author: MURRAY, Chief Justice.-"

text:
    SHOPPERS WORLD, INC., Appellant, v. The STATE of Texas, Appellee.
    No. 14146.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 30, 1963.
    Rehearing Denied Nov. 27,1963.

      Oscar Spitz, Corpus Christi, for appellant.
    Sam L. Jones, Jr., Corpus Christi, for appellee.
   MURRAY, Chief Justice.-"

This is an appeal from a judgment of the 105th District Court of Nueces County, granting the State of Texas a permanent injunction against Shoppers World, Inc., enjoining it from selling on the two consecutive days of Saturday and Sunday, certain items of merchandise named in Section 1 of Art. 286a Vernon’s Ann.Penal Code, but providing, among other things, that such merchandise may be sold if the purchaser “will certify in writing that a purchase of such items of personal property is needed as an emergency for the welfare, health or safety of human or animal life, which said certification signed by the purchaser is retained by Defendant Shoppers World, Inc., for proper inspection for a period of one year, and such purchase is, in fact, an emergency purchase to protect the health, welfare or safety of human or animal life believed by Defendant Shoppers World, Inc., after inquiry, on reasonable grounds, in the exercise of good faith, to be such emergency purchase.” (Emphasis ours.) From this judgment Shoppers World, Inc., has prosecuted this appeal.

This action was brought by the State of Texas under the provisions of Art. 286a, Vernon’s Ann.Penal Code, which prohibits the sale of certain items of merchandise on the two consecutive days of Saturday and Sunday, unless certain exempt conditions apply. The State of Texas alleged that Shoppers World, Inc., offered for sale and sold on both the two consecutive days of Saturday and Sunday, items of merchandise listed in Section 1, Article 286a, supra, in violation of the provisions of said Article,' without justification or excuse by reason of any exemptions contained in said Article, which constituted a public nuisance subject to injunction.

This is an agreed case, as provided for by Rule No. 263, Texas Rules of Civil Procedure. All of the facts were stipulated and not one witness was placed upon the witness stand. Thus there can be no dispute as to the facts, and the question here presented is whether the trial court properly applied the law to the undisputed facts. Rule 263, T.R.C.P.; W. T. Burton Co. v. Keown Constructing Co., 353 S.W.2d 909; White v. State, Tex.Civ.App., 329 S.W.2d 446; Vol. 4 McDonald, Texas Civ.Practice, p. 1284, § 16.03.

Under the rule providing for an “agreed case” the trial court, and on appeal the reviewing court, is limited to the agreed facts and cannot make any findings of fact not conforming to the agreed facts. White v. State, supra.

The agreed statement of facts establishes without contradiction:

(1) That Defendant does not compel, force or oblige its employees to offer to sell or to sell any of the items of personal property listed in Section 1, Article 286a, Vernon’s Ann.P.C., on the consecutive days of Saturday and Sunday; and that no employee of Defendant who works on Saturday works on the consecutive days of Sunday following.
(2) That where Defendant sells or offers for sale an item of personal property listed in Section 1, Article 286a, Vernon’s Ann.P.C., on the consecutive days of Saturday and Sunday, such sale or offer to sell on Sunday is made only to purchasers who certify in writing that the purchase of the item is needed as an emergency for the health, welfare or safety of human or animal life and such purchase is an emergency purchase to protect the health, welfare or safety of human or animal life; hut not otherwise.
(3) That this policy, practice and procedure has been publicized by Defendant by newspaper advertisements and by signs which are placed throughout Defendant’s store on Sundays, and that Defendant has given written instructions to all of its employees demanding strict adherence to such policy, practice and procedure.
(4) That if a purchaser refuses to sign a certificate of necessity, which many do so refuse, the item is not sold to the purchaser, but is returned to Defendant’s racks or shelves, and the sale is not made.
(5) That where a customer indicates hesitancy or doubt about signing the certificate of necessity, the store manager is called, and he, to the best of his ability, then questions the purchaser as to the existence and nature of the emergency requiring the purchase, and only if the store manager is then satisfied that an emergency exists is the sale permitted to be consummated upon the purchaser signing the certificate of necessity; otherwise the store manager advises the customer that the sale cannot be made, and the sale is not made, but the merchandise is returned to Defendant’s shelves or racks.
(6) That Defendant sells and offers for sale in the store on the consecutive days of Saturday and Sunday drugs, gasoline, vehicle lubricants, and other items which may be sold or offered for sale without legal restriction by any merchant on the consecutive days of Saturday and Sunday.
(7) That all written certificates of necessity signed by customers are being retained by Defendant at its place of business for proper inspection.

If the findings of fact made by the-trial court attempt to add any facts not agreed to, or that are in conflict with the above facts, they must be disregarded by us. Rule 263, supra; Vol. 4, McDonald, Tex.Civ.Practice, supra.

Art. 286a, supra, is a penal statute and: reads in part as follows:

“Section 1. Any person, on both-the two (2) consecutive days of Saturday and Sunday, who sells or offers, for sale or shall compel, force or oblige his employees to sell any (naming many items of merchandise) shall be guilty of a misdemeanor. Each separate sale shall constitute a separate-offense.
“Sec. 2. Nothing herein shall apply to any sale or sales for charitable purposes or to items used for funeral or burial purposes or to items sold as a. part of or in conjunction with the sale-of real property.
ífc H*
“Sec. 4a. When a purchaser will certify in writing that a purchase of an-item of personal property is needed as-an emergency for the welfare, health or safety of human or animal life and! such purchase is an emergency purchase to protect the health, welfare or safety of human or animal life, then, this Act shall not apply; provided such, certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year.”

The court’s order granting the permanent-injunction contains the following paragraph :

“This injunction does not prevent a sale of any of such enumerated items on the second of two consecutive days of Saturday and Sunday when the purchaser initiates the sale by offering to-purchase without a prior offer on the part of the Defendant, Shoppers-World, Inc., to sell and the purchaser will certify in writing- that a purchase •of such items of personal property is ■needed as an emergency for the welfare, health or safety of human or .animal life, which said certification •signed by the purchaser is retained by Defendant, Shoppers World, Inc., for -proper inspection for a period of one year, and such purchase is, in fact, an emcrgncy purchase to protect the health, welfare or safety of human or ■animal Ufe believed by Defendant, Shoppers World, Inc., after inquiry, on ■reasonable grounds, in the exercise of :good faith, to be such emergency purchase.” (Italics ours.)

It is apparent that the trial court -undertook to add the above underscored words to Section 4a of Article 286a. This the court may not do. The statute must be construed as it was written by the Legislature; it cannot be added to by the courts. It is well established that the Courts are not permitted to legislate in criminal matters, and accordingly are not permitted to add to statutory exemptions more onerous conditions which the Legislature did not see fit to impose, Miles v. State, 157 Tex.Cr.R. 188, 247 S.W.2d 898; nor is it the duty of the Courts to supply omissions in a law or -to question the policy or wisdom thereof. Evans v. Terrell, 101 Tex. 167, 105 S.W. 490; Gilmore v. Waples, 108 Tex. 167, 188 S.W. 1037; City of Fort Worth v. Westchester House, Tex.Civ.App., 274 S.W.2d 732.

The record shows that appellant -was strictly complying with the provisions ■ of Art. 286a, Sec. 4a, supra, and was therefore not violating the law in making sales *on Sunday.

It would have been very easy for the Legislature to add to Sec. 4a, the part in effect added by the trial court, if it had intended to do so. It appears, however, that had the Legislature attempted to add to Sec. ■4a, supra, the test prescribed by the trial court, the Act would have been rendered void as a criminal statute, as being vague and uncertain. State of Kansas v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750.

The trial court erred in granting the injunction. Accordingly, the judgment of the trial court is reversed and the injunction dissolved and held for naught.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    Artie BAKER, Appellant, v. R. E. MARABLE et al., Appellees.
    No. 3843.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 22, 1963.
    Rehearing Denied Dec. 20,1963.

      W. F. Leigh, Pecos, for appellant.
    J. M. Preston, John P. Dennison, Pecos, for appellees.
   GRISSOM, Chief Justice.

Singh owned a farm. He became indebted to Baker and gave him a lien on his land. Singh reconveyed the land to Stafford. Stafford was selling the land to Marable and Harral and wanted to obtain a release of Baker’s lien. Some kind of a contract was made between Stafford and' Baker looking to a discharge of Baker’s lien against the land. What that contract was is the controlling issue determinative of the portion of the judgment appealed from. Marable and Harral purchased the land from Stafford. This suit was instituted by Baker against Marable and Harral to foreclose his lien against said land.

The case was submitted to a jury and it found, so far as is here material, that (1) at the time of reconveyance of the land by Singh to Stafford it was Stafford’s intention-to accept the land subject to Baker’s lien;. (2) that in May, 1960, Stafford delivered certain farm machinery to Baker for the purpose of satisfying Singh’s debt to Baker; (3) that Baker did not accept the farm-machinery in full satisfaction of Singh’s-debt.

Issue four and the jury’s answer thereto-are as follows:

“Do you find from a preponderance of the evidence that plaintiff, Artie Baker, accepted in full satisfaction of the indebtedness owing to him by M. G. Singh certain-farm equipment and tools delivered to him by Si Stafford and the promise of Si Stafford to pay the indebtedness owing on said' farm equipment and tools? * * * ANSWER Yes." Based upon the answer to-issue four the court found there had been an accord and satisfaction of Singh’s debt to Baker and, therefore, Baker had no lien-against the land. Judgment was rendered1 for the defendants. Baker has appealed. The jury also found that (5) Baker accepted Stafford as his debtor in lieu of Singh.

Baker contends there was no evidence to sustain the answer to issue four. We sustain that contention. We sustain appellant’s further contention that said finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. We make the same holdings relative to the answer to issue five.

The testimony of Baker and his witnesses was definitely to the effect that the contract was that Baker was to release his lien against the land upon the delivery to him by Stafford of certain farming machinery plus the payment, not promise to pay, by Stafford of the debt secured by a lien against the machinery. Mr. Baker, his bookkeeper and another employee testified that such was the agreement and that Baker was not to release his lien against the land purchased by Marable and Harral until Stafford delivered to him a release of the lien against the machinery. A written memorandum contained that provision. Said witnesses testified that Stafford was given a carbon copy thereof. Stafford’s copy was not produced. He testified that Baker inserted the statement that Baker was not to release his lien until Stafford delivered to Baker a release of a lien against the machinery in the writing after its execution. Baker introduced his copy of the memorandum which contained that statement. Stafford said that if he ever had one he had lost it. Stafford testified, not as found by the jury, that Baker agreed to release his lien in consideration of the delivery of the farm machinery plus Stafford’s mere promise to pay the debt against the machinery, but that Baker agreed to release his lien in consideration of delivery of the machinery with the debt and lien against the machinery. In other words, that if Baker kept the machinery he had to pay the debt secured by a lien against the machinery. The debt was not paid and the lienholder repossessed the machinery. Appellees say the testimony of Baker’s bookkeeper that on Baker’s books' Singh’s debt was shown discharged constitutes evidence in support of said finding upon which the judgment is based. If it is any evidence, it is no more than a scintilla and comes within the meaning of the Supreme Court’s decision in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. See also 3 Tex.Jur. 1093; Travelers Insurance Company v. Blazier, Tex.Civ.App., 228 S.W.2d 217, (Writ Dis.); Hawkins v. Campbell, Tex. Civ.App., 226 S.W.2d 891, (Ref. N.R.E.). The jury’s answer to issue four is not in accord with the testimony of any witness. Jurors may resolve conflicts and inconsistencies in the testimony of witnesses but they may not find the existence of a contract contrary to the testimony of all the witnesses. It is undisputed that Baker agreed to accept the farm machinery but the question was whether it was required that Stafford obtain a release of the lien against the machinery or that Baker agreed to accept it with the debt and lien against it. No one testified that Baker agreed to accept the mere promise of Stafford to pay that debt, nor to any fact from which the jury could conclude such to be the agreement. See Muro v. Houston Fire & Casualty Insurance Company, Tex.Civ.App., 329 S.W.2d 326, 331, (Ref. N.R.E.). The finding that Baker accepted the mere promise of Stafford to pay the debt on the machinery is contrary to the testimony of both Stafford and Baker. It was, however, alleged in the alternative by defendants. Since the answer to issue 4 is the sole basis for the judgment it can not stand. The defensive issue which finds support in Stafford’s testimony, to-wit, that Baker agreed to cancel his lien upon Stafford’s delivery of the machinery with the debt and lien against it was not submitted. The case was decided upon an erroneous theory that has no support in the evidence.

Appellant’s third point is overruled because it is not shown that the exceptions were presented to and overruled by the court. We sustain appellant’s points 5, 6, 7 and 8. That part of the judgment refusing appellees a judgment against Baker on their cross, or third party, action was not appealed and is undisturbed. The part of the judgment denying Baker a foreclosure of his lien against the land is reversed and the cause is remanded. Texas R.C.P. 503; Employees Finance Company v. Lathram, (Sup.Ct.), 369 S.W.2d 927, 929.

The judgment is undisturbed in part and, in part, reversed and the cause remanded for another trial.


author: WILLIAMS, Justice.

text:
    ERVAY, INC., Appellant, v. L. R. WOOD et al., Appellees.
    No. 16254.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 22, 1963.
    Rehearing Denied Dee. 20,1963.
    J. Manuel Hoppenstein and Jerome L-Prager, Dallas, for appellant.
    Pat S. Russell, Mike McKool and Alien-Melton, Dallas, for appellees.
   WILLIAMS, Justice.

Action for declaratory judgment under Article 2524 — 1, Vernon’s Ann.Civ.St., to construe, interpret and clearly define the rights of the parties to a certain lease agreement entered into by Ervay, Inc., as Lessor, and L. R. Wood, as Lessee. The trial court, without a jury, construed the lease contract contrary to the contention of Ervay, Inc., and this appeal follows. We affirm the trial court’s judgment.

FACTS

Appellant, Ervay, Inc., was the owner of a block of land located in the City of Dallas, Texas, and being bounded by Good-Latimer Expressway, Bourbon, Paris and Eakin Streets. The entire tract of land in. question, together with certain designated areas therein, and improvements placed thereon, is illustrated by the following plat which was introduced in evidence.

On July 11, 1956 appellant, as landlord, entered into a written lease contract prepared by its attorneys, whereby L. R. Wood, one of appellees, as Lessee, agreed to lease the entire premises, as shown above, for a period of twelve years, or from August 15, 1956 to August 14, 1968, at a rental of $500.00 per month, plus taxes. Appellee Wood entered upon the premises and constructed certain improvements thereon, as will be more fully discussed later. Wood subsequently became involved in a receivership and appellee Don C. Jacobsen is receiver for Wood. Appellee Norman N. Campbell is a secured creditor of Wood and appellee Raney claims some interest in the leased premises through an arrangement with Wood.

The original lease agreement, in Paragraph 6 of the “Additional Terms and Conditions” contains the provision:

“It is understood and agreed by and between Lessor and Lessee that the City of Dallas, County of Dallas or some state or federal or other public authority may at some future time take part of the property for highway or public improvement purposes, a plat of the proposed taking being herewith attached and made a part of this lease contract.”

On the front page of the lease agreement the proposed area, as referred to above, was platted and referred to as “Proposed R/W for East-West Shown in Red.” The area thus platted in the original lease agreement corresponds to that area shown as Tract “A” on the plat shown above, and consisting of 36,870 square feet.

The entire Paragraph 6 of the “Additional Terms and Conditions”, being the center <}f the controversy herein, is as follows:

“It is understood and agreed by and between Lessor and Lessee that the City of Dallas, County of Dallas or some state or federal or other public authority may at some future time take part of the property for highway or public improvement purposes, a plat of the proposed taking being herewith attached and made a part of this lease contract. Lessee acknowledges that he has made investigation with the City of Dallas Right-of-Way Division as to the property subject to being taken and covenants and agrees that he shall place the improvements to be erected on the property in such a location that there will be no conflict with the City of Dallas, or other public authority when a part of the property is acquired or taken for public use. In the event the City of Dallas or other Public Authority takes any part of the premises by condemnation or through negotiation with Lessor, the rent for the remainder of the property not so taken shall be reduced automatically and simultaneously $100.00 per month and this lease shall continue to remain in full force and effect. It is expressly understood and agreed that any and all damage and payment awarded or collected for such taking of the property for any public purpose shall belong to and be the property of the Lessor, whether such damage be awarded as compensation for diminution in value to the leasehold or to the fee of the premises herein leased and Lessee shall assert no right or claim to any damage as the result of any such taking.”

Paragraph 2 of the “Additional Terms and Conditions” granted the Lessee the right to make improvements on the property and provided that they may be removed by the tenant at the expiration of the lease contract.

It is undisputed that Lessee Wood did construct valuable improvements on the leased premises, same being located, as above shown, almost entirely within the area known as Tract “B” and Tract “D”.

It is further undisputed that the City of Dallas, and other public authority, abandoned its project to condemn that part of the property known as Tract “A”. However, six years later, in 1962, the State of Texas, acting by and through the Texas Highway Department, announced its intention to acquire a portion of the property covered by the lease agreement and notified appellant that the property would be condemned unless appellant would agree to accept the offer submitted by the Highway Department. In this proposed taking the State of Texas announced that it would condemn that part of the leased premises known as Tract “A”, Tract “B” and also Tract “C”, the latter tract by way of easement.

Appellant, in its petition for declaratory judgment, stated that it desired to accept the offer of the Texas Highway Department in order to avoid formal condemnation proceedings, but that appellees were asserting certain rights in the proceeds of the condemnation settlement, such rights being denied by appellant. Appellant sought to have the court declare that appellant was entitled to receive all of the benefits from the condemnation proceedings and that appellees were not entitled to receive any part thereof. Appellees answered, contending that under the provisions of the lease agreement the Lessee had waived his rights to participate in condemnation proceedings only insofar as the same related to the property designated in the original lease, namely, Tract “A”; that appellee Wood did not waive his rights to any of the proceeds of condemnation as it relates to any other part of the leased premises than Tract “A”. Appellees asked the court to construe the lease to mean that there was no waiver on the part of Wood to the receipt of the proceeds of condemnation as it applied to Tract “B”, Tract “C”, or Tract “D”.

The trial court decreed that the lease contract was valid and that appellee Wood would remain liable until the end of the lease contract for the rents therein provided; that the general laws of condemnation shall apply to all excess taking over and above that area platted (as shown by Tract “A”) in the/iease agreement, including damages to in/provements, and the diminution of the leasehold estate; that the Lessee is not entitled to any damages pertaining to the taking of that portion of the leased property that was described in the lease contract as being the proposed area to be taken by the condemnor and platted as such.

OPINION

Although appellant brings forward four points of error it is conceded in its brief that: “The first and only question presented by this appeal is whether or not such provision applied generally, (referring to Paragraph 6 of the lease quoted above) in the event of condemnation by any public authority of any amount of the demised premises, or only to the shaded portion platted on the map attached to the lease agreement, which represents the area which the City of Dallas contemplated taking in 1956 prior to the execution of the lease.” Appellant argues that the only reasonable interpretation of the lease agreement, which evidences the intention of the contracting parties, is that the Lessee agreed to waive and relinquish any claim to “any and all damage and payment awarded or collected for such taking of the property for any public purpose * * * By countervailing points, appellees contend that the only reasonable interpretation to be placed upon the language utilized by the contracting parties is as found by the trial court, that is, that Lessee Wood agreed to waive and relinquish his right to proceeds of condemnation only to that tract known as “A” on the plat, and did not waive or relinquish any claims to the proceeds of condemnation to any other portion of the demised premises. So, with the issue sharply drawn, the question presented to the trial court and to this court is: What was the intention of the parties as evidenced by the language used by them?

It should be observed that appellant does not contend that the lease agreement is ambiguous, nor is there any contention that there was fraud or mutual mistake in connection with the signing of the agreement. Likewise, appellees do not contend that the contract was ambiguous. The law is well settled that a written instrument, not alleged to be ambiguous, must be construed so as to carry out the intent of the parties. Brown v. Brown, Tex.Civ.App., 245 S.W.2d 995, writ. ref.

In 1860 Chief Justice Wheeler, speaking for our Supreme Court, laid down the rule of construction which is presently applicable:

“Leases are construed, like other written agreements, so as to give effect to the intention of the parties. To arrive at the intention, regard is to be had to the situation of the parties, the subject matter of the agreement, the object which the parties had in view at the time, and intended to accomplish. A construction should be avoided if it can be done consistently with the tenor of the agreement, which would be unreasonable or unequal; and that construction which is most obviously just is to be favored, as most in accordance with the presumed intention of the parties.” Howeth v. Anderson, 25 Tex. 557.

This rule is repeated in 13 Tex.Jur.2d, Sec. 122, Pages 287-288, wherein it is said that the cardinal rule to be observed in the construction of contracts is to ascertain and give effect to the real intention of the parties, as that intention is revealed by the language used in the agreement. Furthermore, the court, when making its construction, will view the agreement as of the time it was made and not in the light of subsequent events. Fleming Oil Co. v. Anco Gas Corp., Tex.Civ.App, 217 S.W.2d 29; Burtis v. Butler Bros., Tex.Civ.App, 228 S.W.2d 938

In Davis v. Andrews, Tex.Civ.App, 361 S.W.2d 419, err. ref, n. r. e, we had occasion to pass upon the construction of .a written instrument and we there reviewed -the established rules which included the rule sometimes called the “four corners rule” which means that the intention of the parties is to be gathered from the instrument as a whole and not from isolated parts thereof. For additional authorities on these rules of construction see Spence & Howe Construction Co. v. Gulf Oil Corp, Tex, 365 S.W.2d 631; Ingram v. Fred, Tex.Civ.App, 210 S.W. 298; Orr v. Vandygriff, Tex.Civ.App, 251 S.W.2d 573.

Another rule of construction applicable here, is that in case of a reasonable doubt as to which of two constructions best accords with the intent of the parties, that construction should prevail which is least favorable to the party who prepared the instrument. 13 Tex.Jur.2d, Sec. 121, Page 286; Amory Mfg. Co. v. Gulf C. & S. F. Ry. Co, 89 Tex. 419, 37 S.W. 856; Magnolia Petroleum Co. v. Aiken, Tex.Civ App, 289 S.W. 152; Pledger v. Business Men’s Accident Ass’n of Texas, Tex.Com. App, 228 S.W. 110. In this case it is undisputed that the lease agreement was prepared by appellant’s attorney.

Still another rule which has application in this case is that in construing contracts such as this the acts and conduct of the parties themselves, including acts done in the course of performance, which indicate the construction that the parties themselves put on the contract, may properly be considered by the court in interpreting the agreement. Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Redding Foods, Inc. v. Berry, Tex. Civ.App, 361 S.W.2d 467; 13 Tex.Jur.2d, Sec. 128, Page 300; McDonald v. Denson, Tex.Civ.App, 199 S.W.2d 707.

With these well recognized landmarks before us we turn now to a determination of the question: What was the intention of the contracting parties at the time they entered into the lease agreement ? In our opinion when we apply the “four corners rule” by now examining all of the language utilized by the contracting parties we have no difficulty in determining that the parties meant what the able trial judge found that they meant, namely, that the appellee Wood gave up and yielded no right to damages by condemnation other than those damages which would be occasioned by the taking of the property which was contemplated to be taken at the time of the execution of the lease. The picture, to us, seems reasonably clear. We need go no further than the language of the lease itself and the acts and conduct on the part of both parties subsequent to the execution of the lease. It is clear that appellee Wood was interested in taking a lease on the entire block of property and to improve the same at his own expense and to accept a lease thereon for a period of twelve years at an agreed rental. It is clear that the parties had some information regarding a possible condemnation of some portion of the city block in connection with the East-West Expressway, and they both made an effort to determine the area of the premises that appellee would be denied the use and enjoyment of some time during the period of the lease agreement. As a consequence of this, the proposed area to be condemned by the City of Dallas, or some other authority, was expressly platted on the face of the lease contract (being the same as Tract “A” shown above) and shaded said area in red. Appellee Wood agreed that he would place his improvements on the leased premises without the area of the proposed condemnation area shaded in red. He said, in effect: “I will erect my improvements on this lease in such a location so that there will be no conflict with the City of Dallas, or other public authority, when a part of the property is required or taken for public use.” He further says that in the event the City of Dallas, or other public authority, takes any part of the premises by condemnation or negotiation with Lessor, the rent on the remainder of the property not so taken shall be reduced automatically and simultaneously $100.00 per month and that the lease shall continue to remain in full force and effect. He expressly agrees that “any and all damage and payment awarded or collected for such taking of the property for any public purpose shall belong to and be the property of the Lessor * * Viewing the lease in the light of the facts and circumstances existing at the time it was executed, there seems to be no doubt but that Lessee took the lease, erected his improvements, and waived his right of damages for condemnation believing that Tract “A” only would be taken. This is the only tract that the parties had in mind at the time the lease was made. The parties specifically pinpointed that part of the demised premises which they had in mind as would likely be condemned by public authority and this specific pinpointing would prevail over any general language that might be later utilized. In our opinion, it was the clear and manifest intention of both Lessor and Lessee that only that part of the premises designated as Tract “A” would be taken by condemnation and only that part entered into the minds of the parties insofar as waiver of damages for condemnation is concerned.

Why did the parties designate the proposed area to be condemned? We think it obvious they did so because they had in mind that since this area was likely to be taken by condemnation that the Lessee should locate his improvements outside of this area and it was also an aid to the Lessee to determine that portion of the leased premises which he might be required to turn back to the landlord for condemnation purposes.

The lease did not provide for a termination thereof in the event of condemnation, but did provide for a reduction of the amount of money payable to the Lessor. The 20 percent depreciation of the lease payment would, especially in the light of absence of improvements thereon, represent a proper ratio of reduction when the entire area is considered. It is interesting to note that no provision was made in the agreement for the Lessee to disclaim any interest in the award in condemnation for the value of his improvements. This is so because it was expected, under the express terms of the lease, that the improvements would be placed without the platted area of the lease contract and therefore the matter of value of improvements would not be an issue if the condemned area was confined to that platted on the face of the lease contract. When the parties came to the waiving of damages for condemnation they expressly said that the Lessee would make such waiver and disclaim such payment of damages for condemnation for “such taking” of the property. (Emphasis supplied.) What could the parties have meant by “such taking” other than that which they had only a few lines above platted as the specific taking? If this interpretation is not correct then the platting of the area and the placing of the same on the lease contract would serve no purpose whatsoever.

Furthermore, the interpretation placed upon this lease by the trial court tends to that equality and justness referred to by Chief Justice Wheeler in Howeth v. Anderson, supra. The original area of all the leased premises was 85,201 square feet. The area, Tract “A”, contemplated to be taken, and upon which Lessee placed no improvements, reduced this by 36,870 square feet. However, the eventual taking of Tracts “A” and “B”, including the majority of Lessee’s improvements on Tract “B” as well as the easement on Tract “C”, has the effect of leaving only Tract “D” consisting of 12,520 square feet, and only a part of the improvements, for Lessee’s use. At the same time the validity of the lease for the remainder of the term at the reduced rental of $400.00 per month is undisturbed. Such a result, as contended by appellant, could not be said to be equitable or just within the reasonable contemplation of the parties.

Cases cited and relied upon by appellánt, such as County of McLennan v. Shinault, Tex.Civ.App., 302 S.W.2d 728; Tex.Civ. App., 330 S.W.2d 486; and a number of cases from without Texas, are not in point here for the simple reason that in each of those cases there is a clear manifestation of intent on the part of the Lessee that he would waive all rights to all taking by condemnation in the future. The validity of such an agreement is not here questioned but we merely say that the facts here presented are not the same as in the cases relied upon by appellant.

Finding no error reflected in this record, we overrule appellant’s points and affirm the judgment.

Affirmed.


author: COLLINGS, Justice.

text:
    Juan C. RIOS, Appellant, v. Jessie Hubert DAVIS, Appellee.
    No. 3847.
    Court of Civil Appeals of Texas. Eastland.

      Nov. 22, 1963.
    Rehearing Denied Dec. 20, 1963.

      Potash, Cameron, Bernat & Studdard, Brewster & Hoy, El Paso, for appellant.
    Scott, Hulse, Marshall & Feuille, El Paso, for appellee.
   COLLINGS, Justice.

Juan C. Rios brought this suit against Jessie Hubert Davis in the District Court to recover damages in the sum of $17,500.-00, alleged to have been sustained as a result of personal injuries received on December 24, 1960, in an automobile collision. Plaintiff alleged that his injuries were proximately caused by negligence on the part of the defendant. The defendant answered alleging that Rios was guilty of contributory negligence. Also, among other defenses, the defendant urged a plea of res judicata and collateral estoppel based upon the findings and the judgment entered on December 17, 1962, in a suit between the same parties in the County Court at Law of El Paso County. The plea of res judicata was sustained and judgment was entered in favor of the defendant Jessie Hubert Davis. Juan C. Rios has appealed.

It is shown by the record that on April 11, 1961, Popular Dry Goods Company brought suit against appellee Davis in the El Paso County Court at Law, seeking to recover for damages to its truck in the sum of $443.97, alleged to have been sustained in the same collision here involved. Davis answered alleging contributory negligence on the part of Popular and joined appellant Juan C. Rios as a third party defendant and sought to recover from Rios $248.50, the alleged amount of damages to his automobile. The jury in the County Court at Law found that Popular Dry Goods Company and Rios were guilty of negligence proximately causing the collision. However, the jury also found that Davis was guilty of negligence proximately causing the collision, and judgment was entered in the County Court at Law denying Popular Dry Goods any recovery against Davis and denying Davis any recovery against Rios.

Appellant Rios in his third point contends that the District Court erred in sustaining appellee’s plea of res judicata based upon the judgment of the County Court at Law because the findings on the issues regarding appellant’s negligence and liability in the County Court at Law case were immaterial because the judgment entered in that case was in favor of appellant. We sustain this point. We are unable to agree with appellee’s contention that the findings in the County Court at Law case that Rios was guilty of negligence in failing to keep a proper lookout and in driving on the left side of the roadway, and that such negligent acts were proximate causes of the accident were essential to the judgment entered therein. The sole basis for the judgment in the County Court at Law as between Rios and Davis was the findings concerning the negligence of Davis. The finding that Rios was negligent was not essential or material to the judgment and the judgment was not based thereon. On the contrary, the finding in the County Court at Law case that Rios was negligent proximately causing the accident would, if it had been controlling, led to a different result. Since the judgment was in favor of Rios he had no right or opportunity to complain of or to appeal from the finding that he was guilty of such negligence even if such finding had been without any support whatever in the evidence. The right of appeal is from a judgment and not from a finding. The principles controlling the fact situation here involved are, in our opinion, stated in the following quoted authorities and cases. The annotation in 133 A.L.R. 840, page 850 states:

“According to the weight of authority, a finding of a particular fact is not res judicata in a subsequent action, where the finding not only was not essential to support the judgment, but was found in favor of the party against whom the judgment was rendered, and, if allowed to control, would have led to a result different from that actually reached.”

In the case of Word v. Colley, Tex.Civ. App., 173 S.W. 629, at page 634 of its opinion (Error Ref.), the court stated as follows:

“It is the judgment, and not the verdict or the conclusions of fact, filed by a trial court which constitutes the es-toppel, and a finding of fact by a jury or a court which does not become the basis or one of the grounds of the judgment rendered is not conclusive against either party to the suit.”

In 2 Black on Judgments, p. 609, the author states the rule of estoppel by judgment as follows:

“ ‘The force of the estoppel resides in the judgment. It is not the finding of the court or the verdict of the jury rendered in an action which concludes the parties in subsequent litigation, but the judgment entered thereon.’
“The fact that the judgment in the suit in Cherokee county was in favor of defendants precluded them from bringing in review the findings of the judge, and we cannot believe that a party can be estopped by a judgment in his favor from denying findings of the court rendering said judgment the decision of which was not essential or material to the rendition of the judgment. Philipowski v. Spencer, 63 Tex. 607; Sheffield v. Goff, 65 Tex. 358; Manning v. Green, 56 Tex.Civ. App. 579, 121 S.W. 725; Whitney v. Bayer, 101 Mich. 151, 59 N.W. 415; Cauhape v. Parke, Davis & Co., 121 N.Y. 152, 24 N.E. 186; 23 Cyc. 1227, 1228.”

The above quotation is quoted with approval by the Supreme Court of Texas in Permian Oil Company v. Smith, 129 Tex. 413, 73 S.W.2d 490 at page 500. See also Rushing v. Mayfield Company, Tex. Civ.App., 104 S.W.2d 619; Cambria v. Jeffery, 307 Mass. 49, 29 N.E.2d 555; Karameros v. Luther, 279 N.Y. 87, 17 N.E.2d 779.

We cannot agree with appellee’s contention that Rio Bravo Oil Company v. Hebert, 130 Tex. 1, 106 S.W.2d 242, is contrary to and requires an adverse determination of appellant’s third point. The language particularly relied upon by appellant in that case was as follows:

“Although the judgment of the court was, as we formerly held, only a denial of the right to recover the particular land there in controversy, its estoppel is much broader, and concludes the parties upon every question which was directly in issue, and was passed upon by the court in arriving at its judgment. * * * ”
“ * * * But, where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.”

For the reasons stated the court erred in entering judgment for Jessie Hubert Davis based upon his plea of res judicata and collateral estoppel. The judgment is, therefore, reversed and the cause is remanded.


author: WERLEIN, Justice.

text:
    W. F. BRADLEY, Appellant, v. Sue Ferris McINTYRE, Appellee.
    No. 14189.
    Court of Civil Appeals of Texas. Houston.
    Nov. 21, 1963.
    On Remittitur Dec. 5, 1963.
    Rehearings Denied Dec. 19, 1963.
    J. Paul Pomeroy, Jr., Houston, for appellant.
    Collins & Moore; Gene E. Putnam, Houston, for appellee.
   WERLEIN, Justice.

Appellant, W. F. Bradley, appeals from a judgment in the sum of $1250.00 adjudged against him by the court, without a jury, as damages for the destruction of appellee’s garden on the rear 5 X 65 feet of her property, and the appropriation to himself of the use of such area.

At the request of appellant, the trial court made and filed its findings of fact and conclusions of law. The court found that appellant individually and through his agents, servants and employees, went upon appellee’s premises on or about November 6, 1959, without any right, title or invitation, and without her consent or permission, express or implied, and destroyed her garden and appropriated to himself the use of the 5 X 65 feet of her premises, spreading shell over such area; that the use of the appropriated area continued from on or about November 6, 1959 to date of trial, Decern-her 7, 1962; and that as a result of such actions, appellee was damaged in the sum of $1250.00.

Appellant asserts that there is no evidence, and alternatively insufficient evidence, to support a finding that appellee was damaged in the sum of $1250.00. It clearly appears from an examination of the court’s findings and conclusions that the damages awarded appellee were for trespass upon a strip of 5 X 65 feet of her property, the destruction of her garden thereon, the spreading of shell over said area, and the use of the appropriated area for more than three years. Nothing was allowed by the court for the alleged damage to appellee’s fence. Appellant did not request any additional findings of fact with respect to the allocation or itemization of the amount of damages found by the court.

Appellee alleged that “Defendant Bradley has taken the use of said 325 square feet since November of 1959, and said area has a reasonable monthly rental value of Twenty-five Dollars ($25.00) per month * * *” The testimony of Mr. J. B. Huff, a licensed real estate broker, was that the rental value of such strip was $35.00 per month. There is nothing in the record to the contrary, nor is there anything to indicate the amount the court allowed as damages for the use of such appropriated area for the 37 months the trespass and appropriation continued. The pleadings and evidence would sufficiently support a finding of as much as $25.00 per month, or a total of $925.00, for the use of the tract appropriated for the period such use continued.

The law is well settled that where the owner of land establishes that his land has been trespassed upon and appropriated by another to his use, the owner may recover as damages from the trespasser the reasonable value of the use of the portion of the land occupied by him. Fairchild v. Wilson, Tex.Civ.App.1914, 168 S.W. 409; City of Austin v. Long, 1956, 296 S.W.2d 624, writ ref., n. r. e.; 17 Tex.Jur.2d, p. 147, Damages, § 72.

The undisputed evidence is that the reasonable cost of removing the shell placed upon appellee’s property by appellant would be $250.00. Appellant appropriated to himself the use of the strip of land in question for some 37 months during which time his trespass upon and dominion over the land continued, so that the shell could not be removed during such period. It is our view that an award of $250.00 for this item of damage finds sufficient support in the evidence.

The only evidence as to the reasonable cost of restoring appellee’s garden to its condition immediately prior to the trespass consists of the testimony of Mrs. Albert Cole. This witness had never seen the strip of land in question until some 37 months after the destruction of the garden, and hence could not testify as of her own knowledge as to the condition of the garden prior to the trespass or as to the cost of repairing the injury as of that time. She did testify that it would cost $450.00 to replace the shell on the strip of- land with a mixture of soil, peat moss, and fertilizer to bring it to regular grade, and replace eight roses, 20 Cannas, and transplant the cane. Her testimony clearly shows that her estimate included doing more than merely restoring the strip of land to its former condition. She proposed to furnish fertilizer and peat moss and soil, although she understood that all of the strip was not fertilized before the trespass. There is no evidence as to the value of the roses, bushes, Cannas and cane destroyed, or the reasonable cost of replacing the same immediately or shortly after they were destroyed. Her estimate of costs was based upon what it would cost to restore the garden at the time of the trial and was not restricted to the time of the injury. Victory Truck Lines v. Brooks, Tex.Civ.App., 218 S.W.2d 899. Actually, appellee did not sue for the cost of restoring her garden to its former condition. She sued for the destruction of her garden, consisting of shrubs and flowers which she had planted. She alleged that the reasonable value of the garden was $750.00. There was no evidence, however, as to the value of the garden at the time of its destruction.

In the case of temporary injury to real estate, the measure of damages is ordinarily the cost and expense of restoring the land to its former condition, plus the loss or damages occasioned by being deprived of the use of same, with interest. Sabine & E. T. Ry. Co. v. Joachimi, 58 Tex. 456; Trinity & S. Ry. Co. v. Schofield, 72 Tex. 496, 10 S.W. 575; Burlington-Rock Island R. Co. v. Newsom, Tex.Civ.App., 239 S.W. 2d 734; Hood v. Adams, Tex.Civ.App., 334 S.W.2d 206; 17 Tex.Jur.2d, p. 144, Damages, § 69.

We have concluded that the evidence is insufficient to support a finding of damages for the destruction of appellee’s garden. The trial court, however, allowed some damages therefor. The largest amount that could have been allowed is the sum of $450.00, being the largest amount Mrs. Cole estimated as the cost of restoring the garden at the time of the trial. The deduction of such amount from the j'udgment would eliminate any possible error therein, since there is sufficient evidence to support a judgment in the amount of $800.00.

If appellee will file in this Court a remit-titur of $450.00 on or before December 2, 1963, the judgment of the trial court will be reformed accordingly, and, as reformed, will be affirmed; otherwise, the judgment of the trial court will be reversed and the cause will be remanded for a new trial.

On November 21, 1963, we indicated by an opinion in writing that if appellee would file a remittitur of $450.00 on or before December 2, 1963, the judgment of the trial court would be reformed and, as reformed, would be affirmed; and that otherwise the judgment of the trial court would be reversed and the cause remanded. Ap-pellee has filed the suggested remittitur of $450.00.

Accordingly, as of this date, the judgment of the trial court is reformed by deducting the amount of $450.00 from the judgment recovered by appellee, and, as so reformed, is affirmed.

One-third of the costs of the present appeal will be taxed against appellee, Sue Ferris McIntyre, and two-thirds thereof against appellant, W. F. Bradley.

Motion for rehearing may be filed by either party within 15 days from this date.


author: McDONALD, Chief Justice.

text:
    GREAT AMERICAN LIFE AND HEALTH INSURANCE COMPANY and Blue Bonnet Life Insurance Company, Appellants, v. Henry W. MAYER et ux., Appellees.
    No. 4167.
    Court of Civil Appeals of Texas. Waco.
    Oct. 31, 1963.

      Kelly, Hunt, Cullen & Mallette, Victoria, for appellants.
    Guittard & Henderson, Victoria, for ap-pellee.
   McDONALD, Chief Justice.

This suit was brought by plaintiffs Henry W. Mayer and wife, against defendant Insurance Companies, to recover benefits claimed by plaintiffs to be due under 2 contracts of hospitalization insurance issued by defendants on plaintiff Henry W. Mayer. The claims actually made were for hospital, drug, and doctors’ bills incurred from December 19, 1961 until April 30, 1962. Defendants stipulated the reasonableness and necessity of all bills, and the amount of attorneys’ fees, and the only question for determination by the Trial Court was whether or not the exclusionary language in the policy and relied upon by defendants precluded recovery. The policies contained the following exclusion from coverage: “Any condition of the heart circulatory system.”

The evidence was undisputed that “heart circulatory system” was the blood vessels which supply the heart. The evidence was likewise undisputed that plaintiffs’ claim was predicated on illness not related to “heart circulatory system.” Trial was to a jury. At the close of the evidence both plaintiffs and defendants moved for instructed verdict.

The Trial Court overruled defendants’ motion for instructed verdict, and granted plaintiffs’ motion for instructed verdict, and rendered judgment for plaintiffs for $1629.-60 against Great American, and $1629.60 against Blue Bonnet, together with attorneys’ fees.

Defendants appeal, contending:

1) The Trial Court erred in refusing defendants’ motion to file a supplemental answer; and erred in permitting plaintiffs to file a trial amendment.

2) The Trial Court erred in permitting testimony from a medical witness over objection.

3) The Trial Court erred in taking the case from the jury and instructing a verdict for plaintiffs.

4) The Trial Court erred in denying defendants’ motion to dismiss plaintiffs’ cause after discovery of erroneous statements of fact in plaintiff’s application for insurance.

We revert to defendants’ 1st contention. The matter of permitting a trial amendment or the filing of supplementary pleadings is in the sound discretion of the Trial Court, and his order will not be disturbed, absent a clear abuse of his discretion. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605, Rule 66 Texas Rules of Civil Procedure. A trial court does not abuse its discretion in permitting the filing of a trial amendment where the opposite party does not ask for a postponement upon its filing. Henslee v. 1st Nat. Bank, C.C.A. (n. w. h.), 314 S.W.2d 881; Lone Star Steel Co. v. Owens, C.C.A. (n. r. e.), 302 S.W. 2d 213; American Cas. & Life Ins. Co. v. Parish, C.C.A. (n. w. h), 355 S.W.2d 781.

Contention 2 concerns the Trial Court’s permitting plaintiff’s doctor to read from a medical dictionary. The doctor (as well as another doctor) testified that “heart circulatory system” was essentially the blood vessels which supply the heart. The plaintiff’s doctor did read from a medical dictionary an excerpt, which said substantially the same thing that he and the other doctor testified to. While the evidence was probably inadmissible, it was merely cumulative of the uncontradicted testimony of the 2 medical witnesses. Since the cause was disposed of by the Judge without the aid of the jury, it is presumed that he disregarded any inadmissible evidence. Ferguson v. Ferguson, Tex. Comm. App., 23 S.W.2d 673. In any event, we think the matter harmless. Rule 434 T.R. C.P.

Contention 3 is that the Trial Court erred in taking the case from the jury and in instructing a verdict for plaintiffs. The burden was on plaintiffs to demonstrate that their claim was not barred by the exclusion in the policy, which was that no coverage existed for sickness arising from "heart circulatory system.”

Plaintiffs put on 2 medical doctors, both of whom testified that “heart circulatory system” was the blood vessels which supply the heart; and that the condition for which plaintiffs’ claim was brought, was-not a condition of the heart circulatory system. Defendants offered no witnesses. Issuance of the policies, payment of premiums, denial of claims were undisputed; and the amount of the loss and attorneys’ fees were stipulated. When defendants failed to dispute plaintiffs’ evidence as to the condition from which plaintiff suffered, and the meaning of the exclusion plead no fact issue remained, the instructed verdict was properly given. United States F. & G. v. Baldwin Motor Co., Tex.Comm.App., 34 S.W.2d 815; United Service Auto. Ass’n. v. Miles, 139 Tex. 138, 161 S.W.2d 1048.

Contention 4 is that the Trial Court erred in not sustaining defendants’ motion to dismiss plaintiffs’ case after discovery of erroneous statements of fact in plaintiff’s application for insurance. Rule 94 T.R. C.P. provides that matters constituting an affirmative defense must be specifically plead. No such pleadings were filed by defendants. Such a defense cannot be employed through motion practice.

All of defendants’ points and contentions are overruled, and the judgment of the Trial Court is affirmed.


author: HUGHES, Justice.

text:
    RAILROAD COMMISSION of Texas, Appellant, v. OIL FIELD HAULERS ASSOCIATION, INC., et al., Appellees.
    No. 11102.
    Court of Civil Appeals of Texas. Austin.
    July 10, 1963.
    Waggoner Carr, Atty. Gen., Norman V. Suarez, Asst. Atty. Gen., Austin, Ralph W. Currie, Sp. Asst. Atty. Gen., Dallas, for appellant.
    Clark, Thomas, Harris, Denius & Winters, James H. ICeahey and Wallace McLean, Austin, Joe G. Fender, Houston, Cal-laway, Reed, Kidwell & Brooks, Dallas, for appellees.
   HUGHES, Justice.

Oil Field Haulers Association, Inc. and its individual members have filed a second motion for rehearing in which they make the contention that since the appeal from the rate order of the Commission results in a de novo trial in the District Court that the rate order was suspended immediately upon the filing of the suit (appeal), and that for this reason alone the Trial Court properly enjoined its enforcement. In support of this contention they cite State by and through State Board of Morticians v. Cortez, 160 Tex. 532, 333 S.W.2d 839 and Chemical Bank & Trust Company v. Falkner, Tex. 369 S.W.2d 427. Neither of these cases is an appeal from an order of the Railroad Commission. They are controlled by different statutes from those before us; hence there is no need to analyze them.

In State by and through State Board of Morticians v. Cortez, supra, it is stated, “That appeal de novo, as in the case of an appeal from the justice court to the county court, sets aside and annuls the order of the'court or body from which the appeal is taken — in the absence of some saving clause in the language of an act — * * * is well settled by the decisions of this Court.”

The appeal here is under Article 6453, Vernon’s Ann.Civ.St., which specifically provides for the issuance of temporary restraining orders and preliminary injunctions by the Trial Court.

The authority of the Trial Court to grant a temporary injunction in an appeal under Article 6453 was sustained in an opinion by this Court in 1924, Railroad Commission of Texas v. San Antonio Compress Co. Tex. Civ.App., 264 S.W. 214, writ of error refused, 114 Tex. 582, 278 S.W. 1115.

The motion is overruled.


author: DAVIS, Justice.

text:
    L. R. FOSTER, Appellant, v. COMMERCIAL UNION ASSURANCE CO., Ltd., Appellee.
    No. 7537.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 19, 1963.
    Rehearing Denied Dee. 10,1963.
    R. Philip Schulze, Jr., Houston, for appellant.
    L. G. Kratochvil and T. G. Schirmeyer, Houston, for appellee.
   DAVIS, Justice.

Plaintiff-appellant sued defendant-appel-lee to recover damages that resulted from the sinking of his boat, or yacht, the M/V Nataco, under the terms of an insurance policy. The boat, or yacht, was a thirty-two foot Chris-Craft Cruiser. The policy issued February 1, 1960, provided in part as follows:

“Coverage. (1) Hull insurance, as per Section ‘A’. Amount of insurance $9,500.00. Agreed valuation $9,500.00, Rate $1.80, Premium $171.00.
(2) Protection and Indemnity Insurance, as per Section ‘B’. Loss of life and personal injury; Limit, any one person $50,000; Limit, any one accident $100,000.00; Property damage; Limit, any one accident $50,000.00. Rate, ‘Flat’, premium $26.78, and Longshoremen’s and Harbor Worker’s Compensation, as per Section ‘C’.
(3) Omnibus Clause, as per Section ‘D’ included.
(4) Medical Payments Insurance, as per Section ‘E’. Limit, any one Acci•dent $1,000 included. Total Premium $197.78.
* * *
Layup Warranty: Warranted that the yacht be laid up and out of commission from for the entire te policy term.
* * *
Cruising Warranty: Warranted that the Yacht be esn-fined ‡© Laid-up and out of commission afloat for the entire policy term at Greens Boyou, Texas. $ *

On October 16, 1960, the appellant and his brother made repairs on the afterdeck of the boat and removed the gasoline tanks. The hoses connecting the deck drains to the openings of the stern, or transom, of the boat were disconnected from the decking when the decking was being removed. The hoses were tied off and tied upward to prevent water entering the boat. On said date, the boat was tight, floating and in excellent condition. On October 21, 1960, someone notified the appellant that the boat was sunk. No one saw the boat between October 16, 1960, and October 21, 1960. This court must bear in mind that the boat was “laid up and out of commission” at all times after the date of the issuance of the policy up until October 21, 1960. The boat sank in the boathouse and was completely covered by water, except for a small portion of the bow. There were no witnesses to the sinking.

Appellant notified appellee on October 22, 1960, that the boat had sunk. Appellee advised appellant to get someone to raise the boat and to do everything possible to .salvage it. Anchor Boat Works was employed, and they raised the boat on October 22, 1960. The drain fittings in the stern, or transom, of the boat were broken loose and lying in the bottom of the boat, permitting water to enter the boat through the drain holes. The ropes or lines which had tied up the hoses connected to the drain fittings were missing. There were four screws in each drain fitting, and they had been broken loose from the boat, and they too were missing. The hoses were lying in the bottom of the boat. This was discovered because it was necessary to get the boat pumped out, they had to block the drain holes in the stern or transom.

When the boat was afloat, it was removed to Anchor Boat Works and salvaged. Ap-pellee refused to authorize the repairs to the boat. The necessary repairs were made at a cost of $4,520.37. The appellee refused to pay the damages.

The suit was then filed and came on for trial before the court, without a jury. Judgment was entered that the appellant take nothing.

The trial court filed findings of fact and amended findings of fact. He found that under the insurance policy the hull insurance of the boat covered loss directly caused by perils of the sea, vandalism and malicious mischiefs. He found further that the Inchmaree Clause provided coverage against latent defects in the hull or machinery, provided any loss or damage caused had not resulted from the lack of diligence on the part of the owner. The trial court further found that at the time of the sinking of the boat it was “laid up and out of commission, moored and afloat in a boathouse”. The trial court further found that the cockpit deck is about 18 inches above the water line when the boat is afloat and moored in calm water, and the purpose of the drains which were exposed at the top of the cockpit deck was to make the exposed stern cockpit self-draining, in the event water entered into the cockpit. There is sufficient evidence to support the trial court’s finding of fact as above enumerated.

According’ to the evidence, the appellee offered proof to show that they had hired an engineer to inspect the boat on February 1, 1960. The engineer testified that there was some seepage into the boat, and he valued the boat at $6,000.00. According to the record, the insurance company issued the policy for $9,500.00.

According to the evidence, the appellee hired the same engineer to inspect the boat about one month after it was sunk, and the trial court made findings of fact as to the testimony of the engineer. There is actually no evidence that the boat was not seaworthy immediately prior to the sinking, unless the provisions of the insurance policy “laid up and out of commission” indicated that the boat was unseaworthy. There are no authorities cited by either the appellant or the appellee on the meaning of ■“laid up and out of commission”, and we have only found three. Since this opinion is going to be a little long, we will merely say that if the insurance was issued because the boat was not seaworthy, then the appel-lee is bound by the insurance.

The proof that was offered that the boat was not seaworthy was actually the result of an inspection made about thirty days after the boat was sunk. On this evidence, the trial court found that the boat possessed seeps and leaks, and that the appellant did not have the boat repaired as required by the engineer. Bearing in mind that the engineer testified that he examined the boat February 1, 1960, and valued it at $6,000.00, and the insurance company insured it for $9,500.00, doesn’t pan out. The testimony that the stern board or transom plank was soft and near the water line at the stern of the boat is not applicable. This testimony shows the result of an inspection more than 30 days after the boat sank and is in direct conflict with the testimony of appellant and another witness that the stern board had to be removed and another board had to be placed in for another reason.

The trial court further found that there were no latent defects in the hull or machinery which directly or indirectly caused the boat to sink in calm water, and that the boat did not sink by reason of vandalism, malicious mischief or any other insured peril, including a peril of the sea. The evidence offered by the appellee in endeavoring to prove such facts is wholly insufficient. No one saw the boat from October 16, 1960, until October 21, 1960. On October 21st when the boat was seen, it had been sunk. There was no witness to the sinking. There is evidence that the hoses were broken loose, and the screws were missing which would indicate some form of vandalism or a peril of the sea. The ropes that tied the hoses up were missing. There is no evidence as to what became of the ropes. This would indicate some form of vandalism or a peril of the sea.

Under the findings of fact, the trial court concluded as a matter of law that the appel-lee was not liable. Appellant has perfected his appeal and brings forward two points of error.

By his Point One, the appellant says the trial court erred in holding that the warranty of seaworthiness had been breached because there is no evidence or insufficient evidence to support such finding.

By his Point Two, he says that the trial court erred in holding that the sinking of the boat was the result of a peril not insured under the terms of the insurance policy.

Under the law, there is an implied warranty of the seaworthiness of a vessel in marine hull insurance policies. There is no breach of such warranty because of the fact that the vessel sinks. Saskatchewan Government Insurance Office v. Spot Pack, Inc., 5 Cir., 242 F.2d 385; Tropical Marine Products, Inc., v. Birmingham Fire Insurance Company of Pennsylvania, 5 Cir., 247 F.2d 116; Mattson v. Connecticut Fire Ins. Co. of Hartford, D.C., 80 F.Supp. 101; Hanover Fire Insurance Company v. Holcombe, 5 Cir., 223 F.2d 844; Couch Cyclopedia of Insurance Law, Vol. 5, Sec. 1089.

The finding of the trial court that the actual cause of the sinking was not explained, the sinking was not the result of an adventure, and peril of the sea is in error. “Perils of the sea” have been defined by the Commission of Appeals of Texas in an opinion adopted by the Supreme Court in Charles Clarke & Co. v. Mannheim Ins. Co., Tex.Com.App., 210 S. W. 528. The court concluded that there was coverage under the “perils of the sea” clause for a vessel which sank in calm water while tied up alongside another vessel. The sinking was the result of the negligence of a watchman in going to sleep and permitting a fresh water tank to overflow and put the vessel in such a list that it took on sea water and sank.

In the case of Tsalapatas v. Phoenix Ins. Co. of Hartford, Conn., 236 S.C. 508, 115 S.E.2d 49, 83 A.L.R.2d 1451, a boat was insured to be “laid up and out of commission” from October to April. During the month of January the owner took the boat out of the boathouse and carried it for repairs. After the repairs were made, he started back to the boathouse and while the boat was being operated under its own power it struck something underneath the water and sank. The court held that the insurance company was not liable; but, it had this to say:

“The sole question is whether the insured boat is to be considered as being laid up and out of commission at the time the damage was sustained. We have not found any previous decisions in this State upon this question and none have been cited. We have, therefore, considered the reasoning of other Courts under similar questions. * * *
“The manner or custom of laying up and putting out of commission a boat on Lake Murray is not a matter of concern here as it is conceded that the method of storage employed by the insured was sufficient to come within the provisions of the warranty and had the boat sunk or sustained damage while in storage in the boathouse during the warranty period, defendant would have been liable.”

In Providence Insurance Company v. Lovett, D.C., 119 F.Supp. 371, a boat was insured to be “laid up and out of commission” from November 1, 1960, to May 1, 1961. The boat sank, and the Federal District Judge held that the boat was “laid up and out of commission” according to the phraseology used in the insurance policy, and that the insurer was liable. The court discussed the meaning of the words “laid up and out of commission”, “out of service”, and “laid up”. The court held that “laid up” and “out of commission” were synonymous. In the minds of various individuals when applied to local custom and practice, the words “laid up” and “out of commission” were ambiguous and uncertain. The words “out of service” to some meant whether the boat was in the water or on the shore. Wigle v. Aetna Casualty Co., D.C., 177 F.Supp. 932, cites the Lovett case.

In this case, according to the insurance policy, the boat was supposed to have been stored on the water. In the Lovett case, the court held that the boat, although moored in wet storage according to the customs of the place until November 25, 1950, when it sank, that the insurer was liable. The points are sustained.

The judgment of the trial court is reversed and the cause is remanded.


author: FANNING, Justice.

text:
    Stella EHRHARDT, Appellant, v. John M. ROBINSON, Independent Executor of the Estate of William Ehrhardt, deceased, et al., Appellees.
    No. 7533.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 5, 1963.
    Rehearing Denied Dec. 17, 1963.
    George M. Flint, Jr., Houston, for appellant.
    John M. Robinson, Houston, for appel-lees.
   FANNING, Justice.

Plaintiff-appellant sued the defendants-appellees. Trial was to a jury. At the conclusion of plaintiff’s evidence the trial court directed the jury to return a verdict that plaintiff take nothing by her suit and such directed verdict was returned by the jury. The trial court rendered judgment against plaintiff and in favor of defendants. Plaintiff’s motion for new trial was overruled and she has appealed.

Plaintiff-appellant has brought forward no Statement of Facts.

Appellant’s points are of such character that error is not shown in the absence of a statement of facts. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; Ehrhardt v. Ehrhardt, Jr., Executor of the Estate of J. G. Ehrhardt, deceased, et al., Tex.Civ.App., 368 S.W.2d 37, writ refused.

The judgment of the trial court is affirmed.


text:
    F. H. RAMAGE et al., Appellants, v. H. A. POTTER et al., Appellees.
    No. 7536.
    Court of Civil Appeals of Texas. Texarkana.
    Nov. 5, 1963.
    Rehearing Denied Dec. 17,1963.

      Lawrence P. Gwin, Bell, Camp, Gwin & Furse, Bay City, for appellants.
    W. Jack Salyer, Harris & Salyer, Bay City, Paul A. Smith, Smith & Fulton, John M. Jamison, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Al Taylor, Bay City, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellees.
   FANNING, Justice.

Appellants’ statement of the case (omitting references to the transcript) is as follows :

“This is a trespass to try title case instituted to determine the title to a mineral royalty interest upon the expiration of the twenty (20) year term prescribed in the grant. The case was submitted to the Trial Court upon an Agreed Statement of Facts. The Trial Court, upon the Agreed Statement of Facts as contained in two Stipulations and five numbered Exhibits established title in the Defendants, H. A. Potter and E. Allan Graham as assignees of the grantee in said term royalty deed. To this judgment Plaintiffs excepted and perfected their appeal to this Court. The only legal question for decision may be stated in the exact language before the Court for decision in Holland v. De Pena, Tex.Civ.App., 343 S.W.2d 750, 751 (writ refused), to-wit:
“ ‘ * * * whether or not, where a well capable of producing gas in commercial quantities is shut-in for lack of market, the payment of royalty on the shut-in well constitutes production, under the pertinent instruments herein involved, so as to continue a term royalty interest in effect beyond its fixed term.’ ”

Appellees in their brief under the heading “Statement of the Case” state: “Ap-pellee does not wish to add anything to appellant’s statement of the case.”

We hold that the legal question above stated is foreclosed by the opinion of the Supreme Court of Texas in Archer County, et al. v. Webb, et al., 161 Tex. 210, 338 S.W. 2d 435, and under the record in this case must be answered in the negative. In Holland, et al. v. De Pena et vir, Tex.Civ.App., 343 S.W.2d 750, writ refused, the above stated question was answered in the negative, and we quote from the court’s opinion in said case as follows:

“This exact question has recently been answered in the negative by the Supreme Court on June 22, 1960, in Archer County v. Webb, [161] Tex. [210], 338 S.W.2d 435, 437. We feel we should do nothing more than cite this case.”

The judgment of the trial court is reversed and judgment is here rendered for appellants decreeing title in appellants to the royalty interest sued for.

Reversed and rendered.


author: PALMORE, Judge.

text:
    Let (Lett) LEE, Appellant, v. INTERNATIONAL HARVESTER COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    Grant F. Knuckles, Pineville, for appellant.
    William A. Rice, Harlan, for appellees.
   PALMORE, Judge.

Let (Lett) Lee appeals from a judgment of the Harlan Circuit Court affirming an order of the Workmen’s Compensation Board adopting the findings of its referee and denying his claim for compensation.

The critical question is whether the evidence that Lee sustained an injury arising out of and in the course of his employment was conclusive, leaving the Board no alternative to decide otherwise.

Lee is substantially disabled from what the doctors believe is a herniated disc. He says that while he was lifting a heavy metal pan in appellee’s coal mine on June 14, 1960, he felt a sudden pain or “catch” in his back and could not do any more lifting. He worked during the remainder of his shift with the aid of a pry bar, but was unable to return to the job thereafter. He reported to the camp physician, a Dr. Mullen, on June 20, 1960. Following preliminary observation and treatment over •a period of several days the doctor put him in the hospital and eventually referred him to specialists, who confirmed the diagnosis.

At the time he claims to have sustained the injury Lee was 46 years old and had been employed by the appellee company for a number of years. He had worked steadily and was considered to he a good workman. He testified that he had never before experienced trouble with or lost work because of his back. On the other hand, Dr. Mullen said Lee’s record showed a history of backaches at frequent intervals beginning in 1946 or 1947, and that on October 21, 1960, “the patient stated to me that he had a crushed and bruised back, and I specifically asked him then directly when this injury, and so forth, occurred, and at that time he stated to me he could remember no injury to his back and this statement appears at other times back through the years. On each occasion, when he complained of his back, there was a brief note of ‘no history of specific injury.’ ” Asked whether Lee at any time on or before October 21, 1960, had told him he was injured in the mine on June 14, 1960, while trying to lift a belt pan, Dr. Mullen replied, “No, I have no record of his reporting for a back injury at any time.”

Dr. Inge, an orthopedic surgeon of Knoxville, Tennessee, to whom Lee had been referred by Dr. Mullen, first examined him on July 21, 1960, at which time Lee gave a case history to the effect that on June 20, 1960, when he started to go to work a pain struck him in the low part of his back radiating toward his right buttock. It was so severe that he did not go on to his job but instead reported to the Benham hospital. “Now as to what he did to start that pain,” Dr. Inge testified, “I have no record. * * * The patient says he has had attacks of pain in his low back and right buttock region for several years since working in the coal mine but never as severe as on June 20.” This witness was of the opinion that if Lee had mentioned having strained himself while lifting something heavy, he, Dr. Inge, would have recorded it in the case history.

Lee’s supervisor and fellow employes working with him on June 14, 1960, did not recall any injury to or complaint by him at the time. Their first knowledge of his indisposition came through his failure to report for duty on the next working day.

Though retained by the company, Dr. Mullen also served on a referral basis for the union welfare fund and engaged in private practice in the community where the mine was located. Medical services rendered to mine employes were paid for by the company if occasioned by industrial accident and by the welfare fund if not. The import of Dr. Mullen’s testimony is that he did not, at the time of treating Lee and referring him to the specialists, consider the ailment to be “industrially connected.” Though Dr. Mullen was inclined to think of a ruptured disc in terms of a sudden injury, Dr. Inge testified that such a condition, though it may result from an acute injury, frequently comes on through degeneration of the disc by prolonged and repeated minor injuries over a period of time, without a sudden blow or strain.

Relying very largely on the case of Greathouse Co. v. Yenowine, 302 Ky. 159, 193 S.W.2d 758 (1946), counsel for Lee contends that the defensive evidence was merely negative in character, and without probative force to disprove the occurrence or sudden manifestation of the injury on June 14, 1960, as related by Lee. Though we are unable to accept this viewpoint, especially as to the testimony bearing on his case history, the approach itself is unsound, because it is premised on the assumption that once a claimant produces substantial evidence sufficient to support an award the Board is bound to find in his favor unless the defendant comes forward with some definite quantum of rebutting evidence. That is a misconception, understandably induced by a faulty opinion in the Yenowine case and perhaps encouraged by the frequency with which, in reviewing findings adverse to the claimant, we have used the expression that in such cases the question is whether the findings of the Board are “supported” by evidence. Cf. Huddleston v. Collins & Peace Coal Co., Ky., 335 S.W.2d 929 (1960); Robinson v. Inland Steel Co., Ky., 343 S.W.2d 586 (1961); Brown v. American Radiator & Standard San. Mfg. Co., Ky., 346 S.W.2d 713 (1961); Nashville Coal Co. v. Epley, Ky., 350 S.W.2d 463 (1961); Knott Coal Corporation v. Smith, Ky., 354 S.W.2d 513 (1962); Martin v. Porcelain Metals Corporation, Ky., 358 S.W.2d 485 (1962).

As a fact-finding agency the Board is in the same position as a jury, and the same rules apply. The claimant, bearing the burden of proof, “has the risk of not persuading the Board in his favor.” Columbus Mining Co., v. Childers, Ky., 265 S.W.2d 443, 445 (1954). Standing alone, unimpeached, unexplained, and unrebutted, his evidence may or may not be so persuasive that it would be clearly unreasonable for the Board not to be convinced by it. There are, therefore, some cases in which no evidence whatever is required in “support” of a negative finding, and among them are those in which the claimant’s evidence would justify a favorable finding but would not require one as a matter of law. In such instances the Board’s finding is conclusive whether it be for or against.

There are three respects in which we find Greathouse Co. v. Yenowine, 302 Ky. 159, 193 S.W.2d 758 (1946), must be overruled. The first is its necessary implication that if the claimant produces evidence sufficient to support an award he creates perforce a rebuttable presumption and is entitled to a favorable finding in the absence of a rebuttal. The second is its erroneous statement that a negative finding is the equivalent of a peremptory instruction in an ordinary jury trial. The third is its conclusion that because the evidence was substantially undisputed the controlling facts were undisputed, thus making the factual issues a question of law. That the evidence in a case is not in conflict does not necessarily eliminate or settle the essential issues of fact.

The analysis in Lee v. Tucker, Ky., 365 S.W.2d 849 (1936), is appropriate to this case. In each instance the evidence was sufficient to support a finding for the plaintiff, but the defense testimony injected enough doubt to justify the fact-finding agency’s failure to be convinced.

As in Rowe v. Semet-Solvay Division Allied Chem. & Dye Corp., Ky., 268 S.W. 2d 416 (1954), we recognize that the appellant Lee, an unlettered man who could neither read nor write and obviously was not very articulate, should not be held strictly accountable for his inability to diagnose the injury and to describe it in unequivocal terms consistent with the eventual assertion of a compensation claim. Let it be said to his credit that he did not go to the doctor’s office with a law book in his hand. But that is not all. He chose to deny that he had ever before suffered any back trouble at all, contradicting what he had told the doctors in this respect. It is quite possible that the degenerative disc condition resulted gradually from his years of lifting and bending in appellee’s mine, climaxing or “lighting up” on June 14, 1960, and if so it is regrettable that he did not see fit to pitch his case openly on that basis. However, such a condition can be caused by many kinds of strenuous physical exertion, including those commonly experienced around house and garden. On being apprised that Lee had a history of back trouble which for some reason he chose not to reveal or explain in his testimony, the Board was not without reason to be dissatisfied on the vital question of what really did cause it.

Our conclusion must be and is the same as it was in Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443, 445 (1954), “that the evidence of the claim was not so clear-cut and convincing that we could justifiably conclude that the Board acted erroneously as a matter of law in reaching its * * * finding that the injury did not arise out of and in the course of his employment.”

The judgment is affirmed.

      . They cannot be entirely certain without performing surgery.

      . Which, of course, it may be. But also it may be the equivalent of a jury verdict for the defendant, as it is in this case.


author: E. J. STAHR, Special Commissioner.

text:
    C. W. TOTTEN, Administrator of the Estate of Etta Mae Totten, Deceased, Appellant, v. H. B. LOVENTHAL, Appellee.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    J. B. Gathright, Louisville, for appellant.
    R. I. McIntosh, John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for ap-pellee.
   E. J. STAHR, Special Commissioner.

This appeal is from an order of the trial court which refused to permit the filing of an amended complaint and dismissed the complaint upon a plea of limitations entered by the appellee.

The primary question to be determined is whether the original complaint stated a claim which survives under KRS 413.180(1) or one that is barred under KRS 413.140 (1) (a).

Etta Mae Totten, the appellant’s decedent, died December 10, 1958, after an alleged injury on December 1, 1958; the appellant was appointed administrator of her estate on September 25, 1959, and filed his original complaint on September 23, 1960; appellee answered on October 6, 1960, and amended his answer on February 23, 1961, and on March 1, 1961, appellant offered an amended complaint.

In his original complaint appellant alleged jurisdictional facts and then alleged that appellee was the owner of the property involved and that he negligently permitted water to flow onto and freeze and remain on the sidewalk in the front of said property and then alleged:

“Plaintiff states that the deceased, Etta Mae Totten, was walking on said sidewalk and when in front of the property of the defendant she slipped on the ice coating on the sidewalk and fell breaking her hip, and that she was taken to the hospital where as a result of this injury, which occurred on December 1, 1957, (obviously intended to be 1958 (she died on December 10, 1958, to the damage of her estate. * * * ” (Emphasis added)

The amended complaint after adopting each and every allegation of the original complaint said that the deceased:

“ * * * as a result of her fall on the ice, in front of the property of the defendant, suffered great mental and physical pain from the time of her injury until the time of her death.”

In Cottengim’s Adm’r v. Adams’ Adm’x, Ky., 255 S.W.2d 637, 638, 36 A.L.R.2d 1142, we said:

“Where a person is killed by the wrongful act of another, the personal representative of the deceased may elect whether to sue to recover damages for the wrongful death of his decedent or to sue to recover damages for the pain and suffering of his decedent, but he cannot sue to recover damages for both wrongful death and for pain and suffering. * * * ”

To the same effect are Louisville & N. K. Co. v. Simrall’s Adm’r, 127 Ky. 55, 104 S.W. 1011; Chesapeake & Ohio R. Co. v. Banks’ Adm’r, 142 Ky. 746, 135 S.W. 285; and Lutes’ Adm’r v. Gray-Von Allmen Sanitary Milk Co., 254 Ky. 750, 72 S.W.2d 720.

Appellant’s complaint said “as a result of this injury * * * she died * * * to the damage of her estate. * * * ” (Emphasis added)

These words leave no doubt but that the plaintiff elected which cause of action to prosecute, viz.: “for her death”. And nowhere in the complaint can we see any other intent or election even couched in equivocal language' — that he even purports to be suing for “pain and suffering prior to death,” for his words are for her death, and therefore under the provisions of KRS 411.-130 state an action for “wrongful death”. This action under KRS 413.140(1) (a) is barred after one year from the date of the injury, and it does not come under the provisions of KRS 413.180(1) which bar an action after one year from the appointment of a representative (if the appointment is made within one year following death).

The amended complaint was 26 months after the death of appellant’s decedent and 17 months after appellant’s appointment as administrator. This amended complaint obviously alleges a new and different cause of action than that stated in the original complaint, in that it seeks to recover for “pain and suffering,” while the original complaint seeks recovery for “the death”. Therefore the amended complaint does not relate back to the original complaint, and, being for an entirely different cause of action, and the provisions of KRS 413.180(1) being applicable thereto and it being barred thereunder, the trial court correctly refused to permit the amended complaint to be filed and dismissed appellant’s complaint.

For the above reasons it is recommended that the judgment of the lower court be affirmed.

The opinion is approved and the judgment is affirmed.


author: CLAY, Commissioner.

text:
    WHITLEY CITY CHURCH OF CHRIST, etc., et al., Appellants, v. WHITLEY CITY CHRISTIAN CHURCH, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    Sutton & Martin, Corbin, for appellants.
    Smith & Blackburn, Somerset, for ap-pellees.
   CLAY, Commissioner.

This suit was brought on behalf of the members of the Whitley City “Church of Christ” against those representing the, Whitley City “Christian Church” to recover $14,000 which had been paid by the Commonwealth to the latter when its property was condemned. The Chancellor denied the relief sought.

About 1937 the Whitley City “Church of Christ” was organized, and occupied a church building which had been constructed by the members. Approximately 10 years later about one-fourth of the membership withdrew and organized a separate church in the community. They took with them the name of the church, and subsequently the name of the original church was changed to “Christian Church”. Those who withdrew are members of a class who prosecute this action. Their claim in substance is they represent the original church and when the property of the original church was condemned, they were entitled to the proceeds. .

The issue is whether the original church has remained substantially the same with respect to religious doctrines and observances or whether those whom the appellants represent took the church with them when they moved out. While there is some conflict in the evidence on this question, the findings of the trial court are amply supported. Those findings, which the Chancellor incorporated in an excellent opinion, are to the effect that there has been no substantial change in religious practices which would have resulted in a forfeiture of the exclusive use of the original church property by the present members. There is some controversy with respect to the change of name but the past history of churches of this kind indicates the name is not of material significance. The fact that appellants withdrew from the church without substantial dissension, and their long delay in asserting any rights of ownership, strongly fortifies the conclusion that appellants left the church rather than the other way around.

This controversy is very similar to the one we considered in Rife v. Fleming, Ky., 339 S.W.2d 650, and the decision in that case is controlling here.

The judgment is affirmed.


text:
    Eugene MASTIN et al., etc., Petitioners, v. Acey CORNETT, County Judge of Harlan County, Kentucky, Respondent. W. D. JONES et al., Petitioners, v. Acey CORNETT, County Judge of Harlan County, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    Eugene Goss (Brock & Goss), Harlan, for petitioners.

      Joseph K. Beasley, Harían, for respondent.
   CLAY, Commissioner.

These are consolidated original proceedings seeking relief by way of prohibition and mandamus against the county judge of Harlan County. The suits, which question the calling of a local option election, are prosecuted by citizens and taxpayers of Harlan and Cumberland, both cities of the fourth class situated in Harlan County. By virtue of prior elections Harlan is now “dry” and Cumberland “wet”. Harlan County is “dry”.

On September 10, 1963 a petition signed by 3,034 persons was filed with the respondent as county judge. It requested him (as authorized by KRS 242.020) to direct a local option election “for the said county of Harlan” for the purpose of taking the sense of the voters as to the continuance or discontinuance of local option laws. Pursuant to this petition respondent entered an order calling, on December 9, 1963, not only a county wide election but also an election within the cities of Harlan and Cumberland. The right of respondent to call these city elections is the principal question presented.

The number of names on the petition was sufficient to equal at least 25 percent of the votes cast in the last preceding general election in the county, as required by KRS 242.020. The city voters signing the petition did not equal this percentage based on the preceding elections in the cities. Petitioners maintain that because of this shortage of city voters’ names respondent could not call city elections. The respondent questions the right of petitioners to proceed by original action in this Court and also contends that the election petition was sufficient to authorize the order.

In spite of commendable pleadings and briefs on the merits of this controversy, the petitioners have not proceeded in the proper court. In the recent cases of Hettich v. Colson, Ky., 366 S.W.2d 907; Cunnigan v. Jones, Ky., 371 S.W.2d 624; Coffey v. Anderson, Ky., 371 S.W.2d 624; Howell v. Wilson, Ky., 371 S.W.2d 627, we pointed out that the circuit courts have jurisdiction under CR 81 to grant relief of the nature here sought and therefore we will not entertain such original actions.

However, in view of the fact that such remedy is no longer available to petitioners (because of the very limited time before the election) and in view of the importance of this public question, we will make the following observations.

Petitioners contend that by virtue of a 1948 amendment to KRS 242.125 the legislature completely segregated cities of the first four classes from the counties in which they were situated for the purposes of our prohibition laws. This is true only in a sense. A city of such a class is a “territory” within the definition contained in KRS 242.010(5), and it is an independent unit for the purpose of voting and determining its status on the prohibition question. Karloftis v. Mills, 312 Ky. 722, 229 S.W.2d 477; Halcomb v. Faulkner, Ky., 238 S.W.2d 162. With respect to the calling of a county wide election, however, a city is simply a segment of the county.

KRS 242.125(2) (as amended in 1948) seems to make this clear. Under the conditions therein prescribed, which we consider applicable here, though cities vote —separately, a single election is held for the entire county. Thus for the purpose of calling a county wide election cities are no more than subdivisions of the county and are integrated parts of the whole “territory to be affected”. Therefore any qualified voter in the county, whether he resides within or without a city, may properly be counted on a petition to hold a county wide election.

While it may be possible for a sufficient number of voters from anywhere in the county on proper petition to compel cities to vote on the prohibition question every three years, apparently the legislature, by the enactment of KRS 242.125(2), intended this continuation of county dominance. To this extent a remnant of the “county unit rule” still prevails. See Herron v. McMurray, 303 Ky. 190, 197 S.W.2d 55.

As heretofore directed by order of December 3, 1963, relief is denied.


author: CULLEN, Commissioner.

text:
    Beverly Ann PEARCE, Suing by Her Father and Next Friend, Edward F. Pearce, Appellant, v. Leona RAWLINGS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 13, 1963.
    Richard M. Trautwein, Louisville, for appellant.
    J. Walter Clements, Louisville, for appel-lee.
   CULLEN, Commissioner.

Beverly Ann Pearce, an 11-year-old child, brought action by her father as next friend against Leona Rawlings to recover damages for personal injuries sustained by Beverly when struck by Mrs. Rawlings’ automobile. The jury found for the defendant and judgment was entered accordingly. On this appeal by the plaintiff the principal contention is that the trial court erred in refusing to instruct on the duty of Mrs. Rawlings to sound her horn.

Mrs. Rawlings was operating her automobile in a southerly direction on Preston Highway, which has three south-bound lanes and three north-bound lanes with a three or four-foot-wide traffic divider or island in the center. Mrs. Rawlings had been traveling in the middle south-bound lane but the traffic in that lane became congested and at a distance of some 50 to 100 feet from the point of the accident she turned into the lane next to the center island. Beverly was crossing the highway from -west to east. The evidence for the plaintiff was that Beverly had reached the island and was standing on it when struck by the Rawlings car. The evidence for the defendant was that Beverly ran across the street between cars in the curb lane and middle lane and into the lane occupied by the Rawlings car, and had not reached the island when she was struck.

The contentions of the appellant are (1) that even though Beverly was crossing the highway at a place where she was required to yield the right of way to vehicles, Mrs. Rawlings had the duty under KRS 189.570 (4) (d) to sound her horn upon observing Beverly; and (2) that under KRS 189.080 (1)Mrs. Rawlings had the duty to sound her horn as a warning of her approach to a pedestrian.

It is our opinion that regardless of which version of how the accident happened were to be accepted by the jury, an instruction on sounding the horn was not required. If, as claimed by the defendant, Beverly was running across the street toward the center island, a sounding of the horn would have served no purpose because Beverly already was exerting every effort to reach a place of safety, and had committed herself beyond recall. See Gish v. Scott, Ky., 345 S.W.2d 490. If, on the other hand, as claimed by the plaintiff, Beverly already had reached the safety of the island, the accident was not due to any failure to give warning but to Mrs. Rawlings’ negligence in driving upon or too close to the island.

The evidence did not warrant anything in the nature of a last clear chance instruction.

The instructions given by the court adequately covered Mrs. Rawlings’ general duties of lookout, control, and exercise of care towards pedestrians.

The appellant makes a contention that the trial court erred in refusing to admit evidence as to Beverly’s knowledge of a custom of pedestrians to cross the highway at the place in question. However, the only offer of evidence consisted of a question asked Beverly’s father whether he had seen people cross the highway at this place. Upon an objection being sustained no avowal was made as to what the evidence would be. Therefore the error, if any, in rejecting the evidence is not reviewable. East Kentucky Rural Electric Cooperative Corp. v. Smith, Ky., 310 S.W.2d 535.

The judgment is affirmed.