author: McDONALD, Chief Justice.

text:
    CITY OF HOUSTON, Appellant, v. Roy BLACKBIRD et al., Appellees.
    No. 4273.
    Court of Civil Appeals of Texas. Waco.
    Oct. 29, 1964.
    Rehearing Denied Dec. 3, 1964.
    John Wildenthal, Jr., City Atty., W. Lawrence Cook, Jr., Asst. City Atty., Houston, for appellant.
    Presley E. Werlein, Jr., Houston, for appellees.
   McDONALD, Chief Justice.

This is an appeal by the City of Houston from a judgment voiding certain paving assessments levied by the City.

Plaintiffs Blackbird, et al., all property owners on the North side of Woodway Drive (between Broad Oaks and Sage Road) in the City of Houston, filed this case in the District Court of Harris County, as a statutory appeal from a paving assessment levied against their property by defendant City of Houston, under Article 1105b, Vernon’s Ann.Tex.Civ.St. Such was filed within the 15 day time limit prescribed by the statute.

Plaintiffs alleged that the defendant City, by ordinance assessed their properties on the North side of Woodway Drive $6.00 per lineal front foot; and declared same to be in accordance with Article 1105b V.A.T.S.; that plaintiffs or their property will receive no special benefits from the paving construction contemplated in the ordinance; that their property would actually be decreased in value; that the City Council arbitrarily determined plaintiffs would receive special benefits because their property abutted on the North side of Woodway Drive, and.that the property abutting on the South side of such street would receive no benefits whatsoever; that the City Council was arbitrary in its action in allowing property owners abutting on the South side of the street to make separate covenants with the City, agreeing that they would not use the street as an access to their property, but said City refused to allow plaintiffs the same privilege; that the City Council was unreasonable, discriminatory and capricious in assessing plaintiffs’ property, but made no assessment against the property abutting on the South side of Woodway Drive; and that the City Council failed to take into consideration the fact that plaintiffs’ land is not the same shape and depth, and does not contain the same number of square feet, resulting in the assessment being inequitable between plaintiffs themselves.

Trial was to a jury which, in answer to issues submitted as to each of plaintiffs, found:

1) The work contemplated by the paving ordinance did not result in special benefits to plaintiffs;
2) The action of the City Council in passing the ordinance levying the assessment against plaintiffs’ property was arbitrary and capricious.

The Trial Court entered judgment on the verdict voiding the paving assessment levied by defendant City on plaintiffs.

Defendant City appeals, contending:
1) The Trial Court erred in trying de novo the question of benefits to plaintiffs’ property.
2) There was no evidence, or insufficient evidence, to support the submission or finding that the City of Houston’s action in passing the assessment ordinance was arbitrary or capricious.
3)The Trial Court erred in overruling defendant City’s motions for instructed verdict, and for judgment non obstante veredicto.

Article 1105b provides that cities may make street improvements, and under certain conditions by ordinance assess the abutting property owners for a part of the cost thereof. Section 7 provides that assessments shall be apportioned under the front foot plan “in such proportion as it may deem just and equitable, having in view the special benefits in enhanced value to be received by such parcels of property and owners thereof, the equities of such owners, and the adjustment of such apportionment so as to produce a substantial' equality of benefits received and burdens imposed.” Section 9 provides, among other things, “[N]o assessment shall be made against any abutting property or owners thereof in excess of the special benefits of such property, and its owners in the enhanced value thereof”; and further that within 15 days from the levy of such assessment anyone owning any property assessed, “who shall desire to contest any assessment on account of the amount thereof, or any inaccuracy, irregularity, invalidity, or insufficiency of the proceedings or contract with reference thereto”, shall have the right to appeal therefrom by instituting suit in any court having jurisdiction.

The Houston City Council conducted a hearing and determined that plaintiffs’ property was benefited $6. per front foot.

Defendant City contends that the trial' on appeal is limited to a determination whether there was substantial evidence introduced at the hearing before the City Council on the question of benefits and amount of assessment, and that there can be no trial de novo on appeal as to such issues, and cite Keller v. City of Corpus Christi, Tex.Civ.App. (n.r.e.) 253 S.W.2d 1009.

As noted, Article 1105b, V.A.T.S. provides for an appeal of the assessment as to the amount thereof. Whether the substantial evidence rule applies to such situation depends on whether the hearing before the City Council was in the nature of a legislative function, or in the nature of a judicial or quasi-judicial function. The determination of the existence and amount of benefits (and assessment based thereon), we think is a judicial or quasi-judicial function. Key Western Life Ins. Co. v. State Board of Ins., 163 Tex. 11, 350 S.W.2d 839; Chemical Bank & Trust Co. v. Falkner, Sup.Ct., 369 S.W.2d 427. The foregoing cases lay down the test for determining whether a function of an administrative agency is judicial or legislative, and say that “judicial action is ‘particular and immediate, rather than, as in the case of legislative or rule making action, general and future in effect.’ ”

Under such cases, test, and statute the plaintiffs were entitled to a trial de novo under the preponderance of the evidence rule, on the question of benefits.

In any event, Keller v. City of Corpus Christi, Tex.Civ.App. n.r.e., 253 S.W.2d 1009 and Duffard v. City of Corpus Christi, Tex.Civ.App., n.w.h., 332 S.W.2d 447, which hold that the substantial evidence rule applies to appeals under Art. 1105b, V.A.T.S., further hold that if the action of the City Council is based on fraud or is arbitrary, then such action is subject to review on appeal.

In the instant case, plaintiffs alleged and proved that the City Council was guilty of arbitrary action in determining that the property owners abutting on the North side of the street would be benefited $6. per foot, whereas those abutting on the South side received no benefits; that the property owners on the North side were assessed $6. per front foot, and the property owners on the South side were assessed nothing; that the City permitted the property owners on the South side to agree that they would not use the street for access to their property, but refused to permit the property owners on the North side to make such agreement; that the City Council failed to take into consideration the different shape and depths or number of square feet in plaintiffs’ land, thus making the uniform $6. per front foot assessment inequitable between the plaintiffs. The record further reflects that all of the evidence before the City Council was to the effect that the improvement would not benefit plaintiffs’ property, but would depreciate its value, except the testimony of the witness Pounds. He offered no reason why the property would be benefited except “under the established policy of the City Council these lots would be entitled to the residential rate of $8.00 “per front foot.”

Foxworth-Galbraith Lbr. Co. v. Realty Trust Co., Tex.Civ.App., W/E denied, 110 S.W.2d 1164 sustains the arbitrariness of assessing the properties on the same front foot basis, regardless of size, shape and square footage involved.

We think the jury’s finding of arbitrary and capricious action on the part of the City Council in levying the assessment, is supported by ample evidence. Under this view, the issue inquiring of the jury as to special benefits is necessary, for without such finding, plaintiffs could show no damage as a result of the defendant City’s arbitrary and capricious action. We think the issue proper, and the finding supported by ample evidence.

Defendant City’s contentions are overruled, and the judgment of the Trial Court affirmed.


source: Caselaw Access Project

author: MCDONALD, Chief Justice.

license: Public Domain

text:
    H. H. FARHART, Appellant, v. W. Kenneth POPE et ux., Appellees.
    No. 4270.
    Court of Civil Appeals of Texas. Waco.
    Nov. 19, 1964.
    Rehearing Denied Dec. 10, 1964.
    Geo. W. Eddy, Houston, for appellant
    Andrews, Kurth, Campbell & Jones, Homer E. Mabry, Houston, for appellees.
   MCDONALD, Chief Justice.

This is an appeal by plaintiff Farhart from a judgment for defendants, in a; trespass to try title suit. Such suit was. originally filed by Eliza Johnson on August 2, 1961, against W. Kenneth Pope and wife, for title and possession to 6 acres of land in Harris County, Texas. Eliza Johnson died, and Farhart, grantee of the property in an unrecorded deed from Eliza Johnson, was substituted as plaintiff.

Plaintiff claimed title by reason of 10 years’ adverse possession of the property by Jesse Johnson and wife, Eliza Johnson.

Defendant answered by plea of not guilty and general denial.

The evidence reflects that Jesse and Eliza Johnson moved onto the land in 1931, and lived on same until 1951. The record title holders of the land in 1931 were the heirs of J. J. Settegast. The Settegast heirs held record title until they conveyed the land on November 3, 1947 to Wyatt C. Hedrick. Hedrick conveyed to Sharp in 1949; Sharp conveyed to Moise and Bates in 1953; and Moise and Bates conveyed the property to defendants Pope in 1955.

There is evidence that Jesse and Eliza Johnson claimed the property as their own from 1931 to November 17, 1947. There is also evidence that during such period Jesse and Eliza Johnson occupied the land as tenants of the Settegasts. When the Settegasts sold the property to Hedrick on November 3, 1947, Hedrick’s attorney examining the title made a requirement concerning tenants in possession. As a result, the following instrument was prepared, and signed and acknowledged by Jesse and Eliza Johnson on November 17, 1947.

“Tenancy Agreement “State of Texas :
“County of Harris :
“WHEREAS, Jesse Johnson and wife, Eliza Johnson, have heretofore held, and are now holding possession of that certain 43.493 acres of land, part of A. C. Reynolds League, Harris County, Texas, more particularly described in deed from Leon Settegast et al to Wyatt C. Hedrick, dated November 4, 1947, of record in Vol.-,
page =— of the Deed Records of Harris County, Texas, by virtue of tenancy agreement under the J. J. Settegast heirs, whereby Jesse Johnson and wife, Eliza Johnson, were, and are, obligated to deliver up possession thereof to the said Leon Settegast and others constituting the heirs of the late Mr. J. J. Settegast, Deceased, or their successors or assigns, upon demand;
“AND WHEREAS Wyatt C. Hed-rick, by virue of said deed, has purchased said land and all right to possession thereof from said J. J. Sette-gast Heirs, and is entitled to said possession thereof free of all claim by the said Jesse Johnson and wife, Eliza Johnson, but whereas the said Wyatt C. Hedrick is willing to allow Jesse and Eliza Johnson to continue to use and live upon said land upon the terms and conditions set out:
“NOW THEREFORE I, Wyatt C. Hedrick, do hereby lease, demise and let said 43.493 acres of land unto said Jesse Johnson and wife, Eliza Johnson, for the term of one month, and thereafter from month to month, beginning with date hereof; * * *
“As consideration for the rights and privileges herein conferred upon us, we, said Jesse Johnson and wife, Eliza Johnson, do hereby attorn unto said Wyatt C. Hedrick and acknowledge that we hold possession of said land solely as his tenant and as tenant of no other person; and we agree to pay rent to said Wyatt C. Hedrick in the amount of One Dollar on each first day of every 12 month period hereafter during which we continue to hold possession of said land * * * and for said same consideration, we, said Jesse Johnson and wife, Elisa Johnson, do hereby grant and quitclaim all right, title and interest in said land, subject only to our rights hereunder as tenants, unto said Wyatt C. Hedrick, his heirs and assigns for ever, free of all other claims by us. (Emphasis added).
“It is further agreed that said Jesse Johnson and wife shall have the use of the house and other residence improvements * * *; and that at termination of this agreement and possession hereunder said Jesse Johnson will, and he is hereby granted the right to remove such improvements from said premises * * *_
“IN TESTIMONY WHEREOF, witness our hands * * *
(S) Wyatt C. Hedrick, Lessor
(S) Jesse Johnson
(S) Eliza Johnson, Lessees.”

(Here follows a statutory acknowledgment of Jesse Johnson, and a statutory acknowledgment of Eliza Johnson as a married woman; both made before a Notary Public. Such acknowledgments are dated November 17, 1947).

The 6 acres involved in the instant case are a part of the 43.493 acres above mentioned.

On May 21, 1949 Jesse and Eliza Johnson executed and acknowledged an affidavit of possession recognizing that ownership and possession of the property had been in the Settegast heirs and Hedrick for all of the past 20 years prior thereto; and on the same date Jesse and Eliza Johnson signed and acknowledged an instrument acknowledging tenancy and stated that they were familiar with an affidavit of Julius Grimes concerning the property, and that it was true and correct. Grimes’ affidavit stated that the Johnsons’ use and occupancy of the property had been as tenants of the Settegasts and of Hedrick.

In 1951 Jesse and Eliza Johnson moved from the property, purchased other property, and built a home on such other property, using materials taken from the property here in dispute. The Johnsons never paid any taxes on the property here in controversy, although after 1951 they paid taxes on the property they purchased.

Trial was to a jury which, in answer to one issue submitted, found that Jesse Johnson had adverse possession of the land in issue, for 10 years prior to November 17, 1947. Both parties made motions for judgment.

The Trial Court entered judgment for defendants. Plaintiff appeals, contending the Trial Court erred in entering judgment for defendants because:

1) The instrument labelled “Tenancy Agreement” dated 17 November 1947, is neither a conveyance nor a relinquishment of title.
2) Such instrument is void, for lack of description of the property, or of reference to any identifiable instrument containing a description of the property.
3) Such instrument is void because it related to the homestead and the Notary did not explain the instrument to Eliza Johnson, and ask her if it were her act and deed, and if she wished to retract it.

Plaintiff’s first contention is that the Tenancy Agreement dated November 17, 1947 is neither a conveyance nor a relinquishment of title. In such instrument Jesse and Eliza Johnson “do hereby grant and quitclaim all right, title and interest in said land * * * unto said Wyatt C. Hedrick, his heirs and assigns forever * * * Our Supreme Court in Lott v. Lott, 370 S.W.2d 463, in an analogous situation, holds such an instrument to be a quitclaim deed, and thus effective to convey any interest or title which the Johnsons may have had. Thus assuming, without deciding, that Jesse and Eliza Johnson had acquired a limitation title to the property prior to November 17, 1947, they conveyed that title to Hedrick on such date, by the instrument they executed.

Plaintiff’s 2nd contention is that the “Tenancy Agreement” is void for a lack of description of the property, or the lack of a reference to another instrument containing a description. The instrument recites “that certain 43.493 acres of land, part of A. C. Reynolds League, Harris County, Texas, more particularly described in deed from Leon Settegast, et al to Wyatt C. Hedrick, dated November 4, 1947, of record in Vol.-page-, Deed Records of Harris County, Texas.” Plaintiff contends that since there is no deed from Settegast to Hedrick dated November 4,1947, the instrument is void for want of a proper reference. There is, however, a deed from Leon Settegast et al to Wyatt C. Hedrick dated November 3, 1947 which describes the 43.493 acres of land by metes and bounds, and which was recorded on November 7, 1947 in the Deed Records of Harris County, Texas.

It is the law that where the description specifies a property intended to be conveyed, and the instrument furnishes other means for determining the particular property, the description is legally sufficient. And if there is in the instrument containing the reference, enough to enable one by pursuing an inquiry based upon the information contained therein, to identify the particular property to the exclusion of all others, the reference and description are sufficient. Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380.

We think the reference here sufficient to enable one pursuing inquiry based on the information in the Tenancy Agreement to identify the property to the exclusion of all others.

Plaintiff’s 3rd contention is that the Tenancy Agreement is void because the Notary did not explain the instrument to Eliza Johnson, and ask her if it were her act and deed, and if she wished to retract it. The Notary’s certificate is valid and regular upon its face. Three witnesses testified concerning the taking of the acknowledgment; Eliza Johnson, Mr. Allen, and Mrs. Cerney (the Notary). Eliza Johnson (80 years of age), testified that she did not remember signing any instrument in 1947, but that the signature looked like hers; that she signed some papers in 1949 but didn’t get to read them. Mr. Allen, a real estate man who secured the Notary, and carried Jesse and Eliza Johnson to the Notary, testified that according to his best recollection (after 16 years), the acknowledgments were taken in his car; and that Jesse Johnson got out of the car while the Notary took Eliza’s acknowledgment. Mrs. Cerney, the Notary, testified that she could be sure of nothing after 16 years, except that she did the Notary work; that she did not recall if the acknowledgments were taken in the car, at the house, or at the church, but thinks they were taken in the car; that she did not read or explain the instrument to the Johnsons, but asked them if Mr. Allen had explained it to them, and they said “Yes”; that she saw the Johnsons sign the instrument; and that she believes one was asked to get out of the car while the other signed.

We do not believe that the foregoing constitutes an impeachment of the Notary’s certificate, which is regular on its face, as a matter of law. The record reflects, that while the Notary did not explain the instrument to Eliza, that Mr. Allen did; and is silent as to whether the Notary asked Eliza if it were her act and deed, and if she wished to retract it. Ward v. Weaver, Tex.Com.App., 34 S.W.2d 1093; Tompkins v. American Republics Corp., Tex.Civ.App., (n. w. h.) 248 S.W.2d 1001; Gomez v. Riddle, Tex.Civ.App. (n. w. h.) 334 S.W.2d 197; Barrera v. Gonzalez, Tex.Civ.App. (n. r. e.) 341 S.W.2d 703.

The record at most makes for a fact issue as to whether the Notary failed to do her duty, and the burden of requesting such issue was on plaintiff.

Plaintiff’s contentions are overruled, and the judgment is affirmed.


author: TIREY, Justice.

text:
    Lucy Loughry TRAVIS et vir, Appellants, v. Wilhemina Dixie VANDERGRIFF et al., Appellees.
    No. 4294.
    Court of Civil Appeals of Texas. Waco.
    Nov. 19, 1964.
    Rehearing Denied Dec. 10, 1964.
    Touchstone, Bernays & Johnston, Webber W. Beall, Jr., Dallas, for appellants.
    Billy J. Moore, Ennis, for appellees.
   TIREY, Justice.

This is a tort action wherein appellees recovered judgment against appellants for the death of their father in an automobile accident about May 3, 1963. Testimony was tendered to the effect that the accident occurred on highway 287 (two traffic lanes, one east — one west) approximately one mile west of Ennis, Texas; that appellants were enroute from Corsicana to Fort Worth; that the car driven by Mrs. Travis collided with John Petruy, father of appellees, on such highway, and that Petruy was injured in said accident and died in the hospital in Ennis about thirteen days later. After the parties rested the court presented its charge to the jury containing special issues regarding the primary negligence of Mrs. Travis, contributory negligence of Petruy and discovered peril and damages. The jury found primary negligence and proximate cause against Mrs. Travis, contributory negligence and proximate cause against Petruy, and discovered peril against Mrs. Travis. The court overruled appellants’ motion for judgment non obstante veredicto and granted appellees’ motion for judgment for the sum of $3727.80 because the jury had found against Mrs. Travis on discovered peril.

Appellants’ point one is:

“The trial court erred in refusing to grant appellants’ motion for mistrial after Wilhemina Dixie Vandergriff injected insurance into the case.”

We overrule this contention for reasons hereinafter briefly stated.

Mrs. Vandergriff was the eleventh witness tendered by the appellees in this cause, and her testimony was to the effect that Mr. Petruy was her father; that she was independent executrix of the estate; that she had paid the hospital and doctor bills incurred, as well as the funeral expenses; that her father’s eyesight was such that he could see, but not any great distance; that he took normal steps when he walked and did not use a cane; that he could walk but sometimes used a cane; that he kept his cane as some kind of “security stick”; that while she was at his bedside she recognized he was suffering pain, and also testified to the effect that her father had not eaten after he was injured. On cross-examination she testified to the effect that her father died on April 11th; that he walked to town many times; that he was on the way to his daughter’s house at the time he suffered the accident, from which he died; that the father did not contribute to her or the other children, but that they contributed some to his support and maintenance. Thereafter, counsel for appellants propounded the following questions to Mrs. Vandergriff:

“Q. Do you recall when you first thought about filing a lawsuit in this case?
“A. Yes, sir, I sure did. When the adjusters came by and offered so’ little that it was a disgrace, and I thought ‘If that is the best they can do, we sure will file suit.’ And I am sure they wouldn’t want the jury to know what they offered either.
* * * * * #
“Mr Beall: We move for a mistrial in the case. He was instructed — (counsel did not approach the bench to make such motion). (Parenthesis ours.)
“The Court: Overrule the objection. I instruct the jury to disregard that part of her answer that was not responsive-
“Q. So then you hired a lawyer ?' (emphasis added)
“A. Mr. Moore had drawn up my parents’ wills—
'“The Court: Now, you have answered him I think.”
Appellants in their brief say:
“This was an unresponsive answer to the question asked and appears to have been premeditated and intentionally made for the sole purpose of advising; the jury that the appellants are covered by insurance and to prejudice the minds of the jury against the insurance company.
“Before the commencement of the trial attorney for appellants presented its oral motion in limine requesting the court to order the appellees attorney to instruct the appellees and appellees’ witnesses not to mention or otherwise refer to the fact that the appellants are covered by liability insurance, which motion was granted and it was so ordered, * * * but in spite of the express order of the court, Mrs. Vandergriff burst forward unresponsively and advised the jury in no uncertain terms that adjusters had been out to see her in an attempt to settle the case and that the amount of money offered in settlement was considered by the appellees to be a disgrace. It is bad enough that the appellee advised the jury that the appellants had ■ liability insurance coverage, let alone the additional fact that the insurance company had attempted to settle the case and pay Mr. Petruy’s alleged injuries, which is in itself reasonably calculated to inform the jury that the insurance company had, in effect, admitted liability for the injuries.
“The question asked by appellants’ attorney calls for a mere ‘yes’ or ‘no’ answer. There was no invitation by the appellants’ attorney for the witness to add an additional four lines of testimony.
“After this statement was made by Mrs. Vandergriff, appellants’ attorney duly and timely moved for a mistrial * * * but the court overruled the motion and merely instructed the jury to disregard that part of Mrs. Vander-griff’s answer that was not responsive * * * without having allowed the appellants’ attorney to continue his objection.”

The statement of facts does not show that appellants’ attorney made any effort to stop the witness from further answers at the end of the first sentence when she said, specifically:

“Yes, sir, I sure did.”

Nor does it show that appellant excepted to the ruling of the court, nor did he request further instructions from the trial court with reference to the answers made by the witness.

We have made a careful examination of the record as a whole with reference to the error complained of, and we are of the view that appellants have not carried their burden under Rules 434 and 503, Texas Rules of Civil Procedure. In Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298, we find this statement: :

“The rule of ‘presumed prejudice’ has not prevailed in this state since the adoption of Rules 434 and 503, Texas Rules of Civil Procedure, in 1941. Aultman v. Dallas Ry. & Terminal Co., 152 Tex. 509, 260 S.W.2d 596, 600.”

In the case at bar Mrs. Vandergriff, one of the plaintiffs, was being interrogated on cross-examination by appellants’ counsel with reference to the question as to when she first thought about filing this lawsuit; that question was wholly immaterial and irrelevant as to the cause of the injury, as to the liability, and as to the amount of damages. It does not ap-^ pear from the record just what counsel for appellants had in mind in asking the question. We think it fair to assume, although it is not shown by the record, that counsel knew that Mrs. Vandergriff had been contacted by appellants’ adjuster, and that the adjuster had failed to make a settlement. This suit had been filed prior to September 17, 1963, and the cause came on for trial on the 30th day of March, 1964. Under the record it is fair to assume that counsel had known for some time that Mrs. Vandergriff had been in consultation with her attorney concerning this matter, and as to the time she decided to file this suit was wholly irrelevant to any issue in the case and was solely a matter of privilege between Mrs. Vander-griff and her counsel, and the inquiry of counsel with reference thereto was an invasion of the .privilege she enjoyed by having employed counsel. The first sentence in the answer of the witness was in direct response to the question asked. The record does not reveal that counsel made any attempt to interrupt the witness after she had answered the question directly. After she had finished counsel made his motion for mistrial, and the court gave the instruction previously stated. After the court’s ruling counsel then asked, “So then you hired a lawyer?” And the witness answered, “Mr. Moore had drawn up my parents’ wills.” At that point the court interrupted the witness and told her she had answered his question. We think it is obvious from the record that counsel compounded the error complained of in open court in the presence and in the hearing of the jury in failing to approach the bench and make his motion, and we are of the further view that he further compounded the error when he asked the above question. We have given much consideration to the error here complained of and after considering the whole record we are of the view that the answer of the witness complained of was without any impact on the question of liability, because the jury convicted Petruy of negligence. We likewise think it was without any impact upon the award the jury made for pain and suffering, because the sum awarded was $2850.00, and plaintiffs had sued for $15,000.00. There was evidence that Petruy suffered great pain, and there is no complaint that the sum awarded is excessive. That leads us to say that it is our view that since the court instructed the jury to disregard that part of the witness’s answer that was not responsive to the question, that appellants have failed to carry their burden under Rules 434 and 503 T.R.C.P., aforesaid, and point 1 is overruled. See also Cloud v. Zellers, 158 Tex. 253, 309 S.W. 2d 806, and Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277; Collins Construction Co. of Texas v. Taylor, Tex.Civ.App., 372 S.W.2d 548, n. r. e.

Appellants’ points 2 through 31 complain of the action of the trial court in submitting the special issues on discovered peril and in refusing to set aside the jury’s answers to said issues and grant judgment N.O.V. for appellants. Appellants contend that the evidence “does not warrant the submission and does not support the findings of the jury on the doctrine of discovered peril because there is no evidence, no sufficient evidence, and no competent evidence that Mrs. Travis discover-ed the perilous position of Mr. John1 Petruy in sufficient time to have avoided the collision with Mr. John Petruy by the exercise of ordinary care. Special-, issues No. 17 through 21 inquire only into-the conduct of Mrs. Travis. There are no special issues inquiring into the con^ duct of Mr. Travis. This involves three' basic questions:

“1. Was Mr. Petruy in a position of peril, and if so, when and where did he get into a position of peril,
“2. Did Mrs. Travis realize that Mr. Petruy was in a position of peril, and if so, when and where did she so realize,
“3. If Mrs. Travis did realize that Mr. Petruy was in a position of peril did she, as a matter of law, thereafter have sufficient time to avoid colliding with Mr. Petruy.”1

Our Supreme Court in Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562, said:

“(2) The quantum of proof required of the plaintiff on these elements . of discovered peril in order to entitle him to have them submitted to the jury was such-facts and circumstances as taken 'together with all reasonable inferences therefrom constituted some evidence of probative force of their existence, (citing cases.)
“(3) In determining whether the plaintiff discharged this burden we must view and interpret the evidence in the record in its most favorable light to the plaintiff, disregarding all evidence and the inferences therefrom favorable to the defendant.” (citing cases).,

The first question that confronts us is whether the evidence shows conclusively that Mrs. Travis exercised ordinary care in the use of all means at hand to avoid injuring Petruy. Or, are there such facts and circumstances in the record viewed most favorably to the plaintiffs, which with all reasonable inferences therefrom, entitled the plaintiffs to have the issue of discovered peril submitted to the jury? We think so. There were four eye witnesses to the accident, Mrs. Travis and her husband, George Cook and his younger brother; only Mrs. Travis' and her husband and George Cook took the stand. George Cook testified to the effect that he and his brother, Roy, saw the collision; that the sun was shining; that as they came -over a little rise in the highway they saw a person crossing the highway; that they were going in an easterly direction from Waxahachie to Ennis, and that after they got near the top of the rise in the highway he saw just the head of the traveler' and that as he got higher he saw the’ man crossing the highway from his right to his left; that the man was hobbling slowly with a cane in hand across the highway; that he immediately slowed his speed but had to veer to his right onto the shoulder of thé road some six feet and to the man’s reaf to miss him; that as he passed him the man did not look up and did not see him, and that he kept' walking across the highway; that as he passed the man he looked down the highway and saw a car coming toward Waxahachie in the opposite traffic lane; that after he passed the man he could see how slowly he was walking, and saw the car coming and he said to his brother that the car was going to hit the man unless he either stepped up his pace or the car slowed down; that looking through the rear view mirror he saw the car strike the man and knock him into the air; that the man was visible all the time after he passed him; that he made a U turn and drove back up to the scene of the accident and pulled off the shoulder to the right, and that his brother fan to the old man to assist him in any way he could; that when he got to the scene of the accident he saw that Mrs. Travis was driving, and she was getting out of the car and that she was hysterical and in a state of shock; that she said, “I didn’t intend to hit the old man.”; that the car was in a braking position when it struck the man, and there were skid marks on the highway just as straight as they could be in that lane; that he was there when the ambulance came from Ennis, and it came around on the right side of Mrs. Travis’ car, and was on the right shoulder; that the left front of Mrs. Travis’ car struck the man; that the car was traveling within the normal speed limits on the highway at the time he saw it; that after' the collision the man was lying in the highway just about in the middle, and that his head and shoulders were probably past the center line of the highway and the balance of his body over in the other lane of traffic; that he was probably 400 or S00 feet down the highway when the man was hit and that the man was hit in the west traffic lane, approximately two feet north of the center line; that there was nothing to keep Mrs. Travis from seeing the mam ■ .

Mrs. Travis testified to the effect that as she came up the incline coming out of Ennis that she saw the man when he was on the shoulder of the road before he crossed _ the highway. ' She also testified that she saw him right in the middle of the highway; that she did not turn either to the left or to the right; that when she first saw him he was standing still on the dividing line, and that he jumped in front of her, and that she thought it would be 40 or SO feet from where she was in the car; that she was going 30 miles per hour when she left Ennis, and that she got up to between 40 or 50.

Mrs. Travis testified specifically:

“Q. * * * You said now that you saw * * * Mr. Petruy when he was over here before he crossed the highway, is that correct?
“A. Yes, sir.
“Q. At that time he was on. the shoulder of the road?
“A. Yes, sir.
“Q. I believe you said you were hack down here somewhere?
“A. Yes, sir.
“Q. And you had come over the hill and you saw him, is that correct?
“A. Yes, sir.
“Q. And then at that time did you ■think that there was going to be any kind of accident?
“A. I never dreamed.
“Q. That there would be an accident ?
“A. No, I never dreamed of such .a thing.
“Q. After that did he start to walk across the highway?
“A. Yes, he skipped, he was skipping.”;

that he did not go straight across the Tiighway, but crossed at an angle.

Mr. Travis testified to the effect that he was sitting in the front seat on the right side of the driver; that the windshield was clean; that when they first saw the deceased he was on the shoulder and that lie was walking at about a sixty degree .angle; that he was not going across the road at all when he first saw him; that lie was watching the man; that he had a stick in his hand, and that he was very low and was walking just as fast as he could; that he estimated that they were 300 feet from the man when he first saw his head as they came up the hill; that the man never turned his head and did not look our way or in any direction. Mr. Travis testified specifically:

"Q. Now my question is, from this point here where she started her skid, ■did she anywhere back down the line here after she saw him, did she slow down any?
“A. Yes, sir, she slowed up, I told you that, but I couldn’t say how much. She seen the man and I know that she is bound to. Something happened, you know, to make her think and she stepped on — she didn’t step on the brakes but she slowed the car down.
“Q. In other words she slowed the car down before you told her, ‘Honey you are going to hit him in spite of hell’?
“A. Yes, sir, she slowed the car down before I told her to get on the brakes.”

It is our view from a careful analysis of the foregoing testimony and all the facts and surrounding circumstances in this cause, that the evidence tendered is sufficient to take to the jury the issue of discovered peril.

Going back to the witness Cook’s description of the accident, we think his testimony will support a conclusion by the jury that as he passed Mr. Petruy, that he had left the shoulder of the road, and was walking slowly with his head down with a cane in hand, and that he was going in a direction to cross into the north traffic lane in which Mrs. Travis was traveling, and that he was not looking in either direction and that it also supports Mrs. Travis’ testimony, as well as the conclusion by the jury that Mrs. Travis had seen Mr. Petruy while he was on the shoulder of the road, and saw him crossing, or attempting to cross, walking with his cane, with his head bowed low, unconscious of approaching traffic, and that in such situation Mr. Petruy was in a position of peril before he reached the center line in the highway. It is true that the highway was wide, but it had only a stripe in the center dividing the highway into two traffic lanes. We are of the view that the testimony tendered is sufficient to support the con-elusion by the jury that Petruy was in a position of peril at the time he started to cross the road, with his head bowed low, and without looking' either way in the direction of approaching traffic, and that Mrs. Travis discovered his perilous position in time to have avoided striking him by the use of the means at her command if she had exercised ordinary care. It is our view that when Mr. Petruy started across the highway, without looking in the direction of the approaching car driven by Mrs. Travis, and that since Mrs. Travis saw him in such position, that it was a circumstance sufficient to apprise her that Mr. Petruy was unobservant and was in danger of his course and position, and having seen Mr. Petruy under such circumstances it was her duty to exercise ordinary care in the use of all means at her command, consistent with the safety of herself, her car and her passengers, to avoid injury to Mr. Petruy, and this she failed to do. See Parks v. Airline Motor Coaches, 145 Tex. 44, 193 S.W.2d 967. We are of the further view that the jury could have concluded from the evidence and all the surrounding facts and circumstances that Mr. Petruy was in a position of peril when he left the shoulder of the highway and started across the highway with his head bowed low, walking with the cane, and not looking in either direction for approaching traffic. There is evidence to the effect that Mrs. Travis and her husband both saw Mr. Petruy when he left the shoulder and started across the highway. It is without dispute that the car driven by Cook passed to the rear of Mr. Petruy while he was in the south traffic lane or the traffic lane for traffic moving in an easterly direction, and that Mrs. Travis saw him walking with a cane with his head bowed low not looking in any direction before he reached the traffic lane in which she was traveling, and that under these undisputed circumstances that Mrs. Travis realized the perilous position that Petruy was in before he reached her traffic lane. In the Ford case, supra, the court said:

“If a pedestrian were never in a position of peril until he took the last step placing himself in front of a moving train or vehicle, then he could never recover under the doctrine of discovered peril because until he took the last and final step it lay in his power not to take it.”

We think the above statement is peculiarly applicable to the factual situation here. See also Creech v. Thompson, 156 Tex. 561, 297 S.W.2d 817; R. T. Herrin Petroleum Transport Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422. In Texas and New Orleans Railway Company v. Hart, Tex., 356 S. W.2d 901, we find this statement:

“To raise the issue of discovered peril here, it was only necessary for the plaintiff to show that the defendant realized, in time to have avoided the collision, that plaintiffs were in a position of peril, and were pursuing, and probably would continue to pursue, a course that was likely to result in their being injured.”

We think the foregoing statement is peculiarly applicable to the factual situation here. That leads us to say that we are of the view that the testimony is ample to raise the issue of discovered peril, and that it is likewise ample to sustain the answers of the jury thereto. We are of the further view that none of the jury’s answers are against the great weight and preponderance of the evidence.

Accordingly, appellants’ points 2 to 31, inclusive, are overruled, and the judgment of the trial court is affirmed.

WILSON, J., concurs in the result.


author: PALMORE, Judge.

text:
    Mary ROLAND et al., Appellants, v. William (Billy) EIBECK et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      William F. Threlkeld, Williamstown, for appellants.
    J. L. Ackman, Williamstown, for appel-lees.

      . We are told in the appellees’ brief that an action to set it aside is pending.

   PALMORE, Judge.

Sadie Eibeck died in September of 1961 at the age of 82. She was survived by three children, two sons and a daughter. The sons successfully contested her will on the grounds of mental incapacity and undue influence, and the daughter appeals.

The principal argument is that the evidence was not sufficient to warrant the jury’s verdict and that motions for a peremptory and for judgment n. o. v. should have been sustained. On that point we are of the opinion that the evidence was sufficient. It is further contended that the verdict should have been set aside for misconduct of certain jurors in failing to answer correctly questions asked on voir dire. In this respect, being dissatisfied with the state of the record but reluctant to set aside the verdict on a ground that may not have actual merit, we are resorting to the somewhat unusual procedure of remanding the cause for further hearing on that question.

Mrs. Eibeck had been widowed since 1914. Though crippled, it is apparent that before she reached the evening of her life she had been active and able to conduct a small restaurant and service station business in the country. During the last years, however, she could not walk, and had to be carried. Che owned two pieces of real estate, a 100-acre farm in Grant County inherited from her mother and an 18-acre place located on U. S. 25 in the same county about two miles south of Williamstown.

One of the sons, William, lived on the farm as a tenant until 1.' 15, when he moved to town. The other son, Johnnie, and his family also lived on her property and in 1958 were occupying a house that was taken for the right-of-way of Interstate Highway 75 (evidently a part of the 18-acre place). When this happened Mrs. Eibeck caused an old dance hall building on the 18-acre place to be remodeled as a home for Johnnie with a room or two for herself. She remained there with Johnnie until the late spring or summer of 1960 and then went to live with the daughter, Mary Roland, and her husband Howard, who at that time were tenants on a farm in Owen County. She continued to reside with Mary and Howard until her death in September of 1961.

Mrs. Eibeck had written a will in 1957 and deposited it with the county court clerk. The record does not disclose its contents. On September 24, 1960, shortly after she had gone to live with the Rolands, Howard and Mary brought her to Williamstown and she withdrew the 1957 will from the custody of the clerk. On October 15, 1960, they brought her to town again for the purpose of executing a new will (the one now in question), which she did in the presence of two officers of a local bank who came out to the automobile to witness it, and for the purpose of executing a deed conveying the 100-acre farm to Mary, which also was done. The deed was recorded the same day.

At the time Mrs. Eibeck moved from Johnnie’s to Mary’s, the bulk of her estate consisted of the two pieces of real estate and several thousand dollars in the bank, the main source of which seems to have been a $9,000 payment received from the state in settlement for the condemnation of a part of her property for 1-75. (At the time of that settlement she had, incidentally, given $2,000 to Johnnie.) On October 8, 1960, a week before the new will was executed, she bought Mary an automobile for $895.

It was Howard, the son-in-law, who went to an attorney and had the deed and the new will drafted. Oddly, however, neither side saw fit to question him concerning the conversations he must have had with Mrs. Eibeck leading to this event, nor did the attorney (who, as a notary public, took her acknowledgement on the deed) testify. Mary admitted only that her mother had told her she was making a will and was going to deed the farm to her, but disclaimed knowledge of further details.

The deed recites that it was given in consideration of Mary’s promise to care for Mrs. Eibeck during the remainder of her life “and to provide her with such necessities and medical care as she may require in excess of that which the party of the first part may purchase from her own funds and to provide her with a suitable funeral should her estate be unable to bear this expense,” etc.

The will leaves the 18-acre place to Johnnie for life with remainder in fee to Mary, $25 to William, $100 to Mt. Lystra Christian Church, $500 in trust for the maintenance of a family cemetery, and the residue to Johnnie and Mary equally.

The evidence tending to prove that Mrs. Eibeck did not have testamentary capacity consisted mostly of testimony that after the death of an invalid son Jimmy in 1957 she had noticeably and progressively “gone down,” especially from the mental standpoint, that she would fail to recognize her friends and ■ neighbors, forget who they were, order groceries and forget she had done so, wander from the subject of conversation, and the like. On the day the deed and will were executed Johnnie proved to be Johnnie-on-the-spot in deed as well as in name. Drinking coffee in a pool room, near the court house, he noticed Mary and Howard emerging in the company of the county clerk, whereupon he went over to the car and talked to his mother, asking her if she knew what she was doing. She replied, “I don’t know. Mary wanted me to sign a piece of paper.” “Mom, you know what you are signing?” “I do not. They are always wanting me to sign something.”

There was no direct evidence of undue influence, nor any credible evidence of drinking or drunkenness as alleged in the contestants’ pleading.

The testimony given by the witnesses appearing in support of the will, including the attesting witnesses, the county clerk, Mrs. Eibeck’s family doctor, two clergymen, and others, was much the superior evidence on the issue of mental capacity. It makes us distinctly aware of the possibility that the jury usurped Mrs. Eibeck’s right to make a will in order to gratify its own notions of what she ought to have done. Nevertheless, when there is substantial evidence to support a verdict, though we of the courts may think it outweighed, we are compelled to uphold the jury’s conclusion.

In this particular case the overt circumstances leading up to and surrounding the events of October 15, 1960, are of greater persuasive effect than the observations and opinions of the several witnesses bearing on Mrs. Eibeck’s mental capacity. It may be granted that the mere opportunity to exert undue influence is not, in and of itself, enough to justify a finding that it was in fact exercised. Cf. Waggener v. General Association of Baptists, Ky., 306 S.W.2d 271 (1957). Nevertheless, undue influence “is a subtle thing and can rarely be shown by direct proof. In many instances the facts and circumstances leading up to the execution of the desired instrument must be relied upon to establish its existence,” McKinney v. Montgomery, Ky., 248 S.W.2d 719, 721 (1952), and when a contest is pitched on both mental incapacity and undue influence, evidence that tends to show both need not be as convincing as would be essential to prove one or the other alone. Hines v. Price, 310 Ky. 758, 221 S.W.2d 673, 676 (1949).

Mrs. Eibeck’s age, her proximity to and physical dependence on Howard and Mary, the relative coincidence of her move to their home and the execution of the deed and will shortly thereafter, Howard’s role in these legal events, and his failure to uncover the details that might otherwise have dispelled the unfavorable inferences naturally arising therefrom, are circumstances that together tend to prove undue influence independent of the direct testimony on the issue of her mental capacity. On the whole, we are unable to say that the jury’s verdict was not supported by substantial evidence.

Paragraph 3 of the contestants’ pleading setting forth the grounds of mental incapacity and undue influence contained allegations to the effect that the Rolands had induced Mrs. Eibeck to indulge in strong drink and by keeping her in a state of drunkenness for long periods of time had destroyed her will power. Although no real proof was introduced to sustain the latter charge, counsel’s affidavit filed in support of the motion for new trial says that on voir dire the contents of this paragraph were called to the attention of the jurors, that they were asked if they knew any facts or supposed facts pertinent to the litigation, and that they all answered in the negative. We continue with the affidavit as follows:

“However, this affiant believes that following the trial one of the jurors, who was selected and sworn to try this case stated that he had seen the defendants and Sadie Eibeck in a drunken condition and based on this fact he felt Sadie Eibeck did not have sufficient mental capacity to execute a will. Af-fiant’s belief is based on the fact that in the discussion at the hearing on defendants Motion for judgment N. O. V. counsel for the plaintiff stated to the affiant and to the court that following the trial one of the juror [sic] who had heard the case stated to him that he had seen the defendants, Mary Roland and Howard Roland and Sadie Eibeck in a drunken condition and because of this fact he felt that Sadie Eibeck at the time of the writing of the will lacked sufficient mental capacity to execute a will.”

Counsel for appellee did not file a counteraffidavit. Though in some jurisdictions a counteraffidavit is neither necessary nor permissible, cf. 66 C.J.S. New Trial § 185, pp. 447-448, the traditional rule in this jurisdiction has been to the contrary. Bratton v. Bryan, 8 Ky. (1 A.K. Marsh.) 212 (1818); Ewing v. Price, 26 Ky. (3 J.J.Marsh.) 520 (1830); Dailey v. Gaines, 31 Ky. (1 Dana) 529 (1833). If the adverse party disputes the facts stated in the supporting affidavit he should counter it. Otherwise it will be taken as true. Dailey v. Gaines, ibid.

The rule that a juror may not impeach his own verdict does not apply to what he said on voir dire. Roland v. Murray, Ky., 239 S.W.2d 967, 970 (1951). Hence if it is true that one of the jurors said what the affidavit alleges counsel for the contestants repeated to the court and adverse counsel, it should be brought into the open. For this reason the cause will be reversed for a hearing on that particular question, and if there be no countervailing affidavit or evidence, or if it be determined that the juror in question did in fact have knowledge of facts that should have been disclosed on voir dire, a new trial must be granted.

The affidavit in support of the motion for new trial states also that on voir dire the jurors were asked if any of them were or had been clients of appellees’ counsel, John Lane Ackman, “or the law firm with which he .was associated,” that they had anwered in the negative, and that one of them, J. W. Bennett, “had been a regular client of L. M. Ackman and the Ackman Law Firm for many years.” It does not say, however, that L. M. Ackman and John Lane Ackman were in fact partners or associates, nor does it tell us who composed the “Ackman Law Firm.” All the papers in this case indicate that the contestants’ counsel from the beginning has been and is John Lane Ackman, an individual. We have no judicial knowledge of his associations, and the affidavit is not sufficient to apprise us. Thus we cannot determine the existence of any prejudicial error relating to this ground of the motion for new trial.

The cause is affirmed in part and reversed in part with directions for further proceedings consistent with this opinion.

      . Though it is not pertinent to Mrs. Ei-beek’s state of mind at the time the will was executed, testimony was introduced showing that her bank account had been substantially reduced by the time of her-death 11 months later.


author: MOREMEN, Judge.

text:
    Fred ALLOWAY, Jr., d/b/a Morganfield Lumber Co., and Fred Alloway, Appellant, v. Henry L. STUART et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      J. D. Ruark, Morganfield, for appellant.
    James Holloran, Sturgis, for Henry L. Stuart.
    ' Wathen & Wesley, Morganfield, Max Sigoloff, St. Louis, Mo., for Paul Schneider.
    Damon A. Vaughn, Dixon, for George B. .Vaughn.
   MOREMEN, Judge.

This appeal involves a determination of priority of liens on certain personal property. The specific question is whether or not the lien of appellee, Paul J. Schneider, was prior to the lien of appellant, Fred Al-loway, Jr. Appellant insists that appellee failed to comply with KRS 355.9-402, a section of the Uniform Commercial Code. The circuit court decided that Schneider’s lien was superior to that of appellant, Fred Alloway, Jr.

In January 1962, Schneider sold certain bowling alley equipment to appellee, Henry L. Stuart. Stuart and his wife executed a chattel mortgage to appellee Schneider on the property sold in order to secure the payment of the purchase price, and in addition, a loan of money. The mortgage was filed for record on January 31, 1962.

On April 24, 1962, another chattel mortgage was executed by the Stuarts to Schneider under similar circumstances and this mortgage was properly filed for record on May 28, 1962.

Between January 21, 1962 and June 25, 1962, Stuart became indebted also to appellant, Fred Alloway, Jr., who did business as Morganfield Lumber Co., for lumber and materials furnished.

On June 26, 1962, Alloway filed an action in the Union Circuit Court against Stuart and caused an attachment to be issued against the bowling alley equipment belonging to Stuart.

On July 28, 1962, judgment was given against Stuart, and appellant, Fred Alloway, Jr. was awarded a lien against the bowling alley equipment by reason of the levy of the attachment.

On July 15, 1963, appellant filed an amended complaint and alleged that appellee Schneider was asserting an interest in the property against which he had been awarded a lien and requested that Schneider be required to answer. Schneider answered and set up his mortgage lien.

It is the contention of appellant, Fred Al-loway, Jr., that under KRS 355.9-402, Schneider’s chattel mortgages are defective because they were not signed by the secured party and therefore the attachment lien has priority. At that time subsection (1) of KRS 355.9-402 read:

“A financing statement is sufficient if it is signed by the debtor and the secured party, gives an address of the secured party from which information concerning the security interest may be obtained, gives a mailing address of the debtor and contains a statement indicating the types, or describing the items, of collateral. A financing statement may be filed before a security agreement is made or a security interest otherwise attaches. When the financing statement covers crops growing or to be grown or goods which are or are to become fixtures, the statement must also contain a description of the real estate concerned. A copy of the security agreement is sufficient as a financing statement if it contains the above information and is signed by both parties.”

It will be noted that the first sentence of the above quoted section states that a financing statement is sufficient if, among other things, it is signed by the debtor and the secured party, and the last sentence states that a security agreement is sufficient as the financing statement if it contains certain information and is signed by both parties. The mortgages here were signed only by the debtor, and the secured parties did not sign.

Subsection (6) of KRS 355.9-402 reads:

“A financing statement substantially complying with the requirements of this section is effective even though it contains minor errors which are not seriously misleading.”

In Lincoln Bank and Trust Company v. James F. Queenan, Ky., 344 S.W.2d 383, this Court, in a general discussion of the new uniform commercial code, pointed out that a non-possessory security interest created by a written agreement may be perfected by recording a public notice or financing statement. It was said:

“This notice, or financing statement, is a paper separate and apart from the security agreement itself, although a copy of the agreement may suffice as the financing statement if it is signed by both parties and meets the other requirements of § 9-402(1).”

Although we stated in that general discussion that the financing statement must be signed by both parties, the precise question was not presented by the facts of that case. We are now presented with the specific question as to whether the security agreement, which was filed as a financing statement, is sufficient even though it lacks the signature of the creditors. As was pointed out in the Queenan case, the financing statement merely serves notice of, and warning to, third parties that the creditor has some interest in the property which is in the physical possession of another. By it he serves notice that he has, or will have, a lien on the property. In fact, a chattel mortgage is more specific and detailed as to the description of the property, amount of money, interest and .other details, 'than is required by a financing statement. Here the security agreement was used as a financing statement and contained an exact description of the security interest between the immediate parties to the chattel mortgage and we believe that it gave due notice as to third persons even though the mortgagee did not sign the instrument.

It was said in an article by. Whiteside & Lewis, 50 Ky.L.J. 61, that the “financing statement places creditors upon notice that the debtor has given, or in the future may give a security interest in specific assets, leaving the details to further inquiry.”

Certainly no potential creditor could fail to understand Stuart’s position as debtor , in view of the detailed nature of the chattel. mortgage filed. Further inquiry would disclose the exact amount of the unpaid balance. We believe substantial compliance was had (under subsection (6) of KRS- 355.-9-402) even though the creditor did not sign the instrument. The failure to sign could not have seriously misled anyone.

KRS 355.1-102 provides that the Commercial Code be liberally construed and applied to promote its underlying purposes and policies, among them being: “to permit the continued expansion of commercial practices through custom, usage and agreement of the parties.”

It is difficult to recall a legal instrument that has deeper roots in the custom and usage of commerce than a mortgage. For many years people have protected non-pos-sessory interests by its use. The transition from the use of mortgages to the instruments described in the Commercial Code was so sudden and comprehensive that few businessmen or, for that matter, lawyers became immediately familiar with all requirements. A period of education was necessary. A situation similar to the one we have here arose after our civil rules of practice were adopted and supplanted our civil code of practice that had existed for about a hundred years. There, too, we were presented with the question of whether adherence to the strict letter of the law was of more importance than was a decision on the merits and justice of the case. In order to avoid unjust results, for a few years.we interpreted the rules with extreme liberality; for instance, in the case .of White v. Hardin County Board of Education (1957) Ky., 307 S.W.2d 754, we said this:

“We must condemn the notice in the present case because the order of May 27 was not an appealable order. However, we take judicial notice that all Kentucky lawyers do not know this, and some confusion has existed on the subject. For this reason, and in view of the fact that plaintiffs made a good faith attempt to appeal from the adverse ruling which was incorporated in the final judgment, we find a substantial compliance with CR 73.03.”

.

But after' a reasonable time, that indulgence was discontinued, and in Hawks v. Wilbert, Ky., 355 S.W.2d 655, we said this:

“In considering this and similar failures of counsel to follow the rules of appellate practice, the Court is confronted with many hard decisions. The choice presented is whether it is better to adhere strictly to the rules with some seemingly harsh decisions resulting, or to permit a substantial compliance when no prejudice is shown to have been occasioned by the dereliction. This problem has plagued the Court many times. However, rather than having to decide whether each dereliction is prejudicial, the Court has adopted the policy of strict compliance in the belief that the legal profession should by now be adequately informed on these rules.”

Wé are of opinion that a period of indulgence should be granted in connection with cases arising under the Commercial Code.

The mortgage transaction in the case at bar was a good commercial transaction practiced in accordance with a custom of many generations. It would serve no useful purpose to destroy it and to permit a subsequent creditor to benefit simply because the prior creditor failed to place his signature upon the instrument. All circumstances in the case indicate full notice — and to enact a complete forfeiture because of a minor error during the period when even the essence of the Commercial Code was known only to a few would not be in accordance with a fair conception of justice.

We wish to make it certain that we condemn any deviation from a literal interpretation of the statute and admonish that cases which arise during the transition period will be treated according to. their particular facts.

Judgment affirmed.


author: STEWART, Judge.

text:
    William V. DAVIDSON, an infant, who sues by his mother and next friend, Juliana Davidson, Appellant, v. John DAVERN, Almyra Davern and Vincent S. Hargadon, Administrator of the Estate of Michael Davern, Deceased, Appellees.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    Rehearing Denied Dec. 18, 1964.

      Michael M. Hellmann, Herman E. Frick, Louisville, for appellant.
    Edward J. Hogan, Paul L. Humphrey, Louisville, for appellees.
   STEWART, Judge.

This is an appeal from a judgment for defendants-appellees entered in the Jefferson Circuit Court pursuant to the verdict of the jury. The issue to be determined is whether plaintiff-appellant, a passenger in an automobile involved in an accident, was entitled to a directed verdict as to his claim for damages.

The trial court instructed the jury that the driver of the automobile, Michael Dav-ern, was negligent on the occasion and directed that they find damages in behalf of appellant, William V. Davidson, not to exceed $52,011.04, unless they believed appellant failed to exercise ordinary care for his own safety.

On July 30, 1961, in the afternoon, Michael Davern, a boy sixteen years of age, was driving the Chevrolet automobile of his parents eastwardly on Watterson Expressway in Jefferson County, accompanied by appellant, William V. Davidson, seventeen years of age, and two other teen-age friends, Michael J. Horan, Jr., and Patrick John Duncan. Horan’s family was having a picnic at Silver Springs, located a short distance from Louisville in Indiana, which the boys wished to attend.

Horan was in the front seat to the right of Davern; Davidson was sitting in the back seat on the left-hand side and Duncan was on his right. While traveling at an excessive rate of speed immediately before the accident, and after skidding 141 feet, the car left the road, climbed a rather steep embankment and struck an abutment at the Newburg Road overpass. The car was demolished, Davern, the driver, was killed, and Davidson was severely injured.

Davidson instituted this action by his next friend against the parents of Davern and against the estate of the deceased boy.

The boys had been playing poker before starting out, and cards and some small change were found scattered in the front and back seats of the car when it was examined after the wreck. Duncan testified Horan was passing the hands back and forth to the occupants of the back seat. The evidence indicates the driver was not playing, and all of the three passengers in the car testified the game had stopped before they entered the Watterson Expressway.

A summary of the evidence of Davidson, Horan and Duncan is that, after they had assembled for the trip they had planned, they started out in the Davern automobile, and proceeded onto the Watterson Expressway. from Preston Street. From the point where they entered the expressway until about one-fourth of a mile west of the site of the collision, according to their testimony, the car was operated by Davern in a proper manner. Davidson stated: “He was just driving along normal, like everybody else.” Horan said: “Until the time he went around the car (the John Barnes automobile) he was driving about 45 or 50 miles an hour.” Duncan, unable to estimate accurately the speed of the car, testified: “I just know he wasn’t speeding.”

It was when the car caught up with and began to go around an automobile driven by one John Barnes that its speed was accelerated. Barnes stated he noticed the Davern car in his rearview mirror just before it overtook him. He testified it was traveling at a rapid rate of speed and, as it went by him, it was in his opinion goin^ from 75 to 80 miles per hour. He said it “bore” over into part of his lane, then back onto its own side, passed another car in front of him, swerved again, and finally headed into the abutment with undiminished speed. He estimated the distance from the position on the highway where he first saw it to the location where it plowed into the abutment to be about a quarter of a mile.

The testimony of Davidson, Horan and Duncan points up the fact that the Davern boy was not exceeding the speed limit or driving in any respect recklessly until he attempted to pass the car driven by Barnes. Horan made this statement in this connection: “Well, he wasn’t driving bad until he went around the (Barnes) car, and there wasn’t any reason to; and when he went around the car he went pretty fast, and it (the Davern car) had done started shaking, and somebody might have started hollering to slow down or ease off.” Horan also testified that after passing the Barnes, car, and while the Davern car was still “shaking,” he told Davern to hit the brake easy and slow down. He said it was then too late; the car was going too fast.

An officer of the Louisville Police Department who investigated the wreck testified Duncan told him “they were playing around with the car.” The officer added that no explanation was given as to what was implied by this statement. When Duncan was interrogated on this matter he insisted what he meant was that the radio was on and he was tapping on the dashboard.

Indubitably guests riding in automobiles can be guilty of contributory negligence so as to defeat their claims against negligent operators. Negligence of this type may be committed or demonstrated in a variety of ways. One such way is knowingly continuing to ride, without protest, in an automobile which is being operated recklessly, Donnell v. Pruitt, Ky., 265 S.W.2d 784; another is participating in the' control of the vehicle so that the negligence of the driver would be imputed to the guest, Carnation Company v. Devore, Ky., 252 S.W.2d 860.

However, in Southern Oxygen Company v. Martin, 291 Ky. 238, 163 S.W.2d 459, it was held that a contributory negligence instruction is properly refused as to a passenger when: “There is no evidence of improper or careless driving * * * at any time before the accident which would put the other occupants on notice that the car was being negligently operated.” (Emphasis added.)

In Beasley v. Evans’ Admx., Ky., 311 S.W.2d 195, which was an action for damages growing out of the death of an automobile guest in a collision between an automobile and an oncoming truck, it was ruled an instruction as to contributory negligence upon the part of the guest was unjustified in the absence of evidence that the driver of the automobile had been driving recklessly or negligently before collision or that the guest had complained about manner in which he had been driving.”

In this same case, it is interesting to note that the passenger immediately prior to the accident, and when the accident was imminent, cautioned the driver with the words, “Watch it.” Analogously, in this case, the driver, Davem, after he had passed the first or the Barnes car, and while his car was still shaking, was given a precautionary warning by Horan.

The most that can be consistently drawn from all the testimony in this case is that Davem, the driver, was proceeding properly until he undertook to move ahead of the Barnes car. The accident was occasioned because he then accelerated too rapidly and, in consequence, lost control of the car. Thus, there is no evidence of probative value of any act of recklessness prior to the fatal impact which would have placed upon Davidson the duty to warn or admonish the driver. It is not even contended that Davidson attempted to exercise any control over the vehicle so that the negligence of Davem could be imputed to him.

Appellees strongly argue, in order to uphold the giving of the contributory negligence instruction, that Davem, who was only 16 years of age at the time of the mishap, was an inexperienced driver. It is true, as shown by the record, he had obtained his operator’s license only a week or ten days before the accident that resulted in his death. However, .to state unequivocally that he was inexperienced, for this reason alone, is an unwarranted assumption. On the other hand, at no place in the record is there any proof that he was unable to operate properly an automobile on a public highway.

KRS 186.480(1), which relates 'to. the test an applicant must successfully pass in order to obtain an operator’s license’, requires, among other things,- “an actual demonstration of ability to exercise .ordinary and reasonable control in the operation of a motor vehicle.” Since' bavern had demonstrated his ability to exercise ordinary and reasonable control, in the operation of a motor vehicle to the satisfaction of the State Police, who examined him a week or ten days before he received his license, it is difficult to see how one can assume that shortly thereafter he could be considered an inept driver. As there is no evidence on the point, we must reject the idea that appellant believed,'or it was brought home to him, that Davern was inexperienced at the time he rode with him.

We conclude appellees in this case failed to meet the burden of proving the elements that would warrant the giving of a contributory negligence instruction as to appellant.

Wherefore, the judgment is reversed and the case is remanded with directions that the trial court allow the jury to determine only the amount of appellant’s damages.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mitchell CURTIS et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.
    John J. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, L. A. Faurest, Faurest & Collier, Elizabethtown, Dandridge F. Walton, Madi-sonville, for appellant.
    Clarence Bartlett, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.
   STEWART, Judge.

This condemnation proceeding was instituted in the Ohio County Court by the Commonwealth of Kentucky, Department of Highways, against Mitchell Curtis and Inez Curtis, his wife, for the acquisition of land to be used as a right of way in the construction of the Western Kentucky Turnpike.

The commissioners, appointed by the county court, awarded the landowners the aggregate amount of $7170. The Commonwealth appealed, and in circuit court the jury returned a verdict of $1120 for the land taken and $6200 for damages to the remaining land, a total of $7320.

This appeal by the Commonwealth followed. It contends the verdict fails to support the recovery, because it is based upon evidence introduced by the landowners, not for the purpose of estimating compensation for the taking of the land and of fixing damages to the remainder but with the intention of prejudicing the minds of the jury.

The property involved was designated as parcel No. 26 of Section 4-4. One and sixty-six hundreths acres of land were taken from a tract of 16.1 acres for the right of way. The turnpike crosses the land in an east-west direction on an embankment 13 feet high where it enters from the east and 14 feet high where it leaves toward the west. A little over seven acres lie north of the turnpike and about the same amount of land is located to the south of it. All of the improvements, consisting of two houses, two barns and some small buildings, are situated on the north portion. To reach the south tract from the property on which the improvements are located, one is obliged to travel approximately two and a half miles.

The testimony introduced at the trial established the fact that a vein of merchantable coal, four feet and six inches in thickness and some 47 feet 9 inches in depth, underlies the boundary of land condemned for the right of way. Claud Burden, a witness who testified for the landowners, appraised the value of this land at $1200 to $1400 per acre. Burden, who had worked for IS years in mining coal and had dealt extensively in real estate in Ohio County, testified on direct and cross-examination that he had sold coal land in 1959 comparable to that of the landowners and in the same neighborhood at $1200 per acre. In breaking down this valuation Burden allocated $300 to the surface and $900 to the coal in place beneath it.

The Commonwealth used one appraisal witness whose testimony set a value on the portion condemned for the right of way at $300. This figure was predicated upon the theory that the coal underneath could not be recovered in a safe and economical manner and therefore should not be considered in order to augment the value fixed for the land above; and it produced John Donan, a mining engineer, as an expert witness to substantiate this contention.

Donan testified the coal had only a nominal or token value; it was his opinion it could not be extracted by underground methods because he had been unable to “find any overburden that would support a roof” for such an undertaking. Furthermore, he did not believe the coal could be strip mined according to approved mining practices for the reason that water caught up and standing in an abandoned mine on land adjacent to and lying above the landowners’ property would overflow onto it when excavations were made by this type of operation.

Two witnesses for the landowners, Edwin Whitehead and Claud Burden, testified that coal deposits similar to those involved herein had already been strip mined successfully and profitably within four or five hundred feet of the Curtis property; and that, as to the water hazards concerning which Donan testified, their experience had shown them that on nearby land water in considerable quantity had been taken care of with pumps of suitable capacity or by ditches that would drain it off naturally.

Thus, on the issue of whether the coal was feasibly recoverable, the landowners’ witnesses counter the evidence given by Donan, the Commonwealth’s witness. Therefore, it was for the jury to resolve this point, which they did by finding, we may assume, that the coal could be mined on a paying basis; and we cannot say their finding does not have a factual basis. As to the sum allowed by them for the land taken, namely, $1200 for the one and sixty-six hundreths acres, if the jury had followed completely the value placed on the land by Burden, they would have awarded the landowners $1992. The amount the jury found is certainly not out of line with the estimate given by Burden.

Looking now to the evidence introduced in regard to the damages resulting to the •remainder of the land from the construction of the project, the Commonwealth’s witness appraised this item at $550. Mitchell Curtis, one of the landowners fixed it at $14,000. The jury awarded $6200, as indicated heretofore. It is argued the Commonwealth’s testimony had probative value because it was arrived at in a manner approved by this Court. On the other hand, it is claimed Mitchell Curtis gave no legally acceptable basis to support his statement as to this factor.

This case was tried before the opinions of Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, and Commonwealth, Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, were handed down. In the first, decided March 22, 1963, so far as pertinent here, it was held that a jury should not be permitted, after the date , mentioned, to fix separately the compensation for the taking and the damages to the remainder in a condemnation action, but the only figure they should be asked to find, as to the land affected, should be the difference in the market value before and after the ta'king.' In the second, decided October 25, 1963, it was held that the owner of condemned realty, in future cases, could not be presumed adequately qualified to express an opinion as to its market value by reason of ownership alone, but he must establish his qualifications to -testify to such an opinion in accordance with -the same standards as that required of any other witness.

Stated somewhat differently, prior to the holding adopted in the Sherrod case, it was necessary in a condemnation proceeding to value separately the land condemned and the resulting damages to the remainder, if any. Also, before the Fister case, the rule was that a landowner could express a bare opinion as to either or both of these factors and his testimony would be admissible. See Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 477. The lattef case stated that “* * * it is not necessary for a witness to give ‘supporting facts’ in order to make his estimate of values admissible; the lack of supporting facts affects only the extent to which the probative value of the' estimate will go.”

In the instant case, Mitchell Curtis, the landowner, confined his testimony exclusively to the amount of damages the remainder of his land sustained by the construction of the turnpike. He was the only witness who placed a value on this item in behalf of the landowners. As this proceeding was tried October 29, 1962, his testimony could be confined solely to this element of proof, because the rule ¡set forth in the Tyree case was then in effect in ■this forum. A reading of his testimony shows he failed to qualify in order to express an opinion as to the damages he said the' turnpike caused to his farm. This he was not required to do under the rule prevailing at the time this case was tried.

The landowner, when asked how the property he still retains is damaged by the construction of the turnpike, called attention to the fact that his .farm is severed into two almost equal parts; that he is compelled to travel two and a half miles each way in going from one part to the other; and that the farm is hemmed in. by the newly constructed turnpike embankment on the south and by the existing Illinois Central Railroad tracks on the north.

The position is taken that Mitchell Curtis’ testimony should have been excluded because it fails to provide any basis for the value he set for the resulting damages. However, for the reason stated, the landowner’s evidence was admissible and it was for the jury to determine the weight to be given it under all the circumstances. An opinion concerning value is not absolutely worthless merely because the supporting facts are weak or merely because it does not support the opinion given. See Commonwealth, Dept. of Highways v. Elizabethtown Amusements, Inc., Ky., 367 S.W.2d 449, 451.

Another contention concerns the testimony given by Inez Curtis, the other landowner, when called as a witness. In undertaking to assess the amount of damages sustained by the remainder of the property, she was allowed to testify about the continual noise motor vehicles make in traveling upon the turnpike, night and day. As the residence is located within 203 feet' of the turnpike, she stated that this noise affects the comfort of those who live in it and she believed this fact tends to depreciate its value.

It is claimed the jury should not have been allowed to take cognizance of this character of evidence because it is not relevant proof. In Commonwealth, Dept. of Highways v. Elizabethtown Amusements, Inc., supra, it was pointed out that a reduction in the value of residential property as a consequence of a highway’s being brought in close proximity to it may be considered as an element of condemnation damages. The difficulty we have with Inez Curtis testimony, is that she did not give a reasonable opinion as to the amount of damage incurred by the location of the turnpike so near the residence. Her failure to do this makes her testimony incomplete and therefore incompetent. Still, we do not believe, in view of the size of the verdict reached, the jury was greatly influenced by it.

The Commonwealth’s sole ground urged for the reversal of the judgment is that .the jury was allowed to consider evidence, which it contends was incompetent and therefore inadmissible, with the result that attention was directed at matters calculated to arouse their passion and prejudice. We have discussed all the evidence, of which complaint is made, and we have decided it was competent and admissible or, if not, it was not prejudicial. It follows that the Commonwealth has not shown to our satisfaction that the jury was motivated by passion and prejudice when they returned their verdict. No question is raised about the amount.

Wherefore, the judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Carl CABE, Commissioner, Dept. of Labor, et al., Appellants, v. CITY OF CAMPBELLSVILLE, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Robert Chenault, Dept, of Labor, Frankfort, for appellants.
    Joseph J. Leary, Thomas F. Marshall, Frankfort, for appellees.
   DAVIS, Commissioner.

The appellants are the Commissioner of the Kentucky Department of Labor, the individual members who served as a Prevailing Wage Review Board, and the Kentucky Department of Labor. The appeal challenges the judgment of the Franklin Circuit Court, which revised downward the prevailing wage schedule which had previously been established by the appellant members of the Prevailing Wage Review Board. KRS 337.520(3) and 337.522(2).

The appellees, City of Campbellsville and Board of Education of Campbellsville Independent School District, constitute the public authority seeking the establishment of an applicable prevailing wage schedule within the framework provided in KRS 337.505 through 337.550. The request for determination of the prevailing wage arose incident to the plan of the Board of Education for the construction of a band hall and auditorium on the city school campus.

The basic questions presented are: (1) whether the finding of the Prevailing Wage Review Board is supported by substantial evidence, and (2) whether the Board had the authority to consider hearsay evidence in reaching its determination.

As provided by KRS 337.520 the Commissioner of the Department of Labor (hereinafter referred to as the Commissioner) conducted a hearing to initially determine the prevailing wage schedule for the proposed public work. We shall refer to this hearing as the initial hearing.

At the initial hearing it was shown that on February 10, 1961, the City of Camp-bellsville had promulgated a prevailing wage schedule which the City, as the public authority, found to be the applicable prevailing wages for public work. Such action was as then authorized by KRS 337.510. At the initial hearing evidence was presented in behalf of appellees that there had been no change in the rate of wages in the area since the adoption of the schedule.

Appellees presented several local contractors who testified that they knew the prevailing wages in the area; in general their testimony affirmatively agreed with the 1961 prevailing wage schedule.

In opposition to this, evidence was presented by a representative of the Kentucky Building Trades Council. The witness filed ten written statements from individual contractors which reflect what the contractors have paid for various types of labor in Taylor County. The statements disclosed that these wages were at higher rates than fixed by the 1961 schedule. The statements also noted the respective numbers of employees engaged by the various contractors in each labor classification. The number of such employees ranged from just one to a maximum of eight on one project. Counsel for appellees objected to the introduction of the statements, and moved that they be excluded on the ground that they constituted hearsay evidence. The hearing officer did not make any specific ruling on that objection.

It is appropriate here to observe that at the initial hearing, and before the representative of the Trades Council presented the statements, appellees presented six affidavits of individuals in support of the 1961 wage schedule, to which no objection was made.

On September 10, 1963, the Commissioner published his findings as to the prevailing wages (higher than the 1961 schedule), whereupon the present appellees requested the additional hearing authorized by KRS 337.522(2). This hearing we shall refer to as the review hearing.

The entire transcript of the evidence and exhibits at the initial hearing were made part of the record for the review hearing. For the appellees the evidence was again presented by persons acquainted with the wages generally paid for labor in the Taylor County area. These witnesses declared that ample local labor could be had at the wage rate prescribed in the 1961 schedule, with the exception of a few classifications not locally available.

Evidence was presented in behalf of the interested labor organizations through the testimony of the business agents for two Louisville union locals and the secretary of the Louisville Building & Construction Trades Council. These witnesses told of various contracts which had been performed in Taylor County by contractors using union labor and paying union scales of wages. The evidence of these witnesses was objected to as hearsay by counsel for appellees.

After the review hearing, by vote of two to one, the review board found the schedule to be identical with the one announced by the commissioner as the result of the initial hearing.

Appellees then sought judicial review as prescribed by KRS 337.525. The Franklin Circuit Court adjudged that there was no evidence of substance to sustain the wage scale as determined by the review board, and directed that the wage scale as adopted in 1961 be declared as the appropriate schedule.

KRS 337.505 provides the definition of “prevailing wage” as follows:

“(a) The wages that are or have been paid to the majority of laborers, workmen, mechanics, helpers, assistants and apprentices employed in each classification of construction upon reasonably comparable construction in the locality where the work is to be performed; such wages shall be determined in accordance with paragraphs (a), (b) and (c) of subsection (3) of KRS 337.520;
“(b) In the event that there is not a majority paid at the same rate, then the rate paid to the greater number: Provided, such greater number constitutes thirty percent of those employed ; or
“(c) In the event that less than thirty percent of those employed receive the same rate, then the average rate.”

KRS 337.520(3) sets out the criteria to be considered by the commissioner in determining prevailing wages thus:

“(a) Wage rates paid on previous public works constructed in the localities. In considering such rates the commissioner shall ascertain, in so far as practicable, the names and addresses of the contractors * * *, the locations, approximate costs, dates of construction and types of projects, the number of workers employed on each project and the respective wage rates paid each worker who was engaged in the construction of these projects.
“(b) Wage rates previously paid on reasonably comparable private construction projects constructed in the localities. In considering such rates the commissioner shall ascertain, in so far as practicable, the names and addresses of the contractors including subcontractors, the locations, approximate costs, dates of construction and types of projects, the number of workers employed on each project and the respective wage rates paid each worker who was engaged in the construction of these projects.
“(c) Collective bargaining agreements or understandings between bona fide organizations of labor and their employers located in the Commonwealth of Kentucky which agreements apply or pertain to the localities wherein the public works are to be constructed.”

KRS 337.525 fixes the scope of judicial review. The statute authorizes the court to affirm, remand, reverse or modify the review board’s determinations under certain circumstances — one of which is if the court determines that the board’s findings are not supported by substantial evidence.

There is no doubt that all of the evidence offered for the labor organizations falls into the category of “hearsay” as that term is generally understood. The witnesses did not furnish evidence which derived its value solely from the credit to be given the witnesses; such evidence had to derive its value from the veracity and competency of other persons, not before the review board and not subject to examination under oath. See 20 Am.Jur. Evidence, Sec. 451; Kinder v. Com., Ky., 306 S.W.2d 265. The labor witnesses did not profess to have personal knowledge that the wages of which they testified had indeed been paid — merely that the documents they presented so stated. As noted, appellees objected to this evidence and moved its exclusion. -

As early as Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036, this Court recognized and followed the rule that the admission of hearsay evidence (before the Workmen’s Compensation Board) is not prejudicial, but that hearsay evidence alone will not support an award of compensation. The Valentine case has been followed consistently in subsequent opinions. Cf. Shearer v. Bulleit, Ky., 257 S.W.2d 903; Hardwood Sales Co. v. Meeks, 286 Ky. 500, 151 S.W.2d 406; Consolidation Coal Co. v. Ratliff, 217 Ky. 103, 288 S.W. 1057.

It is noteworthy that the Valentine case, supra, followed the celebrated, and much criticized New York decision of Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507, Ann.Cas.1918B, 540. In Valentine this Court said:

“When the evidence is all in, it must be sifted and assorted. The competent separated from the incompetent, and out of the testimony there must come some reliable and substantial evidence, as understood by the common-law rules of evidence upon which a verdict must rest.” op. cit. 228 S.W. at p. 1038.

The foregoing quotation fairly embodies the so-called “residuum” rule. A scholarly critique of that rule is found in 2 Davis Administrative Law, Sec. 14.10 through 14.12. Professor Davis points out that Valentine v. Weaver, 191 Ky. 37, 228 S.W. 1036, places this jurisdiction among those supporting the “residuum” rule. Ibid, pp. 322-3.

The fundamental problems inherent in the question under consideration are aptly-expressed by Professor Davis:

“The first and most important step in understanding the residuum rule — a step that too many courts have failed to take — is to recognize what is and what is not the alternative to the residuum rule. The alternative is to allow agencies and reviewing courts to exercise discretion in determining in the light of circumstances of each case whether or not particular evidence is reliable even though it would be ex-eluded in a jury case. In the exercise of such discretion, agencies and reviewing courts will in many circumstances find that particular hearsay or other so-called incompetent evidence has insufficient reliability. Rejection of the residuum rule does not mean that an agency is compelled to rely upon incompetent evidence; it means only that the agency and the reviewing court are free to rely upon the evidence if in the circumstances they believe that the evidence should be relied upon. Rejection of the residuum rule does not mean that a reviewing court must refuse to set aside a finding based upon incompetent evidence; it means only that the court may set aside the finding or refuse to do so as it sees fit, in accordance with its own determination of the question whether the evidence supporting the finding should be deemed reliable and substantial in the circumstances.”

However, it is to be noted that no sufficient reason appears to reject the “residuum” rule where better evidence is readily available. This precept is thus expressed by Professor Davis:

“When the alternative to relying on hearsay is to get the better evidence that is readily available, refusing to rely on the hearsay may often be reasonable. When the alternative to relying on hearsay is to make the finding without benefit of any evidence on the point, relying on the hearsay may often be desirable.” 2 Davis, Administrative Law, p. 296, Sec. 14.10.

We think that Carpenter’s Local No. 1650 v. City of Lexington, Ky., 248 S.W.2d 407, does not militate against the principles here announced. The opinion in the case just cited does not reflect that any question was there raised as to the sufficiency of the proof. Neither can it be determined from that opinion whether a “residuum” of “non-hearsay” evidence was in the record.

Returning to the case at bar, we can perceive no valid reason for rejection of the “residuum” rule here. Presentation of “the better evidence” by way of testimony of the witnesses who possessed first-hand information would have been relatively simple. It follows, therefore, that the trial court correctly adjudged that the finding of the Wage Review Board was not supported by substantial evidence, since its only support rested upon hearsay evidence. We have written at this length to call attention again to this practical question in the administrative law field. When and if we are presented with the alternatives suggested will be the time to re-examine the “residuum” rule as it may then appear indicated.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    TECON CORPORATION, Appellant, v. Irvin M. OSER et al., Appellee.
    Court of Appeals of Kentucky.
    Dec. 11, 1964.

      David R. Reed, Paducah, for appellant.
    Pal G. Howard and John C. Lovett, Benton, for appellee.
   WADDILL, Commissioner.

The appeal is from a judgment setting aside an order of the Workmen’s Compensation Board refusing to grant appellee, Irvin M. Oser, compensation benefits provided for permanent disability.

Oser was employed as a manual laborer by appellant, Tecon Corporation, on the site of Barkley Dam. On November 12, 1959, he was carrying on his shoulder one end of a length of steel pipe when his co-worker dropped the other end. This caused a jarring against his neck but he did not believe he had received any injury of significance and continued to work. On November 13, 1959, a heavy timber fell across his ankle and knocked him to the ground. Oser gave notice of and claimed permanent disability from the latter accident.

Following a hearing the Board awarded Oser compensation for temporary total disability for 26 weeks plus medical benefits but found that he suffered no permanent disability from the accident he sustained on November 13, 1959. Upon review pursuant to KRS 342.285 the circuit court decided that Oser was entitled to an award of compensation for permanent disability and remanded the case to the Board for entry of an award. Tecon has appealed.

We are confronted with the preliminary question of whether the appeal is from an interlocutory order. The answer is that a judgment setting aside an order of the Workmen’s Compensation Board and remanding the case to the Board for the entry of an award is final and appealable. Brown Hotel Co. v. Elmore, Ky., 365 S.W.2d 309. Also we observe that the circuit court was of the opinion that the Board did not make sufficient findings of fact on material issues as required by KRS 342.275. We hold, as previously indicated, that they are sufficiently stated to satisfy this statute.

The only issue that was presented for the Board’s determination was the extent and duration of Oser’s disability. Tecon had voluntarily paid Oser maximum compensation benefits for ten weeks.

Several physicians examined Oser for the purpose of ascertaining whether he had sustained an injury causing his alleged permanent disability. The Board accepted the testimony of the medical experts who testified, in effect, that their comprehensive examinations of Oser over a period of seven months after his accident failed to disclose any objective findings of a permanent injury that could reasonably be attributed to his employment. This evidence amply justifies the Board’s finding that Oser has no compensable permanent disability and the circuit court as well as this Court is bound by such finding. Knott Coal Corp. v. Smith. Ky., 354 S.W.2d 513.

The judgment is reversed with directions to enter a new one upholding the order and award of the Board.