author: NYE, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Lewis W. WATSON, Appellee.
    No. 257.
    Court of Civil Appeals of Texas. Corpus Christi.
    March 23, 1967.

      James N. Stofer, of Proctor, Houchins, Anderson, Smith & Null, Victoria, for appellant.
    No appearance for appellee.
   OPINION

NYE, Justice.

The appellant brought garnishment proceedings against the Sheriff of Jackson County, Texas, as garnishee, seeking funds held by him. It was alleged that these funds belonged to one Helvenston and that the appellant had an unsatisfied judgment against said Helvenston. The trial court held that these funds in the hands of the Sheriff were held by him in custodia legis in his official capacity as Sheriff and therefore such were not subject to garnishment. Appellant has perfected its appeal to this court contending in a single point that the trial court erred in such holding.

The case was tried to the court without a jury. Most of the facts are either stipulated or undisputed. Other facts relevant to a decision in this case are taken from appellant’s brief, unchallenged by the appellee, and are therefore accepted by this court as correct. Rule 419, Texas Rules of Civil Procedure.

Appellant in its application for writ of garnishment stated under oath that it had obtained two judgments against Helven-ston; that the judgments were final, valid, and subsisting and remained wholly unsatisfied; that Helvenston did not (within appellant’s knowledge) have property in his possession within the State of Texas subject to execution sufficient to satisfy the judgments ; and that appellant had good reason to believe and did believe that the Sheriff was indebted to Helvenston or had in his hands, effects belonging to Helvenston.

The Sheriff admitted, that he had in his hands $1,000.00 in the form of cashiers checks and that they were received by him pursuant to a separate district court order concerning the criminal trial and sentence of one Bill Lindsey.

Appellant introduced into evidence a certified copy of this judgment ordering the sentencing of Bill Lindsey. It showed that Lindsey was found guilty of a crime of embezzlement and was placed on probation for a term of nine years. As a condition to such probation, Lindsey was ordered to make restitution for the money and property wrongfully taken by him. This restitution order required Lindsey to pay to the Sheriff the sum of $1,000.00 on or before the first day of February, 1966, and a like sum each year thereafter until the full amount of $6,000.00 had been paid. The order in turn authorized the Sheriff to disburse the payments so received to the “injured parties”.

Appellant contends that the injured parties referred to in the above order are in reality one person and that person is Hel-venston. Therefore, pursuant to this order the Sheriff had nothing further to do at the time the writ of garnishment was served upon him, except to make payment of these funds to Helvenston.

Generally speaking the rule is that property in the custody of the law is not subject to garnishment. However, we are not persuaded that this broad statement is applicable to the facts before us. The rule was not formulated for the protection of the party entitled to the funds, but as applied, the rule is enforced by the courts to preserve the jurisdiction of the court administering the particular property. Its purpose is to prevent conflicts of jurisdiction from one court to another and to insure orderly judicial procedure in the administration of the funds. Huggins v. Phillips, 275 S.W. 1084 (Tex.Civ.App.—Waco 1925, writ dism’d); Turner v. Gibson (Sup.Ct.1912), 151 S.W. 793, 43 L.R.A.,N.S., 571. The rule has its exceptions and it has been generally held that when the reason above cited ceases to exist then the rule itself should end. 26 Tex.Jur.2d 706, § 34. For instance, if a court has entered a decree or order for the distribution of the funds and nothing remains for the custodian of the funds to do but to make delivery or payment to the person entitled, the rule of exemption from garnishment ceases. Challenge Co. v. Sartin, 260 S.W. 313 (Tex.Civ.App.—Dallas 1924, n.w.h.) ; Turner v. Gibson, supra; 38 C.J.S. Garnishment § 44, p. 246; Reisberg v. Hubbard, 326 S.W.2d 605 (Tex.Civ.App.— Eastland 1959, n. w. h.).

The thousand dollars held by the Sheriff was the money received by him from Lindsey pursuant to the order of restitution in the criminal case. Appellant in his original brief refers us to the testimony in which the Sheriff admits that the “injured parties” were in fact Helvenston and that he was the sole one. The Sheriff further testified that when he received the delivery of the $1,000.00 he was authorized to turn those funds over to the injured party.

It is clear, therefore, from the record that the appellant has unsatisfied judgments against Helvenston; that the Sheriff has in his hands monies belonging to Hel-venston ; that appellant has garnisheed these funds. In view of the fact that there was nothing further for the Sheriff to do under the order of payment by the district court in the criminal case except to pay the funds held in his possession to Helvenston, such funds are no longer exempt from garnishment.

The judgment of the trial court is reversed and this case is remanded to the trial court with instructions to enter judgment in accordance with this opinion in favor of the appellant and to assess all the costs, including the costs of this appeal against the said funds held by the Sheriff.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Billy Joe TAYLOR, Appellant.
    No. 51929.
    Supreme Court of Missouri, Division No. 2.
    April 10, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Ben J. Martin, Sp. Asst. Atty. Gen., Springfield, for respondent.
    James E. Baldwin, Lebanon, for appellant.
   BARRETT, Commissioner.

For twelve years Ruby O’Flynn and her father Elmer Flynn, age 85, have lived on a small tract of land just, outside Richland. In addition to their residence and in nearby separate buildings, “all compact there together,” they operated a 3.2 beer tavern and a small package liquor store. On July 26, 1965, about 12:30 o’clock the appellant, Billy Joe Taylor, age 30, drove up in a 1965 red Valiant automobile that he had rented in Memphis, Tennessee, on July 24, and parked in front of the tavern. He drank a beer or two, ate a couple of sandwiches and visited with Ruby for about two hours. Among other topics of conversation Billy Joe told Ruby that he had once lived in Richland. After the hour or so Billy Joe apparently left and Ruby went to the house to take some previously forgotten medicine and when she returned to the tavern Billy Joe had parked the Valiant “around the back of the place” and again came in the front door. Ruby told him she was going to close up and he asked for one more beer and another sandwich and went to the rest room. When he came out he “came back behind me and put a gun on me,” a black gun with white “handle” and he said, “I’m going to blow your brains out; don’t give me any trouble or I’ll blow your brains out.” He took the money from the cash drawer, $86 in cash, $294.50 in checks, and from the counter Ruby’s green billfold which contained $155.00 in bills and two or three dollars in change. He took a sash from Ruby’s dress and tied her arms he took his own belt off and tied her feet and tied a towel across her mouth, dragged her behind the bar and left her on the floor. Her father sitting in his chair in front of the liquor store was not aware of these events until Ruby got her feet loose and came out to have him untie her hands. Sheriff’s officers and highway patrolmen were alerted and after a hundred mile an hour chase through the streets of Lebanon Billy Joe wrecked the Valiant, was taken into custody and finally charged with robbery in the first degree. A jury found him guilty and since, as charged, he admitted two prior robbery convictions in other jurisdictions the court fixed his punishment at twenty-five years’ imprisonment and he has appealed, and in both the trial court and here has been represented by respected lawyers from the Laclede County bar.

Richland is on the Laclede-Pulaski County line and the appellant’s first assignment of error is that the state “failed to prove venue” and therefore, it is said that “the conviction cannot stand.” State v. Hawkins, Mo., 361 S.W.2d 775; State v. Poelker, Mo., 378 S.W.2d 491. And, of course, “Offenses committed against the laws of this state shall be punished in the county in which the offense is committed * * *.” RSMo 1959, § 541.030, V.A.M.S. There is no need to elaborate on the subject here, however, the difficulty with the appellant’s assignment is that it is circumstantially if not directly disproved by the record. State v. Hartwell, Mo., 293 S.W. 2d 313; State v. Palmer, 281 Mo. 525, 220 S.W. 680. Without detailing other relevant circumstances Ruby testified that she and her father lived in Laclede County. She said that their property was “right on the county line” but she knew “where the line runs” and on redirect examination said that the tavern, store and house, while three separate buildings were “all on the same tract of land. Q. Were all three of these in Laclede County? A. Yes. Q. In fact, is all your land in Laclede County? A. Yes, sir. Q. There is only one area more or less, just a small point and they are all there all in Laclede County? A. Yes.” The holdup and robbery, according to Ruby, occurred inside the tavern. In these circumstances the state sufficiently established and the jury could'reasonably find venue in Laclede County. State v. Heissler, Mo., 324 S.W.2d 714.

The appellant’s second assignment is that the court prejudically erred in overruling his application for a continuance (Cr. Rule 25.08, V.A.M.R.; RSMo 1959, § 545.710, V.A.M.S.) thus requiring him to go to trial “at a time when the community was inflamed, aroused and prejudiced against defendant as a result of a newspaper publication and radio broadcast two days prior to the commencement of trial.” The circumstances are quite dissimilar, a district collector of Internal Revenue charged with several counts of accepting money and just before trial being subjected to an extensive, widely publicized congressional investigation, but appellant relies upon the principles underlying Delaney v. United States, 1 Cir., 199 F.2d 107. But again the record does not support the assignment. As stated, the robbery occurred on July 26, 1965 and the case was tried beginning on Wednesday, October 6, 1965. As to the specific assignment all that appears is that on October 5, 1965, a motion for a continuance was filed; the motion alleged that the Lebanon Daily Record of October 4, 1965, and radio station KLWT published news releases that Billy Joe had escaped from the Laclede County jail and had attempted to escape from the Greene County jail. It was alleged that these releases were prejudicial and made “it impossible to set a fair and impartial jury.” Attached to the motion was part of a page from the newspaper. The first paragraph of the article stated that Judge Curtis had that day, October 4, sentenced Carl Abe Brown to two years upon his plea of guilty to a check charge. After relating some of the circumstances concerning the check, this was the rest of the news item:

“Judge Curtis also today set trial of Billie Joe Taylor, on an armed Robbery charge, for Wednesday. Taylor, after being jailed here, escaped and then was recaptured.
“He reportedly tried to escape from the Greene County jail in Springfield during the past weekend.”

There was no transcript of the radio broadcast.

In the first place, there was no request for a hearing upon this request for a continuance and there was no proof whatever of the allegations of the motion. All that appears is that “said motion * * coming on for hearing and determination, was by the court on October 5, 1965, overruled, over the objections of the defendant.” It may not be said on the mere face of the presented material that it was so manifestly inflammatory as to certainly prevent the appellant from having a fair trial. Since it was not that type of material, the mere formal application is not in and of itself self-proving and from the minute entry the court evidently considered the material on file before it and, of course, what the court itself must have known and it may not be said that there was an abuse of discretion in the denial of the motion upon the showing or presentation made. State v. Le Beau, Mo., 306 S.W.2d 482, 486; State v. Sanders, Mo., 313 S.W.2d 658, 660.

Without further requests or objections, the defendant announcing ready for trial, the cause proceeded. Prior convictions were admitted, the jury was returned to the courtroom, the panel of thirty jurors was sworn and the court said (only parts of the voir dire examination are set out); “No doubt you have read something in the newspapers about this case, and you may have seen something on the television about it, may have heard something on the radio about it. Let’s see how many have read or heard it on the radio or seen it on the TV. Well, a great many of you, most of you. Of those who have read something about the case, heard it on the radio or seen it on TV, has any one of you formed or expressed an opinion about the guilt or innocence of the accused? Don’t tell us what your opinion is if you have one.” One juror after being examined and indicating that it would take evidence to remove his feeling of guilt was excused. Then a lady juror was excused because of her opinion, a third juror was excused because he had talked to Sheriff Murphy about the case. The court then requested the sheriff to secure four more jurors, other jurors were temporarily excluded, the four were examined, there was a recess, defense counsel consented “for the separation of the jury” and the case proceeded to trial without other or further objection or request for court action.

There was no mention in qualifying the jury of Billy Joe’s escape or attempt to escape, the qualifying procedure was the apparently conventional attempt to select a fair and impartial jury. Of course the circumstances in which the appellant committed the offense were not likely to arouse a great deal of sympathy but there is no way to erase the prejudice engendered by the defendant’s commission of the offense and upon this record there was no manifest abuse of discretion comparable to that in Delaney v. United States and upon this particular record the court did not preju-dicially err. State v. Golden, 353 Mo. 585, 183 S.W.2d 109, 112-113; State v. Spica, Mo., 389 S.W.2d 35.

The three other assignments of error have to do with the handling and admission in evidence of certain exhibits. These assignments are argued in some detail but need only brief notice here. There was Ruby’s sash, Billy Joe’s belt and sunglasses, a photograph of the wrecked Valiant, Ruby’s green billfold and among other claims it was said that some of the articles were handled .by witnesses and seen by the jurors before being properly admitted in evidence. As to some of the items, as the colored sash, it is said that “the chain of custody” was not properly established and that the photograph of the wrecked automobile and the vehicle with which it collided was not relevant or material to the charge of armed robbery and tended to unfairly inflame the jury. Without unnecessarily detailing all the circumstances in which these articles were handled and finally offered in evidence, it is sufficient to say that as to several of the matters there were no objections, or the objections were lacking in specificity and present no reviewable questions here. State v. Brooks, Mo., 360 S.W.2d 622. It is not claimed that by reason of their gruesomeness the photographs were inflammatory, they fairly represented the termination of Billy Joe’s course after the robbery and while the oral testimony fully and completely described all the events of the robbery the photographs were at most cumulative and there was no abuse of discretion in their admission in evidence. State v. Sims, Mo., 395 S.W.2d 445, 449. The belt, sash, sunglasses and other items were carefully identified either by Ruby, sheriff’s officers or patrolmen, they were all initialed or marked, their care and custody accounted for and they were all employed in the robbery or worn by Billy Joe and aided in the positive identification of him as the robber and, needless to say, in any event were admissible in evidence, certainly as against the assignments made here. State v. Bland, Mo., 353 S.W. 2d 584, 586; State v. Knox, Mo., 320 S.W. 2d 592; State v. Easley, Mo., 338 S.W.2d 884; State v. Gerberding, Mo., 272 S.W. 2d 230.

In these circumstances, the grounds set forth in the assignments of error not entitling the appellant to a new trial, the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, G, is adopted as the opinion of the court.

All of the Judges concur.


author: WOLFE, Judge.

text:
    Charles BATES and Myrtle Bates, Plaintiffs-Respondents, v. Henry A. MUELLER and Loretta Mueller, Defendants-Appellants.
    No. 32485.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.
    Schneider, Sumner, Hanlon & Boyle, James J. Raymond, Clayton, for defendants-appellants.
    Lawrence O. Willbrand, and Bernard Susman, St. Louis, for plaintiffs-respondents.
   WOLFE, Judge.

This is an action in equity whereby the the plaintiffs seek to enjoin the defendants from interfering with the construction of a fence. The fence which the plaintiffs propose to construct is immediately to the rear of defendants’ property on a strip of land shown by plats duly recorded to be a public alley. There was a judgment for the plaintiffs for the sum of $158.00 which represented the value of fences removed by the defendants and the court enjoined the defendants from interfering with the use by the plaintiffs, Charles and Myrtle Bates, of the ten foot strip of ground to the rear of plaintiffs’ property and denied the defendants any right to use the land in question or to interfere with the plaintiffs’ use of the platted alley. The defendants duly prosecuted their appeal.

The facts are that the plaintiffs, Bates and his wife, own Lot 38 which fronts on Pine Avenue in Columbus Park Subdivision in the City of Brentwood. The defendants own a lot in Moritz Place. According to plats introduced in evidence by plaintiffs the back line of their lot abuts upon and follows the line of an alley. The alley is ten feet in width. The back line of defendants’ property also abuts on the opposite side of this alley. Thus it was agreed that according to the plats the two lots in question were separated in the rear by a ten foot strip platted as an alley.

The plat of Columbus Park Subdivision where plaintiffs’ lot is located was duly recorded on April 13, 1909, with the Recorder of Deeds in St. Louis County. At that time the area in question was not in any incorporated town or village. The plat which is regular in all respects required by the statutes carries the statement: “The avenues and alleys shown on the above plat, and for better identification shown ‘etched’ on the above plat are hereby dedicated to public use forever.” On December 15, 1919, the City of Brentwood was incorporated. It took in all of the area here in question. Since then the ten foot strip remains on the city records as an alley.

Plaintiff Bates testified that he had resided at 9002 Pine, which is the house number of his lot, for twenty-six years. No deeds were offered in evidence but the plat which he offered showed that his lot was 140 feet in depth to the alley. He said that the property owners on either side of him had each erected a fence along a line 150 feet from the front line of their lots. He said that during the twenty-six years he had lived there he and the adjoining owners used the ten feet at the rear of their property as a play area for their children, had planted shrubbery there and otherwise treated it as their own. There is a large tree on the ten foot strip and it was there when he moved in. The strip has not been used as an alley. Another resident of the area whose home is four houses west of respondents’ testified that property owners to either side of her had erected fences along the rear 150 foot line and that she had erected a fence which took in the alley behind her property. The platted alley is not surfaced in any way and in its present condition is covered with dirt, grass, flowers, weeds, trees. In the fall of 1961 plaintiffs erected a fence enclosing the ten foot strip within their property. It consisted of cedar posts with 2x4 stringers and wire. Mr. Mueller, one of the defendants, removed the fence. The plaintiffs then replaced it in 1964 with a chain link fence which Mr. Mueller removed several months later. At that time Mueller declared he would tear down any fence built by the respondents and this suit for an injunction against Mueller and his wife then followed.

The appellants here suggest that this appeal may have been directed to the wrong court in that title to real estate is involved and that the Supreme Court may have jurisdiction of the appeal under V.A. M.S., Const, art. 5, § 3. It appears, however, that jurisdiction rests in this court as the purpose of the action was to enjoin the defendants from interfering with plaintiffs’ private use of the alley. The fact that it may have been necessary for the trial court to determine the existence or ownership of the alley were issues only collateral to the plaintiffs’ alleged right to prevent interference of his attempted use of the alley. This appeal consequently does not involve title to real estate within the meaning of the constitution. Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721; Judge v. Durham, Mo., 274 S.W.2d 247.

The facts are not in dispute and the basic issue for decision is a question of plaintiffs’ right to erect the fence, free from interference by the defendants. If the"ten foot strip is a public alley, the defendants, whose line abuts upon it, have as much right to use it as the plaintiffs and the plaintiffs have no right to fence it in. The Missouri Supreme Court stated in City of St. Louis v. Clegg, 289 Mo. 321, 233 S.W. 1, 1. c. 3, 17 A.L.R. 1242, that when the owner of land “ * * * conveys the lots according to a plan which shows them to be on the streets, he must be held to have stamped upon them the character of public streets. Not only can the purchasers of lots abutting on such streets thus assert their character, but all others. * * * ” This was cited with approval in the more recent case of Weakley v. State Highway Commission, Mo., 364 S.W.2d 608.

We are left therefore with only one thing to determine, and that is the collateral issue of whether or not the strip in question is a public alley. If it is a public alley it must have become such by reason of the plats filed in 1909 when the subdivision was laid out. Chapter 142 of Revised Statutes of Missouri, 1899, set out the requisites for plats filed for recording and the plats here considered fully comply. In the same chapter, § 8959, it is provided: “ * * * Such maps or plats of such cities, towns, villages and additions made, acknowledged, certified and recorded, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein named, described or intended for public uses in such city, town or village, when incorporated, in trust and for the uses therein named, expressed or intended, and for no other use or purpose. If such city, town or village shall not be incorporated, then the fee of such lands conveyed as aforesaid shall be vested in the proper county in like trust, and for the uses and purposes aforesaid, and none other.” (Italics ours.) ' This same provision is now § 445.070, Sub-paragraph 3, V.A.M.S. It has been held that the words “city, town or village not incorporated,” as used in the statute embrace within their meaning subdivisions platted for the sale of lots. Weakley v. State Highway Commission, Mo., 364 S.W.2d 608, supra. It is apparent that by virtue of § 8959, RSMo 1899, the County of St. Louis was vested with title to the ground platted as a public alley for its use as such. Weakley v. State Highway Commission, supra; Winschel v. St. Louis County, Mo., 352 S.W.2d 652; Duenke v. St. Louis County, 358 Mo. 91, 213 S.W.2d 492.

As stated, in 1919 the City of Brent-wood was incorporated and the property of the parties to this action was taken into the city. It then assumed jurisdiction of the area including the streets platted and the alley became a public alley of the City of Brentwood. Weakley v. State Highway Commission, supra; Duckworth v. City of Springfield, 194 Mo.App. 51, 184 S.W. 476. The fact that there was a non-user by the public does not work an abandonment of it. Winschel v. St. Louis County, supra.

In defense of the court’s decree the plaintiffs, who are respondents here, assert that even though the alley does in law exist equity should come to their aid. They overlook an important rule that “* * * no maxim of equity may be invoked to destroy an existing legal right, nor may equity purport to establish a right which does not exist. * * * ” Milgram v. Jiffy Equipment Co., 362 Mo. 1194, 247 S.W.2d 668, 1. c. 675, 30 A.L.R.2d 925. They are seeking to enforce a right that does not exist and therefore they are without standing either in law or in equity.

The judgment is reversed.

ANDERSON, P. J., and RUDDY, J., concur.


author: HOGAN, Judge.

text:
    Clyde GRIFFIN, Appellant, v. SINKS FORD SALES and Fidelity and Casualty Company of New York, Respondents.
    No. 8592.
    Springfield Court of Appeals. Missouri.
    March 22, 1967.
    James C. Bullard, Dalton, Treasure & Bullard, Kennett, for appellant.
    William H. Billings, McHaney, Billings & Welman, Kennett, for respondents.
   HOGAN, Judge.

This appeal is taken from an order of the Circuit Court of Dunklin County affirming an award denying compensation to the appellant, Clyde Griffin, under the provisions of the Workmen’s Compensation Law Chapter 287, RSMo (1959), V.A. M.S. The appellant’s claim for compensation is based on his assertion that he was injured in an automobile accident while on his way to contact a prospective customer for the employer. The employer and insurer have resisted the claim on the ground that Mr. Griffin was not an employee within the meaning of Section 287.020, par. 1, RSMo (1959). In making its award, which is what we review here, Michler v. Krey Packing Co., 363 Mo. 707, 716, 253 S.W.2d 136, 140, the Industrial Commission found that the claimant had not sustained his burden of showing that he was an employee within the meaning of the statute. What we are to decide is whether the Commission could reasonably have made its findings and reached its result upon consideration of all the evidence before it, and whether its decision is clearly contrary to the overwhelming weight of the evidence. Article V, Section 22, Constitution of 1945, V.A.M.S.; Monical v. Armour & Company, Mo., 307 S.W.2d 389, 391 [1]; Michler v Krey Packing Co., supra, 363 Mo. at 717, 253 S.W.2d at 141 [6].

The record discloses that Clyde Griffin, the claimant, was a former automobile .salesman who left Dunklin County in July 1958 to work in Flint, Michigan. He remained there until December 1959, when he returned to Arbyrd, a small town in Dunklin County. In January 1960, Mr. Griffin purchased a cafe at Arbyrd, called the Dunklin County Cafe. He ran the ■cafe alone for two or three months and then “hired a lady to take care of the place for me.” Late in March 1960, the claimant had a conversation with a Mr. Jack Meredith (whose status with the employer is disputed) in the course of which Meredith told the claimant “he [Meredith] wanted me to go to work for him and take .a demonstrator.” Mr. Griffin was given price lists and descriptive literature by employees of Sinks Ford Sales, and at •the same time he obtained an automobile for use in his work. Whether the claimant bought this automobile, or whether it was furnished by the employer as a demon-trator, was one of the principal controverted issues at the hearings on this case.

Mr. Griffin testified that his territory was to be the south part of Dunklin County, including Cardwell, Senath, Arbyrd and Hollywood. He was required, he said, to “be at the employer’s garage at Kennett one day a week, on Saturday, but was not assigned a quota for sale and “wasn’t required to work no certain amount of hours.” During the time he worked — a little less than a month — Mr. Griffin continued to live at Arbyrd and continued to operate his cafe there.

The claimant received no salary and had no drawing account at Sinks Ford Sales; he was to be paid a commission of five per cent on each sale, up to a maximum of $50.00. During the course of the hearings on this matter, Mr. Griffin stated that he “was to take my customers in to' Sinks Ford Sales for their trade-in to be appraised,” but also said he had no authority to make a completed deal. In a pre-trial deposition given in December 1960, the claimant described his method of operation by saying that he would “just go out and see people, any prospect and anybody that I had in mind I thought maybe I might could sell a car to * * * ” and then would “ * * * talk up the deal and if they was interested in trading and I could get them to come in why Jack Meredith was supposed to appraise their trade-in if we could get them together on a deal.” In this deposition, Mr. Griffin added, “No, I didn’t have authority to make a deal myself. Even if I did make a deal they had authority to turn down the deal here if they wanted to.” The claimant was supposed to report his contacts, which he made mostly by telephone, but he was not required to make any written reports. During the short time he worked, Mr. Griffin paid his own expenses in connection with the automobile he used, though the employer washed the vehicle once a week without charge. On April 21, 1960, while on his way to contact a prospective purchaser, the claimant was involved in an automobile accident and was seriously injured.

Both parties recognize that the determination of this case, reduced to essentials, depends on whether Mr. Griffin was an “employee” within the intent and meaning of the statute when he was injured. The appellant argues that because Sinks Ford Sales furnished instrumentalities with which to do the work, and exercised control over the claimant by requiring him to be in Kennett one day a week, by assigning him a specific territory, and by requiring Mr. Meredith’s approval before a transaction was completed, the necessary relationship is established. The employer and insurer deny that Mr. Meredith had any authority to hire the claimant in the first place, and argue that in any event the only elements of control established were the reservations with respect to the territory in which Mr. Griffin could operate and the price at which he could sell, and consequently the claimant must be classified as an independent contractor.

There can be no disagreement as to the general principles involved. Although common law concepts are not finally controlling, and the terms “employer” an “employee” are broader and more inclusive than the terms “master” and “servant,” still it is generally true that the relationship of master and servant must exist for the accident to be compensable. Coy v. Sears, Roebuck & Co., 363 Mo. 810, 815-817, 253 S.W.2d 816, 818-819 [1]; McFarland v. St. Louis Car Co., Mo.App., 262 S.W.2d 344, 348 [5, 6]; McQuerrey v. Smith St. John Mfg. Co., 240 Mo.App. 720, 725, 216 S.W.2d 534, 537 [3-5], The principal evidentiary circumstances to be considered in determining whether this relationship exists have been fully set out and discussed many times, and we need not repeat them here. See Mattan v. Hoover Co., 350 Mo. 506, 516— 517, 166 S.W.2d 557, 564-565 [3-5], [6]; Skidmore v. Haggard, 341 Mo. 837, 844-845, 110 S.W.2d 726, 729-730 [3-5]; Restatement (Second) of Agency, Section 220 (1958). However, it must be borne in mind that in determining whether a particular person is a servant or an independent contractor, no one of the various factors to be considered is in itself controlling; each case must be decided upon its peculiar facts, Coy v. Sears, Roebuck & Co., supra, 363 Mo. at 816, 253 S.W.2d at 818; McKay v. Delico Meat Products Co., 351 Mo. 876, 887-888, 174 S.W.2d 149, 156-157 [8], and the relationship which actually exists will usually have some characteristics of the other. Horn v. Asphalt Products Corp., Mo.App., 131 S.W.2d 871, 872. If the cases are considered topically, there seems to have been a tendency to classify unsupervised salesmen of insurance, automobiles and the like as independent contractors, unless they are on salary or perform some fixed services. 1A Larson, Workmen’s Compensation Law, Section 45.23, pp. 664-665 (1966). At the same time the precedents are not uniform, and there is no fixed rule of law which will serve to determine all cases of this type. Celaya v. Edwards, 71 Ariz. 178, 225 P.2d 41, 42 [1].

The claimant’s evidence, taken as true, did tend to show some of the indicia of the relationship of master and servant. His testimony was that he had been furnished with an automobile, sales literature and price lists for use in his work, and the ownership of the instrumentalities used in the work may indicate that the owner is a master, especially if the instrumentalities are of substantial value. 1A Larson, Workmen’s Compensation, Section 44.34, pp. 650-653; Restatement (Second) of Agency, Section 220, Comment k, and Illustration 6, pp. 490-491. However, there was substantial evidence from which the Industrial Commission could have found that Mr. Griffin mortgaged and insured the car as his own, and that he applied for a title in his own name. It is true that Mr. Griffin went on to testify that he was under the impression that the mortgage was a “demonstrator contract” when he signed it, and that he was only supposed to continue making payments until the automobile was sold at retail, but the Commission was the judge of the weight to be given conflicting testimony, and if conflicting inferences were permissible, the Commission had a choice. Shrock v. Wolfe Auto Sales, Mo., 358 S.W.2d 812, 815; Conley v. Meyers, Mo., 304 S.W.2d 9, 12. Likewise, the claimant’s testimony that he was required to be present at the Sinks garage every Saturday tends to establish fixed hours of employment, and to that extent indicates the relationship of master and servant, as does assignment to a specific territory. Restatement (Second) of Agency, Section 220, Comment h, p. 489. However, the claimant’s evidence of the fact of his employment by Sinks was flatly contradicted by Mrs. Sinks, who testified that she, and not Meredith, was in charge of hiring and firing at Sinks Ford Sales, and that she neither employed Mr. Griffin as a salesman nor at any time authorized his employment. The force of claimant’s testimony concerning his arrangements with Mr. Meredith was undoubtedly weakened by the fact that Mr. Meredith, having been called as a witness and having been sworn, was allowed to step down without interrogation by the claimant, who called him. As with the ownership of the automobile, the Commission was presented with conflicting evidence, and it was for the Commission to judge the credibility and weight of the evidence and resolve the conflict.

On the other side of the scale, so to speak, and in our view determinative of the case, is the claimant’s own description of his method of operation and the characteristics of his job. Mr. Griffin’s statements in his pre-trial deposition, parts of which were offered and received in evidence without objection, were to the effect that he was to “just go out and see people, any prospect and anybody that I had in mind I thought maybe I might could sell a car to or somebody tipped me off to * * The claimant would then “talk up the deal and if they was interested in trading and I could get them to come in why Jack Meredith was supposed to appraise their trade-in if we could get together on a deal.” Mr. Griffin paid his own expenses in connection with his automobile; he continued to operate his cafe; he received a commission, but no salary; and he had no regular hours of employment in the sense that he “wasn’t required to work no certain amount of hours.” Mr. Griffin had no authority to make a sale, but was authorized only to bring about contractual relations between Sinks Ford Sales and others on his own initiative and by his own methods, or so the Commission could have found. Cf. Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 638, 117 S.W. 2d 252, 256 [6], 116 A.L.R. 1381, 1387. In cases which we consider analogous and persuasive if not absolutely controlling, it has been said that a salesman who works entirely on a commission basis, the employer reserving only general control over him, as for example with respect to the territory and the price at which he may sell, the salesman being otherwise in control of the methods and means of doing his work, will, as a general rule, be held to be an independent contractor. Kickham v. Carter, Mo., 335 S.W.2d 83, 87; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 569-570, 108 S.W.2d 58, 62 [5]; Hackler v. Swisher Mower & Machine Co., Mo.App., 284 S.W.2d 55, 59. See also Restatement (Second) of Agency, Section 220, Illustration 7, p. 491. We are only called upon to determine whether the Industrial Commission could reasonably have made the findings and award under consideration, and whether such findings and award are clearly contrary to the overwhelming weight of the evidence, not whether a contrary conclusion might be permissible. Conley v. Meyers, supra, Mo., 304 S.W.2d at 10 [2]; Johnson v. Simpson Oil Co., Mo.App., 394 S.W.2d 91, 97-98 [12], Since we conclude the Commission could reasonably have found that the claimant was an independent contractor and not an employee, the judgment is affirmed.

STONE, P. J„ and TITUS, J„ concur.


author: OSCAR SAMMONS, Special Commissioner.

text:
    Kenneth YOUNG, Appellant, v. Ruth I. YOUNG, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1967.
    Rehearing Denied May 12, 1967.
    Clinton R. Burroughs, Oldham, Bur- . roughs & Miller, Louisville, for appellant.
    Martin F. Sullivan, Jr., Louisville, for appellee.
   OSCAR SAMMONS, Special Commissioner.

The facts of this case are not in dispute. On March 9, 1956, a divorce judgment was entered between the appellee, Ruth I. Young, (now Ruth I. Colbert), and the appellant, Kenneth Young. The custody and control of the two children was awarded to appellee. The judgment made no mention of support for the two children. Kenneth Young has, however, made contributions toward the support, education and maintenance of the two children.

At the time the motion for a rule was instituted, Ester was 20 years of age and Sharon was 17 years of age. The rule was returnable July 20, 1965. Sharon became 18 years of age on August 17, 1965. The chancellor, on December 7, 1965, ordered appellant to pay the sum of $25.00 per week for the support of the two girls, effective July 20, 1965, and to continue paying the same until changed by order of the court.

The statutes applicable to this case are KRS 405.020(1) and KRS 403.070.

KRS 405.020(1) reads as follows:

“The father and mother shall have the joint custody, nurture and education of their minor children. If either of the parents dies, the survivor, if suited to-the trust, shall have the custody, nurture and education of the minor children. The father shall be primarily liable for the nurture and education of his minor children.” (Emphasis added).

KRS 403.070 provides:

“Pending an application for divorce, or on final judgment, the court may make orders for the care, custody and maintenance of the minor children of the parties and any of their children of unsound mind. * * * ”

The early opinions of this Commonwealth held that a parent had no legal obligation to support his child after it reached its majority, which was twenty-one years of age. See Commonwealth v. Willis Exr., 7 Ky.Law Rep. 677; Central Kentucky Asylum for Insane v. Knighton, 113 Ky. 156, 67 S.W. 366. The rule was relaxed, however, in Crain v. Malone, 130 Ky. 125, 113 S.W. 67, 22 L.R.A.,N.S., 1165 and Brewer v. Dowden, 207 Ky. 12, 268 S.W. 541, 42 A.L.R. 146, where it was recognized that a father may become liable for support of an adult child if the child is so weak in mind or body as to be incapable of care for himself.

Certainly, the two young ladies involved in this litigation do not come under the statutory requirement of “unsound mind,” nor the exception in the cases of being so weak in body or mind as to be incapable of caring for themselves.

This action was brought after KRS 2.015 became effective and it provides:

“Persons of the age of eighteen years are of the age of majority for all purposes in this Commonwealth except for the purchase of alcoholic beverages and for purposes of care and treatment of handicapped children, for which twenty-one years is the age of majority.”

The enactment of KRS 2.015 was within the realm of legislative powers and this court is without the power to amend, alter or change that which has been done by the legislature in the exercise of their duty. In the absence of a contract the legal obligation of a father to support his children terminate upon their reaching their eighteenth birthday. There may exist a moral obligation for a father to assist his children in acquiring a college education but this is not legally enforceable.

The circuit court had no authority to require the appellant to make payments for the support of either of the children after they reached eighteen years.

The judgment is reversed.

All concur.


author: OSBORNE, Judge.

text:
    Gilbert CARVER and Ernest Williams, d/b/a Williams Drug Company, Appellant, v. James SPILLMAN and Tommy Jones, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Rehearing Denied May 12, 1967.

      E. R. Gregory, Bowling Green, for appellant.
    Reginald L. Ayers, Bell, Orr & Reynolds, G. D. Milliken, Jr., Bowling Green, for ap-•pellee.
   OSBORNE, Judge.

This is an action to recover for personal injuries arising out of an automobile collision which took place on February 24, 1964, in Bowling Green, Kentucky, at the intersection of Highway 31-W bypass and 15th street. The appellant, Gilbert Carver, was ■driving in a northerly direction on Highway 31-W. He was following immediately behind the automobile of James Spillman and was being followed by the automobile •of Tommy Jones. The roadway was slightly inclined at the location of the accident but was straight. At the time of the accident it was daylight and the pavement was •dry.

Each car, as it approached the intersection, was traveling at approximately 30 miles per hour. The collision occurred approximately 100 feet to the north of 15th street. The first car, operated by Spillman, •came to a stop in the passing lane for the purpose of making a left turn into McDonald’s Restaurant. The second car owned by the appellants, Williams Drug Company, and operated by the appellant Gilbert Carver, came to a stop five to eight feet behind the Spillman car. The third car, operated by Tommy Jones, hit the rear of the second car and knocked it into the front car. The appellant, Carver, driver of the second car, instituted suit against appellees Spillman and Jones, alleging negligence on the part of both of the other drivers. The trial court directed a verdict for the appellee, Spillman, and submitted the question of Jones’ negligence to the jury. The jury returned a verdict for the appellant, Carver, awarding him $2035 for his medical bills and $1445.50 for loss of time from his employment, and $500 for his pain and suffering.

Appellants allege three grounds of error committed by the trial court. First, the court erred in directing a verdict for Spill-man and refusing to direct a verdict for appellants. Second, the verdict of the jury failed to make an award for permanent disability and made a grossly inadequate award for pain and suffering. Third, the court erred in admitting improper evidence as to the injuries of the appellant, Gilbert Carver.

We are of the opinion that the court was right in directing the verdict for the appellee Spillman. Spillman brought his car to a complete stop and appellant, Carver, stopped in a proper manner, and without difficulty, behind him. He testified as follows :

“A. I was driving in the left lane headed north and Mr. Spillman were (sic) in front of me. I won’t say how many feet but anyway he had his signal light on to show that he was going to stop. He come to a gradual stop and when I saw him stop why I come to a stop.”
“Q. 42. Now, how did you bring your car to a stop, Gilbert?”
“A. Gradually as Mr. Spillman did. I saw his caution light on and he was making a left-hand turn.”
“Q. 46. And how far was it from the Spillman car to your car at the time you came to a stop?”
“A. About seven or eight feet, something like that.”

From the above, it is clear that appellee Spillman had nothing to do with the collision and therefore the verdict directed in his favor was proper. See Illinois Central Railroad Co. v. Vincent, Ky., 412 S.W.2d 874, decided by this court on March 17, 1967. Also, Ellis v. McCubbins, 312 Ky. 837, 229 S.W.2d 992.

The next ground for reversal alleged by appellant is the inadequacy of the verdict. The injuries in this case are those commonly referred to as whiplash injuries. It is true that $500 appears to be a rather small verdict for any injuries of significance, however, there is doubt in the case as to the seriousness of appellant’s injuries. At the time of the accident, the patrolman, Mr. Claude N. Gray, was called to the scene and he stated upon examination that he could not observe any injuries to appellant. He testified that he asked appellant if he wanted to go to the hospital and that appellant replied that he did not.

Mrs. Edith Williams, wife of appellant Ernest Williams, for whom Carver worked, testified that when he was brought back to the drugstore he went home and did not go to the hospital. Appellant, himself admitted shortly after the accident he told appellee, Tommy Jones, he was not hurt. The accident took place on February 24, 1964. The appellant worked from April 13, to May 29, 1964, from seven o’clock in the morning until half past five in the evenings. He carried out his duties of delivering drugs, working at the soda fountain and mopping and cleaning as usual.

Following May 29, 1964, appellant did not again work until October 19, 1964, when he returned and worked until January 13, 1965. It is pointed out by appellees that the first time he quit work, after the accident, was shortly before he filed his suit in July of 1964 and that the second time that he quit work was shortly before the case was set for trial on February 12, 1965.

Dr. Martin Wilson, who was one of appellant’s doctors, testified there were no broken bones and he could not eliminate arthritis as a cause of his trouble. Also, that as a doctor he must mainly rely upon what the patient tells him as to whether or not he is suffering pain. The appellant was examined by Dr. W. O. Carson, who is a qualified orthopedic surgeon. He testified the soreness should have gone out of appellant’s back and neck and ordinarily the injuries which he had would heal within three weeks; that the only disability found was moderate arthritic degenerative changes in the lower back and these existed prior to the accident and were not a result of the accident. It further appears in the record at the time of the trial appellant came into court holding his head at a rather rakish angle to one side; and, that Dr. Carson testified he could find no explanation for appellant holding his head in this manner.

Other lay witnesses testified they had observed appellant since the date of the accident and he did not carry his head at this angle when they observed him.

From the foregoing, we believe the jury could well conclude from the testimony that appellant’s injuries were slight or maybe superficial and could well have been of the opinion that $500 was adequate compensation. We are not prepared to say they were wrong. As to the appellant's next contention, that the court erred in admitting improper evidence, we have examined the evidence with care and even though it may have been incompetent, it was not in our opinion prejudicial.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    G. T. O’BRYAN, Appellant, v. MASSEY-FERGUSON, INC., Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1966.
    Rehearing Denied May 12, 1967.
    Thacker & Kramer, Bratcher, Rummage, Beard & Flaherty, Owensboro, for appellant.
    Humphreys, Jones & Short, Owensboro, for appellee.
   DAVIS, Commissioner.

After G. T. O’Bryan had obtained a verdict of $50,000 against Massey-Ferguson, Inc., the trial court set the verdict aside and entered judgment n. o. v. dismissing O’Bryan’s claim. CR 50.02. Upon this appeal O’Bryan urges that the judgment n. o. v. be set aside and that judgment in his favor be directed pursuant to the jury’s verdict. O’Bryan’s claim against Massey-Ferguson was based on alleged breach of “promises, representations and commitments made to the appellant in consideration of, and to induce, his signing up as a retail dealer” for Massey-Ferguson, to employ appellant’s explanation of the case.

It appears that appellant has been a retail dealer for Massey-Ferguson, and its predecessor companies, since 1950. His business establishment is located in Owens-boro. There have been several written contracts evidencing the dealership agreement; they have been in substantially the same terms. The contract that was current during the period pertinent to this litigation was dated November 10, 1960, the date it was executed by O’Bryan, and December 15, 1960, the date it was executed in behalf of Massey-Ferguson, by an officer of the company.

Our view of the case makes it necessary to examine two portions of the written agreement in detail. After an introductory paragraph in which the principal place of business of appellant is described as 1035 West Fourth Street, Owensboro, Kentucky, the contract continues in part as follows :

“1. SELLING RIGHTS OF COMPANY PRODUCTS

* * * * * * b. In consideration of the faithful performance by Dealer of the undertaking set forth herein, Dealer is hereby granted the right to purchase Company Products for the effective period of this agreement. The trade area tributary to Dealer’s principal place of business shall be considered the area in which Dealer is primarily responsible for development of the maximum volume of potential sales of Company Products. This area is not exclusive to Dealer and Company reserves the unrestricted right to sell Company Products to anyone, anywhere.”

Another significant portion of the written agreement states:

“4. GENERAL CONDITIONS:
b. Dealer acknowledges that no representations or statements have been made to him which would modify or tend to modify any of the provisions of this agreement in any way. All prior agreements and oral or collateral agreements heretofore or hereafter made and purporting to modify the provisions of this agreement shall have no force or effect. No representative of Company has authority to waive any provisions or to modify or to change the terms of this agreement excepting only by a supplemental written agreement executed by duly authorized Officer of Company and by Dealer.”

Without a detailed recitation of the evidence, we think it fairly states appellant’s contention to say that he adduced evidence (and for this purpose we will assume its verity) showing that he had always been assured by the several branch managers that his dealer-territory included Daviess, McLean, Hancock and Ohio Counties. These branch managers assured appellant that the company would not establish a dealership in any of the four counties without giving appellant the “first refusal” of such a dealership. These assurances to appellant were renewed in early 1960 (prior to the signing of the pertinent written contract) when Mike Gary assumed the branch manager’s duties.

In 1962, without any prior notice to appellant, a dealership for Massey-Ferguson products was established at Sacramento in McLean County. Published advertisements relating to the new dealership proclaimed that it had been established by Massey-Ferguson and that the new firm was established as Massey-Ferguson’s “franchised dealer for McLean, Hopkins and Muhlen-berg Counties.” Witnesses for the appel-lee had testified that the company had a policy which forbade establishment of exclusive or franchise dealers, and that no dealership arrangements were made in which specific territorial limits were designated. The published advertisement presented stout rebuttal of that testimony.

Appellant contends (1) that since the contract was silent on the matter of establishment of additional dealerships the pa-rol evidence rule is inapplicable; (2) that in any event the contract is so vague, uncertain and ambiguous as to be susceptible to different interpretations, so that parol evidence was admissible touching the issue of the true intention of the parties; (3) the contract should be construed against appellee since it was prepared by appellee; (4) the trial judge abused his discretion in sustaining the motion for judgment n. o. v.

It is observed that section 1-b of the contract specifically provided that the Company reserved the unrestricted right to sell company products to anyone, anywhere. We think that language is too clear to admit of extraneous explanation. “Unrestricted” means without limit; “anyone” is an all-encompassing pronoun which is broad enough to include a retail dealer; “anywhere” is as broad an area as can be imagined. These expressions shut the door on any contention that appellant obtained a territory in which he retained a veto power upon the company’s right to sell its products, whether to another dealer or “anyone” else.

Section 4-b of the contract very plainly provides that “all prior agreements and oral or collateral agreements heretofore or hereafter made and purporting to modify the provisions of this agreement shall have no force or effect.”

The alleged agreements upon which appellant relies were (1) oral, (2) prior to the date of the 1960 contract, (3) not made by an officer of the appellant, and (4) not incorporated into any subsequent written agreement. It is plain that these “side” agreements were specifically referred to in section 4-b of the contract. Appellant conceded that he knew of the contract’s provisions, but explained that he signed it on the theory that it was “sign or else.” In this circumstance we feel that there is no basis for exploring the pa-rol evidence rule. The explicit terms of the contract utterly forbid the very type of agreement upon which the appellant relies. In such state of case there is no choice except to enforce the contract as written. It is not contended that there was fraud in the inducement of the contract, nor is any attempt made to reform or rescind it. In the absence of ambiguity a written instrument will be enforced strictly according to its terms. Cf. Mounts v. Roberts, Ky., 388 S.W.2d 117; McMahan v. Hunsinger, Ky., 375 S.W.2d 820. The words are plain, and will be given their usual meaning. Bays v. Mahan, Ky., 362 S.W.2d 732.

Appellant directs attention to McDermott v. Byrley Supply Co., 234 Ky. 670, 28 S.W.2d 988, and contends that even if the trial court erred in admitting the parol evidence, since the evidence had been admitted the case was properly submitted to the jury, and no motion for directed verdict would avail appellee. The difficulty with this argument is that in the cited case, and others like it, the erroneously admitted evidence was relevant though incompetent. In the present case the parol evidence was not relevant. The term “relevant” as applied to evidence means that the evidence tends to establish or disprove an issue in litigation. “Where there is nothing in the issues presented to warrant the proof offered, it is properly excluded.” 20 Am. Jur., Evidence, Section 247, p. 241. In face of the express terms of the contract there was no issue relating to the side agreement upon which appellant relies; thus evidence touching that point bore no relation to any issue and was not relevant.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Corporation, Appellant, v. G. C. BILITER, Administrator of the Estate of Hogan Billter, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1967.
    Rehearing Denied May 12, 1967.

      Porter M. Gray, John M. Williams, Gray, Woods & Cooper, Ashland, Donald Combs, Stephens & Combs, Pikeville, for appellant.
    F. Dale Burke and Francis M. Burke, Pikeville, for appellee.
   CULLEN, Commissioner.

Hogan Biliter, while engaged in the performance of his duties as a fireman for the Chesapeake & Ohio Railway Company, was killed in a wreck which resulted from subsidence of the roadbed under a stretch of track in the mountains of Pike County. He left surviving him his father and mother, who claimed dependency. On their behalf the instant action was brought by the father as administrator, under the Federal Employers’ Liability Act, U.S.C.A., Title 45, Section 56, to recover damages for loss of the pecuniary benefits which they reasonably could have expected to have received from their son. The case was tried by the court without a jury and resulted in a judgment for the parents in the amount of $18,600. The railroad has appealed, contending (1) culpable negligence on the part of the railroad was not established, either by direct proof or by permissible inference; (2) safety rules of the railroad erroneously were admitted in evidence; and (3) the damages are excessive. We shall consider these contentions in the order above stated.

The wreck occurred at 11:15 p. m. on March 11, 1963. There was a downpouring rain at the time and there had been heavy rainfall for a period of five days or more. The railroad tracks in the area where the wreck occurred ran along the toe of a mountain just above a river. The river had been rising during the period of the rains and had passed flood stage at the time of the accident, but had not yet crested. The waters flowed along and against the railroad fill. As the freight train on which Biliter was employed, consisting of two engines and 95 cars, was proceeding along the tracks in this area, at a speed of around 32 miles per hour, with the rain (in the engineer’s words) “coming down in sheets,” it came to a place where the fill was completely gone from under the tracks for a distance of 150 to 200 feet. The two engines and a large number of cars toppled into the river, causing Biliter’s death.

In finding the railroad liable the trial court held not only that negligence was inferable under the res ipsa loquitur doctrine, but that there was specific evidence of negligence in failure to make a close inspection of the roadbed, which inspection was required by the company’s own safety rules and could reasonably be considered to have been required by common law standards.

Considering that railroad trains ordinarily do not fall into rivers in the absence of negligence, we think this was an appropriate case for application of res ipsa loquitur. See Louisville & N. R. Co. v. Allen’s Adm’r, 174 Ky. 736, 192 S.W. 863; Propper v. Chicago, Rock Island and P. R. Co., 237 Minn. 386, 54 N.W.2d 840; Annotation, 35 A.L.R.2d 475; Vernon v. Gentry,. Ky., 334 S.W.2d 266, 79 A.L.R.2d 1. It may be conceded that the railroad showed conclusively that its roadbed was so constructed and maintained as to withstand normal attacks by the forces of nature, and therefore it overcame any inference of negligence as to construction. However, this did not overcome permissible inferences of negligence in other respects, such as the failure to take precautions against damage to the roadbed that might reasonably have been expected to result from an extended period of abnormally heavy rainfall. The railroad did not show conclusively that it could not have been negligent in continuing to operate heavy trains over its tracks in a flooded area without close inspection for possible washouts. See Vernon v. Gentry, Ky., 334 S.W.2d 266, 79 A.L.R.2d 1; Lee v. Tucker, Ky., 36S S.W.2d 849, and Bell & Koch, Inc. v. Stanley, Ky., 375 S.W.2d 696, as to what is required to overcome res ipsa loquitur.

Even if res ipsa were considered not applicable, we agree with the trial court that under the conditions of extraordinary rainfall that had prevailed for more than five days, reasonable minds might conclude that ordinary care would require that a close inspection of the roadbed be made before each trip of a train through the flooded area. Admittedly, the appellant railroad had not made a close inspection of the tracks since the first day of the heavy rains, five days before the accident. The railroad argues that the normal observations made by the operating crews of the numerous freight trains that had traversed the tracks (six trains in the seven-hour period immediately preceding the accident and six more in the previous 17 hours) constituted an adequate inspection; that these observations disclosed no “soft spots or bumps” which normally would have shown up if subsidence were commencing. It is our opinion that reasonable minds could conclude that as the rains continued to fall with increased intensity, the river continued to rise, and the railroad continued to operate heavy freight trains over the tracks, ordinary care would require more minute and close inspection of the roadbed. The heavy traffic might well have contributed to a subsidence in these conditions.

This brings us to the question of the admissibility and effect of the safety rules of the railroad, the pertinent parts of which were:

“During heavy storms or abnormal weather conditions, whether by day or night * * *
“The Foreman must detail to each trackman a definite portion of the road to patrol, so that his entire section will be protected, the foreman proceeding to that portion of his section most liable to damage.
“Foremen must see * * * that each trackman carefully patrols the portion of road assigned to him, inspecting the track, bridges, culverts, embankments, slopes of cuts * * *. Sharp lookout must be kept for evidence of washing out of the ballast and roadbed under the tracks, * * * the cutting into and sloughing off of embankments, the sliding in of earth and rock from slopes * * *

Admittedly the railroad did not comply with this rule. The railroad suggests that it was a matter of judgment whether the storm was “heavy” or the weather conditions “abnormal,” but we think the conditions obviously and unquestionably fell within these definitions.

In arguing that the rules should not have been admitted in evidence the railroad cites Current v. Columbia Gas of Kentucky, Ky., 383 S.W.2d 139, which dealt with admissibility of an employer’s safety rules in an action by an injured stranger. Here the action arises out of injury to and death of an employe. Clearly, in such an action, the rules of the employer are admissible, and constitute a standard of care. 56 C.J.S. Master and Servant § 272, p. 1037; 57 C.J.S. Master and Servant § 513, p. 100; Renaldi v. New York, N. H. & H. R. Co., 2 Cir., 230 F.2d 841, 59 A.L.R.2d 1371. (It is conceivable that rules of the kind here involved would have been admissible even in an action by a nonemploye, under our Current case, as dealing with activities not within the general realm of common experience.) We think the rules properly were admitted in evidence and that the evidence of their violation warranted a finding of negligence of the railroad.

It is argued by the railroad that negligence alone, in regard to inspection, is not enough to impose liability; there must be proof of proximate cause; and here there was no such proof because there was nothing to show that a careful, minute inspection would have disclosed that a washout was imminent. It is argued that an inspection two hours before the time of the accident would have met all requirements of care and there is no evidence that an inspection at that time would have disclosed the danger.

If this case be rested on res ipsa loquitur (as properly it may be) there is a built-in inference of proximate cause, because the very application of the doctrine is predicated on the inference that the accident was caused by negligence. In Propper v. Chicago, Rock Island & P. R. Co., 237 Minn. 386, 54 N.W.2d 840, where the facts were very similar to those here, and the res ipsa loquitur doctrine was applied, the court held that there was an inference that a proper inspection would have disclosed the dangerous condition of the roadbed.

Aside from res ipsa, we think it is most reasonably inferable that had the railroad complied with its own rule, and stationed trackmen at intervals along the track to carry on a continuous patrol of inspection, the subsidence would have been discovered in time to avert the accident.

Even if both res ipsa and the rules of the company be put aside, we think the railroad cannot fairly be heard to argue that it should not be liable for a total failure of inspection because maybe an inspection would not have been effective.

The railroad suggests that the accident was an “Act of God”. In view of the fact that the washout here involved did not occur in the course of a sudden cloudburst or flash flood, but rather after an extended period of heavy rainfall, so that the railroad had reason to anticipate subsidence and had time to take precautionary measures, we think the defense of “Act of God” properly was rejected by the lower court. In an appropriate annotation on this subject in 62 A.L.R.2d 796, it is pointed out that ordinarily the action of natural forces, in order to be classed as an “Act of God,” must be of an unforeseeable and unpredictable character, the consequences of which could not be guarded against. In the annotation several cases from other jurisdictions are cited in which it was held that failure of a railroad to take proper safety measures during an extended period of heavy rains may warrant rejection of the “Act of God” defense. We agree with them.

Our conclusion is, then, that the railroad properly was held liable. However, it is our opinion that the damages are excessive.

This being an action under the Federal Employers’ Liability Act, the measure of damages is the commuted present value of the amount of pecuniary benefits which the dependents of the deceased employe had a reasonable expectation of receiving from him had he' not been killed. Louisville & N. R. Co. v. Young’s Adm’x, Ky., 253 S.W.2d 585. In the instant case the mother’s life expectancy was 15.72 years, and the father’s was 10.92 years. The award of $18,600 represented the commuted present value of contributions to the mother of approximately $110 per month, and to the father of approximately $34 per month, during their respective life expectancies.

The parents testified that the house in which they lived with their son, Hogan, was his house; he paid all of the household expenses and bought all the food; and he gave them around $100 per month for these purposes over and above the amount paid by him for utility services. However, un-contradicted evidence as to his earnings showed that during the fifteen years of his employment by the railroad (he was 44 years old when he died) his highest gross pay for any year was around $3,000, and for most of the years was considerably less; and that for several years his outlay for automobile purchases and operation was in excess of $100 per month. We think the evidence does not warrant a finding of reasonably expectable pecuniary benefits in excess of $100 per month for the parents, although we think these benefits might reasonably be expected to continue unreduced for the surviving parent after the death of one of them.

The parents argue that the house occupancy furnished to them by their son had a pecuniary value of around $100 per month. While they testified that the house belonged to the son the evidence strongly indicates that they paid for it, and at the very least they had life estates in it. Regardless of this, they were not deprived of this benefit by the son’s death because they inherited the house from him.

A contribution of $100 per month during the longest period of expectancy (that of the mother) — 15.72 years — would commute at four percent to approximately $13,750. In our opinion an award in excess of that sum must be considered excessive.

The judgment is affirmed as to liability but reversed as to damages, with instruction to reassess the damages.


author: STEINFELD, Judge.

text:
    Roy G. BROWN et al., Petitioners, v. Honorable W. R. KNUCKLES, Judge, Bell Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    March 31, 1967.

      Joe Nagle, Denham, Ralston & Nagle, Middlesboro, for petitioners.
    Julian H. Golden, Pineville, for respondents, Meyers and Carroll.
   STEINFELD, Judge.

Petitioners demand that the Circuit Judge be prohibited from proceeding in a suit brought by Roy Meyers and Curtis Carroll against Ralph Spade, Roy G. Brown and Tri-State Supply Company, Inc.

In a suit in the Bell Circuit Court Meyers and Carroll alleged that on April 21, 1965 they were engaged in construction work on property owned by Brown and that TriState Supply Company had charge of the construction. They claim that Brown, TriState and Spade, concurrently and jointly, were negligent in causing a wall to fall, resulting in severe injuries to Meyers and Carroll. The defendants in that action moved to dismiss “ * * * because of lack of jurisdiction over the subject matter, or, in the alternative, to hold this case in abeyance pending its adjudication before the Workmen’s Compensation Board * * * They supported the motion with a statement that Meyers and Carroll were employees of Tri-State; that Brown was an officer of Tri-State and entitled to the protection of the Workmen’s Compensation law; and that Tri-State had filed application before the Workmen’s Compensation Board for adjustment of the claims.

In the petition for writ of prohibition, in addition to the facts which we have just related, it is alleged that Tri-State had paid a substantial amount of money to both Meyers and Carroll; that the Workmen’s Compensation Board has “ * * * entered an order holding the case in abeyance until the circuit court * * * decided whether or not Carroll and Meyers were independent contractor or employees.” A substantial amount of proof was taken by deposition and various affidavits were filed to show the nature of the controversy.

Petitioners charge that they “ * * * have no adequate remedy by appeal or otherwise since they are ready, willing and able to litigate this matter before the Workmen’s Compensation Board * * * and readily admit that * * * Tri-State * * * through its insurance carrier, is liable to (Meyers and Carroll) in an undetermined amount before said Board.” They further contend that if they are forced to try the case in the circuit court they will be put to great expense, both there and before this Court, and then the matter will be returned to the Workmen’s Compensation Board for a determination. They assert that they are being deprived of rights which are guaranteed to them by Chapter 342 of the Kentucky Revised Statutes.

The response filed by the Circuit Judge, and the objection to the petition for the writ of prohibition, deny the claims above stated.

A writ of prohibition is an extraordinary remedy authorized by section 110 of the Kentucky Constitution. It is to be used by this Court “ * * * when the exigencies are so exceptional that no other remedy is adequate to prevent a miscarriage of justice.” Old Blue Ribbon Distillers, Inc. v. Holbert, 276 Ky. 687, 125 S.W.2d 253; Slaughter v. Smith, Ky., 316 S.W.2d 364. The order which the petitioners demand may be issued from this Court only when it appears that “ * * * the trial court (1) lacks jurisdiction or is proceeding beyond its jurisdiction, or (2) is proceeding erroneously within its jurisdiction and great and irreparable injury will result to the complaining party for which there is no adequate remedy by appeal or otherwise.” Commonwealth of Kentucky, Department of Highways v. Stahr, Ky., 351 S.W.2d 67.

The petitioners allege that the trial' court does not have jurisdiction over the subject matter. We do not agree. Kentucky Constitution 126; KRS 23.010; KRS 452.460.

It is claimed that irreparable injury will occur if there is no abatement until the Workmen’s Compensation Board acts. The alleged irreparable injury is the expense to be incurred in defending in the circuit court. Petitioners are in no different position from any other defendant who is put to the expense of contesting a claim. Slaughter v. Smith, supra. We do not find the aspect of injustice here which is necessary for prohibition. Schaetzley v. Wright, Ky., 271 S.W.2d 885. The remedy of appeal appears to us to be adequate. Wright v. Ropke, Ky., 393 S.W.2d 796.

The petition is denied.

All concur.


text:
    Lester C. ROOT, Appellant, v. JOHN DEERE COMPANY OF INDIANAPOLIS, INC., Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.
    Rehearing Denied May 12, 1967.

      Sutton & Martin, Corbin, for appellant.
    James E. Thompson, Richmond, for ap-pellee.
   STEINFELD, Judge.

This is an action to collect the balance of a debt. Summary judgment was entered for the creditor. The debtor appeals.

Lester C. Root bought a tractor and accessories for a total price of $13,400.00 from Anderson Sales and Service, a dealer. He paid $3,702.00 in cash and entered into a “Time Sale Agreement” in which he agreed to pay the balance in monthly installments. Among other things this agreement provided that it “replaces and has precedence over all prior contracts on the above equipment”. It also contained a “Warranty” which is the crux of this litigation. ,

The provisions which are pertinent here are as follows:

“The ‘warranty’ on the reverse side is expressly made a part hereof. Seller makes no other agreements or warranties express or implied.”

On the reverse side, as a part of the warranty, is found:

“Seller warrants each new John Deere machine to be free from defects in material or workmanship.”

The buyer agrees as follows:

“I (We) will settle all claims of any kind against SELLER directly with SELLER and if SELLER assigns this note I (we) will not use any such claim as a defense, setoff or counterclaim against any effort by the holder to enforce this instrument.”

Anderson assigned the “note” to John Deere Company of Indianapolis. Thereafter, Root made several payments and then defaulted. Deere repossessed the tractor and accessories, sold them and sued Root for the deficiency.

Root interposed two defenses. He claimed that Anderson Sales and Service was an indispensable party pursuant to CR 19.01 and that the failure to join Anderson was fatal. The trial court overruled a motion to dismiss. This ruling was correct. CR 19.01 does not apply. Deere, the as-signee was the real party in interest; therefore, it could sue in its own name. CR 17.01. Joining the assignor was unnecessary. 6 Kentucky Practice, Clay, page 293.

Secondly, Root argues that the following statement in the agreement is significant :

“I (We) acknowledge receipt of the items sold hereunder and consent to the warranty agreement on the reverse side hereof, which is expressly made a part hereof.”

He claims that Deere became obligated to fulfill the provisions of the warranty and that the tractor was defective. The trial court was not in error in entering the summary judgment for there is no merit in this defense. The latter quotation obviously is an agreement by Root and not Deere. Furthermore, Root agreed to seek redress from the SELLER for any breach of warranty and if the note was assigned not to “use any such claim as a defense against any effort'by the holder to enforce this instrument”.

Such an agreement is authorized by KRS 355.9-206(1), a provision of the Uniform Commercial Code. Similar provisions have been approved in Hieb Sand and Gravel, Inc. v. Universal C. I. T. Credit Corp., Ky., 332 S.W.2d 619 and Morgan v. John Deere Company of Indianapolis, Inc., Ky., 394 S.W.2d 453.

The statement that Root would NOT use such claim against the holder is a form of negative covenant and is valid. Davey Tree Expert Co. v. Ackelbein, 233 Ky. 115, 25 S.W.2d 62; Johnson v. Stumbo, 277 Ky. 301, 126 S.W.2d 165 and Vaughan, et al. v. General Outdoor Advertising Co., Ky., 352 S.W.2d 562.

The judgment is affirmed.

All concur.


author: WADDILL, Commissioner.

text:
    Margaret CHEAK, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF MENTAL HEALTH et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.
    Rehearing Denied May 12, 1967.
    John R. Elfers, Covington, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Elwood Rosenbaum, Rosenbaum & Sullivan, Lexington, for appellees.
   WADDILL, Commissioner.

In proceedings initiated by Margaret Cheak to obtain Workmen’s Compensation from her employer, Commonwealth of Kentucky, Department of Mental Health, the Workmen’s Compensation Board found that she “failed to prove that she received a traumatic injury by accident arising out of and in the course of her employment with the defendant that caused or brought about or contributed to the cerebral hemorrhage which she suffered on October 10, 1964.” The board’s order denying her compensation was upheld by the circuit court and she has taken an appeal to this court.

Mrs. Margaret Cheak, age 57, was employed as a nurse’s aide at the Frankfort State Hospital and School, which is operated by the Department of Mental Health. The testimony introduced in her behalf shows that on September 20, 1964, she was struck in the face, knocked to the floor and bitten on her breast by an unruly female patient. Mrs. Cheak continued to work at the hospital until October 10, 1964, when she was found unconscious in her home by her husband. Her physician, Dr. R. W. Hamm, was of the opinion that she had sustained a cerebral hemorrhage. She was hospitalized and four days later had a second hemorrhage which resulted in some aphasia and paralysis. Her condition has improved but she is unable to perform nursing duties. The physicians who have testified in this case agree that she is totally disabled for employment.

Appellant contends that the injuries she sustained when she was assaulted while at work had caused the cerebral hemorrhage and her subsequent disability. To support this contention she relies chiefly upon the testimony of Dr. Curwood Hunter who was employed to examine Mrs. Cheak only for the purposes of diagnosing her condition and testifying in this case. From the case history he obtained from Mrs. Cheak and her husband and the tests he conducted, Dr. Hunter stated that there was a direct causal relationship between the injuries she sustained on September 20, 1964, and the cerebral hemorrhage which occurred three weeks later. However, the board, in ruling upon obj ections to the competency of Dr. Hunter’s testimony, held that while he could express his opinion concerning the nature and extent of Mrs. Cheak’s disability he could not relate her disability to a work-connected accident. This ruling was correct since his opinion was based in part upon self-serving and hearsay statements related to him when he obtained Mrs. Cheak’s case history. Mary Helen Coal Corp. v. Bigelow, Ky., 265 S.W.2d 69; Chesapeake & Ohio Railway Co. v. Wiley, 134 Ky. 461, 121 S.W. 402.

Catherine Goins, who worked at the Frankfort State Hospital and School, testified that she observed a change in Mrs. Cheak’s conduct between September 20 and October 10, 1964, in that Mrs. Cheak complained of headaches and drowsiness. Another aide at the hospital, who saw the patient strike Mrs. Cheak, stated that this incident was not unusual as the nurses were often slapped by the patients, that Mrs. Cheak continued to work with her that day and made no complaint about it except to seek reimbursement for her broken glasses.

Dr. R. W. Hamm, who treated Mrs. Cheak during her illness, refused to relate Mrs. Cheak’s hemorrhages to an industrial accident and stated it was his impression that her cerebral hemorrhages, or strokes, were without regard to environmental circumstances.

Dr. Leslie Blakey testified that he could not definitely state that there was or was not a causal relationship between the assault and the strokes which Mrs. Cheak had sustained.

We conclude that the evidence introduced in behalf of Mrs. Cheak is not so convincing as to require us to disregard the findings of the board and to hold as a matter of law that her disability resulted from a work-connected injury. Kentucky West Virginia Gas Company v. Ritchie, Ky., 402 S.W.2d 704. In these circumstances we accept the conclusion reached by the board.

The judgment is affirmed.

All concur.


author: NORVELL, Justice.

text:
    COMMERCIAL BANK, UNINCORPORATED, OF MASON, TEXAS et al., Petitioners, v. Bill H. SATTERWHITE et al., Respondents.
    No. A-11540.
    Supreme Court of Texas.
    March 15, 1967.
    Rehearing Denied May 10, 1967.

      Lee & Lee, R. E. Lee, Mason, Barkley and Cutcher, James L. Cutcher, Taylor, Moursund & Ferguson, Thomas C. Ferguson, Johnson City, for petitioners.
    Morriss, Boatwright, Lewis & Davis, Will A. Morriss, Jr., San Antonio, for respondents.
   NORVELL, Justice.

This case is controlled by the construction of a power of sale contained in the will of David S. Satterwhite, father of Bill H. Satterwhite, and late husband of Mrs. Jeffie Henrietta Satterwhite.

Bill Satterwhite, respondent here, sued Commercial Bank, Unincorporated, of Mason, Texas, and his mother for reformation or cancellation of a general warranty deed executed by Mrs. Satterwhite to the bank. He also sought a decree establishing his asserted interest in the land covered by the deed and a partition. The deed was executed on February 28, 1962 and purported to convey the community interest of Mrs. Satterwhite and her deceased husband, David S. Satterwhite, in and to the Diamond S Satterwhite ranch (921.78 acres) in Bell County, Texas. Respondent alleged that Mrs. Satterwhite had made a gift to the bank; that the will did not authorize the making of such gift; that the consideration was wholly inadequate, and that a mutual mistake had been made in drawing the deed in that it was the intention of the parties that Mrs. Satterwhite’s one-half interest only should pass under the deed.

Both parties filed motions for summary judgment. The trial court sustained the bank’s motion, but the Court of Civil Appeals reversed and rendered judgment in respondent’s favor for an undivided one-fourth interest in the ranch. 402 S.W.2d 789.

David S. Satterwhite died in June of 1959 leaving as survivors his widow (a petitioner here), and their two sons, Bill H. Satterwhite (the respondent), and Clay T. Satterwhite. His will in part provided:

“Second. I desire to state that all of the property that I now own is the community property of myself and my wife, Jeffie Henrietta Satterwhite.
“Third. I give, devise and bequeath all of my property, both real and personal, that I may die possessed of, of every nature and kind after payment of my just debts, to my beloved wife, Jeffie Henrietta Satterwhite, to have and to hold the same for and during her natural life, to use as she sees proper, with remainder over and after her death to our two children, namely, Bill H. Satterwhite and Clay T. Satterwhite, and such other children as may be born to us, and their legitimate bodily heirs, share and share alike.
“Fourth. And my wife, Jeffie Henrietta Satterwhite, shall use her own judgment and pleasure in making any advances, loans or help to any of my children, and such advances, loans or help so made, shall be charged up to the one receiving same and shall be deducted in the final settlement. I furthermore give my wife full authority to sell, transfer and assign any portion of my estate, real or personal; the purchaser shall be under no duty to see that the proceeds to the sale are disbursed in accordance with this will.
“Fifth. In the event of my wife’s marriage, I desire and so will and direct, that all of my part of the estate on hand at the time of such marriage, be then divided equally among my surviving children or their legitimate bodily heirs.
“Sixth. I give all the rest and residue of my estate to my wife, Jeffie Henrietta Satterwhite, and the residue of my estate, in the event of my wife’s marriage, be then divided equally among my surviving children or their heirs”. (Italics supplied)

The will devised a life estate (terminable upon remarriage) in his one-half interest in and to the Diamond S Ranch to his widow with remainder over to his two sons, Bill and Clay. The fourth paragraph of the will vested in Mrs. Satterwhite a discretionary power to make advances and loans to the remaindermen. This same paragraph contained the disputed power of sale.

In late October of 1961, Mrs. Satterwhite entered into a contract of sale with petitioner bank and thereafter, in February of 1962, conveyed the ranch to the bank by general warranty deed for a recited consideration of $26,000.00. In April of 1962, she maried W. T. Chambers, but will be designated by the name she bore at the time of the execution of the deed to the bank.

The Court of Civil Appeals construed the fourth paragraph of the will as authorizing Mrs. Satterwhite to sell property belonging to her estate only in the event she “desired to make any advancements, loans or help to any of the children.” If this construction be accepted, then, upon her marriage to Chambers, her life estate terminated and Bill and Clay Satterwhite became the owners of their father’s interest in the ranch, as it is undisputed that the sale to the bank was not made for the purpose of making loans or advances to the children.

We are unable to agree with the holding of the Court of Civil Appeals that the power of sale set forth in the fourth paragraph of David S. Satterwhite’s will was so limited. The first sentence in said paragraph makes provision for loans and advancements to the Satterwhite children, but the seond sentence, while a part of the same paragraph, provides, “I furthermore give my wife full authority to sell”. The word “furthermore” means “in addition to what precedes”, Merriam-Webster’s Third New International Dictionary. The power of sale was a further authority vested in the widow in addition to the power to make loans and advances and is described in the will as a “full authority to sell”.

In Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948), this Court said:

“[T]he point need not be labored, for it has been definitely decided by this Court that under wills of similar effect as that before us, where the survivor takes a conditional fee, or even a life estate, with full power of disposition, he may dispose of the property as he sees fit during his lifetime. Hanna v. Ladewig, 73 Tex. 37, 11 S.W. 133; Young v. Campbell, Tex.Civ.App., 175 S.W. 1100, writ refused; Johnson v. Kirby, Tex.Civ. App., 193 S.W. 1074, writ refused; Feegles v. Slaughter, Tex.Civ.App., 182 S.W. 10, writ refused; Kilpatrick v. Cassel, Tex.Civ.App., 19 S.W.2d 805. * * *
“In the instant case the testators in language free of ambiguity have clothed the survivor with the unqualified right to convey the property during his or her lifetime and have limited the rights of the remaindermen to whatever estate remained in the survivor at his or her death, * * *

See also, Looney v. First National Bank of Floresville, 322 S.W.2d 53 (Tex.Civ.App.1959, writ ref’d n. r. e.), which presented a state of facts similar to that now before us.

The deed from Mrs. Satterwhite to the bank was executed by her “individually and as Executrix of the Estate of David S. Satterwhite, deceased”. It recites and acknowledges payment of a $26,000.00 cash consideration and purports to convey definitely described tracts of land. This deed, unless cancelled, set aside or annulled, constitutes a valid exercise of the power of sale vested in the life tenant and operates to defeat the rights of the remaindermen who except for the exercise of such power would take upon the remarriage of their mother. Simes, Future Interests, 2d Ed. (Hornbook Series) 20, § 11.

However, as above indicated, it is urged that the ranch involved was worth much more than $26,000.00 and hence a gift of at least part of the ranch was made to the bank. It is pointed out that a power of sale does not authorize the holder thereof to make a gift of the property. Essentially the same contention is urged on the theory of a failure of consideration. We cannot accept these arguments. Mrs. Satterwhite, the grantor in the disputed deed, is a petitioner in this case and is allied with the bank. She does not assert that she was induced by fraud to make the deed, or that she is entitled to rescission because of inadequacy of consideration or for any other reason. Bill Satterwhite does not hold under his mother and is not in privity with her. His position is that his mother made a gift of the ranch to the bank or in the alternative sold the same for a consideration so inadequate as to raise a presumption of fraud.

In our opinion, thq summary judgment evidence shows conclusively that no gift was intended by Mrs. Satterwhite. Her son, Clay, was in financial difficulties and owed a substantial amount of money to the bank. The title to the ranch had been clouded by a mortgage executed by Clay Satter-white, and recorded abstracts of judgments rendered against him also cloud the title because of his asserted interest in the property evidenced by the mortgage which he executed. The summary judgment evidence discloses that one offer for the sale was rejected by a prospective purchaser because of these clouds and asserted claims. Mrs. Sat-terwhite, according to her deposition, sought to clear up the situation and “get out of the whole thing”. The record demonstrates that neither she nor the bank considered that a gift was involved.

The argument with reference to the failure of consideration is somewhat similar. It is suggested that the $26,000.00 consideration paid Mrs. Satterwhite should be considered as a consideration for her undivided one-half interest and that some $17,000.00 received by the cancellation of debts owed by Clay Satterwhite should be considered as consideration for his interest. It is then concluded that no consideration was received for the interest of the respondent, Bill Satterwhite. We have heretofore held that the power of sale given to Mrs. Satterwhite by the will of her husband was not restricted to sales for the purposes of making advances or loans to members of the family. It follows that all rights which Clay Satterwhite and Bill Satterwhite had in and to the ranch were subject to the exercise of the power of sale by Mrs. Sat-terwhite. In this state, a power of disposition has been construed to be plenary. Hanna v. Ladewig, 73 Tex. 37, 11 S.W. 133 (1889) (power vested in the life tenant) ; Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876 (1948) (holder of defeasible fee coupled with power of disposition). It has been held that a power of sale as distinguished from a power of disposition does not include the right to make a gift, Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1 (1946), and hence is more restricted than a general power of disposition. We have rejected the theory of gift for the reasons above stated, and there remains only the contention relating to inadequacy of consideration. We need not determine in this case whether or not a sale made by a life tenant holding a plenary (“full authority”) power of sale may be attacked by a remainderman upon the ground that the consideration for the sale is so inadequate as to raise a presumption of fraud and would amount to a squandering of the estate to the prejudice of the remainderman. For inadequacy of price to justify the nullification of a sale, even between the parties thereto, it is essential that such inadequacy be extreme in view of the circumstances surrounding the transaction. Peyton v. Peyton, 271 S. W.2d 493 (Tex.Civ.App.1954, no writ), 10 Tex.Jur.2d 368, Cancellation of Instruments § 42. The inadequacy here, particularly in view of the clouded condition of the title, does not raise a presumption of fraud. And further, there is no offer to restore the status of the parties as it existed before the execution of the deed, nor any reason suggested as obviating that requirement except the contention that one-fourth of the ranch was actually the property of respondent. As heretofore pointed out, this argument is necessarily based upon an incorrect analysis of the title situation. Bill Satter-white held no estate in the land which could not be defeated by the power of sale vested in his mother.

There is also some contention that the deed from Mrs. Satterwhite to the bank should be reformed so as to convey only an undivided one-half interest in the ranch. Mrs. Satterwhite entered into a preliminary sales contract with the bank which referred to “all her right, title and interest in and to” the ranch. As stated heretofore, the deed executed by her purported to convey specifically described tracts making up the ranch. The words “right, title and interest” were not used in referring to the land conveyed. It is a rule of general application that in the absence of fraud, accident or mistake, all prior agreements entered into between the parties are considered merged in the deed. Barker v. Coastal Builders, Inc., 153 Tex. 540, 271 S.W.2d 798 (1954), citing Woods v. Selby Oil & Gas Co., 2 S.W.2d 895 (Tex.Civ.App., 1927, affirmed 12 S.W. 2d 994, on recommendation of Commission of Appeals), 19 Tex.Jur.2d 514, Deeds, § 190. Mrs. Satterwhite, the grantor of the deed, does not assert that through fraud, accident or mistake the deed failed to express the agreement of the parties. She seeks no equitable relief in connection with the instrument and there are no circumstances disclosed by the record under which Bill Satter-white could secure a reformation of the deed.

We have examined the points of the respondent contained in his brief in the Court of Civil Appeals where he was the prevailing party and they are overruled. What is said herein constitutes a sufficient discussion of them. It appears that there is another suit pending between Bill Satterwhite and his mother involving an accounting. We are not called upon and do not express an opinion as to the effect the judgment in this case may have upon said pending suit.

The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).