text:
    The STATE of Texas, Appellant, v. V. E. BERRY et ux., Appellees.
    No. 14359.
    Court of Civil Appeals of Texas. San Antonio.
    July 21, 1965.
    Waggoner Carr, Atty. Gen., T. B. Wright, Watson C. Arnold, Carroll R. Graham, Asst. Attys. Gen., Austin, for appellants.
    Park Street, James K. Gardner, Patrick J. Pape, San Antonio, for appellees.
   MURRAY, Chief Justice.

The State of Texas as condemnor brought this suit against V. E. Berry and wife, Lydia J. Berry, of San Antonio, Bex-ar County, to condemn the fee simple title, save and except the oil, gas, sulphur and other minerals, to approximately 5.4968 acres of land abutting upon Highway 90 East, now known as Interstate Highway 10. The subject property is located about 4.5 miles east of the Bexar County Courthouse; it fronts about 695 feet on Highway 90, and is about 320 feet deep on Green Valley Drive, the westerly boundary, and about 337 feet deep on the easterly side. The most easterly point of the property is approximately 626 feet from the intersection of Highway 90 East and Loop 13. Highway 90, now known as Interstate Highway 10, has been broadened and much of it has been built upon the subject property, so that at the present time the situation has been greatly changed, and it was in this condition at the time of the trial. In this case it was the taking of an entire tract and there was no issue of damages to any remainder.

The defendants admitted that plaintiff had the right to condemn the property, and that all prerequisites had been complied with, thus the only question to be decided was the market value of the subject property at the time it was taken on September 13, 1962.

The jury found that the market value of the property was the sum of $178,545.00, the highest value testified to by any witness, and judgment was rendered accordingly; from which judgment the State of Texas has prosecuted this appeal.

After the jury had been impaneled but before any evidence had been introduced, Mr. Park Street, leading counsel for the condemnees, proposed in open court and in the presence of the jury that the jury be sent, in charge of the court bailiff, to view the subject property, which request was not allowed by the trial court. The condemnor alleged that this was misconduct and moved for a mistrial, which was overruled by the court. It is contended that the overruling of this motion constituted reversible error..

The record shows that the following occurred in the presence of the jury, to-wit:

“MR. STREET: If the State wouldn’t object, we understand that it is permissible — if there is no objection — the owners would like to have the jury view the property with the very fine bailiff of the Court. We understand if there is no objection on either side it is permissible, and we — It would be our hope the Jury could view this property.
THE COURT: Let’s take that matter up out of the presence of the Jury. Right now we will excuse the Jury, and we will get into that later.
MR. STREET: Yes, sir.
(Whereupon the jury left the courtroom.)”

The State then made the following motion for a mistrial, to-wit:

“Comes now Plaintiff, State of Texas, and after the Jury has been impaneled and sworn, and before the introduction of any evidence and moves the Court to declare a mistrial and secure another Jury panel for the following reasons:
The attorney for the landowner, in open Court and in the presence of the Jury arose, stated to the Court that, ‘Unless it was objectionable by the State he desired that the Jury view the subject property,’ and he further stated that the law was if there was no objection by the State it was proper for the Jury to view the subject property. In this particular case, as attorney for the landowner well knows, * * * possession of the subject property has already been taken, and the subj ect property is in fact under a portion of the new highway or a portion of the north service road thereof. Therefore, it would be impossible to view the subject property as it existed on or about September 13, 1962, the date of taking. The offer made by the landowner’s attorney was made solely for the purpose of embarrassing the State and solely for the purpose of creating prejudice * * * in the minds of the Jury against the State, and leads the Jury to believe that the State, and the State only, is prohibiting them from seeing the subject property as it existed on the date of taking, and on the date of which they are to evaluate same. Such would tend to make the Jury believe that the State desires to hide from the Jury the condition of the property as of the date of taking, and would lead the Jury to believe the State is attempting to hide evidence from them and would, therefore, necessarily create prejudice against the State in the minds of the Jury.
Wherefore, premises considered, Plaintiff prays the Court declare a mistrial and secure another Jury panel from which a Jury may be selected in this case. Respectfully submitted.”

Thereafter, on the next morning, the following proceedings were had in the presence of the jury:

“MR. STREET: At this time the Defendants would like to withdraw the request that was made of the Court just before the Court adjourned for the evening yesterday.
The COURT: Alright.
MR. STREET: And we would appreciate it if the Court would instruct the Jury.
THE COURT: Gentlemen of the Jury, the Court instructs you that the only evidence to be received in this case will be received from the witness chair. That is the law, and we will have to go by the rules of evidence. Let’s proceed.”

It was stipulated that a portion of the service road of Interstate Highway 10 had been constructed and now exists upon the subject property, thus it is apparent that the condemnees knew at the time the jury view was proposed that the subject property was not in its original form but had been changed by construction thereon of Interstate Highway 10. It appears that the trial judge spoke up in time to save the con-demnor the embarrassment of having to object to the proposed jury view, but the trial judge did not take upon himself the full responsibility of denying the jury the privilege of viewing the property, he merely stated that the matter would be taken up out of the presence of the jury. When, in the presence of the jury the next morning, he granted the request of appellees to withdraw their request for a jury view, and instructed the jury as above stated, it could very well have created in the minds of the jury the impression that the matter had been taken up out of the presence of the jury, that appellant had refused to give its consent to a jury view, therefore, the only evidence the jury would receive would be from the witness chair. The judge expressed in no way that he disapproved of Mr. Street’s conduct, but rather seemed to regret that they would be compelled to follow the rules of evidence. It appears to us that appellant was placed in a rather embarrassing position. The jury could very easily have concluded, but for the failure of the appellant to agree, the jury would have been permitted to view the property, and that the appellant was concealing from them material evidence. All of this was calculated, at the very start of the trial, to incur good favor for appellees with the jury and bad favor for appellant.

It is admitted by appellees that it was improper for Mr. Street to have made the proposal of a jury view in the first place. There are many decisions in this State so holding. Woodrum Truck Lines v. Bailey, 57 S.W.2d 92 (Tex.Com.App.1933); Bradshaw v. White, Tex.Civ.App., 294 S.W.2d 736; Airline Motor Coaches, Inc. v. Campbell, Tex.Civ.App., 184 S.W.2d 532.

In Woodrum Truck Lines v. Bailey, Judge Joe Ryan, speaking for Section B, Commission of Appeals, said:

“In this state, however, since the Act of May 13, 1846 (2 Gammel’s Laws, p. 1669), under section 107 thereof (carried into the Rev.Stat.1925 as art. 2175), reading ‘all vouchers, views, essoins, and also trials by wager of battle and wager of law are repealed,’ all laws authorizing a trial by view were repealed, and we have no such practice. Galveston, H. & W. Ry. Co. v. Waples et al., 3 Willson, Civ.Cas.Ct.App. page 484, § 410. As said by Chief Justice Roberts in Smith v. State, 42 Tex. 444: ‘There is thus no authority found in this State for such a mode of enlightening * * * the jury as to the material facts of a case which they have to try.’ In Austin & N. W. R. Co. v. Cluck, 97 Tex. [172] 181, 77 S.W. 403, 64 L.R.A. 494, 104 Am.St.Rep. 863, 1 Ann.Cas. 261, Judge Brown calls attention to such repeal of the right of view under the common law.
“In Lovett v. State, 87 Tex.Cr.R. 548, 223 S.W. 210, it appeared that the jury, pending the trial, were permitted to visit the scene of a homicide and view the ground, its location and environments. In reversing a judgment of conviction Judge Davidson said that this character of conduct is not legally justifiable. To the same effect see Southern Traction Co. v. Wilson (Tex.Com.App.) 254 S.W. 1104; Hovey v. Sanders (Tex.Civ.App.) 174 S.W. 1025; Ft. Worth Imp. Dist. v. Weath-erred (Tex.Civ.App.) 149 S.W. 550; Texas Mid. R. R. v. Brown (Tex.Com.App.) 228 S.W. 915; Letsinger v. Panhandle & S. F. R. Co. (Tex.Civ.App.) 286 S.W. 1107; Southern Traction Co. v. Wilson (Tex.Com.App.) 254 S.W. 1104.
“As correctly said by the Court of Civil Appeals: ‘Manifestly, it would have been error for the court to grant the request of defendant’s counsel to have the jury go out and view the place of the accident with its surroundings.’ ”

In Bradshaw v. White, supra, the Court said:

“It has been held both before and since the adoption of the 1941 Rules of Civil Procedure that an offer such as was made by appellee constitutes reversible error: Woodrum Truck Lines v. Bailey, Tex.Com.App. 1933, 57 S.W.2d 92; Crow v. Levine, Tex.Civ.App. Fort Worth, 1942, 165 S.W.2d 117, writ ref., w. o. m.; Airline Motor Coaches v. Campbell, Tex.Civ.App. Beaumont, 1944, 184 S.W.2d 532, writ ref., w. o. m. See also City of Denton v. Chastain, Tex.Civ.App. Fort Worth 1941, 156 S.W.2d 554; Railway Express Agency v. Spain, Tex.Civ.App. Austin, 1952, 249 S.W.2d 644; Id., 152 Tex. 198, 255 S.W.2d 509.”

Appellees cite the cases of Musgrave v. Carrol, Tex.Civ.App., 364 S.W.2d 868; Airline Motor Coaches, Inc. v. Fields, Tex. Civ.App., 159 S.W.2d 187; American Nat. Ins. Co. v. Hammond, Tex.Civ.App., 91 S.W.2d 432, but we do not regard them as controlling here. In those cases, when the proposal for a jury view of the premises was made, the trial court spoke up at once, accepted the full responsibility for denying such proposal, and did not leave the opposing counsel in the position of having objected to the jury viewing the premises involved.

Appellees contend that the judgment should not be reversed and the cause remanded, in view of the provisions of Rule 434, Texas Rules of Civil Procedure, unless we can say from the entire record that the conduct of Mr. Street in proposing the jury view was of such a prejudicial nature as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. We conclude that this improper conduct of Mr. Street in requesting a jury view was of such a prejudicial nature as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.

There were a number of expert witnesses who testified to the market value of the subject property, and they placed the value all the way from $74,500.00 to $178,450.00. The jury found the fair market value to be $178,450.00, the highest amount testified to by any witness. This was more than three out of four of appellees’ expert witnesses had testified to be the market value of the property. It was $28,450.00 more than testified to by Bert Fry; $28,758.00 more than the value given by G. J. Luc-chese, and $10,950.00 more than was given by the expert Lewis Lipscomb; and when you come to the testimony of the experts placed on the witness stand by appellant, we find it was $102,700.00 more than the expert George A. French; $103,600.00 more than Willis A. Porter, and $99,950.00 more than the expert Nelson Cory.

There is no explanation for the jury’s conduct in accepting the highest figure given by all of the witnesses as their verdict, other than that they were prejudiced against the State.

In view of the fact that this case must be remanded for. a new trial, there is no reason for discussing the other points raised by appellant, as these matters probably will not arise upon another trial, at least not in the same manner and under the same circumstances.

For the error pointed out, judgment of the trial court will be reversed and the cause remanded for a new trial.

CADENA, J., not participating.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    C & R TRANSPORT, INC., et al., Appellants, v. Brinkley CAMPBELL, Appellee.
    No. 150.
    Court of Civil Appeals of Texas. Tyler.
    July 15, 1965.
    Rehearing Denied Sept. 16, 1965.
    Herbert Boyland, Kenley & Boyland, Longview, for appellants.
    Gordon Wellborn and Rex Houston, William W. McNeal, Henderson, Fred Eris-man, Longview, for appellee.
   SELLERS, Justice.

Brinkley Campbell brought this suit against C & R Transport, Inc., and James H. Robbins to recover personal injury damages to himself and for damages to his truck. The case was tried to a jury and resulted in the trial court entering judgment for Campbell in the sum of $13,507.84.

The collision took place on Highway 80 between Gladewater and Longview, about 10 or 11 o’clock in the morning, on a bright sunny day. Both vehicles were traveling east. The Campbell car was a pickup truck and was in front of the C & R Transport truck, driven by its employee, James H. Robbins. The C & R Transport truck was heavily loaded. The evidence shows the weight to be some 72,000 pounds. The evidence is to the effect that Campbell was operating his pickup truck in the south lane of the four-lane highway, driving east at about 35 miles per hour. The defendants allege and offered proof by the driver of its truck that its truck topped a hill while it was traveling east on Highway 80 and saw the plaintiff’s truck on the shoulder of the highway; and after its truck was too close to the pickup to avoid a collision, the pickup pulled out into the path of the defendants’ truck. This issue was submitted to the jury and the jury found that Campbell did not drive his pickup truck from the shoulder of the highway onto the highway immediately before the collision, and there lies the trouble with this lawsuit.

The defendants further plead that Campbell failed to keep a proper lookout on the occasion in question and that his failure to do so was the proximate cause of the collision. This issue was answered by the jury in favor of the defendants. The jury also found the defendants failed to keep a proper lookout, which was the proximate cause of the accident. Both parties filed motions for judgment based upon the jury’s verdict. The motion of the plaintiff was that there was no evidence to sustain the jury’s finding that Campbell failed to keep a proper lookout, and the court should disregard the jury’s finding on that issue and enter judgment for the plaintiff. The court granted this motion and entered judgment for plaintiff Campbell, to which the defendants excepted and the appeal is properly before this court.

The appellants at page 3 of their brief state:

“This appeal is confined to the sole question of whether or not there was any evidence to support a jury finding that Plaintiff failed to keep a proper lookout and such failure was a proximate cause of the accident.”

It is settled in this state that a motorist is not ordinarily required to keep a lookout for traffic approaching from his rear. Le Sage et al. v. Smith et al., Tex.Civ.App., 145 S.W.2d 308; Caraway v. Behrendt et ux., Tex.Civ.App., 224 S.W.2d 512; Bass et ux. v. Stockton et al., Tex.Civ.App., 236 S.W.2d 229; Kuykendall et al. v. Doose, Tex.Civ.App., 260 S.W.2d 435; Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481.

The only evidence in this record that will prevent the above rule from applying is that of the driver of the truck of appellants that the appellee was driving his truck onto the highway from the shoulder of the same at a time and place which prevented him from avoiding the collision. This issue was submitted to the jury and the jury found that this did not happen and the trial court was bound by that finding.

The situation here is no different in principle than that in the case of Bass v. Stockton, supra, in which the defendant alleged and testified that the plaintiff failed to give a hand signal notifying the cars following of her intention to stop. The jury found that appellee failed to prove that allegation. Mrs. Bass testified that she did give the signal. Upon this finding, the court holds:

« * t- *
“Appellees pleaded that Mrs. Bass had failed to give a hand signal notifying the cars following her of her intention to stop. The jury found that appellees failed to prove this allegation. Mrs. Bass testified that she did give a hand signal.
« * * *
“It seems that Mrs. Bass’ omission, if any, was in failing to observe the Stockton car in her rear vision mirror. Since she stopped her car in conformity with the provisions of the law and it was not shown that she failed to give a proper signal to the car following her, ih is clear that the jury’s answer to the proximate cause issue is likewise without sufficient support in the evidence. * * * ”

This is not a case in which appellee was in the act of turning to the right or left or stopping. Appellee was struck with great force from the rear and no complaint is made on this appeal as to the extent of his injuries. This court is of the opinion that the trial court’s action in disregarding the findings of the jury that ap-pellee failed to keep a proper lookout and that such failure was the proximate cause of the accident because such findings are without support in the evidence, and for this reason the judgment of the trial court is affirmed.


author: WILLIAMS, Judge.

text:
    James H. FRAZEE, Individually, etc., et al., Appellants, v. CITIZENS FIDELITY BANK & TRUST COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    June 26, 1964.
    As Modified and Extended on Denial of Rehearing July 2, 1965.
    As Modified Sept. 15, 1965.

      Wilbur Fields, Louisville, for appellants.
    Thomas W. Bullitt, Lee Curd Miller, Bullitt, Dawson & Tarrant, Louisville, for Citizens Fidelity Bank & Trust Co.
    James W. Stites, Stites, Peabody & Helm, Louisville, for Kentucky Trust Co.
    Squire Ogden, Ogden, Brown, Robertson & Marshall, Louisville, for Louisville Trust Co. and Lincoln Bank & Trust Co.
    Ben F. Washer, Joseph J. Kaplan, Louisville, for Liberty Nat. Bank & Trust Co.
    F. Trowbridge vom Baur, Washington, D. C., amicus curiae.
    Bert T. Combs, Lexington, Robert E. Hatton, Louisville, amici curiae on petition for rehearing.
   WILLIAMS, Judge.

This is a contempt proceeding seeking injunctive relief and penalties against five trust companies for the unauthorized practice of law in performance of their fiduciary services. As fiduciaries, the trust companies, through salaried lay and legal employees, appear in probate court, draft all necessary papers and make final settlements of a number of estates without other legal counsel. They solicit fiduciary business through the local news media and occasionally refer to the value of legal aid in drafting wills or in preparing an estate plan. Tax and estate publications are sent to many customers. Some of the materials focus upon the ability of the trust company to analyze, plan and suggest possible improvements in estates of prospective customers.

The circuit court held the activities of the trust companies, except for certain language in the advertisements related to planning of estates, were not condemned by Hobson v. Kentucky Trust Co. of Louisville, 303 Ky. 493, 197 S.W.2d 454 (1946). The Bar Associations appealed.

The appellants contend that the trust companies have been practicing law as prohibited by our opinion in Hobson v. Kentucky Trust Co. of Louisville, supra, and subsequent opinions of this Court. The trust companies rely upon Hobson as specifically permitting the activities complained about here. Moreover, it is argued, the legislature has provided that a fiduciary is not required to be represented by an attorney. KRS 395.145.

Practice of law is defined in RCA 3.020 as follows:

“ ‘The practice of law’ is any service rendered involving legal knowledge or legal advice, whether of representation, counsel, advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor.”

The basic consideration in suits involving unauthorized practice of law is the public interest. Public interest dictates that the judiciary protect the public from the incompetent, the untrained, and the unscrupulous in the practice of law. Only persons who meet the educational and character requirements of this Court and who, by virtue of admission to the Bar, are officers of the Court and subject to discipline thereby, may practice law. The sole exception is the person acting in his own behalf.

Although an inferior court in the judicial system, the county court is no less subject to general control by this Court than other courts. Legal rights and obligations are as much at stake in county court as in other courts. Appellees’ description of probate practice as merely filling out forms and adding figures belies the fact that what may appear simple to the untrained may be highly complex and determinative in its effect upon the legal rights or obligations of those involved. (Simplicity is not the test anyway; if it were, drafting of deeds, wills and trusts which appear simple would not be practice of law.) If any individual or corporation, not having a beneficial interest, were permitted to invoke jurisdiction of the probate court, the public could become prey to the solicitations of the untrained and unscrupulous, and the court would be without adequate or effective control of practice before it.

Since our opinion in the Hobson case, we have held that preparing and filing petitions for probate of wills, appointment of administrators and final settlement in county court, is unauthorized practice of law when done voluntarily by persons without a beneficial interest in the corpus of the estate. Carter v. Brien, Ky., 309 S.W.2d 748 (1956); Winkenhofer v. Chaney, Ky., 369 S.W.2d 113 (1963). Fiduciaries are in no different position, with respect to practice of law, from the defendants in the Brien and Chaney cases. The “party” who is excepted from the definition of practice of law in RCA 3.020 is one who has a beneficial interest in the estate administered by the fiduciary.

Faced with our constitutional responsibilities and in view of the public interest, we conclude that invoking the jurisdiction of the county probate court through pleadings or appearances is the practice of law. Consequently, when probate or fiduciary documents are filed in the probate court or other court of record by a corporate fiduciary, they must be in the name and by the authority of a licensed attorney, except as otherwise herein provided. Of course, a corporation may not engage in the practice of law through salaried attorneys even as an incident to its commercial business. See Kentucky State Bar Ass’n v. First Fed. Savings & Loan Ass’n, Ky., 342 S.W.2d 397, 85 A.L.R.2d 178 (1961), and cases cited therein.

We are strengthened in our conclusion by many decisions from our sister states. For example, in Michigan, practice in county court on a probate matter is practice of law no less than in any other court. Grand Rapids Bar Ass’n v. Denkema, 290 Mich. 56, 287 N.W. 377 (1939). And in Minnesota, such practice, except by a person acting in his own behalf when he is a party thereto, must be done by a regularly licensed attorney. In re Otterness, 181 Minn. 254, 232 N.W. 318, 73 A.L.R. 1319 (1930). In Arkansas Bar Association v. Union National Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408 (1954), it was held that a bank appearing in court through its salaried attorneys in connection with the administration of estates and trusts in which it had been named fiduciary was engaged in the unauthorized practice of law. The Supreme Court of Arkansas said:

“ * * * an individual or a corporation * * * is not looking after its own business when, acting as an administrator, an executor, guardian or in a similar fiduciary capacity, it undertakes to use the processes of the courts of this state in administrating and settling the affairs of its cestui que trust

Under Kentucky’s form of government, the judiciary is a distinct department of governmental power (Kentucky Constitution, Sec. 27) ; this power may not be exercised by the other departments of government. Kentucky Constitution, Sec. 28. The Court of Appeals has been delegated the responsibility of general control of inferior jurisdictions. Kentucky Constitution, Sec. 110. The power to define the practice of law and supervise the judicial system rests in the judiciary. KRS 30.170. The Rules of the Court of Appeals supersede all laws in conflict therewith. KRS 30.170(2). Thus, insofar as KRS 395.145 provides that “no fiduciary shall be required to be represented by an attorney,” it is ineffectual and superseded by the Rules of this Court.

This Court is not unaware of the uncertainty created by the Hobson, Brien and Chaney cases. Subject to various interpretations, the Hobson opinion was cited by both parties in support of their positions. In view of these circumstances, we are not constrained to assess a fine, but the appellees are permanently enjoined from practicing law as defined herein. The Hobson opinion is overruled to the extent that it may be inconsistent with our opinion in this case.

The trial court entered a declaration of rights with respect to advertising, wherein it was stated:

“It is specifically declared that the defendants do not have the right to advertise their services in such manner as to assert the claim that they or their officers are (independent of specific advice from lawyers) authorized or permitted to plan, or make suggestions for the savings to be effected by the planning of, the legal aspects of estates of decedents or the settlors of voluntary trusts.”

This ruling is affirmed and the appellees permanently enjoined from any advertising inconsistent therewith.

This Court recognizes the administrative problem surrounding this controversy. State and national organizations, representative of the parties hereto, have likewise recognized these problems and have undertaken a solution calculated to be in the best interest of the public in general and their clients in particular.

The Standing Committee on Unauthorized Practice of the Law of the American Bar Association and the Executive Committee of the Trust Division of the American Bankers Association have adopted a Statement of Policies in a joint effort to establish the rights, duties, and obligations of both in their transactions and representations of the public. This opinion is extended to include the following declaration of policies contained in those agreements.

Trust institutions shall neither perform services which constitute the practice of law nor otherwise engage in such practice; therefore, they shall not draw wills or other legal documents or perform services in the administration of estates and trusts where such acts by law are considered the practice of law.

The development of trust business by a trust institution shall be on the basis of assistance to the customer in the use of the institution’s trust services and facilities as related to his business or financial matters.

In all legal questions which may arise in the development of trust business, the trust institution shall advise the customer to confer with a lawyer of his own choosing.

The trust institution shall respect and not interfere with the professional relationship existing between an attorney and his client, and an attorney shall respect and not interfere with the business relationship existing between a trust institution and its customer. It is recognized, however, that in all cases the interest of the client is paramount. An attorney shall not seek to displace the institution of the client’s choice by inducing the appointment of some other institution or individual unless the client’s affairs demand services peculiar to some particular institution or individual, or unless it appears that the true interest of the client will suffer if such substitution is not made.

If the trust institution is requested by its customer to recommend counsel, any counsel so recommended shall be in a position to advise the customer disinterestedly, and it is preferable that the trust institution, when making such recommendations of counsel to its customer, submit, without recommending one above another, the names of several attorneys in whom it has confidence, leaving the choice of the selection to the customer.

A trust institution, qualified and authorized by law as a legitimate business enterprise, has an inherent right to advertise its trust services in appropriate ways. It shall not, directly or indirectly, offer to give legal advice or render legal services, and there shall be no invitation to the public, either direct or by inference in such advertisement, to bring their legal problems to the trust institution. Its advertisement shall be dignified and the qualifications of the institution shall not be overstated or overemphasized, and it shall not be implied in any advertisement that the services of a lawyer are only secondary or ministerial, or that by the employment of the services of the trust institution, the employment of counsel to advise the customer is unnecessary.

In the absence of any reason to the contrary, the trust institution shall endeavor to engage the attorney who drew the instrument, or who represented the testator or donor, to perform any legal work required in the course of trust or estate administration.

While services relating to the administration and settlement of estates and other matters not specifically determined herein shall be performed within the guidelines of this opinion, in order to aid the parties and inform the public of the important legal services and complicated administrative functions often involved in the settlement of estates, trusts and guardianships, we further detail some of the areas determined to be within the authority and competence of lawyers and the banks.

The following services shall not be performed by a bank or trust company, either through salaried attorneys or lay employees:

1. Drafting wills or trust instruments.
2. Offering wills for probate.
3. Handling formal court proceedings.
4. Drafting papers or giving advice concerning revocation of wills.
5. Resolving questions of domicile and residence.
6. Handling proceedings involving allowance of widows, children, or wards.
7. Drafting deeds and mortgages.
8. Preparation or filing of assignments of rent.
9. Drafting any formal legal documents to be used in the discharge of a corporate fiduciary’s duty.
10. Giving legal advice or legal counsel, orally or written, to any person, firm or corporation.
11. In estate and inheritance taxes, and federal and state income tax matters :
- a. Executing waivers of statute of limitations, without the advice of the attorney for the estate, trust or guardianship and/or a specialized outside tax attorney.
• b. Preparing and filing protest or claims for refund, except requests for a refund based on mathematical or clerical errors in tax returns filed by it as a fiduciary.
- c. Conferring with tax authorities regarding protests or claims for refund, except those based on mathematical or clerical errors in tax returns filed by it as a fiduciary.
d. Handling petitions to the Tax Court.
- 12. Securing appropriate court orders for the prompt sale or disposition of such assets of the estate as may be subject to depreciation, deterioration or loss.
-13. Preparing contracts or court orders as may be required to conserve the estate or operate the business of the decedent during the course of administration.
14. Terminating any pending litigation in which decedent had an interest.
15. Instituting or defending on behalf of the executor, administrator or trustee any litigation.

The following services relating to the administration of estates, trusts, guardianships or other fiduciary activities may be performed by a bank or trust company:

1. Using form custodians and management agent agreements prepared by its counsel.
2. Discussing the business and financial aspects of fiduciary relationships with customers and prospective customers and with persons who are considering a renunciation of the right to qualify as executor or administrator, or who propose to resign as a guardian or trustee.
3. Performing any clerical, accounting, financial, or business acts in the preparation of any inventory or account required of it as a fiduciary. Filing such inventory and account after furnishing a copy to the attorney for the estate, trust or guardianship in order that all legal aspects may be verified.
4. Performing acts jointly for themselves and for a co-fiduciary relating to their joint duties, provided such duties, under this Statement, are otherwise proper for trust companies acting alone.
5. Acting as an agent for a foreign corporate fiduciary and performing such services as would be permitted under this Statement if the trust company were acting as the fiduciary.
6. Acting for the protection of their interest as fiduciaries in insolvency proceedings short of formal hearings before a referee in bankruptcy or in court.
7. Making appointments with the custodian of security for opening safe-deposit boxes.
8. Opening safe-deposit boxes.
9. Publishing notice to creditors.
10.Searching tax records to determine the real and personal property which decedent had listed for tax purposes.
11. Marshaling assets of the estate; providing for the security and preservation of the interest of all beneficiaries of an estate, trust or guardianship.
12. Providing for the prompt protection or disposition of the assets of an estate, trust or guardianship that may be perishable, subject to rapid depreciation or otherwise in peril.
13. Paying uncontested claims.
14. Giving notice of the termination of a lease because of default by the lessee.
15. Demanding and receiving payment of life insurance policies payable to the estate of the fiduciary’s decedent or to the corporate fiduciary as trustee or as guardian.
16. Demanding and collecting claims, without litigation.
17. Filing a copy of a will in a county other than the county of the decedent’s domicile.
18. Demanding the foreclosure of deeds of trust which are in default.
19. Notifying beneficiaries under a testator’s will by furnishing such beneficiaries with applicable portion of testator’s will relating to each beneficiary.
20. Securing death tax waivers in order to transfer property from the decedent’s estate.
21. Giving and taking receipts of all types.
22. Engaging in advertising the business and financial aspects of their services as executor, trustee, or guardian and estate planner with a clear statement that all legal implications involved in each service will be handled in cooperation with the customer’s own attorney.
23. Performing ministerial and clerical acts in the preparation and filing of any tax return required of it as a fiduciary.
a. In the case of a federal estate or Kentucky inheritance tax return, filing such return after furnishing a copy to the attorney for the estate and affording him an opportunity to question and discuss same.
b. In the case of fiduciary income and intangibles tax returns, copies of such returns shall be furnished the attorney for the estate, trust or guardianship prior to filing upon request by such attorney.
24. Collecting rents, payments due, interest, dividends and other income due the estate or trust.
25. Keeping all buildings and fixtures in repair during the course of administration of the estate or trust.
26. With court authority, continuing to operate any business of decedent.
27. Assembling such information and records as may be needed for the preparation and filing of any partial or intermediate settlement required by the court.
28. Assisting in location of heirs, their names, ages, residence and degree of relationship.

Nothing in this opinion shall be construed to require the employment of an attorney in connection with the administration of every estate, trust or guardianship, but an independent attorney shall be retained in the event it becomes necessary to render any of the legal services detailed herein.

In the event such independent attorney is retained, he shall render any and all other legal services which may be necessary or appropriate in connection with the administration thereof.

The organizations heretofore referred to have recommended the creation of special committees for the purpose of implementing and making effective these principles and the cooperative solution of misunderstandings in relation thereto. Since this Court has constituted the Board of Governors and adopted Rules calculated to effect this purpose, we deem further direction with respect to such recommendation unnecessary at this time. This case remains on the docket of this Court to enable the parties to promptly dispose of future matters coming within the subject matters of this opinion.

The judgment is affirmed in part and reversed in part, with directions to enter a new judgment not inconsistent with this opinion.


author: DAVIS, Commissioner.

text:
    Clyde McQUEEN, Ray Napier and George Bryant, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 4, 1965.
    Rehearing Denied Oct. 5, 1965.

      Thomas D. Shumate, Shumate, Shumate & Flaherty, Steve Robbins, Richmond, for appellants.
    Robert Matthews, Atty. Gen., Joseph Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellants Clyde McQueen, Ray Napier and George Bryant were jointly indicted, tried and convicted for slaying Ambrose Masters, Jr. in Madison County. The three were indicted for murder (KRS 435.010) but convicted of voluntary manslaughter (KRS 435.020). The jury’s verdict found McQueen guilty of voluntary manslaughter and fixed his punishment at imprisonment for twenty-one years; appellants Napier and Bryant were found guilty of aiding and abetting in the voluntary manslaughter and their punishment fixed at imprisonment for eighteen years each. Upon this joint appeal the appellants present three basic assignments of error, some of which are composed of separate elements: (1) Error in admitting incompetent evidence and in rejecting competent evidence; (2) error in failing to grant directed acquittal verdicts for appellants Napier and Bryant, and (3) error in the inflammatory arguments of the Commonwealth’s Attorney.

The opening scene of this tragic drama was at a beer depot in Richmond known as the Pony Keg. Appellant McQueen was there, in a car owned by John Morgan Smith, when the victim, Masters, walked up to Smith’s car and helped himself to a can of beer. Masters was drunk and belligerent, according to the evidence for the defense. McQueen said that he remonstrated with Masters for the arrogant manner in which the latter had taken the beer. Masters flew into a rage and cursed and threatened McQueen, but McQueen did not then get out of the Smith car. Just then appellants Napier and Bryant drove into the Pony Keg parking area; McQueen said that he requested them to take him (McQueen) away in the Bryant car so that he could avoid trouble with Masters. When McQueen had gotten in the Bryant car Masters renewed his abuse and threats toward him, and “gouged” at him with a switchblade knife and threatened to kill him. McQueen said that Masters pressed the blade of the knife against McQueen’s throat at the time of the alleged threat. Moreover, some reference was then made that Masters had a pistol, and that he intended to kill McQueen as well as Bryant and Napier.

There is variance in the evidence as to the details of this initial encounter at the Pony Keg, although it is clear that Masters did have a switchblade knife, which he is said to have delivered to one of the bystanders. At any rate, McQueen, Bryant and Napier then left the scene in Bryant’s car.

Eight men, including Masters, piled into an automobile operated by Dallas Laws and proceeded to hunt for the Bryant car in which the three appellants had left. It was explained that .the impression was gathered that McQueen and Masters had agreed to meet in the country to “fight it out.” There was no direct evidence that McQueen had ever affirmatively agreed to such a meeting. The search for the Bryant car was fruitless; the Laws car and its occupants returned to the Pony Keg.

A short time later the Bryant car, in which the three appellants were riding, passed by the Pony Keg. Someone sighted the Bryant car and shouted “There they go,” whereupon five of the eight men who had engaged in the first search for the Bryant car re-entered the Laws car and gave rapid chase to the Bryant car. As to exactly what transpired during the course of this chase, the record is confusing and conflicting.

However, it is clear that the two vehicles ultimately came to a stop, not far from each other. According to evidence for the prosecution, appellant McQueen alighted from the Bryant car and began to shoot a pistol toward the Laws car. Other evidence for the Commonwealth depicts McQueen’s coming alongside the Laws car, from where he thrust the pistol inside the car and shot Masters in the back. There was evidence that Bryant also got out of his car at the scene of the killing; some witnesses said that it seemed to them that shots were fired from more than one weapon.

As appellant McQueen tells it, when the two cars stopped, after having passed and re-passed each other en route, McQueen observed Masters getting out of the Laws car; McQueen, believing that Masters intended to carry out his threat to kill McQueen, and seeing “something in his hand,” got out of the Bryant car and opened fire on Masters. No shot was returned by Masters or from anyone in the Laws car. McQueen denied that he had walked to the Laws car and shot Masters in the back.

One of the passengers in the Laws car, both on the first fruitless search and at the time of the killing, was Paul McQueen, a brother of appellant Clyde McQueen. During, or just after the shooting, Paul got out of the Laws car and got into the Bryant car.

Laws and the other occupants of his car departed the scene and went to the Richmond police station. Masters was dead on arrival there. The coroner recounted that there was one bullet wound in the left side of the victim’s back, and that it had caused the death.

Police officers set out to locate the appellants when Laws and his fellow travelers reported with the dead body. The officers came upon the Bryant car parked on a country road near the scene of the killing. They told that the car was driven away in such manner as to indicate an effort to escape ; ultimately they overtook the car. Bryant and Napier managed to elude the officers then, but the two McQueen brothers were retained in custody. Early in December, three weeks after the homicide, appellant Napier surrendered to the police and appellant Bryant was arrested the same day. Bryant said that he and Napier had been together during the three weeks — that they ran away because there had been a killing and they were afraid they would be accused of it.

Bryant admitted that after the shooting he gave McQueen the car keys so that McQueen could put the pistol in the trunk of the car; he professed that he did not do this to “hide” the gun, but that he did not believe the gun should be up front.

The first assertion of error presented by appellants relates to the trial court’s refusal to admit evidence of a threat made by Masters toward the appellants. The evidence (offered through witness Paid McQueen) was placed in the record by avowal; in response to inquiry whether Masters had made any statement relating to the three appellants — during the course of the last chase — Paul McQueen said in avowal: “He said he was going to whip Clyde, said if they jumped in, he could take them too or something.”

It is argued that since self-defense is appellant’s theory, any evidence indicating the hostile attitude of the decedent toward the accused is admissible. In support of this argument appellant relies on Jackson v. Commonwealth, 200 Ky. 316, 254 S.W. 913; Patton v. Commonwealth, 235 Ky. 845, 32 S.W.2d 405; Davidson v. Commonwealth, 261 Ky. 158, 87 S.W.2d 119, and Banks v. Commonwealth, 277 Ky. 647, 126 S.W.2d 1122. The Commonwealth concedes the rule to be that such evidence is admissible, but reasons that its rejection in the present case was not prejudicial. The basis of this argument lies in the fact that the substance of this threat had been admitted into the evidence from the lips of several other witnesses, and from appellant McQueen himself. In support of this position the prosecution points to Martin v. Commonwealth, 178 Ky. 540, 199 S.W. 603; Hicks v. Commonwealth, Ky., 269 S.W.2d 181; Shepherd v. Commonwealth, Ky., 327 S.W.2d 956, and Barton v. Commonwealth, 289 Ky. 595, 159 S.W.2d 424. It is our view that it was error to reject the proffered evidence, but we are unable to perceive that any prejudice resulted. At most, the evidence was cumulative; there was no question that Masters had been the aggressor in the first encounter, nor was it disputed that Masters had been “spoiling for a fight.” Under these circumstances, we will not reverse for harmless error. RCr 9.24.

The next charge of error relates to a leading question. Dallas Laws, driver of the car in which the victim Masters rode, on re-direct examination testified:

“RD6 Did anybody make any signal out of that car ? [Bryant car.]
“A. Yes, sir. There was an arm come out the window and motioned to us like that.
“Mr. Shumate: Object.
“The Court: Overruled.
“RD7 And how did you all interpret that motion?
“Mr. Shumate: We object.
“The Court: Overruled.
“A. To follow.
“RD8 To follow, and what did you do?
“A. I was following and I passed them back.
“RD9 As you had earlier agreed?
“A. Yes, sir.
“Mr. Shumate: We object.
“The Court: Overruled.
“Mr. Shumate: Move the Court to set aside the swearing of the jury and continue the case.
“The Court: Overrule the motion.”

The assertion of error is directed to RD9, above, as being a leading question suggesting the answer that a previous agreement had been made for the principals, Masters and McQueen, to meet and fight. Conceding that the question may have been leading, we are not able to say that it was a prejudicial error. It is true that appellant Clyde McQueen stoutly denied that he had ever agreed to meet Masters for a fight, but there was ample evidence that Masters had challenged McQueen to a fight, and other circumstances warranted the jury in believing that the combatants had so agreed. Moreover, there was direct evidence that Masters and Laws had agreed that Masters would be taken out to fight McQueen, and the question as propounded could be interpreted as encompassing that agreement. In any event, as the court gave a self-defense instruction, we find that no prejudicial error occurred with respect to this ruling on the evidence.

A more serious question is presented with respect to admission of certain evidence on the direct examination of Paul McQueen (brother of appellant Clyde McQueen). It will be recalled that Paul McQueen (to whom we shall now refer as Paul to distinguish him from his brother Clyde) had ridden with Masters in the Laws car on the first unsuccessful search and on the fatal trip. During the shooting episode Paul had left the Laws car and gotten into the Bryant car with Clyde and the other appellants. Paul was taken into the police station with Clyde shortly after the shooting.

The prosecution introduced Paul as its witness. The substance of Paul’s direct testimony was: That as soon as the shooting started Paul left the Laws car; the Laws car pulled away from the scene; Paul then got into the Bryant car; nobody else got out of the Laws car (this in direct contradiction to Clyde’s statement that Masters first got out of the Laws car) ; Paul did not see any weapon in the possession of any of the appellants, nor did he see any weapon after he entered the Bryant car.

Then the prosecuting attorney proceeded to interrogate Paul with respect to a written statement Paul had given to the police shortly after the homicide. Without interpolating the repeated objections by defense counsel, we quote from the direct questioning of Paul by the prosecution: '

“D62 Now, to refresh your recollection, did you not state in there in your statement, ‘So we followed for about four miles and Clyde, Napier, and George pulled over—
“D63 ‘ — and jumped out of the car and started firing, and I jumped out of the car and told them to stop shooting and they did.’
“D64 You did say that at the time, to refresh your mind, did you not?
“A. Yes, sir, that in that * * *?
“D65 Yes, sir, that one sentence.
“A. Yes, sir.
“D66 And to refresh your recollection further, did you not state, ‘Clyde told them to go on, and put the gun in the window. I told him he had the gun cocked so we was pulling the gun out the window, and it accidentally discharged.’
“D67 Did you not state that while it was fresh in your mind?
“A. Yes, sir.
“D68 And further to refresh your recollection, ‘And Laws pulled off and I got into the car with Napier and Bryant, and we drove around for awhile, and they took three of the weapons to a house, where I do not know.’
“A. Yes, sir.”

Further in this interrogation the witness said that the statements which he had made were not true, and that he had been coerced into saying these things by threats from the officers to prosecute him for the slaying of Masters.

As early as Champ v. Commonwealth, 59 Ky. (2 Metc.) 17, 74 Am.Dec. 388, this court recognized the rule that a party may impeach its own witness, by proof of contradictory statements, only where the witness testifies positively to the existence of a fact prejudicial to the party, and not where the witness merely fails or refuses to testify as to the existence of a fact that would be- favorable to the party. See Click v. Commonwealth, Ky., 269 S.W.2d 203, 205, and cases there cited. The rule has been followed consistently. Cf. Webb v. Commonwealth, Ky., 314 S.W.2d 543. The rule has been sharply criticized also; see 47 Ky.Law Journal 253, et seq., wherein it is suggested that the cited rule should be relaxed at least to permit contradiction of a “turncoat” witness by showing his prior inconsistent, extra-judicial statements if the party offering him is “surprised.” In the present case the prosecution made no assertion of “surprise.”

It is our view that Paul McQueen had merely failed to testify as the prosecution had hoped he would. His testimony as to the weapons was negative — just that he had not seen any weapons. He was not asked whether he had seen Clyde McQueen, or anyone else, stick a weapon inside the Laws car. He did not say that there was no weapon (he testified as to shooting, so obviously there was at least one weapon), but that he did not see the weapon or weapons. Under these circumstances we cannot escape the conclusion that it was preju-dicially erroneous to permit this “evidence” to be “wheelbarrowed” into the record under the guise of refreshing the memory of Paul McQueen.

As to appellant Clyde McQueen, this memory refreshment had the effect of placing sharply before the jury that Clyde’s brother Paul had previously said that Clyde did thrust the pistol in the window of the Laws car and did fire the fatal shot into the back of the victim. It may not be doubted that the injection of this “evidence” via this backhanded route was gravely damaging to Clyde McQueen.

With respect to appellants Bryant and Napier, the prior statement of Paul McQueen was the strongest “evidence” of their active participation in the crime. Each of them denied any complicity in the actions of Clyde McQueen, and each denied having any weapon. The Paul McQueen statement reflects that Napier and Bryant got out of the Bryant car with Clyde McQueen, and clearly leaves the inference that the three men were acting in close concert.

Counsel for appellants interposed frequent objections, coupled with motions to set aside the swearing of the jury and for a continuance, as the quoted fragments of Paul McQueen’s statement were read to “refresh his recollection.” All of these objections and motions were overruled. Appellants’ counsel then cross-examined Paul briefly and elicited from him the claim that Paul had made the prior statement under threat of prosecution and imprisonment. At the conclusion of the short cross-examination counsel moved the trial court for an admonition as to the effect of Paul’s “statement” testimony, but the motion was overruled.

Later in the trial, after Deputy Sheriff Moberly had testified that Paul McQueen had given the statement voluntarily, and on motion of the prosecution, the trial court did admonish the jury, in pertinent part as follows: “ * * * you are admonished that the statement in contradiction of Paul McQueen may be considered by you not as affecting the guilt or innocence of the defendants or any of them but as only affecting the credibility of the witness, Paul McQueen, if in your opinion it does so affect his credibility.” Substantially the same admonition was given again following similar testimony from another police officer as to Paul’s having made the statement voluntarily. Neither of the latter two officers undertook to detail any of the contents of Paul’s prior statement. In view of the very gr.ave nature of the matters contained in Paul McQueen’s prior statement, even had it been admissible for impeachment purposes, the belated admonition of the trial court could not serve to remove the heavy damage caused by it.

A somewhat similar situation arose in the trial with respect to witness Bill Milton; he too was asked about prior inconsistent statements, although his testimony as a witness for the prosecution was merely negative in character. There was no specific showing as to what the prior statement of Milton had been, although the prosecuting attorney exhibited a written statement in the presence of the jury, and asked the witness if there was anything untrue in it. At least by inference this must have created the impression that the witness had made statements contrary to his testimony. Upon another trial this tactic will not be permitted.

Appellants Bryant and Napier contend that a directed verdict of acquittal should have been given as to them; they moved for such action, but the court denied their motions. In this we think the trial court was correct. We are mindful of the rule that mere presence at the scene of a crime is not sufficient, of itself, to constitute one an aider and abetter. Ray v. Commonwealth, Ky., 284 S.W.2d 76; 6 Ky.Digest 1, Criminal Law, But “mere presence” in connection with other circumstances may be considered, and may warrant submitting to the jury the issue of guilt as an aider and abetter. Sumpter v. Commonwealth, Ky., 251 S.W.2d 852. We think the circumstances of this case clearly require the submission of the issue of guilt as to both Bryant and Napier. (No such question is raised as to Clyde McQueen.) See, Tinsley v. Commonwealth, Ky., 273 S.W.2d 364; Oldfield v. Commonwealth, Ky., 334 S.W.2d 346; Warfield v. Commonwealth, Ky., 334 S.W.2d 913.

Quite apart from the “statement” of Paul McQueen there is evidence that Bryant and Napier knew of the difficulty between Clyde McQueen and Masters; that more than one weapon was heard shooting during the affray; that Bryant got out of the car with Clyde McQueen at the scene of the shooting; that Bryant gave Clyde McQueen the key to the car trunk in order to enable him to stash away the fatal weapon; that the three men fled the scene together; that Bryant and Napier eluded arrest and absented themselves from the county for three weeks, during all of which the two men were together. Under these circumstances we think it is evident that neither Bryant nor Napier was entitled to a directed verdict.

We need not advert to the claimed errors in the closing argument of the Commonwealth’s Attorney, as it is not likely that the same statements will recur. In any event, we are not persuaded that the alleged prejudicial statements in argument were erroneous.

The judgments are reversed as to each of the appellants with directions to grant each of them a new trial.


text:
    INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, LOCAL 320 et al., Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 4, 1965.
    Rehearing Denied Oct. 8, 1965.

      Louis Lusky, New York City, Grover G. Sales, S. Arnold Lynch, Sales & Lynch, Louisville, for appellants.
    Lucian L. Johnson, Louisville, for appel-lee.
   WILLIAMS, Judge.

Appellee Board of Education of Jefferson County, Kentucky, was granted a temporary injunction in the Jefferson Circuit Court against appellants, certain maintenance employees of the School Board, and their Union, the International Brotherhood of Firemen and Oilers, Local 320. The temporary injunction was later dissolved by this Court. However, by the time that was done, most of the employees who had been on strike had returned to work. As a consequence, any question involving the strike became moot. But, in the meantime, appellants filed a counterclaim and a cross-claim by which they sought to enjoin the appellee from refusing to hear grievances in the presence of the representatives of their choice, and to recover damages resulting because of the injunction. This appeal is prosecuted from the judgment of the Jefferson Circuit Court dismissing appellants’ claims.

Briefly, the facts leading up to this appeal are as follows: The School Board paint crew was ordered to perform certain work assignments which were objectionable to them. The leader of the crew expressed their complaint to their immediate superior and requested an interview with him and the superintendent of maintenance. The latter two men decided the work assignments were reasonable and so advised the Superintendent of the Board of Education, Mr. Richard Van Hoose. Mr. Van Hoose advised them to dissolve the paint crew unless they obeyed the instructions. The crew refused and they were discharged.

The next day the painters, along with two representatives of International Brotherhood of Firemen and Oilers, Local 320, went to Mr. Van Hoose’s office seeking a conference. Mr. Van Hoose was at lunch. His assistant advised the men that he and Mr. Van Hoose would confer with the painters, but not in the presence of the two Union representatives. The painters were unwilling to discuss the matter without the Union men and left the office. They voted to strike the same day.

We do not have before us the basic question of the ultimate power of the School Board over its non-instructional employees. Nor does the principal point involve the broad question of whether a School Board must recognize a Union for collective bargaining purposes. The question has been narrowed down to a determination of whether the refusal of the School Board to hear grievances of its employees with third party representation is an arbitrary exercise of its power to run and manage the school system.

A school board is granted broad powers in the administration of the school system. KRS 160.290 provides in part:

“(1) * * * Each board shall exercise generally all powers in the administration of its public school system. appoint such officers, agents and employes as it deems necessary and proper, prescribe their duties, and fix their compensation and terms of office.
“(2) Each board shall make and adopt, and may amend or repeal, rules, regulations and bylaws for its meetings and proceedings for the government, regulation and management of the public schools and school property of the district, for the transaction of its business, and for the qualification and employment of teachers and the conduct of pupils. The rules, regulations, and bylaws heretofore made by any governing body of a school district, or hereafter made by a board of education, shall be consistent with the general school laws of the state and shall be binding on the board of education and parties dealing with it until amended or repealed by an affirmative vote of three members of the board. The rules, regulations and bylaws shall be spread on the minutes of the board and be open to the public.”

Appellants argue that Kentucky Constitution, section 183, which provides “The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State,” is a self-executing prohibition against arbitrary action by a school board.

It has often been held that the go\ernment and conduct of a public school is committed to the discretion of the school board. The exercise of such disc, etion will not be interfered with unless it appears the board has acted arbitrarily or maliciously. Board of Education of Harrodsburg v. Bentley, Ky., 383 S.W.2d 677 (1964); Casey County Board of Education v. Luster, Ky., 282 S.W.2d 333 (1955).

The adoption of a grievance procedure is clearly within the authority granted a school board by KRS 160.290. Employees are entitled under the procedure to present their grievances themselves. No statutory provision or school board regulation requires or permits third party representation in the presentation of grievances. The relief sought by appellants is properly a legislative function. Consequently, it is our opinion the denial of third party representation in grievances before a school board is not arbitrary.

Appellants also seek a recovery of litigation expense and actual damages resulting from the temporary injunction. Where injunctive relief is the sole relief sought, and is not merely ancillary to some other relief, attorneys’ fees may not be recovered as damages in an action on an injunction bond. Grant County Board of Education v. Baston, Ky., 251 S.W.2d 880 (1952). Consequently, appellants may not recover the amount they have paid out in attorneys’ fees.

Furthermore, the School Board was not subject to any liability resulting from the injunction and restraining order because a bond was not required of the Commonwealth or a political subdivision. Appellants contend that a school board for the purpose of the bond provision was not a political subdivision, but our cases have held to the contrary. See City of Louisville v. Board of Education of Louisville, 302 Ky. 647, 195 S.W.2d 291 (1946); Board of Education of City of Corbin v. City of Corbin, 301 Ky. 686, 192 S.W.2d 951 (1946); Board of Education of City of Newport v. Scott, 189 Ky. 225, 224 S.W. 680 (1920); and Brown v. Board of Education of City of Newport, 108 Ky. 783, 57 S.W. 612 (1900). Also, the Legislature has included school boards in its definition of political subdivisions for purposes of the Public Employes Social Security Act. KRS 61.420(5). It seems apparent to us the school board should be considered a political subdivision for the purposes of the bond exemption.

Appellants argue then, if the School Board be considered a political subdivision and exempted from bond, CR 81A, obligating municipal corporations and political subdivisions as if bond has been posted, applies in this proceeding despite the fact the injunction was dissolved more than a year before the effective date of CR 81A. This argument is based upon a retroactive effect of CR 81A to proceedings in pending actions. See CR 86. CR 81A does govern further proceedings in actions pending at its effective date, except to the extent that, “in the opinion of a proper court,” the effect of its application would not be feasible or would work injustice. Here the circuit court found that retroactive application of CR 81A would work injustice.

The temporary injunction question had been decided in favor of appellants and they were prosecuting their counterclaim and cross-claim at the time of the effective date of CR 81A. The injunction was not a further proceeding within the meaning of CR 81A, even though attorneys’ fees had not yet been computed.

Appellants’ claim for general damages ($5,000 to the Union and $2,000 to each other appellant) is speculative, assuming the original injunction was improper. Moreover, the School Board was exempted from liability for the injunction as has heretofore been stated, and, consequently, would not be liable for actual damages during the period of the injunction

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Paul B. WRIGHT et al., Petitioners, v. Frank A. ROPKE, Judge, Respondent.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Rehearing Denied Oct. 5, 1965.

      James T. Robertson, Louisville, for petitioners.
    Edwin A. Schroering, Jr., Commonwealth’s Atty., Louisville, for respondent.
   MONTGOMERY, Judge.

Paul B. Wright, John T. Gover, Millard D. Grubbs, Walter H. Mullikin, and James E. Finch have petitioned this Court to prohibit Frank A. Ropke, Judge, Criminal Branch, First Division, Jefferson Circuit Court, from proceeding further in the prosecution therein styled The Commonwealth of Kentucky v. Paul B. Wright et ah, Indictment No. 129896, for false arrest. The petitioners have moved to disqualify the respondent from trying the case, but this motion has not been passed on. Petitioners have filed several affidavits. A counteraffi-davit has been filed. A temporary order of prohibition has been granted.

Petitioners have alleged and contend that the respondent is acting erroneously within his jurisdiction and that they will suffer great and irreparable injury. The following from Jake’s Fork Coal Company v. Wells, Ky., 362 S.W.2d 728, is fatal to petitioners’ claim, to-wit:

“ * * * Even if the allegation be true, this Court will not grant the requested relief unless it further appears that petitioners have no adequate remedy by appeal (or otherwise) and will suffer great and irreparable injury. Musgrave v. Hays, Ky., 354 S.W.2d 288.
“The overruling by a circuit judge of a motion to require him to vacate the bench is an interlocutory order and ordinarily this Court will not review his action in an original proceeding in this Court since adequate review is provided by other and more conventional procedures. Smith v. Ward, 256 Ky. 13, 75 S.W.2d 538; Cross v. Wilson, Ky., 325 S.W.2d 309.”

Further discussion therein is also pertinent.

The rule is that the extraordinary remedy of prohibition will not be indulged if there is an adequate remedy by appeal. Baker v. Jolly, Ky., 338 S.W.2d 901. Each petitioner is on bail so no question of imprisonment is involved. Petitioners have not pleaded or shown that the remedy by appeal is inadequate. In addition, relief may be available by KIRS 23.230.

It is unnecessary to determine whether the filing of the petition was premature on the ground that it should not have been filed until after the motion to disqualify had been overruled. There still would have been time to seek prohibition then before trial. No need for extraordinary remedy would exist if the motion should be sustained.

The facts in Farley v. Lowe, Ky., 382 S.W.2d 409, render it inapplicable here.

Prohibition denied.


author: SMITH, Justice.

text:
    Walter H. DUNCAN et ux., Petitioners, v. Ewell D. SMITH, Jr., et al., Respondents.
    No. A-10090.
    Supreme Court of Texas.
    July 7, 1965.
    Rehearing Denied Oct. 6, 1965.

      Strasburger, Price, Kelton, Miller & Martin and Fred K. Newberry, Dallas, for petitioners.
    Ralph M. Hall, Rockwall, J. Alex Blake-ley and Rae Ann Fichtner, Dallas, for respondents Smith, Jr., et al.
    Thompson, Coe, Cousins & Irons, Dallas, for respondent-intervenors Urban Butane Service, Inc. and Pan American Ins. Co.
   SMITH, Justice.

Respondents’ motion for rehearing is overruled. However, the opinion delivered on April 28, 1965, is withdrawn and the following is substituted therefor.

Two suits for damages resulting from the death of John Milton Smith and injuries sustained by Ewell D. Smith were filed in the District Court of Kaufman County, Texas. By agreement the suits were consolidated. The consolidated suit went to trial to the court and a jury. Ewell D. Smith, Mrs. Margaret Griggs Smith, Gloria Jeanette Smith, Shirley Kay Smith and Beverly Johnette Smith, as Plaintiffs, sought to recover damages against Riley King, individually, d/b/a B. B. King, B. B. King, Inc., Buffalo Booking Agency, Millard Harvey Lee, Irene L. Duncan and husband, Walter H. Duncan. It was stipulated that B. B. King, Inc., was the owner of the King bus, and that Millard Lee, the driver, was the agent of B. B. King, Inc. The parties will be referred to hereafter by their trial court designation in the interest of simplicity.

The plaintiff, Ewell D. Smith, sought to recover damages against the defendants for injuries alleged to have been sustained by him in an automobile accident involving three vehicles which occurred on October 14, 1957, when he was riding as a passenger in a butane gas truck being driven by his brother, John M. Smith, who died as the result of injuries sustained in the accident. The defendant, Irene L. Duncan, was the driver of a Chevrolet automobile on the occasion of the accident. Another defendant, Millard Lee, was driving the third vehicle, a bus owned by the Defendant, B. B. King, Inc.

The plaintiffs, Mrs. Margaret Griggs Smith, widow of John M. Smith, and Gloria Jeanette Smith, Shirley Kay Smith and Beverly Johnette Smith, minor children of John M. and Margaret Griggs Smith, sought damages for the wrongful death of and conscious pain and suffering of the deceased, John M. Smith.

The plaintiffs alleged several grounds of negligence on the part of the defendants, Mrs. Duncan and Millard Lee, the driver of defendant King’s bus. It was alleged that Mrs. Duncan, while driving the Chevrolet automobile, attempted to pass the King bus on the “left hand side thereof, * * * just as said Chevrolet automobile and said bus approached Bridge No. S14T50,” situated on Highway 80 about nine miles west of the City of Kaufman; “that said bus hit the railing of said bridge and collided with said Chevrolet automobile; that said bus crossed the middle line of said highway and collided head on with the butane gas truck (being driven by John Milton Smith), * * *, said vehicles colliding with such force as to cause said butane gas truck * * * to burst into flames,” and that John Milton Smith burned to death in the truck as the result of the collision.

It was further alleged that the collision was the result of the “concurrent negligence” of Millard Lee, the agent of the defendant, King Bus, and the defendant, Irene L. Duncan. It was alleged that “each and all of said acts taken singly and collectively and in concert with the acts of negligence of the co-defendants, directly and proximately resulted in said collision and the death” of John Milton Smith, and the serious injuries sustained by Ewell D. Smith. The defendants, King and Millard Lee, filed a general denial and demanded strict proof. The defendants, Walter H. and Irene L. Duncan, filed a plea of privilege, which was later waived, a general denial and a special denial of the acts of negligence alleged in paragraph 5 of plaintiffs’ petition.

The Duncans affirmatively pleaded that the sole proximate cause of the collision and resulting injuries and damages sustained by the plaintiffs was the negligence of Millard Lee in the following particulars:

“(1) He attempted to pass the automobile driven by Irene L. Duncan on its right side, in violation of the laws of the State of Texas.
“(2) He drove the bus in question on the right hand shoulder on the highway in question, off of the paved portion of the highway, in violation of the laws of the State of Texas.
“(3) He failed to keep a proper lookout.
“(4) He drove the bus in question at a rate of speed that was excessive under the circumstances then existing.
“(5) He failed to timely apply the brakes of the bus he was operating.
“(6) He failed to sound his horn when such was necessary in order to insure safe operation of his vehicle, in violation of the laws of the State of Texas.
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“(8) He failed to maintain the bus he was driving under proper control.”

The jury, in answer to special issues, found that: (1) the defendant, Mrs. Duncan was negligently attempting to pass the King bus, and that such negligence was a proximate cause, but not the sole proximate cause, of the collision; that (2) Mrs. Duncan failed to keep a proper lookout, and that such failure was a proximate cause, but not the sole cause, of the collision; that (3) the failure of Mrs. Duncan to apply the brakes on her automobile was negligence and a proximate cause of the collision; that (4) immediately prior to the collision, Mrs. Duncan was driving her car at a greater rate of speed than a reasonable and prudent person would have driven under the same or similar circumstances, and that such act was a proximate cause, but not the sole proximate cause, of the collision and resulting injuries; that (5) Mrs. Duncan drove her automobile to the left of the center line of the highway when approaching within 100 feet of the bridge upon which the collision in question occurred. and that such act was negligence and proximate cause, but not the sole cause, of the collision.

The jury found that Millard Lee was (1) not attempting to pass the “vehicle being driven by Mrs. * * * Duncan on the right hand side of the said vehicle”; that (2) he failed to keep a proper lookout; that (3) he negligently failed to apply the brakes of the bus which he was driving; that (4) he negligently drove his bus at a greater rate of speed than a reasonable and prudent person would have driven; and that each of these acts constituted negligence and was a proximate cause of the collision; and that (5) Millard Lee negligently drove the bus “on his right hand shoulder of the roadway, and that such act of negligence was a proximate cause of the collision.”

The jury found that the collision in question was not an unavoidable accident. The jury in answer to the damage issues, found damages for the plaintiffs in the aggregate sum of $368,000.00. The trial court entered judgment in favor of the plaintiffs against the defendants B. B. King, Inc., and the Duncans for the sum awarded by the jury, and entered a take-nothing judgment as to all other defendants.

The judgment of the trial court further provided for contribution in the event either of the defendants, B. B. King, Inc., and Walter H. Duncan, paid more than fifty per cent of the judgment.

The defendant, B. B. King, Inc., did not appeal. The defendants, Walter H. and Irene L. Duncan, filed a motion for new trial which was overruled. These defendants excepted to the action of the trial court in overruling their motion for a new trial and duly perfected their appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas at Dallas, Texas. This Court upon equalization of the dockets of the several courts of civil appeals, transferred the cause to the Court of Civil Appeals for the Eleventh Supreme Judicial District of Texas, at Eastland, Texas. That Court held that the judgment of the trial court awarding to the plaintiffs a total recovery against the defendants of $368,000.00 was excessive in the sum of $158,000.00, but in all other respects the judgment of the trial court was affirmed, with one justice dissenting. 376 S.W.2d 877.

The questions presented to this Court for decision are: (1) Did the trial court err in refusing to hold that there was no evidence upon which the jury could base its findings that Mrs. Duncan was negligent and that such negligence was a proximate cause of the accident? (2) Did the trial court abuse its discretion in refusing to allow a Highway Patrol investigation officer to testify that Millard Lee, after and while still at the scene of the accident, made a statement to the effect that “he [Lee] was trying to pass the Duncan automobile on the right. * * * ” ? (3) Was it error for the trial court to allow plaintiff’s doctor to testify that “the plaintiff Ewell D. Smith, Jr., is more susceptible to cancer since the accident,” even though the Court withdrew the testimony from consideration and instructed the jury not to consider the evidence for any purpose?

The most vital and sharply drawn issue in this case was whether Mrs. Duncan’s automobile was passing the King bus being driven by Millard Lee or was Millard Lee attempting to drive the King bus past the Duncan automobile at the time of the accident. As to the issue of whether Mrs. Duncan was attempting to pass the bus being driven by Millard Lee, we hold that the admitted evidence supports the findings of the jury that Mrs. Duncan negligently attempted to pass the bus and that such negligence was a proximate cause of the accident. However, we have concluded that the action of the trial court in refusing to admit into evidence the testimony of the Highway Patrol investigation officer that Millard Lee made a statement to the effect that he was trying to pass the Duncan automobile at the time of the accident was harmful error which requires that the judgments of both the trial court and the Court of Civil Appeals be reversed. The questions of the admissibility of the officer’s testimony and whether or not the exclusion thereof by the trial court was harmful will be discussed later.

We overrule the defendants’ contention that the trial court erred in refusing to hold that there was no evidence upon which the jury could base its findings that Mrs. Duncan was negligent and that such negligence was a proximate cause of the accident. We shall relate the facts bearing upon the sharply drawn issue as to whether or not Mr§. Duncan was attempting to pass the King bus at the time of the accident. The facts supporting the jury findings on this issue are these:

“The accident occurred on a two-lane bridge. The bridge was about 80 feet long. The bridge was wide enough to accommodate two lanes of traffic, one eastbound and one westbound. The King bus and the Duncan automobile were traveling in a westerly direction. The Smith butane truck was traveling in an easterly direction. Extending from the east end of the bridge were permanent guard rails, each guard rail being 57 feet in length and extending along the north and south sides of the roadway, the width between them gradually increasing from the bridge to the east end of the rails. The overall width of the roadway, immediately east of the guard rail, including the paved shoulders was 38.6 feet. The bridge was only 27 feet wide. The evidence shows that as the King bus and the Duncan automobile traveled along the roadway east of the bridge and as they neared it and drove onto it, the King bus was traveling partially in the westbound traffic lane and partially on the paved shoulder. There is some evidence showing that Mrs. Duncan was, at that time, traveling to her left of the center of the roadway and to the left alongside the King bus. Ewell Smith testified that as one gets to the edge of that bridge ‘going from any direction the shoulder plays out.’ He further testified that ‘ * * * anybody driving on the shoulder has to get up in the lane of traffic to go over that bridge.’ ” Ewell Smith further testified that Mrs. Duncan was passing the King bus when he first noticed the two vehicles. Smith answered the following questions:

“Q. Was the bus ahead of or behind the car you are talking about?
“A. The bus was on the side and she was passing when I noticed.
“Q. You mean the bus was on the outside of the highway; is that right, and the automobile was on the inside?
“A. Well, she was passing the bus when I first noticed them.”

Smith testified that when he first noticed —the bus was ahead — the car was “almost at the back end of the bus and they were just approaching on up — up to the bridge * * * well that would have put the bus on the shoulder up to the bridge there. * * * Then she started overtaking the bus. * * Yes sir she was coming on around the bus. * * * No, she came around the bus * The evidence shows that the bus struck the guard rail to the right of the roadway where it joined onto the bridge and then “bounced” off into the right road of the Duncan automobile. The bus then veered across the highway and struck the butane truck “head on” as the butane truck was driven onto the west end of the bridge.

The Duncan defendants presented Highway Patrol officer Barton as a witness to prove that Millard Lee, while still at the scene of the accident and at some time after the occurrence thereof, in response to questioning, made the following statement as to how the accident occurred:

“He advised me that he was passing an automobile and that he was passing the automobile on the right, which he called the improved shoulder. He said that when he saw that he was coming upon a bridge he applied his brakes and he didn’t have enough air pressure built up and he couldn’t stop. He said he hit the bridge and then hit the car.”

The car referred to was the Duncan car.

The defendants contend that this testimony was admissible as a part of the res gestae and also admissible as a declaration against interest and that the exclusion of the statement attributed to Millard Lee was reasonably calculated to and probably did cause the rendition of an improper judgment. We have concluded that the statement attributed to Millard Lee is admissible as a declaration against interest. Therefore, we do not pass upon the contention that the statement was admissible as a part of the res gestae. Millard Lee died before the trial. In a proper case, declarations against interest of a person since deceased may be admitted, as in action for wrongful death, whether or not such declarations are a part of the res gestae and whether or not privity exists between the declarant and a party to the suit. On the other hand, the declarations of a person since deceased which are not against his interest are inadmissible. 31A C.J.S. Evidence § 218. Admitting declarations against interest as an exception to the hearsay rule has long been considered a proper action where the declaration of fact meets the recognized test as to what is a declaration against interest. “In its most essential elements the exception may be broadly stated as follows: Declarations of a person since deceased, opposed to his pecuniary or proprietary interest, are admissible in evidence, provided he was in a position to know of the matters stated and had no probable motive to misrepresent the facts.” 2 McCormick and Ray, § 1001. There are several factors governing admissibility to be considered in determining whether the statement asserting a fact is a self-serving statement or a disserving statement, or both. 31A C.J.S., supra, at p. 606, footnote 11, summarizes these factors as:

“(1) Declarations made by a deceased person as to facts presumably within his knowledge, if relevant to the matter of inquiry, are admissible in testimony as between third parties: First, when it appears that declarant is dead; second, that the declaration was against his pecuniary interest; third, that it was a fact with respect to a matter of which he was personally cognizant; fourth, that declarant had no possible motive to falsify the fact . declared.”

The admissibility of a declaration against interest is tested as of the time it is made. McCormick and Ray, Sec. 1007, in speaking of the declarant’s motive to misrepresent the facts, says:

“It is sometimes stated as an additional requirement of this exception that the declarant must have had no motive to misrepresent. But this is not the accepted way of actually disposing of the situation where along with the disserving interest there is a self-serving interest. The real problem involved is: Should the two opposing interests be weighed and the statement received only if it is found that the disserving interest had the greater probable influence? Or should the disserving interest be regarded as sufficient of itself to admit the statement, leaving the self-serving interest to affect only the weight? Most courts have taken the former alternative, but one of the greatest of English judges, Sir George Jessel, was of the opinion that the latter was the correct one, i. e. the self-serving interest should affect only the credit of the statement. * * * It is obvious, however, that the view of Sir George Jessel would justify the receipt of the most self-serving declarations. The Texas Courts have paid no heed ;o the Jessel view. They do not admit really self-serving statements merely because they seem on their face disserving.”

Wigmore, Evidence (3rd Ed.), Sec. 1462, et. seq., says “ * * * that it is not merely the statement that must be against interest, but the fact stated. It is because the fact is against interest that the open and deliberate mention of it is likely to be true.”

It is our view that the statement in its entirety is disserving in nature rather than self-serving. The statement having been made under circumstances furnishing a guaranty of trustworthiness, it seems clear that it was admissible. The plaintiffs contend, however, if the action of the trial court in excluding the proferred testimony was error, it was unquestionably harmless error within the contemplation of Rule 434, Texas Rules of Civil Procedure. We agree that the cause should not be reversed unless it can be held that the exclusion of the testimony was calculated to and probably did cause the rendition of an improper judgment in this case. In order to warrant a reversal, the error complained of must have been prejudicial to the substantial rights of the Duncan defendants. 3 Am.Jur. S55 (1936). The trend of the courts is to follow “ * * * a policy of refusing to set aside or reverse judgments for errors of law committed during the trial unless in the sound judgment of the court the errors contributed in a substantial way to bring about an unjust result.” See “The Development of the Doctrine of Harmless Error in Texas,” 31 Tex.L.Rev. 1, 17-18 (1952). The question of whether or not the excluded testimony would have in all reasonable probability resulted in a jury verdict exonerating Mrs. Duncan from any charges of negligence proximately causing the accident is to be determined as a matter of our judgment in the light of the record as a whole. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210, 216 (1958). The Baladez case, in principle, announces the rule to be followed, although that case involved an erroneous action of the trial court in admitting testimony rather than an erroneous action in excluding admissible testimony. In that case it was said:

“Pittman, in order to discharge his burden of establishing the inadmissible evidence was prejudicial, was not required to prove or demonstrate that but for the erroneous action of the trial court in admitting the testimony, a different judgment would necessarily have resulted. See Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191, 192; Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115. It was only necessary that he establish that the evidence was reasonably calculated to and probably did cause the rendition of an improper judgment. See American General Ins. Co. v. Jones, 152 Tex. 99, 255 S.W.2d 502; Missouri-Kansas-Texas Railroad Co. v. McFerrin, Tex., 291 S.W.2d 931, 944; Rules 434 and 503, Texas Rules of Civil Procedure.”

In the light of the record as a whole, we conclude that the Court’s action in excluding the proffered testimony was reasonably calculated to and probably did cause the rendition of an improper judgment. If the jury had been allowed to consider the excluded testimony, it is reasonably probable that the jury would have found that Mrs. Duncan was not attempting to pass the King bus at the time of the accident, and that Millard Lee was attempting to pass the automobile being driven by Mrs. Duncan.

It is argued that the excluded testimony was not direct factual evidence on the other issues of negligence and proximate cause found against Mrs. Duncan by the jury; and, therefore, the plaintiffs were entitled to a judgment based upon the findings of the jury that Mrs. Duncan was not keeping a proper lookout; that she failed to apply her brakes; that she was “driving her car at a greater rate of speed than a reasonable and prudent person would have driven under the same or similar circumstances” and, that she “drove her vehicle to her left of the center of the roadway when approaching within 100 feet of the bridge upon the occasion in question,” coupled with the jury findings that each such act of negligence was a proximate cause of the accident. We do not agree. We are not unmindful, however, of the holding of this Court in the case of Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806 (1958), wherein it was stated “categorically that the testimony * * * was not direct factual evidence on the issue of whether the plaintiff kept a proper lookout as he approached the detour.” In the course of the opinion in the Cloud v. Zellers case we discussed at some length the case of Mrs. Baird’s Bread Co. v. Hearn, 157 Tex. 159, 300 S.W.2d 646 (1957), wherein we held that “the excluded testimony was altogether collateral to the real issues in the case.” The rule applied in those cases governs our decision here, but the result is different. In the Hearn case, we said that the excluded testimony was altogether collateral to the real issues. In our judgment, the excluded testimony cannot be said to be collateral to the issues of negligence and proximate cause found by the jury against Mrs. Duncan. The issues were sharply drawn and were so interwoven as to convince us that the error of the trial court in excluding the testimony was calculated to cause and probably did cause the jury to give the answers it did give to all issues in support of the judgment against the Duncans.

The remaining points in this Court present the contention that the trial court erred in permitting Dr. L. W. Conradt to testify that the plaintiff Ewell Smith is more susceptible to cancer since the accident. The trial court first admitted the testimony over the objection that the answers of the doctor clearly showed he was basing his testimony on speculation and possibilities as to what might happen in the future and not upon reasonable probabilities. Later in the trial and in response to plaintiffs’ motion, the trial court instructed the jury as follows:

“THE COURT: Ladies and gentlemen of the jury, earlier, during the trial, there was offered in evidence that Ewell Smith may be more susceptible to cancer because of his burns. This evidence is being withdrawn from your consideration, and you are instructed not to consider it for any purpose, and I admonish you to follow these instructions as it is not now evidence in this case.”

The Duncans argue that the very mention of the word “cancer” is frightening, and that the instruction given by the court could not possibly cure the error in admitting such prejudicial testimony. In view of the court’s instruction, we decline to hold that the defendants have shown reversible error by this point. Regardless of the fact that the trial court did not withdraw the testimony from the jury’s consideration until after the plaintiffs moved the court to do so, nevertheless, the trial court ultimately sustained the defendants’ objection and instructed the jury not to consider the evidence for any purpose. The evidence as to “cancer” could only have a bearing on the question of damages sustained by Ewell Smith. It must be presumed on appeal that the jury excluded evidence, as instructed, and based its award of damages to Ewell Smith on evidence properly before it, unless the contrary appears. If upon a retrial of this case, the testimony is offered in the same manner as the record shows it was offered during the present trial, the objection thereto should be sustained. The answers of the doctor clearly show that he was basing his testimony on speculation and possibilities rather than upon reasonable probabilities.

For the reasons stated, the judgments of the trial court and the Court of Civil Appeals are both reversed and the cause is remanded to the trial court for a new trial.

Any party desiring to do so may, within fifteen days from the date of delivering this opinion, file a motion for rehearing.