author: MONTGOMERY, Judge.

text:
    Arden M. GROOMS, Administrator, etc., Appellant, v. Solomon T. PUCKETT et al., Appellees.
    Court of Appeals of Kentucky.
    June 10, 1966.
    As Modified on Denial of Rehearing Sept. 30, 1966.

      Robert B. Reed, Holland G. Bryan, Padu-cah, for appellant.
    Henry O. Whitlow, Waller, Threlkeld & Whitlow, Paducah, for appellees.
   MONTGOMERY, Judge.

Appellant Arden M. Grooms, individually and as administrator of the estate of David Farris Grooms, his son, sued Solomon T. Puckett and his son, William Puckett, ap-pellees, to recover damages arising from the death of the younger Grooms by reason of an auto accident. At the close of the evidence introduced by all of the parties, the court peremptorily instructed the jury to find for the appellees. The correctness of this action is challenged on this appeal.

This action resulted from a collision between a motor scooter and an automobile at the intersection of Clark and Adams Streets with Thirty-first Street in Paducah. Thirty-first Street runs north and south. Clark Street intersects from the east. On the opposite side of Thirty-first Street from the intersection of Clark Street, Adams Street intersects and continues to the west. The south line of Clark Street where it intersects Thirty-first Street on the east side thereof is approximately in line with the north line of Adams Street where Adams intersects on the west side of Thirty-first Street, making an offset as one proceeds from Clark to Adams. At the time of the accident the deceased, David Grooms, was traveling on a motor scooter from east to west, crossing this intersection from Clark Street to Adams Street. Because of the offset it was necessary to cross the intersection diagonally. David entered the intersection near the center of Clark Street and was crossing the intersection at a slight angle when his scooter collided with the automobile driven by William Puckett.

Officer Dunlap, who made an investigation of the accident, fixed the point of impact near the center of Thirty-first Street and about in line with the south line of Clark Street and the north line of Adams Street. Dale Hume, an eyewitness, said that Grooms proceeded diagonally from Clark Street across Thirty-first toward Adams Street.

At the time of the accident William Puckett was driving an automobile north on Thirty-first Street. His brother Joe and Ricky Allen were passengers in his car. It had just become dark; the lights of the automobile were on. They were proceeding at a rate of speed of approximately 30-35 m. p. h. As they reached the intersection of Clark Street the car was struck on the right front bumper by the motor scooter operated by David Grooms, who was then 15i/2 years of age. William Puckett and Ricky Allen did not see the motor scooter before the accident but Joe Puckett testified that he saw just a flash of red from the right immediately prior to the impact. The scooter was red. Photographs show a dent on the right front corner of the auto bumper. The marks on the car extended from the dent on the bumper imprinted with red paint to dents in the right fender and right door of the automobile, a broken right portion of the windshield, and to a dent imprinted with red just below the front door.

The witness, Dale Hume, who had been riding a motorcycle with the deceased and who was following the deceased approximately 1/2 block away, testified in detail as to the occurrence of the accident. According to Hume, David Grooms had proceeded to the intersection on his motor scooter at approximately 30-35 m. p. h., and had given no indication that he would stop. This witness noted the car approaching the intersection with its lights burning. He saw the collision. The car was described as operating in a normal manner at a speed of approximately 35 m. p. h.

Dale Hume further testified that it was “dusky-dark” and there was no headlight on the Grooms scooter. The light was not in operating condition.

Thirty-first Street at this intersection was the preferred street. There were regular stop signs at the northeast corner of the intersection controlling traffic entering Thirty-first Street from the east on Clark Street, on which the decedent Grooms was traveling.

The court gave as the basis for the directed verdict that the failure of David Grooms to yield the right of way to the car constituted negligence. Appellant urges that the accident occurred in the decedent’s lane of traffic and that the Puckett car was traveling at an excessive rate of speed. This contention is based on testimony of the appellant and his wife’s relative, Alvin Farris, concerning observations made after the accident. Appellant also contends that the ruling was based on the testimony of Dale Hume and that Hume’s testimony was impeached by three witnesses. Hume testified that the deceased did not stop at the stop sign before entering Thirty-first Street. Appellant Grooms’ daughter, her husband, and a sister of Grooms’ wife testified that Hume told them the next night after the accident that the deceased had stopped in obedience to the sign.

The physical facts (especially the dented right front bumper of the automobile) point conclusively to the truth that the decedent was not traveling southwardly in his own lane of traffic. The evidence does not support any inference other than that the decedent’s failure to yield the right of way was the proximate cause of the accident. KRS 189.330(4) requires that the operator of a vehicle shall stop at the entrance of a through street and “ * * * shall yield the right of way to other vehicles which have entered the intersection from the through highway or which are approaching so closely on the highway as to constitute an immediate hazard.” In these circumstances the alleged excessive speed of the car and its being somewhat to the left of the center may not be regarded as proximate causes of the accident.

There is no question that the Puckett car was either in the intersection or so close as to constitute an immediate hazard. The testimony of Dale Hume on this point described the approach of the Puckett car as follows: “I was behind him (Grooms), I had to turn around after he left, I got down there about half way between the railroad track and the road, and I saw this car coming, I could see the headlights on it and the top of the car, * *

The failure of the deceased to yield the right of way is described thus: “ * * * he was getting real close to the intersection and had not slowed down or anything, I didn’t think he was going to stop, I started to stand up on the cycle and holler at him, his scooter was making a lot of noise, he couldn’t hear, I was afraid he would look back and not pay attention to what he was doing, he might dodge it. He went out in the road, and the car came on down, and it seemed to me like just before the impact I could see him on the scooter in the headlights, just a little bit. At first I thought he made it across, you can’t really judge distance from behind at that angle, but he sort of — just a split second before — kind of swerved a little bit, the car hit him, I could not say exactly how it hit him, I heard the noise, could see it, but could not figure out exactly how it happened, I heard the noise of the scooter, saw the scooter sliding in the road, and the car pulled off over to the left and stopped, and I could see — I saw David sliding across the road.”

Thus, the evidence shows that the deceased should have seen the approach of the Puckett car, and he entered the intersection in complete disregard of his duty to yield the right of way to the oncoming car which obviously was either at or in the intersection. The failure to see the approaching car was negligence. Brumbach v. Day, Ky., 260 S.W.2d 939; Roberts v. Rogers, Ky., 265 S.W.2d 448; Couch v. Hensley, Ky., 305 S.W.2d 765. In Freeland v. Todd, Ky., 379 S.W.2d 723, the evidence was in dispute whether, the driver on the inferior street stopped. He then drove into the path of the approaching car on the favored street with a collision resulting. It was held that under the evidence the car approaching on the favored street was in such position as to constitute an immediate hazard within the meaning of the statute, although the contention was made that the approaching car was speeding. The same decision was reached in Seamon v. Bolton, Ky., 351 S.W.2d 51. In such cases, as here, the failure to yield the right of way constitutes such negligence as will bar recovery. The trial court correctly directed a verdict for ap-pellees. The cases cited by appellant are considered inapplicable.

It is unnecessary to consider other contentions raised and the motion to correct the record.

Judgment affirmed.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    LONE STAR PRODUCING COMPANY et al., Appellants, v. Jimmy BIRD et al., Appellees.
    No. 225.
    Court of Civil Appeals of Texas. Tyler.
    July 21, 1966.
    Rehearing Denied Sept. 22, 1966.

      Shank, Irwin & Conant, Ivan Irwin, Jr., and Ralph B. Shank, Dallas, for appellant Caroline Hunt Trust Estate.
    Jackson, Walker, Winstead, Cantwell & Miller, Conan Cantwell and D. L. Case, Dallas, for appellants Lone Star Producing Co. and others.
    Stayton & Black, John W. Stayton, Austin, Swaim & Swaim, E. H. Swaim, Eden, B. R. Reeves, John B. McDonald, Palestine, for appellees.
   MOORE, Justice.

This is a venue case. Appellees, Jimmy Bird, Mary K. Beach and Emsy Lorinne Lang, instituted this suit in the 87th Judicial District Court of Anderson County, Texas, against a number of defendants, including the appellants, Lone Star Producing Company, Caroline Hunt Trust Estate and Edmund C. McCallum, residents of Dallas County, Texas, and Republic National Bank, also a resident of Dallas County, Texas. Appellees sought to cancel certain written instruments describing certain tracts of land in Anderson County, Texas, on the ground of the alleged mental incapacity of Cora E. Strong, deceased, from whom appellees derive their claims. Ap-pellees alleged that they were heirs at law of Cora E. Strong, deceased; that she executed a will in which they were disinherited and left nothing; that subsequent thereto, judgment was entered in the District Court of Anderson County, setting aside said will because of a lack of testamentary capacity of the testatrix; and that in the judgment setting aside said will, it was decreed that appellees, “Jimmy Bird and Mary K. Beach are each entitled to an undivided ¾6& interest in the estate of Cora E. Strong,” and that appellee “Emsy Lorinne Lang is entitled to an undivided 1/8th interest therein.” Appellees further alleged that prior to her death, Cora E. Strong executed certain oil and gas leases and other instruments upon certain described tracts of land situated in Anderson County and that they were “entitled to have such instruments cancelled and held for naught insofar as they may purport to affect any of the interest of the appellees in the described real property owned by Cora E. Strong at the time of her death.” The prayer was for cancellation of each of the written instruments, insofar as they purportedly affected the interest of the appel-lees in the described real property owned by Cora E. Strong at the time of her death; for an accounting of any oil, gas or other minerals which had been produced from the lands and for damages and general relief.

The appellants timely filed their respective Pleas of Privilege to be sued in Dallas County, Texas. Appellees replied with a Controverting Plea alleging that venue was properly laid in Anderson County, Texas, under Subsection 14 of Article 1995, Vernon’s Ann.Tex.Civ.St.

The venue hearing was held before the court without a jury, and resulted in an order overruling appellants’ Pleas of Privilege. Appellants, Lone Star Producing Company, Caroline Hunt Trust Estate and Edmund C. McCallum, have perfected their appeal from the order overruling their Plea of Privilege asserting that the cause of action pleaded by appellees was not one for the recovery of lands, but instead was a proceeding in equity to, cancel the written instruments and therefore did not fall within Subsection 14 of Article 1995, supra. Republic National Bank joins in this contention and in addition, further asserts that insofar as the Bank is concerned, this suit is not one which could be properly maintained against it in Anderson County, Texas, because of the provisions of U.S.Rev. Stat., 5198, (1878) 12 U.S.C.A. § 94, providing that:

“Action and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

It was stipulated at the venue hearing that the written instruments which appel-lees seek to cancel described tracts of land situated in Anderson County, Texas. Consequently, the only remaining venue fact is the “nature” of appellees’ suit as determined by the allegations of the petition. The primary inquiry thus becomes a question of whether the cause of action brought by the heirs of the grantor, seeking to cancel a written instrument conveying title to land solely on the ground of alleged insanity of a grantor not previously adjudged insane, is an action for the recovery of land and falls within Subsection 14, supra, or whether such is a mere equitable right transitory in nature and subject to transfer to the residence of appellants.

Article 1995, supra, provides that no person shall be sued out of the county of his domicile unless the suit falls under one of the enumerated exceptions, one of which is Subsection 14 thereof which reads as follows :

“14. Lands. — Suits for the recovery of land or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

According to the well settled rule, the nature of appellees’ claim for the purpose of establishing venue is to be determined by an examination of the pleadings. Cox v. Palacios, (Tex.Civ.App.) 188 S.W.2d 688; Butler v. Lopez, (Tex.Civ.App.) 367 S.W.2d 868, err. dism.

Appellants insist that appellees’ suit does not meet the requirements of Subsection 14 for two reasons. First, they contend that since the written instruments involving the land are only voidable, and not void, appel-lees had no present vested property right in the land, thus suit is not for the recovery of a property right and therefore does not fall within Subsection 14. Secondly, they contend that appellees’ pleadings do not assert a claim of ownership in the property and therefore since they lay no claim to title, their suit amounts to no more than an equitable right or mere cause of action to set aside the voidable instruments, which cannot ripen into an interest in the land until a judgment has been obtained cancelling such instruments. They therefore conclude that the suit cannot be construed as one for the recovery of land or to remove an incumbrance or cloud on their title. We are not in accord with this contention.

We think the trial court properly construed appellees’ suit to be one which directly involves title to land situated in Anderson County, Texas. As we interpret appellees’ pleadings, the real and ultimate purpose of the suit was for the recovery of the land. Our summary of appellees’ pleadings and prayer, which we have set out above, is sufficient, we think, to demonstrate this fact. They assert present ownership, inferentially at least, by alleging that at the time Cora E. Strong executed the instruments affecting title, she lacked mental capacity; that they were heirs of the grantor and that she died intestate. It is apparent to us that the real purpose of the suit was to remove the legal impediment upon lands claimed by them as a result of their heirship, as well as for compensation for damages thereto by reason of the extraction of any oil therefrom by appellants, and that the action to cancel the deed was a mere incident to the main purpose of the suit. Norvell v. Stovall, (Tex.Civ.App.) 95 S.W.2d 1313.

Thus, if upon a final hearing appellees are successful in proving the allegations of their petition and show that they are heirs of Cora E. Strong; that she died intestate, as alleged; and further show that at the time she executed the instruments in question she was of unsound mind, the proper decree would be one cancelling the instruments. As a result, appellees’ title to the land, as heirs of Cora E. Strong, would be cleared of the incumbrance or cloud cast upon it by the void instruments. Jones v. Ford, (Tex.Civ.App.) 118 S.W.2d 333; Galindo v. Garcia, (Tex.Civ.App.) 222 S.W.2d 477; Hinojosa v. Hinojosa, (Tex.Civ.App.) 294 S.W.2d 910.

As said by our Supreme Court in the early case of Thomson v. Locke, 66 Tex. 383, 1 S.W. 112, 114, with reference to Subsection 14, “The evident intention was to provide the venue in all actions in which the title to land was in controversy.”

According to more recent authority in venue cases, the rule is that if the suit is founded upon any equitable title or right and requiring for its effectuation the removal of a legal impediment to the plaintiffs’ land, it is governed by Subsection 14 of the venue statute and must be brought in the county where the land is situated. McDonald, Texas Civil Practice Vol. 1, (1965) Sec. 4.22.5, page 495, citing cases.

Upon the basis of the above cited authorities, we hold that a suit by a grantor or those holding under him seeking to set aside and cancel an instrument conveying an interest in the title to land because of a lack of mental capacity, is properly regarded as a suit to remove an incumbrance or cloud upon the title to land and is within the purview of Subsection 14 of Article 1995.

If we are correct in this conclusion, then the provisions of the Federal statute urged by appellant, Republic National Bank, would not control.

The provisions of the statute relied upon by the bank was before the U. S. Supreme Court in Casey v. Adams, 102 U.S. 66, 26 L.Ed. 52. As we interpret the language of that opinion, the court there construed the statute to be applicable to transitory actions only and not to such actions as are by law local in their character and in the nature of suits in rem. Since we have heretofore reached the conclusion that appellees’ cause of action involves title to land lying in Anderson County, Texas, it is local in character and in the nature of a suit in rem, and therefore the statute relied upon by appellant, Republic National Bank, obviously has no application.

The order appealed from is affirmed.


author: CADENA, Justice.

text:
    Olga Maxine MORGAN, Appellant, v. John E. MORGAN, Appellee.
    No. 14501.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 7, 1966.

      Lloyd, Lloyd, Dean & Ellzey, Alice, for appellant.

      Perkins, Floyd, Davis & Oden, Alice, for appellee.
   CADENA, Justice.

Defendant, Olga Maxine Morgan, appeals from a judgment rendered against her and in favor of her former husband, plaintiff, John E. Morgan, in the amount of $2,474.54, including $500.00 for attorney’s fees. The trial below was without a jury.

After living together as man and wife for about eleven years, the parties permanently separated in 1954. On February 26, 1958, they entered into a separation agreement which provided for the division of the community property. Under the provisions of this agreement, a farm in Jim Wells County was set aside to defendant. Defendant assumed payment of all taxes on the farm, as well as payments due thereon to the Federal Land Bank. Defendant agreed to pay plaintiff $2,000.00 upon sale by her of the farm, or within five years after February 26, 1958. Plaintiff agreed, if requested to do so by defendant, to make the payments to the Federal Land Bank. The agreement provided that if plaintiff made such payments he would be reimbursed, with interest at the rate of 5%, at the time of the payment of the $2,000.00 mentioned above.

The parties were divorced on July 18, 1958. The court approved the separation agreement, and it was made part of the decree of divorce.

On December 1, 1965, plaintiff filed this action to recover amounts he claimed were owed him by defendant, in the principal sum of $4,948.03. Defendant, in addition to a general denial, pleaded the two and four-year statute of limitations.

The trial court found that, in addition to the $2,000.00 from the sale of the farm on March 8, 1962, defendant had become indebted to plaintiff in the following sums, representing payments made by plaintiff on behalf of defendant pursuant to her request and her agreement to reimburse him: $1,-200.53 paid by plaintiff to the Federal Land Bank in conformity with the separation agreement; $396.85 paid by plaintiff to various taxing agencies in satisfaction of taxes levied on the farm; $780.65 in discharge of a note evidencing money borrowed by defendant from the Alice National Bank; and $475.00 paid by plaintiff for repair of a well on the farm which had been set aside to defendant. In addition, the court found that defendant owed plaintiff $95.00 for repairs which plaintiff had made to defendant’s automobile.

The court further found that defendant had paid plaintiff $3,500.00 as follows : $2,000.00 on April 11, 1962; $750.00 on May 9, 1963, and $750.00 on April 10, 1964. After deducting these payments, the court found that defendant still owed plaintiff $1,-974.54, “which amount includes no interest other than 5% simple interest on Federal Farm Loan and tax payments from dates of payments to May 9, 1963, and on balance of account thereafter to judgment, also at 5%.”

In her brief, defendant attacks only those portions of the judgment allowing plaintiff recovery for car repairs ($95.00), payment of the bank loan ($780.35), payment for repairs to the water well ($475.00), and attorney’s fees ($500.00). The evidence concerning the first three items is in sharp dispute, but plaintiff’s testimony is sufficient to support the court’s findings to the effect that he repaired the automobile at defendant’s request, and that she requested that he pay the indebtedness to the bank and the bill for repair of the well, promising to reimburse him.

Plaintiff testified as follows: At about the time the farm was sold in March, 1962, he presented to defendant a statement of all amounts which he claimed were due him. On April 11, 1962, about a month after the sale of the farm, when defendant gave him a check for $2,000.00, he gave her, at her demand, the note, marked “paid,” which evidenced her indebtedness to the bank. At the same time, defendant promised to pay the remainder of the indebtedness the following year, when she would receive an annual payment from the purchaser of the farm. On May 9, 1963, when defendant paid plaintiff $750.00, she again promised that she would pay the remainder of the indebtedness the following year, upon receipt of another annual payment by such purchaser. The same promise was made by defendant on April 10, 1964, in connection with the payment of $750.00 by defendant to plaintiff on that date. Since April 10, 1964, defendant has made no further payments.

Both parties testified that, at the time the above payments were made, nothing was said concerning the items of indebtedness to which they should be applied. Plaintiff testified, in effect, that the payments received from defendant were applied by him first to satisfy his claims which were based on the oral agreements; that is, to the satisfaction of the claims other than those representing the $2,000.00 due him on the sale of the farm, and the $1,200.53 to which he was entitled as reimbursement for the payments he had made on defendant’s behalf to the Federal Land Bank. Both of the latter claims, admitted by defendant to be valid, were based on the provisions of the written separation agreement executed in 1958, and, under the terms of such agreement, neither debt was due until defendant sold the farm on March 8, 1962. In short, plaintiff applied the sums received from defendant first to the satisfaction of the claims which defendant asserts were barred, at the time the suit was filed, by the two-year statute of limitations, applying the excess to satisfaction of the amounts due him, together with interest, under the written instrument.

The general rule is that where a debtor makes payment to his creditor, without specifying the manner in which such payment is to be applied, the creditor may appropriate the payment to any one of the various debts owed him by such debtor. Proctor v. Marshall & James, 18 Tex. 63, no writ; 44 Tex.Jur.2d, Payment, § 40, p. 693. This right of the creditor includes the right to apply an unappropriated payment to satisfaction of a barred debt. 54 C.J.S. Limitations of Actions § 330, p. 436; 37 C.J. Limitations of Actions § 634, p. 1157.

Even if we discredit plaintiff’s testimony as to the manner in which he made application of the payments, we would have merely a situation where neither creditor nor debtor made an appropriation of the payment. In such a situation, where there are various items of indebtedness, the court may apply the unspecified payments to satisfaction of the earliest items of indebtedness. H. Richards Oil Co. v. W. S. Luckie, Inc., Tex.Civ.App., 391 S.W.2d 135, wr. ref. n. r. e.; Anderson-Dunham, Inc. v. Lee Rubber & Tire Corp., Tex.Civ.App., 378 S.W.2d 99, wr. ref. n. r. e.; Hodges v. Price, Tex.Civ.App., 163 S.W.2d 868, wr. ref. The power of the court to appropriate such unspecified payments to the older items of indebtedness is not affected by the fact that one or more of the items is barred by the statute of limitations. Griffith v. Gadberry, Tex.Civ.App., 182 S.W.2d 739, no writ; Rodgers-Wade Furniture Co. v. Wynn, Tex.Civ.App., 156 S.W. 340, no writ; Jarvis v. Matson, 52 Tex.Civ.App. 170, 113 S.W. 326, no writ; Phipps v. Willis, 11 Tex.Civ.App. 186, 32 S.W. 801, wr. ref.

Whether the appropriation of the payments was made by plaintiff or by the court, the result is that the items which defendant claims are barred by limitations have been satisfied. Insofar as the other items exceed the amount remaining after satisfaction of the barred items, such excess-is still owed to plaintiff by defendant.

Defendant next contends that, in any event, the trial court erred in awarding plaintiff recovery of the $475.00 paid for repair of the water well. It is defendant’s-contention that this obligation was incurred during the time that the parties were still married and that, since plaintiff, in the separation agreement, agreed to pay all community debts other than the Federal Land Bank payments, the cost of the well repairs was plaintiff’s debt.

The evidence discloses that defendant was presented with the bill for the well repairs on May 16, 1958, and that she signed the instrument to show that the work had been satisfactorily completed. This was about two and one-half months after the execution of the separation agreement which set aside the farm to defendant. Since defendant does not contend that the property settlement was unfair or inequitable, the result of the agreement was to terminate the community so that, after the execution of the agreement, the farm on which the water well was located was the separate property of defendant. Under these circumstances, the cost of the well repairs was the separate debt of the wife, and plaintiff was not liable therefor. Art. 1985, Vernon’s Ann.Civ.St.

We agree with defendant that the trial court erred in awarding plaintiff $500.-00 as attorney’s fees. It is true that plaintiff’s petition was cast in the form of a suit upon a sworn account, supported by the customary affidavit. However, it is clear that plaintiff’s cause of action cannot be classified as a suit upon a sworn account. In order for a suit to be founded upon a sworn account, as that term is used in Art. 2226, Vernon’s Ann.Civ.St., the account must be based upon a transaction involving a sale on one side and a purchase upon the other, whereby title to personal property passes from one to the other. Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.1962). None of the items constituting plaintiff’s claim satisfies this requirement.

The only item of plaintiff’s claim which is of a nature such as to entitle plaintiff to recovery of attorney’s fees is the one relating to repair of defendant’s automobile. But even though this claim may be for labor done or material furnished, within the meaning of Art. 2226, the appropriation of the payments made by defendant to satisfy this claim precludes plaintiff from relying upon it as a basis for recovery of attorney’s fees.

By way of cross-point, plaintiff complains that the judgment below did not award him all of the interest to which he was entitled. He did not except to the judgment rendered below, nor did he in any other manner call the attention of the trial court to the error of which he now seeks to complain. Under these circumstances, we cannot consider his cross-point relating to the payment of interest. West Texas Utilities Co. v. Irvin, 161 Tex. 5, 336 S.W.2d 609 (1960).

The judgment of the trial court is reformed to provide that plaintiff recover of the defendant the sum of $1,974.54. As so reformed, the judgment of the trial court is affirmed.

The costs accruing in this Court are taxed 80% against defendant, Olga Maxine Morgan, and 20% against plaintiff, Tohn E. Morgan.


author: WERLEIN, Justice.

text:
    Clyde B. KENNELLY, Appellant, v. Josh GATES, Appellee.
    No. 14950.
    Court of Civil Appeals of Texas. Houston.
    Sept. 15, 1966.

      Briscoe, Dally & Shaffer, Frank Briscoe, Carl E. F. Dally, Joe C. Shaffer, Houston, for appellant.
    Wellborn, Britt & Kelly, Charles W. Britt, Alvin, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Josh Gates, against Clyde B. Kennelly, to contest the election of appellant who was certified as the nominee for the position of County Judge of Ft. Bend County, Texas, following the Democratic Primary Run-off election on June 4, 1966. Appellant was certified to have received 3255 votes, and appellee 3245 votes. Both parties in open court joined in a motion asking the trial court to open the ballot boxes and recount and retally the votes. Pursuant to such request the court did in open court have the boxes opened and a recount was made. The court found that appellee had received 3261 votes and that appellant had received 3255 votes. Based upon this finding the court on June 28, 1966 entered judgment for appellee and ordered that his name be properly posted as the nominee of the Democratic Party for the office of County Judge for Ft. Bend County, Texas, and that the county clerk and such other election officials, if any, place his name on the official ballot to be used in the General Election to be held in Ft. Bend County in November, 1966.

In his judgment the court recited that the court heard the pleadings, motions, stipulation and the evidence and argument of counsel and after both sides had rested their case and completed their evidence and argument, found that in the Democratic Primary Run-off election of June 4, 1966, between appellant and appellee for said office of County Judge appellee had a majority to six votes, and therefore he was entitled to be posted and certified by the county clerk and Election Committee and officials of Ft. Bend County, Texas, the official nominee for the office of County Judge of Ft. Bend County, Texas, of the Democratic Party.

In the stipulation referred to in the court’s judgment, also referred to as the joint motion of the parties, appellant and appellee moved the court to open the absentee ballot box and all other ballot boxes of the election precincts of Ft. Bend County, Texas, and recount and retally the votes cast and counted by election officials for the position of County Judge of Ft. Bend County, Texas, in the Second Democratic Primary held June 4, 1966.

In such motion, which was signed by both parties and their attorneys and filed June 28, 1966, at the beginning of the recount in court, the parties represented to the court that while there was no fraud involved there were numerous and sundry technical irregularities which under the provisions of Section (10) of Article 13.30 of the Election Code justified a re-opening of the ballot boxes and a recounting and re-tallying of the votes cast in each of said boxes. It was further recited that an actual trial of all disputed issues in the cause would involve testimony from many Ft. Bend County voters and the opening of the “stub boxes”, and matching the signature stubs to the ballots and exposing for whom the electors voted; that such would cause inconvenience and possible embarrassment to many residents of Ft. Bend County who voted in the election and that “rather than violate the sanctity of the secret vote, and in a spirit of fairness and from an unwillingness to take advantage of technicalities, both parties hereto have agreed and stipulated and do hereby agree and stipulate that they waive all rights to contest the election on any grounds other than that which is specifically agreed to herein.”

The parties then agreed in such motion that all ballots cast and counted for the position of County Judge by the election officials in the Second Democratic Primary be recounted and retallied. It was specifically agreed and understood that the boxes containing “the signature stubs” would not be opened. It was further stipulated :

“(2) No ballot will be rejected and not counted except when the intent of the voter cannot be ascertained from the face of the individual ballot. Both parties further agree that should there be a difference of opinion between them as to whether or not the intent of the voter can be ascertained from the ballot, they will abide by the ruling of the court in that regard.
“(3) It is specifically agreed that no objection will be made by either party to the lack of qualifications or disqualifications of any elector who cast a ballot in said election or to any irregularity in the vote or the casting of any ballot except that appearing from the face of the ballot.”

It was further recited that both parties move the court after the court has retallied and recounted the ballots and votes cast in the June 4, 1966 election for County Judge, to enter judgment on the judgment form attached to the motion for the candidate receiving the majority of the votes.

The judgment of the court was entered on the same day as the hearing without objection or exception by either party, and the same was in accordance with the above mentioned agreement and stipulation of the parties, and their counsel, and constitutes a consent judgment. Thereafter on July IS, 1966 appellant filed what he designated as his motion to set aside and reform the judgment entered by the court, and in the alternative his amended motion for new trial. In such motion appellant alleged that he had discovered new evidence after the recount and tally of the ballots on June 28, 1966. He alleged that a fraud had been perpetrated which would change the result of the election and, among other things, that he would not have agreed to a recount of the ballots if he had known the facts. The nature and character of the newly discovered evidence was set forth in an affidavit of one Pete Humphrey attached to said motion, and the gist of such affidavit is that said affiant was positive that the tally sheet reflected the vote received by appellant as 47 votes and of ap-pellee as 115 votes in the returns of Precinct No. 2, and that the ballots were correctly recorded on the election return signed by the election judge immediately after the polls closed. Affiant also stated that there were either two or three ballots in the box at Precinct No. 2 which were not counted for either candidate because both names had been struck thereon, and that there were from six to ten ballots on which the voters who cast them had made no choice in the race for County Judge.

When the ballot box for the election for Precinct No. 2 was opened during the trial, and the ballots were recounted, it was found that appellant had received 45 votes and appellee 1⅛ votes. It was alleged that the newly discovered evidence would show that the ballots placed in the ballot box for election Precinct No. 2 had been changed and tampered with, and that fraud had been perpetrated after the tally list was completed and after the results of the initial tally were placed upon the returns of the election judge of said precinct, one Willie Melton.

The evidence shows that Willie Melton was the election judge in charge of the ballot box of Precinct No. 2 at Kendleton, Ft. Bend County, Texas, some 15 miles from Richmond, the county seat, and that said Pete Humphrey acted as one of his clerks. Mrs. Vela Brown, Mrs. Selena Collins, and Mrs. Marcy Lee Walker also worked in the election as precinct clerks in Precinct No. 2, but there is nothing in the record to show that any of them gave an affidavit or testified. The motion to set aside the agreement that had been entered into by the parties and the judgment of the court was heard by the court on July 18, 1966, and the same was overruled.

The following occurred at such hearing: The Court stated:

“Gentlemen, I indicated the other day I didn’t think that it would be in order to set aside this stipulation and agreement and waiver, and I think that is a matter of law, so we can proceed, that perhaps is the way you can make that determination. In other words, if you want to offer this as bill of exception to the rule, or any way you like, or any way it is more expeditious to you. If you want to argue further the law, suit your judgment on that.”

Appellant’s counsel then stated: “The court mentions only the agreement. I assume the Court is overruling our motion to set aside the form of the judgment in that regard?” to which the court replied:

“Yes, sir. I feel like, in the first place, these lawsuits were either designed to get the ballots opened or keep them closed. In the beginning, there was resistance to opening the ballots, and I don’t know whether they would have been opened except by agreement, so I feel the agreement is binding, or, in the alternative, a motion for a new trial, assume we would have a new trial, in the ordinary sense that new trials are granted, I think we would still be faced with the stipulation and agreement, and it would result in the same business again.”

Then appellant’s counsel stated: “If that is the Court’s ruling, we would like to proceed under the bill of exception. We would like to call Mrs. Stubblefield.”

Appellant’s counsel called Mrs. Stubble-field and other witnesses, including the said Pete Humphrey, G. D. Birdwell, Berry Branch, Fred Jones, and Clyde Kennelly, and there was a full hearing on the bill of exceptions. Appellant’s counsel did not request, as shown by the record, that the court hear any witnesses on the hearing of the motion to set aside the judgment and for new trial, and did not object or except to the failure of the court to do so. The court’s ruling was that he didn’t think it would be in order to set aside the stipulation and agreement and waiver of counsel, and the judgment that had been entered by the court, which, as stated, was a consent judgment. Although appellant’s counsel did not object or except to such ruling, he did state that if that was the court’s ruling he would like to proceed under a bill of exception. It is clear, therefore, that the bill of exception is directed only to the refusal of the court to set aside the aforesaid agreement entered into by the parties and their attorneys, and the consent judgment which the court had previously entered.

Moreover, appellant’s Points of Error Nos. 1 and 2 are to the effect that the court erred in refusing to grant said motion to reform and render judgment for appellant based upon the evidence of the returns and tally listed, and in the alternative to grant a new trial, after it was shown that the judgment rendered was based upon and supported by evidence showing false and fraudulent votes recorded upon ballots which had been altered after the election and prior to the time they were delivered to the county clerk. There is no assignment of error that the court refused to hear evidence. Both parties in their briefs refer to the evidence adduced by appellant in his bill of exceptions. Appellee does not complain that he was not given an opportunity to rebut such evidence. Even if we consider such evidence, our conclusion is not changed: that the court did not err in refusing to set aside the agreement and judgment aforesaid. Certainly there is no evidence that the agreement was procured by any false or fraudulent representations made by appellee or anyone acting for him, and the judgment itself was entered by the court after the recount and retally had been made on June 28, 1966, and was consented to by both parties.

In Ramsey v. Dunlop, 1947, 46 Tex. 196, 205 S.W.2d 979, it was held that appellate courts may consider fundamental errors although they are not assigned. It would be fundamental error if it appeared from the record that one was declared elected to public office when he had not received a majority or a plurality of the legal votes cast. The Court said in Ramsey v. Dunlop:

“Since the faith of our people stands inalienably pledged to the preservation of a republican form of government, Art. I, Sec. 2, Constitution of Texas, Vernon’s Ann. St., a fundamental idea of which is that no one can be declared elected to public office unless he receives a majority or a plurality of the legal votes cast (29 C.J.S., Elections, § 243), Art. 3032, R.S.1925, must be regarded as declaratory of fundamental public policy in prescribing that the certificate of a candidate’s right to take an office must show that he received the highest number of votes polled for any candidate therefor.”

The question arises as to whether or not the evidence shows that appellee did not receive the majority of votes in the run-off election because the ballots in Box No. 2 were tampered with and changed. It is appellant’s contention that the evidence does show that said ballots were in fact changed in some instances and that the changes and tampering with the ballots in the box in Precinct 2 did in fact change the results of the election and gave to appellee a majority of votes whereas appellant had received a majority of the legal votes cast.

Appellant relies mainly upon the testimony of Pete Humphrey and upon certain facts which appellant asserts show circumstantially that the ballots in the box of Precinct 2 were tampered with and enough of them changed to change the results of the run-off election. The evidence shows that the precinct judge, Melton, called out the votes and that Humphrey tallied most of the votes as the same were called out. Humphrey admitted that during the time he went out to lunch Mrs. Walker tallied about 15 votes. In his affidavit he stated that he tallied all the votes. He testified on the bill of exceptions that there were two or three spoiled ballots since both names were scratched thereon, and that there were six to ten that did not vote for either party. He admitted that he saw only two to three ballots individually and testified with respect to the other ballots: “I am going by the other ballots, which he said there was not a vote for either one.” When shown some eight ballots and asked, “How many ballots of these eight do you find where no vote was cast for either candidate?” he replied, “I don’t see but one.” He also said that the rest of them had each candidate scratched, and that, “As to my knowledge, we didn’t have that many marked through. I only recall two or three.” Although he testified he was certain there were six to ten unmarked ballots in the race for County Judge, he testified that Melton was calling the ballots and told him that there were six to ten not voted for either candidate. He didn’t know whether they counted ballots with stubs on them. He admitted that Melton called out all the names, and finally testified: “I put it like this, I know we had more than one.” The recount showed only one unmarked ballot. Humphrey further testified that Melton said, holding up a ballot, “Look how some people vote.” Apparently this was the only ballot that Melton held up and exhibited. Humphrey’s testimony with respect to what the ballots showed was as he testified, based upon what Melton said, and was hearsay with the/exception of the two or three ballots which he said he saw “individually” and which would not have changed the results of the election.

The record indicates that there were certain irregularities in the election, but they were not confined to Precinct 2. Appellant contends that the circumstances indicate that there was fraud on the part of Melton in that he took the unlocked ballot box of Precinct 2 after the election was over, and that he was later seen that night at the court house where the ballot boxes were to be returned. The only witness who testified with respect to whether or not Melton showed up at the court house the night of the run-off election was Mr. Bird-well, and his testimony was very indefinite. The most he could say was that he believed he saw Melton at the court house before 10 o’clock on the night of the day of the election. Appellant further contends that the ballot box of Precinct 2 was unlocked, and that it and the returns therein were not delivered at the court house but that about midnight or 1 o’clock in the morning Melton turned over the box to the court house janitor at his home and requested that he deliver the same at the court house when he opened up Sunday morning. The evidence shows that most of the election judges would merely telephone in the results of the election on the election night, and that some of them took in the ballot boxes that night. The evidence further shows, however, that all of the boxes were unlocked and locks were not placed thereon until after the boxes were turned over to the county clerk at the court house. It was further shown that it was not unusual for a precinct judge to turn his precinct ballot box over to the janitor and request him to deliver the same and that it had been done before, and further that some of the boxes were not delivered until as late as Tuesday. It was further shown that Melton was supporting appellee in the election and that he was apparently responsible for some marked sample ballots being sent out before the election, indicating that appellee was the one to vote for.

Unquestionably there were irregularities in the election which should not have occurred. Apparently such irregularities are not unprecedented in Ft. Bend County. The recognition that there were such irregularities was probably the reason for the parties and counsel entering into the agreement and stipulation hereinabove referred to, and the procedure with respect to the recount of the ballots. Although the variance between the number of ballots originally certified in Precinct 2 in the County Judge’s election and the number of ballots recounted was larger than in the other ballot boxes, there were variances in some of the other boxes and also in the race for state officers in Precinct 2. We attach little importance to the fact that there were more ballots double struck in Precinct 2 in the hotly contested local race than in the races for Attorney General and State Board of Education, District 9.

The evidence further shows that the court house janitor took the ballot box of Precinct 2, as well as the stub box, to the court house early Sunday morning and deposited the same at or near the county clerk’s office, where the deputy county clerk, Pearl Ellett, found them after she arrived about 9 o’clock Sunday morning, June 5, 1966. She thereupon placed a lock upon the box and deposited it with the other boxes which had also been returned unlocked. There is also testimony by Humphrey to the effect that he was told by Melton that if he was asked anything concerning the ballot box of Precinct 2 to state that he didn’t know anything.

There is evidence showing that there was an opportunity for Melton or perhaps others to open the unlocked ballot box of Precinct 2 as well as the boxes of other precincts, since the same were not locked as they should have been, and that it was therefore, possible for the ballots to be changed in some manner. There is no sufficient evidence of probative force that they were tampered with or changed. It is also possible that there could have been a mistake at the time the ballots were originally called out by Melton and tallied by Humphrey or one of the other clerks. It is a matter of common knowledge that mistakes do occur in the tabulation of ballots, and in the determination of which ballots should be counted. Appellant contends that at least three ballots with stubs attached were counted, one being counted for appellant. The number of ballots with stubs attached that were counted would not, however, in any way change the result of the run-off election.

The irregularities in the election were waived in the agreement, but in any event they were not such as were shown to have affected the results of the election. The law is well settled that irregularities in the conduct of an election which cannot be shown to have materially affected the results of the election are immaterial. Roberts v. Hall, Tex.Civ.App., 167 S.W.2d 621, and authorities there cited; Day v. Crutchfield, Tex.Civ.App., 400 S.W.2d 377; 21 Tex.Jur.2d, p. 448, Elections, § 179.

Appellant places much reliance upon the case of Henderson v. Albright, 1896, 12 Tex.Civ.App. 368, 34 S.W. 992. That case stands for the proposition that in the event of a disagreement between the returns and the ballots, the latter must prevail unless it appears that the ballots have been exposed to the reach of unauthorized persons so as to afford a reasonable probability of having been changed or tampered with. As far as the record shows in the instant case, the ballot box in question was kept by the election judge of Precinct No. 2 until he turned it over to the court house janitor for delivery to the County Clerk. The janitor testified that he did not fool with the box. We cannot say that under the circumstances surrounding the delivery of the box there is a strong or reasonable probability that the ballots were changed or tampered with. The most that can be said — as was stated in Henderson v. Al-bright, supra — is that “there was a possible opportunity for it to be done.” See also Owens v. State, 64 Tex. 500. Since there was no satisfactory proof that the box in question was tampered with, it was proper for the court to determine the number of votes for each party by the number of ballots cast as shown on the recount.

At the conclusion of the hearing on the recount of the ballots, appellant’s counsel stated: “If the Court please, we would like to recount Box No. 2. There is enough difference in the certified result of that ballot and the count we took today. We all want to be satisfied.” Nothing further was said with respect to such matter and no objection or exception was taken to the fact that there was no further recount made. It should be noted also that in his amended answer and cross-action appellant alleged that as a result of fraud and illegal acts which occurred within and at the designated polling place in Election Precinct No. 2 on election day, the votes counted and tallied for appellant do not reflect all of the legal votes cast for him, although he could not allege with greater particularity the exact nature of the fraudulent acts. It seems quite doubtful that appellant exercised due diligence in not discovering earlier the grounds of alleged fraud later relied upon by him since he could readily have subpoenaed the clerks, including Humphrey, who assisted in Precinct 2, and interrogated them on the recount hearing. In view of our holding herein, it will not be necessary to decide whether or not appellant has shown due diligence in connection with his contention of newly discovered evidence.

We overrule appellant’s point that the court erred in refusing to have the stub box in Election Precinct No. 2 opened in order that the testimony of the electors could be obtained for the purpose of showing that their ballots had been fraudulently changed. Appellant undertook on the bill of exceptions hearing to have the stub box of Election Precinct No. 2 opened in order to show signatures on certain ballots so that the persons who cast such ballots could be called as witnesses to testify on the bill of exceptions. No request was made on the hearing of the motion for new trial to open the stub boxes and there was no ruling thereon. There is no bill of exceptions directed at any refusal of the court in such connection. Therefore, any error of the court, if such there was, has not been preserved. Furthermore, even independently of the joint agreement that the stub boxes would not be opened, there was no sufficient evidence of probative force showing the probability of fraudulent changes of the ballots cast by persons whose signatures were on the stubs of such ballots, which would warrant the opening of the stub boxes.

In Duncan v. Willis, 1957, 157 Tex. 316, 302 S.W.2d 627, at 637, the court said:

“When it is determined by the trier of facts on sufficient evidence that a ballot has been fraudulently marked by another or that a spurious ballot has been substituted for that of the voter, the rule is that the voter may state how he intended to vote. Such testimony while recognized as a potential source of danger, is nevertheless accepted as a matter of necessity to prevent greater evils that would surely result from its exclusion.”

It is also true that there may be certain public interests which outweigh the individual’s right to have his ballot kept secret. Oliphint v. Christy, 1957, 157 Tex. 1, 299 S.W.2d 933. We are of the opinion, however, that even ignoring the agreement made by the parties in the instant case, there was insufficient evidence to establish a fraudulent substitution had been made of ballots or that same had been changed, which would justify opening up the stub box in Election Precinct No. 2 in order to obtain the testimony of the electors who voted in such precinct.

Appellant asserts that the court erred in depriving him of a portion of the statement of facts which prevented him from presenting material points of error on appeal to the appellate court. Shortly after appellant’s motion for new trial was overruled he filed a motion in the trial court asking that the court enter an order directing the county clerk and sheriff of Ft. Bend County to deliver to the official court reporter all of the ballots introduced upon the trial of the case in order that they might be used as exhibits in the preparation of the statement of facts. Instead of entering such order, the court entered the following order:

“On this date came on to be heard in open court the foregoing motion and the court having fully read and considered the motion and heard arguments of the counsel thereon, is of the opinion that the individual ballots as such were not introduced in evidence on trial of this cause but that the unopened ballot boxes were received in evidence, and being further of the opinion that no objections to the counting of the ballots with stubs attached were made or ruled upon during the trial, and further that the ballot boxes should not be opened without a ruling of the court, it is accordingly ordered, adjudged and decreed that the County Clerk of Fort Bend County, Texas, deliver to the official court reporter all of the unopened ballot boxes which were introduced during the trial of this cause, together with the keys in order that the same may be opened for inspection or count by any court of competent jurisdiction, and further that the boxes not be opened by the said court reporter or any other person without such an express order, and the clerk is directed to file this order among the papers of this cause, to which action the defendant excepts.

“Signed and entered this 27th day of July, A.D. 1966.”

Appellant did not request on the hearing of this cause that the ballots be each individually introduced in evidence, nor did he object to the manner in which the ballots were recounted and tallied, nor to the counting of ballots with stubs attached thereto. There is nothing in the record to show that any ballots with stubs attached were counted except the one ballot with unsigned stub attached which was counted for appellant. The bill of exception on the motion for rehearing covers only the refusal of the trial court to set aside the agreement entered into by the parties and judgment which was entered by consent. No objection was made and no bill of exception was taken at the trial, and no error in connection with the trial has been preserved. Appellant has failed to show error in the court’s ruling or that the counting of ballots with stubs attached, if any, would change the result of the election. Moreover, if this Court should conclude that it ought to inspect each of the ballots cast in the run-off election, it would not be deprived of doing so, since all the ballot boxes could be opened by this Court under the aforesaid order and inspected, and recounted and tabulated. We are of the opinion that the evidence is not such as to warrant any such action by this Court.

Appellant also complains that the court erred in rendering judgment for ap-pellee since there were certain ballots with unsigned, undetached stubs. It is true that the trial court did count and credit one vote appearing on a ballot with undetached stub, and the court stated that he was going to rule that ballots with the stubs on them were valid votes. If the ballots had attached thereto stubs which were signed, they could properly be counted. Subdivision 3 of Article 8.15, Texas Election Code, provides that if the stub is still attached and is signed it shall be counted. We note in the bill of exceptions that there are only three ballots with unsigned stubs attached, one of which was counted for appellant. It is true that our Supreme Court held in Vicars v. Stokeley, 157 Tex. 182, 300 S.W.2d 623, in effect that ballots should not be counted when the corresponding stubs do not bear the signature of the voter. For the opinion of the Court of Civil Appeals, see 296 S.W.2d 599. No objection was made at the time the court announced that he was going to count the ballots with stubs attached, and no exception was taken to such action by the Court. In any event, the record shows that one of the ballots with unsigned stub attached was voted for appellant rather than appellee, arid that the other two ballots with unsigned stubs attached were double struck, that is, the names of both appellant and appellee were scratched, and, therefore, they were not counted for either party. We are of the opinion that any error committed by the court in counting the ballot cast for appellant, with unsigned stub attached, would not result in harm to appellant and was, therefore, immaterial. Rule 434, Texas Rules of Civil Procedure.

Appellant’s other points are sufficiently covered in the opinion of this Court in considering the points hereinabove discussed, and the same are overruled.

Judgment affirmed.


text:
    KENTUCKY WATER SERVICE CO., Inc., and Arthur Goodin, Appellants, v. SELECTIVE INSURANCE COMPANY, Inc., and Hassell Jasper, Appellees.
    Court of Appeals of Kentucky.
    March 4, 1966.
    Rehearing Denied Oct. 21, 1966.
    Robert L. Milby, Hamm, Taylor & Milby, London, for appellants.
    Viley O. Blackburn, Smith & Blackburn, John G. Prather, Somerset, for appellees.
   JOSEPH J. BRADLEY, Special Commissioner.

Appellants, Kentucky Water Service Company, Inc. (hereinafter referred to as Kentucky Water) and its employe Arthur Goodin, filed this action against Selective Insurance Company, Inc. (hereinafter referred to as Selective) and Hassell Jasper for a declaration by the court determining the rights of the parties under an automobile liability policy of insurance issued by Selective to Jasper.

There is no genuine issue as to any material fact. On September 29, 1961 Jasper, a customer, drove his truck upon the premises of Kentucky Water for the purpose of obtaining a load of water. Jasper drove his truck to the loading rack, stopped the truck and climbed up onto the top of the vehicle. He placed a hose, which hung from an overhead pipe, into the fill hole of the tank. Goodin, Kentucky Water’s employe, turned a valve attached to the loading equipment releasing the water into the hose and into the tank. Jasper had retained his grasp of the hose and was so holding it when, for some unexplained reason, it became unfastened where it attached to the overhead pipe causing Jasper to lose his balance. He fell from the truck and was injured.

As a result of the accident Jasper filed suit for damages against Kentucky Water and Goodin. That action precipitated this proceeding in which the substantive issue presented was whether Kentucky Water and Goodin were insured within the meaning of Selective’s policy. Kentucky Water and Goodin appeal from a summary judgment denying them coverage.

Selective’s policy covers “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person arising out of the ownership, maintenance or use of the owned automobile * * The policy defines “use” as including “the loading and unloading” of the vehicle. The term “insured” is defined as including the named insured and * * * “any other person using such automobile, provided the actual use thereof is with the permission of the named insured.”

The contention of Kentucky Water and Goodin is, in its essence, that Goodin was using the Jasper truck at the time of the accident within the scope of the policy and they are, therefore, entitled to coverage and that Selective is required to defend Jasper’s action against them and is obligated to pay any judgment he may recover.

This is the first case we have been called upon to decide involving the precise issue here presented.

An insurance contract like any other voluntary agreement must be construed according to its true character and purpose, and in accordance with the intention of the parties. Washington National Insurance Company v. Burke, Ky., 258 S.W.2d 709, 710, 38 A.L.R.2d 861.

In Travelers Insurance Company v. Buckeye Union Casualty Company, 172 Ohio St. 507, 178 N.E.2d 792, 95 A.L.R.2d 1114, the court dealt with a situation in many respects similar to the one now before us. There, an employe drove the truck owned by his employer to the service yard of Gulf Refining Company to secure a tank load of diesel fuel. The driver parked the truck on the loading platform. He climbed up onto the bed of the truck and removed the cover from the opening in the tank. The station was equipped with movable overhead pipes for the filling of tank trucks. An employe of Gulf moved a pipe toward the truck in order to fill it. As the pipe neared the vehicle a quantity of diesel fuel struck the driver causing him to fall from the truck. The driver sued Gulf for the injuries he sustained. The employer and owner of the truck was insured by Buckeye Union Casualty Company under a policy the terms of which were virtually identical to those presented here. Gulf was insured by a policy of premises liability insurance issued by Travelers Insurance Company. Travelers ¡.ought declaratory relief claiming, as in thu case, that Gulf was an insured under Buckeye’s policy and that Buckeye was obligated to defend. In holding that Gulf’s employe was not an insured under the policy issued by Buckeye the court said: “But where, as here, the injury is caused by a third party who is not connected with the truck, who has no legal relationship to the named insured, and who under normal circumstances would not be using the truck of the named insured, it must first appear before the liability provisions of the policy become applicable, that such third party was ii_ the actual use of the truck at the time of the injury with the express or implied permission of the named insured * * *.

“Here, the facts are that the equipment used by Gulf’s employe was exclusively owned by Gulf and the acts performed by Gulf’s employe related exclusively to his own employment. The insured truck was still under the exclusive control of Mc-Cracken’s employe. We do not find, therefore, that Gulf’s employe was using Mc-Cracken’s truck for any purpose at the time of the accident.”

The court stated that to accord the policy the construction which Travelers claimed was intended would lead to the conclusion that the insured paid premiums to Buckeye so that Buckeye would insure and protect Gulf against the claims of the insured. The court observed that it was doubtful that the parties so intended and added that Gulf’s employe was not using the truck for any purpose.

In Buckeye Union Casualty Company v. Illinois National Insurance Company, 2 Ohio St.2d 59, 206 N.E.2d 209 (1965), the court reaffirmed its decision in Travelers. In that case the Buckeye Union Casualty Company had in effect its comprehensive premises liability policy on the Big Bear Stores, and Illinois National Insurance Company had issued its standard automobile liability policy on the automobile of one George Thomas. The insured’s wife, an insured under the policy, parked her husband’s car in the parking lot of the store mentioned. After making several purchases an employe of the store wheeled a cart containing these items to her car and loaded them into the trunk, and in so doing injured Mrs. Thomas by slamming the trunk lid on her hand. Mrs. Thomas sued the store. A dispute arose between the insurance companies as to which one was required to defend the action. The question was whether the employe at the time of the accident was using the car within the terms of the automobile liability policy of insurance. Illinois National Insurance Company denied coverage. The court, in discussing the application of the terms “use” and “insured” as found in Illinois’ policy, said: “The operation of loading and unloading is covered, but the loader or unloader is not an insured unless otherwise made so. The action to be defended by Illinois must be against an insured of Illinois. Under this holding, we can never arrive at a finding that an insured may be a claimant against a company which has computed a risk to protect the insured only against the claims of others.”

In the case before us the truck was clearly operated by Jasper, the named insured. It was exclusively under his control. There is no suggestion of record that Good-in had any other function than to turn, as he did, the water valve attached to Kentucky Water’s loading equipment for the purpose of filling the tank. It would seem evident that Goodin’s act in turning the valve did not constitute using the truck within the meaning of the provisions of the policy, and that it was not such coverage as was within the contemplation of the insured or the insurer when the policy was issued. We cannot escape the view that Jasper did not pay premiums to Selective so that it would insure third parties against his claim for damages.

It is recommended that the judgment be affirmed.

The opinion is approved and the judgment is affirmed.


author: PALMORE, Chief Justice.

text:
    Owen N. SCHUSTER, Appellant, v. Nathan R. STEEDLEY, Appellee. The SUTCLIFFE COMPANY, Appellant, v. Owen N. SCHUSTER, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Rehearings Denied Oct. 21, 1966.

      Joseph E. Stopher, A. J. Deindoerfer, Boehl, Stopher, Graves & Diendoerfer, Louisville, for Schuster on both appeals.
    Kent McElwain, McElwain, Dinning, Clarke & Winstead, Louisville, for Sutcliffe Co.
    Raymond C. Stephenson, Louisville, for Steedley on both appeals.
   PALMORE, Chief Justice.

The appellant Schuster’s wife purchased and gave to him on his birthday, September 1, 1960, an old British military rifle she had seen advertised in a newspaper by The Sut-cliffe Company for $9.95. Seven months later, on April 1, 1961, as the gun was being fired by a youngster under Schuster’s supervision, a part of the breech bolt blew off and one or more of the fragments struck the appellee Steedley in the right eye, resulting in loss of the eye.

Steedley sued Schuster, alleging in substance that the cause of the accident was Schuster’s negligence in loading the gun. After the one-year statute of limitations, KRS 413.140, had run on any claim Steed-ley might have asserted against Sutcliffe, by leave of court Schuster filed a third party complaint against Sutcliffe for indemnity in whatever amount might be awarded against him in favor of Steedley, alleging that the cause of the accident was a defective and dangerous condition of the rifle existing at the time of the sale to Mrs. Schuster, which condition was known to or should have been discovered by Sutcliffe. Sutcliffe answered and denied negligence but did not raise the question of whether the third party complaint stated grounds upon which relief could be granted. Cf. CR 12.02.

Over Sutcliffe’s objection the two claims were tried together, and the jury returned a verdict awarding Steedley $37,100 against Schuster and finding for Schuster on his third party complaint against Sutcliffe. At Sutcliffe’s request the jury was directed to return to the jury room and make a finding as to whether the cause of the accident was the ammunition, a defect in the gun, or both. Accordingly, the verdict was supplemented as follows: “We, the jury, feel that both the gun and the ammunition were at fault in this case.”

Both Schuster and Sutcliffe made appropriate objections to the instructions and presented timely motions for directed verdicts, for new trials, and for judgments n. o. v., all of which were overruled. Schuster appeals from the judgment against him in favor of Steedley, and Sutcliffe appeals from the judgment requiring it to indemnify Schuster.

The gun in question was a .303 calibre Lee-Enfield bolt-action rifle manufactured in 1916. It was one of a number of such weapons Sutcliffe had purchased from another dealer. Sutcliffe advertised, “These guns have been used by the British Army and are all in excellent firing condition,” though it had not inspected them. The guns were sold out of the crate in which Sutcliffe had received them, still covered with a preservative grease. Schuster field-stripped the rifle his wife had given him and made some modifications to the stock and other parts but did not alter any of its operating mechanism. He was a gun enthusiast but not a firearms expert. The gun was old and much-used, and although there is substantial evidence that it was in a worn-out and unsafe condition that could and would have been discovered by Sut-cliffe if its gunsmith had inspected it, we think it can be fairly said that Schuster’s qualifications were not such that he could or should have observed these defects. The only basis for liability on Schuster is the theory that the ammunition was overcharged or, possibly, that at the time of the accident a bullet from the previous firing of the rifle was still lodged in the barrel.

Schuster had fired the gun about 1,000 times during the 7-month period it had been in his possession. The first 200 times or so he had used standard ammunition, but eventually he bought a hand-loading kit and a Lyman instruction handbook, after which he employed used shells, made his own bullets, and loaded the cartridges himself. For military purposes the standard charge, using a 200-grain cast bullet, would be approximately 42 grains of progressive or slow burning powder, but the cartridge may be loaded with a smaller quantity of fast burning powder. Schuster, following the Lyman handbook, was using Hercules 2400, a fast burning powder. The recommended quantity of this powder was 21 grains, but from experience he learned that 21 grains were more than he needed for target shooting, and some time prior to the accident he had reduced the charge to 12 grains, which is considered a light load. None of these procedures, accurately executed, is negligent, but the handloading operation must be conducted with meticulous care. 12 grains of the 2400 powder occupy only 26% of the space in the cartridge case. Should the case inadvertently be filled with 2400 powder, amounting to 42 grains or more, the charge would be so excessive as to blow off that part of the bolt head on which the cartridge extractor is mounted. This was demonstrated by tests made on two similar rifles.

There was ample evidence from which the jury reasonably could have found that the cause of the accident was the defective condition of the gun, existing at the time it was sold by Sutcliffe to Mrs. Schuster. However, assuming further that Sutcliffe was negligent in failing to inspect for and discover this condition, cf. Gaidry Motors v. Brannon, Ky., 268 S.W.2d 627, 629 (1954), we are of the opinion that Schuster cannot recover from Sutcliffe by way of indemnity.

Indemnity is allowed in a negligence case when one party’s liability has resulted from the primary fault of another. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165 (1949); The only negligence by Schuster that Steedley alleged or sought to prove was in the loading, and that was the only theory on which the instructions authorized a recovery against Schuster. Hence Schuster’s liability did not rest upon any condition for which Sutcliffe was responsible or at fault.

If, as the jury may have intended to say, the accident resulted from two causes, a defective condition of the rifle and an improper loading, neither of which would have done it alone, perhaps Schuster could have succeeded in a claim against Sutcliffe for contribution, but that question is not presented, because the third party complaint is confined to indemnification. In any event, to allow recovery by Steedley against Schuster because Schuster was negligent in loading or handling the gun, and then permit Schuster to shift the liability to Sut-cliffe because the gun was defective, results in an anomaly. Though Sutcliffe did not assert the appropriate defense (that the third party complaint failed to state grounds on which relief could be granted) by answer or written motion, it did clearly raise the issue in connection with its motion for a directed verdict at the close of all the testimony and in its objections to the instructions. Under the circumstances we think the motion for a directed verdict can be equated with a “motion at the trial on the merits,” as authorized by CR 12.08. See Clay’s Kentucky Practice, Rule 12.08, Comment 4.

With Sutcliffe eliminated from the case, the questions remaining to be decided are (1) whether there was sufficient evidence to sustain a verdict against Schuster and, if so (2) whether in view of the instructions given the verdict against Schuster should be allowed to stand.

Schuster’s principal contention is that under the state of the evidence the jury was required to speculate in arriving at the cause or causes of the accident. Unquestionably the trial was a field day for the experts. All of them suggested possible causes, some more likely than others, but most of them had opinions as to what was probable. The mere fact that these opinions were divergent, reflecting the positions of the respective litigants for whom they were appearing, does not necessarily mean that a choice as to which one to believe was speculative. For example, if in an automobile accident case the crucial issue is whether a traffic light was red or green, and there are only two eyewitnesses, both disinterested and of equal repute and credibility, but one swears the light was red and the other just as firmly swears it was green, it could be argued that the choice between them must depend on pure speculation or guesswork. And in fact it may, but the law says the jury can make that choice. The kind of speculation that is not allowable occurs when the probabilities of an event’s having happened in one or two or more ways are equal and there is no evidence as to which way it happened. That was the situation in the cited cases of Martin v. Louisville Gas & Electric Co., 198 Ky. 370, 248 S.W. 868 (1923), and McAtee v. Holland Furnace Co., Ky., 252 S.W.2d 427 (1952); and in such other cases as Priest’s Adm’x. v. E. L. Anderson Lumber Co., Ky., 302 S.W.2d 376 (1957); Steely v. Hancock, Ky., 340 S.W.2d 467 (1960), and United Electric Coal Companies v. Brown, Ky., 354 S.W.2d 502 (1962). In this case, however, the opinions of the experts supply the missing evidence. We perceive nothing in Cline v. Wenger, Ky., 263 S.W.2d 91 (1953), or Provident Life & Accident Ins. Co. v. Diehlman, 259 Ky. 320, 82 S.W.2d 350 (1935), requiring a different conclusion.

The witness Haas, an amateur gunsmith with much experience in the construction and use of firearms, was of the opinion that the rupture of the cartridge case and bolt mechanism resulted from one of two things, an excessive charge or a bullet left in the barrel from the previous shot. Either one of these causes would support a verdict against Schuster.

The witness Haddaway, Sutcliffe’s gunsmith, testified to the same effect. Both Haas and Haddaway recognized other possibilities, but both gave positive opinions that excessive pressure from an overcharge or from an obstruction in the barrel was the probable cause.

The witness Munhall, of the H. P. White Laboratory at Bel Air, Maryland, was the best qualified expert to appear. He was first consulted by Schuster but eventually testified for Sutcliffe. He observed certain defects in the rifle which made it dangerous to use, but was positive that these defects did not cause or contribute to the accident. His initial opinion after studying the case and making certain tests was that the break was caused by an excessive charge of powder, but he later decided that more probably it resulted from a phenomenon, or freak accident. There is a theory, he said, that when a cartridge is loaded with a charge that does not completely fill the cavity between the bullet and the primer (which is located at the base of the shell), the flash from the primer may skip over the powder lying in the shell and move the bullet a short distance out of the shell and lodge it in the barrel of the gun an instant before the powder fully ignites and produces the main propulsive force of the explosion. If this happens, the effect is about the same as if there had been another bullet left in the barrel. Since much more force is required to eject a bullet so lodged, excessive force is simultaneously exerted against the base or rear end of the cartridge and is transmitted to the breech mechanism of the gun behind it.

It is interesting to note that this witness, though finally concluding that the freak occurrence was more likely than an excessive charge of powder (or an obstruction in the form of another bullet), admitted he had tried to create the same phenomenon by experimentation and had never been successful. That being the case, there can be only one basis on which he thought it was probable in this particular instance, that is, an acceptance of the hypothesis that there were in fact only 12 grains of 2400 powder in the cartridge and that the gun was properly loaded — to-wit, the testimony of Schuster, whose counsel had employed him in the first place. This, however, was a hypothesis the jurors were not obliged to and obviously did not accept, and we are of the opinion after a careful examination of it that his testimony alone is sufficient to support a finding that the accident resulted from an improper load. Hence the evidence sustains the verdict.

The instructions given by the trial court were anomalous and undoubtedly confusing to the jury. However, all of the ambiguity attaches to and arises out of the instructions pertaining to Sutcliffe.

By instruction No. 1 the jury was advised that if “the plaintiff, Nathan R. Steedley, sustained the injuries by him alleged by reason or because of the negligence of the defendant Schuster in the loading of said shells and as a direct and proximate result thereof, then the law in this case is for the plaintiff against the defendant Schuster, and you will so find,” etc. With respect to Steedley’s claim against Schuster, the verdict read as follows : “Under instruction No. 1, we the jury, find for the plaintiff, Nathan R. Steedley, against the defendant, Owen N. Schuster, and award to the plaintiff the sum of $37,100.00.”

Thus it seems quite clear that the jury believed Schuster did not load the gun properly and that his negligence was a proximate cause of the accident. That establishes his liability to Steedley irrespective of Sutcliffe’s role in the case, and there is no reason to relitigate the issue.

In discussing this case we have refrained from taking up Steedley’s contention of res ipsa loquitur as against Schuster. Cf. Bell & Koch, Inc., v. Stanley, Ky., 375 S.W.2d 696 (1964). Had his allegations of negligence been general enough to include a defective, rifle as well as improper loading, the question might have been cleanly presented. There is much to be said for the proposition that anyone who uses an old second-hand gun should bear the risk of accidents resulting from its condition. Even the perfect one-horse shay gave way at last. But it is unnecessary to determine that issue this time.

The judgment is affirmed with respect to the Steedley’s recovery against Schuster. With respect to Schuster’s recovery against Sutcliffe it is reversed with directions that a judgment n. o. v. be entered dismissing the third party complaint.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Alvi S. DOCKERY and Clara K. Dockery, wife, Appellees.
    Court of Appeals of Kentucky.
    June 10, 1966.
    Rehearing Denied Oct. 21, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Department of Highways, Frankfort, Tildón H. McMas-ters, Dept, of Highways, Elizabethtown, for appellant.
    James T. Robertson, Louisville, James N. Scudder, Elizabethtown, for appellees.
   CULLEN, Commissioner.

The judgment here on appeal does not dispose of all of the claims in the action, and it does not recite that it is final and that there is no just reason for delay. Therefore, under CR 54.02, it is not a final judgment and is not appealable.

The proceedings originated with a claim filed with the Kentucky Board of Claims by the appellees, Alvi Dockery and wife, against the Commonwealth of Kentucky, Department of Highways, seeking recovery for water damage to the Dockerys’ motel property alleged to have been caused by negligence of the Highway Department in connection with the drainage aspects of a road construction project. After a thorough hearing the Board of Claims dismissed the claim, finding no negligence, but in its order the board said:

“ * * * it does appear that the plaintiff’s claim, if he has any, is for the taking of their property by the alleged diversion of surplus water. The jurisdiction for such a claim is in the appropriate Circuit Court and not before this Board.”

The .claimants appealed to the circuit court from the order dismissing their claim, and proceeded to file in the circuit court a somewhat unusual document styled “COMPLAINT ON APPEAL FROM OPINION AND ORDER * * * OF THE BOARD OF CLAIMS * * * AND COMPLAINT OF CONDEMNATION (IN REVERSE)”. The first portion of this document constituted a statement of appeal from the order of the Board of Claims. The second portion undertook to allege a claim for damages on the “reverse condemnation” theory. The prayer of this document asked (1) that an order of remand be entered directing the Board of Claims to enter an award in the amount of $10,000 (the maximum allowable by the board under KRS 44.070); and (2) that the circuit court proceed with the “reverse condemnation” claim to an ultimate allowance of damages in the amount of $43,000, from which would be deducted the amount awarded by the Board of Claims.

The Department of Highways filed a memorandum in the circuit court protesting the assertion of the “reverse condemnation” claim in combination with the appeal from the Board of Claims (the memorandum also suggested that the claim was barred by the doctrine of election of remedies). The department moved for a hearing on the points raised in the memorandum. Also, the department moved that the claimant be required to “separate its appeal from the Kentucky Board of Claims and its Complaint in reverse condemnation, and make them two independent actions.” The circuit court did not rule on these motions, but proceeded to conduct a hearing on the merits of the appeal from the Board of Claims and then entered the following judgment:

“It is therefore, ordered and adjudged that the award of 4he Full Board be reversed, and that the case be remanded to the Full Board to assess damages, because the said motel has been destroyed because of said blockage of the drainage.”

This is the judgment which is now here on appeal.

The separate claim for “reverse condemnation” remains undisposed of in the circuit court. It holds the potential of raising several serious questions and we cannot ignore its existence as being of no consequence. While the Department of Highways argues that such a claim could not properly, from a procedural or jurisdictional standpoint, be combined with an appeal proceeding, the fact is that the claimant did so combine it and the circuit court has not said yea or nay. Likewise, the circuit court has not ruled on the question of whether the claimants, by having sought a remedy before the Board of Claims, are barred from pursuing the “reverse condemnation” claim in the circuit court. The answer to this question conceivably could be influenced by the consideration of whether negligence is the basis of both claims. The same consideration might influence the answer to the question of whether the ultimate determination of liability or no liability in the Board of Claims proceeding will control the matter of liability on the “reverse condemnation” claim, if the merits of the latter claim eventually should be reached.

The judgment here on appeal is not final. While under CR 54.02 the circuit court could upon remand of the case declare it to be final and make a determination that there is no just reason for delay, we think this case most appropriately calls for a final disposition of all the claims before appeal is taken.

The appeal is dismissed.