author: JORDAN, Justice. ASHWORTH, Justice,

text:
    HOLIDAY HILLS RETIREMENT AND NURSING CENTER, INC., Appellant, v. Bertha F. YELDELL, Appellee.
    No. 2-84-138-CV.
    Court of Appeals of Texas, Fort Worth.
    March 21, 1985.

      Chappell & Handy, P.C. and Michael Handy, Fort Worth, for appellant.
    Eakins & Kraft and George Johnson, Dallas, for appellee.
    Before JORDAN, ASHWORTH and JOE SPURLOCK, II, JJ.
   OPINION

JORDAN, Justice.

Bertha F. Yeldell brought suit against Holiday Hills Retirement and Nursing Center, Inc., a non-subscriber to Worker’s Compensation, for personal injuries she sustained while employed at Holiday Hills as a charge nurse when a coffee urn overturned, spilling scalding hot coffee over her abdomen and legs. The suit was brought by virtue of TEX.REV.CIV.STAT.ANN. art. 8306, sec. 4 (Vernon 1967), which provides in general that in actions for personal injuries against a non-subscriber to Worker’s Compensation, the plaintiff must prove negligence of the employer or an agent or servant of the employer acting within the general scope of his employment. Id. Trial to a jury resulted in a verdict for Yeldell in the amount of $155,134.00. The nursing home appeals on seven points of error.

We reverse and remand.

Appellee, Yeldell, is a licensed vocational nurse, who, on December 23, 1979, was employed by Holiday Hills as a charge nurse. She was responsible for some thirty patients and her duties included giving medications, tending to patients’ needs, charting, supervising the nurses’ aides, and taking doctors’ orders. On that date she was working the 3:00 p.m. to 11:00 p.m. shift and about 7:00 p.m. on that evening was talking to her daughter on the telephone at her nurses’ station. The phone, which was for the use of patients and visitors, was placed on a ledge running in front of the nurses’ station. Yeldell admitted that the phone call with her daughter was purely personal and had nothing to do with the business or operation of the nursing home. While on the phone, Yeldell asked a nurses’ aide to leave the coffee cart in front of the nurses’ work station instead of taking it back to the kitchen. On the cart was a large 50-cup coffee urn, which, under the rules of the nursing home, was supposed to remain on the coffee cart at all times. The urn was plugged in through the window at Yeldell’s work station.

While standing at her desk, Yeldell finished the conversation with her daughter, and placed the receiver on the phone. She then turned to put the phone back on the ledge, where it belonged, so that it could be used by patients and visitors. Sometime before or during the telephone conversation, the coffee urn had been removed from the cart and placed on the ledge of the window at Yeldell’s desk. When Yeldell tried to put the phone back on the ledge, she apparently got the telephone wires and the electric cord for the coffee urn tangled. Consequently, the large urn toppled over, spilling hot coffee all over the front lower part of Yeldell’s body. She received second and third degree burns on her abdomen and both legs, which eventually required skin grafts.

Appellant’s first complaint regards the trial judge’s exclusion of the testimony of one Shirley Scroggins, a dietary aide, who, the parties stipulated, would have testified that Bertha Yeldell herself placed the coffee urn on the ledge. This evidence would have been extremely important to appellant in this case because it would have been some evidence that the conduct of Yeldell was the sole proximate cause of her accident, a finding of which by the jury would have denied recovery to Yeldell.

The testimony of Shirley Scroggins was excluded because appellant’s answers to interrogatories inquiring as to the identity of witnesses to the occurrence of December 23, 1979, were not supplemented to include her as a witness. It is undisputed that when the interrogatories were originally answered, neither the nursing home's attorney nor anyone else connected with it knew of the substance of Scroggins’ testimony. Shirley Scroggins’ name was listed in the original answers to the interrogatory which asked for a list of kitchen and dietary helpers. Moreover, there was testimony that Bertha Yeldell’s attorney knew about Scroggins and at one time asked to take her deposition. Appellant’s attorney testified, out of the presence of the jury, that he offered the deposition of Scroggins to appellee at any time but the offer was never accepted. Yeldell’s attorney did not ask for a continuance before trial or for the opportunity to take Scroggins’ deposition during the trial. The trial judge ruled that there was a duty to supplement the answers to the witness interrogatory and excluded the proffered testimony of Shirley Scroggins. In this we think he erred.

Since this case was tried in the week of March 26, 1984, the April, 1984 amendments to the Rules of Civil Procedure, including Rule 168, were not yet in effect. Thus, Rule 168 as it read prior to April 1, 1984, controls the trial judge’s action in excluding the testimony of Shirley Scrog-gins.

Rule 168(7) provided very plainly that “[a] party whose answers to interrogatories were complete when made is under no duty to supplement his answers to include information thereafter acquired.” TEX.R.CIV.P. 168(7) (Vernon Supp.1983) (located at 599 S.W.2d, Texas Cases, XLIV, XLIV-XLV). (Emphasis added.) This is the general rule, or was at the time in question, and is the rule which should have been followed here. Rule 168(7) proceeds to require supplementation of answers: (1) if the party answering knows his answer was incorrect when made; (2) if he knows that the answer, though correct when made, is no longer true and the circumstances are such that a failure to amend the answer is in substance a knowing concealment or misrepresentation; or, (3) if the party expects to call an expert witness and he has not revealed the witness’s name nor disclosed the subject matter of such witness’s testimony in his prior response to an appropriate interrogatory, then his answer must be amended to include the name, address, telephone number of the witness and the substance of his testimony. Id.

Apparently, the trial court felt that the answers to the interrogatory inquiring of witnesses were complete when made but became incomplete because of additional information and that supplementation was therefore required. We note that the section of Rule 168 requiring supplementation refers to answers, not which become incomplete, but which are untrue. See Id. If there were a duty to supplement every time an answer which was complete when made and later became incomplete because of additional information being acquired, the general rule would necessarily be that all answers to interrogatories must be supplemented to include information thereafter acquired. This is just not the rule; the rule is exactly opposite, when it states: “[a] party whose answers to interrogatories were complete when made is under no duty to supplement his answers to include information thereafter acquired.” Id.

The source of Texas Rule 168 is Federal Rule 26 and Federal Rule 26(e) is identical in wording to Rule 168(7) except that in addition to requiring supplementation with regard to the identity of expert witnesses, the Federal Rule specifically requires supplementation with regard to the “identity and location of persons having knowledge of any discoverable matter.” Compare FED.R.CIY.P. 26 with TEX.R.CIV.P. 168(7) (Vernon Supp.1983) (located at 599 S.W.2d, Texas Cases, XLIV, XLIV-XLV). Texas Rule 168(7) is silent as to any duty to supplement with respect to non-expert witnesses. TEX.R.CIV.P. 168(7) (Vernon Supp.1983) (located at 599 S.W.2d, Texas Case, XLIV, XLIV-XLV).

We hold that the court’s interpretation of Rule 168(7) was incorrect, and even if it were not, we think the court abused its discretion in not admitting the testimony of Shirley Scroggins. Her testimony, according to the stipulation of the parties, would have been that appellee herself, Bertha F. Yeldell, put the coffee urn up on the ledge, and this testimony, if admitted and believed by the jury, could have been found to have been the sole proximate cause of the accident and the injuries to Yeldell. Under TEX.REV.CIV.STAT.ANN. art. 8306, sec. 4 (Vernon 1967), in all actions against an employer who is not a subscriber to Worker’s Compensation, for a plaintiff to recover it is only necessary for the plaintiff to prove the negligence of his employer or of some agent or servant of his employer acting within the general scope of his employment.

Moreover, in the present case, at the time Scroggins’ testimony was proffered and refused by the court, there was no claim of surprise or prejudice by appellee. In fact, as we have previously shown, the existence of this witness was known to appellee and her attorney from the beginning and in fact, appellant’s counsel offered Scroggins for deposition long before trial as well as during trial. Appellee did not ask for a continuance to either depose Scroggins or otherwise prepare to meet her testimony.

For the reasons stated, we hold that there was no duty on the part of appellant to supplement his answers regarding non-expert witnesses, and furthermore, if there was such a duty, the trial court, in this particular instance, abused its discretion in refusing the proffered testimony of Shirley Scroggins. See Murphy v. Magnolia Electric Power Ass’n, 639 F.2d 232, 234-35 (5th Cir.1981).

Appellant’s first point of error is sustained.

Holiday Hills next maintains that it was error for the trial judge to hold as a matter of law that Bertha Yeldell was at the time of her injury on her employer’s premises acting in the course and scope of her employment. Appellant insists that the question of course and scope of employment should have been submitted to the jury. This was a fact question because at the precise time of Yeldell’s accident she had deviated from the course and scope of her employment. We agree that a fact question was raised which should have been submitted to the jury for determination.

TEX.REV.CIV.STAT.ANN. art. 8309, sec. 1(4) (Vernon 1967), defines “injury sustained in the course of employment” as being injuries “having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” Generally and usually the question of whether an employee was in the course and scope of his or her employment at the time of injury is a fact question for the jury to be determined upon its own particular facts. There are cases and situations where course and scope could be determined as a matter of law, but in our opinion, this is not one of those cases.

Appellant in its brief argues strongly that from the undisputed facts in this case, Bertha Yeldell had deviated from her employment when she was injured, as a matter of law. Appellant’s brief argues at great length that because Yeldell was engaged in a personal telephone conversation with her daughter immediately before she put the phone back on the hook and upset the coffee urn on her, that, as a matter of law, she was not engaged in any activity which had to do with or arose out of her employment or which was in furtherance of her employer’s work at the time of her injury. Appellant also stresses other evidence that Yeldell was not in the course and scope of her employment at time of injury. This evidence showed: she was not on an authorized coffee break at the time of the injury; there was a nursing home rule against an employee’s use of the telephone when not on a coffee break or off-duty; and she had signed charts and medical records earlier indicating medicine had been given patients when it had not. There was other evidence which appellant says indicated that Yeldell had actually ceased functioning as an on-duty nurse on the evening the accident occurred.

While we disagree with appellant that the evidence in this case, some of which we have recited, requires a holding that as a matter of law Bertha Yeldell was not engaged in or about the furtherance of the affairs or business of her employer, we hold there was sufficient evidence to raise a fact question for the jury, and it was error for the trial court to conclude as a matter of law that Yeldell was in the course and scope of her employment at time of injury. We do not hold that any time an employee makes a personal telephone call during business hours, and engages in a conversation having nothing whatever to do with the business or affairs of his employer, he automatically deviates from that employment. However, in this case, the fact that Yeldell was admittedly involved in a personal phone conversation with her daughter, which had nothing to do with her employer or its business, and it was while concluding this personal phone call that Yeldell accidentally upset the coffee urn on herself, there was a fact question raised on the matter of course and scope of employment which should have been answered by the jury and not the judge. There is also some other evidence, though admittedly weak, which we have mentioned above, but which also helps raise a fact question for the jury as to Yeldell’s status at the time of her injury.

Appellant’s second point of error is sustained.

By its third point of error, Holiday Hills says the trial court erred in refusing to submit its requested special issues on comparative negligence. Appellant argues that because neither art. 8306, sec. 1 of the Worker’s Compensation Act, nor any other statute, precludes the use of comparative negligence by a non-subscribing employer, an issue on comparative negligence should have been submitted. We have found no cases which purport to answer the question here, but we think that a reading of art. 8306, sec. 1, and an analysis of comparative negligence and of the defenses available to a non-subscriber to the Worker’s Compensation law, makes it clear that the trial court was correct in refusing to submit an issue on comparative negligence.

Article 8306, sec. 1(1), (2), and (3), provides that in worker’s compensation cases by plaintiffs for injuries sustained while in the course of employment, the employer is deprived of the defense that: the employee was contributorily negligent; the injury was caused by the negligence of a fellow employee; or the employee had assumed the risk of injury incident to his employment. TEX.REV.CIV.STAT.ANN. art. 8306, sec. 1(1), (2), and (3) (Vernon 1967). Article 8306, sec. 1(4) says that in all actions against an employer who is not a subscriber, as defined in this law, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment. TEX.REV.CIV.STAT.ANN. art. 8306, sec. 1(4) (Vernon 1967). Under a plain reading of this statute, any negligence of the plaintiff which was not the sole proximate cause of his injury would avail the employer nothing. Under this statute, insofar as a nonsubscriber is concerned, all the plaintiff has to do is show that some negligence of the employer caused his injury. It matters not if the plaintiff was negligent, or helped cause his injury, unless, as we have stated, that negligence was the sole and only cause of his injury. In such case, of course, the plaintiff would have failed to prove the requisite negligence of the employer. In order for appellee to recover for her injuries, it was necessary for her to allege and prove negligence on the part of her employer proximately causing the injuries. The only defenses available to Holiday Hills, the employer in this case, were to show that it was not guilty of negligence proximately causing the injury or that appellee herself was guilty of some act which was the sole proximate cause of the injuries.

Appellant’s defense of sole proximate cause was properly submitted to the jury by way of the following instruction in the court’s charge:

There may be more than one proximate cause of an event, but there can be only one sole proximate cause. If an act or omission of any person was the sole proximate cause of an occurrence, then no act or omission of any other person could have been a proximate cause.

This was all that Holiday Hills needed or was entitled to raise in its defense of negligence of Yeldell as sole proximate cause.

Application of art. 2212a TEX.REV.CIV. STAT.ANN. (Vernon Supp.1985) (comparative negligence) here would imply that there was negligence on the part of both parties, the employer and Bertha Yeldell, the employee. As we have just seen, simple negligence found against Yeldell would avail the employer nothing, because under art. 8306, sec. 1, it would not bar her recovery. It is, we repeat, only if the employee’s negligence is found to be the sole proximate cause of the injury, that her recovery would be barred, because this would mean there was no negligence on the part of the employer.

It is possible in this type of case that if comparative negligence were submitted, the jury could find that the percentage of Bertha Yeldell’s negligence proximately causing her injuries was 100 percent. That is the only comparative negligence finding which could benefit appellant. The instruction regarding sole proximate cause contained in the court’s charge was not only the correct instruction but was all to which appellant was entitled.

We hold that in employees’ suits against a non-subscribing employer to the Compensation law, comparative negligence is not applicable and should not be submitted to the jury.

Appellant’s third point of error is overruled.

Holiday Hills Retirement and Nursing Center, Inc., has brought forward four other points of error which it urges in support of a remand of this case. Some of the matters which are the subject of these four points of error may not recur on retrial. In the event the subject matter of points of error four through seven in appellant’s brief should arise on new trial, it should be shown that we have carefully reviewed this entire record, and all of the matters raised in both briefs, and we consider points of error four through seven as without any merit. Accordingly, without further discussion, we hold that there is no error shown by these last four points of error and overrule them.

The judgment is reversed and the cause remanded for new trial in accordance with the instructions contained herein.

ASHWORTH, J., dissents.

ASHWORTH, Justice,

dissenting.

I respectfully dissent.

The trial court properly excluded the testimony of Shirley Scroggins.

Pursuant to the rules then in effect, ap-pellee sought the names of persons with knowledge of relevant facts. While the name of Scroggins had been furnished as being an employee of appellant, she was not disclosed as being a potential witness. Appellant properly recognized an obligation to update its disclosure of witnesses by supplementing its answers and adding the name of Yvonne Skipper. Appellant had a duty under TEX.R.CIV.P. 168(7)(a)(2) to again supplement its answers and add the name Scroggins as a potential witness— failure to do so amounts to a knowing concealment or misrepresentation and permits trial by ambush.

Appellee was entitled to believe she was going to trial on the basis of the names furnished as constituting those who might be called as witnesses. The argument that appellee knew Scroggins was an employee of appellant and that discussions were had concerning the taking of Scroggins’ deposition by appellee begs the question. If appellant contemplated using Scroggins as a witness, it had the duty to disclose her name to appellee prior to trial as a person with knowledge of relevant facts. Appel-lee was under no duty to ask for a continuance or request to depose Scroggins prior to her testimony. Upon the ruling by the court that Scroggins would not be permitted to testify, the burden then was on appellant to withdraw its announcement of ready and request a continuance.

The trial court properly ruled that as a matter of law appellee was in the course and scope of her employment at the time of the injury. The only reason for holding that there is a fact question on course and scope of employment is the fact that appel-lee was involved in a personal phone conversation with her daughter. Any employer who places a telephone in an employee’s work area should reasonably expect that some personal calls will be made. In this case, the fact that appellee was conversing with a relative on a personal matter is of no import; she was entitled to use of the phone for appellant’s business and the fact that she may have stepped aside briefly from such business was not of such significance as to take her activity outside the course and scope of her employment.

While I agree with the majority’s holding on the third point of error, I disagree that appellant was entitled to an instruction on sole proximate cause. This is an instruction as to an inferential rebuttal issue and has no business in a court’s charge. There is but one question in this case: was the appellant negligent and was such negligence a proximate cause of appellee’s injuries. If appellant was not guilty of negligence that was a proximate cause, then it necessarily follows that something else caused the injuries. Other possible causes are of no concern to the jury and an instruction on sole proximate cause serves no purpose other than to create confusion in the minds of the jury and constitutes a comment on the weight of the evidence.

The judgment should be affirmed.


source: Caselaw Access Project

author: McDONALD, Judge:

license: Public Domain

text:
    CORBIN TIMES-TRIBUNE, Appellant, v. KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION and E. Christine Fricke, Appellees.
    Court of Appeals of Kentucky.
    Feb. 15, 1985.
    Case Ordered Published By Court of Appeals March 22, 1985.
    David W. Burton, Leick, Hammons & Burton, Corbin, for appellant.
    J. William Hernandez, Terry L. Morrison, Cabinet for Human Resources, Frankfort, Pleas Jones, Williamsburg, for appellees.
    Before McDONALD, MILLER and REYNOLDS, JJ.
   McDONALD, Judge:

This is an appeal dealing with unemployment insurance benefits. The employer presents basically one issue: Whether a person hired initially on a part-time basis who continues in some aspect of part-time employment can ever qualify for unemployment insurance benefits. We hold that in appropriate circumstances, such benefits are proper.

The claimant/employee was hired specifically for part-time employment. Initially the parameters of the job would provide hours ranging up to 19 ½ hours per week. During the year prior to the filing of this claim, the employee averaged 17 hours per week, while during the actual claim year she averaged 13 hours per week.

At the adjusted determination stage, it was ruled in the employee’s favor that she could file for benefits. At the next stage, the referee affirmed that conclusion, but of course pointed out that any actual earnings she did have would be set off against any benefits she was to receive. The Unemployment Insurance Commission affirmed the referee’s decision, and the circuit court affirmed the ruling of the Unemployment Insurance Commission.

K.R.S. 341.080(3) is the key to this question. It defines “week of unemployment” as seven consecutive days of less than full-time work and earnings less than an amount equal to one and one-fourth times the appropriate benefit rate for the particular claimant. If the earnings fall below the benefit rate and the hours worked are part-time, then this statute provides for recovery.

K.R.S. 341.050(l)(a) indicates that covered employment applies to an individual who under the usual common law rules applicable in determining the employer-employee relationship has the status of an employee. This part-time claimant is covered. K.R.S. 341.050 provides for any statutory exclusions, and part-time workers are not listed there; therefore, part-timers are not specifically excluded. Finally, K.R.S. 341.350(5) provides conditions of qualifications for benefits by setting up a statutory scheme of base period earnings of certain minimum amounts as compared to benefits that could be earned. The claimant meets that criterion.

In no respect has it been demonstrated that the legislature intended to exclude unemployment insurance benefits for persons who only work part-time. To hold as a matter of law that employees who start off on a part-time basis are not entitled to unemployment insurance benefits would not only appear contrary to the statutory dictates but could lead to abusive employment practices. For instance, if an employer hired someone specifically to work on a part-time basis of 36 hours per week, and then cut him back to one hour per week, he would be precluded from receiving any unemployment insurance benefits under the appellant’s theory of this case.

The claimant’s actual benefit here appears to be nominal and in fact may not materialize at all since 12 hours per week at her minimum wage pay scale would preclude her from receiving any unemployment insurance benefits based on her 17 hours per week earnings.

Nonetheless, the circuit court reached the appropriate conclusion and that judgment is affirmed.

All concur.


author: CLAYTON, Judge.

text:
    Larry Dale COLLETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 28, 1984.
    Discretionary Review Denied and Case Ordered Published by Supreme Court April 4, 1985.

      Larry H. Marshall, Asst. Public Advocate, Dept, of Public Advocacy, Frankfort, for appellant.
    David L. Armstrong, Atty. Gen., John S. Gillig, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before CLAYTON, HOWERTON and REYNOLDS, JJ.
   CLAYTON, Judge.

On September 13, 1983, Larry Dale Col-lett was convicted of knowingly receiving stolen property in violation of KRS 514.110, and sentenced to eighteen months’ imprisonment. The following day, September 14, 1983, he entered a plea of guilty to a first-degree persistent felony offender count in exchange for a prosecution recommendation of ten years on the enhanced charge. Five days later, judgment was entered sentencing Collett to ten years without parole. This appeal followed.

Collett raises two arguments for reversal. His primary contention is that, given the nature of the underlying crime and his prior felony convictions, a ten-year mandatory sentence constitutes cruel and unusual punishment under the eighth and fourteenth amendments to the United States Constitution. He also maintains that the trial court erred to his substantial prejudice, and denied him due process, when in response to the jury question,

If the defendant is found guilty, and we agree on a time of confinement, will he serve that full time, or is that time subject to probation?

the trial court responded simply, “I cannot answer this question.”

With respect to this second issue, Collett points to the language of Brown v. Commonwealth, Ky., 445 S.W.2d 845, 848 (1969), indicating that the trial court in his case was required to instruct the jury in substantially similar language. That language states,

If the jury makes any inquiry of the court concerning parole the court should simply and solely respond that the functions of the jury are to determine guilt or innocence under the evidence and the instructions, and if a finding of guilt is made, to fix punishment in accordance with the instructions, and that the subject of parole is not to be given any consideration by them in performing their functions.
Id. at 848.

Absent such a response, Collett concludes that the trial court’s answer impermissibly permitted the jury to speculate on matters of parole.

For several reasons we cannot agree. First we note that Collett has specifically failed to preserve this issue for appellate review. The record reveals that at the time of the trial court’s response defense counsel was directly asked if he had any objections to such an answer. Counsel responded that he did not. Kentucky Rule of Criminal Procedure 9.22 requires a party to render a timely and appropriate objection in order to preserve an issue for review. By his failure to object, Collett has waived this allegation of error. See Blanton v. Commonwealth, Ky., 429 S.W.2d 407, 410 (1968) (failure to request ruling on court’s response to jury question regarding parole precluded appellate review of the court’s response to the question).

Assuming, solely for the sake of argument, that Collett had properly preserved this issue for review we still could not accept his interpretation of Brown, supra, or its progeny, Green v. Commonwealth, Ky., 556 S.W.2d 684 (1977). For while Green may well applaud the use of the quoted language in Brown in response to jury speculation on parole, it does not require such language to be echoed in every instance where the jury chooses to so speculate. Error, if it occurs, results from the court advising the jury as to such matters and not in the extent of its response refusing to render such advice.

Collett’s main argument is, in sum, that his enhanced sentence as a persistent felony offender in the first degree is so disproportionate to the seriousness of the underlying offense and so grossly excessive that it amounts to cruel and unusual punishment in violation of the eighth and fourteenth amendments to the United States Constitution and Section 17 of the Kentucky Constitution. The underlying offense and all of his prior felonies, Collett points out, involved nonviolent crimes against property. Had he not been charged with being a persistent felony offender, appellant notes that he would have been eligible for parole in four months on the original eighteen-month sentence he was given for receiving stolen property over $100. To now be imprisoned for a mandatory ten-year sentence, when “even a ‘mass murderer’, who does not receive a death sentence, is eligible for parole after eight years” would supposedly violate the principle of proportionality as discussed in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). This violation is argued to be especially apparent in light of the ineligibility of Collett for parole and the language of Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 1142-43, 63 L.Ed.2d 382 (1980), indicating that the potential for reducing a defendant’s sentence of imprisonment by good time credits and parole must be assessed in determining the severity of the punishment imposed.

Again, we disagree. The enhanced sentence of imprisonment received by Collett, while admittedly severe, is not so grossly disproportionate to the seriousness of the underlying crime and prior felonies as to involve the prohibition against cruel and unusual punishment. As Solem v. Helm, supra, has recognized, successful challenges, outside the context of capital punishments, to the proportionality of particular sentences are exceedingly rare. Solem, 463 U.S. at-, 103 S.Ct. at 3009, 77 L.Ed.2d at 649. The interest of the Commonwealth of Kentucky as expressed in KRS 532.080, indeed the interest of all states with recidivist statutes, is to deal in a harsher manner with those individuals who by their repeated criminal acts have proven themselves unwilling to conform their conduct to societal norms as expressed in the criminal law. To this end, the Supreme Court of the United States has commented that “... a state is justified in punishing a recidivist more severely than it punishes a first offender.” Id. 463 U.S. at-, 103 S.Ct. at 3013, 77 L.Ed.2d at 653. To determine whether that punishment exceeds constitutional limits, it is necessary to apply the eighth amendment’s portionality analysis as guided by the objective criteria mentioned in Solem, supra, to wit,

(i) The gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

As to the gravity of the underlying offense and prior felonies, it is readily accepted that none of the numerous crimes Col-lett committed involved violence against the person of another human being. However, a brief review of the offenses and penalties received reveals that Collett’s crimes taken in their totality were neither petty nor inconsequential. Collett has two prior felony convictions for the crime he now stands convicted of, receiving stolen property in excess of $100 value; June 23, 1976, conviction on four counts for which he received a three-year concurrent sentence on each count, and a separate June 23, 1976, conviction on one count for which he received a concurrent sentence of three years’ imprisonment. The appellant also has been convicted of theft by unlawful taking over $100 and being a persistent felony offender in the second degree, for which he was sentenced to seven years’ confinement on December 5,1979. Prior to that conviction, he was sentenced to two years’ imprisonment for second-degree escape in June of 1977. Then on February 6, 1976, Collett was convicted of grand larceny auto and removing an automobile serial number for which he was sentenced to one year of confinement. Finally, in April of 1970, he was convicted of transporting a stolen motor vehicle in interstate commerce and sentenced to an indeterminate period under the Federal Youth Corrections Act. In total, Collett has previously received sentences amounting to sixteen years of imprisonment for his supposedly petty property crimes. Thus while it is true that he has not committed murder, nor raped or maimed, he has engaged in an extended series of repetitive crimes indicating a serious disregard for the personal property of others. As a result of his criminal history, Collett was sentenced to ten years without parole. Under KRS 532.080(6)(b), Collett might well have been sentenced to twenty years, though granted he would have been eligible for parole following the first ten years of service. Thus, on the balance, we believe that the first of the objective criteria of Solem, supra, regarding the gravity of the offense and the harshness of the penalty falls in favor of the Commonwealth as his crimes against property were extended and repetitive and his sentence less harsh than possible under the statute.

As for sentences imposed on other criminals in the Commonwealth, KRS 532.-080(6)(b) provides that where the underlying offense an individual is convicted of is a class C or D felony, a person found to be a persistent felony offender in the first degree is to be sentenced to an undetermined term of imprisonment of not less than ten years nor more than twenty. Included among the two mentioned catagories of felonies are such property-related offenses as: second and third degree burglary, KRS 511.030 and KRS 511.040; arson in the second and third degree; KRS 513.030 and KRS 513.040; theft by unlawful taking of property worth $100 or more, KRS 514.030; theft by deception of $100 or more, KRS 514.040; theft of property of $100 or more, KRS 514.050; and theft by failure to make a required disposition of property of $100 or more, KRS 514.070. Each of these property-related felonies is considered by the legislature to be sufficient to support imposition of the penalties of KRS 532.080(6)(b). Therefore, sentences imposed on other persistent felony offenders whose underlying crimes were merely nonviolent property-related felonies can be and are similar to that imposed on Collett. His punishment is no harsher than any of the others.

Finally, as to sentences imposed for commission of the same crime, a primary example of the wide-spread nature of recidivist statutes with similar or harsher penalties for prior felonies relating to property crimes is found in Rummel v. Estelle, supra, wherein the Supreme Court of the United States upheld a prisoner’s conviction and life sentence for obtaining $120.75 by false pretenses. The prisoner in Rum-mel had previously been convicted of fraudulent use of a credit card to obtain $80 worth of goods or services and passing a forged check in the amount of $28.36 and was thus sentenced under the Texas recidivist statute. Texas Penal Code An. § 12.-42(d) (1974). While Rummel was eligible for parole, unlike the present ease, he was not eligible until he had served a minimum of twelve years, two years more than Col-lett is required to serve. Thus, this third objective criteria, as well as the initial two, supports the imposition of Collett’s ten-year mandatory sentence.

The judgment of the Jefferson Circuit Court is affirmed.

All concur.


text:
    G.G.L., Appellant, v. CABINET FOR HUMAN RESOURCES, COMMONWEALTH of KENTUCKY; and D.L., an infant under 18 years, Appellees. E.H., Appellant, v. CABINET FOR HUMAN RESOURCES, COMMONWEALTH of KENTUCKY; and D.L., an infant under 18 years of age, Appellees. CABINET FOR HUMAN RESOURCES, COMMONWEALTH of KENTUCKY, Cross-Appellant, v. E.H.; G.G.L.; and D.L., an infant, Cross-Appellees.
    Court of Appeals of Kentucky.
    Jan. 4, 1985.
    Discretionary Review Denied and Case Ordered Published by Supreme Court April 4, 1985.
    Debra Ann Doss, Ernest H. Jones, II, Lexington, for appellants/cross-appellees.
    Lucy B. Richardson, Cabinet for Human Resources, Frankfort, for appellee/cross-appellant.
    Patricia A. Mertens, Lexington, guardian ad litem.
    Before COOPER, McDONALD and WIL-HOIT, JJ.
   McDONALD, Judge:

This is the consolidated appeal of G.G.L. and E.H. whose parental rights in and to the infant appellee, D.L., were involuntarily terminated after a hearing before the Fa-yette Circuit Court.

The infant, D.L., was discovered by a child abuse investigator with the Lexington Police Department with her natural parents, the appellants, at a “hobo camp” on September 8, 1981. She was then approximately four months old. At the time D.L. was found, E.H., her father, was intoxicated and G.G.L., her mother, had two blackened eyes and a swollen face from having gotten in the middle of a fight earlier in the day between E.H. and another man. D.L. was taken into custody and placed in foster care by the appellee, Cabinet for Human Resources (C.H.R.). Although C.H.R. worked with the appellants for nearly a year in an attempt to help them obtain adequate housing for themselves and the child, the appellants were never able to find employment nor a place to live for any appreciable length of time. They visited D.L. on a few occasions, but missed several scheduled appointments to see her. They made no requests to see D.L. after August, 1982.

E.H. and G.G.L. eventually moved to Dayton, Ohio, where they had relatives and could qualify for welfare benefits. At the time of the hearing, they were receiving benefits of $98 per month and food stamps. Neither had found employment; and although they had secured an apartment, they had no refrigerator.

On October 5, 1982, C.H.R. filed a petition seeking the involuntary termination of the appellants’ parental rights. It had previously obtained the voluntary termination of the parental rights to D.L. from L.L., her legal father and the estranged husband of G.G.L. When the trial commenced on June 13, 1983, neither parent was present although, pursuant to the court’s order, C.H.R. had provided both with roundtrip bus tickets to Lexington from Dayton. When the trial resumed on July 25, both appellants appeared and testified. On September 14, 1983, the trial court entered its findings of facts, conclusion of law and judgment terminating the parental rights of both E.H. and G.G.L.

The appellants argue that the evidence presented by C.H.R. in proof of its allegations was not of the clear and convincing quality required by the U.S. Supreme Court in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). They assert that the proof merely shows them to be poverty-stricken and, relying on Department for Human Resources v. Moore, Ky. App., 552 S.W.2d 672 (1982), argue that their parental rights should not have been terminated solely for that reason.

The trial court was aware of the standard of proof mandated by the Santosky case and clearly articulated in its judgment that it was utilizing this appropriate standard. The trial court’s detailed and exhaustive findings of fact fairly and accurately reflect the testimony of record and are of great assistance to this court.

We further find no error in the court’s conclusions that the conduct of the appellants constituted abandonment and neglect of D.L. as contemplated by K.R.S. 199.-011(6) wherein an abused or neglected child is defined as follows:

“Abused or neglected child” means a child whose health or welfare is harmed or threatened with harm when his parent ... inflicts or allows to be inflicted upon the child, physical or mental injury to the child by other than accidental means; creates or allows to be created a risk of physical or mental injury to the child by other than accidental means ... willfully abandons or exploits such child; does not provide the child with adequate care and supervision; food, clothing and shelter; education; or medical care necessary for the child’s well being ....

K.R.S. 199.603(1) provides that a circuit court may terminate one’s parental rights if it is proven that it is in the child’s best interest and if “(a) the child has been abandoned; or (b) the child has been substantially or continuously or repeatedly neglected or abused.”

We agree with the trial court that the evidence clearly and convincingly established that neither E.H. nor G.G.L. ever demonstrated any ability or motivation to provide for their own basic needs, let alone those of their child, D.L. All the food and clothing D.L. was provided during the first four months with the appellants came from charitable organizations. Moreover, the trial court’s determination was not solely based on the appellants’ lack of financial resources and thus their reliance on Moore, supra, is misplaced. The appellee, as the trial court detailed in its findings, showed that both appellants had serious and longstanding physical and emotional problems related to alcohol abuse, that they frequently engaged in violent behavior, that they lacked employment skills or the motivation to obtain such skills, that they had not provided the child with proper medical attention, and that they lacked basic parenting skills. Thus, the judgment terminating the appellants’ parental rights is affirmed.

In its cross-appeal, C.H.R. alleges the trial court erred in ordering it to pay $105 for the appellants’ bus transportation from Dayton, Ohio, to Lexington to enable them to attend the hearing and in allowing the appellants to proceed in forma pauperis before this court on appeal. They argue that K.R.S. 453.010 specifically prohibits a trial court from assessing costs against the Commonwealth unless there is a statutory provision which so allows. K.R.S. 199.-603(8) provides in an action for involuntary termination of parental rights that the court may appoint an attorney for an indigent defendant and that the fee therefor, not to exceed $300, may be taxed as costs. That the statute does not provide for any other costs to be assessed, C.H.R. argues, leaves the court without authority to assess such costs as transportation against it. See also, Department for Human Resources v. Paulson, Ky.App., 622 S.W.2d 508 (1981).

The basis for its allegation that the trial court erred in allowing E.H. and G.G.L. to proceed in forma pauperis on appeal is found in K.R.S. 453.190 which provides authority for a court to grant such a request to a “poor person residing in this state _” (Emphasis our own.) At the time this action was commenced, decided and appealed, the appellants were no longer residents of Kentucky.

Despite the authority cited by the cross-appellant, we agree with the appellants that the application of K.R.S. 453.010 and K.R.S. 453.190 in the manner sought by C.H.R. would effectively deny them their constitutional right to fundamental fairness as guaranteed by the Fourteenth Amendment of the U.S. Constitution. See Santosky v. Kramer, supra 455 U.S. at 753-54, 102 S.Ct. at 1394-95, wherein the Supreme Court held as follows:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting State intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. [Emphasis our own.]

We believe the recent case of Smothers v. Lewis, Ky., 672 S.W.2d 62 (1984), provides additional support for our position that the trial court did not err in this regard. Therein our highest court held as follows:

In addition to the Court’s Constitutional rule making power, the Court is also vested with certain “inherent” powers to do that which is reasonably necessary for the administration of justice within the scope of their jurisdiction_ The control over this inherent judicial power ... is exclusively within the constitutional realm of the courts. As such, it is not within the purview of the legislature to grant or deny the power nor is it within the purview of the legislature to shape or fashion circumstances under which this inherently judicial power may or may not be granted or denied. [Emphasis our own.] [Id. at 64.]

Clearly, we believe the trial court had the inherent power to assess, as costs, the amount needed to provide the appellants with transportation to the hearing, the outcome of which would determine their right to ever again see or communicate with their child. Although costs are usually awarded to a successful party in a lawsuit, it is well settled that a trial court is imbued with the discretion to assess costs as it deems appropriate. Johnson v. Johnson, Ky., 273 S.W.2d 558 (1954); McClure v. Young, Ky., 396 S.W.2d 48 (1965).

Finally, we believe any statutory provision requiring an indigent party to be a resident in order to be allowed to proceed in forma pauperis on appeal from an action initiated by the Commonwealth involving their fundamental liberty interest in their child is an infringement on both the Equal Protection Clause of the Fourteenth Amendment as well as § 115 of the Kentucky Constitution. See Santosky v. Kramer, supra. As the case of Thompson v. Ward, Ky., 409 S.W.2d 807 (1966), relied upon by C.H.R., was decided before our State Constitution was amended in 1975 to provide for at least one appeal as a matter of right in all cases, we no longer believe it to be authority for the constitutional soundness of that portion of K.R.S. 453.190 which indicates that only residents may make application to proceed, as appellants, without paying court costs.

The judgment of the Fayette Circuit Court is affirmed.

All concur.


author: COMBS, Judge.

text:
    Julius Lee COLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 8, 1985.
    Discretionary Review Denied and Case Ordered Published by Supreme Court April 4, 1985.
    Patterson DeCamp, Appellate Public Advocate, Lexington, for appellant.
    David L. Armstrong, Atty. Gen., W. Bruce Cowden, Jr. Asst. Atty. Gen., Frankfort, for appellee.
    Before COMBS, MILLER and WHITE, JJ.
   COMBS, Judge.

This is an appeal from the McCracken Circuit Court. Appellant was charged with the murder of Lucius George Phill. The jury found him guilty of reckless homicide and recommended a three-year sentence.

Appellant contends that the trial court erred as a matter of law in not sustaining his motion for a mistrial. We agree and reverse.

The tragedy giving rise to this case occurred on March 30, 1983, in a combination bar and poolroom in Paducah, Kentucky. On this occasion, the decedent and the appellant had been shooting pool. During a game, decedent accousted appellant’s young nephew. When appellant interceded on behalf of his nephew, decedent struck appellant. This resulted in a minor altercation from which appellant immediately withdrew, putting on his jacket and starting to leave the establishment. The decedent, being a larger man and armed with a cue stick, obstructed his exit. Then the fatal altercation ensued, during which both men fell to the floor and continued the scuffle. During the scuffle appellant removed a pistol from his pocket and according to one of the witnesses, who tried to separate the men, both the victim and the appellant had their hands on or near the pistol. Three shots were fired during the scuffle, and one bullet struck decedent causing his death.

Quite sometime before this incident, appellant had been involved in two shooting incidents, both of which resulted in appellant being found guilty of two misdemeanors.

Prior to the trial, appellant’s counsel filed a motion in limine, seeking,

... an Order instructing the Commonwealth’s Attorney, his representatives, and witnesses to refrain from making any direct or indirect mention whatsoever at trial before the jury of the matters hereinafter set forth, without first obtaining permission from the Court and until such time as the Court in a hearing out of the presence of the jury has determined the admissibility of the following matters:
1. Defendant’s prior criminal record;
2. The witnesses’ opinion as to whether or not defendant acted in self defense; and
3. Defendant’s alleged habit of carrying a weapon.

Notwithstanding the pending motion and without obtaining the court’s permission, the Assistant Commonwealth’s Attorney asked appellant, “You’re mighty quick to pull a gun out of your pocket, aren’t you, Sir?” Immediate objection was interposed, but was overruled. Later, and without receiving prior approval of the court, the Commonwealth asked, “How often do you carry a gun?” Again, he was asked, “People knew you carried that gun, didn’t they?” Later he was asked, “Have you ever shot a man before?” As in prior questions, another bench conference was held. At that time, the Commonwealth admitted that his “whole point is that the man is trigger-happy. He is quick to come out of his pocket with a gun.”

As to shooting other men, the court asked the Commonwealth Attorney, “Did you know you were going to ask this before?” The attorney answered, “Yes.” The court asked him, “Why didn’t you say something about it before so we could look up some law?” He answered, “I don’t have any law.”

In view of the prior motion in limine and the persistent questions by the Commonwealth Attorney, we are convinced that appellant was denied his right to a fair trial. In the case of McDaniel v. Commonwealth, 277 Ky. 824, 827; 127 S.W.2d 866 (1939), the court said:

It appears to us the commonwealth attorney made a deliberate and persistent attempt to bring to the attention of the jury evidence he knew was incompetent, and which was highly prejudicial to appellant’s right to a fair and impartial trial. A commonwealth attorney should not forget he is an officer of the court and should never attempt to deliberately bring before the jury evidence he knows is incompetent, or to get before the jury by an indirect method evidence which the court has excluded.

During one of the many bench conferences, appellant requested the court to declare a mistrial. The court declined to do so.

Though the verdict of the jury is presumptively correct, this presumption can be overturned. It is apparent to us that in view of the size of the men involved and the aggressive conduct of decedent, the jury could very well have returned a not-guilty verdict based upon appellant’s claim of self-defense. The Commonwealth Attorney’s repeated injection of irrelevant and inflammatory material before the jury could have deprived the appellant of the reasonable fair trial to which he was entitled.

The judgment of the McCracken Circuit Court is reversed and remanded for a new trial.

All concur.


author: McDONALD, Judge.

text:
    Thomas Franklin SMITH and Billie Ann Smith, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF JUSTICE, Appellee.
    Court of Appeals of Kentucky.
    March 15, 1985.
    Thomas Franklin Smith, pro se.
    Cathy Cravens Snell, Justice Cabinet, Frankfort, for appellee.
    Before HAYES, C.J., and McDONALD and REYNOLDS, JJ.
   OPINION AND ORDER DISMISSING APPEAL

McDONALD, Judge.

This is an appeal from a circuit court review of a Board of Claims judgment. The appellee Department of Justice has moved to dismiss the appeal for two reasons: 1) the appellants did not join the Board of Claims as a party to the appeal, and 2) the appellants did not sufficiently designate the record on appeal. We agree with the appellee’s contention that the Board of Claims is an indispensable party to this appeal; therefore, we must dismiss the appeal.

This Court has previously addressed the question of whether or not an administrative agency is an indispensable party to an appeal from a circuit court review of a decision of an administrative agency. The Workers’ Compensation Board must be named a party to an appeal from a circuit court review of a decision of the Workers’ Compensation Board. Milligan v. Schenley Distillers, Inc., Ky.App., 584 S.W.2d 751 (1979). Likewise, the Personnel Board is an indispensable party to an appeal from a circuit court review of a Personnel Board decision. Hammond v. Dept. for Human Resources, Ky.App., 652 S.W.2d 91 (1983). The Unemployment Insurance Commission was held not to be indispensable to an appeal from a circuit court review of an order from that Commission in J.T. Nelson Co., Inc. v. Comstock, Ky.App., 636 S.W.2d 896 (1982).

The Workers’ Compensation Board, Personnel Board, and Unemployment Insurance Commission are required by statute to be joined to a circuit court review of its order. KRS 342.285(1); KRS 18A. 100(3); KRS 341.450(1). No similar statute directs either Board or Commission be made a party to an appeal to this Court. This Court’s opinions in such appeals may require the Board or Commission to take further action. As to the Unemployment Insurance Commission, KRS 341.450(5) requires the Commission to enter an order in accordance with the final appellate determination. No similar statute exists for the Workers’ Compensation Board or Personnel Board. The Court in J.T. Nelson Co., Inc. v. Comstock explained the significance of this difference in the statutory schemes:

... There is a legislative requirement demanding that the Commission do what it is told to do by the courts while nothing of a like nature applies to the Board. This is the distinguishing feature between the case at bar and Milligan, supra, in that in the latter situation, absent its being a party, there was no duty upon the Board to conform to the edicts of the judiciary. Putting it a different way, the Commission will conform by operation of law while the Board will do so by being subject to jurisdiction and hence, contempt remedies. Id. at 900.

The statutory provisions for judicial review of an award or judgment of the Board of Claims are similar to those for the Workers’ Compensation Board or Personnel Board. KRS 44.140 was amended effective July 13, 1984, to require the joinder of the Board, the state agency, and the claimant to the circuit court review. KRS 44.150, the controlling statute for an appeal to this Court, does not specify who must be named parties to an appeal. If the Board is necessary at circuit court, it follows that the Board is also necessary to further appeals. Hammond, 652 S.W.2d at 92.

This Court’s opinion in a Board of Claims ease may require the Board to take further action. See Kentucky State Fair Board v. Nicklies, Ky., 361 S.W.2d 289, 290 (1962). Unlike the statutory procedure for judicial review of an Unemployment Insurance Commission order, there is no requirement in KRS Chapter 44 to make the Board of Claims execute the appellate court’s order. The Board of Claims must be made a party to an appeal to this Court for it to have a duty to conform to this Court’s directive. J.T. Nelson Co., Inc. v. Comstock, supra.

Although this appeal is being dismissed for failure to join an indispensable party, we note that the appellee’s second argument is without merit. The appellees assert that the appellants did not sufficiently designate the record. In their notice of appeal, the appellants stated “[ajppellants wish the total record be transmitted on appeal.”

KRS 44.140(4) directs the executive director of the Board to file the entire original Board of Claims record with the circuit court clerk when an appeal is taken to circuit court. No new evidence may be introduced in the circuit court except as to fraud or misconduct of some person engaged in the hearing before the Board. KRS 44.140(5).

In this action, the entire Board of Claims record, including the transcript of the Board’s hearing, was filed in the circuit court. There were no evidentiary hearings in the circuit court. The circuit court clerk’s record, including the Board of Claims record and transcript, would come to this Court pursuant to CR 75.07(1). CR 75.01(1) requires a designation of “untran-scribed portions of the proceedings steno-graphieally or mechanically recorded” the appellants wish to be included in the record on appeal. As there were no stenographi-cally or mechanically recorded proceedings at the circuit court, there was nothing for the appellants to designate. Modine Manufacturing Co. v. Thweatt, Ky.App., 547 S.W.2d 448 (1976).

It is hereby ORDERED that the appel-lee’s motion to dismiss the appeal be GRANTED, and that the appeal be DISMISSED for failure of the appellants to join an indispensable party to the appeal.

Ah concur.


author: LESTER, Judge.

text:
    Sonny VENTORS, Appellant, v. Alonzo WATTS and Nettie Watts, Appellees.
    Court of Appeals of Kentucky.
    March 15, 1985.

      Tim Wilson, Hindman, for appellant.
    Carl C. Perkins, Weinberg, Perkins & Campbell, Hindman, for appellees.
    Before COMBS, HOWERTON and LESTER, JJ.
   LESTER, Judge.

This is an appeal from a judgment entered upon a jury verdict awarding appel-lees $3,270 as damages to their home resulting from blasting at a strip mining site.

Alonzo and Nettie Watts commenced this litigation against Sonny Yentors and Donnie Parsons alleging the damages to the home and notification thereof to the defendant-below. The Wattses claimed the appellant visited their property, inspected the damage and agreed to pay for it. Subsequently, Ventors refused to honor the promise. Following the filing of the complaint, Parsons moved to dismiss as to himself upon the ground that he was not acquainted with or engaged in the coal mining business with Yentors or in Knott County. An order was entered sustaining his motion. Since that entry was never modified or set aside, any further steps contained in the record as to Parsons are a nullity. The case was tried to a jury which awarded damages against Ventors.

Appellant moved for judgment notwithstanding the verdict on the ground that only the self-serving testimony of the ap-pellees supported the jury finding that he was in any way responsible for the mining operation that damaged their property. His motion recited the various evidence he had produced to refute that testimony. In appellant’s brief to this Court, he notes that he urged the Court to listen to the trial tapes before ruling on the motion and the judge refused. The judge, before whom the motion was filed, was newly elected and was not the trial judge who had presided over the case. The motion was denied and appellant appeals. We affirm the judgment of the trial court.

Appellant alleges as his first error that the refusal of the newly-elected judge to listen to the trial tapes prior to ruling on appellant’s motion was clearly erroneous, arbitrary and an abuse of discretion. We note that the record does not disclose any evidence that such a request or motion was made and therefore, assume it was an oral motion at an unrecorded hearing followed by an oral refusal on the part of the judge, likewise unrecorded. Appellant detailed the contested evidence in his motion to the court and had an opportunity to further support his request at the hearing. We find no abuse of discretion. We also note that such a review would have been an exercise in futility for reasons we later discuss at length.

Appellant next alleges as error refusal by the trial judge to grant a mistrial when one of the jurors was observed speaking to one of the appellees during a break in the trial. Both appellant and appellee state that the trial judge investigated the incident and denied the mistrial. Lastly, appellant argues that there is no substantial evidence to support a finding that he had any connection with the mine which conducted the blasting.

We have decided to publish this opinion, not because of any errors raised by the appellant, but because of the state of the record. It is the responsibility of the appellant to see that the record is prepared and certified by the clerk within the time prescribed by CR 73.08; CR 75.07(4). The record in this case consists of the untran-scribed tapes made of the trial, which can be submitted as the record on appeal in lieu of a transcript pursuant to CR 75.02(3). The tapes submitted with this appeal are inaudible. It may be that a participant at the trial could decipher who was speaking at any individual point on the tape, but for purposes of an effective review by this Court they are worthless. Appellant has also made no effort in his brief to refer us to specific tape and digital counter numbers on the tape recording to support his statement of the case pursuant to CR 76.-12(4)(c)(iii). We have stated in the past that we will not search a record for testimony where no reference to the transcript is furnished — we now extend that holding to encompass the failure of a party to cite us to digital counter numbers on an untran-scribed tape to support his position. Young v. Newsome, Ky., 462 S.W.2d 908 (1971).

The Civil Rules provide a number of acceptable methods of providing a record for review. Many of the rules attempt to limit the volume of the record to be reviewed, allowing litigants to avoid the expense of transcribing extensive portions of the trial testimony and sparing the Court’s searches through similar extensive volumes of the record. Certifying the untran-scribed tapes made at hearings is an effective method of keeping expenses down for an appellant and producing a record for review, however, those tapes so used must be clearly audible and as accessible to the reviewing judges as a typed transcript. Substitution of the tapes of the hearing in lieu of a transcript does not lessen the appellant’s burden in providing us a record to review.

As the appellant has failed to produce any record which we can use to properly conduct a review, we must assume the jurors were presented with evidence that supported their verdict and we likewise assume the evidence supported the decision of the trial court in his refusal to grant a mistrial for juror misconduct. Porter v. Harper, Ky., 477 S.W.2d 778 (1972).

The judgment is affirmed.

All concur.


author: E. RICHARD WEBBER, Special Judge. BRUCE NORMILE, Special Judge,

text:
    Frederick Thomas MEYER, Plaintiff-Appellant, v. CLARK OIL COMPANY, et al., Defendant-Respondent.
    No. 47111.
    Missouri Court of Appeals, Eastern District, Eastern Division.
    Dec. 18, 1984.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    James B. Herd, Michael F. Heavey, Dee-ba, DeStefano, Sauter & Herd, St. Louis, for plaintiff-appellant.
    Anthony F. Vaiana, Kortenhof & Ely, Ben Ely, Jr., Joseph H. Raybuek, St. Louis, for defendant-respondent.
   E. RICHARD WEBBER, Special Judge.

Adam L. Meyer died from injuries received when his automobile collided with a truck owned by the Clark Oil Company and driven by Samuel Davis. The deceased was the 24 year old brother of appellant who brought this wrongful death action which resulted in judgment upon jury verdict for defendants in the trial court. At the time of his death the decedent earned $15,000 annually, none of which was paid to his brother. The deceased did not support appellant in any way, performed no services for appellant and made no contributions to appellant either monetarily or in the form of services. Both jointly owned a “family home” which they maintained equally. By operation of law appellant became sole owner of the building and lot at the time of his brother’s death.

The first assignment of error is that the trial court erroneously permitted defense counsel to argue that in determining pecuniary loss, the jury should consider appellant’s total ownership of the “family home” after his brother’s death as a gain since he had only a one-half interest before the death. Respondents opine that appellant failed to preserve this point, for appellate review by properly objecting. The record in that regard reveals that counsel for defendant Clark Oil Company stated in his closing argument, “... as a matter of fact, in terms of pecuniary loss, I ask you to remember this. Now, Mr. Frederick Meyer is the sole owner of the house that he only owned half of.” Plaintiff’s counsel objected, “Judge, I object to this. Improper argument on the grounds previously stated.”

The trial judge properly overruled the objection in this form which neither apprised the judge of the basis for the objection, nor described the extent of relief sought. An objection “... on the grounds previously stated” fails to inform the trial court of the precise reason for required court intervention. That proposition is discussed in Dolgin v. Potter Elec. Signal Co., 536 S.W.2d 61 (Mo.App.1976) at loc. cit. 65, “... Only one objection was made during this line of argument: ‘Same objection, Your Honor.’ ... An objection as formulated here preserves nothing for review. The purpose of an objection is to call to the attention of the trial court that which the objecting party considers to be error and the objecting party has the burden of making the basis of his objection reasonably apparent to the court. Crabtree v. Reed, 494 S.W.2d 42, 45[4] (Mo.1973)....”

While it was noted in Brookman v. General Safety & Sec., Inc., 600 S.W.2d 100 (Mo.App.1980) at loc. cit. 103, “Our appellate courts have not, in recent years, been quite so technical as they formerly were on this subject” counsel may not fashion a panoply by asserting general objections which serve to require a trial judge to review the entire case in a split-second ruling and speculate as to counsel’s subjective thought processes. The record abundantly demonstrates why, in this case, no error is present.

Counsel for appellant successfully objected to testimony pertaining to the value of the “family home” on grounds of irrelevancy when defendant Clark Oil Company attempted to solicit that information. At the instruction conference appellant’s counsel, not counsel for either respondent, stated that he intended to argue, “From the standpoint of pecuniary loss, I feel it’s fair game to argue ... the support issue on payment of bills for keeping of the house ...” Counsel for respondents harmoniously objected promptly but were “overruled”. This colloquy was followed by more than one hour of closing argument by three lawyers who offered various objections, with only the one pertaining to the “family home” which is first detailed in this opinion. When appellant’s counsel states, “Judge, I object to this. Improper argument on the grounds previously stated” (emphasis supplied) he cannot be referring to grounds previously stated in his argument, because no other such objection was made. The record demonstrates how nebulous objections fail to inform the court of the subjective import intended, and why our appellate courts have recognized that they preserve nothing for appellate review. To hold otherwise would shift the burden to make proper objections from counsel, where it belongs, to the court, a practice which would both encourage counsel to plant a trap for the most discerning judges and frustrate attempts to restore judicial economy to appellate courts beleaguered by appeals.

Furthermore, the objection is inadequate because it fails to state the extent of relief requested to resolve the alleged defect. “Also, the failure to request the trial court to instruct the jury to disregard improper argument or a question constitutes a waiver of the right to complain on appeal that the jury was not so instructed, Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721 [ (1941) ], and the same is true when there is no request that the trial court reprimand counsel for improper argument. Vowels v. Missouri Pac. R. Co., 320 Mo. 34, 8 S.W.2d 7 [ (1928) ].” Olsten v. Susman, 391 S.W.2d 328 (Mo.1965). The record is silent as to any relief plaintiff’s counsel expected the court to grant. The appellant is therefore without any basis to complain that the trial court failed to do that which was never requested.

Appellant’s second allegation of error is resolved against him with the Court’s ruling on the first point. The charge that the “collateral source rule” precludes argument that pecuniary gain resulted from decedent’s death because at that time jointly held property passed to appellant is not preserved for appellate review. In Handshy v. Nolte Petroleum Company, 421 S.W.2d 198 (Mo.1967) at loc. cit. 202 the court ruled:

... “Since an appellate court is not a forum in which to make a new case, or in which new points will be considered, but is merely a court of review to determine whether or not the rulings of the trial court, as there presented, were correct, a party seeking the correction of error must stand or fall on the case which was made in the trial court, and thus it follows that only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal.” 4 C.J.S. Appeal & Error Section 253, p. 770. This point is therefore ruled adversely to plaintiff.

The judgment is affirmed.

CRIST, P.J., concurs.

BRUCE NORMILE, Special Judge, dissents in separate opinion.

BRUCE NORMILE, Special Judge,

dissenting.

I respectfully dissent. In my view: First, the argument permitted was prejudicial error; Second, the general objection to the improper argument was sufficient under the circumstances of the case; and Third, the improper argument constituted plain error under Civil Rule 84.13(c).

In this case plaintiff’s brother was killed as a result of an automobile accident wherein defendant Davis operated the other vehicle. Defendant Clark was Davis’ employer. Plaintiff was 29 years old and the decedent was 24 years old. They were the only children of deceased parents. Decedent was unmarried. The two brothers jointly owned the family home, a two-family flat at the time of decedent’s death. Plaintiff was married and lived elsewhere.

Upon cross examination of plaintiff, defendant Davis established that plaintiff became the sole owner of the home following his brother’s death. Thereafter defendant Clark asked plaintiff if the value of the family place was about $60,000.00. Upon objection as to relevancy and the courts inquiry as to the purpose of the question, counsel for defendant Clark responded:

“Very simple, your Honor, it goes to show a lack of any pecuniary loss, in fact a pecuniary gain by this man. He is claiming a loss by the death of his brother... He went from half interest of a $60,000.00 house to a whole or full interest of the $60,000.00 house thereby gaining $30,000.00. I feel the defendant should be permitted to show that and it’s largely in evidence by no objection from him that he is now the sole owner of the property. 1 think [I] should be allowed to show any economic or pecuniary gain by the defendant to offset any loss.” (emphasis added)

The court thereafter stated “I will rule that as irrelevant and immaterial and will leave that out of the case.” Following the offer of proof, the court further stated: “Now, bring me a case on that — if you plan to argue that in closing — shows that you can show gain to offset that.”

At the close of the evidence, in the instruction conference, counsel and the court discussed the damages to be argued to the jury. At that time defendant Davis objected to any argument by plaintiff regarding bills for the upkeep of the house before or after decedent’s death. The objection and ruling were as follows:

“Now, the mere fact that plaintiff now is obligated to pay all expenses as a result of the fact that he is now the owner of 100% of that house and therefore that is not a proper element of damages that can be argued by the plaintiff in this case. As a matter of fact, it’s a pecuni ary gain on his part on owning the entire property.’’ (emphasis added)
The Court: “Overruled. I am not going to get involved in that.”

Thereafter during the argument of the case plaintiffs counsels only reference to pecuniary loss related to the funeral bill. However, counsel for defendant Clark Oil Company then argued:

“This case is for the loss, pecuniary financial loss that allegedly was sustained or claimed to be have been sustained by Mr. Frederick Meyer ... There was no support going from the deceased Adam Meyer to the present plaintiff. As a matter of fact in terms of pecuniary loss, I ask you to remember this. Now Mr. Frederick Meyer is the sole owner of a house that he only owned half of. (emphasis added)
Mr. Herd: Judge, I object to this. Improper argument on the grounds previously stated.
The Court: Overruled. Go ahead.
Mr. Ely: He is now the sole owner of that house and it is paid for, also. He is not paying any mortgage or back taxes for it. He is now the sole owner. He used to get $500 from his brother — I am sorry, $500 a year to defray the expenses but now with his brother gone he gets $200 a month in rent and I think these are factors that can be considered in determining whether or not he actually sustained financial or pecuniary loss.” (emphasis added)

Respondent asserts that this argument was proper to mitigate damages since it demonstrated that plaintiff did not sustain a pecuniary loss as a result of his brother’s death. However, this is incorrect. The “American” rule is that assets inherited from a deceased person do not diminish the damages suffered by his heirs from his wrongful death. McLaughlin v. United Railroads of San Francisco, 169 Cal. 494, 147 P. 149 (1915). Also see Stathos v. Lemich, 213 Cal.App.2d 52, 28 Cal.Rptr. 462 (1963); Wilson v. City and County of San Francisco, 106 Cal.App.2d 440, 235 P.2d 81 (1951); Hexamer v. Public Service R. Company, 1926, 4 N.J.Misc. 184, 132 A. 310; Closson v. Griffith, (1926) 219 App.Div. 163, 218 N.Y.S. 517, aff. (1927) 245 N.Y. 552, 157 N.E. 845; Gaydos v. Domabyl, (1931) 301 Pa. 523, 152A. 549; Wiester v. Kaufer, (1933) 188 Minn. 341, 247 N.W. 237.

Respondents rely on one case to the contrary, San Antonio and A.P. Railway Company v. Long, 87 Tex. 148, 27 S.W. 113 (1894). That case did allow admission of evidence of the decedent’s will under a particular statute which required the jury to determine separately the amount to be recovered by each of the five adult plaintiff children. However, that case has never been followed and has been distinguished. See McLaughlin v. United Railroads of San Francisco, supra; Tyler S.E. Ry Company v. Rasberry, 13 Tex.Civ.App. 185, 34 S.W. 794 (1896).

The modern authorities agree with the “American” rule. “The fact that one or more beneficiaries ... inherits property from the deceased does not diminish damages recoverable.” Restatement of Torts 2d, Damages, Sec. 925 Comment H, page 531; 25A C.J.S. Death, Sec. 114, page 960; “Damages under the Missouri Wrongful Death Act”, Wright, 37 Journal of Missouri Bar 92, 95, (1981). “In determining the damages suffered as a result of a tortious act. ..an indirect benefit to plaintiff, ... resulting from defendants wrongful act can not be set up in mitigation of damages.” 25 C.J.S. Damages, Sec. 98(1), page 1005; 22 Am Jur 2d Death, Sec. 160, p. 722; Restatement of Torts 2d, Damages, Sec. 920A, page 514, Sec. 920b, page 510.

The Supreme Court in Iseminger v. Holden, 544 S.W.2d 550, 552 (Mo Banc 1976) adopted the language of 25 C.J.S. Damages, Sec. 99(1), page 1011-1012 as follows:

“Under the collateral source rule or doctrine... a wrongdoer is not entitled to have the damages to which he is liable reduced by proving that Plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him, or, stated more succinctly, the wrongdoer may not be benefited by collateral payments made to the person he has wronged. This is an established exception to the general rule that damages and negligence actions must be compensatory.”

Iseminger also adopted the ruling of Kickham v. Carter, 335 S.W.2d 83, 89-90 (MO 1960) that “errors of that nature are presumed to prejudicial.” In Iseminger admission of evidence as to plaintiff’s hospital insurance was found to be prejudicially erroneous. In Blessing v. Boy Scouts of America, (Mo App 1980) 608 S.W.2d 484, admission of evidence concerning plaintiffs benefits under a disability insurance coverage was held prejudicially erroneous. In Beck v. Edison Brothers Stores, Inc., 657 S.W.2d 326 (Mo App.1983), admission of evidence that defendant’s medical plan had paid lost wages and medical bills for plaintiff was held prejudicially erroneous. Also see Kaelin v. Nuelle, 537 S.W.2d 226 (Mo App.1976); Stanziale v. Musick, 370 S.W.2d 261 (Mo 1963); Joshmer v. Fred Weber Contractors, 294 S.W.2d 576 (Mo App.1956); Baker v. Fortney, 299 S.W.2d 563 (Mo App.1957); Nigro v. Kansas City Monument Co., 236 Mo.App. 844, 158 S.W.2d 179 (1942).

Under Civil Rule 70.02 it is the judges non-delegable duty, and not the attorneys, to instruct the jury as to the law. Under M.A.I. this duty continues throughout the argument; and the judge must be alert to misstatements of the law in argument. M.A.I. “How to Use This Book”, XCVIII, 1981. It may be noted that Civil Rule 70.03 provides that neither general nor specific objections are required to instructions at trial. The trial court must promptly prohibit or correct misstatements of the law which occur in closing arguments. Where the court permits the misstatement while overruling objection to it, “reversible error is almost inevitable”. Halford v. Yandell, 558 S.W.2d 400, 412 (Mo App.1977); Carrel v. Wilkerson, 507 S.W.2d 82, 85 (Mo App.1974); Allison v. Home Sav. Ass’n of Kansas City, 643 S.W.2d 847 (Mo App.1982). The trial judges function in deciding the law during argument is particularly critical as it relates to damages in a wrongful death case since M.A.I. 5.01 gives no direction to the jury as to the elements of compensable damages which are provided by Sec. 537.090 RSMo.Sup.1979. The Committee’s Comment (1981 Rev.) M.A.I. 5.01 suggests that “the separate elements of damage are properly a matter for argument and are not and should not be listed in this damage instruction.” It is for these reasons that the Committee’s Comment to M.A.I. 4.01 and 5.01 require a discussion on the record at the instruction conference as to the damages supported by the evidence which can properly be argued to the jury.

In this case the jury had been instructed by M.A.I. 2.01 that the court might be called upon to determine questions of law and to decide whether matters might be considered by them under the law while the trial was in progress, and that if the court overruled an objection, they might consider that matter in their deliberations. After those instructions, defendant Clark argued to the jury that plaintiff’s acquisition of sole ownership of the jointly owned house and the increased rental income from it were “factors that can be considered in determining whether or not he actually sustained financial or pecuniary loss.” This was a positive and prejudicial misstatement of the law which allowed the jury to offset plaintiff’s damages by the very substantial collateral benefits which he received. By overruling plaintiff’s objection, the court approved the argument. In doing so the court effectively instructed the jury that it must find for the defendants if it found that the collateral benefits exceeded plaintiff’s damages from the death. The poisonous character of the improper argument was particularly acute in this case where the evidence of “pecuniary loss” was limited to $3,310.00 funeral expenses. Thus, if the jury found that plaintiff’s damages were less than the suggested $30,000.00 half interest acquired by plaintiff, it was required to return a defendants verdict.

Missouri Evidence Restated, Sec. 103 (Mo Bar 1984) provides that “a general objection is sufficient if the evidence is wholly inadmissible for any purpose.” Also see 1 Wigmore, Evidence, Sec. 18, p. 824 (Tillers Rev. 1983). State v. Cardwell, 332 Mo. 790, 60 S.W.2d 28, 31 (1933). The general objection is also sufficient to alert the trial court to an error and preserve it for review where an argument is so “palpably unfair as presumptively to have fostered a miscarriage of justice”. Kelley v. Hudson, 407 S.W.2d 553, 558 (Mo App.1966); Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646 (1945); 4 C.J.S. Appeal and Error, Sec. 297, p. 917. In the instant case it is clear that evidence as to the collateral benefits of the value and income of the jointly owned house was inadmissable for any purpose. It is clear that the argument that such collateral benefits could be offset against plaintiff’s damages was obviously false and manifestly prejudicial. It appears that the argument was “palpably unfair” in that it effectively directed a verdict for defendants if the collateral benefits were found by the jury to exceed the damages sustained. “A party seeking to recover damages is entitled to have the correct rule of damages applied, and this is a rule of law that is not waived as objections to evidence are waived.” 25 C.J.S. Damages, Sec. 100, p. 1020 (emphasis added).

The principal opinion relies on Dolgin v. Potter Electric Signal Co., 536 S.W.2d 61 (Mo.App.1976). However, the argument there did not constitute a positive misdirection to the jury as to the law; and the trial court had not made three previous rulings sustaining the plaintiffs position on the same issue raised by plaintiffs objection. The basis of the objection should have been reasonably apparent to the court under these circumstances.

The cases of Olsten v. Susman, 391 S.W.2d 328 (Mo 1965); Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721 (1941); and Vowels v. Missouri Pac. R. Co., 320 Mo. 34, 8 S.W.2d 7 (1928) are not in point here. Those cases stand for the proposition that when an objection is sustained to improper argument, the objecting party may not later complain on appeal that the trial court should have granted even more relief than was requested and granted. For example, in Olsten, not only was plaintiff’s objection to improper argument sustained, but the trial court also granted plaintiff’s motion for a mistrial. Thereupon, plaintiff withdrew the motion for mistrial and the case was completed. On appeal it was held that there was no error in the failure of the trial court to grant a new trial because of this incident since the trial court had granted plaintiff all of the remedial action requested or desired. In this case, however, plaintiff’s objection to the improper argument was plaintiff’s request that the jury not be allowed to consider the argument. If the court had sustained plaintiff’s objection, no further relief would have been required. The trial court did in fact fail to do that which was requested by the plaintiff.

It is also my view that the court’s misdirection to the jury constituted “plain error” under Civil Rule 84.13(c). In this respect the case of Baker v. Fortney, 299 S.W.2d 563 (Mo App.1957) is in point. In Baker the trial judge made a response to a juror’s inquiry whether any consideration should be given to certain insurance money collected by the plaintiff. No objections were made to these remarks. However, the judge’s response to the juror in Baker, just as the court’s approval of the argument in this case, allowed the jury to offset collateral benefits against the plaintiff’s damages. Even though no objection was made, the appellate court found a misdirection to the jury constituting “plain error” under the rule. The case for application of the plain error rule is stronger here since an objection was made to the improper direction to the jury. Plaintiff’s “substantial rights” were affected by allowing the jury to offset the collateral benefits. “Manifest injustice” would certainly arise if the jury had found, as they could have under the circumstances, that the defendants were liable, but that a verdict for the defendants was required since the collateral benefits exceeded the plaintiff’s damages.

For the foregoing reasons I would reverse and remand.


author: GAERTNER, Judge.

text:
    BOLING CONCRETE CONSTRUCTION COMPANY, INC., Plaintiff-Respondent, v. David and Laverne TOWNSEND, Appellants, and Midtown Medical Center Redevelopment Corporation and City of St. Louis, Third Party Defendants-Respondents.
    No. 48363.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 8, 1985.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 28, 1985.
    W.W. Sleater, Clayton, for appellants.
    Gerald T. Carmody, St. Louis, for third party defendant-respondent Midtown Medical Center.
    James J. Wilson, City Counselor, St. Louis, for plaintiff-respondent.
   GAERTNER, Judge.

Boling Concrete Construction Company (Boling) brought the instant action against Davis and Laverne Townsend to foreclose a mechanic’s lien. The Townsends filed a third party petition against Midtown Medical Center Redevelopment Corp. (Midtown) and the City of St. Louis (City). A consent judgment for $5,800.00 was entered in favor of Boling against the Townsends. From summary judgment in favor of Midtown and the City, the Townsends appeal. We affirm.

Midtown is an urban redevelopment corporation organized under Chapter 353, RSMo.1978, to which the City has granted the power of eminent domain over a tract of land within the City’s boundaries. The Townsends owned a parcel of real estate within this tract.

The Townsends obtained a building permit from the City and contracted with Bol-ing in furtherance of their plan to build a single family residence. Boling apparently poured the foundation for the structure.

After the foundation had been poured, a representative from Midtown and the City’s Director of Public Safety entered the Townsends’ land and engaged in a discussion with Mr. Townsend. Midtown’s representative and the Director of Public Safety informed Mr. Townsend that Midtown intended to construct a street over the Town-sends’ land. Mr. Townsend pointed out that he had a building permit and ordered the pair to leave, with which demand they complied.

The City then cancelled the building permit. The Townsends have since lost their property through a tax sale.

The Townsends contend the trial court erred in granting summary judgment because material issues of fact remain regarding their right to recover from Midtown and the City of St. Louis for the costs of construction, including the amount owed to Boling, damages for trespass, damages for wrongful cancellation of the building permit, and damages for inverse condemnation.

The Townsends have no action for trespass because the undisputed facts show that Mr. Townsend gave implied permission to the representative of Midtown and the City’s Director of Public Safety to enter upon his land and that upon revocation of that consent, the pair left the premises. One who silently watches another enter upon the former’s land and then willingly engages the latter in conversation while standing upon the premises may not later be heard to complain of trespass. “Consent may be implied from ... conduct.” 75 Am.Jur.2d Trespass § 41 (1974).

The Townsends may not maintain an action for the wrongful cancellation of their building permit because they have not exhausted their administrative remedies. The Townsends do not deny that an ordinance of the City provides that person aggrieved by a decision of the building commissioner, such as the revocation of the Townsends’ building permit, may appeal to the City’s Board of Adjustment. Administrative review of the revocation of the building permit has not been sought. Judicial review of the revocation is, therefore, premature. See N. G. Heimos Greenhouse, Inc. v. City of Sunset Hills, 597 S.W.2d 261 (Mo.App.1980).

Finally, the Townsends may not recover for inverse condemnation because their cause of action, if there was one, has become moot. Upon payment of the judgment in an inverse condemnation case, the same right in the land is conferred upon the condemnor as if it had formally condemned the land. Beetchen v. Shell Pipe Line Corp., 248 S.W.2d 66, 70 (Mo.App.1952), trans’d 363 Mo. 751, 253 S.W.2d 785 (Mo.1952). Assuming arguendo that the revocation of the building permit could serve as the predicate for an inverse condemnation action, the Townsends lost their cause of action when they lost their interest in the land. After the Townsends’ loss of all their property interest, the alleged condemnors could not receive any rights in the land from the Townsends, whereas in formal condemnation, Midtown and/or City could have taken the whole property.

In Barr v. KAMO Electric Corp., Inc., 648 S.W.2d 616 (Mo.App.1983), the court allowed the plaintiffs to maintain an inverse condemnation action even though the plaintiffs’ land had been sold since the institution of the lawsuit, because “all the damages from the ... taking ... were suffered by. plaintiffs at that time and did not pass to the grantee_” Id. at 619. The grantee had taken subject to the inverse condemnor’s interest and had obtained a reduced purchase price because of that fact. Id. Here, however, the grantee of the tax sale did not take subject to Midtown’s or the City’s alleged' interest. Nor is there any indication that the purchase price at the tax sale was reduced because of the revocation of the building permit.

The judgment is affirmed.

PUDLOWSKI, P.J., and KAROHL, J., concur.

      . The parties do not address their arguments to the propriety of the Townsends' impleader action, but confine their arguments to the issues surrounding the Townsends’ claims of trespass, wrongful cancellation of the building permit, and inverse condemnation. Accordingly, we do not decide the propriety of the Townsends’ im-pleader action. But cf. Martinez v. Lankster, 595 S.W.2d 316, 318 (Mo.App.1980).