author: WILLIAMS, Justice.

text:
    Z. George SHAW et al., Appellants, v. MASSACHUSETTS BONDING & INSURANCE CO., Appellee.
    No. 16258.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 6, 1963.

      Wm. Andress, Jr., Dallas, for appellants.
    Brundidge, Fountain, Elliott & Churchill and Roger A. Hansen, Dallas, for appellee.
   WILLIAMS, Justice.

Appellee, Massachusetts Bonding & Insurance Company (now known as Hanover Insurance Company) brought this suit against Z. George Shaw and wife, Ona Daly Shaw, d/b/a Texona Decorating Company, and Willie L. Barnett, trading as Bill Barnett & Associates, as indemnitors, for loss on a performance bond. Appellee based its suit upon an application for bond executed by Shaw and his wife as co-partner, and Barnett, which provided for indemnification of the surety company in the event of loss. Appellee alleged that it had paid out certain amounts, evidenced by vouchers or drafts, for materials and services furnished to the principal on the bond prior to date of default. Appellee not obtaining service on Willie L. Barnett, dismissed him from the case. The suit was tried to a jury and resulted in a judgment for appel-lee. Shaw and wife appeal, complaining primarily concerning the admissibility of certain testimony and also that the verdict of the jury is not supported by any evidence or, in the alternative, insufficient evidence.

By their first three points, grouped together, appellants complain of the action of the trial court in admitting into evidence a letter, designated Exhibit 2, and containing admissions of the correctness of certain accounts paid by the surety company on the loss in question. The admissions were signed by “Sarah Daniels, Attorney for Ona Daly Shaw”. Appellants contend that such a letter was inadmissible because (1) same was inadmissible against Z. George Shaw; (2) there was no' showing of authority of Sarah Daniels to sign the admission; and (3) that such confirmation of the correctness of the accounts was really a part and parcel of a compromise and settlement negotiation and therefore same was inadmissible, and the court should have submitted an appropriate issue inquiring as to whether it was a part of a compromise and settlement agreement. We think the exhibit was properly received by the court. The facts and circumstances surrounding the introduction of this evidence are as follows: The surety company’s pleadings alleged, inter alia, that “defendants, by said application, agreed to indemnify and hold plaintiff harmless of and from all loss, costs and expenses, including attorneys fees, which plaintiff might sustain in consequence of the execution of said bond, and agreed that the vouchers issued by plaintiff in discharge of any obligation shall be conclusive evidence of the fact and extent of liability of the surety.” The application for the bond, made the basis of this suit, provided in Paragraph XIV: “The vouchers or other evidence of any payment made in good faith by the company arising out of or in connection with the bond or bonds herein applied for shall be taken as conclusive evidence * * * of the fact and extent of liability of undersigned to the company.” At the end of the application the printed form provided : “If co-partnership, sign herefol-lowed by “Texona Decorating Company, Bill Barnett & Associates, Ona Daly Shaw (individually and as co-partner), Z. George Shaw (individually and as co-partner), and Willie L. Barnett (individually and as co-partner) .”

The records reveal that Ona Daly Shaw was represented by Sarah Daniels and Bill Andress, as attorneys, during the period in question and that Sarah Daniels had several telephone conversations with Lloyd Elliott, attorney for the surety company, concerning the losses under the bond in question. The record' further reveals that as various claims ■were presented to the surety company, after default of the principal, they were examined •by Lloyd Elliott, as attorney for the surety 'company, who would usually telephone Sarah Daniels concerning the correctness of certain claims prior to issuance of drafts in payment thereof. On one occasion Sarah Daniels told Elliott that the principal was in her office and that she had talked with the principal and that certain claims were correct. Drafts were prepared by the surety company to pay such claims, but before sending them out, attorney Elliott asked Sarah Daniels to confirm his understanding as to the correctness of these claims. Thereafter, under date of June 9, 1960 attorney Elliott forwarded to Miss Daniels a letter, known as Exhibit 2, in which he said:

“We are today requesting drafts covering the following claims:
The Patent Scaffolding Com-
pany $231.40
Southwestern Glass & Paint Co. ■ 440.94 .
Pratt & Lambert, Inc. 5,250.16
Pittsburgh Plate Glass Co. 2,484.55 Safway Scaffolds Co. 120.10
The Texas Company 82.50
It is our understanding from our conversation with you that your clients have confirmed the correctness of these claims.
Will you be kind enough to confirm this by signing the attached copy of this letter and returning it to us?
Yours very truly,
LEE :gh
This will confirm the correctness of the above accounts.
/s/ Sarah Daniels_
Attorney for Ona Daly Shaw”

When Exhibit 2 was offered in evidence objection was made thereto that same was a part and parcel of a settlement negotiation and therefore not admissible. Also, same was objected to because there was no showing of authority on the part of Miss Daniels to bind Mr. Shaw. Miss Daniels testified that the letter was signed by her after discussing certain settlement propositions with attorney Elliott. Attorney Elliott denied that settlement negotiations were discussed. The court refused defendants’ requested issue inquiring as to whether or not Exhibit 2 was a part and parcel of settlement negotiations.

There was no denial of the capacity in which appellants were sued as provided by Rule 93, Texas Rules of Civil Procedure. The evidence is conclusive that Z. George Shaw was a partner with his wife, Ona Daly Shaw, and therefore the actions and conduct of his partner would bind him. 32 Tex.Jur., Partnership, Sec. 79.

Neither do we think there is any substance in appellants’ contention that the letter was inadmissible, being a part and parcel of a compromise and settlement agreement. It is to be observed that there is nothing whatsoever in the letter itself to indicate a compromise and settlement agreement. It is nothing more than a request on the part of the attorney for the surety company to the attorney for the partners to verify the correctness of certain accounts. While it is true that there was conflicting evidence concerning certain compromise negotiations, yet the law is plain that if a statement forming a part of or connected with an offer of a compromise is an admission of an independent fact pertinent to the question in issue, evidence of such statement is admissible. 80 A.L.R. 919; International & G. N. Ry. Co. v. Ragsdale, 67 Tex. 24, 2 S.W. 515; Alling v. Vander Stucken, 194 S.W. 443, Tex.Civ.App. err. ref.; Farmers State Bank & Trust Co. v. Gorman Home Refinery, Tex.Com.App., 3 S.W.2d 65; Sanford v. John Finnigan Co., Tex.Civ.App. err. ref., 169 S.W. 624.

We believe that the exhibit clearly demonstrates an admission by an attorney binding upon appellants. Such admissions contained in the exhibit do not merely raise fact issues, but are conclusive upon the parties. Texas & P. Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652.

Should we be mistaken in holding that Exhibit 2 was admissible in evidence, yet such error, if any, was harmless in that the record does not demonstrate that such evidence resulted in an improper verdict or judgment. Rule 434, T.R.C.P. Moreover, there is ample evidence in this record, aside from Exhibit 2, to support the verdict and the judgment. Appellants’ Points 1 through 3 are overruled.

In their Point 4, appellants contend that the court erred in admitting into evidence the various vouchers and invoices in support of appellee’s claim, on the ground that such were hearsay and not admissible as business records. The record reveals that the various invoices introduced into evidence were of claims made against Bill Barnett & Associates for materials furnished prior to the date of default. Such invoices were a part of the surety company’s files at the time it issued drafts in payment thereof. The testimony that such written instruments were in the appellee’s files at the time it issued drafts in payment thereof was admissible to show the reason for payment. It must be remembered that the application for the bond, made by appellants to secure the issuance of the bond, provides that the vouchers or other evidence of any payment made in good faith by the company arising out of or in connection with the bond shall be taken as conclusive evidence of the extent of liability of the indemnitors. We find nothing wrong with this agreement. All of the parties herein are sui juris and therefore they lawfully made the agreement and, having done so, they are bound by the terms thereof. While the record does demonstrate some discussion concerning the business records statute, we do not believe that the court was restricted in admitting these exhibits to such Act. Under the terms of the specific agreement made by the parties, such exhibits were made admissible by the parties themselves. Fidelity & Casualty Co. of N. Y. v. Harrison, Tex.Civ.App., 274 S.W. 1002, wr. ref. Appellants’ fourth point is overruled.

In their last three points of error, 5 through 7 inclusive, appellants insist that since appellee failed to offer any proof of payment in good faith, or the reasonableness of the amount paid, that there was no evidence, or insufficient evidence, to sustain the verdict of the jury. Appellee urges that we should not consider these points because they are not germane to assignments in the motion for new trial. While it is true that these points of error are vague and general in nature, yet they are sufficiently germane, and since the verdict of the jury consists of only one special issue, we have concluded to consider such points. Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304; Texas Employers Ins. Ass’n v. Hawkins, Tex. Supreme Ct., 369 S.W.2d 305.

These points have required us to consider and weigh all of the evidence in this case in accordance with the rule announced in In" re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Having done so, we are convinced that the verdict of the jury in this case is supported by evidence and is not so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. Without repeating what we have heretofore said, reference to the application for the bond itself, and specifically Paragraph XIV thereof, expressly provides that the vouchers or other evidence of any payment made in good faith by the company shall be taken as conclusive evidence of the liability of the indemnitors. Therefore, the vouchers introduced in evidence prove the claim of the surety company, as a matter of law. The vouchers supporting appellee’s claim are in evidence and constitute adequate support for the verdict and judgment.

Appellants, in their answer, admitted the execution of the application and bond and then filed a general denial. No special defense was pleaded in bar of appellee’s claim. There were no allegations of fraud or lack of good faith. Contrary to appellants’ contention, it was not incumbent upon appellee to introduce evidence of good faith in the payment of the various invoices presented to it. The law indulges a presumption that business affairs will be conducted in good faith. 23 Tex.Jur.2d 126, Sec. 83; 20 Am.Jur. 223, Sec. 229 ; 31 C.J.S. Evidence 126, pp. 745-746; Fidelity & Casualty Co. of N. Y. v. Harrison, Tex.Civ. App., 274 S.W. 1002, wr. ref. Of course, as in other cases of presumptions, such is rebuttable and we find appellants introducing some testimony seeking to demonstrate that appellee paid the amounts of the vouchers without investigation as to the fairness and adequacy thereof. But all of these matters were submitted to the jury which found that the amounts were paid by appellee in good faith, thus deciding the issue against appellants’ contention. We cannot say that this finding is supported by no evidence or that it is insufficient. Appellants’ Points 5 through 7 inclusive are overruled.

The judgment of the trial court is affirmed.

Affirmed.

BATEMAN, J., not sitting.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Charles D. WYCHE, Appellant, v. R. V. WORKS, Independent Executor, Appellee.
    No. 16253.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1963.
    Rehearing Denied Dec. 20,1963.

      Yarborough, Yarborough & Johnson, Dallas, for appellant.
    Bowyer & Thomas, Dallas, for appellee.
   BATEMAN, Justice.

This is a companion case to Works v. Wyche, 344 S.W.2d 193, err. ref. n. r. e. A reading of our opinion in that case will undoubtedly provide a better understanding of this opinion.

Both cases were based upon a written contract whereby, in consideration of $1,-000, Wyche granted to R. V. Works, Trustee, an option to purchase two tracts of land for $93,000 and agreed that upon the exercise of the option by R. V. Works, Trustee, or his assigns, he would furnish a title policy and “pay the usual commission of 5% (five per-cent) on the purchase price to George W. Works and Company.” In the former case R. V. Works, Trustee, and his principal, Industrial Properties Corporation, alleged the exercise of the option and sought specific performance, which this court held on appeal they were entitled to. The present suit was filed by George W. Works, doing business as George W. Works & Company, for the 5% commission provided for in the contract. He died during the pendency of the suit and R. V. Works, independent executor of his estate, was substituted as plaintiff. The plaintiff then moved for summary judgment under Rule 166-A, Vernon’s Texas R.C.P. The trial court sustained the motion and rendered judgment for the full amount of the commission with interest thereon.

The appellant Wyche challenges that summary judgment here on the grounds that (a) there were certain genuine material issues of fact which, if resolved in his favor, would support a judgment in his favor, and (b) that the summary judgment deprived him of his legal right to a jury trial.

In determining whether any fact issues are in the case for jury determination, we must resolve all doubts as to the existence of fact issues against the appel-lee-movant. We must also accept as true all evidence of appellant and give him the benefit of every reasonable inference which properly can be drawn in his favor. Hersh v. H. E. Butt Grocery Co., Tex. Civ.App., 338 S.W.2d 174, err. ref. n. r. e.; McCauley v. Simmer, Tex.Civ.App., 336 S.W.2d 872, err. dism.; Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Lucky v. Fidelity Union Life Insurance Co., Tex. Civ.App., 339 S.W.2d 956, no writ. hist.

Appellant in his brief does not point out any genuine issue as to any material fact, and our search of the entire record fails to reveal any. The contract expressly obligates appellant to pay the commission sued for upon the exercise of the option. The option was exercised and this court has held that the purchaser was entitled to exercise it. Therefore appellant’s liability appears to be established unless it is defeated under one or more of the legal defenses asserted in his answer and reply to the motion for summary judgment.

(1) The first such defense was that R. V. Works drew the contract sued on, but was not a licensed lawyer; that the contract was therefore illegal, being in violation of Sec. 17 of Art. 6573a, Vernon’s Ann.Tex.St., and that neither George W. Works nor his son, R. V. Works, should be entitled to profit from the said illegal act of R. V. Works. This contention is without merit for two reasons: (a) the record shows that R. V. Works did not prepare the contract sued on, but that it was prepared by John M. Stemmons, President of the Industrial Properties Corporation, the undisclosed principal for which R. V. Works, Trustee, was acting in making the option contract; and (b) even if such a contract were prepared by one not a licensed lawyer, the validity of the contract would not be affected thereby.

(2) It was then asserted that there was no privity of contract between appellant and George W. Works, who never performed any services whatsoever for appellant, and that, therefore, the agreement to pay Works a commission is without consideration. This contention is also overruled. The contract is clear and unambiguous and specifically obligates appellant to pay this commission to George W. Works & Company in the event of exercise of the option. George W. Works did not need to agree to do anything for or on behalf of appellant; the consideration for appellant’s promise to pay him the commission, in part at least, was the payment to appellant of $1,000 in cash for the option.

(3) It was next claimed that R. V. Works was illegally acting in the dual capacity of a real estate broker and undisclosed principal in the transaction, in violation of Sec. 16(12) of Art. 6573a, V.A.T.S. The statute mentioned gives the Texas Real Estate Commission the power to suspend or revoke a real estate broker’s license when the licensee is determined to be guilty of “[ajcting in the dual capacity of Broker and undisclosed principal in any transaction.” Appellant’s contention in this respect is overruled because the facts do not show that R. V. Works was acting as an undisclosed principal in the transaction, but for an undisclosed principal. We are not aware of any legal prohibition thereof. Moreover the Act itself (Art. 6573a, Sec. 16) provides that it “shall not be construed to relieve any person or company from civil liability.” Even if a violation were shown, therefore, appellant would not thereby have been relieved of his liability under the contract. Borger v. Brand, 131 Tex. 614, 118 S.W.2d 303; Lyons v. Texorado Oil & Gas Co., Tex.Civ.App., 91 S.W.2d 375, err. ref.

(4) Appellant then contended that R. V. Works defrauded him by not revealing (a) that George W. Works & Company was only a trade name of his father, George W. Works, and (b) that George W. Works & Company had nothing to do with the transaction and option contract, averring that if these facts had been revealed to him he would not have signed an option contract providing for a commission to George W. Works & Company. R. V. Works owed no duty to volunteer to appellant the information that George W. Works & Company was only a trade name of his father, George W. Works; 'and he is not charged with any misrepresentations in this respect. Moreover, the fact that. George W. Works in person had nothing to do with the transaction involved is wholly immaterial. R. V* Works was shown to he employed by or working with his father, George W. Works, who did a real estate brokerage business under the name of George W. Works & Company, and it is quite apparent from this record that R. V. Works was. acting as a broker. There is nothing illegal or fraudulent in his doing so, and appellant will not be heard at this late date to say that he would not have signed the option contract if he had known these facts.

We hold therefore that there were no genuine issues of material facts, and that the undisputed evidence entitled ap-pellee to the judgment he received. In the absence of controverted fact issues, there was nothing to submit to a jury and appellant cannot properly say that he was deprived of his constitutional right to a jury trial. Both of his points of error are accordingly overruled.

Affirmed.

       It developed on the trial that Wyche owned only one of the tracts. Our judgment granted specific performance as to that tract and damages for failure to deliver the other.


author: MURRAY, Chief Justice.

text:
    Esmeregilda R. PENA et al., Appellants, v. George H. COATES et al., Appellees.
    No. 14159.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 20, 1963.

      Ewers, Toothaker, Ewers, Byfield, & Abbott, McAllen, for appellants.
    Head & James, Corpus Christi, Pope & Pope, Rio Grande City, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Starr County, Texas, by Esmere-gilda R. Pena, and Maria Pena Guerra, joined by her husband, Manuel A. Guerra, against George H. Coates and M. M. Conn, seeking termination of a certain mineral deed, whereby Coates became the owner of a 14 mineral interest in and under about seventy acres of land situated in Starr County, Texas, and described generally as Shares Nos. 11, 17 and 22 of the Partition of Santa Cruz 'Grant.

The trial court granted defendants’ motion for a summary judgment and rendered judgment that plaintiffs take nothing as against defendants, George H. Coates and M. M. Conn, from which summary judgment Esmeregilda R. Pena and Maria Pena Guerra, joined by her husband, Manuel A. Guerra, have prosecuted this appeal.

The effect of the court’s action was to refuse to declare as terminated the mineral deed for the failure to discover oil, gas and other minerals upon the above described seventy acres of land before May 21, 1957.

It is proper to here state the facts. On May 21, 1937, Cipriano Pena and his wife, Esmeregilda R. de Pena, executed a mineral deed to Tom Vessels, Jr., to one-half of the minerals in or under the seventy acres heretofore described. Tom Vessels, Jr., conveyed one-fourth of the minerals to George H. Coates. The original mineral deed provided that it would terminate unless oil, gas or minerals were discovered on the seventy acres before May 21, 1957.

Cipriano Pena died and his wife, Esmere-gilda R. de Pena, and his daughter, Maria Pena Guerra, appellants herein, became the owners of one-half of the minerals in the seventy acres not theretofore conveyed to Vessels.

On April 24, 1956, appellants executed a lease to C. G. Glasscock-Tidelands Oil Company, covering their one-half interest in the minerals. On May 1, 1956, appellee Coates executed a lease to the same lessee, covering his one-fourth mineral interest. Both of these leases authorized the pooling of their minerals into units not to exceed 640 acres for the production of gas. Subsequently the Coates gas unit was formed, comprising 389.10 acres, including the leases executed by appellants and appellee Coates.

Gas was discovered on July 15, 1956, on a fourteen-acre tract within the unit, and on August 6, 1956, gas was discovered on a forty-six acre tract included within the Canales Gas Unit.

On April 10, 1957, appellants executed a gas division order, and on April 12, 1957, appellee Coates executed the same division order. The division order acknowledges the existence of the Canales Unit, and authorizes payment of shut-in gas royalties for the purpose of perpetuating all of the named leases in force. The division order further reflects payment of shut-in gas royalties covering appellants’ lease to April 1, 1957, and covering appellee Coates’ lease to July 20, 1958.

Gas Purchase Contract was executed by C. G. Glasscock-Tidelands Oil Company, dated June 26, 1956, providing for take or pay gas commencing January 1, 1958.

Appellants executed a second lease to C. G. Glasscock-Tidelands Oil Company on November 28, 1958, authorizing pooling of their lands and providing for additional royalties. A division order effective January 1, 1958, was executed by appellants, acknowledging the existence of the Canales Unit, and the inclusion of their lands within such unit. Appellants recognized the mineral interest owned by appellee Coates as being in force and effect at the time of the execution of the lease.

On May 21, 1957, no gas was actually being produced from either of the wells in the Canales Unit. However, gas was discovered in one well in paying quantities on the Canales Unit on July 15, 1956, and in a second well on August 6, 1956. Coastal Transmission Corporation commenced the purchase of advance gas on January 1, 1958, and the gas pipe line was completed and gas commenced to be run into the gas line during the month of May, 1959, and has continued thereafter.

It is clear that gas, which proved to be in paying quantities, was discovered prior to the termination date of the min'eral deed, through the pooling of the mineral interests and the discovery of gas within the Canales Unit. All that was required by the terms of the mineral deed was that gas be discovered. Discovery does not mean production in paying quantities. Texas Pacific Coal & Oil Co. v. Bratton, Tex.Civ.App., 239 S.W. 688.

It is well settled that where pooling has legally occurred, which involves several parcels of land, discovery of gas on one of the parcels is regarded as discovery on all of the parcels. Spradley v. Finley, 157 Tex. 260, 302 S.W.2d 409; Southland Royalty Company v. Humble Oil & Refining Co., 151 Tex. 324, 249 S.W.2d 914; Williamson v. Federal Land Bank of Houston, Tex.Civ.App., 326 S.W.2d 560. The cases of Holland v. Vela De Pena, Tex.Civ. App., 343 S.W.2d 750 and Archer County v. Webb, 161 Tex. 210, 338 S.W.2d 435, are not applicable to the matters here involved, in that there production was required.

The appellee M. M. Conn was made a party to this suit because he was the operator of the lease and for no other reason.

The trial court did not err in granting appellees’ motion for a summary judgment decreeing that Esmeregilda R. Pena and Maria Pena Guerra and her husband, Manuel A. Guerra, take nothing as against George H. Coates and M. M. Conn, and that such appellees go hence without day and with their costs.

In view of the above holding, we find it unnecessary to pass upon the question of estoppel.

The judgment of the trial court is affirmed.


author: .BATEMAN, Justice.

text:
    GEVINSON ASSOCIATES and Daniel Gevinson, Appellants, v. LING ELECTRIC, INC., Appellee.
    No. 16260.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 6, 1963.

      Pat Maloney, San Antonio, for appellants.
    R. M. Ginsberg, Dallas, for appellee.
   .BATEMAN, Justice.

Judgment was rendered summarily :against appellants in favor of appellee for the full amount of the debt sued for, $7,500, -and $2,500 attorney’s fee. Appellee alleged that appellants were indebted to it “for work, labor and services performed by Plaintiff for Defendants, at their special instance and request, * * Following this allegation is an itemized statement ■showing 961 hours of engineering work ■done and certain expenses incurred, for which the defendants allegedly promised to pay $7,500 but had failed to do so on demand. Appellee also alleged that it was •entitled to a reasonable attorney’s fee of $2,500. Appended to this petition is the ■affidavit of appellee’s assistant secretary which follows the language of Rule 185, Vernon’s Texas R.C.P., except that it omits the statement that the account sued on “is, ■within the knowledge of the affiant, just and true, (and) that it is due.”

Appellant’s unverified answer contained a general denial, but no specific denial of the correctness of any of the allegations ■of the petition.

Appellee’s motion for judgment is based wholly on the premise that, having sued ■on a sworn account and there being no sworn denial in the answer, as provided in Rule 93, Vernon’s Texas R.C.P., appellee was entitled to judgment as a matter of law. Attached to the motion is the affidavit of Thomas A. O’Dwyer to the effect that on October 25, 1961 the parties entered into an agreement whereby appellee agreed to perform the services necessary to develop ■electrical working drawings, etc., in connection with the construction to be known as Tower Apartments; that appellants agreed to reimburse appellee for all expenses incurred at the rate of $7.50 per hour for all personnel engaged in the performance of the work, provided that the costs should not exceed $7,500; that on January 18, 1962 and again on June 4, 1962 invoice was issued to appellants setting forth 961 man hours at $7.50 per hour, drawings, traveling expenses and telephone charges, aggregating the sum of $7,521.83; that such invoice was limited to $7,500 pursuant to the said agreement; that the account has not been paid and that no credits exist which would in any manner diminish the account.

Appellants timely filed a controverting affidavit of one Glynn Butler, which shows on its face his qualifications and competency as a witness and then states that the contract sued upon by appellee provided that if the electrical contract for the apartment building in question were awarded to appellee, the $7,500 for the electrical working drawings, etc., would be included in the price to be paid to appellee by appellants for the entire job, and that the $7,500 would be due only in the event the contract was awarded to someone other than appellee, and that “Since this event has not yet happened, this suit is premature.”

No other evidence appears in the record before us. Appellants present two points of error on appeal: (1) the summary judgment was erroneously rendered because the affidavit of Glynn Butler raised material fact issues; and (2) the judgment for the $2,500 attorney’s fee and for interest from June 4, 1962 was erroneous.

In summary judgment proceedings, it is elementary that the burden of showing the lack of a genuine issue of material fact is upon the movant and that all doubts pertaining to the existence of such issue are resolved against him. Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; Gardner v. Martin, 162 Tex. 156, 345 S.W. 2d 274; Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; McDonald, Texas Civil Practice, Vol. 4. p. 1392, § 17.26 (VI). Also that in such proceedings our duty is not to decide any issues of fact, but only to ascertain if one is shown to exist. Rolfe v. Swearingen, Tex.Civ.App., 241 S.W.2d 236, err. ref., n. r. e.; Fowler v. Texas Emp. Ins. Ass’n, Tex.Civ.App., 237 S.W.2d 373, err. ref.; Lotspeich v. Chance Vought Aircraft, Tex.Civ.App., 369 S.W.2d 705, err. ref. n. r. e.

We are compelled under the foregoing rules to sustain both points of error and reverse the judgment for the following reasons :

In the first place, appellee has not met the burden of demonstrating that no genuine issue of material fact exists. The affidavit of Glynn Butler definitely raises a material fact issue, that is, as to whether appellants’ liability under the contract sued on was conditioned or not upon the awarding of the electrical contract to some contractor other than appellee. Without passing on the truth of this statement, we must say that it was sufficient to raise a material fact issue and to entitle appellants to a trial thereon.

Appellee’s showing is insufficient to support the summary judgment for the $7,500 in two other respects: (a) as here-inabove stated, the affidavit appended at the end of its petition omits certain essential information required by Rule 185, Vernon’s Texas R.C.P. to constitute the account prima facie evidence of the alleged indebtedness, and (b) no evidence is presented, by affidavit or otherwise, that the services alleged to have been performed were in fact ever performed. Proof that the alleged services were invoiced is not proof that they were performed.

Neither do we find in the record any basis for that part of the judgment awarding attorney’s fees to appellee. Art. 2226, Vernon’s Ann.T.S. authorizes the recovery of attorney’s fees by one having a valid claim for personal services rendered, but it is of course necessary for plaintiff to establish, at least prima facie, that the services were actually rendered. The statute, being penal in character, must be-strictly construed. Van Zandt v. Fort Worth Press, Tex., 359 S.W.2d 893, 895; Panhandle Broadcasting Co. v. Cercy, Tex. Civ.App., 363 S.W.2d 792, 798, no. wr. hist.; Burke v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Tex.Civ.App., 363 S.W.2d 392, 395.

Reversed and remanded.


author: WALTER, Justice.

text:
    Odell NELSON et al., Appellants, v. Manuel ENRIQUEZ, Appellee.
    No. 3851.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 8, 1963.

      Jack Hood, Borger, for appellants.
    Joseph A. Calamia and Frank Fullerton, .El Paso, for appellee.
   WALTER, Justice.

This is a plea of privilege case. Manuel Enriquez filed suit in El Paso County against American Tile & Terrazzo Mfg. Co., a corporation, Edgar R. Blair and Odell Nelson, for breach of a contract. Blair and Nelson each filed a plea of privilege. They also filed an answer. The clerk’s certificate discloses that the pleas of privilege were filed before and appeared on the docket before the answers were filed. Enriquez filed his controverting plea alleging exceptions 4 and 29a, Article 1995 of Vernon’s Annotated Civil Statutes. The pleas of privilege were overruled. Blair and Nelson have appealed.

The Statement of Facts reveals that the court overruled the appellants’ pleas of privilege, “after hearing arguments of counsel on the above matters.” No evidence was introduced in behalf of Enriquez to establish that exceptions 4 and Sec. 29a were applicable.

We find the general and familiar rule of venue stated by our Supreme Court in Goodrich v. The Superior Oil Company, 150 Tex. 159, 237 SW.2d 969, as follows: “The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.” This statement by Judge Gafiagher was approved by the Commission of Appeals in Compton v. Elliott, Tex.Com.App., 88 S.W.2d 91 where it stated: “Judge Gallagher, writing the opinion in Fagg v. Benners (Tex.Civ. App.), 47 S.W.2d 872, 874, said: ‘Appellant’s plea of privilege merely placed upon appellee the burden of proving one or more of the grounds of venue alleged in his controverting affidavit by a preponderance of the evidence, which means the greater degree and weight of credible testimony.’ ”

Enriquez sued American Tile, Blair and Nelson for breach of a contract. He alleged in his petition “That on the 26th day of July, 1962, plaintiff and defendants entered into a written contract of which the attached exhibit ‘A’ is a true copy. Exhibit ‘A’ is attached hereto and made a part hereof for all purposes.” Appellee’s exhibit “A”, which was attached to his pleadings, conclusively shows that the contract of employment was between American Tile & Terrazzo Mfg. Co., a corporation and Manuel Enriquez.

The first paragraph of the employment contract is as follows:

“THIS CONTRACT OF EMPLOYMENT, entered into by and between AMERICAN TILE AND TERRAZZO MFG. CO., hereinafter referred to as Corporation, and MANUEL EN-RIQUEZ, sometimes referred to herein as General Manager, and the parties do agree and contract as follows:”

The last paragraph and the signatures thereto are as follows:'

“THIS CONTRACT shall be binding on the legal successors, representatives, heirs and assigns of the parties hereto.
AMERICAN TILE & TERRAZZO MFG. CO.
By (sgd) Edgar R. Blair Edgar R. Blair
(Sgd) Manuel Enriquez Manuel Enriquez.”

Appellee apparently recognizes the rule that the burden of proof was upon him to establish that an exception to the venue statute was applicable in this case. However, he seeks to justify his failure to prove the exceptions because the appellants did not verify their pleadings as required under subdivision (c) and (h) of Rule 93 of Texas Rules of Civil Procedure. Said Rule 93 provides :

“A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.”

Subdivision (c) is as follows:

“That the plaintiff is not entitled to recover in the capacity in which he sues,, or that the defendant is not liable in the capacity in which he is sued.”

The applicable portion of subdivision (h) is. as follows:

“Denial of the execution by himself or by his authority of any instrument ini writing, upon which any pleading is. founded, in' whole or in part, and' charged to have been executed by him or by his authority, and not alleged to-be lost or destroyed."

It is true that in some cases the-plaintiff is not required to prove all of the-essential venue facts. Under Rule 91 certain facts will be taken as admitted unless-the defendant makes an issue out of them, by a verified pleading. A plea of privilege-does not constitute a verified denial of' allegations in the plaintiff’s petition required! to be denied under oath. Our Supreme-Court in Ladner v. Reliance Corporation et al., 156 Tex. 158, 293 S.W.2d 758 at page-763 said:

“When a venue fact is one which can be put in issue only by a verified pleading and the defendant does not interpose such a plea, the plaintiff is not required to prove the same.”

The controlling question is whether or nob the pleadings of the appellee were sufficient, to require a verified denial under subdivision (c) and (h) of Rule 93.

By appropriate language the written-contract became a part of the declarations, of appellee’s petition. They are to be construed together to determine if there is an allegation that Blair and Nelson executed! the contract. The question of whether appellants were liable in the capacity in which, they were sued and whether appellants executed the written contract can be answered! “by reading appellee’s petition. “The truth •of such matters appear of record” in appel-lee’s petition.

After considering the allegations in appellee’s petition and the contract attached thereto, we have concluded it was not necessary for appellants to deny under oath the matters set forth in said subdivisions (c) •and (h) of Rule 93. Woods v. P. B. S. Motor Company, Tex.Civ.App., 288 S.W.2d .557.

The judgment is reversed and remanded to the trial court with instruction to transfer the case against the appellants to the District Court of Hutchinson County, Texas.


author: CHADICK, Chief Justice.

text:
    SWIFT & COMPANY, Appellant, v. Coy BENNETT, Appellee.
    No. 7521.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 5, 1963.
    Nehearing Denied Dee. 3, 1963.

      Jack Neal, Ramey, Ramey & Neal, Sul-phur Springs, for appellant.
    Woodrow H. Edwards, Mt. Vernon, Howard S. Smith, Sulphur Springs, for ap-pellee.
   CHADICK, Chief Justice.

This is a breach of warranty case. A jury determined the six special issues submitted favorably to the plaintiff and judgment was entered accordingly. The trial court judgment is affirmed.

In the trial court at the completion of plaintiff’s proof in chief the defendant, Swift and Company, moved for instructed verdict. The motion, which was denied, was grounded in part upon the defects in the plaintiff Coy Bennett’s trial pleadings. The defects relied upon had been pointed out by special exceptions and the exceptions overruled prior to trial on the merits. At the end of all testimony a second motion was made for instructed verdict presenting the same grounds with respect to the pleadings. This second motion was denied. The jury thereafter reported its verdict. The defendant thén moved for judgment notwithstanding the verdict and urged again, among the grounds therefor, defects in the pleading as first pointed out by the special exceptions. This motion was overruled. No motion for new trial was filed in the trial court.

Swift and Company, the appellant, by its first point of error, delineates its position to be that the trial judge erred in overruling Swift’s motion for judgment notwithstanding the jury verdict because the trial pleadings failed to state a cause of action upon which the plaintiff could recover. The argument under the point urges defects in the plaintiff’s pleading to which it leveled special exceptions.

Chief Justice Alexander of the Waco Court of Civil Appeals, later Chief Justice of the Supreme Court of Texas, referring to the plaintiff’s petition in Williams v. Texas Employers’ Ins. Ass’n, Tex.Civ. App., 135 S.W.2d 262, writ refused, said: “Since it was good as against a general demurrer, the defendant could not take advantage of any irregularity therein merely by requesting an instructed verdict or by motion non obstante veredicto”. This statement is followed in the text of his opinion by the reasons for the rule under the procedural practice at that time. Judgments, 33 Texas Jurisprudence 2d, Sec. 77, p. 591 contains this statement of the rule applicable in a review of the question presented:

“The rule authorizing the rendition of a judgment notwithstanding the verdict is not designed to permit a party to have a judgment on the merits of the case rendered in his favor merely because of defects in his opponent’s pleadings. Thus if a pleading states a cause of action, the defendant may not take advantage of irregularities therein by a motion for judgment notwithstanding the verdict.”

See also Citizens State Bank of Houston v. Giles, Tex.Civ.App., 145 S.W.2d 899, error dismissed; 4 McDonald’s Texas Civil Practice, Sec. 17.32, p. 1412. In different language but consistent with present Rules of Civil Procedure, the rule applicable in this case may be worded as follows: Defects of a nature that render pleadings incapable of supporting a judgment constitute grounds for judgment notwithstanding a verdict, but mere irregularities in pleadings will not sustain the motion.

The question for decision is whether or not the plaintiff’s amended and supplemental trial pleadings are capable of supporting the judgment entered. An ac- . tion for breach of warranty is governed by the general rules of pleading. It is sufficiently stated when it alleges the existence of a warranty, the warranty’s breach and damages arising therefrom. See cases cited in the footnotes to Sales, Texas Jurisprudence 2d., Sec. 347, p. 724, and 77 C.J.S. Sales § 362, p. 1273. The language used in the pleadings is to be given its customary meaning and the averments are to be accorded their logical and obvious intend-ments and implications.

Plaintiff’s trial pleadings, his first amended original petition and petitions supple-mentative thereto contain the averment that in 1961 at the time of and as a second application of an insect poisoning manufactured by defendant was being made, in the course of an insect control program undertaken by plaintiff upon his 202 acre cotton field, the defendant’s agent advised plaintiff that a different brand of insecticide from that being applied, but also manufactured by the defendant, was “more suitable and a much better product for the job at hand”. There follows an allegation that the agent warranted the fitness and suitability of the insecticide plaintiff was advised to use for the use to be made of it, and the remainder of the field, 161 acres, was poisoned with such product. The pleadings say that immediately after application of the recommended product the cotton bolls began falling from the cotton stalks and the 161 acre tract was “practically stripped of bolls”. Referring to this last condition the pleadings allege that no valid or reasonable explanation existed for the cotton plants shedding the bolls but the application of the insecticide specified by the agent and used upon the 161 acre field. Elsewhere in the pleadings are allegations of the 1961 production from the 161 acres of cotton and from the remaining 41 acres which did not receive the last mentioned insecticide application, and of the loss of profit from the cotton crop occasioned by the use of the insecticide in question, etc.

Coy Bennett’s pleadings are sufficient to support the judgment entered. The point briefed asserts error in overruling the defendant’s motion for judgment notwithstanding the verdict. Special exceptions to the plaintiff’s pleadings were filed by the defendant and overruled by the trial judge, but this action was not assigned as error in a motion for new trial nor presented by points in appellant’s brief. The trial judges did not commit error by overruling the motion for judgment notwithstanding the verdict. The point is overruled.

The second point briefed asserts as error the trial judge’s action in overruling defendant’s motion for judgment notwithstanding the verdict because no special issue was submitted to the jury to determine whether or not the defendant warranted that the insecticide in question was suitable and fit for the purpose to which it was to be put. The absence from the appellate record of a statement of fact deprives this court of the means of appraising the merit of the point. See Appeal and Error, 3 Texas Jurisprudence 2d, Sec. 458, p. 707. The record presented requires that all issues material to the judgment rendered be treated as having support in the evidence. The point is overruled.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.

The original opinion characterizes this as a breach of warranty case. Perhaps a better understanding of the original opinion and the result reached will be fostered by specifically relegating the case to one division of that general classification. As the pleadings are understood the appellee, Coy Bennett, plead a contractual warranty and sought special, sometimes called consequential, damages for its breach. See Jones v. George, 61 Tex. 345. Contractual law governs in such cases, and the injured party’s redress, if any, must be in accordance with the law of contract. Brown v. Howard, Tex.Civ.App., 285 S.W.2d 752, N.R.E., distinguishes between true contractual breach of warranty cases such as this, and implied warranty cases such as Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, as well as another division of implied warranty cases epitomized by Brown v. Howard.

If the procedural bar discussed in the original opinion did not exist and Swift & Company’s special exceptions to Bennett’s petition could be considered, a result different from that ordered would not he proper. Coy Bennett declared on a theory of contractual breach, while Swift & Company treated the petition as an effort to state an action of implied warranty in which negligence of the manufacturer is an element. The special exceptions to the petition were not well taken.

Appellant’s motion for rehearing is respectfully overruled.


text:
    Jim COCKRUM, Appellant, v. CAL-ZONA CORPORATION, Inc. et al., Appellees.
    No. 16238.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 4, 1963.
    Rehearing Denied Nov. 15, 1963.

      Ernest May, Earnest R. Hawkins and' W. A. Hawkins, Fort Worth, for appellant.
    McDonald, Sanders, Nichols, Wynn & Ginsburg, Atwood McDonald, Fort Worth,, and Cervin, Stanford & Akin, Dallas, for appellees.
   BATEMAN, Justice.

Garnishment proceedings. The appellee Cal-Zona Corporation sued out a writ of garnishment addressed to the appellee Mills-Brokerage Company and another in aid of its suit in the same court against Sidney Zimel for debt in the sum of $8,625.00. The garnishees answered that prior to the service of the writ Zimel had written them a letter stating that he had assigned his interest in the indebtedness to the appellant Jim Cockrum, and stating that if the assignment were effective garnishee would not be indebted to Sidney Zimel in any amount, but that if the assignment were not effective the garnishee Mills Brokerage-Company would owe Zimel $6,474.36. Appended to the answer was a “bill of inter-pleader” making Jim Cockrum a party to-the garnishment suit on the ground that he was a necessary party in order to protect the garnishees from double liability, adding’ that garnishee Mills Brokerage Company was “ready, willing and able at all times to-tender the sum of $6,474.36 into this court and for this court to determine whether Cal-Zona Corporation, Inc. or the cross-defendant, Jim Cockrum, is entitled to said sum.” Citation was served upon Cockrum on November 28, 1962 in Alamosa, Colorado. Attached to the citation so served on him was a copy of the garnishees’ answer and said bill of interpleader.

On December 13, 1962, Cal-Zona Corporation, Inc., filed an unsworn “First Supplemental Petition” alleging that the purported assignment from Zimel to Coch-rum was without consideration and was made for the fraudulent purpose of defeating the plaintiff’s claim, and that Cockrum had no interest in the funds in the hands of the garnishee. No citation on this supplemental petition was issued or served on Cockrum.

Cockrum’s appearance day was December 24, 1962. He did not answer, and on December 26 the court rendered an interlocutory order reciting his failure to answer, and annulling his purported assignment. On January 10, 1963, this became 5nal and the garnisheed funds were awarded to the appellee Cal-Zona Corporation, Inc.

Appellant’s first point of error on appeal is: “No Jurisdiction of the garnishment.” He says now, for the first time on this appeal, that the judgment against him should be reversed because the application for garnishment was not sworn to as required by Art. 4076, Vernon’s Ann.Tex. Civ.St. As said by the. Houston Court of Civil Appeals in Gottesman v. Toubin, Tex.Civ.App., 3S3 S.W.2d 294, 299, no wr. hist.: “We think the defect in the affidavit is not fundamental or jurisdictional, but is one that may be waived. It does not render the garnishment proceedings void.” See also Megargel Drilling Co. v. City Nat’l. Bk. in Wichita Falls, Tex.Civ.App., 352 S.W.2d 796, err. ref. n. r. e.; Mundy & Co. Inc. v. Houston Bk. & Tr. Co., Tex.Civ. App., 254 S.W.2d 793, no wr. hist.; and Seinsheimer v. Flanagan, 17 Tex.Civ.App. 427, 44 S.W. 30, err. ref.

When the plaintiff and the garnishee treat the garnisheed fund as a trust fund to be awarded to those who would come in and by proper pleadings and evidence show a right thereto, the garnishment becomes of no importance, and the absence of oath to the application for garnishment must be held to have been waived. Reinertsen v. E. W. Bennett & Sons, Tex. Civ.App., 185 S.W. 1027, err. ref.

The first point is therefore overruled.

Appellant’s second point of error on appeal is that the court had no jurisdiction over appellant. This point must be sustained. Appellant was served in Colorado. There is no pleading or proof that he was then a citizen of Texas, temporarily absent from the State; therefore, the service in Colorado did not give the Texas court jurisdiction over appellant’s person. Bonanza, Inc. v. Lee, Tex.Civ.App., 337 S.W.2d 437. It follows that unless this proceeding was one in rem or quasi in rem the judgment against appellant must be set aside.

Although it was held in United States Rubber Co. v. Poage (5 Cir., 1962) 297 F.2d 670, 673, and by this court in Gibson v. National Life & Accident Ins. Co., Tex. Civ.App., 294 S.W. 923, 925, affirmed 1 S.W.2d 583, that a garnishment is a proceeding quasi in rem, it was also said by the San Antonio Court of Civil Appeals in McAllen v. Brownsville Masonic Temple Association, Tex.Civ.App., 201 S.W. 660, 662, no wr. hist.: “When doubt exists in the mind of a debtor or bailee of property as to whom the debt is due or the property belongs, he may by interpleader bring all parties into court and have a determination of the matter of ownership. However, in such case the plaintiff must bring or pay, or offer to bring or pay, the entire thing, fund, or money in controversy into court, and a failure to do so renders the bill demurrable. Pomeroy’s Eq.Jur. § 1328; Zachary v. Gregory, 32 Tex. 452; Joyce, Inj. § 564. An expression of willingness to pay under certain circumstances is not an offer to bring or pay the money into court.” (Italics ours)

If the garnished fund is not actually paid into the registry of the court, it must be tendered and the tender, in order to be valid, must be unconditional, 25 Tex.Jur. 58, “INTERPLEADER” Sec. 8; 33 Tex. Jur.2d 125, “INTERPLEADER” Sec. 10.

The Texarkana Court of Civil Appeals, in Richey v. Stanley, Tex.Civ.App., 38 S.W.2d 1104, no wr. hist., quoted the following from 38 Cyc. 143: “In order to make a valid tender of either money or chattels, the thing to be tendered must be actually produced and offered to the party entitled thereto, a mere offer to pay being insufficient; and the tenderer must place the money or property in such position that his control over it is relinquished for a sufficient time to enable the tenderee, if he so desires, to reduce it to possession by merely reaching out and laying hold of the money or thing; and a person is not bound to say whether or not he will accept the money or thing until it is produced.” (Italics ours)

See also the two opinions of the Amarillo Court of Civil Appeals in Universal Credit Co. v. Cole, Tex.Civ.App., 146 S.W.2d 222, 227, no wr. hist., and Wall v. Wall, 181 S.W.2d 817, 820, no wr. hist.

In the light of the foregoing authorities, and since it is clear that the sum in question was neither paid into the registry of the court nor unconditionally tendered, we hold that the case was only a personal action, and that since the court did not have jurisdiction over the person of appellant the judgment against him must be reversed.

Of course, this question of lack of personal service within the jurisdiction will not be present at the retrial of the case. By prosecuting this appeal the appellant is presumed to have entered his appearance. Rule 123, Vernon’s Texas Rules of Civil Procedure; Bonanza, Inc. v. Lee, supra.

Appellant’s third point of error on appeal is: “No case for Interpleader.” In spite of its disarming brevity, we shall consider this point under authority of Wagley v. Fambrough, 140 Tex. 577, 169 S.W.2d 478. As we understand the point, it is that appellant’s rights were so clearly exemplified by the assignment contained in the letter which one of the garnishees pled it had received from Zimel that there really should have been no controversy, that the garnishees should have merely answered that they did not owe Zimel anything. This point is overruled because it is well settled that a garnishee, faced with conflicting claims to funds admittedly owing by him, has not only the right but the duty to inter-plead the adverse claimants. Having no interest in the controversy, there is no sound reason why he should be required to assume the risk of deciding correctly which is entitled to the funds. 20-B Tex.Jur. 359, “GARNISHMENT” Sec. 129. Moreover,, it is desirable thus to avoid a multiplicity of suits, Clegg v. Varnell, 18 Tex. 294, 304.

Appellant’s fourth point of error on appeal, “No evidence for the default judgment”, is understood by us to mean that we are urged to reverse this judgment because there is no evidence to support it. In the-absence of a statement of facts, or of findings of fact and conclusions of law, “we must test the validity of the judgment on the assumption that the trial court found every disputed fact in such a way as to support the judgment here rendered.” Construction and General Labor Union Etc. v. Stephenson, 148 Tex. 434, 225 S.W.2d 958, 960. Point four is also overruled.

For the reasons hereinabove given, the judgment is reversed and remanded for another trial.

Reversed and remanded.

ON MOTIONS FOR REHEARING

Appellant’s motion for rehearing is overruled. However, we are reminded thereby of a portion of our opinion which lacks clarity. In overruling appellant’s-first point of error and in holding that the absence of oath to the application for garnishment was waived, we did not mean to hold that appellant had waived this defect. Not being before the court, and not knowing of the defect, he could not waive it. However, he does not show either that he was prejudiced by the waiver by the garnishees, or that he was such a party to the garnishment proceedings as would give him a right to complain of such waiver.

The appellees, Mills Brokerage Company and William Priddy, who were the garnishees, have filed a motion for rehearing in which they complain of our holding that the interpleader part of the proceeding was an action in personam, making the service of citation on appellant in Colorado ineffective to bring him before the court. Garnishees say that they should not be held to the strict rules relating to tender or payment of the fund into court required in interpleader cases, saying there is a difference between an interpleader suit, brought as such, and a garnishment suit where there are conflicting claims to the garnished fund.

We recognize this distinction, but point out that, strictly speaking, the appellant was not made a party to the garnishment suit. In their answer to the writ the garnishees allege that the Mills Brokerage Company received a letter indicating that any sums owing by it to the original defendant, Sidney Zimel, had been assigned to appellant Jim Cockrum; that if the assignment was effective they were not indebted to Zimel, but that if the assignment was not ■effective they were indebted to Zimel. But nowhere in the answer did they ask that appellant be made a party.

Following the garnishees’ said answer was a pleading denominated “Bill of Interpleader by Defendant, Mills Brokerage Company against Jim Cockrum,” in which appellant Jim Cockrum is made a party. There is a prayer that citation be issued and that upon the hearing the court determine whether “this Cross-Plaintiff is obligated to pay the sum of $6,476.36 to the Cal-Zona Corporation, Inc., or to Jim Cock-rum and that it be exonerated from any other liability,” etc. We adhere to the view expressed in our main opinion that the rules relating to the tender or payment of the fund in question into court apply the same as if this were a completely separate interpleader suit not connected with a garnishment proceeding.

Counsel for the garnishees say that if the court had jurisdiction to adjudicate the rights of Zimel in and to the fund, it had jurisdiction to adjudicate that appellant, after being cited by non-resident notice, had no title to the garnished fund, adding: “If such were not so, no adjudication of title to garnished funds could ever be made if one or more of the claimants should be outside of Texas, and not available for service within the state. The law does not produce such a result.” We are not called upon to determine whether, if garnishee had paid the money into the registry of the court, or otherwise definitely committed itself to do so, this interpleader suit would have been an action in rem in which appellant, being served in Colorado, would have been required to appear and set up his claim to the fund, or whether the garnishee could have properly filed an interpleader action in federal court under the provisions of 28 U.S.C.A. § 1335, for these matters are not raised by the record before us.

Both motions for rehearing are overruled.

Overruled.


author: STANLEY, Commissioner.

text:
    Myrtle BALLARD, Appellant, v. Stephen E. KING, Appellee.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.
    Rehearing Denied Jan. 17, 1964.
    Ben Hanish (Hanish & Hanish), Louisville, for appellant.
    Lively M. Wilson (Stites, Wood, Peabody & Helm), Louisville, for appellee.
   STANLEY, Commissioner.

The appellant, Mrs. Myrtle Ballard, a passenger in an automobile driven by her daughter, was severely injured when a car driven by the appellee, Stephen E King, ran into the rear of the automobile, and it, in turn, collided with a vehicle which had stopped in front of it. The defendant, now appellee, judically admitted liability in the action for damages. There were two trials, in both of which only the question of damages was submitted.

The verdict on the first trial was for $14,000, and judgment was entered thereon. On the defendant’s motion, the verdict and judgment were set aside on the ground of excessiveness and a new trial ordered. On that trial the verdict and judgment were for $5,000.

The plaintiff moved the court to grant her a new trial “and/or reinstate” the first verdict. The grounds of the motion were general and indefinite but contained allegations of inadequacy of the damages and error in instructing the jury. The motion was overruled, and the plaintiff has duly filed an appeal from that judgment. The evidence on both trials is brought up.

Under present procedure, where a judgment has been vacated, the order granting the new trial is regarded as interlocutory and reviewable on the appeal from the second judgment. Clay, CR 59.01, Comment 4; Cornett v. Wilder, Ky., 307 S.W.2d 752; White v. Hardin County Board of Education, Ky., 307 S.W.2d 754; Hardin v. Waddell, Ky., 316 S.W.2d 367.

The accident occurred on Dixie Highway in the suburbs of Louisville in the afternoon of December 28, 1958. When the automobile, driven by the defendant, a young man of sixteen years, who admittedly was not keeping a lookout for traffic ahead, rammed into the car in which the plaintiff was riding, it was as stated, knocked into an automobile ahead of it. The violent impact threw the plaintiff against the instrument panel. She was removed from the wreckage by police officers and taken to the city’s general hospital in an ambulance. She was found to have sustained severe back, chest and other injuries. Prior to the accident Mrs. Ballard had lost the sight in her right eye, and at the hospital glass was removed from her left eye. She lay immobilized on a hospital table for a considerable period of time, suffering from pain in her eye, chest and back. An X-ray revealed a compression of a vertebra, or a lumbar fracture, or broken back. She was removed to another hospital and was confined there for about a week. She then stayed at her daughter’s home for several weeks, most of the time in bed. Her daughter, who lived nearby, took her mother to the hospital in a wheelchair from time to time for further treatment.

The plaintiff was required to wear a steel brace for a period of six months and afterward to wear a special corset and support up to the time of the first trial, which was thirteen months after the accident. Before these injuries were sustained, the plaintiff, a 67-year-old widow, who lived in Hickman, Kentucky, was in good health, did her own housework, washed windows, mowed her yard and otherwise led an active life. During the intervening thirteen months the plaintiff had improved enough to do light housework but nothing heavy.

The plaintiff’s orthopedic surgeons described her injuries in detail. One of them expressed the opinion that she had suffered permanent injury and would have periodic pain and probable need to wear a brace on occasion and require future medical attention. The other doctor was not asked as to the permanency of the injuries. Another orthopedic surgeon examined the plaintiff on the request of the defendant a year after she was injured. He found some tenderness in her back and stated she complained of pain when she stooped over and at night. His X-ray showed a compression and “slight irregularity” in her vertebra, but he regarded her recovery as “quite satisfactory.” She carried her right shoulder higher than her left. This doctor also expressed the opinion that the plaintiff’s back injury was permanent.

The evidence on the second trial, held eighteen months after the accident, confirmed the plaintiff’s continuing suffering and the permanency of her injuries.

In Field Packing Company v. Denham, Ky., 342 S.W.2d 524, we commented on the difficulty of determining the amount of damages which an injured party is entitled to recover. In that opinion we observed:

“So, there is no mathematical formula by which an appellate court or a trial court may determine whether a verdict of damages for personal injuries is excessive. The determination depends upon the facts of the particular case and what compensation has been held in other like cases to be fair and reasonable for similar injuries, giving consideration to changed economic conditions since the precedents were established.”

We also took note of the time-honored general criterion that a verdict will be regarded as excessive when “at first blush” it “strikes the judicial conscience as being grossly excessive.” Our previous decisions serve as a precedential rule, but the conditions, of course, are different and varied in each case. In the present case the trial court regarded the verdict of $14,000 as excessive. We often recognize the broad discretion of the trial court in setting aside a verdict and our reluctance to disturb its action and hold there was an abuse of discretion — not in the sense of arbitrariness or a practical denial of justice, but as signifying a conclusion which this court, as one of appellate review, considers clearly erroneous. Cf. Harvey Coal Corp. v. York, 252 Ky. 605, 67 S.W.2d 977; Kentucky National Park Commission ex rel. Commonwealth v. Russell, 301 Ky. 187, 191 S.W.2d 214. Our conclusion is that in this case the trial court was in error in setting aside the first verdict on account of excessiveness.

It is unnecessary to consider other contentions of error.

Before closing the opinion we are impelled to say that the charges of unfairness and misbehavior on the part of the trial judge, filed in connection with his sustaining the motion for a new trial and repeated here, are so disrespectful and lacking in substantiality as to constitute professional misconduct bordering on contempt. And we may note that the eighty-page typewritten brief filed by the appellant in this court fails to comply with the manner and form required by our Rule 1.210. The brief is prefaced with what is substantially only a table of contents and overcitation of authorities. It does not specifically state or clearly point out the alleged errors which the attorneys contend entitle their client to a reversal of the judgment. We refer the attorneys to 5 C.J.S. Appeal and Error §§ 1322, 1324-1327, for a full treatment of the essentials and fundamentals of a proper brief. The court has been very lenient in applying its rules relating to the manner and form of briefs, but we have often observed that we will confine ourselves to those errors pointed out in the briefs and will not search the record for errors on which to reverse a judgment. Here we refrain from striking the appellant’s brief with leave to file a proper one only because the case has been pending for some time on account of the crowded docket.

The judgment of July 28,1960, is reversed with directions to reinstate the first verdict and judgment of date January 13, 1960.

Judgment reversed.


author: STEWART, Judge.

text:
    CITY OF ELIZABETHTOWN, Appellant, v. Margaret BAKER, Appellee.
    Court of Appeals of Kentucky.
    Sept. 27, 1963.
    Rehearing Denied Jan. 17, 1964.

      J. Howard Holbert, Elizabethtown, for appellant.
    J. T. Hatcher, Hatcher & Lewis, Eliza-bethtown, for appellee.
   STEWART, Judge.

Appellee, Margaret Baker, injured when she stepped on a water-meter cover owned by appellant, City of Elizabethtown, filed a negligence action against the city and recovered a judgment of $1420.54. The city moved for an appeal, which was granted.

Appellant argues that (1) appellee, was contributorily negligent, and that (2) the city had no knowledge of the alleged defect in the meter cover .and, furthermore, its condition had not existed for a sufficient length of time to make the city chargeable with notice. We believe the second ground urged for reversal is meritorious and we shall therefore confine the discussion in this opinion to that point.

Appellee, the wife of a soldier stationed at Fort Knox, came to Elizabethtown to see a doctor on April 7, 1960. She got out of a car and crossed North Main Street diagonally near Poplar Street in the middle of the block, walking towards the other side where the doctor’s office was located. There was no crosswalk where she traveled. In following this course, she stepped on a water-meter cover which was maintained by the city and which was located in the grass strip between the curb and the sidewalk. The meter cover turned with her and she fell into the meter hole. She suffered a skinned leg and a low back injury.

It was established that there are approximately 4,000 water meters in the City of Elizabethtown and they are read once a month by four men in teams of two; one man removing and replacing the covers and another reading the meters and writing down the numbers. The meter in question was read regularly over the years, the last reading before the accident being February 22, 1960. Due to a deep heavy snow on the ground, the meter was not read as scheduled in March of that year.

Appellee claims there was dirt and grass around the rim of the housing, so that the cover of the water meter would not fit properly. Everett Montgomery, who witnessed the fall and assisted appellee to her feet and helped her to the doctor’s office, stated that he replaced the cover which had turned upside down when ap-pellee fell. According to his testimony, there was a little grass on the cover which he wiped away with his hand. It fit securely but he did not lock it, he said, because he had no pliers.

The meter readers ' testified the meter cover was in good condition at the last reading and that they replaced the cover and locked it at that time. The city engineer testified that a few hours after the accident the meter cover was properly in place; and that the nut which locks it in the right position can be turned by ordinary pliers. He stated that the nut was not placed on it to keep the cover from turning but to keep unauthorized persons away from the meter, and that the cover will not rock or tilt, even if the nut is not locked. His testimony also brought out the fact that the meters can be unlocked with an ordinary pair of pliers and that this is frequently done by plumbers and property owners in order to avail themselves of the water cutoff valves down in the meter holes.

Roger Nichols and Perry Thomas, two persons called by the city as witnesses, testified they had passed by the meter cover in question many times each day and that they had never seen anything wrong with it. There are numerous photographs of the meter in the record. Practically all these were taken soon after the accident occurred and none indicate the cover was in an unsafe or insecure condition.

The duty of the City of Eliza-bethtown in the instant case required that it use ordinary care and prudence for the safety of pedestrians in the maintenance of the sidewalks, roadways, and the intervening strips, such as the one where this meter cover was located. Furthermore, unless it is proved that the city had knowledge of the defect or unless such knowledge can be imputed by the length of time the defect had existed, the city is not liable for the injury of appellee. Morrow v. City of Harlan, Ky., 344 S.W.2d 401; Lutz v. Louisville Water Company, 291 Ky. 31, 163 S. W.2d 29; Cundiff v. City of Owensboro, 193 Ky. 168, 235 S.W. 15.

In the record before us there is a complete absence of evidence that the City of Elizabethtown had any knowledge whatever of any defect in the meter cover, assuming there was a defect in the cover. In addition it appears the city used ordinary care and prudence in maintaining the cover in a reasonably safe condition.

Appellee places emphasis on the fact that the meter cover lay at the time in a somewhat tilted position rather than parallel with the surrounding surface of the ground. However, according to her testimony, it was not the tilted position of the meter cover that caused the accident, although that condition may have existed long enough for the city to have been on notice in this respect. The actual cause was the fact that the nut ordinarily securing the cover had been removed and there is no proof of how long it had been missing. In fact, no one really contends it could have been missing earlier than the date of her injury.

Under the facts stated, and in view of the law applicable thereto, no liability attached to the city in this case.

Wherefore, the judgment is reversed with directions that a new one be entered dismissing appellee’s complaint.


author: EARL T. OSBORNE, Special Commissioner.

text:
    Harry L. McKENZIE and the Employers Liability Assurance Corporation, Ltd., Appellants, v. COMMONWEALTH of Kentucky, for the Use and Benefit of Willard HICKS, Appellees.
    Court of Appeals of Kentucky.
    Oct. 4, 1963.
    Rehearing Denied Jan. 17, 1964.

      J. K. Wells, Paintsville, C. Kilmer Combs, Prestonsburg, for appellants.
    Cassie Allen, Scott Collins, Paul Hayes, Robert Wellman, Prestonsburg, for ap-pellees.
   EARL T. OSBORNE, Special Commissioner.

This is an action by Willard Hicks against Harry L. McKenzie, former sheriff of Johnson County, Kentucky, and the Employers Liability Assurance Corporation, LTD, for the recovery of the amount of an execution and thirty percent penalty thereon plus interest. The basis of the action is the failure of the sheriff to consummate the sale of property levied on under an execution issued from the Floyd Circuit Court in favor of the Appellee, Willard Hicks. It is prosecuted under the provisions of KRS 426.350.

The execution was issued from the Floyd Circuit Court with the return date of March 1, 1954, and was delivered to appellant McKenzie on January 6, 1954. The records of the Floyd Circuit Court do not show that the execution was ever returned to that ■court after it was placed in the hands of the sheriff. Also, appellee gave the sheriff a_list of property upon which to levy and the sheriff required of the appellee an indemnity bond which bond was executed by •appellee. A levy was made upon the property and a sale was conducted on March 1, 1954. The evidence discloses and it is not •disputed that the sheriff delayed the sale for some indefinite period of time as he was expecting an order of a referee in bankruptcy staying the proceedings of the .sale. The order did not arrive and the property was duly sold (but the sale was never carried out). The property had an .appraised value of $4,500.00 and consisted ■of a house, seven lots, two gas wells and ■transmission lines and either one or two motor vehicles. After the sale, on March '9, 1954, the sheriff wrote Mr. Nathan Elli■ott, Referee in Bankruptcy, Security Trust Building, Lexington, Kentucky, in which he ■advised Mr. Elliott that he had just learned •of the bankruptcy and asked advice of the referee as to what disposition to make of the property. On March 12, 1954, the sheriff received from Bunyan S. "Wilson, Jr., Trustee in Bankruptcy for Hursh Williams Pack, the judgment debtor, a letter advising the sheriff that he had been appointed trustee for the debtor and that Mr. Pack had filed his petition to be adjudged a bankrupt on February 15, 1954, and that title to all of Mr. Pack’s property was now in the trustee in bankruptcy and that with the •matter in the hands of the federal courts none of the property could be sold or disposed of except by permission or order of the referee in bankruptcy. On March 18, 1954, Mr. J. Nathan Elliott, Referee in Bankruptcy, wrote the sheriff in reply to his letter of March 9, 1954, advising the sheriff that any attachment lien obtained within four months of the bankruptcy would be null and void because of the bankruptcy proceedings and further adding “1 take it that would be in reference to the execution that was issued in the Floyd Circuit Court in the case of Willard Hicks against Pack.” The letter advised the sheriff that “I am glad you have not executed the deed or advertised the truck for sale as it would be well not to incur any additional expenses.” Appellant’s defense was built around the above letters and he contended that in view of these letters he was justified in not consummating the sale. He testified that he endorsed a return upon the execution to the effect that there was a bankruptcy proceeding pending and returned same by mail to the Floyd Circuit Court (this was more than 30 days after he had received the execution). The record discloses that on the 2nd day of April, 1954, the property under execution was disclaimed by the referee in bankruptcy and returned to the estate of the bankrupt. There is no indication in the record that the sheriff was given notice of this action by the federal court or the referee or trustee in bankruptcy. Appellee contends that under the provisions of KRS 426.350 the sheriff is liable for the amount of judgment with interest plus thirty percent penalty for not consummating the sale and making timely return of the execution in question. This statute provides as follows:

“Liability of officer for failing to make return in time; exceptions. (1) Any sheriff or like officer in whose hands a writ of execution is placed, who fails, without reasonable excuse, to return the writ to the office where it was issued within thirty days after the return day, shall, with his sureties or the personal representatives, heirs or devisees of either, be liable jointly and severally to the plaintiff in the execution for the amount of the execution, with thirty percent damages thereon and the cost of recovery. The remedy shall be the same as provided in KRS 426.360.
“(2) The provisions of subsection (1) of this section shall not apply to any case in which the collecting officer had, at the commencement of the proceeding, paid the plaintiff the amount of the execution. If he had paid in part, then the thirty percent damages shall only be adjudged against him upon the portion unpaid.
“(3) If the defendant in an execution is insolvent, and has no property in the county out of which the execution or any part thereof can be made, the collecting officer shall not be held liable for the amount of the execution for failing to comply with the provisions of subsection (1) of this section, but shall be liable for thirty percent of the amount of the execution.”

The trial court after hearing the case by deposition entered a finding of fact and conclusion of law and found as a fact that the value of the property which came into the hands of the appellant could reasonably have been expected to have satisfied the amount of the original judgment, that the appellant did not make return of the execution nor make a good faith attempt to return the execution to the Floyd Circuit Court within thirty days after the return date thereof and that appellant further failed to offer any reasonable excuse for not so making a return. The court concluded as a matter of law that the advice and information which the appellant obtained from the referee and trustee in bankruptcy concerning the bankruptcy proceedings were not sufficient excuse for the sheriff to not consummate the sale and make return of the execution and that there was never any order entered by the bankruptcy court staying the sale or enjoining the proceedings under the execution. The court further found that the discharge in bankruptcy acted only in personam but that the execution constituted a lien upon the property of the bankrupt and that proceedings upon said execution were still possible and that the sheriff should be held liable under the provisions of KRS 426.350 and that he in turn should be subrogated to the rights of appellee under the provisions of KRS 426.380. Following which findings and conclusions the Court entered judgment for the appellee in the amount of $5,401.05, the principal amount of the original judgment plus interest to the date of execution, upon which he added a further amount of thirty percent damages or the sum of $1,-620.33, or a total of $7,021.38, and the cost which was $17.35 and upon this amount he awarded interest at the rate of six percent from the 1st day of March, 1954, until paid together with the cost of this action. The court further adjudged that the Employers Liability Assurance Corporation, LTD, be limited in their liability to the sum of $5,-000.00, the total amount of the bond then in effect, and awarded judgment over and ¿gainst the defendant Harry L. McKenzié on behalf of the Employers Liability Assurance Corporation, LTD, in this amount.

We are of the opinion that there is substantive evidence to support the findings of fact of the trial judge. It not only appears from the record that the appellant failed to use due diligence to consummate the sale and make return upon the execution but it further appears that he overtly sought reasons and excuses for delaying the sale by writing the referee in bankruptcy, thereby avoiding his clearly defined duties under the law of this Commonwealth. The trial judge further found that the execution was not returned to the Floyd Circuit Court within thirty days after its return date and we are of the opinion that there is substantial evidence to support this finding.

The next question presented is whether the notices received by appellant from the referee and trustee in bankruptcy were sufficient to warrant the sheriff in staying proceedings upon the execution and sale and thereby exonerate him from the provisions of the foregoing statute.

In determining this question we must of necessity go to the provisions of the Federal Bankruptcy Act and to the rulings of the Federal Courts thereunder. Clause {1) of subdivision a of section 67 of the Bankruptcy Act, 11 U.S.C.A. § 107, sub. a, FCA Title 11, Section 107, sub. a, as amended by the Amendatory Act of 1938, provides as follows:

“Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition in bankruptcy or of an original petition under chapter X, XI, XII, or XIII of this Act by or against such person shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent or (b) if such lien was sought and permitted in fraud of the provisions of this Act: Provided, however, That if such person is not finally adjudged a bankrupt in any proceeding under this Act and if no arrangement or plan is proposed and confirmed, such lien shall be deemed reinstated with the same effect as if it had not been nullified and voided.”

A lien obtained through the rendition of a judgment against the bankrupt or the levy of an execution upon his property is not automatically nullified by the adjudication in bankruptcy, albeit the bankruptcy court is given summary jurisdiction in the premises. The question of nullification or no nullification is one which the parties are entitled to have determined judicially. See 6 American Jurisprudence, page 1159, section 1014.

“A lien is not nullified automatically as one obtained by legal proceedings within four months of bankruptcy. The establishment of the requisite elements of nullification presents questions calling for judicial determination. A judgment is not to be summarily stricken off for the reason only that it was rendered and entered within four months of the bankruptcy of the defendant.” (6 American Jurisprudence, page 1172, section 1043.)
* * * * * *
“The jurisdiction of the bankruptcy court over a lien by legal proceedings is confined to cases in which the lien is one nullified by the bankruptcy. The recognition, under principles of comity, of the jurisdiction of a state court over property which it has brought within its custody by the service of its process in an action against the owner prior to the filing of a petition in bankruptcy by or against the owner, is subject to the power of the bankruptcy court to invalidate the lien obtained by the levy. * * * But where, under an attachment levied before the petition in bankruptcy was filed, the property had been put into the hands of a receiver without notice of the petition, the local court having the actual custody of the res has the power to preserve the subject matter of the controversy, before notice of the bankruptcy proceedings. Moreover, the state court may proceed to judgment and appropriation of the property attached in the absence of action taken to assert the exclusive jurisdiction of the bankruptcy court.” (6 American Jurisprudence, page 596, section 56).

In Connell v. Walker, 291 U.S. 1, 54 S.Ct. 257, 78 L.Ed. 613, the Supreme Court of the United States had the specific problem before it as to whether or not a proceeding in bankruptcy automatically terminated a lien created by attachment issued from a state court because the attachment was procured when the bankrupt was insolvent and within four months before the petition in bankruptcy. The court held that the mere institution of the bankruptcy proceedings did not invalidate the lien created by the attachment and in the course of its opinion pointed out that the referee or trustee could have procured from the court such orders as were necessary to have enjoined the attachment proceedings. In the course of its opinion the court states:

“Bankruptcy proceedings do not, merely by virtue of their maintenance, terminate an action already pending in a nonbankruptcy court, to which the bankrupt is a party. Pickens v. Roy, 187 U.S. 177, 23 S.Ct. 78, 47 L.Ed. 128; Jones v. Springer, 226 U.S. 148, 33 S. Ct. 64, 57 L.Ed. 161; Straton v. New [283 U.S. 318, 51 S.Ct. 465, 75 L.Ed. 1060], supra. This is obviously the case where the suit like the present one is brought by a creditor to set aside a fraudulent conveyance of the bankrupt, made more than four months before the petition in bankruptcy. The right asserted is one given the creditor by state law which the Bankruptcy Act withdraws from him only upon the election of the trustee to assert the rights of the creditor, as he is privileged to do. * * * The question remains whether, the trustee having failed to assert any rights with respect to the pending action, the state court was required to stay it by any provision or necessary implication of the Bankruptcy Act. We find it unnecessary to decide whether section 11a, U.S.C.A. § 29(a), authorizing a stay of certain suits pending against a bankrupt, lays down a rule for nonbankruptcy as well as bankruptcy courts, or whether it is applicable to suits like the present one or whether the bankrupt may invoke its provisions. For, if applicable here, the authority given by that section to stay pending suits after adjudication, which has taken place here, is not mandatory, but permissive, to be exercised in the sound discretion of the court. THERE IS NO SUGGESTION THAT THERE WAS ANY ABUSE OF DISCRETION BY THE STATE COURT IN REFUSING TO STAY ITS.HAND ON THE BARE SHOWING BY THE FRAUDULENT BANKRUPT THAT THERE HAD BEEN AN ADJUDICATION IN BANKRUPTCY. It does not appear that there is any creditor other than respondent, or that the trustee had not been advised of the suit, or that the bankrupt could not by giving notice to the trustee, have afforded the trustee ample opportunity to assert his rights, if there were other creditors to protect.”

Under the provisions of KRS 426.120 there was a lien created upon the property of the execution debtor at the time the execution was issued by the clerk and this lien continued so long as the execution remained alive in the hands of the sheriff. (Webster v. Industrial Acceptance Corporation, 234 Ky. 613, 28 S.W.2d 959.)’ As there was no order issued by the federal court nullifying this lien and as the trustee or referee in bankruptcy took no proceeding in the federal court to set aside this lien or subject the property of the bankrupt to the orders of that court the state court retained jurisdiction and the appellant therefore had no legal cause or excuse not to proceed with the sale under the terms o£ the execution.

As to the question of interest awarded by the trial judge, it is our opinion that he erred in awarding interest upon the penalty and upon the amount of the execution, from the returnable date of the execution. There is no basis for allowing interest on the penalty until the penalty has been adjudicated. Since the liability of the sheriff for the amount of the execution is-likewise in the nature of a penalty, interest should not be allowed upon it except from the date of adjudication of the liability. The judgment should have awarded interest on the amount of the execution and penalty only from the date of the judgment.

It is recommended that the judgment be reversed as to the allowance of interest and! that the trial court be directed to enter judgment in accordance with this opinion,, but that in all other respects the judgment be' affirmed.

The opinion is approved and the judgment is affirmed except as to the allowance ■of interest, concerning which the trial court is directed to enter judgment in conformity with the opinion.


author: FAUST Y. SIMPSON, Special Commissioner.

text:
    LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellant, v. Burley TOMLINSON, Thomas Tomlinson and Robert Tomlinson, Appellees.
    Court of Appeals of Kentucky.
    Oct. 11, 1963.
    Rehearing Denied Jan. 17, 1964.
    James M. Terry, James F. Wheeler, Louisville, Henry L. Bryant, Pineville, Glenn W. Denham, Middlesboro, for appellant.
    Carlos B. Pope, Barbourville, for ap-pellees.
   FAUST Y. SIMPSON, Special Commissioner.

('J'This is an appeal from a judgment against the appellant L & N R. R. Company, in favor of the appellee Burley Tomlinson for $4650.00 for damages to his truck and in favor of appellees Thomas Tomlinson and Robert Tomlinson for $2485.00 and $4910.00 respectively for physical pain and suffering, loss of wages and doctors’ and hospital bills as the result of an accident at a grade crossing in Harlan County between the train of appellant and the truck of appellee Burley Tomlinson driven at the time by his son, the appellee Thomas Tom-linson, and in which the appellee Robert Tomlinson, another son, was a passenger. The appellant contends the trial court should have found for it because of the absence of negligence on its part, or because of conclusive proof of contributory negligence.

The railroad track in questions runs generally north and south from Norton, Virginia, to Corbin, Kentucky. Martin’s Fork' Branch parallels the track on the west and a county road roughly parallels the track on the east near the crossing where the accident occurred. To the north of the crossing some 1400 feet is the coal tipple of the V & C Coal Company, on the east side of the track, and between the coal tipple and the crossing is a wash house, about 325 feet north of the crossing. Opposite the tipple the railroad track curves to the right 7 degrees, then goes straight for 393 feet, and then makes an 8-degree curve to the right which continues to the crossing.

The county road runs parallel with the track and to the east of the tipple and wash house and then crosses the track at the place of the accident at an angle of about 30 degrees. The road at this point is about 4 feet lower than the railroad bed. The ap-pellee Burley Tomlinson was operating a coal mine under lease with V & C Coal Company, the coal mine being located south of the crossing in question and on the east side of the railroad track. The appellee Thomas Tomlinson worked for his father hauling coal from the coal mines to the V & C tipple, above referred to. To get to the tipple it was necessary to cross the railroad track to the south of the crossing in question, then go north for a short distance and re-cross the track at the crossing in question, and then proceed to the tipple.

On the morning of the accident, Thomas Tomlinson on business for his father, Bur-ley Tomlinson, with his brother as a guest passenger had been to :th« V' & ■ C. Coal Company tipple and was returning to his father’s mine when the accident happened at the crossing in question. It was stipulated by the parties that the crossing where the accident occurred was a private crossing and that there were no sign posts or whistle post in connection with this particular crossing. The evidence was undisputed that there were 400 or 500 crossings per day by truckers, miners and residents in that vicinity. The evidence was conflicting as to whether or not the statutory signals were given. Both Thomas Tomlinson and Robert Tomlinson, as well as several other witnesses residing nearby, testified that no whistle was blown or bell rung. The train crew testified just as certainly that the signals by blowing the horn and ringing the bell were started at the Chevrolet crossing which was estimated to be from a half mile to a mile north of the accident crossing and the signals were given up to the time of the accident. Appellees’ witnesses further estimated the speed of the train from 40 to <50 miles per hour, while appellant’s train crew estimated the speed at 25 to 30 miles per hour.

The case was submitted to the Court without a jury and the Court found that (1) the crossing where the accident happened was a private crossing but used by the public generally and an extremely dangerous one; (2) the defendant’s agents knew of the general use of the crossing by the public and acquiesced in its use and customarily gave signals of the approach of its trains; (3) no signal was given on the date of the accident; (4) the train was traveling at an excessive rate of speed; (5) the train crew failed to keep a proper lookout and (6) the driver of the truck and his guest both exercised ordinary care for their own safety and were not guilty of contributory negligence.

Under CR 52.01 findings of fact of the trial court shall not be set aside unless clearly erroneous and the panel is of the opinion that although we may have some doubt of the correctness of the finding, we cannot say and do not say that the. first five findings of the trial court are erroneous ; however, we are of the opinion that the sixth finding, wherein he finds the ap-pellee driver and guest passenger exercised ordinary care for their own safety, is clearly erroneous.

The appellee Thomas Tomlinson bad driven this crossing many times daily and knew of the dangerous condition, as ■did the appellee Robert Tomlinson, although he did not travel the crossing as often as Thomas. Thomas Tomlinson testified he 'drove the truck upon the approach to the crossing at a very low rate of speed and looked up the track and down the track and could see nothing hut because of the tilt of his truck he could only see 20 feet up the track. Robert Tomlinson testified the truck approached the crossing at a very slow rate and both he and his brother looked up the ’track and saw nothing and looked down the track and saw nothing and proceeded to ■cross and just as they got on the track the train appeared and hit them. According to his testimony, there is a curve in the track about 200 to 225 feet up the track but because of the truck turning to the right he could only see 160 feet up the track. The exhibits introduced by the appellant consisting of a plat of the area around the crossing and pictures taken shortly after the accident which showed without a doubt that one approaching the crossing in the direction the Tomlinson truck was going would have an unobstructed view up the track of not less than 500 feet and probably more as one picture taken from the crossing plainly shows the V & C Coal Company tipple which, according to the testimony, was 1400 feet up the track from the crossing.

The facts of this case are almost identical, even to the locale, with those in Louisville & N. Railroad Company v. Troutman, Ky., 351 S.W.2d 516. In that case we said:

“It is unquestioned that a railroad crossing is in itself a warning of danger and that a traveler having knowledge of its existence must exercise care for his own safety in such a degree as is proportionate to the danger then present or apparent of being struck by a train. * * * If he knows, or in the exercise of reasonable care and prudence must have known, of a train approaching by using his senses of sight and hearing in a way that an ordinarily prudent person would do under similar circumstances, and drives his automobile in front of the train, he assumes the risk of crossing in safety. If he miscalculates and is injured, he is guilty of contributory negligence.”

The opinion concluded by holding the driver of the vehicle guilty of contributory negligence as a matter of law. We conclude likewise, that Thomas Tomlinson was guilty of contributory negligence but for which there would have been no accident; therefore, the judgment in favor of Thomas Tomlinson should be reversed and judgment entered for the appellant.

It is also well recognized in our jurisdiction that if a master or principal is injured by any negligence of a inferior servant or agent, who at the time is engaged in the service of such master or principal, and carrying out the duties of his employment in furtherance of the business and purposes of the master or principal, the negligence of the servant or agent is imputed to the master or principal. Chesapeake & O. R. Co. v. Warnock’s Adm’x, 232 Ky. 340, 23 S.W.2d 558. As it is admitted that at the time of the accident Thomas Tomlinson was employed by his father, Burley Tomlinson, and was on business in furtherance of his father’s business, the negligence of Thomas is imputed to his father and the judgment in favor of Burley Tomlinson must be reversed and judgment entered for appellant on his claim.

We also find Robert Tomlinson guilty of contributory negligence. He also knew of the dangerous nature of the crossing and was in a better position to observe trains approaching from the north than the driver, and although by his own admission he had a clear and unobstructed view for 160 feet, he did not see the train until it was 20 feet from him. As said in Stephenson’s Adm’x. v. Sharp’s Ex’rs., 222 Ky. 496, 1 S.W.2d 957:

“He (the guest) must use ordinary care for his own safety, and when his means of observing obvious dangers are the same as or better than those possessed by the driver and he fails to observe them, or, observing them, fails to warn the driver, he is guilty of contributory negligence.”

The judgment in favor of Robert Tomlin-son should be reversed with direction to enter judgment on his claim in favor of appellant.

The opinion is approved and the judgments are reversed with directions to enter judgment for the appellant.