

The mere fact that the act is intentional and a tort does not justify punitive damages absent this additional element of implied malice, meaning conscious wrongdoing. Harrod v. Fraley, Ky., 289 S.W.2d 203 (1956); Ashland Dry Goods Co. v. Wages, 302 Ky. 577, 195 S.W.2d 312 (1946). Fowler’s evidence in the present case, if accepted by the jury (as it was), substantiated the element of conscious wrongdoing. The distinction is best illustrated by Harrod v. Fraley, supra at 205, where instructions permitting an award of punitive damages if the jury “found that the alleged assault was committed ‘wrongfully’ [i.e., tortiously],” were held erroneous because they did not further “require the jury to find that the assault was maliciously, wantonly or wilfully committed” before awarding punitive damages. The instructions in the present case required such a finding.

Facts must be established that, apart from punitive damages, are sufficient to maintain a cause of action, but although the appropriate award for compensatory damages would be only nominal, nominal damages support an award for punitive damages. Restatement (Second) of Torts § 908 (1977). Section 908 of the Restatement sets out the elements to be “properly” considered by “the trier of fact” in assessing punitive damages as including “the character of the defendant’s act, [as well as] the nature and the extent of the harm to the plaintiff that the defendant caused or intended to cause.” (Emphasis added).

Thus we recognize two elements involved in assessing punitive damages: (1) the nature and extent of the harm to the plaintiff, and (2) the character of the defendant’s act. In the present case the Court of Appeals decided that “[a] single blow with practically no injury resulting, however wrong the blow may have been, cannot, we believe, result in a $20,000.00 award [for punitive damages] in absence of passion and prejudice on the part of the jury.” This overlooks that the character of the act is a consideration of equal or greater importance, depending on the case, in assessing punitive damages. The factors bearing on the character of the act include the degree of outrageousness, the extent of culpability, the motives of the wrongdoer, the relationship between the parties and the existence or absence of provocation. Restatement (Second) of Torts § 908 comment e (1977). To relate excessiveness of the award only in terms of its reasonable relation to the injury sustained, is to tell only half the story.

In this case the Court of Appeals’ conclusion that there was “practically no injury resulting” is fact finding inconsistent with the claimant’s evidence and inconsistent with its own conclusion that the $2,210 awarded for compensatory damages was “well within” the evidence. But the fatal flaw is that this analysis leaves out of consideration the character of the act.

Respondent’s brief, citing no authority, argues that the consideration of punitive damages “does not include humiliation.” If, as respondent argues, the sole consideration was the “seriousness of the injury,” such might be true because this view of punitive damages limits it to an extension or enhancement of compensatory damages, which, arguably, do not include humiliation per se. But in an act of this character the jury was authorized to compensate not only for the mental and physical pain and suffering endured by him, but also for such humiliation as he suffered as a result of the assault. Mann v. Watson, 214 Ky. 729, 283 S.W. 1052, 1055 (1926). An award of punitive damages need not bear reasonable relation to actual damages sustained, which indeed may warrant only “nominal” damages, if the claimant’s evidence regarding the character of the act, meaning the extent of conscious wrongdoing, is sufficient to sustain the award. Maddix v. Gammon, 293 Ky. 540, 169 S.W.2d 594 (1943).

The respondent has argued, and the Court of Appeals has used in its opinion, the standard for deciding exeessiveness which applies to the trial court’s responsibility when called upon to decide whether to grant a new trial on grounds of excessiveness, which is whether the award appears “to have been given under the influence of passion or prejudice.” CR 59.-01(d). As stated by the Court of Appeals in Prater v. Arnett, Ky.App., 648 S.W.2d 82 (1983), and by our Court in Davis v. Graviss, Ky., 672 S.W.2d 928 (1984), the functions of the trial and appellate court differ when the question of excessive damages is at issue. The function of the appellate court is limited to reviewing the decision of the trial court. The trial court’s decision is presumptively correct. The appellate court will reverse only when it can be said that the trial court has “clearly erred,” i.e., abused its discretion, in refusing to set aside the award as excessive. Davis, supra at 932.

Thus, respondent’s reliance on Hensley v. Paul Miller Ford, Inc., supra, is misplaced. Hensley holds only “that the trial court did not abuse its discretion in granting a new trial [as to punitive damages] on the ground that the verdict was excessive.” Id. at 764. Here, had the trial court viewed the award of punitive damages as excessive, the posture of the case would have been the reverse of that in which we presently find it. Here the trial court overruled the respondent’s motion for a new trial which asserted that the verdict for punitive damages was excessive. The trial court stated that “[i]n the case at bar, there is a sufficient relationship of the punitive damages to the injury and the cause thereof.” The trial court evidenced an appropriate grasp of both the evidence in the case and the two elements involved in assessing punitive damages.

In Holloway Construction Co. v. Smith, Ky., 683 S.W.2d 248 (1984), we affirmed a substantial award for punitive damages, $25,000, as not excessive. Holloway Construction involved a property damage claim resulting from a blasting operation, with factual considerations different from the present case, but tied to the same basic legal considerations.

The decision of the Court of Appeals reversing the award of punitive damages is reversed. The judgment of the trial court is affirmed.

All Concur.

VANCE, J., files a separate concurring opinion in which STEPHENSON, J., joins.

VANCE, Justice,

concurring.

I concur in the result only. The issue here is not whether the conduct of respondent would justify the award of some punitive damage against him but whether or not the amount actually awarded is excessive.

The jury is the arbiter of the amount to be allowed. The verdict of a properly instructed jury as to punitive damages should not be set aside unless it can be held that no reasonable juror, on the basis of the evidence presented, could have reached such a verdict, and therefore the verdict reached must necessarily have resulted from bias or passion on the part of the jurors.

I do not subscribe to the view that there is any meaningful difference in the standard of review of judgments for excessiveness which must be used by trial judges and appellate judges. Without question, the trial judge reviews the issue using the standard of whether or not reasonable jurors could have reached the verdict in the absence of bias.

It is true that an appellate court reviews the question of whether the trial judge abused his discretion in granting or denying a motion to set aside a verdict for excessiveness, but inevitably the issue is the verdict itself and whether reasonable jurors could have reached it. If reasonable jurors could not have reached such a verdict in the absence of bias, the trial judge must set it aside. If he refuses to do so, it is an abuse of discretion, and an appellate court will set the verdict aside.

If the trial court concludes the evidence was sufficient to warrant a reasonable jury to have reached its verdict, his conclusion is entitled to consideration and will not be set aside except for clear abuse of discretion. But ultimately, the appellate court must determine for itself the question of whether the award was reasonable or unreasonable, and if the award is such that no reasonable jury could have rendered it except for bias, it follows that a trial court which refused to set it aside abused its discretion.

I agree with the majority that under the evidence in this case and under the law as it currently exists, it was not clearly unreasonable for a jury to award punitive damages in the amount stated in the verdict.

STEPHENSON, J., joins in this concurring opinion.

      . The third consideration in an award of punitive damages as set out in the Restatement is "the wealth of the defendant.” Kentucky does not subscribe to the Restatement’s third prong. Shield’s Adm’rs. v. Rowland, 151 Ky. 822, 152 S.W. 943 (1913); Hensley v. Paul Miller Ford, Inc., Ky., 508 S.W.2d 759 (1974).


text:
    PAINTSVILLE HOSPITAL COMPANY, Movant, v. Jake ROSE, Administrator of the Estate of Grimsey Rose, Deceased, Respondent.
    Supreme Court of Kentucky.
    Jan. 17, 1985.
    Michael J. Schmitt, Paintsville, for mov-ant.
    John H. Hogin, Hogin, Guyton, London & Montgomery, Knoxville, Tenn., F.C. Bryan, Bryan & Fogle, Mount Sterling, for respondent.
    Edgar A. Zingman, Susan T. Barnett, Mary Ann Main, Wyatt, Tarrant & Combs, Louisville, for amicus curiae.
   LEIBSON, Justice.

The issue is whether the appellant, Paintsville Hospital, can be held liable on principles of ostensible agency or apparent authority for the negligence of a physician who was not employed by the hospital but who furnished treatment in the emergency room which was provided by the hospital and open to the public.

The complaint alleges that plaintiff’s decedent, Grimsey Rose, age sixteen, was found unconscious on the street in Paints-ville, Kentucky, with an impact point on his left jaw and his crushed glasses nearby; that he was taken from there to the emergency room at Paintsville Hospital by ambulance, and treated in the emergency room by Dr. K.J. Ikramuddin, who negligently failed to diagnose his condition.

Dr. Ikramuddin was a private physician, and not an employee of the hospital. However, she was on the staff of the hospital and performed emergency room services according to a roster prepared by the hospital administrator. Her work in the emergency room was performed on an “on-call” basis, so she was called by the hospital to attend Grimsey Rose upon his arrival. Dr. Ikramuddin is charged with negligence causing the death of Grimsey Rose in failing to properly read head x-rays resulting in failure to diagnose a skull fracture with subdural hematoma.

According to Paintsville Hospital’s Pretrial Memorandum, when the parents of Grimsey Rose arrived at the emergency room, the doctor discussed the problem of a possible drug reaction or a head injury with them and obtained permission to admit the patient to the hospital for overnight observation. She then arranged for his post-admission treatment by a different physician because her specialty was obstetrics and gynecology, and she then obtained payment by check for her services.

The trial court granted summary judgment to the hospital “on the issue of whether or not the hospital was vicariously liable for the acts and/or omissions, if any, of Dr. Kamar J. Ikramuddin.” The trial court’s finding that Dr. Ikramuddin had no actual agency relationship with the hospital at the time the doctor treated Grimsey Rose in the emergency room is not in dispute. The finding that no “ostensible agency” existed is the subject of this appeal. The record is devoid of reasons for or against this finding, except for the fact that the parents tried to employ the doctor to continue on with the care and treatment of the decedent beyond the time he was seen by her in the emergency room, and were refused, from which the trial court concludes that “the family of the decedent considered Dr. Ikramuddin to be a physician independent of the control of the hospital.”

The Court of Appeals reversed the summary judgment. We affirm.

The proper function for a summary judgment in a case of this nature “is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.” Roberson v. Lampton, Ky., 516 S.W.2d 838, 840 (1974). It is only proper where the movant shows that the adverse party could not prevail under any circumstances. Kaze v. Compton, Ky., 283 S.W.2d 204 (1955). Summary judgment is premature and should not be granted, “although the facts and evidence thus far developed do not establish the existence of a genuine issue of material fact, [where] neither do they establish the non-existence of such an issue.” Barton v. Gas Service Co., Inc., Ky., 423 S.W.2d 902, 904 (1968). In short, it is not a substitute for trial, nor is it the functional equivalent of a motion for directed verdict.

With this background it is clear that the record in the present case does not support granting a summary judgment if ostensible agency as alleged in the amended complaint is a viable legal theory under our law. The appellant claims that the record fails to establish that the decedent or his parents relied on the fact that Dr. Ikramuddin was an employee of the hospital in accepting her treatment. Neither does it refute it. Further, the cases applying the principle of ostensible agency to the hospital/emergency room physician situation, without exception, do not require an express representation to the patient that the treating physician is an employee of the hospital, nor do they require direct testimony as to reliance. A general representation to the public is implied from the circumstances. Without exception evidence sufficient to invoke the doctrine has been inferred from circumstances similar to those shown in the present case, absent evidence that the patient knew or should have known that the treating physician was not a hospital employee when the treatment was performed (not afterwards).

The landmark case applying the principle of ostensible agency to physicians not employed by the hospital but furnished through the institutional processes is Sen-eris v. Haas, 45 Cal.2d 811, 291 P.2d 915 (1955), where it was applied to an anesthesiologist. Since then few courts have failed to recognize the soundness of this application, and the concept has been generally applied not only to anesthesiologists, but to pathologists, radiologists, and emergency room physicians, all of whom share the common characteristic of being supplied through the hospital rather than being selected by the patient. Our research reveals the following cases applying ostensible agency to emergency room physicians in circumstances similar to the present case, and none to the contrary:

1) Adamski v. Tacoma General Hospital, 20 Wash.App. 98, 579 P.2d 970 (1978).

2) Vanaman v. Milford Memorial Hospital, Inc., 272 A.2d 718 (Del.1970).

3) Hannola v. City of Lakewood, 68 Ohio App.2d 61, 426 N.E.2d 1187 (1980).

4) Capan v. Divine Providence Hospital, 287 Pa.Super. 364, 430 A.2d 647 (1980).

5) Stewart v. Midani, 525 F.Supp. 843 (N.D.Ga.1981).

6) Themins v. Emanuel Lutheran Charity Board, 54 Or.App. 901, 637 P.2d 155 (1981).

7) Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977).

8) Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla.App.1982).

9) Edmonds v. Chamberlain Memorial Hospital, 629 S.W.2d 28 (Ten.App.1981).

10) Mduba v. Benedictine Hospital, 52 A.D.2d 450, 384 N.Y.S.2d 527 (App.Div.1976).

11) Arthur v. St. Peters Hospital, 169 N.J.Super. 575, 405 A.2d 443 (1979).

While there are no cases from our court applying the principle of ostensible agency to the present situation, the principle itself is one recognized and of longstanding in Kentucky. In Middleton v. Frances, 257 Ky. 42, 77 S.W.2d 425 (1934), we applied this principle to establish the liability of a taxicab company to a passenger where the sole connection between the driver and the taxicab company was the company’s name painted on the taxi and rent paid to the company for the privilege of operating it from the company office. The company did not employ the driver and received no part of the earnings from his taxicab. Quoting Corpus Juris, we stated:

“An apparent or ostensible agent is one whom the principal, either intentionally or by want of ordinary care, induces third persons to believe to be his agent, although he has not, either expressly or by implication, conferred authority upon him.” 77 S.W.2d at 426.

The principles of apparent or ostensible agent are discussed at length in Restatement (Second) of Agency § 267 (1958):

“One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.”

We cited the same section from the earlier edition of the Restatement of Agency with approval in Middleton v. Frances, supra. Further, the Restatement (Second) of Agency makes the following statement significant to our discussion in § 49, explaining the difference between “Interpretation of Apparent Authority Compared with Interpretation of Authority”:

“(a) manifestations of the principal to the other party to the transaction are interpreted in light of what the other party knows or should know instead of what the agent knows or should know,.... ”

As stated by the Superior Court of New Jersey in discussing the public’s reasonable expectation of emergency room physician in Arthur v. St. Peters Hospital, 169 N.J. Super. 575, 583, 405 A.2d 443, 447 (1979):

“[Pjeople who seek medical help through the emergency room facilities of modern-day hospitals are unaware of the status of the various professionals working there.”

In these circumstances it is unreasonable to put a duty on the patient to inquire of each person who treats him whether he is an employee or independent contractor of the hospital. Grewe v. Mt. Clemens General Hospital, 404 Mich. 240, 273 N.W.2d 429 (1978). Indeed, it would be astonishing for courts to require a patient to ask emergency room personnel such a question considering the usual circumstances of the patient at the time he seeks out the emergency room for treatment.

The realities of the situation calls upon us to interpret ostensible agency as has been done by the courts of sister states, as evidenced by the following quotes:

“Absent notice to the contrary, therefore, plaintiff had the right to assume that the treatment received was being rendered through hospital employees and that any negligence associated with that treatment would render the hospital responsible.” Arthur v. St. Peters Hospital, 169 N.J.Super. 575, 405 A.2d 443, 447 (1979).
“In our view, the critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems.” Grewe v. Mt. Clemens General Hospital, 404 Mich. 240, 273 N.W.2d 429, 433 (1978).

Kentucky Hospital Association has filed an Amicus Brief in this case. It is apparent from that brief that Kentucky Hospital Association recognizes that the historical view of hospitals as hotels providing rooms, buildings where private medical practitioners treat private patients, represented by Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697 (1934), is no longer viable. This obsolete view of hospitals, deriving from Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914), was rejected by that same New York court in Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957). Bing obliterated the former distinction made on agency questions between the physician exercising independent professional judgment and the non-professional hospital employees, and imposed vicarious liability on the hospital for both situations where agency exists.

The circumstances under which the hospital is liable are not unlimited. But the operation of a hospital emergency room open to the public, where the public comes expecting medical care to be provided through normal operating procedures within the hospital, falls within the limits for application of the principles of ostensible agency and apparent authority.

The decision of the Court of Appeals is affirmed.

STEPHENS, C.J., and GANT, LEIBSON and WINTERSHEIMER, JJ., concur.

VANCE, J., files a dissenting opinion in which AKER and STEPHENSON, JJ., join.

VANCE, Justice,

dissenting.

I fully recognize that there may be cases in which an ostensible agency may be proved and that until a prima facie case has been made that no genuine issue of fact exists a plaintiffs claim should not summarily be dismissed.

There are two conditions which must be shown to exist before liability can be imposed upon the basis of ostensible agency. First, the ostensible principal must have engaged in conduct of such a nature as to cause a reasonable person to believe that an agency relationship existed, although actually there was no agency. Secondly, the person seeking to impose liability upon one who is ostensibly a principal for the tort of one who is ostensibly, but not actually, an agent must in fact believe that an agency relationship did exist and must act in reliance upon that belief.

Restatement (second) of Agency § 267 (1958), cited in the majority opinion, contains the following in Comment (a):

“The mere fact that acts are done by one whom the injured party believes to be the defendant’s servant is not sufficient to cause the apparent master to be liable. There must be such reliance upon the manifestation as exposes the plaintiff to the negligent conduct_” [Emphasis added.]
“While agency, as between the principal and agent, is a matter of their mutual consent, an agency by estoppel may be created insofar as third persons are concerned — that is, it may arise from acts and appearances which lead third persons to believe that it has been created. Agency by estoppel may be apparent only and exist because of the estoppel of the principal or agent to deny the same after the third party has relied on such appearance, so that such third party would be prejudiced if the fact were shown to be otherwise.” [Emphasis added.] 3 Am.Jur.2d Agency § 19, p. 429 (1962).

Ostensible agency is agency by estoppel and is to be distinguished from implied agency.

“An implied agency is an actual agency as much as if it were created by express words, and is a fact to be shown or ascertained by inferences and deductions from other facts for which the principal is responsible, while agency by estoppel should strictly be limited to those cases where the authority is not real but apparent.
“Agency by estoppel can be invoked by a third person only when he knew and relied on the conduct of the principal, while such knowledge is unnecessary in cases of implied agency since in such case the agent is an actual agent.” [Emphasis added.] 2A C.J.S. Agency § 52(b), pp. 628-629 (1972).

In Middleton v. Frances, 257 Ky. 42, 77 S.W.2d 425 (1934), the Kentucky case cited in the majority opinion as recognizing the principle of ostensible agency, the precise question of reliance by the claimant therein was not discussed in the opinion, but the opinion did allude generally to the fact of reliance upon the ostensible agency as a necessary element in imposing liability upon an ostensible principal.

“Has not the People’s Taxie Company by allowing Harris from and after July 20, 1933, to operate this car from its central office, to cruise about over the city with the name ‘Peoples Taxi-cab Company’ displayed upon it — though it be admitted he was doing all this for Ashley — been guilty of such want of ordinary care, and so held him out and so allowed Harris to hold himself out as to make Harris its agent as to third parties who perhaps took passage with him as a result of the appearances it allowed him to make? We think it has. Such seems to be the rule. See section 267, Restatement of the Law of Agency, where this illustration is given: ‘P, a taxicab company, purporting to be the master of the drivers of the cabs, in fact enters into an arrangement with the drivers by which the drivers operate independently. A driver negligently injures T, a passenger, and also B, a person upon the street. P is not liable to B. If it is found that T relied upon P as one furnishing safe drivers, P is subject to liability to T in an action of tort.’ That seems to be the case.” [Emphasis added.] Id., 77 S.W.2d at 426.

In this case, the deceased was found lying unconscious on the streets. He was unconscious when taken to the hospital. I believe a prima facie case was established that the deceased did not, in his condition upon admission, rely upon a belief that the emergency room physician was, in fact, an agent of the hospital. Indeed, the complaint does not even claim that there was any reliance upon an ostensible agency. The physician who originally admitted deceased to the hospital told his parents, who later came to the hospital, that the injuries suffered by their son were outside her field of specialization and recommended that they secure the services of another physician. The deceased was admitted to the hospital under the care of another physician, and the parents paid Dr. Ikramuddin, not the hospital, for her services.

The majority opinion, in my view, drastically revises the law pertaining to ostensible agency in that, without expressly saying so, it abolishes reliance upon the alleged ostensible agency as a necessary prerequisite to the imposition of liability upon the ostensible principal.

A prima facie case was established here that there was no such reliance, and the summary judgment should be upheld.

The majority cites Roberson v. Lampton, Ky., 516 S.W.2d 888 (1974), and Kaze v. Compton, Ky., 283 S.W.2d 204 (1955), for the proposition that summary judgment should not be granted unless it can be shown that the respondent could not possibly produce evidence at trial which would entitle him to prevail. Roberson v. Lamp-ton, supra, dealt with a summary judgment which was entered before discovery was completed and, in effect, only holds that the case was not ready for summary judgment.

In my view, summary judgment is never to be substituted for a trial, but under C.R. 56, if a party can make a prima facie case that no genuine issue of fact exists, the opposing party has the duty to come forward with something to rebut the prima facie case, and upon his failure to do so, summary judgment may properly be entered.

AKER and STEPHENSON, JJ., join in this dissent.

      . In one case, Johnson v. St. Bernard Hospital, 79 Ill.App.3d 709, 35 Ill.Dec. 364, 399 N.E.2d 198 (1979), the court held that the hospital was not liable for the negligence of an emergency room physician, but the principle of ostensible agency was not advanced or discussed.

      . Williams v. St. Claire Medical Center, Ky.App., 657 S.W.2d 590 (1983), from the Court of Appeals, applied the ostensible agency principle to the hospital/nurse anesthetist relationship. There was no Motion for Discretionary Review, so we did not consider the case.


author: CLAYTON, Judge.

text:
    COMMONWEALTH of Kentucky, Drexell R. Davis, State Treasurer, and Robert L. Warren, Secretary of the Finance and Administration Cabinet of the Commonwealth of Kentucky, Appellants, v. MOUNTAIN TRUCKERS ASSOCIATION, INC. and Walter Bartrum, Appellees.
    Court of Appeals of Kentucky.
    Dec. 21, 1984.

      Charles D. Wickliffe, Frankfort, for appellants.
    William D. Kirkland, Christopher Hill, McBrayér, McGinnis, Leslie & Kirkland, Frankfort, for appellees.
    Before CLAYTON, HOWERTON and REYNOLDS, JJ.
   CLAYTON, Judge.

This appeal involves a declaratory judgment and order of the Franklin Circuit Court declaring that all citations issued, convictions obtained, and fines collected for violation of the Kentucky “Tarp Law,” KRS 189.150, between October 27, 1982, and January 11, 1983, are illegal and invalid. All persons cited, convicted or fined during this period are adjudged by the same order to be entitled to refunds of fines collected.

Events resulting in the above judgment and order began October 27, 1982, when Southeast Kentucky Truckers and Coal Operators Association, Inc. (Southeast Truckers), filed a class action in Franklin Circuit Court claiming that various sections of Chapter 203 of the Acts of 1982 were unconstitutional. At the time suit was instituted, Southeast Truckers filed a motion pursuant to CR 65.03 for an ex parte order to restrain the defendant-appellants, the Transportation and Revenue Cabinets and the Commonwealth of Kentucky, “from administering and enforcing the provision of Chapter 203, Sections 10-18, excluding Section 14, as enacted by the 1982 General Assembly of the Commonwealth of Kentucky (Senate Bill 144, Sections 10-18, excluding Section 14).” On October 27, 1982, the circuit court signed the ex parte order accompanying the motion, apparently without being aware that the restraining order failed to exclude Section 14. After discovery of the error, an amended order was entered January 11, 1983.

During the interim, however, Walter Bartrum, a member of Mountain Truckers Association, Inc. (Mountain Truckers), an independent coal haulers association, was cited by the Kentucky State Police in Floyd County, Kentucky, for violating the Tarp Law on December 27 and 28, 1982. The law, KRS 189.150, requires vehicles carrying loads susceptible of spillage on public roads for a distance of more than one mile to be covered. Bartrum appeared in Floyd County District Court on January 12, 1983, the day after entry of the amended order, and pleaded guilty to both charges, paying a modest fine for each violation. At the time the citations were issued and the fine imposed, neither the citing officers nor the district court were aware of the original restraining order including Section 14, KRS 189.150. Three months later, Bartrum and Mountain Truckers brought this action in Franklin Circuit Court seeking a refund of those fines based upon the error contained in the original restraining order. The declaratory judgment and order mentioned at the outset of this opinion followed.

In essence, the appellants’ argument for reversal is that the original restraining order issued in Southeast Truckers had no effect on the judicial proceedings to enforce the Tarp Law as neither the state police involved nor the Floyd District Court were parties or privy to the action involving Southeast Truckers, nor did they have actual knowledge of the restraining order. Citing CR 65.03, it is reasoned that an ex parte restraining order is the equivalent of an injunction pendente lite restraining persons against whom it is directed from engaging in specified conduct during the pendency of an action. As such, the order binds only those parties served or informed or persons possessing actual knowledge. Therefore, while the Commonwealth was nominally a party, the only state agencies involved are the Transportation and Revenue Cabinets. Since neither the state police nor the district court are officers, agents or attorneys for either of these parties, they were not bound by the original order in Southeast Truckers. Naming the Commonwealth simply as the Commonwealth did not make the restraining order effective in a universal manner so as to suspend the statute or strip a court of otherwise competent jurisdiction of its power.

Mountain Truckers and Bartrum disagree, responding that since the Commonwealth was a party to Southeastern Truckers’ action, the circuit court’s original restraining order enjoined the state’s officers, agents and attorneys regardless of actual notice. As support for their interpretation of CR 65.02, appellees point to Shakman v. Democratic Organization of Cook County, 533 F.2d 344 (7th Cir.1976). In Shakman, supra, an employee of the City of Chicago attempted to raise the defense of lack of notice in a contempt action for violation of an injunction. The United States Court of Appeals for the Seventh Circuit held the employee in contempt reasoning that as an employee he did not need to receive actual notice to be bound. As another basis for affirmation, appellees turn to principles of comity. Supposedly, the Franklin Circuit Court’s erroneous assumption of jurisdiction over the Tarp Law bound all district courts to respect its restraining order, divesting them of jurisdiction to render decisions contrary to the order. This is so, it is argued, due to Akers v. Stephenson, Ky., 469 S.W.2d 704 (1970), which states that,

Where parties and subject matter are the same once a court of concurrent jurisdiction has begun to exercise jurisdiction over a case, its authority to deal with the action is exclusive and no other court of concurrent jurisdiction may interfere with the pending proceedings. Id. at 706.

Akers aside, policy considerations also supposedly favor affirmation, as upholding the validity of the fine would create jurisdictional conflicts doing serious harm to the spirit of Kentucky’s unified judicial system. We disagree and accordingly reverse the declaratory judgment and order of the Franklin Circuit Court.

Mountain Truckers and Bartrum misunderstand CR 65.02 and the fundamental nature of injunctive relief. Restraining orders, temporary injunctions and permanent injunctions as set forth in CR 65 are an extraordinary equitable remedy. See Maupin v. Stansbury, Ky., 575 S.W.2d 695, 697 (1978). As a class, these injunctions have been described as “summary peculiar and extraordinary, and ought not to be issued except for great and irreparable mischief.” See Wunderlich v. Scott, 242 Ky. 481, 485, 46 S.W.2d 753 (1932). This characterization seems especially apt in the case of restraining orders which are ordinarily granted without notice to the defendant who therefore has not had the opportunity to attack the plaintiffs claim. See G. Dobbs Handbook on the Law of Remedies, 107 (1973).

To prevent abuse by the “strong arm of equity,” as injunctions have been referred to, Wunderlich, supra at 484, 46 S.W.2d 753, both the federal and the Kentucky Rules of Civil Procedure require that restraining orders and injunctions be specific in their terms and describe in reasonable detail the act to be restrained. CR 65.02(1); Fiscal Court of Jefferson County v. Courier-Journal and Louisville Times Company, Ky., 554 S.W.2d 72 (1977) (citing Schmidt v. Lessard, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974) (interpreting Fed.R.Civ.P. 65(d)). These statutory requirements of specificity are nothing more than a codification of the ancient requirement of equity jurisprudence that an injunction be neither too broad nor too vague. Fiscal Court of Jefferson County, supra.

Yet the appellees’ interpretation of the Franklin Circuit Court’s order would set both CR 65.02 and the ancient proscription “on their ear.” To bind the entire legislative and executive branches from enforcing KRS 189.150 due to the nominal participation of the Commonwealth in Southeast Truckers runs directly contrary to the restrictions against broad and overly vague injunctive orders. Moreover, such an application of CR 65 in actions challenging the constitutionality of a state statute ignores the in personam nature of injunc-tive relief. A restraining order granting injunctive relief against the enforcement of a statute or ordinance is to be directed against the acts of those specific public officials charged with enforcing the statute to enjoin their threatened enforcement. Akers v. Floyd County Fiscal Court, Ky., 556 S.W.2d 146 (1977) (citing 42 Am.Jur.2d § 186). These same officials, their agents and attorneys are then, under CR 65.02, bound by the order. CR 65.02(2). Any restraining order attempting to bind the Commonwealth in its entirety, all of its executive, judicial and legislative officers, agents and attorneys, simply by the nominal participation of the Commonwealth, must be struck down as overly broad and vague. Such an order would run contrary to the very essence of injunctive relief while creating the very abuses CR 65 seeks to prevent.

Nor may all the courts of Kentucky, other than the Franklin Circuit Court, be automatically divested of their jurisdiction to hear matters involving KRS 189.150 simply by issuance of a restraining order including the Commonwealth as a party.

An injunction decree or order restraining actions or proceedings in another court is directed only to the parties. It is not addressed to the court and is in no sense a prohibition on it in the exercise of its jurisdiction. 42 Am.Jur.2d Injunctions, § 201 (1969).

What the appellee describes as the judicial effect of the circuit court’s original restraining order is actually a novel form of “blanket” writ of prohibition. A writ of prohibition is itself a drastic and extraordinary form of equitable remedy exercised by a court of higher authority against an inferior court where that court is acting without jurisdiction, or within jurisdiction but erroneously such that irreparable injury will result. Jones v. Tartar, 308 Ky. 813, 215 S.W.2d 955 (1948). Such a writ is not presently involved. Thus, while the courts have power to enjoin disputing parties presently before them from seeking relief in another judicial forum, they have no equitable power to prevent those other forums from hearing issues founded on identical statutory or common law principles but involving different parties. As neither of the acting officers was an official, agent or attorney of either the Transportation or Revenue Cabinets nor had actual notice of the controversy, their actions in citing Bartrum and the Floyd District Court’s action in convicting and finding him was not subject to the original restraining order issued in Southeast Truckers.

The declaratory judgment and order of the Franklin Circuit Court is reversed.

All concur.


author:
PER CURIAM:
      LOWENSTEIN, Special Judge, WELLIVER, Judge,

text:
    Alice J. PARKER, Plaintiff-Respondent, v. Ronald A. BRUNER, Defendant-Appellant.
    No. 66205.
    Supreme Court of Missouri, En Banc.
    Jan. 15, 1985.
    Russell X. Thompson, Memphis, Hal E. Hunter, Jr., New Madrid, for defendant-appellant.
    James E. Reeves, Caruthersville, for plaintiff-respondent.
   PER CURIAM:

This cause was certified to this Court, under Rule 83.01 by a dissenting judge in the Southern District of the Court of Appeals. The certifying judge deems the principal opinion in the Court of Appeals contrary to the decisions in Greco v. Anderson, 615 S.W.2d 429 (Mo.App.1980) and Breece v. Jett, 556 S.W.2d 696 (Mo.App.1977). He believes Greco and Breece “require proof of seduction by clear, cogent, and convincing evidence * * * [and] that the majority opinion does not require such proof.”

In Greco, there is no mention of the burden of proof required in a seduction case. In Breece, the mention of the required burden of proof is obiter dictum and not authority as a precedent in Missouri. “There is no doctrine better settled than that the language of judicial decisions must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.” State ex rel. Baker v. Goodman, 364 Mo. 1202, 1212, 274 S.W.2d 293, 297 (banc 1954).

The opinion of the Court of Appeals is not contrary to any previous decision of another appellate court of this State and we are not obliged to retain this cause.

Accordingly, the cause is retransferred to the Southern District of the Court of Appeals. See Morris v. Granger, 675 S.W.2d 15 (Mo. banc 1984).

RENDLEN, C.J., and HIGGINS, GUNN, BLACKMAR and DONNELLY, JJ., concur.

LOWENSTEIN, Sp. J., concurs in result in separate opinion filed.

WELLIVER, J., dissents in separate opinion filed.

BILLINGS, J., not sitting.

LOWENSTEIN, Special Judge,

concurring.

I concur in result. The certification under Rule 83.01 was not effective for the reasons stated in the majority opinion. That being so, there is really no justifiable reason under the rules for this case to now stay within this Court’s jurisdiction. State v. Higgins, 592 S.W.2d 151, 152-23 (Mo. banc 1979), relied upon by the dissent involved a transfer on the Western District’s own motion prior to opinion. This Court ruled the constitutional question raised as reason for the transfer did not exist, but, relying upon Rule 83.06 and, Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193 (Mo. banc 1972), retained the case in the interest of judicial economy. Foremost-McKesson, supra, involved a declaratory judgment and request for injunctive relief by milk distributors over rules and regulations promulgated by the Commissioner of Agriculture which had considerable effect upon the sale of milk in the state. Despite the apparent lack of a substantial constitutional question this Court kept the cause which had come straight from the trial court. Neither the rules nor Higgins and Foremost-McKesson provide for jurisdiction here of this case which was improvidently certified after opinion. To do otherwise would ameliorate Rule 83.02 which here gives the Southern District the opportunity to address the substantial question raised in the dissent. Although this Court “may” accept transfer after the district’s own motion under Rule 83.02, at least that whole court would have had the chance to address the matter. Also still available are the motion’s of the losing party to rehear and transfer or to ask this Court to consider transfer. Rules 83.02 and 83.03.

The paucity of cases in Missouri for damages for seduction indicate the lack of urgency to resolve the continuation of the doctrine. Unlike Higgins, where a life sentence was imposed for first degree murder, or the activities in Foremost-McKesson, this case does not justify allowing circumvention of the whole Southern District’s right to first address the matter.

If the posture here were different, and this Court could now consider this ease either on motion from the Southern District or on motion of a party, I would favor reversal and abolishing the cause of action for seduction, or allowing a plaintiff to recover only her actual damages and no recovery for punitive damages.

WELLIVER, Judge,

dissenting.

I respectfully dissent. The per curiam properly holds that the certificate of the dissenting judge shows no apparent conflict between the cited appellate decisions. It is regrettable that the matter was certified by the single dissenting judge rather than by appellant filing his application to transfer, a procedure I believe still available to him. The real conflict is that this court has never recognized that the participating woman can bring an action for seduction. The trend against permitting the participating woman from bringing such action together with the question of whether such action can be available to participating women and not to participating men are of sufficient general interest in my opinion to require us on the application of appellant to order transfer of the case. For these reasons, I would retain jurisdiction in the interest of judicial economy. State v. Higgins, 592 S.W.2d 151, 153 no. 1 (Mo. banc 1979). I would reverse.

The original petition involved only determination of paternity costs of child birth and child support, which subsequently was denominated as Count I of the amended petition. The amended petition added Count II which sought damages for seduction, both actual and punitive. After blood tests, appellant admitted all allegations regarding paternity and by his answer asked the court to fix the amount of costs of the child birth and child support. The matter was tried solely on Count II, which alleged seduction. Respondent received a verdict for twenty-five thousand dollars actual damages and fifty thousand dollars punitive damages. Appellant argues, inter alia, that the archaic common law action for seduction should be abolished.

The common law action for seduction is a relic of a lost era. “[SJeduction is the act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasions, or wiles which are calculated to have and do have that effect, and result in her ultimately submitting her person to the sexual embraces of the person accused.” 70 Am.Jur.2d Seduction § 1 (1973). The action arose as one of many judicial remedies available for interference with domestic relations. See generally, Pound,” Individual Interests in the Domestic Relations,” 14 Mich.L.Rev. 177 (1916). At common law, the action could be brought only by a parent — generally only the father — who was injured by the loss of services that resulted when their daughter was seduced. The common law offered two reasons why the seduced woman could not bring the action herself. First, the injury that the law protected against was the loss of services by one entitled to the services of the seduced woman. “The law developed as an offshoot of the action for enticing away a servant and depriving the master of his quasi -proprietary interest in his services. The wife and minor children were considered, in early common law, as superior servants [above all other servants] of the husband and father; loss of their services became the gist of his action.” Magierowski v. Buckley, 39 NJ.Super. 534, 121 A.2d 749, 753 (1956). Courts almost uniformly have held that the “action for seduction, in whatever form it may be brought, is founded upon the supposed loss of service by the plaintiff, and it must of course be alleged and proved that the relation of master and servant existed when the injury was committed.” Vossel v. Cole, 10 Mo. 395, 396 (1847). Some courts came to recognize that the loss of services is but a legal fiction and sub silento upheld the parent’s action as one for interference with family relations. Magierowski v. Buckley, supra, 121 A.2d at 755. Second, “the seduced woman was denied a civil action for damages, on the ground that she was a ‘consenting party,’ violenti non fit inju-ria, or equally at fault, in pari delicto.”

Feinsinger, “Legislative Attack on ‘Heart Balm,’ ” 33 Mich.L.Rev. 979, 986 (1935). A few jurisdictions, however, either by court decision or statute, came to consider the parent’s action as another legal fiction and altered the common law by permitting the woman herself to maintain the action. See generally W. Prosser & W. Keeton, Pros-ser & Keeton on the Law of Torts 927 (1984). See also Magierowski v. Buckley, supra, 121 A.2d at 752.

Up until 1977, the law in Missouri was well settled that only the person entitled to the woman’s services could bring a cause of action ex delicto for seduction. “It is settled that a woman cannot maintain an action for damages against her seducer.” Jordan v. Hovey, 72 Mo. 574, 576 (1880). Prior to 1977, there are only fourteen actions for seduction. See Carader v. Forehand, 1 Mo. 504 (1826); Vossel v. Cole, supra; Grider v. Dent, 22 Mo. 490 (1856); Heinrich v. Kerchner, 35 Mo. 378 (1865); McKern v. Calvert, 59 Mo. 243 (1875); Morgan v. Ross, 74 Mo. 318 (1881); Comer v. Taylor, 82 Mo. 341 (1884); Smith v. Young, 26 Mo.App. 575 (1887); Bailey v. O’Bannon, 28 Mo.App. 39 (1887); Hartman v. McCrary, 59 Mo.App. 571 (1894); Mohelsky v. Hartmeister, 68 Mo.App. 318 (1896); Koenke v. Bauer, 162 Mo.App. 718, 145 S.W. 506 (1912); Owens v. Fanning, 205 S.W. 69 (Mo.App.1918); Boedges v. Dinger, 428 S.W.2d 930 (Mo.App.1968) (count two of plaintiff’s petition). A somewhat similar cause of action available to the seduced woman was a contract action ex contractu — for the breach of a promise to marry, with the woman often alleging seduction as a factor aggravating the amount of damages sought. See e.g., Green v. Spencer, 3 Mo. 225 (1834); Roper v. Clay, 18 Mo. 383 (1853); Davis v. Slagle, 27 Mo. 600 (1859); Wilbur v. Johnson, 58 Mo. 600 (1875); Jordan v. Hovey, supra, Bird v. Thompson, 96 Mo. 424, 9 S.W. 788 (1888); Haus v. Moeller, 107 Mo. 471, 18 S.W. 884 (1891); Diese v. Meyer, 143 Mo. 547, 45 S.W. 282 (1898); Harmon v. Dono-hoe, 153 Mo. 263, 54 S.W. 453 (1899); Cole v. Holliday, 4 Mo.App. 94 (1877); Walters v. Cox, 67 Mo.App. 299 (1896); Trammell v. Vaughan, 168 Mo. 214, 59 S.W. 79 (1900); Broyhill v. Norton, 175 Mo. 190, 74 S.W. 1024 (1903); Clemons v. Seba, 131 Mo.App. 378, 111 S.W. 522 (1908); Erwin v. Jones, 192 Mo.App. 326, 180 S.W. 428 (1915); Fitch v. Coats, 167 S.W.2d 478 (Mo. App.1943); Boedges v. Dinger, supra. This Court has never chosen to depart from its holdings prohibiting the woman from bringing the action for seduction. The court of appeals, however, in the instant cause and in three other recent cases have enlarged the tort action by permitting the woman to bring the suit. Greco v. Anderson, 615 S.W.2d 429 (Mo.App.1980); Piggot v. Miller, 557 S.W.2d 692 (Mo.App.1977); Breece v. Jett, 556 S.W.2d 696 (Mo.App.1977). See generally Comment, “Seduction and Fraud — An Honorable Marriage?” 47 UMKC L.Rev. 464 (1979).

The factors prompting the public outcry during the mid 1930’s against actions for seduction and other related torts, coupled with the changing public mores and enlightened social conscience suggests that we abolish rather than enlarge the tort of seduction which the judicial branch itself created. Cf. Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599, 606 (Mo. banc 1969). During the 1930’s, “[pjublic opinion almost universally favored the abolition” of such actions. Magierowski v. Buckley, supra, 121 A.2d at 757. Some of the reasons for this national attention and national trend are suggested by Prosser and Kee-ton:

Those actions for interference with domestic relations which carry an accusation of sexual misbehavior — that is to say, criminal conversation, seduction, and to some extent alienation of affections— have been peculiarly susceptible to abuse. Together with the action for breach of promise to marry, it is notorious that they have afforded a fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force settlement.
There is good reason to believe that even genuine actions of this type are brought more frequently than not with purely mercenary or vindictive motives; that it is impossible to compensate for such damage with what has decisively been called “heart balm;” that people of any decent instincts do not bring an action which merely adds to the family disgrace; and that no preventive purpose is served, since such torts seldom are committed with deliberate plan.

W. Prosser & W. Keeton, supra, at 929. Additionally, Professor Feinsinger explained that “[t]he underlying explanation is probably a realization of the failure of these actions to accomplish their original social purposes, and their non-conformity with changed mores concerning sex morality, the status of women, and the functions of the family.” Feinsinger, supra, at 979. A similar sentiment was expressed by Judge Simeone, in his scholarly court of appeals opinion in Breece v. Jett, supra.

Whether an action for seduction should be retained in contemporary society as a matter of judicial policy is highly questionable. The arsenal of such judicially created remedies has, in modern times, been abolished by legislatures of several states for a multitude of reasons. Recent social trends and the changing mores of contemporary society concerning sex and morality and the new found status of women may well make the action for seduction a remedy of a bygone era. In many states civil actions for sexual involvement have been abolished by the so-called “Heart Balm Statutes.” There has come to be a realization today that actions of this kind have failed to accomplish their original social purpose and are considered by many jurisdictions to be socially unwise. Such actions are subject to great abuses, causing embarrassment, humiliation and damage to persons who may be wholly innocent and perhaps such actions afford a fertile field for blackmail and extortion.
The woman of today is not the woman of yesteryear. She has a new-found freedom. The modern adult woman is sophisticated and mature. The former notion that women belong to the weaker sex has long been abandoned. The modern woman is not “easily bequiled” and does not easily fall to the “wiles” of man. Women desire and should be held to a reasonable responsibility.
While we believe that an action for seduction is socially unwise in modern society, we believe that as an intermediate appellate court we cannot abolish the action.

Id. at 707-08. Retaining the cause of action for seduction can only mean perpetuating a false stereotype of the modern woman. It is not the function of the judiciary to assist in perpetuating such archaic mores. Other remedies are available which are not based upon fictions or a tort embodying debasing assumptions of women.

Although our brother Simeone did not have an occasion to make his words in Breece a pronouncement of this Court, the time has come for us to do so. We should abolish the action of seduction.

The cause should be reversed.

        . See Note, "Avoidance of the Incidence of the Anti-Heartbalm Statutes," 52 Colum.L.Rev. 243 (1952).

      . Although I would dispose of this case for the reasons expressed by my opinion, I also have grave reservations over whether the law of seduction would pass constitutional muster. The cause of action favors outmoded stereotypes of women and thereby denies men the right to sue for seduction. There is no valid reason for such a distinction, W. Prosser & W. Keeton, supra, at 926, and the constitutionality of such a classification is highly questionable. See Kline v. An-sell, 287 Md. 585, 414 A.2d 929 (1980) (the common law cause of action for criminal conversation unconstitutional).


author: PER CURIAM:

text:
    Walter Junior BLAIR, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. WD 35053.
    Missouri Court of Appeals, Western District.
    July 31, 1984.
    Case Retransferred from the Supreme Court Nov. 20, 1984.
    Court of Appeals Opinion Readopted Dec. 4, 1984.
    Application to Transfer Denied Jan. 15, 1985.
    James W. Fletcher, Public Defender and Gary L. Gardner, Asst. Public Defender, Kansas City, for movant-appellant.
    John Ashcroft, Atty. Gen., and John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and SOMER-VILLE and MANFORD, JJ.
   ORDER

PER CURIAM:

This is a direct appeal from the denial of post-conviction relief sought pursuant to Rule 27.26.

Judgment affirmed. Rule 84.16(b).


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, ex rel., Gary L. FOSTER, Petitioner, v. Honorable Ronald R. McKENZIE and Dean Mason, Sheriff, Respondents.
    No. 49266.
    Missouri Court of Appeals, Eastern District, Division One.
    Oct. 23, 1984.
    J. Patrick Wheeler, Canton, for petitioner.
    John Munson Morris, Asst. Atty. Gen., Jefferson City, Mark Steven Wasinger, Hannibal, for respondents.
   DOWD, Presiding Judge.

Petitioner Gary L. Foster was confined for civil contempt arising from his failure to pay child support, maintenance, and attorney fees as ordered in a divorce decree. On his petition, we issued a Writ of Habeas Corpus, which we made absolute, ordering petitioner’s discharged from confinement. We state our reasons in this opinion.

On August 2, 1984, a hearing was held on Dyan (Foster) Brooke’s motion to hold petitioner in contempt. At that hearing petitioner was ruled indigent and counsel was appointed to represent him. Thereafter, on the same day, a hearing was held and petitioner was adjudged in contempt of court for failure to make the payments as ordered in the decree. He was ordered confined until he purged himself of contempt by either payment of the full amount owed or presentation of a plan for payment of this amount.

This was an order of committment for civil contempt. Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. banc 1976). On imprisonment for civil contempt, the con-temnor in a sense has the key to his cell in his pocket, Brown v. Brown, 646 S.W.2d 888, 889 (Mo.App.1983); he can secure his release by purging himself of contempt in whatever manner is specified in the order. The contemnor must have the ability to purge himself of his contempt to justify imprisonment for civil contempt. Huber v. Huber, 649 S.W.2d 955, 958 (Mo.App.1983); Mechanic v. Gruensfelder, 461 S.W.2d 298, 304 (Mo.App.1970).

In the present matter, petitioner, who is unemployed and not overendowed with assets, was found to be indigent and a lawyer was appointed to represent him on the hearing on the motion to hold him in contempt. In habeas corpus the legality of the civil contemnor’s restraint may be considered insofar as that can be determined from the face of the record. Ex Parte Ryan, 607 S.W.2d 888, 892 (Mo.App.1980). Here the record shows that the indigency order was never set aside, and is thus in conflict with the recitation in the judgment of contempt that he has the ability to comply with the order, and with the stated means of purging his contempt, which was to pay the support arrearages or to present a plan for payment of the arrearages. In the face of the specific finding of indigency the committment for contempt cannot stand. The petition for Writ of Habeas Corpus is granted. The writ is issued, made absolute, and the petitioner is ordered discharged.

PUDLOWSKI and SIMON, JJ., concur.


text:
    STATE of Missouri, Respondent, v. Kelvin O. OWENS, Appellant.
    No. WD 35232.
    Missouri Court of Appeals, Western District.
    Oct. 30, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.
    Bernard Passer, Passer & Hanson, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Jefferson City, John M. Morris, Asst. Atty. Gen., for respondent.
    Before DIXON, J., Presiding, and SHAN-GLER and SOMERVILLE, JJ.
   ORDER

PER CURIAM:

The defendant appeals his conviction for possession of a controlled substance in violation of Sections 195.020 and 195.240 RSMo 1978. The judgment of conviction and the sentence of nine and five years imposed by the jury are affirmed. Rule 30.25(b).


author: MANFORD, Judge.

text:
    STATE of Missouri, Respondent, v. Gregory K. HUNT, Appellant.
    No. WD 35348.
    Missouri Court of Appeals, Western District.
    Nov. 6, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Overruled and Denied Dec. 26, 1984.

      Joseph H. Locascio, Sp. Public Defender, and John M. Torrence, Asst. Sp. Public Defender, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, C.J., and SHAN-GLER, and MANFORD, JJ.
   MANFORD, Judge.

This is a direct appeal from a jury conviction for burglary, second degree, in violation of § 569.170, RSMo 1978 and stealing over $150.00, in violation of § 570.030, RSMo 1978. Sentencing was entered pursuant to § 558.016, RSMo 1978. The conviction is affirmed, but the cause is remanded with instructions for the exclusive purpose of resentencing.

Appellant presents four points, which in summary charge that the trial court erred

(1) in overruling appellant’s motion for mistrial because of evidence of another offense for which appellant was not standing trial;

(2) in overruling appellant’s objection to testimony related to an in-custody statement of appellant because there was no showing that said statement was freely and voluntarily given or made, (3) in entering judgment because said judgment did not conform to requirements of § 558.021, RSMo 1978, and (4) in overruling appellant’s motion for specific performance of a plea agreement.

There being no challenge to the sufficiency of the evidence, a summary of the pertinent facts suffices.

On October 23, 1982 at about 10:00 a.m., the victim, Sandra Wright, returned to her residence at 6109 McGee, Kansas City, Missouri. She observed that her residence had been burglarized. She also found on her dining room table a police report. She contacted neighbor and learned that the police had discovered the burglary. The victim informed the police that various jewelry items and a television set were missing. It was established that the combined value of these items exceeded $150.00.

A witness testified that he and his girlfriend were parked in his car in front of 6108 McGee at about 1:00 a.m. on October 23, 1982. He testified that a car pulled behind his vehicle and a man got out and proceeded across the street. A short time later, the witness observed the man return to his car, carrying what looked like a television set. After some difficulty, the man put the television set in his car. The man then returned across the street. This witness made a note of the license number and the make and model of the man’s car. The witness, with his girlfriend, drove away, went around the block, and returned to observe that the man’s car was gone. The girlfriend’s father called the police.

A police officer testified to being dispatched to 647 East 61st Street, where upon arrival, the officer observed a vehicle matching the description and bearing the license number reported by the witness and his girlfriend. Other officers were summoned and a search of the area uncovered appellant crouched behind shrubbery at the 647 East 61st Street residence. Appellant was arrested and a search of his person pursuant to the arrest yielded jewelry items later identified by the victim.

On October 23, 1982 at about 9:00 a.m., appellant was questioned by an officer. The officer presented appellant the Miranda warning on a form card. Appellant acknowledged that he could read, but did not sign a Miranda waiver. The officer asked appellant if he had committed the burglary at 6109 McGee. Appellant responded, “I don’t know why God is punishing me and letting me get caught. I have never killed anybody, all I do is steal.”

Appellant offered no evidence after a hearing in which he was advised of his right to testify or not to testify. Appellant declined. The evidence closed. The jury returned its verdict. Judgment and sentence were entered. This appeal followed the overruling of timely-filed post-trial motions.

Under his point (1), appellant charges that the trial court erred in denying his motion for a mistrial because of testimony of another offense for which he was not standing trial.

During the state’s case in chief, a witness was qualified as a fingerprint expert. He was handed an exhibit and identified it as a “latent lift card”. During his identification of the document, the witness stated, “This is a latent lift card, which I received on the 25th of October, 1982 marked, indicated in connection with the burglary of Boyd Taylor.”

At a bench conference, defense counsel declared to the court, “I object, Your Hon- or, it introduces evidence of other crimes and is prejudicial to my client, it’s irrelevant and immaterial to this ease. I would ask the jury be admonished to disregard the statement or in the alternative that a mistrial be ordered.”

The trial court promptly granted counsel’s request and admonished the jury to disregard the answer and to not consider it in its deliberation.

Appellant’s point (1) is ruled against him, upon being found to be meritless.

The evidence of guilt was strong herein, and while in a close ease the court’s refusal to grant a mistrial upon introduction of evidence of other crimes could be prejudicial, such refusal in a case such as herein can be considered harmless. State v. DeGraffenreid, 477 S.W.2d 57 (Mo. banc 1972). Appellant herein obtained the alternative sought-after relief.

Under his point (2), appellant charges that the trial court erred in overruling his objection to testimony of a witness which confirmed a statement made by appellant, because the prosecution failed to establish that said statement was freely and voluntarily given.

Reduced to its simplest form, appellant’s argument under point (2) is that the state had the burden to show that appellant’s statement was freely and voluntarily given and that the statement was not secured in violation of appellant’s constitutional protection against self-incrimination. Appellant cites to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

When asked if he had committed the burglary in question, appellant responded, “I don’t know why God is punishing me and letting me get caught. I have never killed anybody, all I do is steal.” This statement followed the tender of a Miranda form which the officer-witness testified appellant read and returned to the officer. It was determined that appellant could read.

It is appellant’s position that his conviction must be reversed because the trial court failed to make a finding that his statements were voluntary. It is appellant’s position that such a finding must be that said statement was voluntary in clear and unequivocal terms. Such requirement is not necessary. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967).

The voluntariness of a confession is to be determined from and by the “totality of the circumstances”. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), State v. Olds, 569 S.W.2d 745 (Mo. banc 1978). It is clear from the record before this court that appellant’s statement was freely and voluntarily given. He was advised of his Miranda rights. Following this, he was asked if he had committed the burglary and his free response was as set forth above. His statement was a product of his own free will. State v. Flowers, 592 S.W.2d 167,169 (Mo. banc 1979).

Point (2) is meritless and is denied. Under his point (3), appellant asserts that the judgment and sentence are void because the trial court was without jurisdiction in that the judgment and sentence did not comply with § 558.021, RSMo 1978 upon the failure of the trial court to make specific findings of fact regarding appellant’s being a persistent offender.

Appellant’s point (3) can be disposed of without further discussion. It is sustained and the relief afforded is that this conviction is affirmed, but the cause is

remanded for the exclusive purpose of re-sentencing within the rules announced in State v. Thompson, 629 S.W.2d 361 (Mo.App.1981), State v. Slater, 633 S.W.2d 439 (Mo.App.1982); State v. Moore, 633 S.W.2d 140 (Mo.App.1982), and Buford v. State, 662 S.W.2d 581 (Mo.App.1983).

Under his final point (4), appellant charges that the trial court erred in overruling his motion for specific performance of a plea bargain agreement, because the evidence clearly showed that prior to trial the parties entered into a plea agreement and that said agreement was breached by the state.

A brief account of the facts surrounding this issue is necessary. It is noted that the following facts were determined after appellant’s trial but prior to sentencing. At no time did appellant enter a guilty plea in these proceedings. The present case, along with another charge against appellant were set for preliminary hearing on November 8, 1982. The hearing was continued to November 22, 1982 to work out a plea agreement. Former defense counsel for appellant testified that a plea offer was made by the prosecution. Defense counsel further testified, however, that she could not recall whether appellant accepted the offer. Appellant testified that he had accepted the plea offer. Appellant further testified that the parties approached the bench. Someone entered the courtroom and had a private conversation with the prosecutor. The prosecutor refused to go further with the plea proceedings. Original defense counsel was permitted to withdraw and was succeeded by other counsel. After trial but prior to sentencing, appellant filed his motion seeking specific performance of the plea agreement. After hearing evidence on this motion, relief was denied.

Appellant relies upon Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), but such reliance is misplaced, for that case involved the entry of a plea of guilty followed by the failure of the prosecution to carry out its part of the plea agreement. It should be noted that the court herein was under no obligation to accept appellant’s plea of guilty and any plea agreement. Appellant is afforded no constitutional guarantee of the acceptance of a plea or any attending agreement. State v. Cotton, 621 S.W.2d 296 (Mo.App.1981), State v. Lankford, 565 S.W.2d 737 (Mo.App.1978). The motion herein was presented after appellant had gone to trial and was convicted by jury. Original defense counsel cast doubt upon appellant’s acceptance of the plea agreement. It cannot be said that the trial court erred upon the whole of the evidence in that from that evidence the trial court could have found appellant had a mere expectation of the acceptance of a plea with an attending plea agreement.

Appellant’s point (4) is meritless and is denied.

The judgment herein is affirmed, but the cause is remanded for the exclusive purpose of resentencing under the rules announced in Thompson, Moore, Slater, and Buford, supra.

All concur.