author: STONE, Presiding Judge.

text:
    Earl Bland BRIDGES, by his next friend, Cecil Bridges, Plaintiff-Appellant, v. ARKANSAS-MISSOURI POWER COMPANY, a corporation, Defendant-Respondent.
    No. 8568.
    Springfield Court of Appeals. Missouri.
    Dec. 8, 1966.

      Dalton, Treasure & Bullard, Kennett, for plainti f f-appellant.
    Jones & Stillman, McHaney, Billings & Welman, Kennett, for defendant-respondent.
   STONE, Presiding Judge.

For personal injuries from electrical burns and shock sustained during the early afternoon of Friday, October 16, 1964, at Kennett, Missouri, plaintiff Earl Bland Bridges, who was sixteen years and eleven months of age at the time of accident, had judgment for $15,000 upon a unanimous jury verdict. On the after-trial motion of defendant, Arkansas-Missouri Power Company [V.A.M.R. Rule 72.02; V.A.M.S. § 510.290], the trial court set aside the judgment for plaintiff and entered judgment for defendant on the stated ground that “plaintiff was guilty of contributory negligence as a matter of law.” Although defendant’s alternative motion for new trial was not ruled as it should have been [State ex rel. and to Use of Hickory County v. Davis, Mo., 302 S.W.2d 892, 897-898(8-10); Dawson v. Scherff, Mo., 281 S.W.2d 825, 831 (5); Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 991-992(1-3), 16 A.L.R.2d 904], that omission becomes unimportant on this appeal, where the sole issue presented by plaintiff’s-appellant’s brief is as to whether or not he was contributorily negligent as a matter of law and the only additional issue raised by defendant’s-respondent’s brief is as to whether plaintiff made a submissible case of actionable negligence on the part of defendant. We remind ourselves preliminarily that, in determining both of the aforesaid issues, we must consider the evidence in the light most favorable to plaintiff, must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant’s evidence except insofar as it may aid plaintiffs case. Erbes v. Union Electric Co., Mo., 353 S.W.2d 659, 663(1); Chailland v. Smiley, Mo. (banc), 363 S.W.2d 619, 623(1), 5 A.L.R.3d 288.

Plaintiff and his two companions at the time of accident, namely, his brother Jerry Don Bridges and Thomas Burnett, both then fifteen years of age, were high school students. That was plaintiffs second year in the ninth grade; and, at the time of trial on December 21, 1965, he was in his third year in the same grade. The account of plaintiff and his companions concerning their conduct on the day of accident begins with the noon hour recess, during which they ate and played a pinball machine at a bowling alley. Instead of returning to school at 1:00 P.M., the youthful trio “decided to play hooky” and began (as they put it) a course of “just walking around” and “just messing around,” which took them first to a grocery store for “a soda” and thereafter along a meandering route (concerning which there were conflicts in the testimony) over city streets and then either through an old orchard and a nine-acre cotton patch or along the right of way of a north-south railroad spur track to an oak tree in the “northeast part” of the City of Kennett at the east end of the cotton patch and near the unfenced west line of the railroad right of way.

This was a large, bushy tree with numerous branches and dense foliage, which stood directly under defendant’s north-south three-phase, 33,000 volt, electric transmission line carried overhead on insulators mounted on crossarms at the top of wooden poles 34'6" above the ground. The trunk of the oak tree stood within five feet of one such pole. It being impracticable to insulate lines carrying high voltages, the three overhead wires were uninsulated. In answers to interrogatories received in evidence, defendant stated that in September 1962 “trees were trimmed along the entire [transmission] line by George Woods and his crew” and the oak tree then had been trimmed “so that all limbs were three feet below or distant from any of the wires of the transmission line”; 'that there had been aerial patrols of this line “at monthly intervals [from] May through October of 1962 and 1963”; and that the last inspection of this line prior to the accident had been in May 1964 by J. N. Goldsmith and his line crew. However, defendant’s employee Ross (called as a witness for plaintiff), for thirteen years a member of a four-man tree-trimming crew under foreman George Woods (who did not testify), had no recollection of that crew having trimmed the oak tree in September 1962 or at any time prior to plaintiff’s accident; and defendant’s employee Goldsmith (also called by plaintiff), foreman of a crew “that maintains and constructs power lines,” did not remember any inspection of that line during 1964.

In any event, the record is clear that, at the time of plaintiff’s accident, the top of the oak tree had grown into defendant’s transmission line. That was developed in defendant’s cross-examination of plaintiff’s first witness, one Estes who had taken photographs of the oak tree on the day of accident, when the witness was asked “could you see them [the wires] in the top of the tree” and answered “yes, sir.” Later in the trial, defendant’s employee Ross testified that, when his crew cut down the oak tree on November 9, 1964 (twenty-four days after plaintiff’s accident), he had to trim the top of the tree before he could fell it because the branches were “up between the lines.” When asked specifically “what limbs, if any, were touching the wires,” Ross said “just in the center of the tree.” Branches then were touching “the outside wires” and, although not then in contact with the center wire of the three-wire transmission line, were in position to have been blown into that wire also.

The lowest limbs of the oak tree were not less than six feet above the ground — plaintiff’s companion Burnett said “between six and seven feet” and witness Estes thought “approximately eight to ten feet.” But whatever the precise height of the lowest limbs may have been, plaintiff had (so he said) climbed into this tree “about twelve times” during the Spring and Summer of 1964, accompanied on five or six of those occasions by his brother Jerry Don and sometimes by three other youths all of whom were identified by name but none of whom were called as witnesses. There is no suggestion that any of those previous excursions into the tree had been other than uneventful.

On the occasion under review, plaintiff’s companion Burnett, then 5'7" to 5'8" tall, jumped and grabbed a limb with one hand and plaintiff boosted him into the tree. The record is subject to different inferences as to whether plaintiff’s brother Jerry Don, then about 5'7" tall, climbed into the tree unassisted or was boosted into it; but we find no contradiction of plaintiff’s testimony that he, then about 5'10" tall and 125 pounds in weight, climbed into the tree without assistance. Whatever the order of their ascension into the tree may have been (as to which there were testimonial discrepancies), the youths agreed that plaintiff climbed to a point where his head was six feet from the top of it, that the Burnett youth was “about middleways” in the tree, and that plaintiff’s brother Jerry Don “wasn’t very high.” None of the youths had any purpose in climbing the tree. As plaintiff himself aptly described their conduct, they were “just messing around, passing the time away.” At the moment of tragedy, plaintiff was “setting on a branch” (so he said) or “about half sitting down and half standing” with “his back up against a limb and his feet on one of the lower branches” (so the Burnett youth recollected) or “sort of leaning back on a limb” (so plaintiff’s brother thought). Whichever description of plaintiff’s position may have been the most accurate, there was no evidence that any of the youths were, at the time, doing anything other than talking. After they had been in the oak tree about three minutes, plaintiff and his companions heard a “loud humming sound * * * and that’s when the electricity hit us.” All of the youths were rendered unconscious. Plaintiff fell to the ground and did not regain consciousness until he “come to in the emergency room” at the Dunklin County Memorial Hospital. Plaintiff’s brother Jerry Don “woke up * * * laying on the ground” with plaintiff “laying beside me.” Young Burnett “woke up sort of dazed” with some unidentified man “trying to help me get out of the tree.”

There being no complaint that the verdict was excessive, it will suffice to record that plaintiff sustained severe burns and injuries, including a scalp laceration requiring ten sutures, a fourth degree burn of the right shoulder which became grossly infected with a large gangrenous area about eleven inches by ten inches in size “that had the appearance of charred beefsteak,” and another fourth degree burn on the right leg with another gangrenous area some eight inches by five inches in size; that, when moved to a St. Louis hospital two days after the accident and placed under the care of a plastic surgeon, plaintiff was “an acutely ill boy * * * dull and lethargic, nauseated, unable to take fluids,” so that “it was necessary to give him fluids intravenously for a good many days”; and that, in the interim before his discharge from the hospital on December 11, 1964, he underwent nine operations under general anesthesia, each of which involved both debridement and skin grafting. Fortunately, the results were beyond the surgeon’s expectations and the only permanent condition other than scars and sensitivity in the grafted areas, is what the attending physician in Kennett described as “possibly a ten per cent loss of strength in the injured [right] arm.”

Was plaintiff guilty of contributory negligence as a matter of law? Instant defendant’s argument on the issue of contributory negligence emphasizes additional evidence to which we now refer. The oak tree stood 1,039 feet north of defendant’s substation, which was adjacent to, and just west of, defendant’s Kennett ice plant. For several years prior to the accident, plaintiff had lived the second door from the ice plant and, in going to and from school, had passed both the ice plant and the substation. Accordingly, he had seen the sign “Danger— High Voltage” on the chain-link fence enclosing the substation, and he knew that defendant’s transmission line ran in a general northerly direction from the substation along the east side of the cotton patch and over the oak tree and that “a high line pole” was located “right next to the tree.” When pressed on cross-examination to admit that “from anywhere off on any side of that [oak] tree you could look up and see where those high line wires went through the top branches of the tree,” plaintiff’s response was that “you could see they went over it, but you couldn’t see that they went through it.” Later, he agreed that, if he had “looked careful,” he “probably” could have seen branches of the oak tree “up in those high line wires”; and, when counsel followed with the accusation, “you weren’t being careful, were you,” he conceded, “no, sir, because I had been up there before.” Defendant’s counsel also point to plaintiff’s testimony on cross-examination that, prior to the accident, he had experienced “small” shocks from automobile batteries and an electric fence, and that, in an eighth-grade class, he had studied an elementary textbook on “Adventuring in Science,” including a chapter therein titled “Electricity All About Us.”

Defendant insists that plaintiff “is to be treated as an adult in determining his conduct and resolving the question of contributory negligence.” In the one case [Frauenthal v. Laclede Gaslight Co., 67 Mo. App. 1] cited to this contention, a youth “in his seventeenth year, fully developed, over six feet tall, intelligent, of studious habits, and * * * filling a responsible position in one of the wholesale houses” [67 Mo.App. at 5], who had been warned and knew of the danger of approaching an energized electric line lying in a public street, was held contributorily negligent as a matter of law when, after wrapping a handkerchief around his hand, he deliberately reached over the shoulder of an adult attempting to cut the wire with insulated pliers, took hold of the wire, and was electrocuted. On motion for rehearing, two of the judges, emphasizing that the deceased youth “possessed unusual intelligence for a youth of his age,” thought that “his conduct must be measured or judged by the standard of an average prudent man.” 67 Mo.App. at 12. Passing questions as to whether the last-quoted statement of opinion was either sound or necessary to the end result (an entirely proper one, we would agree, upon the recited facts), Frau-enthal is not persuasive authority for instant defendant’s contention.

It may be true that, as was stated in Frauenthal, supra, 67 Mo.App. at 11(2), the presumption is that a minor fourteen years of age or older has sufficient comprehension to be capable of, and chargeable with, contributory negligence; but it by no means follows that the conduct of all minors fourteen years of age or older is to be measured by the same standard as that of adults. Annotation 107 A.L.R. 4, 141; annotation 174 A.L.R. 1080, 1147. On the contrary, it was settled long ago by our Supreme Court, en banc, in Moeller v. United Rys. Co., 242 Mo. 721, 729, 147 S.W. 1009, 1012 (6), that “[t]he court cannot specify the age to which a child, when attained, shall be held as liable in such case as a person of full maturity, because there are other facts to be taken into account — the peculiar circumstances of the particular case, the knowledge and experience of the child in reference to those circumstances, and his capacity to appreciate the danger.” And shortly thereafter, in Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071, where the contributory negligence of a minor plaintiff “between 17 and 18 years of age” was for the jury, although, if his conduct had been measured by the same standard of care as that required of an adult, plaintiff would have been contributorily negligent as a matter of law [249 Mo. at 368, 155 S.W. at 1079(14)], the same tribunal emphasized that “[t]here is no fixed rule of law by which to gauge, or scale by which to nicely weigh, the acts of a minor to determine if he is guilty of contributory negligence.” 249 Mo. at 369, 155 S.W. at 1079.

The course of conduct which culminated in instant plaintiff’s injury, to wit, “playing hooky,” aimlessly wandering about, and finally climbing the oak tree while “just messing around, passing the time away,” in the company of two boys fifteen years of age, was a convincing manifestation as well as a natural product of juvenile immaturity, not of adult maturity. Certainly the hereinbefore-quoted characterization with which the court enshrouded the deceased youth in Frauenthal v. Laclede Gaslight Co., supra, 67 Mo.App. at 12 (i. e., as one “possessed [of] unusual intelligence for a youth of his age”) would not fit instant plaintiff with his sorry scholastic record. So, it appears clear to us that, in resolving the issue as to plaintiff’s contributory negligence, we should consider his conduct not as though it were that of an adult but rather in the light of the time-honored standard that the care and caution required of a minor, who is of sufficient age to be chargeable with contributory negligence, is that ordinarily exercised by others of the same age, experience and capacity under the same or similar circumstances.

Furthermore, we bear in mind the general principle that: “ ‘A voluntary exposure to known danger is an essential element of contributory negligence. Moreover, it is the appreciation of, or the opportunity to appreciate, the peril in an instrumentality or condition, rather than a knowledge of its physical characteristics, that bars a plaintiff of recovery for negligence.’ ” A fortiori, in actions by minor plaintiffs: “Knowledge and appreciation of the danger and risk of injury, actual or imputed, is essential in order that a child may be guilty of contributory negligence. Mere knowledge that injury might result, without appreciation of the risk of injury to which his conduct exposed him, is not sufficient.”

Defendant asserts that plaintiff “knew” that the wires running through the top of the oak tree were “high voltage wires”; but, although we find references in plaintiff’s cross-examination to “a high line pole” close to the oak tree and “three high line wires” over that tree, we are not satisfied that his testimony, considered as a whole as it should be [Dimond v. Terminal R. R. Ass’n. of St. Louis, 346 Mo. 333, 141 S.W.2d 789, 799(12); Garrard v. State Dept. of Public Health & Welfare, Mo.App., 375 S.W.2d 582, 592(25); Dugan v. Rippee, Mo.App., 278 S.W.2d 812, 816 (7)], compels the conclusion that he knew those were “high voltage wires.” But, if that conclusion be accepted for the purposes of this discussion, it remains indisputable that nothing in the record suggests that plaintiff had either knowledge or experience concerning the conductivity of electrical energy through the limbs or leaves of a tree. Cf. Lamb v. Consumers Power Co., 286 Mich. 228, 281 N.W. 632, 636(7). In fact, the only evidence on this subject indicates that what may result from contact between the limbs or leaves of a tree and a high-voltage transmission line depends upon various factors and might not be predicted with confidence and certainty even by an adult with electrical experience and training. For, when asked “what is going to happen if a limb gets into that [33,000 volt] line,” witness Goldsmith, foreman of one of defendant’s crews maintaining and constructing such lines, responded: “Well, of course, that depends on the size of the limb and the moisture content. A completely dry limb, nothing would happen. If the limb was wet or if it was raining, there would be current flow through that to the ground through the tree.” Continuing, Goldsmith said that, “if a sizeable wet limb got into that line * * * it would operate a circuit breaker * * * [and] would deenergize the line.” To inquiry at another point concerning “what route would the current follow if the limb were on the line,” Goldsmith replied, “if it was between the two lines it would flow from one wire to the other, if it touched one wire * * * it would flow to the ground.”

The uncontradicted evidence, which the triers of the facts were at liberty to accept, was that plaintiff had, without incident or injury, climbed into the oak tree “about twelve times” during the preceding spring and summer [cf. Ward v. Penn Mutual Life Ins. Co., Mo.App., 352 S.W.2d 413, 423-424(10)]; that, on the occasion under review, he and his companions had been in the tree about three minutes before any of them were shocked; that, at the moment of injury, plaintiff was doing nothing other than talking; and that his head then was about six feet from the top of the tree and almost that far from the overhead transmission lines, none of which were contacted by any of the boys. Thus, there was no voluntary exposure to known danger (see authorities cited marginally in note 3); and, in the stated circumstances, we have no doubt but that reasonable minds well might disagree [Losh v. Ozark Border Elec. Co-op., Mo., 330 S.W.2d 847, 851(4)] as to whether plaintiff fully comprehended the potential danger and appreciated the possible risk of injury inherent in his conduct (see authorities cited marginally in note 4). Accordingly, we believe and hold that the issue of contributory negligence was for the jury and that the trial court erred in setting aside the judgment on the stated ground that plaintiff was contribu-torily negligent as a matter of law — a conclusion in consonance with, and finding support in, numerous electrical cases in this jurisdiction, some involving minors and many involving adults, where, in a wide variety of circumstances, the issue of contributory negligence has been for the jury.

None of the six electrical cases cited by instant defendant would require or support a contrary conclusion on the record before us. In four of those cases, the injured person was an adult. In Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233, the court, in affirming (on condition of remittitur) a judgment for plaintiff, a boy twelve years of age, who had been shocked and burned by uninsulated wires running through a walnut tree in a pasture, specifically stated that “we hold that plaintiff was not guilty of such contributory negligence, as a matter of law.” 299 Mo. at 487, 253 S.W. at 237. In Foote v. Scott-New Madrid-Mississippi Elec. Co-op., Mo.App., 359 S.W.2d 40, application to transfer denied by Mo.Sup., No. 49729, we reversed a judgment for plaintiff on the sole ground that defendant was not guilty of actionable negligence and, as we pointed out, did not consider or rule defendant’s contention that the deceased youth had been contributorily negligent as a matter of law. 359 S.W.2d at 47.

Did plaintiff make a submissible case of actionable negligence on the part of defendant? Having frankly admitted in arguing the issue of contributory negligence that “a dangerous situation existed by reason of uninsulated high voltage wires being in close proximity to the uppermost branches of the tree,” defendant’s position on the issue of actionable negligence is formulated in this language; “There was no evidence that respondent [defendant] had knowledge that anyone had climbed this tree before. The tree was difficult to climb and the lowest limbs were six to ten feet above the ground. It was located in a remote and isolated area not readily accessible to the public. Respondent could not reasonably foresee or anticipate that appellant would be likely to' climb this tree * * It has been stated repeatedly that “[m]ost duties, imposed by the law of torts, arise out of circumstances and are based on ‘foreseeability’ or reasonable anticipation that harm or injury is a likely result of acts or omissions” ; and, as instant defendant emphasizes, “ ‘[a]nticipation’ or ‘foreseeability’ is an essential element in determining negligence” in actions of this character. Gladden v. Missouri Public Service Co., Mo., 277 S.W.2d 510, 519(10); Foote v. Scott-New Madrid-Mississippi Electric Co-op., supra, 359 S.W.2d at 43, and cases there cited in note 3. That was the element wanting here, so defendant insists.

Briefly returning to the facts, we recall that the oak tree stood in the “northeast part” of the City of Kennett, near the unfenced boundary line between the east side of the nine-acre cotton patch and the west side, of the north-south railroad spur track right of way, and at a point approximately 1,039 feet (less than .2 mile) north of defendant’s substation and adjacent ice plant. The “headquarters” of foreman Goldsmith’s maintenance-construction crew, where each day’s work terminated, was in the ice plant. From Electric Street, the paved east-west city street in front of defendant’s substation and ice plant, a “little side road” or “turn road” ran north past a cotton gin and then along the east side of the cotton patch, just west of the railroad right of way. The north side of the cotton patch could be seen from Electric Street, and Baker Addition with “quite a few” houses and Osborn Addition were north of the patch. Immediately east of the cotton patch and railroad right of way, there were “one or two homes * * * on the Hemphill property.” The North School in the Kennett school system was immediately west of the cotton patch. Plaintiff’s witness McFadden, who had resided on Electric Street near defendant’s ice plant for thirty years, testified that, although there was no street or alley through the cotton patch, “there’s people go that way or walk up the railroad track * * * people do walk up through there”— “it isn’t uncommon to see grown people or children” there.

In considering the situation at hand, we are not wandering in an uncharted area, for our appellate courts have written in a number of tree-climbing cases, in each of which a judgment for plaintiff has been affirmed, sometimes conditioned on remit-titur. The rationale of those cases is “that the defendant electric company is required to anticipate the presence of boys in trees through which its uninsulated wires pass, because of the natural and habitual instinct and proclivity of red-blooded, venturesome, growing boys to climb trees, and also that a boy is not a trespasser upon the property of the electric company while in the branches of a tree owned by a third party.” Howard v. St. Joseph Transmission Co., 316 Mo. 317, 324, 289 S.W. 597, 600, 49 A.L.R. 1034. However, instant defendant contends, in substance, that it reasonably could not have been charged with the duty to have anticipated the presence of boys in the oak tree, because (so it asserts) it did not have actual knowledge that boys had climbed this tree previously, “the tree was difficult to climb and the lowest limbs were six to ten feet above the ground,” and “it was located in a remote and isolated area not readily accessible to the public.”

True, there was no evidence that defendant had actual knowledge of previous climbing in this tree; but, the meritorious inquiry is not what defendant actually knew but rather what it reasonably should have anticipated. The oak tree may have been relatively more difficult to climb than many trees but, as we have noted, it offered no substantial obstacle to teen-age youths desirous of indulging their natural propensity to climb trees, for the undisputed evidence was that plaintiff had climbed into this tree “about twelve times” during the spring and summer preceding his accident, accompanied on five or six of those occasions by his brother and sometimes by three other youths. The lowest limbs of the oak tree apparently were no farther from the ground than the lowest limbs of the tree described in Thompson v. City of Slater, 197 Mo.App. 247, 193 S.W. 971, where plaintiff’s brother had boosted him into the tree [197 Mo.App. at 255, 193 S.W. at 973] and, after plaintiff’s injury, his father “was able, by ‘jumping up’ or making ‘a little hop,’ to grasp one of the lower limbs and thus climb into the tree.” 197 Mo.App. at 254, 193 S.W. at 972. And see the photograph and description of the tree in Williams v. Springfield Gas & Electric Co., Mo.App., 187 S.W. 556, 558-559 [on transfer, judgment for plaintiff minor affirmed at 274 Mo. 1, 202 S.W. 1], where plaintiff went from the roof of a house into the tree to the wonderment of our predecessors thus expressed: “Looking at the photograph one cannot see how plaintiff got from the roof to the tree unless he pulled the tree toward him by a small limb, and then jumped or swung over to it.” 187 S.W. at 559. Consult also Beckwith v. City of Malden, 212 Mo.App. 488, 493, 253 S.W. 17, 19, where plaintiff climbed from a board fence into a tree, the lowest limb of which was nine feet from the ground. “Everybody knows boys will climb trees. It is the probability of their presence there which brings trees within the general rule of Geismann v. Missouri-Edison Elec. Co., supra [173 Mo. 654, 73 S.W. 654], The rule is not that only such boys are protected as may climb from the ground into a tree. The thing required to be anticipated is the presence of children in the tree. The method by which they get into it cannot ordinarily be very important.” Williams v. Springfield Gas & Elec. Co., 274 Mo. 1, 11, 202 S.W. 1, 2-3; Shannon v. Kansas City Light & Power Co., 315 Mo. 1136, 1149, 287 S.W. 1031, 1035; Beckwith v. City of Malden, supra, 212 Mo.App. at 497, 253 S.W. at 20.

As for the location of the oak tree, it was, as we have said, within the corporate limits of Kennett, near the unfenced west line of the railroad right of way, less than .2 mile from defendant’s substation, ice plant, and maintenance-construction crew headquarters, and in easy sight of that substation, of a school to the west, and (as shown by photographic exhibits) of dwellings to the east and south. In these circumstances, we think that defendant overstates its case in describing the tree as “located in a remote and isolated area not readily accessible to the public.” Granting that it was in a relatively more remote location than the trees described in some of our Missouri tree-climbing cases, the oak tree certainly was no more “remote and isolated” and no less “accessible to the public” than the walnut tree described in Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233, which was in a 100-acre pasture wholly “inclosed with wire fence” and outside the corporate limits of any municipality and which was “about a quarter of a mile north of Pacific Street,” an east-west street just outside the south boundary fence of the pasture, and even farther from plaintiff’s home one and one-half blocks south of Pacific Street. 299 Mo. at 478-479, 253 S.W. at 234.

Although an electric utility is not an insurer of the safety of persons and property, it is obligated to employ care commensurate with the mysterious nature and lethal potentiality of the invisible force known as electricity, to wit, the highest degree of care either to insulate its transmission lines adequately or to isolate them effectively wherever, in the exercise of such degree of care, it reasonably may be anticipated that others, whether for business or pleasure, lawfully may come into close proximity to such lines and thereby may be subjected to a reasonable likelihood of injury. Foote v. Scott-New Madrid-Mississippi Elec. Co-op., supra, 359 S.W.2d at 43(2,3), and cases there cited in notes 1 and 4. A submissible case on the issue of anticipation or foreseeability was made if the jury fairly could have found that, in the exercise of the highest degree of care, defendant reasonably could have anticipated that some injury was likely to have occurred to one lawfully near its transmission line, and it was not necessary for the jury to have been able to find that defendant could have anticipated the particular injury which was sustained or the precise manner in which that injury was suffered. Erbes v. Union Electric Co., supra, 353 S.W.2d at 664; Lebow v. Missouri Public Service Co., Mo., 270 S.W.2d 713, 715; Thornton v. Union Electric Light & Power Co., 230 Mo.App. 637, 72 S.W.2d 161, 163(1-3). The Missouri tree-climbing cases cited marginally in note 9, as well as the score of electrical cases cited marginally in notes 5 and 6, dramatically demonstrate that the outer limits, within which the triers of the facts are permitted to find anticipation or foreseeability in litigation of this character, are exceedingly broad and flexible. Due respect for governing principles and their application in cited tree-climbing and electrical cases leaves us unable to escape the conclusion that, on the record before us, the issue as to anticipation or foreseeability was for the triers of the facts and may not be declared by us, as a matter of law, and that, therefore, plaintiff made a submissible case of actionable negligence on the part of defendant.

Accordingly, it is the judgment of this court (a) that the order and judgment of the Circuit Court of Dunklin County in this cause on March 14, 1966, sustaining defendant’s after-trial motion and entering judgment for defendant be set aside and for naught held, and (b) that the cause be remanded to said circuit court with directions to reinstate and re-enter as of December 21, 1965, the judgment for plaintiff in the sum of $15,000 originally entered on that date upon the jury verdict then returned.

HOGAN and TITUS, JJ-, concur.

      . These issues having been presented to us in this “cart before the horse” sequence, we deal with them, infra, in the same illogical (but, on the instant facts, more convenient) order.

      . Dodwell v. Missouri Pac. R. Co., Mo., 384 S.W.2d 643, 647(7); Warren v. Kansas City, Mo., 258 S.W.2d 681, 683(3); Beebe v. Kansas City, 327 Mo. 67, 34 S.W.2d 57, 58(5); Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071, 1079(16); Spillane v. Missouri Pac. R. Co., 135 Mo. 414, 37 S.W. 198, 201(2); Hammontree v. Edison Bros. Stores, Mo.App., 270 S.W.2d 117, 125(11); Lottes v. Pessina, Mo.App., 174 S.W.2d 893, 899(12); Dorlac v. Bueneman, Mo.App., 129 S.W.2d 108, 110(2); annotation 174 A.L.R. 1080, 1084, 1134-1145; annotation 107 A.L.R. 4.

      . Bartlett v. Taylor, 351 Mo. 1060, 1071, 174 S.W.2d 844, 851(10, 11); 38 Am. Jur., Negligence, § 188, p. 864. See Arkansas-Missouri Power Co. v. Carl, C.A.Mo., 280 F.2d 7, 10-11(4).

      . Turner v. City of Moberly, 224 Mo.App. 683, 685, 26 S.W.2d 997, 998; Wilson v. White, Mo.App., 272 S.W.2d 1, 6-7(12); Hosford v. Clark, Mo.App., 359 S.W.2d 424, 428(5), application to transfer denied by Mo.Sup., No. 49765; United States v. Stoppelmann, C.A.Mo., 266 F.2d 13, 19. See Cathey v. De Weese, Mo., 289 S.W.2d 51, 56-57(6-11); 65A C.J.S. Negligence § 148, p. 187.

      . Pulsifer v. City of Albany, 226 Mo.App. 529, 47 S.W.2d 233, 236(3-6) (boy 19); Sanders v. City of Carthage, Mo.App., 9 S.W.2d 813, 815(1), affirmed on this issue (but rev. and rem. on other grounds) 330 Mo. 844, 849, 51 S.W.2d 529, 531(2) (boy 17); Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 487, 253 S.W. 233, 237 (boy 12); Godfrey v. Kansas City Light & Power Co., 213 Mo.App. 139, 148, 247 S.W. 451, 454(3) (boy 12); Kidd v. Kansas City Light & Power Co., Mo.App., 239 S.W. 584, 586(1) (boy 11). See also Lamb v. Consumers Power Co., 286 Mich. 228, 281 N.W. 632, 636(6, 7) (boy 13).

      . Potter v. Sac-Osage Elec. Coop., Inc., Mo., 335 S.W.2d 192(1); Losh v. Ozark Border Elec. Co-op., Mo., 330 S.W.2d 847, 852(5); Erbes v. Union Elec. Co., Mo., 353 S.W.2d 659, 666(3); Lebow v. Missouri Public Service Co., Mo., 270 S.W.2d 713, 716-718(5); Laudwig v. Central Missouri Power & Light Co., 324 Mo. 676, 686, 24 S.W.2d 625, 628; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960, 968-969(4); Solomon v. Moberly Light & Power Co., 303 Mo. 622, 262 S.W. 367, 371(3); Privette v. City of West Plains, Mo.App., 93 S.W.2d 251, 254; Davis v. Missouri Elec. Power Co., Mo.App., 88 S.W.2d 217, 221(3), certiorari quashed State ex rel. Missouri Electric Power Co. v. Allen, 340 Mo. 44, 100 S.W.2d 868; Kessler v. West Missouri Power Co., 221 Mo.App. 644, 283 S.W. 705, 709(7, 9); Hesser v. City of Carthage, 216 Mo.App. 140, 256 S.W. 161, 162(1); Hollis v. Kansas City Light & Power Co., 204 Mo.App. 297, 224 S.W. 158, 164(7); Faris v. Lawrence Co. Water, Light & Cold Storage Co., Mo.App., 198 S.W. 449(1, 2); Mahaney v. City of Independence, Mo.App., 183 S.W. 1117, 1120(6); Blackburn v. Southwest Missouri R. Co., 180 Mo.App. 548, 167 S.W. 457, 460(7). See also Arkansas-Missouri Power Co. v. Carl, supra note 3, 280 F.2d at 9-10(1-4); Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931, 936-937(9-12); Philbin v. Marlborough Elec. Co., 218 Mass. 394, 105 N.E. 893, 894(2).

      . Gladden v. Missouri Public Service Co., Mo., 277 S.W.2d 510 (plaintiff 39, employed in “testing jet engines,” contacted uninsulated electric lines while climbing tree to catch tame parakeet, but nevertheless issue of contributory negligence was for jury because plaintiff said that he did not know those wires carried electricity) ; Hamilton v. Laclede Elec. Coop., Mo., 294 S.W.2d 11 (plaintiff wife 49 and her husband 43, who “had worked for a utility company in ‘high lines’ * * * and had quit such employment because of his fear of electricity,” were injured when pump being removed from well came in contact with overhead transmission lines in plain view and 12 south of well); Coleman v. North Kansas City Elec. Co., Mo., 298 S.W.2d 362 (plaintiff 35, an electrician, was injured while working in an obviously dangerous position atop a transformer); Gray v. Union Elec. Light & Power Co., Mo.App., 282 S.W. 490 (deceased, an electrician with 4-5 years’ experience, had contacted “hissing,” “sizzling” wire which had fallen on sidewalk).

      . Hull v. Gillioz, 344 Mo. 1227, 1236, 130 S.W.2d 623, 628(5); Emery v. Thompson, 347 Mo. 494, 498, 148 S.W.2d 479, 480(3); Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 472; La Plant v. E. I. Du Pont De Nemours & Co., Mo.App., 346 S.W.2d 231, 239; Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 494(7); Street v. W. E. Callahan Const. Co., Mo.App., 147 S.W.2d 153, 155(3). See 2 Harper & James, Torts, § 16.9, loc. cit. 929; 2 Restatement of Torts, § 289, comment b, p. 763.

      . Shannon v. Kansas City Light & Power Co., 315 Mo. 1136, 287 S.W. 1031; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233; Williams v. Springfield Gas & Electric Co., 274 Mo. 1, 202 S.W. 1; Beckwith v. City of Malden, 212 Mo.App. 488, 253 S.W. 17; Godfrey v. Kansas City Light & Power Co., 213 Mo.App. 139, 247 S.W. 451; Thompson v. City of Slater, 197 Mo.App. 247, 193 S.W. 971.


source: Caselaw Access Project

author: PALMORE, Chief Justice.

license: Public Domain

text:
    Joyce C. McMURRAY, Individually and as Admrx., etc., et al., Appellants, v. Roger McMURRAY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.

      Lester Helm Spalding, Robert M. Sprag-ens, Lebanon, for appellants.
    E. E. Hubbard, Fulton & Hubbard, Bardstown, S. Russell Smith, Smith & Smith, Louisville, for appellee.
   PALMORE, Chief Justice.

In 1954 Billy McMurray bought a farm for $15,000. A substantial portion of the purchase price was loaned to him by his father, Roger McMurray, the appellee. The conveyance was made to Billy and his wife, Joyce, as tenants by the entirety. Joyce did not furnish any part of the consideration. Billy died in 1958 owing Roger $17,000. Roger brought this action in 1961 to recover the debt, to set aside as fraudulent under KRS 378.020 the 1954 conveyance of an interest in the farm to Joyce, and to have the farm subjected as far as necessary to the satisfaction of his claim. He alleged and the trial court found as a fact that he never knew the title had been taken jointly until shortly after Billy’s death. Joyce, individually and as administratrix of Billy’s estate, and her children appeal from a judgment sustaining Roger’s claim, declaring the deed void as between Joyce and Roger to the extent of $12,200 plus interest, awarding Roger a lien to secure that amount, and ordering the property sold to satisfy the lien.

The questions raised on the appeal are whether and to what extent KRS 378.020 is properly applicable to the 1954 transactions and whether relief under that statute is barred by the 5-year statute of limitations, KRS 413.120(12).

At the time of the 1954 transactions Billy and Roger were partners in the operation of a dairy on Roger’s farm. Billy kept the books, and there can be no doubt that a close and confidential relationship existed between the father and son. When Billy decided to buy the farm that is the main subject of this proceeding, Roger loaned him $3,800 by check to make up the down payment of $5,000. This was done on April 30, 1954, the day the deed was executed. After the application of certain credits in favor of Billy, his net indebtedness to Roger immediately following delivery of the deed was $2,948.31.

Roger did not make any inquiry with reference to the terms of the deed, nor did he take a note or mortgage from Billy. Whether the conveyance ran to Billy and Joyce or to Billy alone did not occur to him.

In the deed a lien was retained in favor of the seller to secure payment of the principal balance of $10,000 due and payable on or before June IS, 1954. On June 8, 1954, Billy gave the seller a personal check in the amount of $10,000 and recorded the deed. He had only $181.37 in his bank account at the time, so he told Roger he had given the $10,000 check and on June 10, 1954, Roger covered it by causing $10,000 to be transferred from his account to Billy’s account at the bank. Again it was a simple loan and there was no note or mortgage between Billy and Roger. Immediately following this transaction Billy’s net indebtedness to Roger was $12,659.64. The debt was later reduced to $12,200 before other transactions increased it to the amount owing at the time of Billy’s death in 1958. The seller released his vendor’s lien by marginal indorsement on June 12, 1954.

Taking up first the applicability of KRS 378.020, we are of the opinion that the conveyance of an interest to Joyce without consideration was avoidable as to Billy’s then existing debts. Having been made by Billy’s procurement, the conveyance was the same as if it had been made directly from him to her. Hamilton v. Preston, 166 Ky. 61, 178 S.W. 1146, 1149 (1915); Kincaid v. Brown’s Estate, Ky., 262 S.W.2d 468, 473 (1953).

It is contended, however, that even so the avoidance cannot protect the subsequent loan of $10,000 on June 10, 1954, because that indebtedness did not exist at the time of the conveyance. In the absence of fraud this probably would be true if the $10,000 had not been applied to increase the value of Joyce’s equity in the property. Combs v. Poulos, 241 Ky. 617, 44 S.W.2d 571, 573 (1931). But the rule is otherwise when the money is used to increase the salable value of the property by reduction or discharge of a lien indebtedness against it. Pierce v. J. B. Pierce’s Trustee in Bankruptcy, 238 Ky. 495, 38 S.W.2d 254, 260 (1931). The net result of the transaction was to increase the value of Joyce’s interest in the .property. That it was done in two stages instead of one cannot make any sensible distinction in principle. We hold, therefore, that the chancellor was correct in determining that the conveyance to Joyce was voidable to the extent necessary to cover so much of the two loans as remained unpaid.

There was ample evidence to sustain the chancellor’s finding that Roger did not in fact know until after Billy’s death that the title had been taken in the names of both Billy and Joyce, and as we have already suggested, it is equally beyond question that the relationship between Billy and his father was a confidential one.

KRS 413.120(12) limits the commencement of an action for relief on the ground of fraud to five years after accrual of the cause of action. KRS 413.130(3) provides that such a cause does not accrue until discovery of the fraud. Unless the recording of the deed in June of 1954 constituted notice to Roger, his cause of action did not accrue until 1958. It was held in Lemaster v. Caudill, Ky., 328 S.W.2d 276, 282 (1959), that where a confidential relationship exists and there is fraud in the inception, mere recordation of the instrument is not sufficient notice to begin the running of the statute. Counsel for Joyce seek to distinguish Lemaster on the ground that it involved fraud in the inception of the contract, but obviously the presumptive fraud in this case also existed from the inception of the transactions sought to be avoided. The only distinction between the two cases is that in Lemaster the fraud was actual whereas in this instance it is constructive, or presumed by law, in spite of both Billy’s and Joyce’s actual innocence of any fraudulent knowledge or intent. Cf. Combs v. Poulos, 241 Ky. 617, 44 S.W.2d 571, 573 (1931). That, we think, is a distinction without a difference. The rationale of the actual notice requirement is that persons in a confidential relationship do not have the reason or occasion to check up on each other that would exist if they were dealing at arm’s length. This principle is equally applicable whether the fraud be actual or statutory.

We affirm the chancellor’s conclusion that the cause of action accrued in 1958, when Roger actually learned that the conveyance had been made to Billy and Joyce or the survivor.

The judgment did not mention and the briefs do not discuss the question of dower. The value of the property may now be such that it makes no difference. Nevertheless, as the farm is to be sold to satisfy the lien claim of $12,200, and as Joyce’s purpose in this proceeding is to protect and preserve that to which she is entitled, we think a determination of whether she is entitled to dower is indispensable.

Under circumstances in which the title being divested from the wife came directly from a third party, and not from the husband himself, some courts have held that there was never a legal or equitable estate in the husband out of which dower could be carved. In short, if the husband never had seisin or a right to seisin there could be no dower. See annotation, “Right to dower upon avoidance of conveyance as against creditors,” 32 L.R.A.,N.S., 103 (1910). On the other hand, it was held in Belford v. Crane, 16 N.J.Eq. 265, 84 Am.Dec. 155, 162 (1863), that the wife was in effect a trustee for the husband’s creditors and, there being no actual fraud on her part, was entitled to dower to the same extent as if the legal title had been vested in the husband.

The rule that would divest the wife’s title without securing her dower rests upon the strictest of hypertechnicality, and is completely at odds with common sense. The purpose of the fraudulent conveyance statute, KRS 378.020, is to put the husband’s creditors (as of the time of the conveyance) in the same position they would have enjoyed had the title remained or been taken in the name of the husband. Had the title been so vested, the wife’s inchoate dower would have attached. We accept as sound the result in Belford v. Crane, 16 N.J.Eq. 265, 84 Am.Dec. 155, 162 (1863), and hold that if a creditor of the husband invalidates under KRS 378.020 a conveyance to the wife, she must be allowed dower with the same priority as if the conveyance had been made to the husband (or, if the conveyance ran from husband to wife, as if the conveyance had never occurred).

What we have said does not mean that a vendor’s lien would be subject to dower. “The superiority of a vendor’s lien over the right of dower is well settled.” Chalk v. Chalk, 291 Ky. 702, 165 S.W.2d 534, 538 (1942). "The wife’s right of dower, is subordinate to the vendor’s lien for the purchase money, because the lien is coeval with the husband’s right to the land, and he acquires his title subject to the lien * * * But where no lien for the purchase money exists, and the husband acquires a clear and unencumbered title to the property, the right of the wife to dower is not affected by the fact that the original consideration has not been actually paid.” McClure v. Harris, 51 Ky. (12 B.Mon.) 261, 264-265 (1851).

Although the vendor from whom Billy purchased the property retained a lien which later was satisfied through Billy’s use of Roger’s money, the lien nevertheless was extinguished, and was not transferred by operation of law to Roger. Cf. McClure v. Harris, ibid. Roger neither knew nor cared that the lien existed, and it is abundantly clear that he did not rely upon it. “The simple borrowing of money from one to pay for land does not give the lender of the money any lien whatever.” Hogg v. Potter, 25 Ky.Law Rep. 492, 76 S.W. 35, 36 (1903). As we view it, the situation is essentially the same as if Billy had borrowed the money from Roger and paid the purchase price in full when the deed was first executed and delivered.

The judgment is affirmed in part and reversed in part with directions that it be modified to secure the widow’s dower in accordance with this opinion.

      . “Every gift, conveyance, assignment, transfer or charge made by a debtor, of or upon any of his estate without valuable consideration therefor, shall be void as to all his then existing creditors, but shall not, on that account alone, be void as to creditors whose claims are thereafter contracted, nor as to purchasers from the debtor with notice of the voluntary alienation or charge.”

      . The findings of fact recite that it is worth $22,500 or more.

      . See KRS 392.020.


author: CULLEN, Commissioner.

text:
    Russell FITZPATRICK et al., etc., Appellants, v. Mrs. Bruce PATRICK, Clerk of Montgomery County Court et al., etc., Appellees.
    Court of Appeals of Kentucky.
    Dec. 13, 1966.

      Lewis A. White, Mt. Sterling, Joseph J. Leary, Frankfort, for appellants.
    William S. Riley, Asst. Atty. Gen., Larry A. Carver, Legal Staff, Dept, of Revenue, Frankfort, for appellees.
   CULLEN, Commissioner.

The appellants, who are owners of farm property or rural nonfarm property in Montgomery County, Kentucky, brought this action for themselves and others similarly situated, against the county court clerk and the sheriff of the county, alleging that by reason of a blanket fifteen-percent increase by the Department of Revenue in the assessment of farm and rural nonfarm property in Montgomery County the property of the appellants has been assessed at a value in excess of fair cash value. The complaint asked for a declaration of rights and for injunctive relief. After permitting the Commissioner of Revenue to intervene the circuit court dismissed the action, wherefore this appeal.

The crux of the appellants’ complaint is that their properties were assessed at full cash value prior to the equalization increase by the Department of Revenue (they say the properties all were purchased within a few months of the 1966 assessment date and were assessed at the purchase price); that the increase results in unconstitutional assessments, above fair cash value; and that no administrative remedy is or has been available to them. The circuit court dismissed the action on the grounds that (1) the action was not maintainable as a class action, (2) the plaintiffs were not entitled to injunctive relief, and (3) the court was without jurisdiction. The ap-pellees assert, as an additional ground supporting the dismissal, that the complaint did not state a claim upon which relief could be granted.

In our opinion the action properly is maintainable as a class action. The argument of the appellees on this point (which apparently was accepted by the circuit court) is in essence that the action does not seek “common relief,” which is one of the requirements set forth in CR 23.01. They argue that the proof as to the assessed value of each claimant may be different, and the amount of relief obtainable, by way of exoneration, will vary. We agree that ultimate relief in the form of actual exoneration cannot be awarded in this action to any claimant who is not individually a party, because such relief would not be common. But the only relief sought in the action as to the unnamed class members, i. e., a declaration of rights and an injunction against collection of the amount of alleged excess tax against any person who asserts and proves that his assessment is above fair cash value, is common.

It appears that the ruling of the circuit court that the plaintiffs were not entitled to injunctive relief was based on a belief either that the plaintiffs had an adequate remedy at law or that the injury the plaintiffs might suffer would be minor compared with the damage that would result to the local governmental units from being barred by injunction from collecting a substantial portion of the 1966 tax levy. We considered it appropriate to direct that a temporary injunction be issued pending this appeal because a serious question existed as to whether the plaintiffs had any remedy at all, and ,if so whether it properly was through judicial or administrative processes. The nature of the injunction was not such as to create a major financial problem for the governmental units involved. We have concluded, as hereinafter we shall more fully explain, that a remedy through administrative processes can and should be made available; that such remedy, if it had been made available at the proper time, would have been adequate, but that at the present stage of the tax levy procedures it will not be adequate unless implemented by temporary injunctive relief; and that the type of injunctive relief required will not cause substantial hard-ship to the tax-levying local governmental units.

The ruling of the circuit court that it was without jurisdiction seems to have been in acceptance of the appellees’ contention that the plaintiff taxpayers could have appealed to the Board of Tax Appeals from the equalization order of the Department of Revenue, and that this was an exclusive remedy. There are at least two answers to this contention. In the first place, KRS 131.340(2), governing appeals to the Board of Tax Appeals, authorizes appeals only by a “party.” Obviously, this means persons or agencies who are formally recognized participants in the proceeding before the Department of Revenue, not merely unhappy people. Cf. Ray v. Luckett, Ky., 332 S.W.2d 848. Certainly it does not mean persons who are not given any notice of the order to be appealed from. Cf. Ashland Lumber Company v. Williams, Ky., 411 S.W.2d 909 (decided October 21, 1966). In the second place, the plaintiffs here are asserting that their constitutional rights are being violated by virtue of a lack of administrative due process — certainly the court had jurisdiction of that issue.

As hereinbefore noted, the appellees maintain that the complaint did not state a claim upon which relief could be granted. This is based upon the somewhat astonishing proposition that assessing a person’s property in excess of its fair cash value does not infringe any constitutional right of that person. In support of this proposition the appellees cite Ray v. Armstrong, 140 Ky. 800, 131 S.W. 1039. We think the support is not there. As we read the cited opinion it holds only that a blanket, equalizing, assessment increase is not rendered void by the fact or possibility that one or more properties thereby may be assessed at more than fair cash value. It certainly does not hold that a taxpayer whose property has been assessed at more than fair cash value, as a result of a blanket increase, has no remedy. Assessment of property beyond fair cash value violates the Kentucky Constitution. Rogers v. Pike County Board of Supervisors, 288 Ky. 742, 743, 157 S.W.2d 346. Obviously the taxpayer is entitled to a remedy, at some stage of the assessment proceedings, against such a violation.

As we construe the statutes dealing with assessment equalization by the Department of Revenue, KRS 133.150 to 133.170, they do not in terms provide any method by which an individual taxpayer may be protected against assessment of his property above fair cash value in the equalization process. Nor has the department construed the statutes as providing any such method. However, we think that the statutes must be construed as necessarily contemplating, to avoid unconstitutional action and to accomplish the overall objective of equalization, that the individual taxpayer be afforded an opportunity for a hearing and for appellate review. Cf. George v. Scent, Ky., 346 S.W.2d 784; Atlantic Coast Line R. Co. v. Commonwealth, 302 Ky. 36, 193 S.W.2d 749.

In our opinion the following procedures reasonably may be considered to be within the contemplation of the equalization statutes:

1. The notice to “the taxpayers” of a contemplated blanket raise of assessments, provided for in KRS 133.160, would state that any individual taxpayer who believed that the proposed raise would increase his assessment above fair cash value could file with the Department of Revenue, on or before the day of hearing fixed in the notice, an application for exoneration of his property from the proposed increase. In addition to being posted, as provided in KRS 133.-160, the notice would be published as required by KRS Chapter 424.
2. At the hearing provided for in KRS 133.160, or at any necessary adjourned session thereof, any taxpayer who duly had filed application for exoneration would be entitled to be heard and present evidence in support of his claim that the blanket increase would cause his property to be assessed above fair cash value.
3. The Department of Revenue, when it certified its action on assessment equalization to the county judge, as provided in KRS 133.170, would simultaneously mail a notice to each taxpayer who had made application for exoneration, stating whether the application had been granted or denied, either in whole or in part.
4. Any taxpayer whose application had been denied, in whole or in part, could appeal to the Board of Tax Appeals as provided in KRS 131.340, and appeals thereafter could be taken to the courts as provided in KRS 131.370.

We think the foregoing procedures would provide adequate remedy against overassessment in future tax years resulting from a blanket equalization increase. But we- have a problem here in Montgomery County involving the current tax year. A practical solution of the problem would be for the Department of Revenue to schedule a special hearing to be held in Montgomery County, with the procedural features above outlined, for consideration of applications for exoneration. It is our opinion that the department has the power to do that, and thus would be provided a satisfactory administrative form of remedy. If the department does not promptly make that remedy available, by scheduling a hearing within 30 days of the entry of judgment in the circuit court pursuant to the mandate of this court on this opinion, the circuit court then shall provide a judicial remedy, by scheduling a judicial hearing at' which • claims for exoneration may be asserted by the named parties to this action and by such other persons as may intervene in the action prior to the day of hearing.

The circuit court will enter a declaratory judgment in conformity with this opinion. That judgment will continue in effect the provisions of the temporary injunction heretofore issued by this court, with the modification that on the day set for the exoneration hearing, whether the hearing is administrative or judicial, the sheriff shall turn over to the appropriate taxing units the amount withheld by him as to any taxpayer who has not presented an application for exoneration. As to any taxpayer who has filed application for exoneration the sheriff shall continue to hold the amount of disputed tax until final determination of the exoneration claim, whereupon it shall be paid over to the taxing units, or returned to the taxpayer, as the case may be.

The judgment is reversed with directions for the entry of judgment in conformity with this opinion. The court finds that good cause exists for immediate issuance of the mandate and therefore orders that the mandate issue forthwith.


text:
    The TRAVELERS INSURANCE COMPANY et al., Appellants, v. James O. HAYES et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    Rehearing Denied Jan. 27, 1967.

      Lloyd Cardwell, Stites, Peabody & Helm, Louisville, for appellants.
    John E. Wise, Louisville, for appellees.
   PALMORE, Chief Justice.

The appellee Hayes filed a workmen’s compensation claim naming Marvin Lewis as “Employer-Defendant.” In the body of the application he gave the name of the employer’s insurer as “Travelers Insurance Company.” The proceeding before the Workmen’s Compensation Board culminated in a dismissal of Lewis and an award against The Travelers Insurance Company (hereinafter called Travelers) and its insured, Cement Transport, Inc. (hereinafter called CT). The latter two companies, having never been made parties defendant by designation of the claimant in his application or by any specific order of the Board, appeal from a judgment of the Jefferson Circuit Court sustaining the award against them.

CT is a common carrier which transports cement for Kosmosdale Portland Cement Company. It owns the trailer portions of tractor-trailers and contracts with numerous owner-operators of tractor units to haul the cement in its trailers. Under these contracts, called lease agreements, the owner-operator furnishes his truck and a driver and pays all costs of maintaining and operating the truck. The owner-operator hires the driver and pays his wages, making the required deductions for taxes and social security. The hiring and continued employment of any driver by the owner-operator is subject to CT’s approval. CT directs the driver where to go and when to get there with its trailer. CT carries liability insurance covering all these operations. It carries workmen’s compensation insurance with Travelers, deducting premiums from the contract amounts payable by it to the owner-operators and remitting them to Travelers. Lewis is one of CT’s owner-operators under this arrangement. He has less than three employes, and there is nothing in the record to suggest that he has voluntarily elected to come under the Workmen’s Compensation Act as an employer. Cf. KRS 342.005(1) and (4). CT informs the owner-operators as to the name of the compensation carrier, and Lewis had been so informed that Travelers was his insurer.

Hayes, the claimant, had once been one of CT’s owner-operators, and had then worked for a time as a driver for one Bragg, another owner-operator for CT. While driving for Bragg he suffered a back injury and was awarded compensation for 30% permanent partial disability. Afterward CT employed him one winter as a dispatcher, and then he drove for several other owner-operators when the particular jobs did not require any manual handling of the cargo by the driver. On the night before the accident that precipitated the instant claim, Lewis telephoned Hayes and asked him to pull a loaded trailer to Indianapolis the next morning. Lewis had not theretofore used Hayes as a driver, so he cleared the employment with a responsible representative of CT.

The accident and injury occurred on October 10, 1963, while Hayes was preparing to leave CT’s premises for Indianapolis. It was immediately reported to CT, and CT made out and submitted to Travelers an “Employer’s First Report of Injury,” copy of which was transmitted by Travelers to the Workmen’s Compensation Board. As we have indicated, however, when Hayes’ application for compensation was prepared, only Lewis was designated thereon as the employer-defendant.

The claim was filed on November 17, 1963. In due course the Board issued notice that the matter was set for hearing on February 13, 1964. Copies of the notice were sent to Travelers, Lewis, Hayes, and Hayes’ attorney, but not to CT. On January 17, 1964, Hon. Lloyd Cardwell, counsel for Travelers, filed with the Board a motion that the name of Travelers as the employer’s insurer be stricken from the body of the claim. In this motion it was stated that by inadvertence, and under the misapprehension that CT was the defendant and Hayes its employe, Mr. Cardwell had notified the Board, CT, and Hayes’ attorney that he would represent the defendant in the proceeding. At the time of the hearing on February 13 this motion had not been acted upon, so Mr. Card-well appeared and took part in the hearing in behalf of Travelers, but without waiving the pending motion.

On March 4, 1964, the Board entered an order passing Travelers’ motion to the merits, whereupon Hayes promptly filed a motion urging the Board to hold a hearing and make an immediate determination of whether Travelers was exposed and was a proper party defendant. This motion was summarily overruled, and on its next notice of hearing the Board designated CT and Lewis in the caption as the parties defendant and listed both CT and Travelers among the parties to be served copies of the notice. Thereafter, Mr. Cardwell participated in the proceedings as counsel for Travelers and for CT, although on at least one occasion Hayes objected to one of his motions on the ground that Travelers was not a party to the litigation, and at another time his attorney remarked that “Travelers is not being sued.”

After the evidence was in, the Board found Hayes to be 50% permanently disabled, attributing 30% to the previous injury and 20% to the accident of October 10, 1963, and entered an award against CT and Travelers based on 20% permanent partial impairment. It held that under the circumstances of the case Hayes was an employe of CT and that even though he had not formally amended his claim for the purpose of joining them as defendants, by their participation in the proceedings CT and Travelers had effectually made themselves parties. These two legal conclusions present the first questions raised by the appeal to this court.

We do not have the advantage of any precedents in this jurisdiction to assist us in resolving the procedural problem, nor are we satisfied with the strictly technical approach reflected by the outside authorities cited by CT and Travelers. Had this been an action tried in a court of law instead of a proceeding by an administrative tribunal we should not hesitate to say that the procedure was insufficient to render CT and Travelers amenable to a judgment. Above and beyond the bare necessities of notice and a reasonable opportunity to hear and be heard, the Rules of Civil Procedure demand a certain degree of formal regularity. But so long as a defendant covered by the Workmen’s Compensation Law has enough notice and opportunity to defend itself to satisfy constitutional guaranties of due process, the remaining area of procedural housekeeping lies within the province of the legislature and the Board.

KRS 342.260(2) provides in part as follows : “Processes and procedure under this chapter shall be as summary and simple as reasonably possible.” Though we doubt that the legislature had in mind quite the degree of informality which seems to have prevailed in this particular instance, yet if the Board was satisfied with it we do not feel obliged to intrude beyond the limits of the constitutional point.

From a practical standpoint there is no doubt that the interests of CT and Travelers in this case were one and the same and that Mr. Cardwell represented both of them. When he asked the Board to rule that Travelers was not in the case, its refusal to do so was tantamount to a ruling that unless and until the Board should decide otherwise, Travelers was in. The community of interest between CT and Travelers, the Board’s subsequent designation of CT as a defendant in the caption of its notices, and the receipt by CT of copies thereof directed to it were sufficient to apprise CT that it was being treated as a party. And indeed it could scarcely be denied that a hint to the wise proved sufficient, because the interests of both CT and Travelers were thenceforth in fact pursued and protected by the continued participation of their counsel in the proceeding. It is our conclusion that they had sufficient notice and opportunity of defense to satisfy any objection that might otherwise be addressed against this unorthodox procedure on purely constitutional grounds.

CT and Travelers argue further that if they were parties they did not become so until October 13, 1964, the date of the Board’s opinion and award, at which time the statute of limitations had run. Cf. KRS 342.185. Our viewpoint is that they became parties when they were on sufficient notice to defend themselves, and it is unnecessary to determine at precisely what point or points in time this occurred, because in any event, it was during the early stages of the proceeding and well before October 10, 1964.

It is insisted by CT and Travelers that Lewis was an independent contractor and not an employe of CT, in which event, of course, neither could Hayes have been CT’s employe. See, for example, Reardon v. Southern Tank Lines, Inc., Ky., 346 S.W.2d 527 (1961), in which the formal contractual arrangement between the shipper and the owner-operators was closely similar to the one in this case. There are, however, some differences between the two controversies. For one thing, in Rear-don the written contract was in the record; here it is not. In Reardon the contract specified that the owner-operator must carry workmen’s compensation insurance on his employes, and it made no provision for coverage of the owner-operator himself. We do not know what CT’s written contract says, but regardless of what it says, we do know from the evidence what is done in fact. Actual practice sometimes belies what is written in a contract, and for that reason no inquiry into the relationship between the parties can begin and end with the reading of the words. Cf. Brewer v. Millich, Ky., 276 S.W.2d 12, 16 (1955); Coleman v. Baker, Ky., 382 S.W.2d 843, 846 (1964). So, regardless of the formal agreement, we have a situation in which CT, after contracting that certain specific controls and responsibilities that normally reside in management shall rest with Lewis, nevertheless retains the final say on whom he may hire and shall fire, tells him he is covered by workmen’s compensation insurance and, though it is ultimately deducted from his checks, actually does pay Travelers for the coverage. If Lewis was not an employe of CT, why did CT see that he was covered and why did Travelers accept the coverage? Could CT treat Lewis as an employe in event of an injury to himself but an independent contractor in event of an injury to his driver? We think not. In our opinion the Board’s finding that he was an employe was correct. It follows that Hayes, whom he hired with CT’s approval, also was an employe of CT. See Brewer v. Millich, Ky., 276 S.W.2d 12 (1955); Cutshin Coal Company v. Campbell, Ky., 309 S.W.2d 39 (1958).

No doubt the strategy by which truck drivers are transmogrified into the paper image of independent contractors was designed to shy away from consequences other than the applicability of the Workmen’s Compensation Law. Be that as it may, the liberal policy of this law is such that some who might not be so regarded in strict legal tradition are nonetheless held to be employes. Brewer v. Millich, Ky., 276 S.W.2d 12, 15 (1955). This opinion, therefore, is confined to the status of the parties for the purposes of workmen’s compensation.

The case must be reversed on other grounds. On March 5, 1964, counsel for Hayes gave notice of a deposition to be taken from Dr. James W. Bryan on March 9, 1964. Only the defendant Lewis was served with a copy. Mr. Cardwell did not receive the notice and did not appear. Later, he moved to strike the deposition, but the Board passed the motion to the merits and never did rule on it. Though it might have been more appropriate for counsel to move for leave to cross-examine the witness rather than strike the testimony given on direct, certainly his motion was sufficient to bring the circumstances to the attention of the Board and to indicate the indispensability of remedial action. As it is, the deposition became a part of the record submitted for the Board’s consideration without any opportunity of cross-examination. Obviously this was an error. Dr. Bryan having testified that Hayes is totally and permanently disabled, it is equally plain that the error was prejudicial.

During the course of the proceeding before the Board the defendants moved that some of the testimony taken in Hayes’ earlier case against Bragg, his former employer, be made a part of the record in this case because of the relationship between his latest injury and pre-existing condition. The Board responded by an order consolidating the entire records of the two proceedings but then, in its opinion and award entered several months later, determined that the Bragg record was not necessary to its findings in the instant case and set aside the order of consolidation. The Bragg record being thus eliminated, we are unable to evaluate the evidence in it on which the appellants intended to rely. For the same reason we cannot say whether the action of the Board in this respect was prejudicial. However, as the cause is being reversed on the ground heretofore discussed, the matter may be re-opened.

Upon remand of this controversy further proceedings before the Board shall be confined to supplementation as follows: If Dr. Bryan is available, CT and Travelers should be given the opportunity of cross-examination; if not, his deposition should be stricken with leave given Hayes to take the deposition of another physician. To the extent it is competent and relevant, the testimony from the Bragg record heretofore designated in the motion for its inclusion as a part of this record shall be so included.

The cause is reversed and remanded for further proceedings before the Workmen’s Compensation Board consistent with this opinion.


author: HILL, Judge.

text:
    Joseph A. SMITH and Walter M. Smith, Appellants, v. Ohmer LANGLEY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    As Modifed on Denial of Rehearing Jan. 27, 1967.

      Stanley A. Stratford, Campbell & Strat-ford, Louisville, for appellants.
    Jack Q. Heath, Louisville, for appellee.
   HILL, Judge.

This is an action for personal injuries and property damages arising out of an automobile accident at the intersection of Eastern Parkway and Baxter Avenue in Louisville, Kentucky, at approximately 6:40 a. m., October 10, 1963.

Joseph Smith, the driver of one car, and Walter Smith, the guest of Joseph Smith, filed this action for damages against Ohmer • Langley, the driver of the other car. Langley counterclaimed against Joseph Smith. The jury returned a verdict for Langley on the claims of Joseph and Walter Smith against him and a verdict for Langley against Joseph Smith in the sum of $1,958.25. Both Joseph Smith and Walter Smith appeal the judgment.

Eastern Parkway and Baxter Avenue intersect at right angles and both are four-lane roads. Traffic at the intersection is regulated by a multiple-phase light hanging in the center of said intersection.

Joseph Smith was operating his vehicle south on Baxter Avenue at a speed of thirty miles per hour. Langley was traveling west on Eastern Parkway in the left-hand westbound lane. He testified that he stopped for a red light and observed automobiles moving south on Baxter. After the traffic signal changed to green and after observing that the traffic on Baxter had stopped for its red light, Langley proceeded across the intersection. When he was two-thirds of the distance across the intersection, his car was struck in the middle of the right side by the front of the Smith vehicle. At the time of the accident, he was traveling at approximately ten miles per hour. Langley did not see the Smith vehicle until the collision.

Smith testified that when he first saw the traffic signal, his light was red; that before it was necessary for him to decrease his speed, the light changed to green and he proceeded through the intersection; and that he did not see the Langley car until just a second or two before the collision.

The jury was instructed to find for the party who had the green light. Appellants contend that the trial court erred in refusing their offered instruction requiring Langley to keep a lookout and to exercise ordinary care in the operation of his motor vehicle and cite Maclin v. Horner, Ky., 357 S.W.2d 325.

Our only question on this appeal is: Should the jury have been instructed that each party had the duty to keep a lookout and to exercise ordinary care in the operation of his vehicle?

To justify an instruction on a particular issue, the evidence must raise the issue. Mann’s Ex’r v. Leyman Motor Co., 234 Ky. 639, 28 S.W.2d 956. Appellants contend that the “lookout issue” was raised when Langley testified that he did not see Smith’s car before the impact. While there was no showing of the distance between the Smith car and the intersection when Langley entered it, it is evident from the physical facts that it was some distance from the intersection. Consequently, there is no real issue. Even if Langley had seen the Smith car before starting into the intersection, he could have legally assumed that Smith would stop as Smith was a considerable distance from the light and was traveling at a reasonable rate of speed and could have easily done so. Langley did not see the Smith car, but this does not mean he was not keeping a lookout as the Smith car was a good distance from the intersection. He observed other cars on Baxter Avenue and noted that they had stopped. Under the particular facts of this case, the failure to keep a lookout was not a substantial factor.

The only real issue in this case is which person had the green light. This court said in Barker v. Sanders, Ky., 347 S.W.2d 529, “It is a logical conclusion that in any case where the issue of liability can be reduced to whether one party or the other had the right-of-way it is unnecessary to instruct on any duty except simply that of yielding. * * * ” We continued in Meadows v. Bailey, Ky., 350 S.W.2d 630: “In such a case there is no necessity for cluttering the instructions with enumerations and definitions of duties other than the particular duty involved, which necessarily covers all the others.”

Our holding here is not inconsistent with the case of Maclin v. Horner, supra. We held in that case that the question of instruction on general care turned on whether or not real issues were raised by the evidence. The matter of lookout was raised by questions which elicited the answers that neither driver saw the other’s car until a moment before the collision. But there, both drivers entered the intersection at the same time, each driver maintaining that the green light was in his favor. However, in the present case, Langley entered the intersection several seconds before Smith and when Smith was some distance away.

The net import of Maclin was that instructions on lookout and ordinary care were not improper or prejudicial. We did not hold, as appellants would have us hold in this case, that they were required. It is concluded the instructions were properly submitted on this issue.

The judgment is affirmed.


text:
    James L. PUCKETT, Appellant, v. Minor CLARK, William H. Chambliss and Hess Henson, Appellees.
    Court of Appeals of Kentucky.
    Nov. 18, 1966.
    Charles A. Williams, R. L. Myre, Holland G. Bryan, Paducah, for appellant.
    Joseph J. Leary, Thomas F. Marshall, Frankfort, for appellee.
   PALMORE, Chief Justice.

This is a suit for malicious prosecution in which the plaintiff, Puckett, appeals from a judgment n. o. v. rendered in favor of the defendants after he had been awarded $5,-000 by a jury verdict.

Puckett was arrested on a complaint and warrant charging him with unlawful possession of an illegal fishing device in Mc-Cracken County. He was acquitted. The complaint had been sighed by the appellee Chambliss, a state conservation officer, who was accompanied at the time by the appellee Henson, Assistant Director of Law Enforcement for the Department of Fish and Wildlife Resources of Kentucky. The ap-pellee Clark is Commissioner and chief administrative officer of that Department, and it was he who instigated the inquiry that eventuated in the accusation and arrest of Puckett.

The only issue we find it necessary to consider is whether the evidence was reasonably sufficient to support a factual conclusion (as drawn by the jury) that the proceeding against Puckett was instituted without probable cause.

The February 5, 1963, issue of The Courier-Journal carried a photograph showing the appellant, Puckett, holding up for display a fishing line or lines to which several hooks and multiple hooks were attached. The following caption and text appeared below the picture:

“MULTIPLE HOOKS USED TO SNAG FISH”
“PLEADS GUILTY * * * James Puckett, 32, West Gilbertsville, fined $75 on each of two charges involving illegal fishing, holds line with multiple hooks used to snag fish from the Tennessee River below Kentucky Dam. (Story and another picture are on page 1.)”

The story on page 1, which was tendered in evidence by Puckett but not admitted, was to the effect that snag or jerk fishing in the river below Kentucky Dam was giving the area a bad name and was costing local innkeepers and other business interests a great deal of money through loss of tourist trade. One Herman Donohoo, speaking for a group of motel operators, had protested, “We make our living off of tourists who fish for the sport, and if they quit coming here we’ll have to close up.” The article continued in part as follows':

“The protests came in the wake of a protest about State Fish and Wildlife Department enforcement officers by James Puckett, 32, West Gilbertsville, who was arrested at 2:30 a. m. Thursday for snag fishing from a boat just below Kentucky Dam.
“Puckett and a companion, Jesse Phelps, Aurora, pleaded guilty to illegal fishing and fishing in restricted water, in Livingston County Court, and were fined $75 each. Their boat, oars, and the 100 pounds of fish they had were confiscated.
“Puckett claimed that the same day he and Phelps were arrested, 50 to 75 persons snag-fished from the bank below Kentucky Dam with apparent immunity. He said wildlife enforcement officers are ignoring illegal activities of bank snag fishermen in the area.
“While snag fishing from a boat is illegal, State law permits the same type of fishing from a bank provided only one treble hook is used and the pole is not more than 7 feet in length. There also is a limit of 15 fish for bank snagging, and each fish taken must be counted in the limit and placed on a stringer.
“Puckett charged that most of the bank snaggers sell their catches at nearby markets and restaurants the same as he and Phelps, but rarely do they count all the fish they take.
“Two days prior to his arrest, Puckett said bank snaggers sold more than 800 pounds of catfish on the Gilbertsville market. The current wholesale price for catfish at Gilbertsville is 30 cents a pound.
“Donohoo said his group feels that widespread fishing-law violations in this area won’t be curbed until Kentucky bans all forms of snag or jerk fishing.
“State Wildlife Commissioner Minor Clark, who met with First District enforcement officers Friday, reportedly viewed bank snag fishing below Kentucky Dam Wednesday.
“Observed by Reporter
“This reporter visited the bank area below Kentucky Dam Friday and counted 34 snag fishermen. They were snagging fish almost as fast as they could cast and jerk their lines. I saw no stringers. The fish were piled at the side of the fishermen. Small fish taken off the hooks were thrown into the crevices of the limestone rock which lines the bank.”

A photograph accompanying the front page story showed a crowd of people fishing from the rock shore below Kentucky Dam. The article was written and the photographs had been taken by Harry Bolser, of Padu-cah, manager of the newspaper’s West Kentucky Branch.

KRS 150.120(4) prohibits the possession of any device for taking fish that is not expressly recognized and sanctioned under the provisions of KRS Chapter 150, and KRS 150.990(2) makes the offense punishable by a fine of not less than $15 or more than $100. KRS 150.120(1) directs the commissioner and all conservation officers to seize any illegal devices found in the unlawful possession of anyone. The arrest and prosecution out of which this lawsuit arose came about in the following way:

On the morning of February 5, 1966, in Frankfort, Mr. Clark saw the picture of Puckett in The Courier-Journal. He thought that probably the contrivance shown in Puckett’s possession was an illegal device for jerking fish. He knew his department had been subjected to criticism for the alleged lack of law enforcement in the area. By telephone he sought the advice of Hon. Burton Aldridge, county attorney for Trigg County, whom he knew to be familiar with laws of this nature. At this point there are discrepancies in the recollections of the various persons involved, but we do not regard them as vital. Either the newsphoto had already been called to Aldridge’s attention by the appellee Henson or else Aldridge got hold of a paper and saw it at Clark’s request. Anyway, Henson happened to be in Aldridge’s office at Cadiz and they both talked to Clark, who asked Aldridge’s opinion whether the man shown in the picture “was in violation of the law.” Aldridge replied that he was not sure at the moment but would like to talk to Mr. Bolser and ascertain the circumstances under which Puckett had the contrivance in his possession.

The next day, February 6, Aldridge and Henson went to Paducah and saw Bolser at his home. On the way they stopped at Camp Currie in Marshall County, where at Clark’s request they conferred with Paul Winstead, the resident Regional Director for the Department. Also at Clark’s direction and after further telephone conversations with him, the three men proceeded to Paducah and were met there by William Chambliss, conservation officer for Livingston County, following which they all went to Bolser’s home. (Chambliss is the officer who had theretofore arrested Puckett on the occasion mentioned in Bolser's February 5 front page article.)

Here again there are inconsistencies in the testimony, but again we are of the opinion that they are not as significant as counsel for Puckett would have it.

Bolser said that on February 4 or thereabout he had been called on the telephone by an unidentified person and asked if he wanted a story on the jerk fishing below Kentucky Dam, to which he replied in the affirmative. As instructed by the caller, he then met Puckett at the Irvin Cobb Hotel and Puckett asked him if he “wanted to see something like what they were fishing with up there * * * And my best recollection is that he left and came back with this hook — contraption with hooks on it wrapped around either pasteboard or stiff paper or something, and he unraveled it and I took a picture of it.”

Bolser’s version of the interview with the officers at his home was that most of the conversation was between himself and Henson. He and Aldridge were acquaintances, and he testified that as best as he could remember Aldridge, after remarking that he was not involved in this thing but had come to Paducah on other business, left the room. Aldridge, on the other hand, said that he asked Bolser whether the apparatus shown in the picture was already assembled when he first saw it, and whether Puckett had disassembled it afterward, and that Bolser replied to the effect that Puckett brought it pre-assem-bled, wrapped around a piece of paper, and did not disassemble it. Having gained this information, said Aidridge, “I was of the opinion that the man was in possession of an illegal device for taking fish.” He so advised the conservation officers and accompanied them to the office of Hon. W. P. McMurry, county attorney for McCracken County.

Mr. McMurry, after examining the picture of Puckett and ascertaining the circumstances under which it was taken, expressed the opinion that the contrivance was an illegal fishing device possessed in McCracken County and that they were entitled to a warrant. He proceeded to draw the necessary papers, Chambliss signed the complaint, the warrant was issued by the county judge, and in due course Puckett was arrested, tried and ultimately acquitted.

Still another discrepancy in the evidence exists as between what Bolser said he told (or did not tell) the officers and what McMurry says they told him. According to McMurry, “They told me that Mr. Puckett, James Puckett, who is the man in the picture, had contacted Mr. Bolser and informed him that this was a device similar to the device he had been arrested with some days before up in another county, Livingston or Marshall or some county. I concluded from that that it was a jerk line and that it was an illegal fishing device,” etc. Bolser on the other hand denied having reported to the officers that Puckett had made such a statement to him.

We have come at last to the crux of the legal problem in the case. Advice of counsel is a complete defense to a claim of malicious prosecution “if all the facts bearing upon the guilt or innocence of the accused person which the prosecutor or informant knew or could have ascertained by reasonable inquiry, are fully and fairly disclosed to counsel. * * Under conflicting evidence, this is a jury question.” Smith v. Kidd, Ky., 246 S.W.2d 155, 159 (1952). More accurately stated, the conclusiveness of the defense is conditioned on a full and fair disclosure of material facts to the attorney whose advice is sought. Cf. Reid v. True, Ky., 302 S.W.2d 846, 847 (1957), wherein it is pointed out also that since public policy favors the exposure of crime, and malicious prosecution actions are not favored in the law, a plaintiff has the burden of making a clear showing of no probable cause.

It is argued in Puckett’s behalf that Bolser’s testimony and McMurry’s testimony provided a basis on which it was reasonable for the jury to find that the officers misrepresented a material fact to McMurry.

From the newspaper account alone, say counsel, one would assume that the contrivance shown by Puckett to Bolser was a legal rather than an illegal device when used from the shore, whereas additional (and erroneous) information to the effect that it was the same kind of contraption he had been arrested for using several days previously would justify counsel in concluding it was an illegal device. We find this theory difficult to follow. In the first place, regardless of what Puckett did not tell Bolser, and Bolser did not tell the officers, it was reasonable for the officers to assume that the device shown by Puckett to Bolser was the same type of contrivance he had been arrested for using. In fact, we draw the same conclusion not only from the newspaper photograph and text below it but also from Puckett’s testimony in this case. What was its relevance and why did he show it to a newspaper reporter if it was not? And if Puckett himself did not think it was illegal, what would have been the significance and newsworthiness of the revelation that the Department was condoning its use by hundreds of fishermen on the banks below the dam?

In the second place, if it is only the manner in which a device of this sort is used that makes it illegal, that Puckett had been arrested while using it on a previous occasion was certainly irrelevant .to a determination by the county attorney as to whether his possession of it at the Irvin Cobb Hotel was unlawful. And lastly, we cannot imagine that a prosecuting attorney with the experience and competence possessed by Mr. McMurry would or did base such an opinion on information that the man had been “arrested” in another county for using the device. To sum up, what we are saying with regard to the accuracy of what the officers informed McMurry they had been told by Bolser is that it was not and could not have been a material inducing factor in the formation of his legal opinion and advice.

Nevertheless, if it be conceded otherwise, there is still the advice of Mr. Ald-ridge, another competent attorney. It is of no importance whether he conferred personally with Bolser or got the facts thereafter from the officers who did. In either event he had the facts and gave the opinion. But, it is insisted, he was not “disinterested.” Why not? Because he assisted in the investigation and gave the advice? If so, every conscientious lawyer becomes “interested” by representing the person who seeks his advice and, perforce, the advice can be no defense. That simply cannot be the law.

One other failure to make full disclosure of the facts is suggested. Puckett testified that he works during part of the year as a commercial fisherman and that he held a commercial fishing license. That information was not provided to Mr. Mc-Murry. Neither, however, has it been shown that any of the officers knew it. But aside from that, it was not a material circumstance. Had it been so, Puckett might not have found it necessary to plead guilty in the Livingston County case.

After all the travail of this case one thing seems clear to us, and that is that the laws and regulations pertaining to “snag” fishing and “jerk” fishing and the possession of gear designed for such purposes were not clear. It strikes us that the officials herein sued went to great lengths in an effort to make certain that their grounds for proceeding against Puckett were valid. Conceding even, for the argument, that they were overzealous in prosecuting him, that they were unjustly motivated by a conspiracy to “shut his mouth,” still they had, as we view it, reasonable grounds to believe he was guilty. If one has probable cause to believe another has committed a crime it can make no difference that in charging him with it the accuser may also satisfy a personal animus.

“While, as the name implies, malice is the root of the action of malicious prosecution, malice alone, even when extreme, is not enough; want of probable cause for the institution of the original proceedings whether civil or criminal, must also be shown.” 34 Am.Jur. Malicious Prosecution'§ 46 (1941).

It is our opinion that the evidence did not justify submission of the case to the jury, that the same would be true had the matters preserved by avowal been admitted, and that the judgment of the trial court was correct.

The judgment is affirmed.

STEWART, J., not sitting.


author: PER CURIAM.

text:
    Ruth GOLDEN et al., Petitioners, v. Jim Allen YORK et al., Respondents.
    No. A-11780.
    Supreme Court of Texas.
    Dec. 31, 1966.
    Guilford L. Jones, Big Spring, Owen H. Ellington, El Paso, for petitioner.
    Paul Worden, McKinney, Hugh McGovern and Fred J. Morton, El Paso, James P. Markham, Jr., Houston, Joe Langford, Ralph Wm. Scoggins, El Paso, for respondent.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

Newton F. Tidwell died intestate survived only by descendants of his maternal grandparents and descendants of his paternal great-grandparents. The Court of Civil Appeals, relying on McKinney v. Abbott, 49 Tex. 371, has held that under Section 38 of the Probate Code, V.A.T.S., Tidwell’s estate must be divided into two equal moieties, one of which passes to the paternal kindred and the other to the maternal kindred. 407 S.W.2d 293. We approve this holding, but another question decided by the intermediate court has not been brought forward for review. The application for writ of error is accordingly

Refused, no reversible error.