author: COLEMAN, Justice.

text:
    EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant, v. Rennie C. LEE et ux. Appellees.
    No. 13785.
    Court of Civil Appeals of Texas. Houston.
    Nov. 30, 1961.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Gibson Gayle, Jr., James B. Sales,. Houston, for appellant.
    Stein, Bennett & Shepley, Albert Stein,. Houston, for appellees.
   COLEMAN, Justice.

This appeal is from a summary judgment granted to appellees, Rennie C. Lee and wife, June Lee, against appellant in Cause-No. 545,349, in the 11th District Court of Harris County, Texas.

Previously, in Cause No. 504,915 in the same court appellees had recovered a judgment against Albert E. Hildebrand. This suit had been instituted by appellees against Hildebrand and Walter N. Bagwell, driver and owner respectively, of the truck involved in a collision in which appellees sustained personal injuries. Appellant, as insurer, assumed the defense for Bagwell, but declined to defend Plildebrand because, it contended, he was not driving the truck with Bagwell’s permission so as to extend the policy’s coverage to him.

Appellees contended in Cause No. 504,915 that Bagwell was liable for their damage under the negligent entrustment doctrine. The jury found that Hildebrand had committed acts of negligence proximately causing appellees’ damages and found that Walter N. Bagwell, on the occasion of the collision in question, “caused or knowingly permitted” Albert E. Hildebrand to drive his truck, but that Bagwell did not know that Hildebrand had no proper driver’s license and was not negligent in failing to determine whether he had such a license before permitting him to drive the truck. Because of these findings the trial court rendered judgment that appellees take nothing as against Bagwell.

Appellees’ unsworn motion for summary judgment was not supported by affidavits. Appellant filed no reply to the motion. The judgment rendered recites that “the motion is accompanied by the pleadings, the verdict of the jury and the judgment in Cause No. 504,915, in the 11th Judicial District Court of Harris County, Texas together with admissions filed in this cause,” and that after considering these matters the court found that there was no genuine issue of any material fact.

Appellant contends that this case must be reversed because certified copies of the proceedings in Cause No. 504,915, on which the trial court relied, were not attached to the motion for summary judgment. Our Supreme Court in Gardner v. Martin, 345 S.W.2d 274, held that Rule 166-A(e), Texas Rules of Civil Procedure, requires that certified copies of court records referred to in a motion for summary judgment be attached to the motion, and that an unsworn motion for summary judgment which referred to a previous judgment by the same Court without certified copies being attached violated that provision of the rule. The court further held that since a summary judgment is possible only by virtue of Rule 166-A, a proponent who fails to comply with its provisions is not entitled to a summary judgment and reversed the trial court and the Court of Civil Appeals and remanded the case to the trial court for further proceedings consistent with the opinion.

It will be presumed that the original pleadings and judgment in Cause No. 504,915 were introduced into evidence and considered by the court in view of the recitations in the judgment and the fact that these documents are included in the transcript filed in this Court. Since appellant failed to point out the defect in pleading by motion or exception in writing as required by Rule 90, T.R.C.P., the matter not being jurisdictional, the defect is waived. Hamilton v. Jenkins, Tex.Civ.App., 235 S.W.2d 195 (mand. overruled); McKee v. City of Mt. Pleasant, Tex.Civ.App., 328 S.W.2d 224; Woodall v. Schmudlach, Tev.Civ.App., 299 S.W.2d 780; Thompson v. State, Tex.Civ.App., 319 S.W.2d 368. The failure to comply with Rule 166-A(e), as construed by the Supreme Court, in the respect pointed out, would not affect the jurisdiction of the court to render a summary judgment. Willoughby v. Jones, 151 Tex. 435, 251 S.W.2d 508; Womble v. Atkins, Tex.Civ.App., 314 S.W.2d 150, aff’d 160 Tex. 363, 331 S.W.2d 294; Maxwell v. Campbell, Tex.Civ.App., 282 S.W.2d 957, ref.

Appellant contends that the trial court erred in granting the summary judgment because there was a genuine issue as. to whether Hildebrand was using the truck with Bagwell’s permission at the time of the accident and that such issue was material in that it was a necessary predicate to-the imposition of coverage liability. This, contention is correct unless it can be determined that appellant is estopped by reason of the judgment rendered in the prior trial to again litigate the question of permissive use. Appellant contends that the-previous jury finding that Bagwell “caused or knowingly permitted” Hildebrand to-drive the truck does not necessarily include a finding that he “permitted” the driving since facts which would authorize a finding of causation would not necessarily support a finding of permissive use. Viewing the issue in the abstract the word “caused” would include both voluntary and involuntary responsibility. Permission implies voluntary consent, either expressed or implied, and would exclude involuntary causation. The answer of the jury in response to the issue submitted does not necessarily amount to a finding that Hildebrand was using the truck with the permission, express or implied, of Bagwell.

However, assuming that the issue does amount to a finding of permissive use, appellant is not estopped by the judgment rendered in the former suit to seek a determination of that issue in this case since appellant had no opportunity to seek a judicial review of the jury’s answer to the issue. Appellant, as the insurer of Bag-well, is bound by a finding of fact decisive of the question of coverage, if such finding was essential to the support of the prior judgment. Withers v. Republic National Bank of Dallas, Tex.Civ.App., 248 S.W.2d 271, ref., n. r. e. This rule is subject to' an exception according to the Restatement, Judgments, Sec. 69, p. 315: “Where a party to a judgment cannot obtain the decision of an appellate court because the matter determined against him is immaterial or moot, the judgment is not conclusive against him in a subsequent action on a different cause of action.” In the case under discussion the jury found that Walter N. Bagwell was not negligent in failing to determine whether Albert E. Hildebrand had a valid driver’s license before permitting him to drive the truck on the occasion of the accident. The judgment that appellees take nothing as to Bagwell is based on this issue. The finding of permissive use is immaterial in so far as the judgment rendered is concerned. Bagwell could have had no effective appellate review of the one issue answered adversely to him except as a cross-assignment in an appeal by appellees. Since appellees did not choose to appeal from the judgment, that method of review was not available to him.

The permissive use issue not being essential to support the judgment rendered in Cause No. 504,915, the necessity for a finding of fact on the issue of permissive use in this case would not be obviated by reason of the doctrine of estoppel by judgment. State v. O’Connor, 96 Tex. 484, 74 S.W. 899; James v. James, 81 Tex. 373, 16 S.W. 1087; Baton v. Gulf Oil Corporation, Tex.Civ.App., 235 S.W.2d 491; East v. Fields, 42 Wash.2d 924, 259 P.2d 639; Artukovich v. St. Paul-Mercury Indemnity Co., 150 Cal.App.2d 312, 310 P.2d 461; 26 Tex.Jur., Judgments §§ 442 and 446.

The judgment of the trial court is reversed and remanded for a trial on the merits.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    Louise C. ROWEN et al., Appellants, v. Albert W. HAUPTMANN et al., Appellees.
    No. 3663.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 24, 1961.

      Louise C. Rowen, Galveston, for appellant.
    Butler, Binion, Rice & Cook, Houston, for appellee.
   GRISSOM, Chief Justice.

This is a suit in trespass to try title by Albert W. Hauptmann et al. against Louise C. Rowen et al. In a trial to the court, judgment was rendered for the plaintiffs and defendants have appealed. There are no findings of fact or conclusions of law. The plaintiffs are the legal representatives, heirs and devisees of Gustaf Adolph Hauptmann and wife, deceased. Gustaf Adolph Hauptmann was the owner of the land in controversy when judgment was rendered in Brazoria County in 1932, purporting to foreclose a tax lien. The defendants are the heirs at law and devisees of C. C. Calla-way, deceased, who obtained a quit claim deed from Prude, who purported to have title by mesne conveyances from the purchaser at the sale under a tax judgment.

The following facts are either undisputed or we must presume they existed and the court so found, to-wit, Gustaf Adolph Hauptmann of Dallas, Texas, at the time of said tax suit held the record title to said property. In the deed to him, which was recorded in the county of the tax suit, it was recited that he was a resident of Dallas, Texas. He timely rendered said land for assessment for taxes in Brazoria County for 1928. The land was carried on the assessment rolls of said county for said year in the name of G. A. Hauptmann of a certain street address in Dallas, Texas. The taxes on said land for said year were paid by said Hauptmann before they became delinquent and a tax receipt was issued showing he had paid them. Taxes on said land were assessed in the name of G. A. Hauptmann of Dallas, Texas, and were paid by him, or one or more of the plaintiffs in this suit, each year before they became delinquent from 1913 to and including 1960. Gustaf Adolph Hauptmann resided in Dallas, Texas, from 1899 until his death in 1939. He never resided in Lynchburg, Virginia. He did not know of the pendency of said tax case.

The defendant named and cited in said tax case was Gustaf Adolph Hauptmann of Lynchburg, Virginia. Gustaf Adolph Hauptmann of Dallas, Texas, was not a defendant and he was not served with citation. We think it is apparent from the record that Gustaf Adolph Hauptmann of Dallas, Texas, who was the record owner and whose said address was shown on the tax rolls and deed records of said county when said tax suit was filed was not a party to said suit, was not cited, and, therefore, neither he nor his property were bound by said judgment. Scales v. Wren, 103 Tex. 304, 127 S.W. 164; Hill & Jahns v. Lofton, Tex.Civ.App., 165 S.W. 67, 70, (Writ Ref.). This alone would sustain the judgment. However, appellees say, and we think correctly, that all of appellants’ points are predicated upon the assumption that Gustaf Adolph Hauptmann of Dallas, Texas, was a party to said tax suit and was cited; that the tax judgment is voidable only and that Hauptmann’s present suit is a collateral attack upon said tax judgment. Appellants say that even if said assumed facts were true that the court did not have jurisdiction of the tax suit and the judgment is void. This contention is based upon the conclusions that the authority to maintain a tax suit and foreclose a tax lien is derived solely from the statute and that under the circumstances said Hauptmann and his land were exempted by the statute that authorizes tax suits. When the tax suit was filed G. A. Hauptmann had duly rendered his land for taxes and timely paid them for the year in question, to-wit, 1928. In the chapter of the statutes on taxation which authorizes tax suits there is Article 7338 which exempts real estate under certain circumstances from the authority granted. One of the exemptions is stated to be “lands that may have been duly assessed and taxes paid on one assessment * * * shall not be deemed subject to the provisions of this chapter.” The record owner was not a party to the tax suit and not cited. The statutory exemption from the authority granted by Chapter 10, Title 122, of the Revised Civil Statutes for maintenance of suits is shown to be applicable. The suit was, therefore, not authorized. The court did not have authority or jurisdiction to render the tax judgment. The tax judgment was void. Hollywood v. Wellhausen, 28 Tex.Civ.App. 541, 68 S.W. 329, (Writ Ref.); Mote v. Thompson, Tex.Civ.App., 156 S.W. 1105, 1109, (Writ Ref.); Hill & Jahns v. Lofton, Tex.Civ.App., 165 S.W. 67, 71, (Writ Ref.). The judgment is affirmed.


author: ELMO B. HUNTER, Special Judge.

text:
    Luther SNIDER, Guardian of the Estate of Annie A. Smith, Incompetent, Appellant, v. William V. MILLER and Alice Miller, his wife, Respondents.
    No. 7960.
    Springfield Court of Appeals. Missouri.
    Dec. 5, 1961.

      Henson & Henson, Poplar Bluff, for plaintiff-app ellant.
    John A. Casey, Poplar Bluff, for defendants-respondents.
   ELMO B. HUNTER, Special Judge.

This is an action by appellant, Luther Snider, Guardian of the estate of Dr. Annie A. Smith, Incompetent, against William V. Miller and his wife, Alice Miller, respondents, for $3,500 damages for the removal by respondents of a small building from appellant’s real estate which had been leased by Dr. Annie A. Smith to respondents. Respondents’ defense was (1) that the lease through mutual mistake failed to contain the true agreement of the parties that respondents were to have the right to remove the building, and (2) that the building was not a part of the realty but in fact was personal property. Respondents asked for reformation of the lease and for judgment.

The parties waived a jury and the cause was tried to the court. The resultant finding was that there had been a mutual mistake made in drawing the instrument and that the instrument should be reformed to express the intention of the parties thereto by adding a clause that respondents “ * * * shall have the right to remove said building from said real estate. * * The trial court also found that the building was so attached to the real estate that it was in fact personal property and not part of the real property thereby justifying its removal. Judgment was entered accordingly.

On appeal appellant contends the trial court erred in finding from the evidence (1) mutual mistake; (2) in finding that the building was personalty that could be removed; and (3) in permitting witness Grozik to testify concerning certain prior negotiations and conversations between the Smiths and the Millers involving the terms the lease was to contain.

Since this case was tried by the court we will review it upon both the law and the evidence. Any incompetent testimony considered by the trial judge will be disregarded. We will reach our judgment on the competent evidence without regard to the trial court’s rulings thereon. Giraldin Bros. Real Estate Co. v. Stiansen, Mo.App., 315 S.W.2d 636. And where the question is one of reformation of a lease for mutual mistake due deference must be accorded the finding of the chancellor and his finding will be sustained unless the proof is palpably insufficient in clarity and cogency to warrant the finding made by him. City of Warsaw v. Swearngin, Mo.Sup., 295 S.W.2d 174.

The evidence developed the following facts. Dr. Annie A. Smith owned a lot on Highway 67 south in Poplar Bluff, Missouri. On September 14, 1954, Dr. Smith and her husband executed a “Lease of Lot and Building” to J. L. and Helen B. Cain for a term of 5 years. The lease provided the Smiths, as lessors, were to construct a small building 18' x 12' x 8', suitable for use as a drive-in-restaurant, at a cost not to exceed $1,600. Rent at the rate of $55.00 a month was to commence when the building was completed. There was to be no subletting or assignment of the lease without the written consent of the lessors. Sometime thereafter the building was constructed and the lessees occupied it.

About March 26, 1956, respondent William Miller commenced negotiations for a lease of the premises. He contacted the Cains who referred him to Dr. Smith, the then only surviving lessor. Miller, then principal of the high school at West Frankfort, Illinois, now a teacher in the Poplar Bluff High School; together with Henry Davis, a past employee of Dr. Smith, Mr. Clarence Bilbrey, a lumberman, and John Grozik, a member of the school board of West Frankfort who was also in the construction business, went to the office of Dr. Smith. There Dr. Smith was informed that Miller was interested in obtaining a lease of the premises to erect an A & W Root Beer Stand, and that the old building on the premises didn’t meet the A & W Root Beer Company standards. Dr. Smith told Miller she didn’t have any money toward moving the old building. Miller then agreed he would at his own expense move the old building to the back of the lot so that Dr. Smith could dispose of it, and that he would pay off a $140.00 material lien on it. He also agreed at his own cost to build an A & W Root Beer building corresponding to A & W specifications. Until the lease ran out he was to pay $55.00 a month rent whether he had a building there or not. Witness Grozik was specifically asked: “Q. But they did agree at that time that he could remove the building at the end of the lease? A. Yes, sir.”

Witness Henry Davis testified that Dr. Smith told Mr. Miller “he would have the right to move it”. * * * “He asked her would he have a right to move the (new) building if he paid for it, and she was reading her lease to Mr. Cain * * * And she looked up and said yes.”

Having come to this agreement Dr. Smith told them to go see her lawyer, Mr. S. H. Myrant. They proceeded to Mr. My-rant’s law offices. Mr. Myrant told Miller he had better “get someone to represent you * * *, and I will look over it.” Mr. Myrant then called Mr. Jack Jolly, another lawyer, and talked to him about this matter. After this Mr. Myrant called the material man who was to furnish the material for the new building and the carpenter doing the work and advised them they need not look to Mrs. Smith for a lien on the lot for the material and work but that they would have to look exclusively to Mr. Miller.

Mr. Grozik, Mr. Miller and Mr. Bilbrey then went to Mr. Jack Jolly’s law office. Grozik was asked if he recalled whether Mr. Miller advised Mr. Jolly that he was to have the right to remove any building erected on the premises by him, and that he wanted the lease fixed so he would have that right. The witness answered:

“Yes, I think he did. * * *
“Q. * * * is there any doubt in your mind * * *? A. No, there isn’t.
“Q. In other words, they did have that conversation? A. Yes. * * *
“Q. What I am trying to determine is, Mr. Jolly was advised of the fact that Mr. Miller and Doc Annie had agreed that he could remove any building? A. Yes, sir.” Jolly remembered being told Miller was going to remove the building that was there but had no further recollection about building removal.

Mr. Jolly then prepared a document titled “Assignment of Lease” in which the Cains assigned to respondents all of their right, title and interest in and to the September 14, 1954 lease, with the provision assignees were to pay $55.00 rental per month for the premises. This assignment was signed by the Cains and the respondents. The assignment document also contained a proviso: “Consent to this Agreement is hereby granted by the undersigned, survivor of the Parties of the First Part in the lease herein mentioned.” Later, the assignment was taken to Dr. Smith’s house and she signed the consent portion.

Respondent Miller then took possession of the premises. He paid off the $140.00 material lien on the old building and at. a cost of $100.00 removed it from its concrete foundation to the back part of the lot. Appellant Snider, who on October 2, 1956, was appointed guardian of the estate of Dr. Smith, later sold it on behalf of Doctor Smith.

Miller enlarged the concrete foundation and built the mentioned A & W Root Beer Building on it. The cost of the building was $3,500.00, and Miller paid it. He occupied the building over 3½ years and regularly paid the $55.00 monthly rental until the expiration of the lease in October, 1960. In February, 1960, he moved the building across the highway to another lot.

We now consider appellant’s first point that the court erred in permitting witness Grozik to testify “to prior negotiations between appellant and respondent and to witness Grozik’s understanding of agreement prior to drafting of written instrument.” In connection therewith appellant argues there is no testimony of mutuality of mistake. The evidence, which we have set out in considerable detail indicates clearly and convincingly that both Dr. Smith and Respondent Miller intended that Miller have the right to remove the building during or at the end of the five-year lease. The written instrument did not contain the true agreement of the parties, apparently unknown to them, for it is to be presumed, absent evidence to the contrary, that they acted in good faith and would not have signed the instrument had they known it failed to express one of the material terms of their agreement. See, Steger v. Seabaugh, 346 Mo. 728, 142 S.W.2d 1001; 45 Am. Jur., Reformation of Instruments, Sections 53, 54, pps. 615 ff. Appellant’s argument to the contrary is not meritorious.

Appellant also contends respondents are attempting to show a mistake on the part of the scrivener who drafted the assignment, citing Hood v. Owens, Mo., 293 S.W. 774, as holding that a mistake of the scrivener does not warrant reformation on the ground of mutual mistake where the scrivener acted for one party only. When carefully read the Hood case and the two-cases cited therein, Brocking v. Straat, 17 Mo.App. 296, 297, and Dougherty v. Dougherty, 204 Mo. 228, 102 S.W. 1099, turned on the fact that there was no clear, cogent and convincing evidence of a mutual mistake but only, at best, that the scriveners had failed to follow the instructions of one of the parties. The Dougherty case, loe. cit. 1101, stated it thusly: “Courts of equity will reform a deed where there is cogent and convincing proof of a mutual mistake, but such is not the record before us. * * * There is no evidence of any agreement between the parties save and except the one expressed in the deed.”

The accepted rule is announced in St. Louis 221 Club v. Melbourne Hotel Corp., Mo.App., 227 S.W.2d 764, 765, 768: “Courts of equity will reform written instruments so as to malee them speak the real agreements of the parties in cases in which by mistake or misprision of the scrivener the writing failed to do so, and it will exercise such power not only as between original parties, but as to those claiming under them in privity, such as personal representatives, heirs, assigns, grantees, judgment creditors, or purchasers from them with notice of the facts.”

It is our view the only sound rule is where the parties to the instrument have reached an accord of minds and the instrument intended to express such agreement fails to do so by reason of the mistake of the draftsman, it is immaterial who employed him, or even that the draftsman is one of the parties. This accords with prior appellate decisions on the subject. See, City of Warsaw v. Swearngin, Mo.Sup., 295 S.W.2d 174, 183(11); Zahner v. Klump, Mo.Sup., 292 S.W.2d 585, 588(6); McCormick v. Edwards, 351 Mo. 1017, 174 S.W.2d 826, 828(1); Federal Land Bank v. McColgan, 332 Mo. 860, 59 S.W.2d 1052, 1056 (15). Thus, a lease which through mutual mistake fails to express the intentions of the parties should be reformed. Smith v. Smith, 289 Mo. 405, 233 S.W. 183.

Appellant’s argument about witness Gro-zik’s “understanding” of the agreement also is without merit. Grozik testified to what Dr. Smith and respondent said. This is relevant and admissible testimony of the agreement of Dr. Smith and respondent William Miller and is evidence of what they intended the written instrument to express.

The Dougherty case, supra, states the applicable rule, 102 S.W. loc. cit. 1101: “A mutual mistake in a written instrument presupposes a prior or preceding agreement between the parties. To show the mutual mistake in the written instrument, the preceding agreement must ex necessitate be shown.” Although the general rule is that where there is a written contract all prior and contemporaneous negotiations and understandings are merged in the written instrument, a recognized exception exists where through mutual mistake the written instrument does not express the true agreement of the parties thereto.

In order to establish a mistake in an instrument it is not necessary to show what particular words were agreed on by the parties as words to be inserted in the instrument. It is sufficient that the parties agreed to accomplish a particular object by the instrument to be executed, and that the instrument as executed is insufficient to effectuate their intention. General Refractories Co. v. Howard, 328 Mo. 1139, 44 S.W.2d 65; 76 C.J.S. Reformation of Instruments § 25(a), p. 348.

In view of our conclusion that the lease should have been reformed just as the trial judge did reform it, it is unnecessary to consider whether the building was personalty and entitled to be removed as such.

The judgment is affirmed.

STONE, P. J., and McDOWELL, J., concur.

RUARK, J., not participating.


author: DOERNER, Commissioner. PER CURIAM.

text:
    Kenneth A. STARK, Plaintiff-Appellant, v. Corliss J. MOFFIT, Individually; J. H. Middleton, as Administrator D.B.N. C.T.A. of the Estate of Francis R. Moffit, Deceased; M. D. King Milling Company, a Corporation; The Farmers Bank of Bowling Green, Missouri, a Missouri Banking Corporation; Woodson K. Woods III; and Escrow Fund in Farmers Bank of Bowling Green, Missouri, Defendants-Respondents.
    No. 30848.
    St. Louis Court of Appeals. Missouri.
    Nov. 27, 1961.

      Van Matre & Van Matre, Everett S. Van Matre, Mexico, for plaintiff-appellant.
    Mcllroy & Millan, Bowling Green, Edward A. Glenn, Louisiana, William M. Turpin, Bowling Green, Richard S. Bull and Doris J. Banta, St. Louis, for respondents.
   DOERNER, Commissioner.

Plaintiff instituted this action in the Circuit Court on November 18, 1960, by which he sought to obtain payment of the sum of $4,425 out of a fund held in escrow by defendant Farmers Bank of Bowling Green, Missouri. One of the defendants below was Corliss J. Moffit, Executrix of the Estate of Francis R. Moffit, Deceased. On the day argument was heard in this court the resignation of the Executrix and the appointment of her successor was suggested, and J. H. Middleton, Administrator D.B.N. C.T.A. of said Estate has been substituted in her stead. In the trial court the defendants filed a joint motion to dismiss plaintiff's petition, on the grounds that prior to the filing of this suit plaintiff had filed a claim in the Probate Court of Pike County against the Estate of Francis R. Moffit based upon the same cause of action. Subsequently the court entered a judgment sustaining defendants’ motion and dismissing plaintiff’s petition, "'* * * on the ground of priority of jurisdiction in the Probate Court * * *'" and plaintiff appealed.

As the court stated in its memorandum opinion, it is a well established rule that when a court of competent jurisdiction becomes possessed of a cause, its authority continues, subject only to the authority of a superior court, until the matter is finally and completely disposed of; and no court of concurrent jurisdiction may interfere with its action. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 15 L.R.A.,N.S., 963; In re Gaebler’s Estate, Mo.App., 248 S.W.2d 12. This rule rests upon comity and the necessity of securing proper and orderly administration of justice to prevent vexation, oppression, harassment and unnecessary litigation. Any other rule would result in a multiplicity of suits and create unseemly, expensive and dangerous conflicts in the securing and execution of judgments. State ex rel. Sullivan v. Reynolds, supra; In re Gaebler’s Estate, supra. It is stated in the latter authority (248 S.W.2d 1. c. p. 15) that “In applying the rule above mentioned the proper test is : (1) whether there is a prior action between the same parties involving the same subject matter; and (2) whether the court in which the prior suit is pending has jurisdiction to render the particular relief sought in the subsequent action. Where the prior jurisdiction has terminated or is inadequate to afford the necessary relief, the assumption of jurisdiction by another court is permissible.”

Plaintiff contends on appeal that the ■court erred in dismissing his petition because this action concerned other parties ■and different theories of law and equity than did his claim in the Probate Court, and because the Probate Court could not grant the relief sought by plaintiff in the Circuit Court. The determination of these questions requires a comparison between plaintiff’s petition in this action and the claim previously filed by him in the Probate Court.

In substance, plaintiff alleged in his petition that on April 8, 1959, plaintiff and the defendant M. D. Milling Company, a corporation, entered into a written contract with the deceased, Francis R. Moffit, involving the raising of hogs for the market. By the terms of the contract, pleaded in full in plaintiff’s petition, plaintiff was to furnish Moffit with 60 meat type gilts, and 2 meat type boars, as breeding stock, the title to which was to remain in plaintiff. Moffit agreed to feed and care for the hogs and their offspring, and to purchase the required feed from the Milling Company. The parties further agreed that as rent for the use of the breeding stock plaintiff was to receive one gilt of his selection from each litter of pigs farrowed; that the Milling Company was to have a lien on all offspring, exclusive of the rental gilt, for the feed purchased by Moffit for the swirie covered by the agreement; and that aftér the payment of the cost of the feed, Moffit was to receive the balance of the proceeds from the sale of the offspring.

Plaintiff further alleged in his petition that he had furnished the breeding stock to Moffit, as provided by said contract, and that at the time he died Moffit was jn possession of 5 sows and 81 gilts belonging to plaintiff; that Corliss J. Moffit had been appointed executrix of his estate by the Probate Court of Pike County on or about March 15, 1960, and was still so serving; that against the will of the plaintiff said Corliss J. Moffit “ * * * individually and as Executrix of the estate of Francis R. Moffit unlawfully converted said swine and sold them for cash against the will Of plaintiff, and deposited said cash in escrow with the Farmers Bank of Bowling Green as hereinafter more fully set forth * * * ”; and that plaintiff’s swine were reasonably worth, and brought at the sale, the sum of $4,425, which was held in escrow by the defendant Bank.

Plaintiff’s petition also set forth in full the terms of the escrow agreement, dated April 14, 1960, between the defendant Milling Company and the defendant Farmers Bank, as parties of the first part; Corliss J. Moffit, Executrix of Moffit’s estate, as party of the second part; and the Farmers Bank, as escrow agent, party of the third part. After referring to the agreement between plaintiff and the Milling Company, and Moffit, it was stated in the escrow agreement that at the time of Moffit’s death, on March 11, 1960, “ * * * there was on hand hogs and off-springs from said gilts delivered by Kenneth A. Stark under the above mentioned agreement, * * * ” and also there were on hand certain sows, boars and pigs upon which the Bank claimed a lien by virtue of a promissory note executed by Moffit, secured by a chattel mortgage; that Moffit was indebted to the Milling Company for purchases, for which it claimed a lien; and that the Executrix was unable to admit or deny the liens claimed by the Bank and the Milling Company. The substance of the agreement was that the Executrix was-to sell all of the hogs for cash and to deposit the proceeds in escrow with the Bank, which was to hold the funds in escrow “ * * * until the final determination of the liens and other claims on said hogs.” The escrow agreement further provided that the Executrix did not admit that the liens claimed by the Milling Company and the Bank were valid, and that “ * * * in the event during the process of this administration it should be determined by proper Court Order or litigation that other persons have some claim on the proceeds of the said sale, or that the said Parties of the First Part are not entitled to all or any part of said proceeds, then in that event, the Party of the Third Fart shall deliver the proceeds to the parties which are entitled to said proceeds, whether it be either or both of said First Parties or any other persons, in the proportion to which any of said persons are entitled.”

Plaintiff also alleged that to the extent of $4,425 the escrow fund was composed of the proceeds of the sale of plaintiff’s hogs, which had been sold by the Executrix; that the defendants Corliss J. Moffit, individually and as Executrix, the Bank, the Milling Company, and Woodson K. Woods III, (Moffit’s landlord), were each making a claim to the fund, but that neither of them had an interest therein except as to any portion of the fund in excess of $4,-425; that Moffit’s estate was believed to be insolvent and plaintiff would be greatly prejudiced by the placing of his property in the estate in that he would receive only a portion of said amount allowed as a claim against such estate; that to permit the estate to take plaintiff’s property and convert it would be unconscionable and unjust, all to the end that the court, under its equitable powers, should afford plaintiff relief by decreeing that plaintiff was entitled to the escrow fund to the extent of $4,425; and that plaintiff had no adequate remedy at law. Plaintiff prayed that the defendants be enjoined from making any disposal or disposition of the escrow fund pending final disposition of the cause, and that the court enter a decree finding plaintiff the owner of $4,425 of the escrow fund and ordering the Bank to pay said sum to plaintiff out of the fund.

The joint motion of defendants to dismiss plaintiff’s petition was supported by a copy of the claim plaintiff had previously filed in the Probate Court. In his claim plaintiff referred to the hog raising contract (which was attached to the claim as an exhibit) ; alleged that the plaintiff had placed the breeding stock with the deceased; that the Executrix was fully informed and had full knowledge of the arrangement; that at the time of the deceased’s death he had on hand 65 sows and 81 gilts belonging to the plaintiff; that all of the sows except 5 were delivered to plaintiff, and that the 5 sows and 81 gilts not delivered were reasonably worth $4,-425; and that said Corliss J. Moffit “ * * * did engage in a course to defeat said Stark’s property rights and accruals thereunder and did render her self (sic) liable personally and in representative capacity to the amount that there might not be a recovery from the Estate of deceased, if so, and the failure to deliver the said gilts in kind and number as set out herein and the S sows of said Stark; that said Corliss J. Moffit, contrary to the law and rule against conversion, did convert the swine aforesaid and sell same with full knowledge in said Corliss J. Moffit, both in personal and representative capacity, to the injury and damage of said Stark and that by claim here against the estate, said Stark does not waive and does retain his lawful claim for all or any deficiency against her in said two capacities, whereas, as between the parties third party claims may not prevail. The claimant Kenneth A. Stark holds no security for said indebtedness.”

Because of the various allegations in plaintiff’s claim that Corliss J. Moffit had acted in her individual as well as in her representative capacity in converting plaintiff’s swine, and had done so in bad faith, as well as the absence of any allegation that the proceeds from the sale of the hogs became part of the assets of the estate, it is doubtful whether the plaintiff’s claim, unless amended, could have been allowed against the estate. White v. McFarland, 148 Mo.App. 338, 128 S.W. 23; Nye v. United States Fidelity & Guaranty Co., 225 Mo.App. 593, 37 S.W.2d 988; Gnekow, State ex rel. and to Use of, v. United States Fidelity & Guaranty Co., 349 Mo. 528, 163 S.W.2d 86. Assuming, however, that the allegations in plaintiff’s claim were sufficient to justify its allowance against Mof-fit’s estate, it is clear that the Probate Court lacked jurisdiction “* * * to render the particular relief sought in the subsequent action,” In re Gaebler’s Estate, Mo.App., 248 S.W. 12, 15. If plaintiff’s claim in the Probate Court stated any cause of action against the estate-it was one in the nature of trover and conversion. 89 C.J.S. Trover and Conversion § 48; Detmer v. Miller, Mo.App., 220 S.W.2d 739. Such an action is one at law, by which a plaintiff seeks a money judgment for the value of the property converted. St. Louis Fixture & Show Case Co. v. F. W. Woolworth Co., 232 Mo.App. 10, 88 S.W.2d 254. Thus by his claim in the Probate Court plaintiff cast himself in the role of an ordinary creditor of the estate. Hax v. O’Donnell, 234 Mo.App. 636, 117 S.W.2d 667; O’Neal v. Patterson, Mo.App., 206 S.W. 596. The only parties were the plaintiff, on the one hand, and the estate, represented by the Executrix, on the other. Section 473.270; State ex rel. Lefholz McCracken, 231 Mo.App. 870, 95 S.W.2d 1239. Had plaintiff’s claim been allowed it would have been a judgment in reus against the estate. Section 473.403; Wahl v. Murphy, Mo., 99 S.W.2d 32; First National Bank of Brush, Colo. v. Blessing, 231 Mo.App. 288, 98 S.W.2d 149. It would have had to have been classified in accordance with the statute on the classification of allowed demands. Section 473.397. And payment could only have been made out of the general assets of the estate, as far as they would go, in the order in which all claims were classified. Sec. 473.430. Plaintiff neither sought, nor could the Probate Court have granted, any priority or preference in the allowance or payment of his claim. Dietrich v. Jones, 227 Mo.App. 365, 53 S.W.2d 1059.

By his action in the Circuit ComfI plaintiff, in effect, sought to have Mrs. Moffit, individually and as Executrix, declared to be a trustee ex maleficio-' as to the proceeds realized from the sale of plaintiff’s swine; to trace such proceeds into the escrow fund; to impress a lien or trust thereon for the amount of such proceeds; and to obtain payment thereof out of the escrow fund prior to and in preference over the other claimants to such fund. The issues thus presented and the relief sought were purely equitable in nature. It is well settled that a court of equity has jurisdiction of all questions relating to the,establishment, enforcement, and protection and; preservation of a trust on real or personal property, 90 C.J.S. Trusts § 454; In re Frech’s Estate, Mo., 347 S.W.2d 224. A probate court, on the other hand, is a court of limited, statutory jurisdiction, possessing- only those powers expressly conferred by; statute or those necessarily incident to the proper exercise of duties directly imposed. In re Frech’s Estate, supra; State ex rel. Barlow v. Holtcamp, 322 Mo. 258, 14 S.W.2d 646. While it may, like other courts of law, consider and determine questions of an equitable nature incident to the e-xercise of its statutory powers, In re Franz’ Estate, 359 Mo. 362, 221 S.W.2d 739; Johnston v. Grice, 272 Mo. 423, 199 S.W. 409; and may apply equitable principles in the adjudication of law cases, In re Christian Brinkop Real Estate Co., Mo.App., 215 S.W.2d 70; In re Oberman’s Estate, Mo.App., 281 S.W.2d 549; nothing is more firmly settled than that it does not have purely equitable jurisdiction, Tracy v. Sluggett, 360 Mo. 1120, 232 S.W.2d 926; State ex rel. Baker v. Bird, 253 Mo. 569, 162 S.W. 119; nor jurisdiction to try issues which are purely equitable in nature and where the relief demanded is equitable. State ex rel. and to Use of Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W.2d 152; Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 S.W. 116. It does not have power to establish and enforce trusts, State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W. 2d 909; State ex rel. and to Use of Clay County State Bank v. Waltner, supra; nor does it have jurisdiction of a proceeding to trace and recover trust funds. Howard’s Estate v. Howe, 344 Mo. 1245, 131 S.W.2d 517; Dietrich v. Jones, 227 Mo.App. 365, 53 S.W.2d 1059.

Defendants argue in their brief that “The Probate Courts have jurisdiction under the new Probate Code to determine equitable matters * * *” and point to Section 472.030 in support of their contention. That section does not sustain their position. What it provides is that a probate court “ * * * has the same legal and equitable powers to effectuate its jurisdiction and to enforce its orders, judgments and decrees in probate matters as the circuit court has in other matters * * As the key words we have emphasized indicate, whatever equitable powers a probate court may exercise by virtue of that section must be employed in the discharge of its jurisdiction in probate matters. The clause is not a grant to probate courts of jurisdiction in purely equitable matters. In fact, as was said in Helliker v. Bram, Administrator of the Estate of Norman E. Thomas, Deceased, Mo., 277 S.W.2d 556, 561, with reference to Section 16, Article V of our constitution, V.A.M.S.: “The probate court, by virtue of this constitutional provision, is not a court of general jurisdiction, but its jurisdiction is circumscribed and restrained to those matters set out in Section 16, Article V, supra, and any legislative acts which attempt to extend such jurisdiction beyond that conferred would be violative of the constitution. * * *"

Defendants also contend that if the Probate Court allowed plaintiff’s claim it could decree that it be paid out of the escrow fund. This would be, in effect, the establishment and enforcement of a trust in favor of plaintiff on the escrow fund, a purely equitable relief, and beyond the jurisdiction of the Probate Court. Howard’s Estate v. Howe, supra; Gnekow, State ex rel. and to Use of, v. United States Fidelity & Guaranty Co., 349 Mo. 528, 163 S.W.2d 86; Dietrich v. Jones, supra; Silsby v. Wickersham, 171 Mo.App. 128, 155 S.W. 1094.

Lastly, defendants contend that the parties were the same in both proceedings. They concede that in this action they were named as “additional parties,” but they state that “ * * * they are not necessary parties to a determination of the issues.” According to plaintiff’s petition, each of the defendants, for one reason or another, is contending that he has an interest in or a lien on the escrow fund. If defendants mean what they say, the court of equity could determine plaintiff’s rights in the fund in derogation of defendants’ claim thereto without giving defendants an opportunity to be heard. Unless defendants are prepared to concede plaintiff’s right to the amount of $4,425 out of the escrow fund as being paramount and prior to any rights of their own, we can scarcely believe them to be seriously advocating the point.

Returning to the test laid down in In re Gaebler’s Estate, supra, it is apparent that plaintiff’s prior claim in the Probate Court does not involve the same parties nor the same subject matter as the action subsequently filed by him in the Circuit Court; and that the Probate Court does not have jurisdiction to render the particular relief sought in this action. It follows that the court erred in dismissing plaintiff’s petition, and that the judgment should be reversed and the cause be remanded for further proceedings not inconsistent with the views expressed herein. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court. Accordingly, judgment is reversed and the cause remanded for further proceedings.

ANDERSON, P. J., RUDDY, J., and JOHN J. KELLY, Jr., Special Judge, concur.


author: WADDILL, Commissioner.

text:
    SOUTH-EAST COAL COMPANY, Appellant, v. Frank B. DINGUS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    J. W. Craft, Jr., Hazard, for appellant.
    C. W. Napier, Hazard, for appellee.
   WADDILL, Commissioner.

This appeal is from a judgment reversing an order of the Workmen’s Compensation Board which dismissed appellee’s claim seeking compensation for disability caused by the disease of silicosis. The Board ruled, and appellant contends, that appellee’s claim was barred under KRS 342.316(3), which (as amended in 1956) provides:

“(3) The right to compensation under this chapter for disability resulting from an occupational disease shall be forever barred unless a claim is filed with the Workmen’s Compensation Board within one year after the last injurious exposure to the occupational hazard or after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, whichever shall last occur; * * *."

Appellee was hired by appellant in September, 1948, and after he had worked for several years in appellant’s mine, where he was exposed to rock dust and sand, he began having respiratory difficulty which resulted in his being hospitalized for a short time in December, 1954. At that time his condition was diagnosed as silicosis, and two months later he so notified appellant. He continued to work in appellant’s mine until December 6, 1957, and on December 4, 1958, he filed his claim with the Board seeking compensation for total permanent disability due to silicosis.

The basis of appellant’s contention that the claim is barred by limitations is that “last injurious exposure,” as used in KRS 342.316(3), means the last date of exposure before existence of the disease is known to the claimant. Obviously, if this is sound, appellee’s claim which was filed four years after the diagnosis would be barred under this statute. However, we have held that a claim was not barred by the statute of limitations when filed within one year from the claimant’s last injurious exposure even though the claimant knew he had silicosis prior to his last exposure. Osborne Mining Company v. Davidson, Ky., 339 S.W.2d 626. The mere fact that appellee knew he had silicosis long before his last injurious exposure is immaterial. Gibson v. Blue Diamond Coal Company, Ky., 342 S.W.2d 698. Also see, Childers v. Hackney’s Creek Coal Company, Ky., 337 S.W.2d 680; W. M. Coal Company v. Campbell, Ky., 344 S.W.2d 794.

Since it was established that appellee was last exposed to the occupational conditions which could cause silicosis on December 6, 1957, which was within one year from the filing of his claim, the judgment remanding the case to the Workmen’s Compensation Board for the entry of an appropriate award was correct.

Judgment affirmed.


author: STANLEY, Commissioner.

text:
    Gerald W. CHISM, Appellant, v. Flora LAMPACH, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    J. Walter Clements, Louisville, for appellant.
    Frockt, Baer & Benovitz, Louisville, fot appellee.
   STANLEY, Commissioner.

The appeal is from a judgment for the appellee for $12,500.

The plaintiff, now appellee, Mrs. Flora Lampach, who weighed about two hundred pounds, got off a bus on the Eighteenth Street Road, or Dixie Highway, in Jefferson County, at the intersection of Mary Catherine Drive and walked west-wardly 150 feet or more on the north side of the Drive on the edge of the paved surface. There was no sidewalk. According to her evidence, she was struck in the back by an automobile driven by the defendant, Chism. She had heard no horn or other noise of the automobile coming up behind her and remembered only that she was struck a hard blow in the back. Another witness testified that the car was traveling about 30 mph, and after the impact it skidded left 25 or 30 feet to the center of the road or street and stopped. The woman’s body was knocked two or three feet off and from the edge of the paving. The accident occurred about eight o’clock in the morning on a clear day in June, 1958.

According to the defendant, who was nineteen years of age, when he turned into the Drive at Eighteenth Street he saw the woman walking with her back to him, and she was in view all the time. He sounded a “beep” on his horn when he was about fifty feet from her but did not apply his brakes. He testified that as the front of his automobile was passing her “she made a quick movement towards my car.” He then applied his brakes and swerved to the left. The defendant admitted he had said in a pretrial deposition that he had started around the woman when 3}4 feet from her and then she made “a leftward motion, or towards the south” and after the front of the car had passed "she walked into the back of the right front fender.” A dent in the top of the right fender just in front of the door post he claimed was made by the impact. Incredible though it be, he insisted no part of the front of the car struck the woman.

A surgeon who treated the plaintiff at the hospital expressed the opinion, upon the equivalent of hypothetical questions, that the fracture of her pelvis and other injuries were probably caused by “a blow from the front or the rear” and not from her side.

Nearby witnesses heard no horn sound. Some had seen the dent in the top of the fender and others had not. There were some other scratches or marks on or about the right headlight.

The foregoing is the gist of the evidence insofar as the question of responsibility is concerned.

The defendant contends he was entitled to a directed verdict.

On the question of the defendant’s primary or antecedent negligence, the jury could hardly believe he was not negligent — very negligent. He had seen the woman directly in his path when he was 150 to 200 feet away. He admitted that he kept straight ahead and did nothing to alarm or avoid her except to toot his horn when fifty feet from her. Others testified he did not even do that.

In walking along the right side of the road with her back to the traffic, the plaintiff violated the statute. KRS 189.570 (6). In doing so the plaintiff failed to observe the standard of ordinary care for her own safety which by implication is what is prescribed by the statute. Applegate v. Johnson, 306 Ky. 358, 208 S.W.2d 77; Saddler v. Parham, Ky., 249 S.W.2d 945; Bettis’ Ex’x v. Rickett, Ky., 310 S.W.2d 775; Ross v. Jones, Ky., 316 S.W.2d 845. The statute permits a motorist to assume that pedestrians will not be walking on or along the right side of the highway, Applegate v. Johnson, supra, 306 Ky. 358, 208 S.W.2d 77, but it does not relieve a motorist of his common law duty of exercising due care to avoid striking them. Certainly, a pedestrian in such position does not license a motorist to run over him or her. The factor of contribution as a proximate cause enters into the question where the motorist sees the pedestrian in ample time and under conditions that he may in the exercise of ordinary care avoid injuring him. We have recognized that in some instances the position of a pedestrian walking on the highway may he the probable or natural cause of his being struck by an automobile. Applegate v. Johnson, 306 Ky. 358, 208 S.W.2d 77; Saddler v. Parham, Ky., 249 S.W.2d 945; Swift & Co. v. Thompson’s Adm’r, 308 Ky. 529, 214 S.W.2d 758; Miracle v. Flannery’s Adm’r, Ky, 259 S.W.2d 689; State Contracting & Stone Co. v. Fulkerson, Ky, 288 S.W.2d 43.

The present case is distinguishable from previous decisions. In our other cases of this class the accident occurred at night when the visibility of the motorist was obscure. The action of the defendant in this case was inexcusable.

The court instructed the jury on the der fendant’s primary negligence in regard to control, lookout, speed and timely warning, and the plaintiff’s contributory negligence in regard to exercising ordinary care, to walking on the left side of the street and not to “turn to the left and walk into the side of the right front fender” of the defendant’s car. We are not so sure that standing alone the circumstance of the plaintiff being on the edge of the street after having walked on the right side should bar recovery, as the appellant contends, because of the factor of a proximate contribution to the accident. The instructions permitted the jury to excuse the defendant, and we do not regard them as prejudicial.

The court may well have submitted the case only under what is variously called the doctrine of “last clear chance” or “discovered peril” or the “humanitarian doctrine”. This is an elementary law of torts. Except for the improbable claim that after the front of the automobile had passed the plaintiff she “walked into the back of the right fender” and made a dent on the top of it, there was nothing to furnish ah escape under this doctrine.

Motions for peremptory instructions were properly overruled. There is no error in the form of the given instructions.

When the case was called for trial, the defendant had not come into court, and his attorney did not know his whereabouts. It was soon learned that the defendant had been involved in an automobile accident on his way to court. After some delay he appeared, and the trial proceeded over the defendant’s objection. The afternoon newspaper, the Louisville Times, and the Courier Journal the next morning, published accounts of the accident in which three children had been injured, and reported that the defendant, Chism, had been arrested and booked on the charges of reckless driving and assault and battery. One of the articles stated that Chism was on his way to court where he was a defendant in a damage suit.

Upon the calling of the case for a renewal of the trial the next morning, the defendant moved to set aside the swearing of the jury and continue the case because of the publicity. The court asked counsel whether he desired that an inquiry be made of the jurors as to whether any of them had read the newspaper accounts, and if they had done so, whether counsel desired the court to admonish the jurors to disregard the newspaper reports and decide the case solely on the evidence. Counsel stated he had no objection to the inquiry, but if any one stated he had read the articles, he would object to the court giving the suggested admonition because it would not remove the damaging effect of the news and would do the defendant more harm than good, and he would insist on a retrial. The court expressed his views of the conditions and stated that it would be speculative as to whether or not any member of the panel had read about the accident. Because of that and the position taken by counsel, the court overruled the motion. The appellant cites several decisions of federal cases in support of his argument that the action of the trial court was error. It seems to us this matter was within the discretion of the court, and that discretion was not abused.

Both parties to the action had given pretrial depositions, and the material witnesses had made written statements concerning their knowledge of the accident. During the cross-examination of the witnesses for the plaintiff, the defendant’s counsel persistently interrogated them as to their previous statements in an eifort to establish contradictions. On objections of the plaintiff based upon the absence of contradiction, the court expressed his own views in regard thereto, observing that there were no contradictions. From time to time the court interrupted the examinations and injected himself into them in an effort to clarify the questions or to help the witnesses understand them. We observe that in this matter of participation the court treated both parties alike. Many of the efforts to show contradictions where there were none doubtless exasperated the judge and the jury as well.

In this jurisdiction comments by a trial judge which may reflect upon the credibility of a witness or tend to indicate the court’s view of the quality or weight of the evidence are considered improper. Notice is taken of the high regard which jurors generally have of the judge, hence his remarks have great weight and often result in improper influence. Northeast Lumber Co. v. Harris, 220 Ky. 454, 295 S.W. 455; City of Prestonsburg v. Mellon, 220 Ky. 808, 295 S.W. 1064; Louisville & N. R. Co. v. Utz, 297 Ky. 70, 178 S.W.2d 958; Levisa River R. Co. v. Phillips, 312 Ky. 367, 227 S.W.2d 922; Martin v. Tipton, Ky., 261 S.W.2d 809; Collins v. Sparks, Ky., 310 S.W.2d 45.

It is difficult to define due bounds of propriety. The judge need not be a mere automaton or robot, but he should leave to the lawyers the development of the case and be cautious and circumspect in his participation and conduct and control the proceeding in a manner that will give it the atmosphere of impartiality. 53 Am.Jur., Trial, §§ 74, et seq; 88 C.J.S. Trial § 48 et seq; 1 Thompson on Trials, §§ 218-220. But the participation or intrusion by the judge may not be prejudicial under the particular circumstances of the case and will not justify a reversal of a judgment on that account. Although the participation of the trial judge in this case was voluble, under the circumstances of the case we do not regard it as prejudicial to the rights of the defendant.

Another point of error is made. The court denied the defendant the right to introduce a witness, one Marion Cooper, because his name was not on the list of witnesses exchanged with opposing counsel before the trial. The argument centers around Civil Rule 26.02, which provides that a party may be examined regarding the identity and location of persons having knowledge of relevant facts. The rule is not applicable. In this instance the defendant claimed that at the time of the exchange of the lists he was not in a position to know that Cooper would be needed. The witness’ examination in chambers revealed he was the service manager of a garage which had loaned the automobile involved in the accident to the defendant, Chism, while his car was being repaired, and that he would testify the dent in the top of the fender, heretofore referred to, was not there when Chism took possession of the automobile. The witness did not state how long Chism had had that possession before the accident. The trial court expressed the opinion that as there was an agreement between the attorneys to exchange lists of witnesses, they should be held to the agreement. We think the court was in error. But the proffered testimony was not material, for the dent could well have been made between the time the defendant got possession of the car and the accident. Moreover, the testimony would have been cumulative. We do not regard the ruling of the court to have been prejudicial.

The judgment is affirmed.


text:
    Ann Hicks TERRELL, Appellant, v. H. W. TERRELL, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    Carlos B. Pope, Barbourville, for appellant.
    . R. L. Brown, Williamsburg, C. G. Cole, Jr., Barbourville, for appellee.
   WADDILL, Commissioner.

Dr. H. W. Terrell was granted a divorce from Ann Hicks Terrell on the ground of cruel and inhuman treatment. KRS 403.-020(4) (d). Mrs. Terrell, whose former name was restored by the judgment, was awarded alimony in the sum of $3000; she was authorized to keep an automobile valued at $3000 and some jewelry worth $3400 which had been given to her by Dr. Terrell; she recovered $5000 upon a note which he had executed to her during their marriage. The judgment also directed her to restore to Dr. Terrell certain property she obtained by virtue of the marriage.

Mrs. Terrell appeals, contending that the Chancellor erred: In failing to grant her sufficient alimony; in settling their property rights; and in restoring her former name.

The parties were married during 1950 and separated approximately nine years later. She was 48 and he was 55 years old when the divorce was granted. This was the second matrimonial venture for each of them.

Appellant had formerly been a licensed beautician, but she has not practiced her profession since her marriage. Her back was injured several years ago in an automobile accident and she claims that she has not fully recovered. She concedes that she had only $900 at the time of her marriage to appellee and that sum plus $1600 she received in settlement of her personal injury claim was all the money or property she had acquired in her own right at the time of their separation.

Appellee had practiced medicine for about 21 years prior to his marriage to appellant. During that period he had obtained the greater part of his property which, at the time of their separation, the Chancellor valued at $55,000. It was shown that appellee’s gross income for the year of 1958 amounted to approximately $13,000. Appellee often drinks liquor excessively and to some .extent this habit may have contributed to the instability of the marriage. However, the Chancellor was aware of this fact and expressed some doubt that it was a cause of the separation since appellant accompanied appellee on numerous occasions to places where he purchased liquor, and on some occasions participated in drinking herself.

The record reflects that appellant was extremely jealous and suspicious of appel-lee because of his association with one of his female employees. Several persons testified that appellant would frequently visit appellee’s office and would not only annoy his patients with her personal problems, but would enter his private office while he was examining a patient and would demand that he discharge a certain female employee. There was testimony that, during one of her tirades at appellee’s office, appellant had described the employee in extremely vulgar language, and on another one of these occasions had struck appellee with a medical instrument.

The Chancellor found that although each of them was guilty of some fault, neither one was shown to be morally delinquent, but that appellee had established his ground for divorce. Under these circumstances the Chancellor could grant appellant alimony. Pearson v. Pearson, Ky., 350 S.W.2d 141.

In arriving at an equitable amount of alimony there is no exact formula to apply. In some cases we have said that approximately one-third of the husband’s estate may be used as a reasonable measure of alimony, unless there are circumstances making such a division inequitable. Heustis v. Heustis, Ky., 346 S.W.2d 778; Ahrens v. Ahrens, 313 Ky. 55, 230 S.W.2d 73. However, it is apparent from the well-written opinion of the Chancellor that he properly weighed the numerous factors which are relevant in determining an equitable allowance of alimony. Maher v. Maher, 295 Ky. 263, 174 S.W.2d 289; Lewis v. Lewis, 289 Ky. 615, 159 S.W.2d 995. Consequently, we are unwilling to say that the Chancellor abused his discretion although the award is not a liberal one.

When an absolute divorce has been granted the provisions of KRS 403.065 require an order of the court restoring to each party all property obtained from or through the other party before or during the marriage in consideration of the marriage. Stubblefield v. Stubblefield, Ky., 327 S.W.2d 24; Jarvis v. Jarvis, 304 Ky. 253, 200 S.W.2d 475. In the instant case appellant made no financial contribution in connection with the acquisition of the real estate and the personal property appellee now owns. We have heretofore observed that appellant concedes that she had only $900 at the time of her marriage and that during her marriage she received $1600 in settlement of her personal injury claim. These sums and others given to her by her husband were apparently loaned to him as evidenced by his promissory note to her in the amount of $5000. She obtained judgment for the full amount of the note, with interest. She also was authorized by judgment to retain jewelry and an automobile valued at $6400 and in addition thereto was awarded the alimony previously discussed. While it does appear that she worked for awhile in her husband’s office, she admittedly expected no compensation for this service. Under these circumstances we conclude that the Chancellor equitably decided their property rights and entered the proper restoration order.

Appellant urges that the Chancellor erroneously restored her former name. KRS 403.060(4) provides:

“If the wife obtaining a divorce so desires, the court shall restore to her the name she bore before marriage.”

Since the appellant did not seek a restoration of her former name we believe that the judgment should be reversed in this respect. Cf. Rayburn v. Rayburn, 300 Ky. 209, 187 S.W.2d 804.

The judgment is reversed to the extent that it restored appellant’s former name and is affirmed in all other respects.


author: BIRD, Chief Justice.

text:
    Claude DEARING, Appellant, v. Roy McCORMACK, Magistrate, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    Leland H. Logan, Bowling Green, for appellant.
    John B. Breckinridge, Atty. Gen., Troy D. Savage, Asst. Atty. Gen., B. G. Davidson, County Atty., Bowling Green, for ap-pellee.
   BIRD, Chief Justice.

The statutes provide that sheriffs shall be paid six dollars for arrests in misdemeanor cases. KRS 64.090. The statutes also provide that constables shall be paid the same as sheriffs for arrests in misdemeanors except in cases involving the use of motor vehicles upon the public highways. In those; cases the constable is to be paid fifty cents for each arrest. KRS 64.190.

Before the 1956 Amendment to KRS 64.-190 the constable’s arresting fee in misdemeanor cases was the same as that of the sheriff.

Claude Dearing, a constable, in this action against Roy McCormack, a magistrate, challenges the constitutionality of the 1956 Amendment. It is charged that the Amendment violates sections 59 and 60 of the Constitution of Kentucky. The constable claims that the Services rendered- and the dangers attendant are exactly the same whether performed by a sheriff or a constable and that the lawmakers were motivated by ulterior purposes in limiting the constable’s arresting fee in motor vehicle cases.

Such purposes may or may not have been' present in the minds of the legislators but if such purposes' did exist within’;'their1 minds it does not of necessity mean that the Act is so unreasonable and arbitrary as to1 violate the provisions of the Constitution' as claimed by the constable.

It will be noted that sheriff’s fees are generally higher than constable’s fees for performing the same service. KRS 64.-090 and KRS 64.190.

Th.e trial court pointed out that the General Assembly could properly consider the “dignity” of the two offices in making a, difference in fees to be collected. This may in fact be true but we prefer to charge the difference to overall responsibility which we believe is a reasonable basis for classification.

This Court does not mean to say that the office of constable is not one of importance.’ When any office gives any one man any degree of authority over any other man, or his property, that office is then one of importance and should be so treated.

In this case, however, we find no constitutional wrong done to the constable and the judgment must therefore be affirmed.


author: CULLEN, Commissioner.

text:
    Cecil H. MILBURN, Administrator of Estate of Thomas Milburn, Deceased, Appellant, v. Martha L. RAGER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    M. Joseph Schmitt, Allen Schmitt, Louisville, for appellant.
    .Kent McElwain, Louisville, for appellee.
   CULLEN, Commissioner.

The administrator of the estate of Thomas Milburn, deceased, brought action against Martha Rager to recover damages for the wrongful death of Milburn, alleged to have been caused by Mrs. Rager’s running into him with her automobile. The jury returned a verdict for the defendant and from the judgment entered on that verdict, dismissing the action, the administrator has appealed.

The appellant maintains that the trial court erred in admitting certain evidence bearing on the decedent’s earning capacity and state of health, and in giving an instruction on contributory negligence. The appellee takes the position that the assigned errors are immaterial because she was entitled to a directed verdict.

The action was based on a claim that Mrs. Rager, in driving her automobile out of a parking lot in the City of Louisville around 2:00 a. m. on a morning in March, struck Milburn, who was walking along the sidewalk, and knocked him into the middle of the street, causing injuries which resulted in his death a few hours later. Mrs. Rager denied that her car struck Milburn, and testified that when she drove out of the parking lot she saw Milburn’s body lying in the middle of the street.

No witness saw Mrs. Rager’s car hit Milburn. The plaintiff was required to base his case solely on circumstantial evidence.

The evidence for the plaintiff (which we need not relate) perhaps was sufficient to raise an inference that Mrs. Rager’s car did hit Milburn, although it does not indicate that the motion of the car was such as normally would have resulted in such serious injuries as Milburn sustained. But as concerns the essential factors of negligence and causation the evidence does no more than suggest a possibility that the accident was caused by negligence of Mrs. Rager. The evidence does not show that before he was hit Milburn was in a position where he was or should have been seen and avoided by Mrs. Rager. The jury was required to resort to speculation, surmise or guesswork as to how and where the accident happened. Under these circumstances the defendant was entitled to a directed verdict. Hollon v. Greyhound Corporation, Ky., 272 S.W.2d 329; Priest’s Adm’x v. E. L. Anderson Lumber Co., Ky., 302 S.W.2d 376.

The judgment is affirmed.


author: STEWART, Judge.

text:
    Edgar Clay MORROW, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.
    W. W. Evans, Louisville, for appellant,. ,
    John B. Breckinridge, Atty. Gen., 'William F. Simpson, Asst. Atty. Gen., for ap-pellee.
   STEWART, Judge.

Appellant, Edgar Clay Morrow, was indicted for armed robbery, pled guilty to ordinary robbery, and was sentenced to serve five years in the penitentiary. He appeals from the judgment.

The Commonwealth claims this Court is without jurisdiction to hear the appeal because appellant failed to comply with the requisites of Section 336 of the Criminal Code of Practice. Subsection 1 of • this Code provision allows an appeal as a matter of right, but it must be prayed and the prayer noted of record in the circuit court during the term at which the judgment was rendered. Subsection 2 provides that the circuit court may by an order suspend the execution of the judgment during the period within which the defendant is required to lodge a transcript of the record in the clerk’s office of the Court of Appeals. Subsection 3 requires that the appeal be taken by filing with the clerk of the Court of Appeals, within sixty days after the judgment, a certified transcript of the record. Subsection 4 reads:

“If time be given, beyond the term at which the judgment is rendered, to present a bill of exceptions, the transcript of the record may he filed in the clerk’s office of the Court of Appeals, within sixty days after the bill of exceptions is made a part of the record.”

On August 25, 1959, appellant pled guilty to robbery and the court fixed his punishment as above mentioned. On the same day he moved the court to withhold rendition of the judgment and it passed the motion to October 1,. 1959. This motion was passed several times until, on August 29, 1960, it was overruled and judgment was entered.

On August 31, 1960, appellant filed his motion' for a new trial, which motion was overruled on December 19, 1960. On that date the court granted an appeal to the Court of Appeals and allowed 60 days within which he could file his bill of exceptions.

On February 14, 1961, appellant again asked for 60 additional days in which to file his bill of exceptions. This motion, according to the record, was never ruled on. 'Appellant filed his bill of exceptions on March 29, 1961, and filed the transcript of the record with the Court of Appeals on April 21, 1961.

Obviously, appellant should have ¡filed his transcript of the record with this Court on or before February 17, 1961, which was 60 days after rendition of the judgment. Still, it might be contended that under subsection 4 of Section 336 of the Criminal Code of Practice, he had sixty days from the date the bill of exceptions was made a part of the record in which to file the .transcript of the record with the clerk of this Court. This right, however, only ..prevails where there is an extension of time given for filing the bill of exceptions beyond -the term at which the judgment was ren- . dered. As no such extension was granted :it was appellant’s mandatory duty to have the transcript of the record filed in this Court within 60 days next succeeding the entry of the judgment, and not having done so, the provision contained in subsection 4'cannot be invoked. See .also KRS 451.150.

Smith v. Commonwealth, 146 Ky. 751, 143 S.W. 381, dealt with a situation somewhat analogous to the one now before us and inasmuch as this Court held in that case the appeal had not been perfected and ruled this Court had no jurisdiction, that case governs.

Wherefore, the appeal is dismissed.


author: MONTGOMERY, Judge.

text:
    Leslie McKINNEY, Appellant, v. J. A. BALLARD, Jr., Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1961.

      William E. Rummage, Bratcher & Rummage, Owensboro, for appellant.
    John B. Anderson, Owensboro, for appel-lee.
   MONTGOMERY, Judge.

Leslie McKinney appeals from a judgment in favor of J. A. Ballard, Jr., based on a jury verdict. McKinney had sued for personal injuries received in an auto-pedestrian accident. Appellant contends that the instructions were erroneous, in that Instruction 1(d) in defining the appellee’s duties was equivalent to a peremptory instruction in appellee’s favor, and that' the court should have given an instruction defining appellee’s duties under KRS 189.-570(2).

The accident occurred on four-lane U. S. Highway 60 about a mile east of the Owens-boro city limits on February 20, 1959, at about 4:45 p. m. Appellant was employed at the Glenmore Distilleries plant. He was struck by appellee’s auto as he crossed the highway from the plant entrance to get to the parking lot entrance, about twenty-five feet west of the plant entrance and on the opposite side of the highway. Both the plant site and parking lot were enclosed by high fences. Ingress and egress for each were through a single opening onto the highway. Sidewalks bordered the highway on both sides.

There was a flashing amber caution light located in front of the plant entrance and over the center of the highway. It had been erected by the Kentucky Department of Highways.

In substance, appellant testified that he. looked both ways for oncoming traffic before leaving the sidewalk and again before stepping from in front of a truck, which was stopped in the inner eastbound traffic lane. Two cars were stopped in the same, lane behind the truck. Appellant said that he “didn’t see anything” and started across the remaining part of the highway. He had not taken more than two steps from his position in front of the truck before he was struck by the left hood portion off appellee’s 'car, traveling forward in the. outer eastbound traffic lane.

Appellee testified that he pulled his car in behind the stopped vehicles,' observed that the outer lane was clear, and drove into it. He saw some men near the plant entrance before he pulled into the outer lane. He accelerated the speed of his car to twenty-five or thirty miles per hour. He did not see appellant until he stepped out from in front' of the stopped truck and into the path of appellee’s oncoming car. Appel-lee’s car was then three feet from appellant. Appellee said he had placed his foot on the brake in anticipation of any pedestrian crossing, but was unable to stop in time to avoid the collision. ■ . .

The court defined the duties o( appellee in Instruction I, which included the duties of (a) ordinary care, (b) reasonable control, (c) lookout, and (d), the pertinent part of which is:

“The Defendant, J. A. Ballard, Jr., had the right of way on Highway 60 with its intersection with the Glenmore private driveway, unless you shall believe from the evidence that at that time Leslie McKinney entered said Highway 60 the J. A. Ballard, Jr. automobile was a sufficient distance from the Glenmore driveway for Leslie McKinney to enter and cross said highway with reasonable safety, in which latter event it was the further duty of J. A. Ballard, Jr. to yield the right of way to the said Plaintiff, Leslie McKinney.”

The court refused an instruction offered by appellant to the effect that it was the duty of appellee to “render the right of way” under KRS 189.570(2). The instruction offered was similar to Instruction I (d) in Stanley’s Instructions to Juries, Volume 1, Section 98, page 148, and approved in Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897, and Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498.

KRS 189.570 involves the regulation of pedestrian traffic at intersections. Subsections (2) and (4) are correlative and provide :

“(2) Except as provided in subsection (4), where traffic control signals are not in place or in operation the operator of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked cross ■yvalk or within any unmarked cross walk at an intersection. If necessary in order to yield the right of way, the operator shall slow down or stop.
* * * * * *
“(4) (d) Notwithstanding the provisions of this subsection every operator of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing a child or a confused or incapacitated person upon a roadway.”

The decisive point in both arguments made by appellant is whether the crossing from the Glenmore plant to the parking lot was at an intersection. Appellant insists that he was in an unmarked crosswalk and thus had the right of way. There is no contention that there was any crosswalk marked on the highway. The only other crosswalk recognized under this statute is an unmarked, crosswalk at an intersection. Severance v. Sohan, Ky., 347 S.W.2d 498. In the Severance case and in Clark v. Smitson, Ky., 346 S.W.2d 780, the rights and duties of the pedestrian and motor vehicle operator under KRS 189.570 were considered recently. In each case, it was held that the pedestrian was guilty of contributory negligence which barred a recovery.

In considering the first argument that the instruction given amounted to a peremptory one, it is concluded that the instruction as given was proper under the statute and the Severance and Clark cases. The vehicular traffic on the highway had the right of way. The caution light was indicative of this since the Department of Highways could have indicated otherwise by maintaining a different type of traffic control signal or by marking a crosswalk. Since the highway vehicular traffic had the right of way, appellant was guilty of contributory negligence as a matter of law; hence, he was not prejudiced by the submission of his case to the jury under the instruction given.

Further, the appellant in offering the refused instruction requiring appellee “to render the right of way” completely overlooked the requirement that the unmarked crosswalk must be at an intersection. “Intersection” within the meaning of traffic statutes and regulations is a term used to describe the meeting of one street with another at an angle, although one of the streets may stop at and not cross the other street. However, the intersection must be formed by recognized public ways as distinguished from private ways. Annotation, 78 A.L.R. 1198; Sweeney v. City of Albany, 94 Ga.App. 887, 96 S.E.2d 527; Woolsey v. Rupel, 13 Ill.App.2d 48, 140 N.E.2d 855; Moore v. Armstrong, 67 N.M. 350, 355 P.2d 284; Dukes v. Kirkwood, La.App., 105 So.2d 318; Highfill v. Brown, Mo., 320 S.W.2d 493. This was recognized in Severance v. Sohan, Ky., 347 S.W.2d 498, and Clark v. Smitson, Ky., 346 S.W.2d 780, wherein Myers & Clark Co. v. Layne, Ky., 312 S.W.2d 463, was distinguished. The other cases relied on by appellant involved crosswalks at intersections, which distinguishes them from this case where a private driveway was involved. The driveway entering the Glen-more plant was a private driveway, to which KRS 189.570, the intersection statute, did not apply. Accordingly, the trial court was correct in refusing appellant’s offered instruction.

Judgment affirmed.