author: PHILLIPS, Justice.

text:
    Daniel J. MULCAHY, Appellant, v. HOUSTON STEEL DRUM COMPANY, Inc., Appellee.
    No. 11392.
    Court of Civil Appeals of Texas. Austin.
    April 27, 1966.

      Daniel J. Mulcahy, Houston, for appellant.
    Wilson & Osborn, Joe A. Osborn, Austin, Wynne, Jaffe & Tinsley, Morris I. Jaffe, Dallas, for appellee.
   PHILLIPS, Justice.

This case involves the right of appellant Mulcahy to intervene in a Bill of Review proceeding brought by the appellee Houston Steel Drum Company against the Secretary of State and Attorney General of Texas seeking to reinstate its corporate charter previously forfeited for failure to pay franchise taxes to the State of Texas.

After the court heard appellee’s motion to strike appellant’s pleadings in intervention, the court ruled as a matter of law that appellant had not alleged sufficient facts to entitle him to intervene. The parties had stipulated that the facts alleged in appellant’s pleadings were true for the purposes of the hearing.

We affirm the judgment of the trial court.

In January of 1965 appellee filed its Bill of Review in the District Court of Travis County naming the Secretary of State and the Attorney General as respondents alleging that it was granted a corporate charter by the State of Texas in 1954; that m November of 1964 a default judgment had been entered against appellee forfeiting its corporate charter for nonpayment of its franchise taxes to the State for the years 1960-64; that such failure of appellee to pay the taxes was due to its internal reorganization during the period, with a resulting confusion and lack of receipt of notices by the past and present shareholders, officers and directors of appellee; that contrary to the allegation of the State’s petition in the forfeiture proceeding, appellee had assets with which to satisfy a tax judgment ; that appellee had since filed all necessary tax returns and paid all franchise taxes, interest and penalties due the State; and prayed that it have judgment setting aside the forfeiture and reinstating the charter.

The Secretary of State and the Attorney General filed a general denial.

Appellant filed his petition in intervention, and later an amendment thereto, opposing the reinstatement of appellee’s charter, alleging a justiciable interest in the suit based on the fact that he was an officer, stockholder and director of appellee prior to February, 1961 and that he did accounting work for appellee prior to February 1961. Appellant further alleged that he would be prejudiced should he be denied intervention on the side of the State because the allegations in appellee’s Bill of Review implied criticism of his accounting work for ap-pellee prior to February, 1961, which constituted an adverse reflection on his professional reputation as a certified public accountant. That the recitals in the Bill of Review to the effect that appellee’s books and records were not maintained so as to reflect its franchise tax liability constitute a serious reflection upon appellant’s professional reputation as a certified public accountant charged with the duty and responsibility of maintaining appellee’s books and records, all of which duties and responsibilities were performed properly and effectively by appellant with the full knowledge of appellee.

Appellee filed a motion to strike the intervention on the grounds that as a matter of law appellant had not alleged facts sufficient to entitle him to intervene in the suit.

Without hearing evidence, and on the stipuation of the parties that for purposes of the hearing, the facts alleged by appellant would be taken as true, the trial court heard argument of counsel and entered its order striking appellant’s intervention.

Subsequent to this order, the trial court entered judgment for appellee setting aside the prior judicial forfeiture and reinstating appellee’s charter.

At no point in its Bill of Review or in the judgment entered in this case did appellee name appellant or accuse him of any fault in the delinquencies in appellee’s payment of its taxes. Nor is any stockholder, officer or director named or identified in the Bill or Review.

The Texas Rules of Civil Procedure provide that any party may intervene in an action subject to being stricken out for sufficient reason at the motion of one of the parties. Rule 60, T.R.C.P.

The right to intervene is given in furtherance of a speedy disposition of suits and to prevent multiplicity of actions. However, since the original parties to the pending suit must be protected from the disadvantages of intervention, trial courts have a wide discretion in judging the sufficiency of an opposing party’s motion to dismiss the intervenor. 44 Tex.Jur.2d, Sec. 41, and Sec. 63.

The litigation in the trial court involved in this appeal w.as, first, a suit by the State to forfeit a corporate charter which it had granted to appellee and, second, a Bill of Review to set aside the default judgment granted in the prior suit and to reinstate the corporate charter of appellee. The grounds for such forfeiture were nonpayment of franchise taxes imposed by the State on corporations as one condition for retaining their corporate charter privileges previously granted by the. State.

Appellant’s attempt to intervene in this litigation based on his capacity as a former stockholder, officer and director, in order to take a position as party defendant in the Bill of Review constituted an attempt by appellant to question the legality of the existence of the corporation.

The litigation in both cases is in the nature of a quo warranto proceeding. The Supreme Court defined such action in Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973, 978, 136 A.L.R. 177, as follows:

“It is the rule that where a corporation has been formed under color of law, only the State can question its corporate existence, and that in a direct proceeding wherein the State is a party, and the action is in the nature of a quo warranto proceeding.”

To entitle a party to intervene in a suit, he must be at least a proper party to the suit. 44 Tex.Jur.2d, Parties, Sec. 44. Appellant is not a proper party to a quo warranto action.

It is well settled that only the Attorney General of the State can raise these questions and he does it by quo warranto action. Quo warranto actions can be brought only in the name of the Attorney General and they are intended to protect public interests, not merely private interests.

Article IV, Section 22, Texas Constitution, Vernon’s Ann.St., states:

“The Attorney General * * * shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power * * * not authorized by law.”

In State ex rel. Steele v. Heath, Tex.Civ.App., 1931, 44 S.W.2d 398, error ref., the court after holding that private parties could not maintain an action in the nature of a quo warranto to remove a county official without joinder of any state authority, stated:

“Had the state participated as a litigant in the trial court, it took no appeal, wherefore the judgment there became final as to it anyway.”

Here appellant cannot contend that the presence of the State in the litigation below conferred any type of “relator” status on him for the principal reason that the State has not complained of the judgment below and has not presented any type of appeal from that judgment.

In this litigation whereby the State has contested the existence of one of its corporations, appellant has attempted to assume a co-party status, along with the State, in order to exert a measure of control over the way the litigation is handled. While such authority is clearly contrary to the basic rules of quo warranto actions, appellant is attempting to accomplish it by resort to the rules governing intervention and citation of general rules relating to intervention.

The rule applicable here is stated in King v. Olds, 71 Tex. 729, 12 S.W. 65 (1888) as follows:

“The intervenor’s interest must be such that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought; or, if the action had first been brought against him as the defendant, he would have been able to defeat the recovery, in part at least. His interest may be either legal or equitable.”

To apply the foregoing general rule to the instant litigation, it is apparent that the appellant would have had no standing, on either legal or equitable grounds, to have brought the original suit against appellee seeking forefeiture of its charter for nonpayment of franchise taxes. Filing such action was within the sole discretion and power of the Attorney General. The subsequent Bill of Review suit filed by appellee involves the same original parties and the sole subject matter is the question of whether the default judgment in the State’s former action should be set aside. The Bill of Review could not have been filed naming appellant as co-defendant along with the State because appellant has no interest or standing in the matter from which appellee could pray for either recovery or relief. The Bill of Review suit was part and parcel of the prior quo warranto action and its filing gave appellant no standing to attempt to defeat it either in whole or in part.

The sufficiency of a petition in intervention is tested by its allegations of fact on which the right to intervene depends. A petition will fail if no right to intervene is shown because no sufficeient interest is alleged. Watkins v. Citizens National Bank, 1909, 53 Tex.Civ.App. 437, 115 S.W. 304, no writ hist.

A remote or contingent interest in a suit does not entitle a party to intervene. 44 Tex.Jur.2d, Sec. 44.

We affirm the judgment of the trial court.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    Joseph Albert SHAW, Appellant, v. Lula Mae SHAW, Appellee.
    No. 14488.
    Court of Civil Appeals of Texas. San Antonio.
    May 4, 1966.

      Evans & Marshall, San Antonio, for appellant.
    Rudy Rice, M. C. Whitehead, San Antonio, for appellee.
   BARROW, Justice.

This is a divorce suit. Appellant, Joseph Albert Shaw, appeals from a judgment of divorce granted appellee, Lula Mae Shaw, after a non-jury trial on the ground of harsh and cruel treatment. Findings of fact and conclusions of law were filed by the trial court.

Appellant urges that there is not full and satisfactory evidence that he has been guilty of excesses, cruel treatment or outrages toward appellee of such nature as to render their living together insupportable, so as to entitle appellee to a divorce under Art. 4629, Subd. (1), Vernon’s Ann.Civ.St. Appellant also complains of the trial court’s finding that he is not a fit person to have the custody of their minor children, and that the property settlement is too indefinite for performance and, further, is not just or equitable.

It is fundamental that a divorce should not be granted by the trial court or permitted to stand by an appellate court unless the evidence is full and satisfactory. It therefore is the duty of this Court to examine the entire record, to determine whether the evidence is full and satisfactory and of a nature to justify and support the decree granting the divorce. In doing so, however, we must not lose sight of the fact that the trial court alone had the vantage of having the personal presence of the parties before him and the opportunity to observe their demeanor and pass upon their credibility. Barrett v. Barrett, Tex.Civ.App., 368 S.W.2d 709; Christen v. Christen, Tex.Civ.App., 333 S.W.2d 472; Dickey v. Dickey, Tex.Civ.App., 290 S.W.2d 933; Robinson v. Robinson, Tex.Civ.App., 235 S.W.2d 228.

These parties were married in 1954 and separated about July 30, 1963. Five children were born of this marriage. This suit was filed in October, 1964, and heard in October, 1965. The trial court found as a basis for granting the divorce that appellant failed to provide the necessities of life, such as food and-clothing, for the children and that he kept company with another woman prior to the separation. It was found that these acts constituted cruel and inhuman treatment of such a nature as to render the parties’ further living together insupportable.

The record supports the finding of the trial court that appellant was keeping company with another woman and that this conduct was a sufficient ground for divorce. The testimony was disputed as to the relationship of appellant with this woman by the name of Thelma. Appellant admitted that he went places with her, but testified that he did so in the form of charity, in that he carried Thelma to the hospital and also assisted her in obtaining welfare payments. He denied any improper relationship with her.

Appellee testified that this woman lived in an apartment in a hotel managed by appellant and that Thelma cooked and cleaned for appellant. Appellee further testified that her husband and Thelma were together many times, and on one occasion Thelma was in appellant’s car while improperly dressed. When appellee protested to appellant about his running around with Thelma, appellant refused to stop and said he was not a kid and knew what he wanted to do. He advised appellee to get her divorce, and said he would not live with ap-pellee if she were the last woman on earth. Appellant and appellee had violent arguments over this woman. Appellee testified that she desired a divorce because she was embarrassed by appellant’s running around with the other woman.

In McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, the Supreme Court set forth the applicable rule: “We therefore hold that the excesses, cruel treatment, or outrages provided in our statute as a ground for divorce are sufficient if they are of such a nature as to render further living together insupportable, and that without regard to whether such treatment is of such a nature as to threaten the impairment of the physical health of the wife.” It is difficult to lay down a general rule as to what constitutes cruel treatment, since each case must largely be determined by its own particular facts. However, the courts have heretofore upheld the granting of a divorce because of the husband’s conduct in associating with other women although there was no charge or proof of immoral conduct. See Parker v. Parker, Tex.Civ.App., 165 S.W.2d 926; Pavell v. Pavell, Tex.Civ.App., 168 S.W.2d 288.

Appellant urges that appellee’s own actions in offering to take him back demonstrate that his conduct had not been of such a nature as to render their further living together as man and wife insupportable. Appellee admitted that she advised appellant she would drop the case if he would buy her a Mustang automobile. She explained that she said this to get appellant to leave her alone, and there was no expectancy that he would accept this proposal or that she would go through with a reconciliation. Appellant does not urge the defense of condonation was thereby established, and the trial court apparently accepted appellee’s explanation of this offer.

It is our opinion that the trial court was justified in granting this divorce under the testimony of appellee relative to appellant’s conduct with another woman and his response to appellee’s protests of this conduct. It is therefore unnecessary to discuss the evidence relative to appellant’s support of his family.

The trial court found that appellee was a fit and proper person to have the custody of the minor children, ages eleven, nine, six, six and four, and awarded her the temporary custody subject to appellant’s right to visit the children at reasonable times and places. Appellant does not complain of these findings as to appellee’s fitness or of the awarding of custody to ap-pellee. He does complain of the trial court’s finding of fact that he is not a fit and proper person to supervise, control and educate, guide and care for the minor children. He urges that this finding is without pleading or evidence. It is apparent from the record that the appellee’s right to custody was not disputed by appellant. The finding of appellant’s lack of fitness was apparently disregarded by the trial court in that it is not contained in the judgment and is immaterial to the awarding of custody of these small children to their mother. Any error in this finding is harmless. Rule 434, Texas Rules of Civil Procedure.

The trial court found that the parties owned the following community property: A residence located at 124 Gonzales St., in San Antonio, Bexar County, Texas; a lot located on Yucca St., in San Antonio, also described as “Lot 23, Lot 29, San Antonio, Bexar County, Texas;” a 1956 Buick automobile; three apartment houses located at 119 Heiman, 122 Heiman and 126½ Gonzales. Appellant was awarded the three apartment houses as his separate property and appellee was awarded the other items as her separate property.

Appellant asserts that the judgment provision awarding appellee “various household goods” is too indefinite for perform-anee. We sustain this assignment. There is no description of the goods and they are not identified by any specific location. Furthermore, there is no evidence in the record whereby we can supply an adequate description. This provision must be stricken from the judgment because of uncertainty. Hudson v. Hudson, Tex.Civ.App., 217 S.W.2d 694; 20 Tex.Jur., Divorce & Separation, § 249.

Appellant also urges that the property settlement is not complete in that two trucks owned by him are not mentioned in the decree. There are no pleadings relative to any trucks, however, there is evidence -that appellant owned two trucks which he used in his septic tank business. Appellee by reply brief waives any interest in these trucks.

Appellant asserts that in any event the property settlement is not fair and equitable. He urges that he was awarded the three apartment houses, however, under the uncontradicted evidence, these houses are being bought under contract of sale and there is only about a three or four thousand dollar equity in all three units. It is seen that the residence on Gonzales Street and the Yucca Street lot, which were awarded to appellee, are also being bought on time and appellee is obligated to continue the payments. We cannot say that the trial court abused its discretion in this property division, particularly in view of the appellee being given the custody of the five minor children.

The judgment of the trial court is reformed to strike the award to appellee of “various household goods,” and to award appellant all interest in the 1950 Chevrolet pick-up, and the 1949 GMC truck in his possession. In all other respects the judgment is affirmed. The costs of the appeal are taxed two-thirds against appellant and one-third against appellee.


author: HOGAN, Judge.

text:
    Wilbur HAMPTON, Plaintiff-Respondent, v. Ruth LOPER, Defendant-Appellant.
    No. 8466.
    Springfield Court of Appeals. Missouri.
    April 8, 1966.
    Rehearing Denied May 6, 1965.
    Application to Transfer Denied June 13, 1966.
    Marvin E. Jones, Powell, Jones & Ringer, Dexter, J. Lee Purcell, Hyde, Purcell & Wilhoit, Poplar Bluff, for defendant-appellant.
    Joe C. Welborn, James E. Spain, Briney, Welborn & Spain, Bloomfield, for plaintiff-respondent.
   HOGAN, Judge.

This is an action to recover damages for personal injuries sustained as a result of a termite spraying operation. The plaintiff had judgment on a jury verdict in the sum of $1,500.00, and the defendant has appealed.

In September 1963, the plaintiff and his wife lived in one of three rental houses owned by the defendant. They rented the house on a month-to-month basis, and at the time in question they had lived there “around twelve years.” Nothing is shown about the size or construction of the house other than that it had a living room, a kitchen, a bathroom, at least one “back bedroom,” and no basement.

The work involved — the termite spraying operation — was done by Mr. Charles Bradshaw, who said he had been in the termite spraying business for about twelve years and “worked” the area regularly. A day or two before the actual spraying was done, either Mr. Bradshaw or one of his employees asked the defendant’s permission to inspect her property to determine if the houses were infested with termites. Finding that all of them were, Mr. Bradshaw solicited the job of extermination. The agreement with Bradshaw was oral; Mrs. Loper’s description of it was that “the three houses were to be termited and I was to pay him a certain sum, and that was all there was * * Mr. Bradshaw selected the exterminating compound, applied it with his own equipment, and was assisted by his own employees. He also undertook to guarantee his work in advance. Before he began his work, Mr. Bradshaw presented Mrs. Loper with a “Warranty Bond,” a writing which represents that “the chemicals used by the Bradshaw Termite Control for Termite Extermination are guaranteed to be highly toxic to subterranean termites and other wood eating insects and to be entirely effective for the control of such pests,” and goes on to state that if rein-festation of the property should appear within five years the warrantor will treat the property again without cost. It does not appear that there was any discussion between Mrs. Loper and Mr. Bradshaw about the methods of applying the pesticide, nor that Mrs. Loper had any knowledge, through past experience or otherwise, of the nature of the extermination process or of the chemical compound to be used, other than such information as may have been imparted by the “Warranty Bond.”

On September 18,1963, using a compound known as chlordane, diluted eighty to one with water, which he applied with his own equipment and with the assistance of his own employees, Bradshaw undertook to exterminate the termites in the house occupied by the plaintiff and his wife. The record is not at all clear as to where the chemical was applied; there are some references to the “understructure” of the house, and it is inferable that Bradshaw went under the house to spray the foundation and the sub-floor. He applied the diluted chlordane with a power sprayer and, depending on whether one accepts his trial testimony or his pre-trial deposition, used either eighty gallons or two hundred gallons of the emulsion.

Mr. Hampton and his wife were both employed, and on September 18, 1963, when the extermination work was done, they were away from home. When they returned in the afternoon, about 5 :Q0 P.M., they immediately entered the house and “noticed a strange odor.” Mr. Hampton then went to the “back bedroom” and turned on an exhaust window fan. He then went to the kitchen and ate a piece of apple pie which his wife had baked that morning before leaving home. The pie was sitting on a kitchen cabinet near the sink, which was near an open window. After eating the pie, Mr. Hampton went to the “back bedroom” to take a nap, but within fifteen, possibly thirty, minutes he became violently ill. There is no question that Mr. Hampton was ill for some time after this incident, and there was medical evidence that Mr. Hampton had been poisoned by the spray.

Originally, the plaintiff joined Mr. Bradshaw, Mrs. Loper and the distributor of the pesticide as defendants, setting up in his petition Mrs. Loper’s negligence in failing to inform him of the spraying operation, Mr. Bradshaw’s negligence in applying the pesticide, and the supplier’s negligence in labeling it, all as direct causes of his injuries. On motion, the case was dismissed as to the supplier, and at the close of all the evidence the plaintiff voluntarily dismissed without prejudice as to Mr. Bradshaw. The cause went to the jury solely upon Mrs. Loper’s negligence in failing to warn the plaintiff of the presence of chlordane on the premises, and recovery was predicated upon the defendant’s actual or constructive knowledge that chlordane is a poisonous and toxic substance to human beings, and her constructive knowledge that the spraying operation was likely to be dangerous to the plaintiff. The defendant filed a motion for directed verdict at the close of all the evidence, on the ground that there was no evidence of any negligence on Mrs. Loper’s part, and an alternative after-trial motion for judgment or for new trial, setting up that there was no evidentiary support for a finding that Mrs. Loper knew, or should have known, of the properties of the chemical used. In this court, the appellant argues that the meritorious point for discussion is whether, upon the record presented, Mrs. Loper was negligent in failing tc warn Mr. Hampton of the presence of chlordane, inasmuch as she had no actual knowledge of the character and nature of the chemical, and because, as a person of ordinary or common education, she cannot be charged with constructive knowledge of the dangers, if any, attendant upon its use. We have concluded that the defendant’s motion for directed verdict should have been sustained; but, in order to make the basis of our opinion clear, it is necessary to reiterate briefly certain basic principles which led us to this conclusion and to consider briefly the respondent’s theories of Mrs. Loper’s liability.

The plaintiff, representing his case to be similar to those dealing with a landlord’s duty in making repairs, argues that Mrs. Loper had actual or constructive knowledge of a dangerously toxic amount of pesticide on the Hampton premises, but that Mr. Hampton did not, and-therefore, in failing to warn Mr. Hampton of the presence of chlordane, she breached her duty to inform the plaintiff of a concealed dangerous condition on the premises. Plaintiff says that since the “Warranty Bond” recited that the chemicals to be used were “guaranteed to be highly toxic to subterranean termites and other wood eating insects,” Mrs. Loper knew or should have anticipated the “dangerous condition” of the Hampton house when the plaintiff returned from work after the spraying was done. In our view, the plaintiff’s position is too extreme. There is no question that in some cases involving negligent repair, as well as in cases involving the original delivery of leased premises, our courts have applied the rule that “a lessor of land, ‘who conceals or fails to diselose to his lessee any natural or artificial condition involving unreasonable risk of bodily harm * * is subject to liability * * * if (a) the lessee does not know of the condition or the risk involved therein, and (b) the lessor knows of the condition and realizes the risk involved therein and has reason to believe that the lessee will not discover the condition or realize the risk.’ ” Roach v. Herz-Oakes Candy Co., 357 Mo. 1236, 1244, 212 S.W.2d 758, 763 [5]; Bartlett v. Taylor, 351 Mo. 1060, 1069, 174 S.W.2d 844, 849 [6]; Restatement, Torts, Section 358, p. 969 (1934). But if this principle is applicable here by analogy, one must bear in mind that the landlord’s liability is conditioned upon knowledge sufficient to cause a reasonably prudent man to appreciate the dangerous character of the condition causing harm, and the landlord is not bound to foresee results which only a person with specialized knowledge would apprehend. Kennedy v. Hartwig-Dischinger Realty Co., Mo.App., 201 S.W.2d 475, 479 [2,3]; Meade v. Montrose, 173 Mo.App. 722, 726, 160 S.W. 11, 13 [5]; 2 Harper & James, Torts, Section 27.16, pp. 1508-1509, and authorities cited note 16 (1956) ; Prosser, Torts, Section 80, pp. 466-467 (2d ed. 1955). All the knowledge Mrs. Loper is shown to have had in this case was that the pesticide which Mr. Bradshaw proposed to use was guaranteed by him to be effective. There is no evidence tending to establish that she knew how it was to be used nor the quantity that was to be applied. It seems clear to us that the toxicity of synthetic chlorinated hydrocarbons — of which this pesticide was testified to be composed — is a matter of technical cognizance, and that an appreciation of the dangers attending its nse would require a more advanced level of knowledge or experience than that to which men of ordinary education could be held.

Further arguing along this same line, the plaintiff draws a parallel between Vitale v. Duerbeck, 332 Mo. 1184, 62 S.W.2d 559, and this case, and maintains that the verdict should be upheld on the principle that a landlord will be held liable for negligent or defective repairs, even though the work is done by an independent contractor. We need not consider, however, whether the analogy is apt, or whether, had Bradshaw’s negligence been submitted as a ground for recovery, the evidence would support the verdict. The case was submitted solely upon defendant’s negligence in failing to warn the plaintiff of the presence of chlordane. In general, a plain tiff is held in the appellate court to the same theory upon which he submitted his case in the trial court; and, if no case is made on the issue or issues actually submitted, the trial court errs in not directing a verdict. Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 1180, 232 S.W.2d 954, 960 [11-13]. Even if it be assumed that Mr. Hampton’s injuries resulted from some negligence on Bradshaw’s part in the use of the pesticide, the plaintiff abandoned that claim of negligence or liability by submitting his case solely upon Mrs. Loper’s failure to warn him of the spraying operation. Guthrie v. City of St. Charles, 347 Mo. 1175, 1182, 152 S.W.2d 91, 93 [1]; Haire v. Stagner, Mo.App., 356 S.W.2d 305, 308 [2, 3].

We are aware that there are instances in which a landlord has been held liable for injuries resulting to his tenant because of the use of poisonous chemicals to exterminate vermin. Anno., 73 A.L.R.2d 1155, 1156, note 1 (1960). It would serve no useful purpose, however, to collate those cases and compare them to the instant case. In the so-called “exterminator” cases, the landlord’s liability has generally been predicated upon his use of a compound — cyanide—• likely to cause injury, even though the utmost care is used. Granted there may be some hazard attendant upon the use of chemical pesticides composed of chlorinated cyclic hydrocarbons, and granted further that the risk may be scientifically greater than is commonly realized, the record before us does not make out a case of ultra-hazardous activity.

For the reasons indicated, the judgment is reversed, and the cause is remanded with directions to enter a judgment for the defendant in accordance with defendant’s motion for judgment or for new trial.

STONE, P. J., and RUARK, J., concur.


author: J. MORGAN DONELSON, Special Judge.

text:
    Grover C. HARRYMAN, Employee, Plaintiff-Appellant, v. L-N BUICK-PONTIAC, INC., Employer, and Central Surety and Insurance Co., Insurer, Defendants-Respondents.
    No. 31853.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.
    Rehearing Denied April 12, 1966.
    Application to Transfer Denied June 13, 1966.

      Albert D. Wall, O’Fallon, Harry J. Nichols, St. Louis, for plaintiff-appellant.
    Evans & Dixon, Edward W. Warner, St. Louis, for defendants-respondents.
   J. MORGAN DONELSON, Special Judge.

Employee, Grover C. Harryman, brought this action for benefits under the Workmen’s Compensation provisions of Chapter 287, RSMo 1959, V.A.M.S. The referee and the Industrial Commission denied the employee’s claim based on findings that he did not suffer an accident or an abnormal or unusual strain, arising out of and in the course of his employment. The denial of employee’s claim was thereafter affirmed by the Circuit Court. The employee has perfected his appeal, but before a determination on the merits may be considered we are confronted with respondents’, employer and its insurance carrier, motion to dismiss it for violation of the provisions of Supreme Court Rule 83.05. In the exercise of discretion and with a belief that ascertainable issues should be determined on their merits, the motion is hereby overruled even though the briefs closely border as being inadequate and not above criticism. Trio Mobile Home Park, Inc. v. City of St. Charles, Mo.App., 390 S.W.2d 432; Moore v. Rone, Mo.App., 355 S.W.2d 398; Wolff v. Richardson, Mo.App., 358 S.W.2d 112; Sebree v. Rosen, Mo., 349 S.W.2d 865; Duke v. Thomas, Mo.App., 343 S.W.2d 656.

Grover C. Harryman, age 42, was a skilled and experienced automobile mechanic. He had been an automobile mechanic for a number of years. In January, 1961, he was employed by respondent, L-N Buick-Pontiac, Inc., as a mechanic and was so employed on February 19, 1963. From 1957 to 1961, he was an automobile mechanic for Richman Buick-Pontiac Company at the same' business location. He had also prior mechanical experience with automobiles in Sedalia and Marshall, Missouri. His duties consisted of all types of automobile mechanical work, including removal of the heads from engine blocks.

On February 19, 1963 Harryman was performing the duties of his employment and was assigned the duty of removing the heads from the engine block of a 1963 Pontiac. He had performed this duty many times on Buick, Pontiac and other makes of automobiles, but he had never removed a head from the engine block of this particular model. The heads of the engine block on this model were described as similar to earlier models of the Pontiac automobile and other makes upon which he had worked. The head of the engine block was described as made of cast iron, weighing from 60 to 70 pounds, and being 18 to 20 inches long, 5 inches deep, and 6½ to 7 inches wide. In the performance of his duty he raised the hood of the automobile, climbed up under it and sat on the radiator, facing the windshield. He proceeded to remove the head of the engine block on the driver’s side and then he proceeded to remove the one on the passenger’s side of the engine. He placed his left foot on the automobile frame and his right foot in the valve chamber. His right hand was on the back and his left band on the front of the head. The trunk of his body was bent forward with his head and body down on the same level, if not below his right knee. His knees were flexed or bent. He loosened or removed the necessary bolts and from this position he proceeded to lift the head, 2, 3, or 4 inches. Harryman testified that the head caught on something unknown to him, his back popped, and he felt sudden sharp pain in the lower part of his back. He got down from the above described position, and walked around the automobile by holding or leaning on it.

The head of the engine block on the driver’s side of the automobile had been removed while he was in the described position except the positions of his feet and hands were reversed. This head was lifted, removed, and placed on the fender of the automobile successfully and without incident.

Harryman described his duties as a mechanic in detail. He further stated that the method he used in removing the heads from the Pontiac engine block was the same method he had used many times before and for a number of years. He further stated that in the removal of an engine block head it was not unusual for it to catch or hook on something as it was removed.

Fellow employees were informed by Har-ryman that he was injured and needed treatment by a doctor. He did not, however, tell anyone the head had caught or hooked on anything as he was removing it until he consulted with his lawyer. Har-ryman did receive treatment at a hospital by a doctor, and he then returned to his home. He gave complaints of pain in his lower back, through his left hip, and down the front and back of his left leg. His physical condition improved during the following three weeks, but he did not return to his employment.

About three weeks after the above described occurrence at his place of employment, Harryman was at his home watching television. He bent forward while seated to change television channels, and “ * * * this thing popped again.” He again had sharp pain and had difficulty getting out of hed the next day. While shaving he said he reached up with his right hand, and “ * * * a sharp pain hit me and knocked my feet plum out from under me.” He was hospitalized for ten days where he was treated and returned to his home. He had not returned to his employment at the time of the hearing. Har-ryman further testified that he had no prior back trouble except about 8 or 10 years before he had suffered a muscle strain in his back which did not require hospitalization. He lost no time from his work. Other evidence indicated he may have had some back trouble while he was in the armed service and after moving an ice box or refrigerator on another occasion, which were denied by him.

The medical evidence was in conflict as to the nature, extent and causation of the injury to Harryman, and also the treatment which would be necessary. A detailed outline of this evidence is unnecessary because of the result reached on another issue. Suffice it to say, Harryman did apparently suffer a lumbosacral strain or a ruptured or herniated intervertebral disc between the third and fourth lumbar vertebrae on the left, or both, which may have been caused by bending forward and lifting the head of the engine block in the manner described or by the described occurrence involving the changing of the television channel, or possibly by some other movement considered normal.

We are aware that the reviewing court may not substitute its judgment, if, upon the entire record and based on competent and substantial evidence, the Commission reasonably could have made the findings and order under consideration. It is also known that the Commission is the sole judge of the weight of the evidence and the credibility of the witnesses. V.A. M.S.Const. of 1945, Article V, Section 22; Davis v. Day-Brite Lighting, Inc., Mo.App., 366 S.W.2d 84; Gaddy v. State Board of Registration for the Healing Arts, Mo.App., 397 S.W.2d 347; Rapp v. Industrial Commission, Mo.App., 360 S.W.2d 366; United Brotherhood of Carpenters, etc. v. Industrial Commission, Mo.App., 363 S.W.2d 82.

An employee cannot be compensated for injury unless it arose out of or in the course of his employment by reason of an accident within the meaning of Section 287.020(2) RSMo 1959, V.A.M.S., which may occur in any number of ways or as a result of an unusual or abnormal strain. Crow v. Missouri Implement and Tractor Co., Mo., 307 S.W.2d 401; Merriman v. Ben Gutman Truck Service, Inc., et al., Mo., 392 S.W.2d 292. In the Crow case, supra, the employee was adjusting and supporting an elevator on a corn picker which came down on him heavier than expected and he was injured. In the Merriman case, supra, the employee, truck driver, was required, because of shifting cargo, to place himself in an awkward, unusual, and extended position. He then attempted to lift a heavy coil of rope and he was injured. In both cases the employee was compensated for injury from an accident as the result of unusual or abnormal strain. However, if the employee suffers an injury resultant from a strain while he is engaged in doing his normal or customary duties without variance from his normal routine, it is not a compensable accident within the meaning of the statutes. Hall v. Mid-Continent Manufacturing Co., Mo.App., 366 S.W.2d 57; Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61; Ousley v. Hawthorn Company, Division of Kellwood Company, Mo.App., 397 S.W.2d 719. No evidence was produced of any slip, trip, fall or 'loss of balance, and we are aware that such is not required where the employee is injured by an accident resulting from unusual or abnormal strain. Hall v. Mid-Continent Manufacturing Co., supra. In the instant case, there is no substantial evidence that Harryman was injured by any accident, whether as the result of an unusual or abnormal strain or otherwise. As an automobile mechanic, he was ■ removing a head from the Pontiac engine block while in the same position, using the same method he had used many times before without variance of his routine. It further appears that if the head of the engine block did, in fact, catch or hook on something as it was lifted, it was not an unusual occurrence.

After full consideration of all the evidence, we hold that the Commission reasonably could have made the findings and order denying compensation to Harryman. It is supported by substantial evidence, and it is not against the overwhelming weight of the evidence.

The judgment of the Circuit Court approving the finding and award denying compensation is affirmed.

WOLFE, P. J., and RUDDY, J., concur.


author: RUARK, Judge.

text:
    The CITY OF LEBANON, Missouri, a Municipal Corporation, Plaintiff-Respondent, v. Elmer HOLMAN, Willie Jane Holman, Joe Esther, Fern Esther, Dr. Joseph C. Hughes, Bettle Lou Hughes, John R. Klug, Constance Klug, Defendants-Appellants, James Blackman, Mildred Blackman, Frank Nelson and Dorothy Nelson, Defendants.
    No. 8477.
    Springfield Court of Appeals. Missouri.
    April 27, 1966.

      Claude T. Wood, Richland, for defendants-appellants.
    J. W. Grossenheider, Lebanon, for plaintiff-respondent.
   RUARK, Judge.

This is a class action brought under a resolution of the Board of Aldermen of the City of Lebanon in accordance with the Sawyer Act (V.A.M.S., Sec. 71.015, Laws of 1953, p. 309). The trial court found the proposed annexation reasonable and necessary and authorized the submission of the proposition. Defendants have appealed.

Lebanon is a city of the third class, and the evidence indicates that it has been growing since its last annexation in 1952 when its official (1950) census was 6,808. The 1960 census was 8,220. The mayor testified that its present population is approximately ten thousand, but we are not sure whether or not this figure includes the outlying areas, particularly those involved in this case. The mayor’s testiinony was that the city area is six and one-half square miles. However, the able and experienced trial judge found the actual area of the city to be approximately twenty-five hundred acres (or in the neighborhood of 3.8 square miles). This substantially accords with our computation made from the various exhibits.

The proposed annexation is somewhat ambitious as to area. There are two areas sought to be annexed, and they are totally disconnected. One consists of three hundred twenty acres on the extreme north of the city, and the other consists of eighteen hundred acres on the extreme south, making a total combined acreage of two thousand one hundred twenty, or approximately 3.3 square miles. Thus, the city is seeking in one move to almost double its size.

The proposed area on the south (the eighteen hundred acres) is somewhat difficult to describe. It commences at the present city limits and extends south a distance of at least two miles. It is one and three-quarters miles wide in its widest portion. Then, in various stages, it cuts back to shrink its eastern boundary so that, at its extreme south end, it is slightly in exeess of one and one-quarter miles wide. What is called “Old 66” (city route) is located in the westerly portion of the bulging rectangle on the south. Old 66 extends from Interstate 44 (to be later mentioned) north into the city. The west line of the south area is one-quarter mile west of this highway. Located in the easterly portion of this rectangle is State Highway 5. The east line of the proposed area extends from one-half mile east of this highway to, as it gradually shrinks on the south, approximately three hundred feet east. Old 66 and Highway 5 are a mile apart. Interstate 44, a divided, four-lane, limited access highway, enters the rectangle at the southwest corner. It encounters Old 66 at a point about three-fourths mile north of that southwest corner and effectively blocks Old 66 from the area to the south, but there is an interchange which permits an overhead passage from Interstate 44 to Old 66 and thence northward into the city. Then Interstate 44 extends northeasterly to a point where it leaves the rectangle at approximately the northeast corner of the annexed area but within the present city limits. There is an overpass or interchange which permits transfer onto Highway 5 north into the city or south into the southeast area of the eighteen hundred acre tract. There appear to be no other roads or streets, overpasses or underpasses, on Interstate 44 in this area. Thus the area southeast of Interstate 44 is substantially isolated from the area northwest and from the city itself except for the interchange and overpass at the northeast corner.

There seems to be no question that the area immediately adjoining Old 66 north of Interstate 44 and leading into the city has taken on urban characteristics. Along and next to the highway it is built up with motels, filling stations, and similar businesses, largely those which cater to the traveling public; and there appear to be at least two small subdivisions extending outward from Old 66. There is at least one small subdivision immediately adjoining the city on the north, and over east on Highway 5 there has been some building or development in the north portion (south of the overpass). But as the road proceeds south the development becomes less and virtually nil. About the only development in or near the extreme south portion of the rectangle is a tract of approximately two hundred acres which is said to be the city airport. The main portion of the area, both that lying west of Old 66 and east of Highway 5 and that within the mile between the two, is virtually undeveloped and unused for anything except agricultural purposes. Some of it is in brush. The three-hundred-twenty acre area on the north has residences along the highway leading north, and there appear to be some country homes within the area. Also, in the extreme northeast corner there is a subdivision which has some eighteen houses. The balance of the area, both the north three hundred twenty acres and the south eighteen hundred acres, excepting the development along the highways, is as stated largely devoted to agricultural uses. The witnesses give the percentage of the whole of the to-be-annexed areas devoted to this purpose as eighty to eighty-five per cent. A greater portion of the land is devoted to cattle grazing, although there is mention of a dairy farm, a hog farm, grape vineyard, cornfields, hayfields, a farm in the soil bank, and possibly some other uses. There is no evidence concerning the value of the lands or their adaptability for city purposes except as may be inferred from the development on the highways, particularly along Old 66.

The appellants have made several contentions. We think we need consider only the first one, which is double-barreled in that it submits that the petition fails to plead and (also) the proof wholly fails to support or authorize a class action in regard to selection and adequacy of the representation of the owners.

Sec. 507.070, RSMo 1959, provides for the appointment of such representatives of class as will “fairly insure adequate representation of all.” Civil Rule 52.09(a), V. A.M.R., provides, “Whenever an action is instituted * * * against one or more defendants as representative or representatives of a class, the petition shall allege such facts as shall show that they or the defendants specifically named and served with process have been fairly chosen and adequately and fairly represent the whole class. The plaintiff shall be required to prove such allegations, unless all of the members of the class have entered their appearance ⅜ ⅜ ⅜ >f

The provisions of the above are mandatory, and the courts have usually been diligent in seeing that the rights of those not served are protected by the actual compliance with the requirements of the rule.

As to the pleading: Plaintiff’s allegations in this respect are as follows: “That it is impractical to bring all of the property owners [e]ffected by this suit before this court and the above named defendants will fairly insure adequate representation of all, and the character of the right sought to be enforced against the class is several and the object of the action is the annexation of real estate owned by the class by the plaintiff herein and that said defendants have been fairly chosen and adequately and fairly represent the whole class of said property owners.”

The appellants filed a general motion to dismiss for failure to state a claim but did not specifically raise this question and did not attack this feature of plaintiff’s petition until after judgment (although they did plead an insufficient number of representatives in their answer). Apparently they filed a motion for bill of particulars at the same time they filed the motion (this motion was not aimed at the questions here involved). The inclination of the courts is to give the pleadings every reasonable in-tendment in support of a sufficiency when the question is presented on appeal. This in order to prevent entrapment. Welker v. Pankey, Mo.App., 225 S.W.2d 505(1); Copher v. Barbee, Mo.App., 361 S.W.2d 137, 145; and cases at West’s Missouri Digest, Pleadings, @^34(7).

The allegations in the petition are substantially in the language of Rule 52.09. The words of the statute are generally sufficient if such language reasonably informs the defendants of what they are to meet. The rule does not require the plaintiff to state how the class representatives were chosen or how they will “adequately represent.” It is sufficient if the plaintiff pleads the ultimate essential facts of his cause of action, not the evidence by which those ultimate facts will be established. Fish v. Fish, Mo.App., 307 S.W.2d 46, and cases cited at 51; Wonneman v. Wonneman, Mo.App., 305 S.W.2d 71(1); Jones v. F. W. Woolworth Co., 234 Mo.App. 1189, 122 S.W.2d 41. We believe the allegations can be taken as a pleading of ultimate facts.

But as to the second phase of the contention we are of a different opinion. We can find absolutely no proof as to how the purported representatives of the class were chosen. As to this, in the language of Blair, J., in Hribernik v. Reorganized School District R-3, Mo.App., 276 S.W.2d 596, 599: “How they were chosen, if indeed they were chosen, or why they might adequately and fairly represent the class is left for us to ponder.” (See also Milton Const. & S. Co. v. Metropolitan St. Louis S. Dist., supra, Mo.App., 308 S.W.2d 769, 773). Nor can we infer that the rule and statute were complied with. There were two hundred sixteen tracts involving three hundred thirteen owners. There were twelve defendants, but these were composed of six couples, presumably husbands and wives. Two couples, or four people, did not answer or participate in the trial. We know nothing about them. None of the wives of the remaining four couples participated in the trial or testified as witnesses. As to the four remaining men: One Joe Esther, although his name (together with his wife’s) appears in the caption as defendant, does not otherwise appear in the case as witness or in any other capacity. We know nothing about him; and, in fact, it is difficult to determine whether or not he actually lives within the annexed area. Apparently he has seme property or portion of his property within the present city limits. The three remaining men who appear as defendants and testify are as follows: Dr. Hughes is a veterinarian. He and his wife live within the present city limits but own an interest in a small animal hospital on property consisting of about two acres with a two hundred ten foot frontage on Highway 5, in what we refer to as the southeast portion of the eighteen-hundred-acre tract below Interstate 44. Elmer Holman is a retired undertaker. He and his wife own and live on a forty-acre tract near Old 66 and northwest of Interstate 44 within the annexed area. We are unable to determine to what purpose this forty is devoted. He testified as a witness. The remaining representative is John R. Klug. He conducts an automobile supply business within the city, but he and his wife live in the north area, where he owns ninety-three acres. Three acres are within the present city limits, and ninety are within the area proposed to be annexed. He runs fifty head of cattle on this land. And, so far as the record shows, he is the only man interested, even as a sideline, in an agricultural pursuit, although, as we have said, the evidence is that eighty to eighty-five per cent of the land to be annexed is so devoted. As we have stated, the north area is separated from the south area by the length of the city. Again Interstate 44 effectively separates the south area into two distinct portions. All three of these areas have different conditions and different interests and problems requiring some intimate knowledge on the part of the class representative for that area. To illustrate, a filling station operator has little in common with a dairy farmer. Various considerations govern the selection of persons to represent a class. These, of course, may vary according to the conditions of each case. While we do not find it frequently mentioned (see Crawford, Class Actions under the Missouri Code, 18 U. of K.C.Law Review, pp. 103, 107), we think one necessary consideration is financial ability. As most lawyers'know, this type of action is expensive. Very often it involves (as it does here) surveys and a large number of exhibits, maps, and pictures. It is unfair to place the financial burden of maintaining or defending an action on one, two, or three people' who must carry the load for over three hundred others. There is no evidence which gives a very good indication of the financial ability of these three active defendants other than the fact that each owns some property or an interest therein. Certainly the larger the number of representatives, the more the burden is spread. We bear in mind that the basic purpose is to see that the rights of the absent, and perhaps even unknowing, owners are protected.

We agree with most of the pronouncements made in City of St. Ann v. Buschard, Mo.App., 299 S.W.2d 546, although we are doubtful as to the naming of one person as a group representative. But the evidence in that case (so much as is shown) is far different from ours. There the members of the class were of a substantially compact residential area with no industry. In our case the interests and uses of the people whose rights are affected cover a wide range, and the separate areas involved require different knowledge and different treatment. Since there was not the proof required by the rule as to how the class representatives were chosen (compare City of St. Ann v. Buschard, Mo.App., 356 S.W.2d 567) or that they fairly represented the membership of the class, and since we cannot assume and infer what it was plaintiff’s duty to prove, we feel that we must therefore reverse.

This should end this case. But the members of this court agree that a similar suit is likely to reach this court, and we do not wish our silence as to other matters to be taken as an implied approval of all other questions which have been raised by the appellants.

The evidence of neither party makes it very clear as to how much unused space is available in the City of Lebanon. It is true that the city offered the rather general opinions of certain witnesses that there is not much space available for future planning and growth. On the other hand, defendants have evidence of various empty spaces, supported by aerial pictures, and there is evidence that a portion of the area within the present city limits is being used for cattle grazing; although we do not mean to imply that it is challenging the King Ranch of Texas. But the evidence of both parties is unsatisfactory in that it fails to give a very good idea of what portion or percentage or total usable acreage within the present city limits is unused.

Also we have some doubt as to whether certain portions of the area, particularly that which lies southeast of Interstate 44 (except that In the vicinity of the interchange on Highway S), have acquired any of the characteristics of city property, whether they have any value because of nearness or suitability for urban use, and whether the annexation of that entire southeast area is either necessary or reasonable. We think it extremely unlikely that the city will extend its streets down through the north portion of the south tract and across Interstate 44 into the southeast area. At least not under present or reasonably foreseeable conditions.

The judgment is reversed.

STONE, P. J., and HOGAN, J., concur.

      . As nearly as we can compute it, the exact acreage is 2,460.

      . Kansas City Terminal Railway Co. v. Industrial Comm., Mo., 396 S.W.2d 678, 680; Hribernik v. Reorganized School Dist. R-3, Mo.App., 276 S.W.2d 696, 599; Sheets v. Thomann, Mo.App., 336 S.W.2d 701; Milton Const. & S. Co. v. Metropolitan St. Louis S. Dist., Mo.App., 308 S.W.2d 769, 772 et seq.; Bellerive Country Club v. McVey, 365 Mo. 477, 284 S.W.2d 492(14); Campbell v. Webb, 363 Mo. 1192, 258 S.W.2d 595.

      . 71 C.J.S. Pleading § 86(e), pp. 204-205; Stock v. Sehloman, 226 Mo.App. 234, 42 S.W.2d 61(4); Peak v. Judd, Mo.App., 278 S.W. 1044; see Dietrich v. Dietrich, Mo.App., 209 S.W.2d 540.

      . See City of Aurora v. Empire District Electric Co., Mo.App., 354 S.W.2d 45; City of Houston v. Duff, Mo.App., 338 S.W.2d 373.


author: WILLIAMS, Judge.

text:
    Rose L. KIRK et al., Appellants, v. Edith LEE, Appellee.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.
    Rehearing Denied June 10, 1966.
    Robert A. Becht, Matthew B. Quinn, Jr., Louisville, for appellants.
    Burlyn Pike, Taylor & Pike, Shepherds-ville, for appellee.
   WILLIAMS, Judge.

Lorenzo Johnson died testate on January 31, 1958, leaving his wife, Fleta Johnson, surviving. His holographic will reads as follows :

“To whom this may concern I am makin my will an this is to certify at my death Lorenzo Johnson every thing that I owe are to go to my beloved wife Fleta Johnson which she will have full judiction over every thing & that they are not to be any administrator every thing will go to her Fleta Johnson & at this date I owe Mrs. W. H. Gillett some money which I hop I wont owe at my death but if I do I will ask my wife to consult Mrs. Gillett & Henry Wurt for the best advice for her to do. In case I am not out of debt the insurance will clear every thing and I further more will advise my wife to look forward & at her death if any thing are left to singn every thing over to Edith Lee who at the present time lives in Shepherdsville Bullitt County.
“This is my best wishes & I will state one time mor at my death every thing goes to my wife Fleta Johnson & no one to have any thing to do with any thing that is left to her. Now I sign my name in full.
Lorenzo Johnson”

Fleta Johnson died intestate on July 8, 1962, leaving appellants as her sole heirs at law. They now claim by intestacy the property devised to Fleta by Lorenzo’s duly probated will. They contend the will gave Fleta fee simple title to the property. Ap-pellee Edith Lee argues that Lorenzo’s will gave Fleta a life estate with power of disposition and remainder to Edith Lee. The chancellor construed the will as devising to Fleta a life estate with power of disposition and remainder to appellee. This appeal is from a judgment to that effect.

The central issue is whether the testator by the language used in his will devised a fee simple estate to Fleta Johnson or whether he devised a life estate with power of disposition. If doubt or uncertainty arises from the language used in a will, resort may be had to the technical rules of construction for clarification. Hall’s Adm’r v. Compton, Ky., 281 S.W.2d 906. Here, the conflicting provisions create sufficient doubt or uncertainty of the testator’s intentions to necessitate the use of applicable rules of construction.

“If a patent ambiguity alone exists, the intention of the testatrix must be determined only from the language used by her in the will, and extrinsic evidence is not admissible to change the construction or interpretation of such language.” Hall’s Adm’r v. Compton, supra. It will be observed that parol evidence is sometimes admitted In construing a deed which is patently ambiguous, but that rule has not been extended to construction of wills. See Caudill v. Citizens Bank, Ky., 383 S.W.2d 350. Certainly the conflicting provisions appearing on the face of this will created a patent ambiguity. We, therefore, must determine what is meant by what the testator said in the will. Reno’s Ex’r v. Luckett, Ky., 298 S.W.2d 674.

The testator states three times in explicit terms that everything is to go to his wife. However, the problem centers around the provision: “and I further more will advise my wife to look forward & at her death if any thing are left to singn every thing over to Edith Lee who at the present time lives in Shepherdsville Bullitt County.” This Court has held that the “wishes of the testator, indicated by such words as ‘wish,’ ‘request,’ ‘recommend,’ or ‘desire,’ are not deemed mandatory unless it appears a legal and enforceable obligation was intended to be created. Unless the context forces the conclusion that the precatory words were used in a stronger sense, they will not be construed as a limitation on the primary estate devised.” Swango v. Swango’s Adm’r, 313 Ky. 495, 232 S.W.2d 347, 348. We do not doubt that the testator hoped that his wife would devise any un-disposed part of his estate to the appellee, but by his use of the words “advise” and “to look forward” in the total context of this instrument we can reach no other conclusion than the testator never intended to create a legally binding obligation at the time of his death. The natural connotation of the language employed in the instrument indicates only a suggestion or recommendation that the wife take care of the appellee rather than the creation of a technical legal right in the appellee.

The judgment is reversed, with directions to enter judgment for the appellants.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. James E. RILEY et ux., Appellees.
    Court of Appeals of Kentucky.
    May 6, 1966.
    John B. Breckinridge, William A. Lam-kin, Jr., Frankfort, Reed Anderson, Jackson, for appellant.
    Adrian H. Terrell, Paducah, for appel-lees.
   HILL, Judge.

The Commonwealth appeals from a jury verdict and judgment for $11,500 for 7.39 acres taken from appellees’ 45-acre farm, referred to herein as tract 27, and $30,750 for a town lot with improvements located in New Eddyville, Kentucky, designated herein as tract 30. Both tracts are needed in the construction of the Western Kentucky Turnpike, Kentucky Highway 641.

The sole argument advanced for reversal contends the judgment is excessive.

The judgment appealed from was entered May 31, 1962, which preceded our opinion in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963).

Before the taking appellees’ farm was served by two rural secondary roads, the Glenn Chappel or Cobb Mill Road and the Dycusburg-Kuttawa Road. The construetion of Highway 641 resulted in the abandonment of a portion of Dycusburg-Kut-tawa Road fronting appellees’ property but leaving an approach to the Cobb Mill Road. A high fill will be made on the Cobb Mill Road adjacent to the west boundary of the farm.

Tract 30 contained .69 of an acre before the taking of a part of it, and there was a concrete block building 62 by 37 feet and a shed 21 by 62 feet thereon. The lot was irregular in depth, extending back 82 feet on one side and 228 feet on the other, with frontage of 200 feet on Highway 641. The taking leaves a triangular lot 80 by 65 by 85 feet.

Appellees paid $15,000 for tract 27 in September 1958, and it is admitted by a witness for appellant that real estate valúes increased 33Yz percent from the date of purchase to the date of trial of this case. Appellant’s two witnesses, Flener and Wal-drop, testified the before value of tract 27 was $11,850 and $12,700. They fixed the value of the farm remaining after the taking at $7,000 and $7,700.

The evidence for appellees, not considering the testimony of Riley, assessed the before value of tract 27 at $19,134 and $21,450.

The greatest conflict between the testimony of the witnesses for the Commonwealth and witnesses for the property owners arises out of the difference in their opinions as to the highest and best use for which tract 27 is suited. Witnesses for the Commonwealth were of the opinion the greatest and best use was in timber growth and agricultural purposes, although one of them (Waldrop) admitted the area in which this tract is located has “flavor” potentially for recreational use. Appellees’ witnesses declared the highest and best use as it affected the market value was for recreational purposes (homes, cottages, and camp sites).

The question of the “highest and best use” of the property as it relates to the fair market value is important and one to be considered by the jury. Cf. Kentucky Nat. Park Commission v. Russell, 301 Ky. 187, 191 S.W.2d 214.

There is also great conflict in the evidence offered by these antagonistic litigants relative to the damages to the remaining land of appellees after the taking. Appellant’s two witnesses fixed damages to the remaining land at $850 and $875, while four witnesses for appellees testified the damages to the remaining tracts ranged from a low of $3,800 to a high of $5,610. The 47-acre farm is separated by the new construction, resulting in 35 acres plus on the north side and 2 acres minus on the south side. There is evidence the 35-acre tract north of the highway will have only one entrance to Cobb Mill Road and that a fill 30 feet high will be made at the intersection of Cobb Mill Road and Ky. 641. While the fill tapers off to the north, the evidence indicates it will affect the market value of the land adjacent to Cobb Mill Road due to the fact the land is considerably lower than the fill. Assuming the highest and best use of the remaining tract will be for recreational purposes, as found by the jury, these circumstances may well affect the market value of the remaining tract. Considering the admitted evidence for appellant that there will be substantial damages to the remainder and the apparent qualification of the four prominent witnesses for appellee, we cannot say the verdict is excessive at first blush.

We turn now to the contention of appellant that $30,750 for tract 30 is excessive.

Appellant only interrogated one of its witnesses on values pertaining to tract 30, and he testified the lot was worth $4,000 and the improvements $8,400.

The highest value placed on the lot by appellees’ four witnesses was $20,000 and the lowest was $15,000. The highest value placed on the concrete block building taken was $18,000 and the lowest was $14„314. There was evidence the cost of construction of the building in 1956 was $18,000. The appellant’s only witness with respect to tract 30 fixed no value on the small, irregular remaining portion after the taking.

We are impressed by appellees’ evidence of comparable sale of a lot to the Standard Oil Company, which was smaller in size than tract 30 and not so favorably situated in relation to Ky. 641 as the lot in question. The Standard Oil lot was purchased for $10,000 and required a fill costing approximately $4,000. We conclude from all the evidence tract 30 was more valuable than the Standard Oil lot.

It is concluded the amount of the verdict and judgment for tract 30 is not excessive.

The judgment is affirmed.

MONTGOMERY, J., dissents.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. James Beckham SEA et al., Appellees.
    Court of Appeals of Kentucky.
    May 6, 1966.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Deddo G. Lynn, Lexington, Richard Weisenberger, Paducah, for appellant.
    W. Earl Dean, Harrodsburg, Walter Patrick, Lawrenceburg, for appellees.
   HILL, Judge.

The Department of Highways appeals from a $6,475 judgment entered pursuant to a jury verdict for the condemnation of 8.18 acres out of appellees’ 58-acre farm. The land condemned has been used in the construction of the Central Kentucky Parkway leading from U. S. 60 east of Versailles to Elizabethtown.

It is contended by appellant that the verdict is excessive and incompetent evidence was admitted over its objection.

The completion of the new highway separates appellees’ farm so that 3.4 acres, with all the farm buildings thereon, will be situated on the north side of the highway and 46.42 acres to the south of the highway. Appellees will have access from the smaller to the larger tract by traveling an overpass by way of the John Sea Road. The farm has been used for general farming purposes, including the production of some tobacco and the operation of a dairy. There being no direct evidence relative to the greatest and most productive use of appellees’ land, it will be inferred that it is farming.

The two witnesses who testified for appellants on the question of values fixed the differences in the before and after market value of appellees’ farm at $3,650 and $4,-005.

Appellees’ two witnesses on values testified the differences between before and after values were $8,700 and $8,500. It is apparent the verdict was well within the range of the evidence. The evidence of appellees relied on sales considered by their witnesses to be comparable to the subject property. Those sales ranged from $375 per acre down to $216 per acre. Appellant’s witnesses relied on sales considered comparable that averaged $217.64 per acre. If we assume, for the sake of discussion, that $300 per acre was a fair market value of appel-lees’ land at the time of taking, about $2,-500 of the verdict may be earmarked for land taken. This leaves about $3,975 of the verdict ostensibly allowed by the jury for impairment of the value of the farm as a unit. Our troublesome problem then is to determine whether the amount is excessive or justified under the evidence.

We think it fair to state before leaving the discussion of the value of the tract that the best part of appellees’ farm was taken and that the real value of the part taken may well exceed $4,000 leaving less than $2,500 for impairment of the value of the farm as a unit. The witnesses in this case, no doubt, out of respect for Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963), did not undertake to itemize the damage factors.

Where a farm is divided by the taking of a part of it for highway purposes, the separation alone may or may not reduce its market value, depending on the highest and best use of the land. It may be near a town and suitable for building purposes, in which event the division of the farm may not ipso facto impair the market value of the remaining tracts. In fact, under those circumstances the severance may increase the value of either or both of the remaining tracts. On the other hand, the separation of a farm, having farming as its highest and best use, may materially and substantially impair its market value as a unit.

Notwithstanding what we have just 'written, it should be kept in mind that the guiding light is always the “fair market value,” considering the “highest and best use” to which the property can be adapted. It is concluded either party may develop the question of what is the “highest and best use” of the property involved; and, of course, the other party may take a different view and introduce evidence to the contrary. But where a farm is involved and no evidence is introduced by either party, it may be assumed the “highest and best use” of the farm is that of farming and that its highest value is as a single unit.

In the present case, all the improvements being on the small tract north of the new highway, including the dairy barn, we can readily understand the inconvenience of operating the farm as a unit after severance. The small tract complements the large one by providing the improvements, while the large traet adds to the usefulness and value of the small one by contributing pasturage and productivity. An identical factual situation is discussed in Commonwealth, Department of Highways v. Arnett, Ky., 401 S.W.2d 762 (decided October 15, 1965), wherein this court said:

“While the landowners’ witnesses did not specifically compare unit value with separate-parcel value, a proper inference from their testimony is that the land remaining after the taking would have its best use and value as a single farm. Their testimony was certainly not incompetent because based upon this unit value. It may be observed that the Commonwealth in this case, as in others we have considered recently, failed to cross-examine the landowners’ witnesses concerning possible separate-parcel valuations, and it did not show by its own witnesses that such valuations would aggregate more than the unit valuation which took cognizance of cross-over difficulties. In the absence of some contrary evidence on this question, it may be assumed that a witness, basing his opinion upon the single-unit theory, is in effect testifying that such criterion is the best guide to the highest after value of the segregated lands.”

It is concluded the verdict and judgment are not excessive.

To the extent that this opinion is in conflict with our opinion in Commonwealth, Department of Highways v. Burns, Ky., 394 S.W.2d 923, we herewith modify the Burns opinion.

Appellant next contends the evidence of appellees’ witness John E. Bird-whistell should have been stricken because he took into account “loss of income” in violation of the rule in City of Newport Municipal Housing Commission v. Turner Advertising, Ky., 334 S.W.2d 767. The witness was re-examined on this question and attempted to “take back” all he had said about “loss of income.” There was no objection or motion to strike this testimony after his correction. Appellant will not be heard to object under these circumstances.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    E. C. KLINGENFUS et al., Appellants, v. Willa Bell DUNAWAY, Administratrix of Estate of Jackie Dunaway, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1966.

      Henry V. B. Denzer, Hogan, Taylor, Denzer & Bennett, Louisville, Thomas F. Manby, LaGrange, for appellants.
    M. L. Perkinson, James A. Hall, La-Grange, for appellee.
   CULLEN, Commissioner.

Jackie Dunaway, a boy just under the age of 15, was employed by the appellants, E. C. Klingenfus and his son Morgan, as a part-time farm worker for the summer of 1963. On a day in July he was directed to drive a “tricycle-type” farm tractor (one with its two front wheels close together) to the farm of a neighbor about three miles from the Klingenfus farm on a gravel-surfaced road. Some time after Jackie had departed on this mission Morgan Klingenfus set out along the same road, in a truck, to go to the neighbor’s farm. Along the road he came upon the tractor, upside down on the edge of the road, with Jackie’s dead body beneath it.

Jackie’s administrator sued the Klingen-fuses for damages for wrongful death, claiming (1) that the defendants were negligent in allowing the boy to drive the tractor without sufficient experience and instruction to be able to handle properly a tractor of this type, and (2) that the front steering mechanism of the tractor was in defective condition. The jury awarded damages of $20,000 and judgment was entered accordingly. Appealing, the Kling-enfuses maintain among other things that their motions for a directed- verdict and for judgment n. o. v. should have been sustained because of insufficiency of proof that the accident was caused by their alleged negligence. We agree.

No one witnessed the accident. The rear of the tractor (upside down) was in a ditch along the right-hand side of the road in the boy’s direction of travel. The front protruded into the road a few feet. The ditch, some 12 inches in depth and concealed by weeds, extended along the right-hand side of the road for a considerable distance. There was evidence that the right rear wheel of the tractor had slid into the ditch at a point 46 feet from the place where the tractor overturned, and that the wheel had run along in the ditch for that distance. There were some “wobbly” marks in the surface of the gravel road, extending a number of feet back from the point where the tractor came to rest. These might have been made by the front wheels of the tractor and if so they would indicate an erratic turning movement of the front wheels.

The appellee argues that the “wobbly” marks justify an inference that the tractor went out of control by reason of the claimed defect in the steering mechanism. We think the marks are no more indicative of a cause of the tractor’s going out of control than of a result of a loss of control from some other cause.

The appellee further argues that there is a reasonable inference that after the right rear wheel slid into the ditch the boy undertook to get the tractor back on the road and by reason of his inexperience, or the claimed defect in the steering mechanism, or a combination of the two, the tractor overturned. We can agree that the foregoing is a reasonable possibility but we do not think there is basis for an inference that the accident probably so happened, to the exclusion of other reasonable possibilities. We think there is an equal probability, for example, that when the right rear wheel went into the ditch the tractor tipped to the point of being uncontrollable so that an overturning was practically inevitable.

Had there been strong evidence that the tractor was defective or that the boy was substantially lacking in the experience and training required to operate this particular type of tractor, there would be more force in the argument that the probable cause of the accident was those deficiencies. But the evidence of the deficiencies was weak. As concerns the alleged defect in the steering mechanism there was only the fact that an invoice for some bearings purchased by the Kling-enfuses the day before the accident bore a part number indicating that the bearings were for a tractor of the model involved in the accident. (There was testimony from a number of witnesses, including the dealer from whom the bearings were purchased, that the bearings were for a different kind of tractor and that the part number on the invoice was erroneous.) Even if the invoice be accepted as evidence that new bearings had been purchased for the tractor involved in the accident, this would do no more than raise a weak inference that the tractor so needed the new bearings as to be in a materially unsafe condition without them. What the appellee asks is that an inference be drawn that new bearings were ordered for this tractor; that another inference be drawn, upon the first one, that the tractor without the new bearings was unsafe; and that a third inference then be drawn that the accident happened by reason of the previously inferred defective condition of the tractor. Such a pyramiding of inferences is not allowable. LeSage v. Pitts, 311 Ky. 155, 223 S.W.2d 347; 31A C.J.S. Evidence § 116, pp. 205, 206, 207.

As concerns the claimed inexperience of the boy there was evidence that he had operated this type of tractor only on limited occasions over a three-week period immediately preceding the accident; testimony that the tricycle-type tractor is more easily overturned than the more common four-wheeled type; and testimony (perhaps not competent) that a tricycle-type tractor is “not a safe appliance for a 14-year-old boy to drive on a gravel road with no attachments attached to the rear end.” As against this there was evidence that the boy had done some operating of tractors since he was 12 years of age; that he had operated the kind of tractor involved in the accident on a number of occasions, in differing kinds of work, during the three weeks preceding the accident, without incident, and.on at least one occasion had driven the tractor on a paved highway. There was no evidence to show in what respects he lacked necessary instructions, training or experience. The testimony that such a tractor was not safe for a 14-year-old boy on a highway, when considered in the light of common knowledge that such tractors are operated on the highways frequently by adults, without trouble, indicates little more than that 14-year-olds tend to lack proper restraint, which in turn suggests that if there is an accident it is due to the boy’s carelessness or violation of instructions rather than his lack of ability to handle the tractor properly. Cf. Wright v. O’Neill, Ky., 320 S.W.2d 606. We think the evidence of the boy’s lack of experience and training was not of such strength as to raise to a probability the mere possibility suggested by the conditions at the scene of the accident that the accident was caused by the boy’s inexperience.

It is our conclusion that this case falls in the class of those where the evidence presents no more than a possibility or a basis for conjecture that the accident was caused by the defendant’s negligence; where the evidence is equally consistent with causation from some other source. See Caplinger v. Werner, Ky., 311 S.W.2d 201; Hatcher v. Mullins, Ky., 296 S.W.2d 456; Shephard v. Great Atlantic & Pacific Tea Co., 305 Ky. 799, 205 S.W.2d 687. Accordingly, the trial court should have sustained the defendant’s motions for a directed verdict and for judgment n. o. v.

The judgment is reversed with directions to enter judgment for the defendants.


text:
    John Thomas COOK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1966.
    John Thomas Cook, pro se.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Judge.

The appellant, John Thomas Cook, was convicted of armed robbery and of willful murder. He is serving a life sentence on each conviction. His appeal is from an order of the Pike Circuit Court overruling a motion under RCr 11.42 to vacate judgment on each sentence.

Appellant based his motion on certain alleged errors, but failed to state facts in support thereof. We said in Jennings v. Commonwealth, Ky., 380 S.W.2d 284 (1964), that a motion for relief under RCr 11.42 must state facts in support of the allegations contained therein.

Appellant’s motion was insufficient on its face to justify a hearing.

The order overruling the motion is affirmed.


text:
    BELKNAP HARDWARE & MANUFACTURING COMPANY, Appellant, v. Raymond C. BROWN etc., Appellees.
    Court of Appeals of Kentucky.
    May 13, 1966.
    Wilton R. Long, Jr., Hamilton, Hopson & Hamilton, Louisville, for appellant.
    John E. Wise, Louisville, Paul D. Rehm, Versailles, Robert Matthews, Atty. Gen., for appellees.
   HILL, Judge.

Belknap appeals from a judgment of the Jefferson Circuit Court setting aside the final order of the Workmen’s Compensation Board denying benefits to appellee Raymond C. Brown.

At the outset, it should be pointed out that the scope of review by the circuit court of an award of the Workmen’s Compensation Board is limited by KRS 342.285(3), which provides:

“The court shall not substitute its judgment for that of the Board as to the weight of evidence on questions of fact, its review being limited to determining whether or not: * * * (d) The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record * *

By KRS 342.290, the scope of review in this court is thus limited:

“The scope of review by the Court of Appeals shall include all matters subject to review by the circuit court and also errors of law arising in the circuit court and upon appeal made reviewable by the Rules of Civil Procedure where not in conflict with this chapter.”

This court has consistently respected the legislative limitations on the power of review of final orders of the Workmen’s Compensation Board on disputed questions of fact. Cf. Frennie May Coal Co. v. Snow, 312 Ky. 580, 229 S.W.2d 56. It may be well to note here that KRS 342.285 was amended in 1964 as quoted above. Before the amendment, the power of review was limited by the Act of 1960 to determining whether “such findings of fact support the order, decision or award.” We are not convinced that the 1964 amendment materially enlarged the scope of review authorized by the Act of 1960. In limiting review under the “clearly erroneous” test, the 1964 amendment simply states the award will not be disturbed by the courts if it is not clearly erroneous and is based on “reliable, probative and material evidence.”

With the ground rules in mind, we turn to the evidence to determine whether the order of the board denying compensation to appellee was “clearly erroneous.” Ap-pellee contends he received a back injury August 27, 1962, in an attempt to prevent a hoist weighing 300- pounds from falling while repairing the roof of one of appellant’s warehouses. Appellee stated four fellow-employees were present at the time of the injury, none of whom were called as witnesses for either party. This may be unimportant in the light of the Board’s order finding that appellee “on said date * * * was involved in- an accident.”

The first physicians consulted by ap-pellee were Drs. Davis and Southard a month after the injury. Neither doctor testified in this case. Eight months after the injury, he consulted Dr. Wedekemper, who did not testify. Appellee was transferred to another job after complaining, but it is doubtful the work was much lighter in the job to which he was transferred. In describing the work in the new department after transfer, he said: “Well, it varies, repairing warehouse trucks, sweeping the floor, changing oil in the cars or putting in spark plugs. Part of it is mechanical work and part of it is general labor.”

Dr. Benjamin Jackson, a general surgeon who examined appellee in June 1963, testified appellee had “nothing objective to substantiate that he had a strain of the back.”

Dr. H. Lester Reed, a neurosurgeon who treated appellee over a seven-month period commencing in June 1963, testified appellee has no permanent or “long range” occupational disability and as of January 24, 1964, had no “abnormalities” and was physically able to do heavy work.

Dr. W. McDaniel Ewing, an orthopedic surgeon, examined appellee in April 1964. He testified appellee could “probably do work as a carpenter or maintenance man” after six or eight weeks of additional therapy.

The only physicians who testified for ap-pellee in chief were Dr. Earl Eversole, an elderly abdominal surgeon, and Dr. George Nichols, a “family doctor” and general practitioner, both of whom saw appellee for the first time in December 1963 at the request of an attorney. Dr. Nichols testified appellee suffered a chronic low-back syndrome with a chronic lumbosacral and left sacroiliac strain, with a disability of SO percent for light work and 100 percent for heavy work.

Dr. Gordon Smiley, called by ap-pellee as a witness in rebuttal, described in detail the great pain suffered by appellee and concluded “all of these findings are consistent with irritation of lower lumbar nerve root which in the vast majority of cases would be caused by a lower lumbar disc protrusion.” Appellant objected to the evidence of Dr. Smiley, but it is unnecessary to discuss this claimed error as we find there was abundant evidence to support the Board’s order and that the order is not “clearly” or at all “erroneous.”

It is insisted by appellee that the “board was bound to find a minimum of 15 percent permanent partial disability to the body as a whole,” pursuant to the findings of the independent physician appointed under KRS 342.121. It is true Dr. Ludwig Segerberg was appointed pursuant to KRS 342.121, but we fail to find any support in this record for making the Subsequent Injury Fund a party in this proceeding. None of the conditions required by KRS 342.121 is present in the instant case. This being so, it well may be said the appointment of Dr. Segerberg was valid under KRS 342.-315, under which statute the Board has a wide discretion in accepting or rejecting the medical report. But it is unnecessary for us to treat the doctor’s report as having been filed under KRS 342.315 inasmuch as 342.121 provides:

“ * * * no such findings of the physician shall be subject to review unless specific objections thereto shall be filed with the board by a party in interest within the time limited in which to apply for review of such report.” (ten days) (Emphasis added.)

In the case at bar, appellee filed timely exceptions to the report of Dr. Segerberg, although appellant filed no exceptions thereto. The identical question with which we are concerned here was laid to rest in Kerns Bakery v. Hodges, Ky., 377 S.W.2d 88, 90, from which we quote:

“The statute unquestionably confers upon the Board-appointed physician the authority to initially decide any medical questions at issue. The fact that this function was previously performed by the Board is irrelevant because the Legislature may at any time change the procedure for administering the Compensation Act. General Refractories Co. v. Henderson, 313 Ky. 613, 232 S.W.2d 846. While the statute does permit the Board-appointed physician wide latitude in conducting his medical investigation this fact does not render the statute invalid. As we interpret this statute, if there are no exceptions timely filed to the Board-appointed physician’s report it is presumed that the parties accept the report which thereupon becomes conclusive of the medical questions involved. If exceptions are timely made the Board may modify or set aside the report under which circumstance it becomes analogous to a recommendation of the Board’s referee and is not controlling on the Board.”

We conclude the report of Dr. Segerberg was advisory and the Board had a right to give it such weight as, in the exercise of a reasonable discretion, it saw fit.

The judgment is reversed with direction to enter another dismissing the petition for review and approving the order of the Workmen’s Compensation Board.


author: • CLAY, Commissioner.

text:
    Bruce KING et al., Appellants, v. HOLLY OIL & GAS CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    April 13, 1966.
    Daniel Brock, Brock & Brock, Lexington, for appellants.
    Rose & Short, Beattyville, for appellee.
   • CLAY, Commissioner.

This suit was brought by appellants to recover damages for appellee’s breach of contract in failing to develop production under ten oil and gas leases on land located in Lee County. It was tried without a jury and, while the trial court found a breach of contract, it awarded appellants only nominal damages. Appellants contend they were entitled to substantial damages and by cross-appeal appellee contends there was no breach of contract.

In May 1957, appellants assigned to Dear-born Oil and Gas Corporation a working interest in the leases. On December 30, 1957, appellants and Dearborn executed the contract which is the basis of this lawsuit. Under that agreement Dearborn covenanted to develop a pilot water-flood project to increase production under these leases. The basic time limit for performance was two years, but this was subject to two qualifications :

(1) If operations had not been commenced “upon the expiration of said two (2) year period” (or as otherwise extended), appellants could make written demand that the operations “be commenced forthwith” and Dearborn was given nine months thereafter to comply before appellants could require a reassignment of the leasehold estates.

(2) It appearing that there were serious title difficulties, the time limit would be suspended for the period necessary to clear the titles, which Dearborn agreed to use diligence to accomplish.

Approximately eight months later Dear-born assigned its interest in the leasehold estates to the appellee. Neither Dearborn nor appellee took any steps at any time to clear up the title difficulties (which the parties agreed existed) or to commence any water-flooding operations. It may be noted here that the rental payments provided in the leases were not paid and at some unspecified time, according to appellants’ brief, the leases expired.

We will first take up the question of breach of contract. Appellee contends that if the contract was breached, its assignor Dearborn was the guilty party. We cannot understand this argument in view of the fact that the assignment from Dear-born to appellee, executed eight months after the December 30, 1957 agreement, recited that it was “expressly subject to the terms, provisions and conditions” of such agreement. In acquiring the rights under that agreement, appellee clearly assumed the obligations thereunder. Since it is undenied that appellee failed to perform in any respect, the trial court correctly found a breach of contract.

The other question in the case is whether appellants were entitled to substantial damages. They rely on Carroll Gas & Oil Co. v. Skaggs, 231 Ky. 284, 21 S.W.2d 445; Midland Gas Corporation v. Reffitt, 286 Ky. 11, 149 S.W.2d 537; and North Star Company v. Howard, Ky., 341 S.W.2d 251. Appellants candidly recognize they were faced with serious problems in attempting to prove damages.

The first difficulty, which neither the parties nor the court alluded to but which has a bearing on the court’s conclusion that damages were speculative, is that it is impossible to determine from this record just when the contract was breached. As before mentioned, the December 30 agreement contemplated two automatic time extensions beyond the two-year period. One was the time necessary to clear titles, and the other was the extension of an additional nine months after written notice. A reasonable time within which these titles should have been cleared is not established by appellants. Actually this was not accomplished until February 1962, more than four years after the December 30 agreement. On the other hand, the fact is that appellants did not give any written notice to commence operations forthwith after the expiration of the two-year period, so it is arguable the time had been extended indefinitely.

With these difficulties in view, the time as of which this contract was breached was not proven. Such being the case, the evidence of prospective production, after the breach, becomes highly speculative. That was the finding of the trial court.

Appellants introduced several witnesses who undertook to estimate the possible production under these leases by water-flooding methods. They based their opinions upon such things as “core analysis”, one of which was made as far back as 1954, and other factors. Estimates ranged from 4,000 to 8,000 barrels per acre (apparently over a ten-year period). The highly speculative character of this testimony is apparent when we consider that the success of a water-flooding process itself is questionable. The wording of the agreement in describing the process as a “pilot” one, characterized it as experimental. One of appellants’ own witnesses, who had subsequently purchased the leases here involved, testified: “All I can say is that I hope it will water-flood, I can’t say it will”. While some witnesses testified they thought water-flooding of this land would be successful, other evidence indicated the many risks and uncertainties involved.

The speculative character of the water-flooding method in this area simply compounds the speculative nature of production estimates. In the cases cited by appellants we find such things as a previously mined coal deposit or a producing well. There was some degree of certainty as to what reasonably might be expected in the way of future production by the continuation of the same extraction process. Here we are unable to base estimates on past production (without water-flooding) and we have a change in the extraction process.

Appellants are critical of the court’s opinion because the trial judge apparently drew on his personal knowledge of conditions in the Lee County oil fields. Assuming this criticism might to some extent be justified, we are of the opinion that the evidence in this case fails to show with reasonable certainty any basis upon which a recovery of substantial damages could be based. When we consider the fact that the time of the breach of contract was not established, the changing conditions, the experimental nature of the water-flooding process, and the character of the opinion testimony, it is evident to us that the claim for substantial damages rests upon pure speculation.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. C. A. HOWARD et al., Appellees.
    Court of Appeals of Kentucky.
    May 13, 1966.
    Robert Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Deddo G. Lynn, Lexington, for appellant.
    Paul D. Rehm, Versailles, for appellees.
   MILLIKEN, Judge.

This is an appeal from a judgment of the Woodford Circuit Court dismissing the Department of Highway’s appeal from a judgment of the Woodford County Court approving a commissioners’ appraisal of $13,320 for portions of three parcels of land condemned for the construction of the Bluegrass Parkway.

The Department’s notice of appeal of the County Court judgment to the Circuit Court stated that the judgment was rendered on June 22, 1964, and, since the Department’s notice of appeal was not filed until July 27, 1964, more than thirty days after the alleged date of the County Court judgment, the Circuit Court dismissed the appeal on November 7, 1964, upon motion of the ap-pellees which motion had been filed on September 30, 1964.

Actually, the typed judgment was dated June 22, 1964, but was not entered in the signed Order Book in the County Court until July 24, 1964, but this fact was not reflected at all in the record of appeal in the Circuit Court, and, consequently, the Circuit Court took the Department at its word that the County Court judgment was effective June 22, 1964. Since the Department’s notice of appeal was dated July 27, 1964, it is obvious that the thirty-day period for filing an appeal had been exceeded, so the appeal was dismissed. A judgment does not become effective when it is signed, but when it is entered in the signed Order Book of the Court, Commonwealth, Department of Highways v. Daly (1964), Ky., 374 S.W.2d 497, and the Department (in the case at bar) did not move to correct the record in the Circuit Court.

An attempt was made by the Department to insert the omitted data in the record of appeal in this Court (the Court of Appeals), and the appellees’ objection to this course must be sustained, for this Court, in its function as an Appellate Court, is confined to the information in the record in the trial court.

The judgment is affirmed.