Coleman v. Jackson County

• Decision Date: 26 February 1942
• Docket Number: 37834
• Citation: 160 S.W.2d 691,349 Mo. 255
• Parties: Robert J. Coleman, Trustee, v. Jackson County, Appellant
• Court: Missouri Supreme Court

160 S.W.2d 691

349 Mo. 255

Robert J. Coleman, Trustee, v. Jackson County, Appellant

No. 37834

Supreme Court of Missouri

February 26, 1942

Rehearing Denied April 16, 1942.

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Reversed and remanded.

Hilary A. Bush, County Counselor, Virgil Yates Assistant County Counselor, and John B. Pew for appellant.

(1) The court erred in giving respondent's instructions 1 to 30, inclusive, over the objections and exceptions of appellant. Many of these instructions are absolute mandates to find for the plaintiff in a fixed amount. The others require only the finding of appointment as elsewhere defined and except for that finding are mandatory. Under the law in Missouri a trial court cannot direct a verdict for plaintiff or the party upon whom the burden of proof rests unless the testimony is admitted to be true or the proof offered is of such documentary character as to estop the other party from denying it. Dunham-Buckley Co. v. Halberg, 69 Mo.App. 509; Jefferson v. Ins. Co., 69 Mo.App. 126; Wolff v. Campbell, 110 Mo. 114, 19 S.W. 622; Equitable Life Assur. Soc. v. Natl. Bank of Commerce, 197 S.W. 115; Doris v. Carney, 25 S.W.2d 495; F. B. Chamberlain Co. v. Kane, 264 S.W. 24; Goudie v. Natl. Surety Co., 288 S.W. 369; Fernandez v. Mutual Life Ins. Co. of Baltimore, 230 Mo.App. 857, 78 S.W.2d 526; Finch v. Hebbe, 231 Mo.App. 591, 107 S.W.2d 962; Williams v. Amer. Life & Accident Ins. Co., 112 S.W.2d 909; Thrower v. Life & Casualty Co., 141 S.W.2d 192; State ex rel. Strohfield v. Cox, 325 Mo. 901, 30 S.W.2d 462; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558. (2) The court erred in refusing to give appellant's instructions, lettered and numbered B-1 to B-30, inclusive. The claimants herein were not de jure officers entitling them to sue for statutory salaries. De facto officers cannot sue for salaries. Abington v. Harwell, 201 Mo.App. 335, 211 S.W. 885; Schulte v. City of Jefferson, 273 S.W. 170; Cunio v. Franklin County, 285 S.W. 1007; Sheridan v. St. Louis, 183 Mo. 25, 81 S.W. 1082; Mullery v. McCann, 95 Mo. 579, 8 S.W. 774; 46 C. J. 1053; Sec. 11834, R. S. 1929; Sec. 13466, R. S. 1939; Sec. 11839, R. S. 1929; Sec. 13471, R. S. 1939; Sec. 11844, R. S. 1929; Sec. 13476, R. S. 1939; Sec. 11812, R. S. 1929; Sec. 13434, R. S. 1939; Sec. 1826, R. S. 1929; Sec. 1990, R. S. 1939. (3) The court erred in giving instruction 31 on behalf of respondent, over the objection and exception of appellant. County Budget Law, Chap. 73, Art. 2; Secs. 10910-10935, R. S. 1939; Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543; Mo.-Kan. Chemical Co. v. New Madrid County, 345 Mo. 1167, 139 S.W.2d 457. (4) The court erred in giving instruction 32 on behalf of respondent, over the objection and exception of appellant. Authorities under Point (2). (5) The court erred in refusing to give instructions lettered and numbered V-1 to V-29, inclusive, requested by appellant, to which ruling in refusing to give said instructions appellant at the time duly excepted and still excepts. Authorities under Point (1). (6) The court erred in refusing to give instruction D requested by appellant, to which action of the court in refusing to give said instruction appellant at the time duly excepted and still excepts. Cases cited under Point (3). Sec. 11844, R. S. 1929; Sec. 13476, R. S. 1939. (7) The court erred in refusing to give instructions lettered and numbered W, W-1, W-2 to W-9, inclusive, to which action of the court in refusing to give said instructions appellant at the time duly excepted and still excepts. R. S. 1939, sec. 13466; id., R. S. 1929, sec. 11834; Emery v. Railway Co., 77 Mo. 339; Kegan v. Park Bank, 8 S.W.2d 858; Gordon v. Bruner, 49 Mo. 570; 57 C. J., p. 358. (8) The court erred in refusing to give instruction lettered T requested by the appellant, to which action of the court in refusing to give said instruction lettered "T" appellant at the time duly excepted and still excepts. R. S. 1939, sec. 13466, id., R. S. 1929, sec. 11834; R. S. 1939, sec. 13471, id., R. S. 1929, sec. 11839; Cases cited under Point (2).

William G. Boatright and Harry L. Jacobs for respondent.

(1) The court did not err in giving peremptory instructions as to thirteen counts covering periods of time admittedly not barred by limitations. Where the case is established by documentary evidence or it is made apparent to the trial judge during the progress of the trial that there is no dispute as to certain questions or one party is estopped by its own records to deny the facts relied on by the other then even though the pleadings may have put the question in issue there is no issue to submit to the jury and the court should declare, as a matter of law, whether or not recovery should be had. Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Keeney v. Freeman, 151 S.W.2d 532; Woods v. Moffitt, 225 Mo.App. 801, 38 S.W.2d 525; Jackson v. Security Benefit Assn., 139 S.W.2d 1015. (2) The court did not err in refusing to sustain the demurrers to each count offered at the close of the entire case by appellant. (a) If approval of the appointments by the county court were necessary, it was conclusively established by appellant's own payroll records for each month of the full period and which payrolls for each month bore upon their face the approval of the county court. Larson v. St. Paul, 83 Minn. 473, 86 N.W. 459. (b) If approval by a majority of the circuit judges of the appointments were required, the records of the Court en Banc showed such approval as to each deputy for the full period of time for which recovery was allowed, except as to seven deputies for a portion of the period covered by the verdict and judgment. As to five of these seven deputies, circuit court records showed approval by the Independence Division. As to two of them, there was no record entry of approval by the Court en Banc, or by any judge or division as to a portion of their time of service. As to each of the seven, however, there was, in addition to the presumption that the court knows who the officials of its court are, affirmative evidence to that effect and no evidence of any disapproval by a single judge or a majority of the judges. (c) There were never at any time more Class B deputies than the statute authorized and allowed. What is now Section 13466 at one time contained a provision limiting the number of Class B deputies for divisions but such limitation was omitted in the repeal of 1919. It has been omitted from three successive repeals and reenactments of the section. There is, therefore, no limitation as to the number of Class B division deputies. It will be presumed that any other Class B deputies shown by the record but not involved in this suit are division deputies. (d) Under appellant's own theory of counting, at least sixteen Class B deputies are authorized -- not eleven or twelve. (e) Even if the record showed more Class B deputies than authorized, it would not defeat recovery because less than the number conceded by appellant to be legally permissible are involved in this suit. Respondent was not required to prove that other Class B deputies indicated to have been appointed were not duly and legally appointed, approved and qualified. Respondent was only required to prove and did prove that the Class B deputies in this suit were duly and legally appointed, approved and qualified. Collateral attack of such character and for such reasons is not permitted. State on inf. Gentry v. Toliver, 287 S.W. 312; State ex rel. v. Brown, 330 Mo. 220, 48 S.W.2d 857. (f) Any irregularity on the face of the commissions or records was supplemented by oral testimony, together with the payroll records. (g) There is no requirement that the appointments be in writing. Powell v. Buchanan County, 155 S.W.2d 172; 11 C. J. 911, sec. 139; Secs. 13466, 13299, R. S. 1939. (3) There was no error in instructions 31 and 32 requested by respondent and given by the court. (a) Instruction 31 correctly informed the jury as to the applicable salary schedule. It did not need to refer to it as a "statutory salary schedule." (b) Instruction 32 correctly informed the jury of what facts would need to be found in order to find a deputy was a duly appointed, qualified and approved deputy. This instruction was designed to take care of any situations where the documentary evidence in any particular might be incomplete or irregular and which was supplemented by oral testimony. (c) Even if the statute requires approval by the majority of the judges, it is not required that such approval be evidenced by a formal order entered on the records of the court en Banc. State v. Newsum, 129 Mo. 154, 31 S.W. 605; State v. Gillham, 174 Mo. 671, 74 S.W. 859; State v. Huett, 340 Mo. 935, 104 S.W.2d 252; State v. Horn, 336 Mo. 524, 79 S.W.2d 1044; Hoke v. Field, 10 Bush, 144. (d) But Section 13471 must be construed and interpreted in the light of Section 13299 as well as Section 13466. Properly construed, it only gives to the majority of the judges a supervisory control over the total number of deputies. It is in the nature of a veto power. Such approval of the number may be shown by affirmative act of the court en banc or of a majority of the judges or by total absence of disapproval. (e) The approval of the personnel of appointments is covered by Section 13299 and not by Section 13471. It is there expressly provided that such approval may be by a judge or a majority of the judges in vacation or by the court. Approval by any one of those methods is all that is required. (4) The court did not err in refusing to submit to the jury the ultimate question of whether or not appellant was indebted. (a) Appellant's requested and refused instructions V and V-1...