author: MURRAY, Chief Justice.

text:
    SAN ANTONIO PORTLAND CEMENT COMPANY, Appellant, v. Howard CHANDLER et al., Appellees.
    No. 13977.
    Court of Civil Appeals of Texas. San Antonio.
    July 25, 1962.
    Rehearing Denied Sept. 19, 1962.
    Groce & Hebdon, Charles L. Smith, San Antonio, for appellant.

      Rudy Rice, Frank R. Southern, Jack P. Kelso, San Antonio, Strasburger, Price, Kelton, Miller & Martin, William C. Martin, Jr., Dallas, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by Howard Chandler against San Antonio Portland Cement Company seeking to recover damages for personal injuries received on August 28, 1958, as a result of being bumped off a crane rail beam by a crane belonging to the Cement Company, while working as an iron worker for G. W. Mitchell Construction Company, an independent contractor, hereinafter called Mitchell, which was doing iron work at the Cement Company’s plant. The Central Surety and Insurance Corporation filed a plea in intervention for the money and medical expenses which it had previously paid to Chandler, and the amount to which it was entitled was stipulated between the parties.

Based upon the findings of the jury, the trial court rendered judgment in favor of Chandler in the sum of $12,500.00, and the Cement Company has prosecuted this appeal.

The Cement Company defended this suit largely upon the theory that as Chandler was no more than an invitee on the Cement Company’s premises, it owed him no duty with reference to an open and obvious danger, and, further, on the doctrine of volenti non fit injuria, (damages suffered by consent is not a cause of action) and on the similar doctrine of assumed risk.

A full statement of the facts at this point will be helpful. On August 28, 1958, Chandler was working as an iron worker and employed by Mitchell. On that date, R. J. Grünewald, Roy Brown, Jr., and Howard Chandler, all employees of Mitchell, were working replacing some old sheeting on the side of the crane or clinker building belonging to the Cement Company and located at its plant. This building is a large rectangular structure, some 700 feet long, running north and south, and some 70 feet high. High from the floor and along the west and east walls is a large rail beam upon which is a crane track. The Cement Company had two cranes that operated on these tracks; the “Old” Crane was parked, when not in use, at the north end of the Clinker Building, and the “New” Crane was parked, when not in use, at the south end of the building. Both of these cranes worked on the same rails or tracks and could not pass each other. When the old crane was parked at the north end, the new crane could travel practically the entire length of the building, and likewise when the new crane was parked at the south end, the old crane could travel practically the entire length of the building. The cranes are made of two enormous box girders that extend from one crane rail to the other, and there are wheels on the end of the box girders that run upon the crane rails, which are laid upon the rail beams. The cranes run north and south on the crane rails. The cranes also have another set of tracks in the steel girders that allow the cranes to work east and west. There is a cab beneath the steel girders in which the operator of the crane rides while operating the crane. Chandler had, for several years, worked on and about these beams and rails and understood the danger from being struck by a crane while working on a beam or rail.

On the morning of August 27, 1958, Chandler, Grünewald and Brown, Jr., began working, putting back on the east side of the Clinker Building, the steel sheeting that had theretofore been removed for the purpose of making repairs. There were two other buildings that joined the Clinker Building on the east side. The roofs of these two buildings made a valley and above this valley were two windows in the Clinker Building. During August 27, they had replaced the siding as far as these two windows. On the morning of the 28th they had resumed placing the sheeting on the east side of the building. The ladder they were using was too short, so Chandler climbed up the ladder through the window, and standing on the crane beam assisted Grünewald in placing the sheeting on the wall. Chandler was aware of the fact that the old crane was in operation. It came by him several times that morning. He would stand up against the wall and let it pass, then go back to work. He had been warned that if the new crane was to be put into action that he would be so informed. While he was thus engaged, the old crane came by him, going north, so he stood up and let it pass, and thinking it would be some time before it would return, he squatted down to again assist Grünewald, then the new crane came by, also going north, and struck him on his right buttock, and knocked him through the window to the valley made by the roofs of the two adjoining buildings, some fifteen to eighteen feet below. Chandler was seriously injured in this fall.

There was evidence that the old crane had not been in use on that morning, only the new crane was used. The Cement Company offered evidence that both cranes could not be operated at the same time, as there was not sufficient power to do so. Appellee offered evidence that both cranes could be operated at the same time and had been observed operating at one and the same time on several occasions.

Joseph M. Ranson was called as a witness for appellant and testified that he was the master mechanic for Cement Company and was in charge of plant maintenance and plant repairs. He admitted that he knew that Chandler, Grünewald and Brown were working, putting the steel sheeting back on the east wall. Ranson testified that he met Brown, Sr., foreman for Mitchell, just after 9:00 A.M. on the morning of the 28th, and Brown told him that the crane operator had bumped one of his men off the crane rail. This was the first information Ranson had that Chandler was working standing on the crane rail.

John Pongrass was called by the Cement Company as a witness and testified that he had been operating the new crane that morning and that the old crane had not been operating, that both cranes could not be operated at the same time. He did not know that he had bumped anyone off the crane rail until someone told him at noon. The Cement Company had a custom of placing a light under the rail beam when anyone was working on the rail beam, but did not do so at this time because it had no notice that Chandler was working on the beam on the morning of August 28, 1958.

The jury, in answer to the questions submitted to them, made the following findings:

Question No. 1. John Pongrass, operator of the new crane, did not fail to keep a proper lookout.

Question No. 2. No answer required.

Question No. 3. Pongrass did not fail to have the crane under proper control.

Question No. 4. No answer required.

Question No. 5. Pongrass was not operating the crane at a high rate of speed.

Question No. 6. No answer required.

Question No. 7. The failure of Pongrass to sound the warning bell on the crane was not negligence.

Question No. 8. No answer required.

Question No. 9. Cement Company, acting through its officers, agents, or employees, knew or should have known that Chandler was working on or near the crane rail.

Question No. 10. The failure of Cement Company, acting through its agents, servants, and employees, to place a warning light outside the crane rail beam in the area where Chandler was working was negligence.

Question No. 11. Such negligence was a proximate cause of Chandler’s being struck by the crane.

Question No. 12. Cement Company was negligent in not warning Chandler that the new crane was in operation.

Question No. 13. Such failure was a proximate cause of Chandler’s being struck by the new crane.

Question No. 14. Chandler did not fail to keep a proper lookout for his own safety.

Question No. 15. No answer required.

Question No. 16. Chandler did not know, nor should he have known of the danger of being struck by the new crane.

Questions Nos. 17 and 18. No answer required.

Question No. 19. Mitchell, acting through its officers, agents, or employees, failed to notify the Cement Company that its employee would be working on the crane rail beam on the occasion in question.

Question No. 20. Such failure was not the sole proximate cause of the occurrence in question.

Question No. 21. The occurrence in question was not the result of an unavoidable accident.

Question No. 22. The sum of money, if paid now, which would fairly and reasonably compensate Chandler for his damages is $12,500.00.

Thus it will be seen that the jury found, among other things, that the Cement Company, acting through its officers, agents and employees, knew or should have known that Chandler was working on or near the crane rail on the occasion in question, and failed to warn Chandler that the new crane was in operation, and that such failure was negligence, and further that Chandler did not know of the danger of being struck by the new crane, and did not fail to keep a proper lookout. These findings would support the judgment rendered by the trial court, if they were supported by sufficient evidence. The evidence does support these findings. Chandler had been working near the same place the day before. Ranson, the master mechanic in charge of repairs and maintenance for the Cement Company, knew where Chandler was working. When Chandler went to work on the morning of August 28, 1958, the date he was injured, only the old crane was in operation and he was keeping a proper lookout for this crane. The new crane was put into operation without notice to him and he was struck by it. He knew of the danger of being struck by the old crane, but he had no notice that the new crane was in operation. He was not precluded, under such circumstances, from recovering under the doctrine of volenti non fit injuria. Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449, on remand, Tex.Civ.App., 332 S.W.2d 764; Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126, on remand, Tex.Civ.App., 326 S.W.2d 915; Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60; McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442; Hobbs v. Grant, Tex.Civ.App., 314 S.W.2d 351; Halliburton Oil Well Cementing Co. v. Groves, Tex.Civ.App., 308 S.W.2d 919; Else v. Hawks, Tex.Civ.App., 284 S.W.2d 413.

In Sinclair Refining Company v. Winder, Tex.Civ.App., 340 S.W.2d 503, the Court said:

"We have a situation in which both parties knew and appreciated the dangerous condition, but in which there is a question of fact as to whether the invitee ‘of his own free will and as a result of intelligent choice’, voluntarily exposed himself thereto. This issue was omitted without request or objection. There was evidence to support a finding thereon favorable to appellee. Under Rule 279, Texas Rules of Civil Procedure, it is deemed as found in support of the judgment. Dee v. Parish, [160] Tex.Sup. [171,] 327 S.W.2d 449, 452.”

Appellant relies strongly upon McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391. The Supreme Court held that where a general contractor for the construction of a gymnasium allowed the gymnasium floor to be finished before the overhead carpentry work was completed, and the subcontractor’s employee knew of the slick condition of the floor and fully appreciated the danger of resting a ladder upon the polished floor while engaged in overhead carpentry work, the employee voluntarily exposed himself to the risk, even though it was necessary for the performance of his duties, and under such circumstances the general contractor breached no duty owed to the subcontractor’s employee, and therefore such subcontractor’s employee could not recover. We readily agree to the correctness of this holding, and if in the case at bar Chandler had been struck by the old crane, which Chandler knew was in operation, he would not be permitted to recover because he knew the danger of being struck by this crane, but as he was struck by the new crane, which he had no notice of its being in operation, a different situation is presented.

By appellant’s tenth point of error it presents the contention that the trial court erred in not submitting its requested issues concerning Chandler’s failure to notify the crane operator or agent or employee of the Cement Company on August 28, 1958, that he would be working on the crane rail. There was evidence raising the question of the contributory negligence of Chandler in not notifying the crane operator, or some other agent or employee of the Cement Company, that he would be working on the crane rail or beam on the morning he was injured.

It is true that the jury found, in answer to Question No. 9, that the Cement Company, acting through its officers, agents, or employees, knew or should have known that Chandler was working on or near the crane rail on the occasion in question, but we must view the record at the time the requested issues were presented to the court. At that time the jury had not answered any of the issues, the Cement Company had plead the contributory negligence of Chandler and was entitled to have its affirmative defense submitted to the jury. The issues requested were substantially correct, and the court committed reversible error in not submitting them.

The judgment of the trial court will be reversed and the cause remanded for a new trial.

BARROW, J., not participating.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Ray LAMBE et al., Appellants, v. C. G. GLASSCOCK et al., Appellees.
    No. 13932.
    Court of Civil Appeals of Texas. San Antonio.
    July 5, 1962.
    Rehearing Denied Sept. 5, 1962.

      Fischer, Wood, Burney & Nesbitt, Corpus Christi, Strickland, Wilkins, Hall & Mills, Mission, for appellants.
    Wm. H. Shireman, David M. Coover, Robert L. Bunting, Jr., Ralph J. Graham, Corpus Christi, for appellees.
   BARROW, Justice.

This is an appeal from a judgment rendered in a suit filed by Ray Lambe and others, individually and as statutory liquidating trustees of North Starr Petroleum Corporation, a dissolved Texas corporation, against C. G. Glasscock and others, for accrued and future overriding royalty on the Amalia R. de Canales lease, and for damages for failure to reassign tfie lease to appellants. Following a jury trial, a take-nothing judgment was rendered and appellants complain only of the action of the trial court in denying them recovery of the sum of $6,264.61, which was stipulated as accrued overriding royalty, plus $400.00 found by the jury as the value of future overriding royalty. The jury findings defeated the claim for damages and there is no appeal from that part of the judgment.

North Starr Petroleum Corporation was the owner of a number of leases on land in Starr County, which were leased by Cervacio Canales and others to George R. Boyle, and subsequently assigned to North Starr, including a tract of 120.94 acres leased from Amalia R. de Canales on August 20, 1948, which is involved in this suit. On December 8, 1949, North Starr assigned said leases to Glasscock and it was provided that Glasscock had the option of surrending any of said tracts to North Starr by notifying North Starr thirty days prior to the rental paying date on such surrendered tract. The Amalia R. de Canales lease required a delay rental payment on or before August 20, 1949, and a question arose as to whether or not Amalia R. de Canales and other lessors had received payment for same. Therefore, Glasscock and North Starr entered into an escrow agreement whereby the consideration was deposited with the First National Bank of McAllen. Glasscock had the option to reassign any of the leases in which he could not verify that delay rentals had been properly paid. There was a letter from North Starr’s attorney to Glasscock in June, 1953, concerning reassignment of these leases, but they were never reassigned.

On December 27, 1949, Glasscock assigned a one-half interest in the Boyle lease in question to Pontiac Refining Corporation and warranted that all rentals had been duly paid. This interest was subsequently reassigned to Glasscock on August 12, 1953. Amalia R. de Canales refused to acknowledge payment of the delay rental under the Boyle lease, and on Dec. 13, 1949, she leased the same land to Clark, who on August 30, 1950, asssigned the lease to Glasscock.

Three issues were submitted to the jury:

“SPECIAL ISSUE NO. 1. What do you find from a preponderance of the evidence to have been the fair market value per acre of the Canales Oil and Gas Leases in the La Socatosa Grant involved in this suit in June, 1953? * * * ANSWER: $1.00 per acre.
“SPECIAL ISSUE NO. 2. What do you find from a preponderance of the evidence to be the fair market value of a ½6 of % overriding royalty on the Amalia de Canales tract of 120.94 acres, being Tract No. 8 of share 2, El Haveli Grant, excluding any production therefrom prior to January 1, 1961? * * * ANSWER: $400.00
“SPECIAL ISSUE NO. 3. Do you find from a preponderance of the evidence that the Defendant C. G. Glass-cock mutually agreed to and with the Plaintiffs in the latter part of January, 1953, to amend the assignment in question of December 8, 1949, to provide that if he thereafter drilled an additional well on the Antoco Munoz, et al., property and it was abandoned as a dry hole then the oil, gas and mineral leases in question herein, excluding the Amalia R. de Canales lease, would be allowed to expire and terminate under their own terms and provisions by not paying the delay rentals next falling due under each such lease in June, 1953? * * * ANSWER: Yes.”

No issue was submitted to the jury as to whether the delay rental was properly paid to Amalia R. de Canales under the Boyle lease and the record does not reflect any objection to the charge for failure to submit same, or request for said issue. In entering judgment, the trial judge expressly found that the Amalia R. de Canales lease to Boyle had expired, due to the failure of North Starr to properly pay to her the annual delay rental before August 20, 1949, and that the assignment to Glasscock on December 8, 1949, was a nullity. Appellants assert, under their third and fourth points, that there is no evidence to support such a finding. On examining the record in the light most favorable to support this finding as we are required to do, we overrule this contention. Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

North Starr attempted to pay the delay rentals on several leases by sending one check to the designated bank and directed the bank to deposit said check to the account of Cervacio Canales and wife, Manuela G. Canales and Fernando Canales. There is evidence that someone other than lessor Amalia R. de Canales, withdrew all of said funds and that she was not paid her delay rental. There was evidence that Glasscock, by personal investigation, was led to believe that she would never deny payment. The Boyle lease was never reassigned to North Starr by Glasscock, and although Glasscock secured assignment of the Clark lease on August 30, 19S0, he authorized the McAllen Bank, on August 9, 1951, to release to North Starr the balance of the escrow monies. There is no allegation or evidence of fraud on the part of Glasscock in so acquiring the Clark lease.

Thus we have a situation where appellants are claiming an overriding royalty interest under a senior lease which had expired at the time of its transfer to as-signee who subsequently acquired a junior lease on the same property.

Appellants, as successors to North Starr, contend that since Glasscock recognized and relied upon the Boyle lease after knowledge of all facts, he can not assert its invalidity under the rule established in Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626, and that they are entitled to recover for their overriding royalty interest as a matter of law.

In Greene v. White, supra, the court in considering the validity of a mineral reservation held that the question was not whether the grantor had good title, but whether the parties to the deed and those claiming under them, were bound as between themselves by the recitals and provisions of the deed. The Supreme Court held that the parties to the deed were bound by the terms of their contract, and it was not necessary as between said parties and those holding under them, that good title be shown in grantor.

Glasscock had the right to acquire independent rights after the expiration of the senior Boyle lease. Thomas v. Warner-Quinlan Company of Texas, Tex.Civ.App., 65 S.W.2d 321; Montgomery v. Phillips Petroleum Co., Tex.Civ.App., 49 S.W.2d 967.

An overriding royalty interest is an interest carved out of the working interest created by an oil and gas lease. MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334. It is derived from a particular oil and gas lease which constitutes the assignor’s mineral estate, and its validity is subject to the terms, conditions and existence of such a lease. Grass v. Cummins, Tex.Civ.App., 329 S.W.2d 496. Appellees concede that in an appropriate case the holder of an overriding royalty interest under a lapsed senior oil and gas lease can recover under equitable principles on such interest in the production under a junior lease on the same property. However, in the absence of pleadings, evidence and findings, such a recovery is waived. Newton v. Town of Highland Park, Tex.Civ.App., 282 S.W.2d 266.

It is undisputed that Glasscock accepted the assignment from North Starr and paid the final consideration after knowledge of lessor’s refusal to ratify payment of delay rental; the assignment to Pontiac recited that all rentals were paid and unquestionably this senior lease, together with the junior lease, did make Glasscock’s working interest more secure. Appellees assert that these facts as a matter of law estopped Glasscock from asserting the invalidity of the expired Boyle lease.

The general rule in Texas is that recitals in a deed are binding only when the parties thereto claim under such deed. Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158; Robert Oil Corporation v. Jones, Tex.Civ.App., 23 S.W.2d 472; Haley v. Sabine Valley Timber & Lumber Co., Tex.Civ.App., 150 S.W. 596; 31 C.J.S. Estoppel §§ 37, 38, pp. 214, 216. The rule in Greene v. White, supra, does not apply when the parties to the deed in question never attempted to use same in their chain of title. Dean v. Hidalgo County Water Improvement Dist. No. Two, Tex.Civ.App., 320 S.W.2d 29. Here the trial court found that the senior Boyle lease had expired and that therefore production was had under the junior Clark lease. We, therefore, hold that Glasscock was not estopped as a matter of law from asserting the expiration of the senior lease.

Appellants have neither made nor briefed any points of error as to appellee Pontiac Refining Corporation or appellee Riddell Petroleum Corporation.

The judgment is affirmed as to all parties.


text:
    KIRKWOOD & MORGAN, INC., Appellant, v. J. O. ROACH, d/b/a Roach Rig Building and Construction Company, Appellee.
    No. 13974.
    Court of Civil Appeals of Texas. San Antonio.
    July 11, 1962.
    Rehearing Denied Sept. 12, 1962.

      Morrison, Dittmar, Dahlgren & Kaine, San Antonio, for appellant.
    Whitlow, Cole & Seerden, Victoria, for appellee.
   BARROW, Justice.

This is an appeal from a judgment rendered on a jury verdict in an action brought by appellee, J. O. Roach, d/b/a Roach Rig Building and Construction Company, against appellant, Kirkwood & Morgan, Inc., for breach of an alleged oral contract to construct a roadway referred to as a “T-head” for use in connection with an oil-well drill-site location. Ap-pellee recovered judgment for 1696 cubic yards of sand at $1.00 each and $565.00 attorney’s fees.

Appellant secured a short-term lease on the property in question, which was in a partly flooded coastal area of Calhoun County. It was necessary to build a roadbed and turn-around on the drilling site in this low area, and appellee, Roach, who was in the construction business, solicited this job from Kirkwood, president of appellant. Mr. Kirkwood advised Roach that his general superintendent, J. J. Craig, would subsequently contact Roach and give him an opportunity to make a deal on the job. There is no dispute that Craig and Roach met with Sparks, who was to do the hauling. They met at the area of the proposed drilling site. There is no contention that Craig was not fully authorized to make a contract for the work, but appellant contends that there was no valid contract made at this time.

The jury found substantially as follows: (1) that on or about October 6, 1958, ap-pellee and appellant contracted for the construction of a “T-head”; (2) that ap-pellee was to begin construction as soon as tidal conditions permitted; (3) that said road would be large enough, in the judgment of appellee, to accommodate usual traffic incidental to drilling an oil well; (4) that said parties would agree on size of the turn-around after the road was started; (5) that the 1696 cubic yards of sand were placed in accordance with the provisions of the contract; (6) that there was no agreement that appellee was to contact Craig on the exact location before the contract was to be effective; (7) that an ordinary prudent person would not have contacted Craig or appellant before beginning work; and (8) that a reasonable attorney’s fee would be $565.00.

Appellant presents sixteen points, several of which relate to the sufficiency of the contract. A brief résumé of the evidence is necessary. The contract, if any, was made orally by Craig and Roach in the presence of Sparks on their October 6, 1958, visit to the area of the proposed well site. A surveyor’s stake had been placed by appellant about 900 feet out in the water and both Roach and Sparks testified that Craig advised that the well site was to be in that immediate vicinity. They testified that Craig stated, if the site was moved, it would be moved that day, and would not be moved over 100 feet. They further testified that appellant was in a hurry to get started and Craig directed Roach to start as soon as the tide permitted. They testified that appellee was to build a roadway large enough, in his judgment, to accommodate drilling trucks, and that he was to be paid at the rate of $1.00 per cubic yard for all sand necessary for the roadway. The actual size of the turnaround on the rig site was to be determined by appellant after the job was started. They testified that they were familiar with the construction of a T-head, and it was usually constructed without plans or specifications. In fact, Sparks subsequently built one for appellant in this area on similar information as given by Craig on this date. Craig, who was no longer associated with appellant, was called as a witness by appellee and confirmed most of the above testimony. He disputed the testimony of Roach and Sparks on whether or not the final location had been selected. He testified that Roach was instructed to call him when he was able to begin work to confirm the exact location. Roach testified and Craig confirmed that Roach had tried to call Craig when he started work and left his number at Craig’s house. After working two days, and spreading 1696 cubic yards of sand, he contacted appellant’s home office and was advised to stop work as the well site had been relocated.

Appellant contends that there was no meeting of the minds, no mutuality of obligation, and no unconditional acceptance by Craig on behalf of appellant. To be enforceable, a contract must be reasonably definite and certain. It must leave no reasonable doubt as to what the parties intended. 13 Tex.Jur.2d, 699. Here both parties were well acquainted with this type of construction work and knew what was called for in the construction of a “T-head”. They knew the approximate dimensions, but the actual number of yards of sand necessary would not be known until the contract was completed. It was for this reason that a price per yard was agreed upon. The only item that Craig testified was not determined was the definite location, and the jury found with the appellee on this disputed fact issue. Craig’s testimony was that all other matters necessary to make a definite contract were agreed upon at their meeting.

In Gibson v. Texas Co., Tex.Civ.App., 239 S.W. 671, an oral agreement was upheld whereby the parties agreed that the depth of the well should be left to the reasonable judgment of the contractor. Nothing was left to the future negotiation of the parties, as in Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472, cited by appellant.

Here all was agreed upon and understood, except the exact size of the turn-around, which would necessarily be the last thing constructed, and if a larger one was needed it would require only the dumping of more sand, at a cost of $1.00 per cubic yard. All parties were experienced with this type of work and knew what was expected of each party to the contract. Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744. The rule as to certainty is less strictly applied in a suit for damages for a breach of contract than in a suit for specific performance. Grimsley v. Life Ins. Co. of Virginia, Tex.Civ.App., 154 S.W.2d 196; 14 Tex.Jur.2d 251, § 99. We hold that there was sufficient meeting of the minds.

Appellant also contends that there was no mutuality of obligation which is essential to a bilateral contract. We have applied the rules set forth in Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340, and find that each of the parties had mutual obligations. Roach, through Sparks, was to haul the necessary sand, smooth and level it, as was reasonably necessary to construct the “T-head”. Appellant was to pay him $1.00 per cubic yard for the sand reasonably necessary to be spread on this job.

Appellant further asserts that there was no unconditional acceptance of this contract. This was a disputed fact issue resolved in favor of appellee. Craig testified that all was agreed, but Roach was to call him before starting work, to see if the location had been changed. Both Roach and Sparks testified that Craig instructed Roach to begin work as soon as the tidal conditions permitted. We overrule appellant’s points asserting a lack of certainty of the contract and insufficiency of the evidence to support the findings of the jury.

By its second point appellant urges that there is a fatal variance in the pleading and proof, in that appellee alleged the site of the proposed well (a surveyor’s stake) was pointed out to him by Craig in a second meeting, whereas the testimony showed it was done at his only meeting with Craig.

In his work on procedure, in Vol. 2, § 519, McDonald discusses the effect of variance. It is seen from an observation of the cases since 1941, that under the Texas Rules of Civil Procedure the significance of a variance has been minimized. A variance as to a particular matter, such as time, place and quantity, must be called to the trial court’s attention by an objection or motion to strike, or it will be waived. Alta Vista Creamery Co. v. Jackson, Tex.Civ.App., 210 S.W.2d 876. Here appellant did not object, move to strike, or plead surprise by the variance, and therefore waived said point. It furthermore appears that the proposition of fact was proved substantially in accordance with the legal effect of the allegation, and there was no fatal variance.

Appellant presents three points relating to the measure of damages whereby appellee was awarded $1.00 per cubic yard for the 1696 yards delivered prior to appellant’s stopping the work. This was the agreed price, and it is a proper measure of damages. The contract was not completed at the express direction of appellant, so it can not now complain that appellee’s failure to complete the roadway was a breach of the contract. The appellant asserts that appellee was under a duty to mitigate his damage by telephoning appellant after the first day’s work. The undisputed evidence is that appellee tried to contact the appellant’s superintendent, with whom he had all negotiations, and there is no finding by the jury lhat this attempt was not sufficient.

The measure of damages in this type of case is fully set forth in Tower Contracting Co. v. Flores, Tex.Civ.App., 294 S.W.2d 266, affirmed as to the point in question in 157 Tex. 297, 302 S.W.2d 396. It is there held that one measure of damages would be the contract value of the work actually done, plus any profit the contractor would have made had he been permitted the performance of his contract. Under the facts of this case, appellant cannot complain of the trial court’s awarding damages at the agreed contract price for the sand actually delivered and spread before appellant stopped the work.

We overrule appellant’s point wherein it asserts the doctrine of judicial estoppel by reason of a previous sworn pleading by appellee asserting two meetings with Craig. Under discussion of appellant’s second point, we have held that there was no fatal variance. Furthermore, the rule is that when a pleading has been abandoned, superseded or amended, it ceases to be a “judicial” admission. It remains a statement seriously made, and it can be introduced in evidence as an admission. Kirk v. Head, 137 Tex. 44, 152 S.W.2d 726, 729.

Appellant complains of the refusal of the court to submit three special requested issues. It is seen they are shades of the same defensive issues submitted by the court in Special Issues Nos. 6, 7 and 8. There are no objections presented to the form of the submitted issues and the trial court did not err in refusing to submit different shades of the same disputed facts. Texas & Pac. Ry. Co. v. Snider, 159 Tex. 380, 321 S.W.2d 280.

Appellant’s last point relates to the award of attorney’s fees in this case. We sustain this point. Appellee went to the jury on his claim for damages for breach of contract, and Art. 2226, Vernon’s Tex. Civ.Stats., does not apply. He abandoned that part of his cause of action which related to a sworn account and recovery on quantum meruit. Art. 2226 is penal in nature, is in derogation of the common law, and should be strictly construed. Davenport v. Harry Payne Motors, Inc., Tex.Civ.App., 256 S.W.2d 245; U. S. Life Insurance Co. v. Hamilton, Tex.Civ.App., 238 S.W.2d 289.

It is true that appellee performed some labor in dumping and spreading the sand which was furnished by appellant. However, this suit was for damages for breach of contract and not for labor done. Hicks v. Smith, Tex.Civ.App., 330 S.W.2d 641. The award for attorney’s fees was not proper in this case. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75.

The judgment of the trial court will, therefore, be reformed and judgment rendered in favor of appellee for the sum of $1,696.00. Costs of this appeal are taxed three-fourths against appellant and one-fourth against appellee.


author: STEPHENSON, Justice.

text:
    Wilson C. TIPPIT, Jr., Appellant, v. Frances Benson TIPPIT, Appellee.
    No. 6548.
    Court of Civil Appeals of Texas. Beaumont.
    June 28, 1962.

      George E. Baldry, Jr., Houston, for appellant.
    Bedford D. Edwards, Waco, for appellee.
   STEPHENSON, Justice.

This is an action brought by the mother to regain the custody of a twelve year old son. The father was given custody in the original divorce. The case was heard by the judge and custody was placed in the mother, and the father given specific rights of visitation.

Appellant first complains of the failure of the trial judge to file his findings of fact and conclusions of law within the time prescribed by the Rules of Civil Procedure. Rule 297, T.R.C.P., reads as follows:

“When demand is made therefor, the judge of a district or county court thirty days before the time for filing transcript in the cause shall prepare his findings of fact and conclusions of law in any case tried before the court. If he shall fail so to prepare them, the party so demanding, in order to complain of the failure, shall, in writing, within five days after such period, call the omission to the attention of the judge, whereupon the period for due preparation and filing shall be automatically extended for five days after such notification.”

The order overruling the motion for new trial was rendered and entered September 14, 1961, and appellant filed his request for findings of fact and conclusions of law on the same date. A second request for findings and conclusions was filed October 11, 1961. The transcript in this cause was filed in the trial court November 1, 1961, and then filed in the Court of Civil Appeals November 2, 1961. The trial judge filed his findings of fact and conclusions of law in the trial court November 3, 1961, and these were brought before this court by supplemental transcript, which was filed January 18, 1962. Oral argument was heard by this court May 7, 1962. The findings and conclusions were filed by the trial judge 50 days after the overruling of the motion for new trial and therefore were 15 days late.

The general rule is that the failure of the trial court to file findings of fact and conclusions of law constitutes reversible error where the complaining party has complied with the statutory requirement in an effort to secure such filing. However, such failure will not call for a reversal if the record before the appellate court affirmatively shows that the complaining party has suffered no injury in the premises. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117. Had the trial judge failed entirely to file findings and conclusions, this court, under Rule 434, T.R.C.P., would have been authorized to direct the trial court to file such findings and conclusions, and then consider the case on appeal. However, in this instance, even though filed late, we have the completed record before us. There is no showing in this record of probable harm to appellant because of the late filing of the findings of fact and conclusions of law, and since no injury exists there is no reversible error. Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818; Cantu v. Cantu, Tex.Civ.App., 253 S.W.2d 957.

Appellant contends the trial court abused its discretion in awarding the mother custody because a finding of change of conditions was against the great weight and degree of the evidence as to be manifestly wrong. The rules of construction to be followed in this type of case are clearly set forth by the Supreme Court in Taylor v. Meek, 154 Tex. 305, 310, 276 S.W.2d 787. First, the original judgment awarding the father custody at the time it was entered was res adjudicata of the question of the child’s best interest and of the custody. In the present hearing to change custody, in determining the question of the child’s best interest, there is a difference between the first award and a change of custody. Because a change of custody disrupts the child’s living arrangements and the channels of a child’s affection, a change should be ordered only when the trial court is convinced that the change is to be a positive improvement for the child. The question of whether the trial court has abused its discretion is one of law requiring an appraisal of the facts. The trial court musí look, in the light of all the circumstances, to the best interest of the child. With the opportunity to observe the appearance and demeanor of the witnesses, to weigh their testimony, and evaluate the virtues of the parties, no one is in a better position to do this than the trial court. This court has carefully studied all of the evidence in this record with these rules in mind.

The trial court made certain findings of fact, including the finding that the child had been influenced to change his attitude and respect for his mother and that the child’s mind had been poisoned against his mother. The trial court found the father had left this child with the mother approximately two years until the latter part of the summer of 1960. The court also found that it would be to the best interest of the child to reside with his mother and older brother, and that the circumstances of the mother had materially changed in that she was now in a better position to adequately care for and support the child. There is evidence in this record to support each of these findings by the trial court. We find no abuse of the discretion of the trial court in changing the custody of the child.

The judgment is affirmed.


text:
    Samuel A. HOPKINS, Appellant, v. J. E. FOSTER & SON, INC., Appellee.
    No. 6559.
    Court of Civil Appeals of Texas. Beaumont.
    May 3, 1962.
    Rehearing Denied June 20, 1962.
    Louis Dugas, Jr., Jerry L. Zunker, Orange, for appellant.
    H. P. Robichau, Beaumont, for appel-lee.
   STEPHENSON, Justice.

Plaintiff brought this action for damages for breach of contract. Trial was before the court, and judgment was rendered that plaintiff take nothing. The parties will be referred to here as they were in the trial court.

Defendant wrote a letter of commitment to make plaintiff a loan to finance the construction of a home, which contained the following provision:

“We are to be furnished with a title policy from an acceptable title company, insuring the deed of trust as a first lien on the property, without reservation.” Later defendant was furnished with information showing two-thirds of the minerals under the land upon which the home was to be constructed, to be outstanding in a third person. Defendant then wrote the plaintiff a letter stating the title would not be accepted with the minerals outstanding. Plaintiff secured another loan at a higher rate of interest, and brought this suit for damages to recover the difference in the amount of interest he would have to pay. The sole question to be determined is whether the outstanding mineral interest would violate the provision in the commitment letter that the title policy must insure the deed of trust as a first lien on the property “without reservation.”

A conveyance of land without reservation would include all minerals and mineral rights. 128 Tex. 628, 101 S.W.2d 543; Schlittler v. Smith. We hold that the letter of commitment should be construed to mean that defendant would he entitled to have as security a first lien on the property, including all of the minerals. We take judicial knowledge of the fact that land is more valuable with the minerals intact than without.

■ An outstanding mineral interest violates the provision “without reservation” in the clause of the letter above quoted.

The judgment is affirmed.


author: PER CURIAM.

text:
    SOUTH ATLANTIC & GULF COAST DISTRICT OF THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, et al., Appellants, v. HARRIS COUNTY-HOUSTON SHIP CHANNEL NAVIGATION DISTRICT, Appellee.
    No. 14112.
    Court of Civil Appeals of Texas. Houston.
    Sept. 20, 1962.
    Rehearing Denied Sept. 27, 1962.
    Mandell & Wright, Arthur J. Mandell, Houston, for appellants International Longshoremen’s Ass’n Local 872.
    Sewall Myer, Houston, for appellants South Atlantic & Gulf Coast District of the International Longshoremen’s Ass’n Independent, Ralph A. Massey as Representative of the District, Paul F. Koehne, as Representative of the District, International Longshoremen’s Ass’n, Local No. 1273, Willie C. Wells and Jim Clark as Representatives of Local 1273, International Longshoremen’s Ass’n Local 1530, and Lloyd Allen as Representative of Local No. 1530.
    L. G. Clinton, Jr., Paul R. Robertson, J. L. Lockett, Jr., Houston, Fulbright, Crook-er, Freeman, Bates & Jaworski, Houston, of counsel, for appellee.
   PER CURIAM.

This is an appeal from the judgment of the trial court permanently enjoining appellants from establishing and/or maintaining a picket line or picket lines at or adjacent to the premises of and directed against ap-pellee. The order enjoined a number of persons in their individual and representative capacities, as well as all officers, agents, representatives, servants, employees and members of those unions.

Previous to the judgment granting a permanent injunction the trial court had granted a temporary injunction. The appellants here appealed to this Court from the judgment granting the temporary injunction. In our Cause No. 13985, styled the same as this case, we rendered an opinion on May 31, 1962, 358 S.W.2d 658, affirming the judgment of the trial court. On June 21, 1962, we overruled appellants’ motion for rehearing. In July, 1962, appellants in that cause timely filed their application for writ of error to the Supreme Court. Such application is now pending there.

On September 10, 1962, a trial was had on appellee’s petition for a permanent injunction. Appellee challenged the jurisdiction of the trial court to hear the application for permanent injunction while the appeal from the order granting the temporary injunction was pending. This plea was overruled. After the plea was overruled, the parties stipulated and agreed, subject to ap-pellee’s plea to the jurisdiction, that the evidence introduced before the court on the temporary injunction hearing would be submitted to the trial court. This was done. The same judge who had heard the temporary injunction proceeding also heard the permanent injunction. No new evidence was introduced and no new pleadings were filed. The transcript was timely filed in this Court. The parties have filed an agreement asking that we consider the record in Cause No. 13985, including the statement of facts and briefs on file here. They waive argument. They say neither has additional argument or authorities except on appellee’s jurisdictional plea. Appellee has filed a brief on the plea to the jurisdiction.

We have considered the briefs and statement of facts in said cause as also being filed in this cause and base our disposition of this cause on such and the transcript and jurisdictional brief filed alone in this cause.

The trial court correctly held it had jurisdiction to hear the case on application for permanent injunction though an appeal was pending from a previous order granting a temporary injunction. Jurisdiction remains in the trial court to try the case on its merits. Rhoton v. Texas Land & Mortgage Co., Tex.Civ.App., 80 S.W.2d 763, C.C.A., writ ref.; Magnolia Petroleum Co. v. Blankenship, Tex.Civ.App., 70 S.W.2d 258, C.C.A., no writ hist.; Hill v. Pure Oil Co., Tex.Civ.App., 38 S.W.2d 855, C.C.A., error dism.

In our opinion in Cause No. 13985 we fully discussed the law we consider applicable. We entertain the same views we there expressed. We hereby adopt that opinion as the opinion of the Court in this cause, except for unnumbered paragraph 8, which paragraph deals with the test of determining whether the trial court was in error in granting a temporary injunction. Otherwise the opinion is fully applicable in this cause.

The judgment of the trial court is affirmed.


text:
    Marjorie WILLIS, Appellant, v. Moulton A. GOODRUM, Appellee.
    No. 13980.
    Court of Civil Appeals of Texas. San Antonio.
    July 11, 1962.
    Rehearing Denied Sept. 5, 1962.

      Vaughan & Vaughan, San Antonio, for appellant.
    Elbert R. Jandt, Seguin, Moulton Good-rum, Baker, Botts, Shepherd & Coates, Houston, for appellee.
   BARROW, Justice.

This is an appeal from a take nothing judgment following a jury trial in a suit brought by appellant to contest her mother’s will, which had been offered for probate by her brother, Moulton A. Goodrum, as independent executor under his mother’s will. Appellant alleged unsound mind and undue influence, but only issues relating to undue influence were submitted to the jury. The jury verdict was adverse to appellant and she has brought this appeal asserting jury misconduct.

Appellant has briefed five points, but all grew out of one incident. After the arguments were concluded, the trial judge, accompanied by all attorneys except one of the attorneys for appellee, left the courthouse for coffee. The jury, on beginning their deliberations, discovered that the exhibits were not with the charge of the court and verbally requested the bailiff to secure same. He went to the court reporter who thereupon started to sort out the various exhibits. The deposition of a witness, Mrs. Davis, was with the exhibits, and when the reporter started to remove the deposition, the attorney for appellee told the reporter that the jury was entitled to see the deposition if they desired. The exhibits and deposition were then taken to the jury room by the bailiff. All of the above events took place without the knowledge of the trial court or the attorneys for appellant.

It was error for the bailiff to communicate verbally with the jury, Rule 283, Texas Rules of Civil Procedure, and it was error for the deposition to go to the jury room. Rule 281, T.R.C.P. Error being established, we turn next to the law question of harm. Scoggins v. Curtiss & Taylor, Tex.Civ.App., 219 S.W.2d 451. It is well settled that a party asserting misconduct of the jury or officer in charge of them, or that the jury received other evidence, has the burden of proving that (1) misconduct occurred which was (2) material, and from the evidence, both on the hearing on the motion for a new trial and on the trial of the case, and from the record as a whole, that (3) injury probably resulted to the complaining party. Rule 327, T.R.C.P.; Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462, 464; Watson v. Texas Ind. Ins. Co., 147 Tex. 40, 46, 210 S.W.2d 989, 992, 993; Pope, Jury Misconduct and Harm, 12 Baylor Law Rev. 1 (1960).

Appellant established the misconduct, but failed to meet points 2 and 3 of the above test. She filed in this Court only the statement of facts on the hearing of the motion for new trial. We have none of the testimony on the trial of the case or the deposition testimony of Mrs. Davis. We do not know what the testimony of Mrs. Davis consisted of, or that she gave testimony concerning undue influence. We can not determine from the limited record before us that the misconduct was material nor that injury probably resulted to appellant. Thus appellant failed to discharge her burden of showing injury from the entire record. Chadwick v. Glens Falls Ins. Co., Tex.Civ.App., 340 S.W.2d 501; Davis v. Damge, Tex.Civ.App., 328 S.W.2d 203; Thomas v. International Harvester Co., Tex.Civ.App., 325 S.W.2d 832. Furthermore, the limited record before us does not establish that the trial was materially unfair as in Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916. Five of the jurors testified on the motion for new trial and only one testified that he even saw the deposition in the jury room. There was no testimony that the deposition was read or referred to by any of the jurors. Therefore, the error in sending same to the jury room was harmless. Michalak v. Dzierzanowski, Tex.Civ.App., 270 S.W.2d 276; Red Top Cab Co. v. Capps, Tex.Civ.App., 270 S.W.2d 273; Texas Life Ins. Co. v. Jordan, Tex.Civ.App., 253 S.W.2d 906.

The verbal communication of the bailiff with the jury was improper and constituted error. However, appellant does not assert that she was harmed in any way by the error, and we hold that it was harmless. Ross v. Texas Emp. Ins. Ass’n, 153 Tex. 276, 267 S.W.2d 541; Connor v. Heard & Heard, Inc., Tex.Civ.App., 242 S.W.2d 205.

The judgment is affirmed.


author: CULLEN, Commissioner. MONTGOMERY, Judge

text:
    Cord WHITE, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 16, 1962.
    Rehearing Denied Oct. 12, 1962.
    Marcus Mann, Slayersville, for appellant.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   CULLEN, Commissioner.

Cord White, Jr., was convicted of voluntary manslaughter and given a 10-year sentence. On appeal to this Court the conviction was reversed because of errors in the instructions. White v. Commonwealth, Ky., 333 S.W.2d 521. Upon a second trial White was again convicted and a sentence of 21 years’ imprisonment was imposed. The present appeal is from the judgment on the second trial.

On the first appeal this Court held that the evidence was insufficient to warrant a finding of malice and therefore an instruction on murder was not authorized. However, with some misgivings, the Court held that the evidence was sufficient to support an inference of intent to kill, such as would authorize an instruction on voluntary manslaughter. We are constrained now to reconsider the question of the sufficiency of the evidence (which was substantially the same on the second trial as on the first trial) to support a finding of intent to kill.

We shall set forth the circumstances of the killing as stated by the Commonwealth’s witnesses.

Some seven or eight persons, including the defendant and Graden Jett, the victim, had been engaged for a couple of hours in social conversation and moonshine drinking at a spot on a narrow mountain road. Around a half-gallon of moonshine was consumed. A dispute arose between the defendant’s brother and one Ernest Turner, after Turner had driven the brother’s car down the mountain and had been gone what the brother considered an unnecessarily long time. The brother and Turner started to scuffle and fell to the ground locked in combat. Graden Jett arose from a seated position on the roadbank and gave indications of an intent to enter the struggle. The defendant warned him to stay out of the fight, as it was not his concern. Jett said, “I will do what I want to do.” The defendant then struck him a fist blow in the face, knocking him down. The defendant then struck Junior Watkins, who had ventured to join the affray, and knocked him down. The defendant next returned to Jett, who was on the ground, and struck him two or three times in the face. In the meantime the struggle between Turner and the defendant’s brother had been terminated, and the defendant and Turner engaged in a wrestling scuffle for a few moments. Watkins then left the scene to get a gun and the defendant did likewise. The defendant got back to the scene first and when Watkins appeared the defendant fired a couple of shots but they did no harm. The defendant’s stepfather relieved the defendant of his gun and also prevailed upon Watkins to surrender his gun. Such of the participants as had not already departed the scene then went their respective ways, leaving Jett either lying or sitting on the roadbank. No one was aware that he had suffered a fatal injury; everyone assumed that he had “passed out” mainly from the effects of the moonshine. A short time later, when Jett’s wife and some friends came to carry him home, they found he was dead.

Two lay witnesses who examined the body testified that Jett’s neck was broken. One of these, the coroner, who was a licensed embalmer, also testified that there were bruises on Jett’s face that would have been sufficient to cause death. However, Jett’s wife and another witness who viewed the body said only that there were two bruises on the face, one around the mouth and the other on a cheek. (The coroner said that both eyes were swollen shut and there were numerous bruises on the face.)

The question is whether the foregoing evidence is sufficient to warrant a finding of an intent to kill, as is necessary to sustain a conviction of voluntary manslaughter.

The view accepted in most jurisdictions is that the mere fact that death ensues from a blow with the hand or fist does not of itself permit an inference of an intent to kill. However, the nature of the attending circumstances, such as the use of excessive violence or brutality or the taking of undue advantage of a weak, helpless or unsuspecting person, may give rise to an inference of the intent to kill. Annotation, 22 A.L.R.2d 854.

There is some inconsistency reflected in our Kentucky cases on the question. However, in most of the cases where an instruction on murder or voluntary manslaughter was held authorized there was some evidence other than the mere fact of death from a blow of the fist to raise an inference of an intent to kill. In Thomas v. Commonwealth, 120 Ky. 428, 86 S.W. 969, the defendant, after having threatened to kill the woman he was living with, knocked her down with his fist and then kicked her several times in the stomach, side and face. In Maulding v. Commonwealth, 172 Ky. 370, 189 S.W. 251, the defendant, after knocking the victim down with his fist, stamped him repeatedly in the head and face with the heel of his shoe. In Sanders v. Commonwealth, 265 Ky. 671, 97 S.W.2d 584, where the defendant struck the victim with his fist in a casual quarrel, the Commonwealth’s evidence was to the effect that the defendant had used brass knucks, whereas the defendant maintained he had used only his bare fist; the court said that if the evidence for the defendant were to be believed “it presents only a case of involuntary manslaughter.” Similarly, in Cook v. Commonwealth, 285 Ky. 749, 149 S.W.2d 507, where the Commonwealth’s proof was that the defendant had struck the victim with a blackjack and the defendant’s proof was that he merely used his fist, the court said that if the defendant’s evidence were to be believed he was guilty only of involuntary manslaughter. In Boggs v. Commonwealth, 285 Ky. 558, 148 S.W.2d 703, there was testimony that the defendant had admitted an express intent to kill the victim. In Rush v. Commonwealth, 296 Ky. 724, 178 S.W.2d 408, the evidence showed “a most brutal killing,” and the nature of the wounds indicated that they must have been inflicted by the use of metal knucks or a club.

A few of our cases seem to have taken the view that the mere striking of a fatal blow with the fist will support an inference of an intent to kill. In Smith v. Commonwealth, 228 Ky. 710, 15 S.W.2d 458, the giving of instructions on both murder and voluntary manslaughter was approved where the only indication of an intent to kill, apart from the striking of a single fist blow, was that the defendant was in a belligerent mood and had provoked a fight with the victim. In Kearns v. Commonwealth, 243 Ky. 745, 49 S.W.2d 1009, instructions on murder and voluntary manslaughter again were approved where the defendant had sworn at the victim and had invited him to fight, and where during the fight the defendant not only had struck several blows but- had put the victim’s head in an armhold. On the first appeal of the instant case this Court overruled the Smith and Kearns cases to the extent they held that malice could be inferred from a sudden, simple fistfight. White v. Commonwealth, Ky., 333 S.W.2d 521. It is our holding now that they should be, and are, overruled as authority for the proposition that intent to kill can be inferred from a sudden, simple fistfight.

In somewhat the same category as the Smith and Kearns cases are Bailey v. Commonwealth, 288 Ky. 613, 157 S.W.2d 100, Payne v. Commonwealth, 289 Ky. 590, 159 S.W.2d 430, and Sikes v. Commonwealth, 304 Ky. 429, 200 S.W.2d 956. The opinion in the Bailey case is somewhat ambiguous but it seems to approve the raising of an inference of intent to kill from the mere striking of a single blow with the fist. The same is true of the Payne case, although there was some evidence in that case that the defendant had kicked the victim after knocking him down. In the Sikes case the Court said, “Ordinarily a blow with a fist does not imply an intent to kill, for that result is not probable.” Nevertheless the Court impliedly approved the giving of a voluntary manslaughter instruction where the evidence showed only that the defendant had struck the victim one time in the jaw with his fist, in the course of a sudden quarrel. To the extent that the Bailey, Payne and Sikes cases stand for the same proposition on which the Smith and Kearns cases have been overruled, they also are overruled.

We consider the question now of whether there is any probative evidence in the instant case, apart from the striking of the initial blow with the fist, to warrant an inference of an intent to kill.

Putting aside for the moment the testimony concerning the bruises on the victim’s face, we find nothing in the circumstances of the case that would he indicative of an intent to kill. There is no evidence of any belligerence, animosity or threats by the defendant before the fight began. There is no suggestion that Jett was any more drunk than the defendant, or was helpless or taken by surprise. The defendant did not take undue physical advantage of Jett because the latter was a much bigger and heavier man than the defendant. While the witness Junior Watkins testified that after the defendant had hit Jett the first time, and then knocked Watkins down, he hit Jett two or three more times, Watkins did not say that Jett was helpless or incapacitated at the time the later blows were struck. The fact that the defendant fought with both Junior Watkins and Ernest Turner, and apparently prevailed over both of them, but did not inflict any serious injury on either of them, negatives any general homicidal intent on the part of the defendant. Also negativing such intent is the fact that later in the encounter, when the defendant had armed himself with a gun, he made no attempt to kill anyone with it. Another significant thing is that no one in the crowd had any idea, before they all left the scene, that Jett had sustained a fatal injury. This indicates that none of them considered the blows they saw struck as of a death-dealing quality.

The fact that the defendant hit Jett two or three additional times, after the first blow, would not of itself raise an inference of an intent to kill unless the combined blows were of such a brutal and violent nature as might be calculated to cause death. This brings us to the evidence concerning the bruises. The description of the bruises by two of the witnesses does not indicate that the bruises were of such a nature as to have been caused by excessive violence or brutality. The coroner testified, however (over objection), that the bruises were sufficient to have produced death. His description of the bruises was that both of the victim’s eyes were blue and swollen shut and there were bruises “all over his face.”

In our opinion the testimony of the coroner that the bruises were sufficient to have caused death does not have probative value. The established rule is that the cause of a death may be proved only by medical testimony, except where the facts proved are such that any layman of average intelligence would know from his own knowledge and experience that the injuries described are sufficient to produce death. Commonwealth v. Sullivan, 285 Ky. 477, 148 S.W.2d 343; Witt v. Commonwealth, 305 Ky. 31, 202 S.W.2d 612; Harvey v. Commonwealth, Ky., 318 S.W.2d 868.

In Witt v. Commonwealth, 305 Ky. 31, 202 S.W.2d 612, several defendants were convicted of voluntary manslaughter by reason of the fact that one of their companions on a drinking spree had died after having been assaulted by them (the defendants were seen to hit the victim several times). The conviction was reversed on the ground that the evidence did not prove that the death was caused by the assault. The injuries shown in that case were a markedly swollen and bruised right upper lip; bruises on the right side of the nose, cheek and upper lid of the right eye; a moderate hemorrhage and torn sclera in the right eye; and a small hemorrhage in and small lateral bruise near the left eye. The court said (202 S.W.2d 615): “None of the wounds described in the evidence appeared at a place calculated to produce death, except through the medium of an internal hemorrhage; and the meager expert evidence indicates that no internal hemorrhage occurred. There was no evidence of a fracture, * * The court further said (202 S.W.2d 616): “* * * but mere superficial bruises to the face or superficial rents in the skin or to the outside covering (sclera) of the eye seldom, if ever, produce death, and this also is (a matter) of common knowledge.”

The injuries to the face of the victim in the instant case, even as described by the coroner, were no more severe than those in the Witt case. As stated in the Witt case, in common knowledge and experience such injuries do not ordinarily cause death. Therefore, the testimony of the coroner that the injuries to the face could have caused death was not competent. We think it follows, then, that his testimony describing the wounds was not sufficient to raise an inference of an intent to kill.

It is our conclusion that the evidence in the instant case was not sufficient to support a conviction of voluntary manslaughter. We appreciate that this is contrary to our holding on the first appeal of this case, but we consider that the law of the case rule has sufficient flexibility to permit us to admit and correct our error, particularly where substantial injustice might otherwise result. See Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539.

There remains for our consideration a question that is not significant to the disposition of this appeal but may be of importance upon a new trial.

The Commonwealth undertook to prove that a short time after all of the participants had left the scene of the affray, and the defendant with his companions was at the home of his stepfather, the defendant said, “We ought to go back and kill Ernest (Turner) and Junior (Watkins).” The court sustained objections to this evidence. The Commonwealth contended that the evidence was relevant as bearing on the defendant’s frame of mind and as showing the existence of an intent to kill. The question is important because if this evidence were held to be admissible upon another trial, to show intent, it would supply the proof of intent to kill necessary to sustain a conviction of voluntary manslaughter.

The general rule, as stated in 40 C.J.S. Homicide § 211, p. 1120, is that subsequent hostile declarations of the accused are admissible on the issue of malice and state of mind, where relevant to such conditions as of the time of the offense, but should be excluded where such relevancy does not appear.

Wigmore points out that evidence of subsequent emotion “can enter only as evidential of its existence at the time in issue,” and that there is opportunity for error in admitting such evidence because the subsequent existing emotion may have been first produced since the time in issue. Wig-more on Evidence, Third Ed., Vol. II, sec. 395, p. 349.

In order for the evidence of the subsequent hostile* declaration against Turner and Watkins to be admissible it must have been reasonably interpretable as showing the existence of an intent of the defendant to kill Jett at the time he struck Jett. It must be remembered that after that time the defendant engaged in battle with Turner and Watkins, and both the defendant and Watkins left the scene and returned with guns which they flourished at each other. We think that the hostile declaration was not reasonably calculated to indicate anything more than that the defendant had eventually reached a homicidal frame of mind toward Turner and Watkins; or possibly it might indicate that, having learned that Jett was dead, the defendant now considered it advisable to kill Turner and Watkins. Only in a most remote way could the declaration be considered to show a pre-existing intent to kill Jett, particularly in view of the fact, hereinbefore pointed out, that there was nothing in the conduct of the defendant at the time he struck Jet to justify an inference that he then had an intent to kill Jett. In our opinion the testimony concerning the hostile declaration was not properly admissible in evidence.

The judgment is reversed, with directions that if upon another trial the evidence is substantially the same, the court shall not instruct on any greater offense of homicide than involuntary manslaughter.

MONTGOMERY, Judge

(dissenting).

I cannot agree to that part of the majority opinion holding that the evidence in this case is insufficient to justify an inference of intent to kill and to sustain the conviction of voluntary manslaughter. The holding in the majority opinion violates the fundamental principle of criminal law that one who does a willful act which causes another great bodily harm from which death follows is presumed to intend the natural and probable consequences of such act and must stand legally responsible for it.

To constitute what the law deems to be a crime, there must be a combination of an overt wrongful act and a wrongful intent. The guilty intent is not necessarily that of intending the very act or thing done and prohibited by common or statute law, but it must at least be the intention to do something wrong.

It is a fundamental rule of criminal law that every sane person, capable of committing crime, is presumed to contemplate and intend the necessary, natural, and probable consequences of his own voluntary acts, even if the harm is done to one other than the one intended. The presumption that the accused intends the natural and probable consequences of his own act is not one of law to be applied by the court but of fact to be weighed by the jury. The intent must be proved and this may be done either by direct or indirect evidence tending to establish the fact, or it may be inferred from the circumstances of the case and the conduct of the accused at the time of and subsequent to the commission of the act. Where an intent exists to do wrong and an illegal act is committed, the doer of the act may be criminally liable though the result is other than he anticipated or intended. Roberson’s New Kentucky Criminal Law and Procedure, 2nd Edition, Sections 17 and 18, and cases cited therein.

Thus, the striking of Graden Jett by appellant with his fist, once while standing and then two or three times while down, is an overt act which indicates an intention to do bodily harm. The circumstances of the drunken free-for-all fight are indicative of ill will. Certainly under this evidence the question of fact should have been submitted to the jury to determine whether or not there was a sufficient inference to justify the intent to kill, as well as the question of whether or not death under such circumstances was the natural and probable consequence of the act.

For these reasons, I feel that the evidence was sufficient to submit the case to the jury for its determination of whether the appellant was guilty of voluntary manslaughter.


author: PALMORE, Judge.

text:
    Harry KOPLIN, Appellant, v. George KELRICK et al., Appellees.
    Court of Appeals of Kentucky.
    May 18, 1962.
    As Modified on Denial of Rehearing Oct. 12, 1962.

      Shumate & Shumate, Irvine, for appellant.
    D. L. Pendleton, Jr., Stanton, Jess S. Hogg, Winchester, for appellees.
   PALMORE, Judge.

In 1953 the appellant, Harry Koplin, assigned to the appellees, George Kelrick and other members of the Kelrick family, undivided working interests in a group of oil and gas leases in Lee County, Kentucky, called the Cable Project. Under the terms of the assignments Koplin and one Edward Gimbel were designated as operators of the project with power to market the oil and gas produced, collect the proceeds, deduct the expenses of production and sale, and pay over to the assignees their pro rata shares of the balance.

This suit was brought by the Kelricks against Koplin in April of 19S6. It demanded recovery of $11,207.33 as their share of the net proceeds unpaid as of January 31, 1956, and an accounting. Koplin denied the indebtedness and counterclaimed for $10,000 allegedly loaned to George Kelrick on September 1, 1955. The case was tried by deposition and resulted in a judgment for the Kelricks in the full amount sought. Koplin appeals. His contentions are (1) that the judgment was based on incompetent evidence improperly admitted and (2) that he and the Kelricks were members of .a mining partnership and an action for an accounting could not be maintained prior to its dissolution. Following an elaboration of the facts of the case, we shall discuss these points in reverse order.

It appears that as between Koplin and Gimbel, Koplin was the outside man and Gimbel the bookkeeper. Gimbel, a member ■of a Chicago accounting firm, handled the money, and all went well until he died early in 1955. Up until that event the Kelricks received a total of $4,026.10 through regular payments representing tentative net income. The last checks issued by Gimbel were for the month of October, 1954, and were received in January of 1955. Thereafter, by his own admission, Koplin became the sole operator of the Cable Project, though he neither asked nor received authority from the Kelricks to act singly. Payments to the Kelricks ceased forthwith. Their repeated demands of Koplin for information were parried by the explanation that the records had been turned over to an accounting firm in Denver, which apparently was unable to straighten them out. Finally, at the insistence of the Kelricks, new division orders were executed pursuant to which further payments for oil purchased from the project were made directly by the purchaser, Ashland Oil and Refining Company, to the Kelricks, subject to a deduction of .6 of 1% in favor of Koplin for “lifting costs.” The exact date of this re-arrangement is not shown, but it was in late 1955 or early 1956 and, presumably, took effect as of February 1, 1956. From that time until all of the parties sold their interests to the Climax Molybdenum Company in December of 1956 (during the pendency of this action) the Kelricks received from Ashland, as their share of the oil produced and sold by the Cable Project, some $20,000.

During the interim between the cessation of payments by Gimbel and the commencement of payments by Ashland, Koplin received the money for the oil, though he did so under the name of Lee Oil Company. On July 5, 1955, he wrote George Kelrick, “If you want some money on account, let me know and I will advance it to you.” On. September 1, 1955, he gave Kelrick a check for $10,000, which he says was a loan and Mr. and Mrs. Kelrick say was paid on account toward what he would owe them when the books were eventually balanced.

At this point it is necessary that we explain the Lee Oil Company. According to Koplin, he did not serve as operator of the Cable JProject strictly in his own right, but in behalf of Lee Oil Company, a partnership composed of himself, another member of his family, Gimbel, and a Chicago lawyer named Dashow, all of whom owned fractional shares of the working interest. This firm, through Koplin, managed the business, including financial receipts and disbursements. The Kelricks and some 15 other co-tenants of the working interest were referred to as “outside” interest holders. The $10,000 check to George Kelrick was drawn on Koplin’s personal account rather than the funds of Lee Oil Company. Therefore, says Koplin, it could not have been on account of what Lee Oil Company owed and, even so, it should be repaid him anyway because an “audit” of the partnership books (hereinafter mentioned more fully) showed the Kelricks to be indebted to it instead of its being indebted to them. Reserving this latter point for the moment, we think the answer to this line of argument is that the Kelricks had no agreement with the Lee Oil Company. They authorized no one hut Koplin and Gimbel to operate the project in their behalf, and whatever arrangement these two may have had with other associates was their own affair. To the Kelricks the very existence of Lee Oil Company was irrelevant except as a nom de plume under which Koplin conducted his oil ventures. Under the contract the Kelricks were entitled to look solely to Koplin and Gimbel, and after the latter’s death, to Koplin alone.

It is immaterial, of course, that the defendant was named in the complaint as “Harry Koplin, d/b/a Lee Oil Company.” The references in the caption and in the body of the complaint to Koplin’s doing business as Lee Oil Company are merely descriptive. Koplin is the only defendant, and the complaint does, not .purport either to he against a partnership or, indeed, to involve a partnership matter. It is simply a suit against an agent to require him to divulge and disgorge what he owes his principals.

This view of the case brings us full face to Koplin’s contention that the suit is by one partner against another for a premature accounting, and what we have said thus far foretells the answer. Section 8 of the contract provides as follows:

“8. The powers granted to the Operators by Paragraph 4 shall be construed so that the said Operators in acting as agent for the Assignee, shall be deemed to act for him separately, although the Operators may represent other owners of interests in the above property.”

We need not consider whether the various “outside” and “inside” (Lee Oil Company) parties were, by virtue of their undivided interests, mining partners (see, however, Appleby v. Buck, Ky.1962, 351 S.W.2d 494, 497-8), nor whether an action for an accounting brought by one partner against the other while continuing to do business will lie. As we see it, whatever else may have been the technical or legal relationship of the various interest holders, Koplin occupied also the position of agent for these particular co-tenants, and there is no sound reason why they should have been required to await the cessation of their community of interest through transfer of his or their fractional mineral shares to a third party or parties before bringing suit for an accounting.

Actually, the trial court did not require an accounting of Koplin and he did not render one. The Kelricks had about the same success' in eliciting information from him through court as they had experienced in the months following Gimbel’s death. The only new information that turned up was two sets of financial statements (loosely referred to during the proceedings as “audits”) prepared from the accounting records of the Lee Oil Company, without verification by audit, by a firm of accountants in Wichita, Kansas, hired by Koplin. One of these sets of statements purported to reflect the condition of the Cable Project and the amounts due to or from the “outside” owners as of November 30, 1956. They were introduced in evidence by Koplin’s counsel without objection during the course of his cross-examination of George Kelrick, who conceded that he had theretofore been furnished a copy of the statements. The accountants who prepared the reports did not appear, and the only witness who attempted to breathe probative life into them was Koplin’s Chicago lawyer, Dashow, who turned witness and testified that he had personally verified the statements by checking them against the books and records of the Lee Oil Company at its office in Lee County, Kentucky. There was no evidence as to what kind of original records and accounts were kept by the Lee Oil Company and whether they were accurate and sufficient to serve as a reliable basis for the preparation of summary statements. On their face and without explanation by a qualified expert, these statements show a net balance of $5,541.03 owed by the Kelricks to the Lee Oil Company as of November 30, 1956. However, Kelrick did not admit, and Dashow was not qualified to say, that they were correct, and even though they were technically lodged in the record as “evidence,” in the absence of competent foundation testimony connecting them with the original books and records and showing that the latter were available for inspection and comparison (cf. Municipal Paving Company v. Farmer, Ky.1953, 255 S.W.2d 618, 620) they had no probative force whatever. The accuracy of a subsidiary statement cannot be assumed without any evidence of the adequacy and authenticity of the original records from which it was prepared.

Since the apocryphal “audits” had no evidentiary value, Koplin’s contention that he is entitled to recover the $10,000 paid the Kelricks because nothing was owed to them is completely unsupported. Mrs. George Kelrick testified that when Koplin gave the check to her husband on account he promised to “send you the balance as soon as the books are in balance.” If so, this was an admission by Koplin that at least $10,000 was owed. As between the contradictory testimony of the respective parties there was ample evidence to sustain a factual finding either way. Hence the chancellor’s judgment favorable to the Kel-ricks on this particular phase of the dispute is final and conclusive.

We come now to the question of whether Koplin was prejudiced by the improper admission of incompetent evidence. We have concluded that he was.

The claim of the Kelricks was that up until the time they began to receive payments from Ashland their proper share of the net proceeds of the Cable Project was $25,233.43, of which $4,026.10 had been paid by Gimbel prior to his death and $10,000 by Koplin on September 1, 1955, leaving an unpaid balance of $11,207.33. Although their complaint demanded an accounting in addition to the recovery of this sum, there was no order of reference and the case was practiced in the same fashion as any other suit on a liquidated debt. As we have said, Koplin never did render an accounting. Thus it was incumbent upon the Kelricks to adduce the evidence necessary to establish the amount of their stated claim.

George Kelrick testified, over objection, that he had arrived at the sum of $25,233.43 as the plaintiffs’ share of the proceeds of the Cable Project oil production for the period in question by computation based on “the figures on the oil runs and for the total monies received by the Lee Oil Company and our checking with Ashland Oil and Refining Company.” He said that he had obtained the “oil runs” at the office of the Lee Oil Company and, combining this information with data received from Ashland, was able to ascertain the Kelricks’ percentage of the income at $25,233.43. The only other evidence bearing upon the amount of the indebtedness was the testimony heretofore mentioned with respect to the $10,-000 check given by Koplin to Kelrick on September 1, 1955, and Koplin’s alleged admission at the time that there would be a further balance due the Kelricks when the books were put in order. To the extent, therefore, that the judgment fixed an amount of recovery—to wit, $11,207.33— beyond the $14,026.10 theretofore received by the plaintiffs, it was founded on the testimony of George Kelrick as derived from Ashland and from the “oil runs” observed by him in the Lee Oil Company office.

It would have been proper to prove by an appropriate officer or employee of Ashland, from its books and records, the quantity of oil that company had purchased from the Cable Project during the period in question and how much it had paid Kop-lin or the Lee Oil Company for it. But for Kelrick to give it second-hand was an obvious violation of the hearsay rule. See Citizens Telephone Co. v. Anderson, Ky. 1956, 291 S.W.2d 527, 529; Illinois Cent. R. Co. v. Holt, 1906, 29 K.L.R. 135, 92 S.W. 540, 541.

It would also have been proper to prove the same facts from the books and records of the Lee Oil Company, as it seems to us that the respective records of the buyer and seller would qualify equally as the best evidence. A witness may not, however, give in evidence information taken from account books that are absent but still in existence and available. Harlan Coal & Coke Co. v. Davidson, 1924, 203 Ky. 580, 262 S.W. 936, 937. Moreover, the mere reference to “oil runs” as the documentary source was too indefinite to be probative. Cf. Citizens Telephone Co. v. Anderson, Ky.1956, 291 S.W.2d 527, 529. No business record of any kind can have meaning unless it be shown how it is made up and kept. What, exactly, is an “oil run”? Is it made up in dollars or barrels, or both ? Is it made up by the well or by the lease? With the oil run figures at hand, what calculations would be required in order to arrive at the gross amount (to say nothing of expenses chargeable against it) due the Kelricks?

We can well appreciate the difficulty of establishing the proper amount of a claim based on the net income of a business venture when most if not all of the pertinent information is in the possession of a hostile and evasive defendant. After a reading of Koplin’s deposition the temptation to affirm this judgment on general principles is strong. However, we are committed to the rule of law. Koplin admitted that the financial records of Lee Oil Company were in Chicago and were “readily accessible,” and we see no reason why they could not have been reached for inspection and analysis by the simple device of a court order, had such an order been requested. Under the circumstances we find no reasonable basis for an exception to the best evidence rule.

Upon the retrial of this case the problem of the Kelricks in proving the amount of their claim will be simplified by Koplin’s judicial admission, made during his previous testimony, that as a part of the negotiations culminating in the sale of the Cable Project to Climax Molybdenum Company he agreed to release the Kelricks of any pending expense charges. (That Koplin released the Kelricks was conceded on both sides. Whether as a part of the same transaction the Kelricks also released Koplin, as he claims, was necessarily decided in the negative by the chancellor’s finding upholding the claim of the Kelricks.) This eliminates the necessity of proving any item but the gross proceeds (from the cessation of payments by Gimbel until recommencement by Ashland) multiplied by their pro rata shares, against which the $10,000 received from Koplin is to be credited.

We construe the judgment of the circuit court as denying the counterclaim for $10,-000, and to that extent it is affirmed. To the extent that it awards recovery to the plain-iffs it is reversed and the cause remanded for a new trial in accordance with this opinion.


author: STEWART, Chief Justice.

text:
    MADISON COUNTY, Kentucky, Appellant, v. J. B. ARNETT, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962

      Salem Moody, Madison County Atty., Richmond, for appellant.
    George T. Ross, T. D. Shumate, Richmond, for appellee.
   STEWART, Chief Justice.

This is an appeal from a summary judgment, ruling that Madison County’s suit to recover $30,494.37, with interest, from appellee, J. B. Arnett, a former county clerk of Madison County, which amount represents sums allegedly received by ap-pellee in excess of his annual salary and office expense, while acting as county clerk for the calendar years 1949, 1950, 1951 and 1952, was barred by the five-year statute of limitations. See 413.120(1).

Appellee held the office of Madison county clerk from January 1934 to July 1956 when he resigned to take a position with the Commonwealth. He made timely voluntary settlements for the years in question, and photostatic copies of the annual report of income and disbursements covering each period, as reflected by the exhibits in the record, disclose that he paid the county the sum of $810.05 for the four years. Each of these reports was examined and approved by the Madison County treasurer and, after being certified as correct by the Auditor of Public Accounts, was endorsed by two magistrates and then ordered placed of record.

This same system of making settlements with the county clerk prevailed for the period of January 1, 1953, through December 31, 1956. However, in April of 1958 a systematic recheck of the county clerk’s records embracing the calendar years 1953 through 1956 was begun. The culmination of this investigation was the uncovering of sums aggregating $26,143.24 of principal and $5719.68 of interest which it was claimed the county clerk owed the county. No portion of this principal sum had been included in any of appellee’s settlements for the years involved, and unquestionably he believed he was indebted to the county for this amount, because he not only paid the principal sum but the interest item as well.

The disclosure of discrepancies in the annual reports for the years just mentioned prompted the Madison County fiscal court on July 7, 1959, to employ William E. Adams, a certified public accountant, to audit the official records of appellee for the years 1949, 1950, 1951 and 1952. This audit when completed on December 1, 1959, disclosed appellee had purportedly collected but had failed to account for these sums in excess of his annual income over his office expense: For 1949, $5924.78; for 1950, $7550.80; for 1951, $8162.63; and for 1952, $8856.16. The total of these figures amounts to $30,494.37.

Demand having been made by Madison County upon appellee to pay these so-called shortages, and appellee having refused to satisfy any part thereof, this suit was instituted on December 31, 1959. The complaint alleged in substance that appellee’s settlements tendered to Madison County as county clerk for 1949 through 1952 were fraudulently made, that appel-lee knowingly omitted the true figures and inserted false ones in each report, and that these acts were done with the intent to defraud, and they resulted in defrauding, the county. The complaint further averred this fraud was not ascertained until December 1, 1959, at which time William E. Adams filed his audit with the Madison County fiscal court. By amended complaint it was pled the fraud was not and could not have been discovered before the Adams audit was completed.

The trial court granted summary judgment, ruling, in brief, that even though appellee made willful omissions or employed false figures in his settlements the claim of Madison County to the money involved was nevertheless barred by the five-year statute heretofore mentioned.

Madison County’s contention in the trial court and on this appeal is that the alleged fraud on the part of appellee had the effect of extending the limitation period to ten years from the date of the alleged perpetration of the fraud. See KRS 413.120 (3).

In order to enlarge the five-year statute of limitations to ten years, on a charge of fraud, appellant must allege and prove the fraud was not discovered within the five-year period and also allege and prove the fraud could not have been discovered within that period by the exercise of reasonable diligence. See Martin et al. v. Wagers et al., 310 Ky. 363, 220 S.W.2d 580; Forman v. Gault, 236 Ky. 213, 32 S.W.2d 977. If there were no earlier actual knowledge, the limitation commences to run when by the exercise of ordinary care the fraud ought to have been discovered. See Mussman v. Pepples, 243 Ky. 674, 49 S.W.2d 592; Johnson v. Fetter, 224 Ky. 788, 7 S.W.2d 241.

The trial court held that, since appellant knew when appellee filed his settlements and since the Madison fiscal court was fully vested with power to have the settlements audited, as provided by KRS 67.-080(7), the alleged fraud could have been ascertained by the exercise of reasonable diligence at the time or soon after each settlement was filed. Thus it was decided the five-year statute of limitations was not suspended and therefore was controlling in this case.

Appellant maintains that reasonable diligence was used, i. e., an examination of each settlement was made by the county treasurer and thereafter a thorough check was carried out by the Auditor of Public Accounts, and that no errors were or could have been discovered at the time because the figures were either falsified or concealed. It is pointed out that only when the Auditor of Public Accounts brought to light errors in 1958, concerning the settlements of 1953 through 1956, did appellant become aware of appellee’s artful bookkeeping methods, so as to be placed on notice of his derelictions and to take steps to uncover the alleged fraud committed in respect to the settlements which are the subject of this controversy.

The case of Greenup County v. Millis, Ky., 303 S.W.2d 898, is relied upon by ap-pellee to sustain the stand taken that the collection of the amount sued on is barred by the five-year statute of limitations. As there was no averment or proof of fraud in that case, it does not apply to the factual situation here. On the contrary, it appears that, since the recovery of the purported shortage is undertaken on the basis of fraudulent concealment or omission of the true figures, the case of Steele v. Commonwealth, 233 Ky. 719, 26 S.W.2d 747, governs the question of limitations.

In the Steele case, supplemental settlements of the ex-sheriff of Laurel County were made for 1919 and 1920 and, shortly thereafter, approved by the fiscal court of that county. Later these settlements were claimed to have been not correct, and suit was instituted for additional sums it was contended this former official owed. Although fraud was not directly involved in this litigation, the rule was thus laid down as to the statute of limitations involved in connection with a sheriff’s settlement, which same rule applies equally to a county clerk’s settlement:

“When a settlement with a sheriff is made as described by the Statutes, supra, and is approved as therein required, it is conclusive on all parties, and it cannot be attacked by either party except on the ground of fraud or mistake. An action to surcharge such a settlement must be instituted within five years after the settlement was made, but if the fraud or mistake was not discovered until thereafter the suit to surcharge may be instituted under the provisions of section 2519, Kentucky Statutes, within five years after discovery, but not exceeding in all ten years after the settlement was confirmed.”

As mentioned in the first paragraph of this opinion, this case was decided in favor of appellee on summary judgment. The trial court reasoned that, even though appellee had been guilty of fraudulent practices in the preparation of his four reports and in making settlements of his excess income for the above-mentioned years with Madison County, the five-year statute of limitations nevertheless governed. This position was taken for the reason that the trial court believed the county clerk’s records should have been thoroughly audited at the time he tendered each of his yearly reports of income and disbursements.

There is a good reason why the general public should not be made to suffer from the ineptitude of any of its officials. This is well stated in Alexander v. Owen County, 136 Ky. 420, 124 S.W. 386, 389, in these words: “* * * Ordinarily negligence or laches of public officials is not chargeable to the public. When the public elects officials, it has done all it can do for the time. If the officials are not so diligent as they might have been, their laches will not be imputed to the public, where no intervening right of a third person is to be affected. * * * ”

From a consideration of the record it is therefore the conclusion of this Court that only the ten-year statute of limitations applies under the allegations of Madison County’s complaint and amended complaint. It follows that summary judgment was improperly granted.

Other issues were developed in this case which the trial court did not rule upon and these matters cannot be reviewed here.

Wherefore, the judgment is reversed and remanded for proceedings not inconsistent with this opinion.


author: CULLEN, Commissioner.

text:
    Betty J. SNYDER et al., Appellants, v. Edna HAYDEN et al., Appellees.
    Court of Appeals of Kentucky.
    May 18, 1962.
    Rehearing Denied Oct. 12, 1962.
    Anthony R. Hellmann, William B. Cohen, Erwin A. Sherman, R. M. Morton, Louisville, for appellants.
    Gene Sims and Henry J. Burt, Jr., Marion Wiseheart, Louisville, for appellees.
   CULLEN, Commissioner.

In 1944 Mr. & Mrs. L. C. Hayden purchased from the Greater Louisville First Federal Savings and Loan Association, for $4400, a rooming house property in Louisville. They made a down payment of $500 and executed a 20-year mortgage for the balance, payable in monthly installments. Prior to 1944 Mrs. Hayden’s sister, Ethel Kaufman Hawkins, had rented the property from the savings and loan association and had operated a rooming house there. After the purchase by the Haydens, Mrs. Flaw-kins continued until her death in 1956 to operate the rooming house, and during that period she made to the association all monthly payments (except perhaps three made by the Haydens) necessary for mortgage installments, insurance and taxes.

After Mrs. Hawkins’ death in 1956 her surviving husband and two daughters brought this action against the Haydens seeking to be declared the owners of the property on the theory of a parol express trust. The circuit court entered judgment denying the relief sought and the plaintiffs have appealed.

There was no direct evidence of a trust agreement. The appellants claim a trust is implied from the conduct of the parties and the circumstances of their transactions.

Concerning some of the circumstances there was conflicting evidence, and even from the facts not in dispute reasonable minds could draw different inferences. The chancellor found the intention of the parties to be that Mrs. Hawkins, through the credit and financial responsibility of the Haydens, should be enabled to continue to have the place to live and means of earning a living that she had had under the former rental arrangement with the savings and loan association. Mrs. Hawkins was impoverished and was fearful in 1944 that the association would sell the property to a ■stranger and leave her homeless. The chancellor found that her sole concern was not to be dispossessed from the property and deprived of the income she made from room rentals, and that she was willing to make the mortgage installment payments, in lieu of the rent she formerly had been paying, simply as consideration for being permitted to remain in the property. We cannot say that these findings are clearly erroneous.

It must be remembered that clear, convincing and satisfactory evidence is required to establish a parol trust of land, and that where the evidence is uncertain, conflicting, doubtful, or unsatisfactory, or is susceptible of a reasonable explanation or a theory other than the existence of a trust, no trust will be established. Potter v. Potter, 180 Ky. 370, 202 S.W. 872.

The appellants maintain that the court erred in refusing their demand for a jury trial. However, the action sought purely equitable relief and therefore was not one triable of right by a jury within the meaning of CR 38.02. See Dodge v. Black, 21 K.L.R. 992, 53 S.W. 1039.

There is no merit in the appellants’ contention that the court erred in excluding testimony of two witnesses as to certain self-serving declarations made by Mrs. Hawkins out of the presence of the Haydens. See Truitt v. Truitt’s Adm’r, 290 Ky. 632, 162 S.W.2d 31, 140 A.L.R. 1127.

The judgment is affirmed.