author: STONE, Judge.

text:
    John W. McDOWN, Bea V. McDown and Juanita McDown Moody, Plaintiffs-Respondents, v. R. V. WILSON and Mavis Wilson, Defendants-Appellants.
    No. 8670.
    Springfield Court of Appeals. Missouri.
    March 6, 1968.

      James E. Curry, Ava, for defendants-appellants.
    Albert F. Turner, Mountain Grove, Clyde Rogers, Gainesville, for plaintiffs-respondents.
   STONE, Judge.

In this suit in equity, defendants appeal from a money judgment for $12,750 entered in favor of plaintiffs. The litigation was spawned in the home of Mrs. S_, a notary public (hereinafter referred to as the notary) in Cabool, Missouri, who undertook to “write up” the papers reflecting the terms of agreement between plaintiffs and defendants for the sale of plaintiffs’ farm for $33,250 and the sale of their cattle and “machinery” for $12,750.

Plaintiffs John W. McDown and Bea V. McDown, residents of the State of Oklahoma, owned an undivided one-half interest in a 500-acre farm in Douglas County, Missouri, and in certain cattle and “machinery” thereon, and their widowed daughter-in-law, plaintiff Juanita McDown (now Moody), then residing on that farm, owned the other one-half interest in the farm, cattle and “machinery.” Plaintiffs having reached an oral agreement to sell to defendants R. V. Wilson and Mavis Wilson, husband and wife, then residents of Dunklin County, Missouri, one Frank McCart, “the real estate man” who had brought the parties together, took them to the notary’s home about 5 :00 P.M. on Saturday, September 4, 1965, for the purpose of drawing appropriate documents. With all of the parties and McCart seated around a table in the same “little room” in the notary’s home, she prepared two instruments, to wit:

1. An “Offer to Purchase with Acceptance” (hereinafter referred to as the farm contract) on a printed form used by E. A. Strout Realty Agency, Inc., whom McCart represented, in which defendants Wilson, as buyers, offered to purchase plaintiffs’ 500-acre farm for “Thirty Three Thousand Two Hundred Fifty & no/100 Dollars payable as follows: One Thoursand (sic) Dollars deposited herewith, receipt of which is hereby acknowledged; in Escrow to be applied on $30,000.00 Dollars in cash or certified check on . Thirty Thousand and no/100 Dollars as hereinafter provided to be paid within 90 days. Three Thousand Two Hundred fifty Dollars to be carried as second deed of Trust on Real Estate.” (The italicized words and figures were typewritten; the remainder was printed.) Plaintiffs McDown, as sellers, signed the printed acceptance on the same form. Although the closing date under the farm contract was extended, defendants were unable to borrow the required cash; and about February 8, 1966, the farm contract “was terminated” and the $1,000 deposited in escrow by defendants was forfeited. No claim under, or issue pertaining to, the farm contract is presented in the case at bar.

2. A “Bill of Sale” likewise on a printed form, in which it was recited that plaintiffs, as “grantors,” “in consideration of the sum of $12,750.00 as follows to them paid, the receipt of which is hereby acknowledged, do hereby Sell, Assign, Transfer, Set Over and Deliver” unto defendants the personal property thereafter listed and described with a value assigned to each. The assigned values aggregated $13,125 but were followed by the deduction “Less Disc. $375.00,” which resulted in a net total of $12,750. Listed personalty included “Cows-Ap 74 — 7,000.00.” All of the other listed personalty was lumped under the heading of, and was treated as, “machinery.” (The italicized words and figures were typewritten; the remainder was printed.) The following terms of payment were typewritten immediately following the listed personalty in the bill of sale:

“Payment of Cattle amount $7,000.00 to be paid as follows:

“(4 to be Paid Sept. 4, 1966 — Inter 5(4% to be paid on full amount.

“(4 to be paid Sept. 4,1967 — Inter. 5(4% on last half or balance

“Machinery $5750.00 — Payment deferred to Nov. 1, 1968 Interest 5(4% to be paid annually

“Machinery payments — 1st pmt $1437.50 due Nov. 1, 1968 Int 5(4%

2nd pmt $1437.50 due Nov. 1, 1969 Int 5(4%

3rd Pmt $1437.50 due Nov. 1, 1970 Int 5(4%

4th Pmt $1437.50 due Nov. 1, 1971 Int 5(4 %”

The bill of sale closed with conventional covenants and warranties by plaintiffs-grantors, all three of whom executed it before the notary who completed the forms of acknowledgment on the reverse side.

With respect to what occurred thereafter at the notary’s home on September 4, 1965, the evidence was in conflict (a) as to whether or not plaintiffs authorized or had knowledge of delivery of the bill of sale by the notary to defendants-grantees, and (b) as to whether or not, immediately after the farm contract and the bill of sale had been executed, the parties had some further discussion concerning the personalty and orally agreed that at some subsequent date defendants-grantees would execute a note and “security instruments” covering the personalty.

As to (a). When plaintiff John W. McDown was asked whether defendants had received a copy of the bill of sale at the notary’s home on September 4, 1965, he replied, “I don’t know . . . not to my knowledge.” To a similar inquiry, plaintiff Juanita McDown Moody responded, “well, she [the notary] had a lot of papers there and she gathered what she thought should go here and there and when she handed them [defendants] theirs, we didn’t go over and examine what she handed them.” In any event, neither plaintiff John W. nor plaintiff Juanita authorized (so they said) delivery of a bill of sale. On the other hand, the notary, called as a witness for defendants, testified that the farm contract had been prepared and “distributed” to the parties first, and that, after the bill of sale had been executed, she had asked to whom she should give the original and, being directed to do so by plaintiff Juanita, she had handed the original to defendant R. V. Wilson and the copy to Juanita’s father-in-law, plaintiff John W. According to defendant R. V., the notary “asked [plaintiff John W.] if the bill of sale went to me and he said ‘yes.’ ”

As to (b). Immediately after the farm contract and the bill of sale had been executed and while the parties were still in the notary’s home and presence, they orally agreed (so plaintiff John W. said) that “there was to be mortgage papers executed on the cattle and machinery” or (so plaintiff Juanita stated) that “we would talk more and make out an instrument of some kind for security for the cattle and machinery” — “a mortgage or some sort of security for the cattle and machinery.” To the contrary, both defendants and the notary testified positively that there was no such conversation or agreement concerning the execution of additional instruments in the future. Whatever may or may not have been said in the notary’s home on September 4, plaintiff John W. quickly conceded upon trial that he and his wife, who had been in Missouri only one day on that trip, “were in a hurry to get home that day” and that they left for Oklahoma “after the papers were prepared.”

According to defendant R. V. Wilson, plaintiff Juanita continued to care for the cattle “for about two weeks,” but thereafter he tended them, furnishing at his expense such salt, minerals and feed as were needed and making one or two trips each week from his then home to the 500-acre farm in Douglas County until he and his family moved onto that farm about December 6, 1965. Plaintiff Juanita asserted that all care required by the cattle was rendered by her until she remarried and moved from the farm on November 12, 1965, and that for a short time thereafter such care was rendered on her behalf by one Austin Cox. But there was no dispute about the fact that, with plaintiffs’ knowledge and consent* defendant R. V. and his family had moved onto the 500-acre farm about December 6, 1965, and thereafter had been in actual possession of the cattle and “machinery” thereon. When the farm contract “was terminated” about February 8, 1966, defendants returned to Dunklin County, taking with them all of the personalty described in the bill of sale; and during September 1966, they sold all of the cattle and most of the “machinery” at a public sale, from which net proceeds of $7,300 were realized. Although admitting their obligation to pay for the cattle and “machinery” in accordance with the terms embodied in the bill of sale, defendants had paid nothing on that debt to the time of trial.

This cause was instituted on February 14, 1966, and came on for trial before the court upon plaintiffs’ first amended petition in four counts on October 3, 1966. In Count I, plaintiffs averred that, “contem- , poraneously with the execution of the written [farm] contract” on September 4, 1965, the parties “entered into negotiations concerning the purchase by defendants from plaintiffs of certain personal property,” as a result of which “it was verbally agreed . . . that defendants would, at the time of the transfer of said real property to defendants, purchase from plaintiffs the said personal property”; that, “upon the conclusion of the transactions between the parties, certain additional documents were to be executed and delivered, including . . . a promissory note for the purchase price of the personal property and security agreements and financing statements with respect thereto”; that, “in preparation for the conclusion of said transaction, [the notary] prepared a certain bill of sale”; but that, through the notary’s “mistake and error,” defendants obtained possession of the bill of sale without payment of any consideration. Finally, it was asserted that, upon “cancellation” of the farm contract, “the said verbal contract” for personalty was also cancelled; but that, though “defendants have no right, title or interest in or to the said [personal] property,” they nevertheless have removed a large portion thereof and “have unlawfully and wrongfully converted the same to their own use.” (All emphasis herein is ours.) The prayer of Count I was (a) for a temporary injunction restraining defendants from removing any additional personalty described in the bill of sale, (b) “that the court find, adjudge and decree . . . that defendants have no right, title or interest in and to any of said [personal] property, nor any right to possession thereof,” (c) that defendants be ordered to return to plaintiffs all personalty removed from the 500-acre farm and still in defendants’ possession, and (d) for judgment “for compensatory damages for any property not returned by defendants and for any damages to or depreciation of said property.”

In Count II, plaintiffs sought a judgment of $500 for the alleged wrongful conversion of other items of personalty not described in the bill of sale. In Count III, plaintiffs incorporated by reference all allegations in Counts I and II, charged that “defendants, in removing the aforesaid personal property and converting the same to their own use, acted wilfully and maliciously,” and then prayed for punitive damages of $2,500.

In Count IV, plaintiffs incorporated by reference all allegations in Count I, then repeated in substance the averments of Count I concerning the alleged “oral contract” that “if the said personal property was finally purchased by defendants” they would execute and deliver their promissory note, security agreement and financing statement, reiterated defendants’ failure and refusal to pay for the personalty or to execute said note, security agreement and financing statement, and then asseverated that “a justiciable controversy exists between the parties as to the existence and meaning of the said oral contract and as to the rights of the said parties under the terms of said contract.” The prayer of Count IV was (a) that “the court construe the said oral contract and declare the rights of the plaintiffs and defendants thereunder,” (b) that “the court find and declare that the defendants are obligated to execute their promissory note, payable to plaintiffs, in terms as set forth in the above described bill of sale, together with a security agreement and financing statement as aforesaid,” (c) that “the court enter its order requiring defendants to execute” said instruments, and (d) that “the plaintiffs have such other and further relief as shall be just and proper, and for the costs of this action.”

The material portion of the “judgment and decree” entered on October 27, 1966, was: “ . . . the court finds the issues for the defendants on Counts one, two and three of plaintiffs petition; the court finds for the plaintiffs on Count four of plaintiffs petition; the' court further finds that the defendants are indebted to the plaintiffs in the amount of Twelve Thousand Seven Hundred Fifty Dollars ($12,750.00) as prayed for in Count four of plaintiffs petition; . . . plaintiffs are therefore awarded a judgment in the amount of Twelve Thousand Seven Hundred Fifty Dollars ($12,750.00) against the defendants . . . .”

The substance of defendants’ points relied on is that the trial court erred (a) in receiving, over defendants’ objections bottomed on the parol evidence rule, testimony concerning the oral agreement alleged to have been reached in the notary’s home on September 4, 1965, immediately after execution of the farm contract and the bill of sale, that defendants would execute a note and “security instruments” covering the cattle and “machinery,” and (b) in entering judgment for $12,750 on Count IV because (1) plaintiffs did not specifically “ask for a money judgment” in that count and it did not “raise the issue of a money judgment” and (2) the evidence in general, and plaintiffs’ testimony in particular, did not justify or support such judgment.

Of point (a). In briefing and discussing this point at length, opposing counsel have overlooked the fact that the meeting in the notary’s home was subsequent to July 1, 1965, the effective date of the Uniform Commercial Code [V.A. M.S. § 400.10-101; Laws of 1963, p. 637], which included the following legislative enactment relevant and controlling here: “Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.” V.A.M.S. § 400.2-202; Laws of 1963, p. 519. With no indication in the record that the trial court found the bill of sale “to have been intended also as a complete and exclusive statement of the terms of the agreement” for sale of the cattle and “machinery,” the trial court cannot be convicted of reversible error for receiving the parol evidence under consideration, i. e., that defendants would execute a note and “security instruments” covering the personalty, since that evidence was not offered in contradiction of the bill of sale but rather as tending to show “consistent additional terms.” King, The New Con-ceptualism of the Uniform Commercial Code, 10 St. Louis U.L.J. 30, 58-63.

Of point (b) (1). By their first amended petition, plaintiffs sought, inter alia, in Count I thereof (1) injunctive relief and (2) an adjudication that defendants had no right, title or interest in and to the personal property — an adjudication in the nature of a declaratory judgment [V.A.M.S. Chapter 527] which, although sui generis and not strictly legal or equitable, is equitable by historical affinity [Gurniak v. Liszewski, Mo., 411 S.W.2d 84, 86(4); Pittman v. Faron, Mo. App., 315 S.W.2d 836, 839(3)], and in Count IV thereof (1) an adjudication in the nature of a declaratory judgment construing the alleged oral agreement (i. e., that defendants would execute and deliver their note and “security agreements” covering the personalty) and declaring the rights of the parties thereunder, and (2) specific performance of that oral agreement, purely an equitable remedy governed by equitable principles. Hoover v. Wright, Mo., 202 S.W.2d 83, 86(2); 81 C.J.S. Specific Performance § la, p. 408; 49 Am.Jur. Specific Performance § 2, p. 6. The case clearly was one of equitable cognizance when it was instituted and when it came on for trial.

Once rightfully invested with jurisdiction of a cause, a court of equity will retain jurisdiction to do full and complete justice even though that may involve adjudicating matters of law or rendering a money judgment [Sebree v. Rosen, Mo., 374 S.W.2d 132, 138(8); Anison v. Rice, Mo., 282 S.W.2d 497, 502(4); Missouri Cafeteria v. McVey, 362 Mo. 583, 594, 242 S.W.2d 549, -553(8); Waugh v. Williams, 342 Mo. 903, 912, 119 S.W.2d 223, 227; Rockhill Tennis Club of Kansas City v. Volker, 331 Mo. 947, 972, 56 S.W.2d 9, 20]; and, this is particülarly true where there is a prayer for general relief, as that in Count IV of instant plaintiffs’ first amended petition for “such other and further relief as shall be just and proper.” Walsh v. County of St. Louis, Mo., 353 S.W.2d 779, 785(3, 4); Anison v. Rice, supra, 282 S.W.2d at 502(5); Woods v. Cantrell, 358 Mo. 1006, 1014, 218 S.W.2d 613, 616. See Cannon v. Bingman, Mo.App., 383 S.W.2d 169, 173(2, 3); Wenzelburger v. Wenzelburger, Mo.App., 296 S.W.2d 163, 164-165(1-3). On the record presented here, we are unable to say, as defendants would have us to do, that no money judgment against them could- have constituted “relief consistent with the suit tried.” Branner v. Klaber, 330 Mo. 306, 332, 49 S.W.2d 169, 180; Cox v. Bryant, Mo., 347 S.W.2d 861, 863.'

Of point (b) (2). However, it does not necessarily follow that the judgment for $12,750 entered on Count IV can stand. As a quick review of the hereinbefore- - digested evidence and the first amended petition will confirm, plaintiffs’ pleading far outran their proof. For example, whatever plaintiffs’ undisclosed intention or unilateral understanding may have been, there was no competent evidence that the cattle and “machinery” were to be sold to defendants only if and when title to the 500-acre farm was conveyed to them. Certainly the farm contract and the bill of sale did not so' indicate, for neither instrument in any wise referred to the other and the only mention of personalty in the farm contract was in this provision following the legal description of the realty, to wit, “All buildings, plumbing, heating, lighting .fixtures, screens, storm sash, shades, blinds, awnings, shrubbery and plants if any, and the following described personal property located or used on said real property: Butane Gas Tank is to go with property — are also included in this sale.” (The italicized words were typewritten; the remainder was printed.)

In this connection, we may not ignore the issues raised by Count I and the inescapable force and effect of the judgment for defendants entered on that count. That unappealed judgment must be recognized as an adjudication, adverse to plaintiffs, ’ of the issues raised by Count I [Hardin v. Ray, Mo.App., 404 S.W.2d 764, 769(5-7), and cases there collected in note 5; M. F. A. Central Coop. v. Harrill, Mo.App., 405 S.W.2d 525, 526(1); Davis v. Broughton, Mo.App., 369 S.W.2d 857, 858-859], including those joined by defendants’ denial of plaintiffs’ averments that “defendants have no right, title or interest in or to the [personalty] . . . and have unlawfully and wrongfully converted the same to their own use . . ..”

Furthermore, plaintiff Juanita agreed with defendants’ counsel on cross-examination that the bill of sale correctly listed the personalty being sold to defendants and accurately stated the sale price and the terms of payment. .To.the concluding question, “in other words, this document [the bill of sale] expresses the agreement accurately that you had .with Mr. and Mrs'. Wilson [defendants] on this date [September 4, 1965],” plaintiff Ju.anita responded with an. unqualified ' “yes.” Plaintiff John W. gave similar testimony on cross-examination, including the following: “Q. And those terms that are listed on that bill of sale are exactly those that the parties agreed to there that day [September 4, 1965] ? A. That’s right. Q. There is no mistake about it? A. No.” In passing, we observe that plaintiff John W. identified himself as a “farmer-rancher” and, when asked whether he had “dealt in real estate and farms” and was “familiar with matters of this kind,” replied with assurance, “oh, yes.”

Plaintiffs’ counsel urge us to affirm the judgment for $12,750 as the only way to do equity between the parties under existing circumstances and argue, as a basis for such affirmance, that the trial court could have found that the bill of sale was delivered to defendants without plaintiffs’ authorization or knowledge and that the parties orally agreed in the notary’s home that defendants would execute a note and “security instruments” covering the personalty. We recognize, but set aside without discussion or ruling as unnecessary to proper determination of the appeal, serious questions immediately suggested by counsel’s argument, e. g., (a) the inherent inconsistency of counsel’s two-pronged argument that, on the one hand, the bill of sale was delivered without plaintiffs’ authorization or knowledge by reason of which title to the personalty did not vest in defendants but that, on the other hand, defendants agreed to execute a note and “security instruments” covering the personalty — action necessarily predicated and dependent upon the premise that title to personalty did vest in defendants, and (b) apart from such inconsistency, as to the sufficiency of plaintiffs’ vague, indefinite and inconclusive evidence to have warranted a decree of specific performance of an alleged oral agreement to execute a note and “security instruments.” See cases collected in 26 West’s Missouri Digest under Specific Performance, 121 (1) to 121(4), inch It is sufficient to point out that, regardless of what the trial court could have found, the inescapable impediment remains that, in the teeth of the unappealed judgment for defendants which adjudicated the issues raised by Count I adversely to plaintiffs, we may not indulge the presumption that the court did make either finding advanced by plaintiffs’ counsel in an effort to justify and support the judgment on Count IV.

Under the terms embodied in the bill of sale which both plaintiffs John W. and Juanita recognized upon trial as correct in every particular, only one-half of the $7,000 to be paid for the cattle was due and payable when the case was tried on October 3, 1966, and when judgment was entered on October 27, 1966, and no portion of the $5,750 to be paid for “machinery” was then due and payable. It may be noted here that an express provision therefor in the contract between the parties is necessary to accelerate the maturity of a bill or note [10 C.J.S. Bills and Notes § 251a, p. 746; Board of Trustees of Westminster College v. Piersol, 161 Mo. 270, 285-286, 61 S.W. 811, 814(3); Brinsmade v. Johnson, 192 Mo.App. 684, 695, 179 S.W. 967, 969-970(4)], and that, in the vague and indefinite testimony concerning the note which defendants allegedly agreed to execute, there was no mention of an acceleration provision.

Sympathetically attuned as our ear may be to plaintiffs’ cry ad misericordiam, we find no basis on which we may affirm their judgment for $12,750 and no means by which we may fully relieve them of all unfortunate consequences of their own hasty and ill-advised conduct on September 4, 1965. However, upon trial defendants admitted their obligation to pay for the cattle and “machinery” in accordance with the terms set forth in the bill of sale. Hence, in the interest of justice, it is the judgment of this court (a) that the judgment of the Circuit Court of Douglas County, Missouri, for plaintiffs in the sum of $12,750 upon Count IV of their first amended petition should be and hereby is set aside and for naught held, (b) that the cause should be and hereby is remanded to said circuit court with authority and directions (1) to take such additional evidence as may be necessary to ascertain the aggregate amount (including interest) due and unpaid, as of the date of such hearing, under the terms of payment embodied in the bill of sale and (2) to enter judgment on Count IV of plaintiffs’ first amended petition in favor of plaintiffs and against defendants in such sum, all of which shall be without prejudice to plaintiffs’ right thereafter to institute and maintain an appropriate action or actions for the recovery of such additional sums as may, from time to time, become due and payable under the terms of payment embodied in the bill of sale, and (c) that, in doing equity between the parties, the costs of this appeal should be, and hereby are, taxed against the parties, share and share alike, one-half against plaintiffs and one-half against defendants. Consult Rockhill Tennis Club of Kansas City v. Volker, supra, 331 Mo. at 972-973, 56 S.W.2d at 20-21; Bobst v. Sons, Mo., 252 S.W.2d 303, 305-306(5); Missouri Cafeteria v. McVey, supra, 362 Mo. at 597-598, 242 S.W.2d at 556; Selle v. Selle, 337 Mo. 1234, 1244, 88 S.W.2d 877, 883-884(10).

HOGAN, P. J., and TITUS, J., concur.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    James Douglas NAPIER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1968.
    Rehearing Denied April 26, 1968.
    Louis W. Gorman, Wesley Bowen, Newport, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

James Douglas Napier appeals from a judgment sentencing him to 15 years in prison pursuant to a jury verdict finding him guilty of involuntary manslaughter in the first degree. KRS 435.022(1). He was tried on an indictment for willful murder. KRS 435.010.

Marvin Ray Cox was shot and killed late one Saturday night or early Sunday morning on the street in front of a tavern or cabaret in Newport, Kentucky, from which he had been ejected a few minutes earlier following a fight between him and the appellant, Napier. According to witnesses for the Commonwealth, when Cox got outside he discovered his billfold was missing, arid two of his companions voluntered to go back inside to retrieve it; as the two companions re-entered the cabaret Napier came out, confronted Cox and asked him, “Do you want any more?” to which Cox either replied “No” or did not reply at all, whereupon Napier kicked him in the stomach (or, depending on the version of the particular witness, did not kick him but backed him across the street), shot him in the face with a pistol, and returned inside; Cox being all the while unarmed and having made no threat or show of force toward Napier.

Napier’s story, corroborated by some of the employes within, and by a freshly discovered pair of witnesses who say they drove up in a car just in time to see all that took place outside, and then left the scene, was that a waitress had asked him to admonish Cox and those at his table to be quiet or leave (Napier had formerly been employed there as a bouncer or “floor manager,” but was present as a customer at this time), whereupon Cox seized him by the coat lapel and jerked him across the table; this precipitated a fight, and some of the employes and bystanders assisted him in putting Cox and his friends ortt on the street; as Cox went out the door he shouted that he would be back, addressing Napier by an obscene name; Napier waited inside for 10 or IS minutes and, in view of Cox’s threat to return, decided he had better go home; as he went out the door he was confronted by Cox, who had a gun in his hand and announced, “I am going to kill you;” two of Cox’s company forthwith seized and jerked him out onto the sidewalk, and he grappled with Cox; the struggle “lasted all the way across the street,” the gun “went off,” Cox fell to the sidewalk, and Napier took refuge for the time being inside the cabaret; Napier did not have a gun in his hand or in his possession at any time and did not shoot Cox.

The gun that killed Cox was never found. His billfold was discovered in a toilet bowl in the men’s room of the cabaret. The fatal bullet entered his face just to the left of the nose, took a downward course and came out below the right ear.

Appellant’s first contention is that he was entitled to a directed verdict of acquittal and that the verdict was flagrantly against the evidence. Our reaction is that only the Constitution saved him from a directed verdict for the Commonwealth.

Over appellant’s objection the Commonwealth was permitted to introduce a post mortem photograph of the victim’s face showing the bullet hole and other marks of the fray. It is described as “grisly and gruesome.” Since a pathologist had quite clearly demonstrated to the jury the points of entry and exit, we concede that the photograph may not have been strictly necessary. Nevertheless, an accurate photograph is more believable than any chart or second-hand description and in this case, as it developed, appellant’s theory that Cox somehow managed to shoot himself made the precise location of the wound vitally important.

It has been said that if the evi-dentiary value or necessity of a gruesome photograph outweighs its possible prejudicial effect it may be admitted. 29 Am. Jur.2d 861 (Evidence, § 787). “The rule prohibiting the exhibition of inflammatory evidence to a jury does not preclude the revelation of the true facts surrounding the commission of a crime when these facts are relevant and necessary.” Salisbury v. Commonwealth, Ky., 417 S.W.2d 244, 246 (1967). But we need not depend on that principle as a basis for holding this particular photograph admissible. The fact is that it was not so gruesome as to be likely to prejudice or inflame the men and women, inured as they are to the horrors of both war and television, who sit on a modern jury. The time has come when it should be presumed that a person capable of serving as a juror in a murder case can, without losing his head, bear the sight of a photograph showing the body of the decedent in the condition or place in which found. “Where the photographs revealed nothing more than the scene of the crime and the persons of the victims, they were not incompetent.” Salisbury v. Commonwealth, id.

This case had been tried on a prior occasion, and from time to time in questioning the witnesses counsel for one side and the other made reference to the former trial. During his summation the Commonwealth’s Attorney, after insisting upon a verdict of murder, said to the jury, “ * * * if you decide he is guilty, whatever you do, don’t hang up on what the punishment should be, and make us try this case over again,” to which counsel for appellant objected and moved for a mistrial. The motion was overruled, but the court admonished the jury as follows:

“I will overrule your motion. The jury is admonished not to consider the comments of the Commonwealth’s attorney by that last remark, it was entirely improper. It is incumbent upon you to agree among yourselves as to whether the defendant is guilty or not guilty, and then set the punishment. That is up to you to agree, or not to agree. If you don’t agree, that is up to you.”

In Baker v. Commonwealth, 184 Ky. 207, 211 S.W. 566 (1919), one of the grounds for an appeal from a 10-year sentence in a carnal knowledge case was that when the jurors, after having deliberated for some time, reported to the court that they were unable to agree the Commonwealth’s Attorney remarked, “Send them back; I am tired of trying these cases at the expense of the commonwealth.” There was no corrective admonition and, of course, the jury did eventually reach a verdict. In reversing the conviction, principally on another ground, this court said that although it seemed improbable that any juror would let the expense of another trial induce him to send a man to the penitentiary for 10 years if he was not convinced of his guilt, yet in view of the statement’s having been made after the jurors had announced their inability to agree it was not possible to say it could not have had a prejudicial influence in the subsequent verdict.

The circumstances- in this case were quite different from those in Baker. Here the jurors had not begun their deliberations, and the trial court gave a prompt, clear and forceful admonition sufficient to obviate whatever consideration they might otherwise give to the improper statement. As aptly observed in the Commonwealth’s brief, if it cannot be presumed that the jurors heeded the admonition their intelligence stands in grave doubt indeed. We find the possibility of prejudice too remote to warrant serious consideration of a reversal.

The remaining arguments have a great deal of substance but for one fatal circumstance. Appellant says there was no room in the case for the instructions on involuntary manslaughter and that the instruction on accidental shooting was improperly drawn because it did not cover his theory that he did not fire the gun. All of this may be so. On the manslaughter question, see Vinson v. Commonwealth, Ky., 412 S.W.2d 565 (1957). But objections of this kind simply cannot be raised for the first time on appeal. “If the defendant neither objects to the instructions nor raises the question in a motion for new trial, the alleged error will not be reviewed.” Stanley’s Instructions § 797 (1967 Supp.); Stewart v. Commonwealth, Ky., 389 S.W.2d 910 (1965). Among various objections lodged against the instructions in the trial court, none related even remotely to the points now relied upon.

The judgment is affirmed.

All concur.


author: CLAY, Commissioner.

text:
    Charles C. BAIRD, Individually, etc., Appellants, v. CITY OF ADAIRVILLE, Kentucky, a Municipal Corporation, etc., Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.
    Rehearing Denied April 26, 1968.
    William G. Fuqua, Russellville, for appellants.
    Jesse L. Riley, Jr., Russellville, Franklin P. Hays, Skaggs & Hays, Louisville, William G. Craig, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.
   CLAY, Commissioner.

This is a declaratory judgment proceeding to test the validity of a lease agreement between the City of Adairville and the Wesken Corporation. The Chancellor upheld the lease.

The city proposes by the issuance of revenue bonds to construct a natural gas distribution and transmission system. It has entered into an agreement with Wesken to lease this facility for a term of 25 years, with an option in Wesken to extend the lease for an additional 20 years. (The rentals will be used to retire the bonds.)

It is first contended the lease agreement violates section 164 of the Constitution which limits “franchises” to 20 years. However, it has been consistently held that the leasing of property owned by a city in a proprietary capacity does not constitute the granting of a “franchise”. Board of Councilmen of City of Frankfort v. Pattie, 227 Ky. 343, 12 S.W.2d 1108; Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80; and Miller v. City of Owensboro, Ky., 343 S.W.2d 398. Appellee requests that we re examine this question, which has been done, but we believe the reasoning of the opinions in the above cases is sound.

It is next contended the lease agreement violates section 179 of the Constitution because the city will be loaning its credit to Wesken. The argument is made that since the city will own the system which generates revenue, this will result in Wesken “having better credit than it would otherwise have”. We have difficulty understanding how this result could constitute a loan of credit, but in any event in Miller v. City of Owensboro, Ky., 343 S.W.2d 398, we specifically held that the issuance of revenue bonds to finance a public project, even if the project was to be rented, did not constitute a lending of credit in violation of section 179 of the Constitution.

It is further contended the lease agreement is illegal because it attempts to establish rates without the approval of the Public Service Commission. The agreement specifies a “General Service Rate”, authorizes the negotiation of industrial rates between Wesken and the customer, and provides that the specified rates may be adjusted (apparently by Wesken) to the extent necessary to produce revenues reflecting the increase or decrease in the cost of gas to Wesken. There is the further provision that after the end of the fifth year of the lease Wesken will have the option to adjust rates (1) to keep the sale price of gas consistent with the fluctuation in the economy during the term of the lease, and (2) in accordance with the percentage increase or decrease established by certain investor-owned utilities.

No reference is made in the lease agreement to the Kentucky Public Service Commission. The parties have assumed the contract exempts the rates from Commission approval. The Chancellor so construed the agreement and in effect adjudicated that these rates, as adjusted by Wesken, would be lawful without such approval.

KRS 278.040(1) empowers the Commission to “regulate utilities”. KRS 278.-010(3) defines a “utility” as “any person”, except a water district or a city, “who owns, controls, or operates or manages any facility” used in the production, manufacture, etc., of natural or manufactured gas. The argument is made on behalf of the city that since it owns the facility, it is exempt from Public Service Commission supervision or regulation. See McClellan v. Louisville Water Company, Ky., 351 S.W.2d 197. Perhaps this argument would have been valid if the city had not surrendered its right to fix the rates. While it may be said the “General Service Rates” were fixed by the city in the agreement, Wesken is given exclusive authority to adjust those rates under certain conditions. Since Wesken operates this facility, under the definition above quoted it is a nonexempt “utility”, and under KRS 278.200 the Commission has power to regulate rates fixed by it. Wesken is not an “operating facility” of the city as the Louisville Water Company was held to be in Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442, 217 S.W.2d 232.

As heretofore noted, the parties and the Chancellor have construed this agreement as exempting Wesken from Public Service Commission control. So construed, the rate provisions are illegal and void.

The agreement contains no provision with respect to severability. In our opinion the illegal part thereof relating to rates is most material to the whole scheme and this illegality vitiates the entire lease agreement As a consequence we must likewise declare the bond ordinance based thereon invalid.

The judgment is affirmed in part and reversed in part, with directions to enter judgment consistent with this opinion.

All concur.


author: CLAY Commissioner.

text:
    A. M. GALBREATH et al., Appellants, v. Walter MILLER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 23, 1968.
    Rehearing Denied April 26, 1968.
    Donald D. Harkins, Danville, for appellants.
    Pierce Lively, Wesley Gilmer, Jr., Dan-ville, for appellees.
   CLAY Commissioner.

In this suit appellants sought to have adjudicated their right to use three tracts of land owned by them near Danville for purposes other than residential. The Chancellor decided the property involved was restricted to such use.

In 1953 William Whitehouse owned approximately 23 acres of unimproved vacant land lying east of Lexington Road. He planned the development of a subdivision and recorded a plat thereof. It showed a 40-foot street leading off Lexington Road and bounded on both sides by forty-five 30-foot lots. (All of these lots were numbered.) On the south side of the dedicated street the lots began at a point 371 feet east of Lexington Road. Shown on the plat were “Tract A”, containing 1.7 acres, at the southeast corner of Lexington Road and the street; “Tract B”, containing .62 of an acre, lying between “Tract A” and the first lot on the south side of the street; “Tract C”, containing 4.32 acres, to the rear of the lots on the south side; and “Tract D”, containing 5.9 acres, to the east of the 30-foot lots. (The street dead-ended at “Tract D”.)

“Tract A”, with substantial frontage on Lexington Road, is the property principally involved in this controversy. Appellants propose to sell part of this tract for use as a gasoline service station.

Pursuant to his plan, the original owner sold some of these numbered lots and each deed restricted the property to “residential use”. In 1954 the original owner sold to appellants 19 of these lots, designated in the deed as “Lots” (by number). The same deed conveyed “Tract A”, “Tract B” and part of “Tract C” (so designated in the descriptive clause). The deed provided:

“The lots herein sold are restricted to residential use and shall not be used for any business purpose whatsoever.” (Emphasis added.)

Before proceeding further we will consider whether this deed, in the light of the plat, showed an intention of the developer to subject Tracts A, B and C to the residential restriction which admittedly was imposed upon the numbered lots. It is contended by appellees that a tract is a lot and a lot is a tract and therefore the restriction in appellants’ deed covered the entire acreage conveyed. While these two terms may be synonymous and interchangeable for some purposes, they well may be distinguishable when describing property with different characteristics. On the face of the plat it is apparent the 23 acres were divided into two distinct classifications. The numbered lots are uniform residential building lots, whereas the boundaries of the designated “Tracts” contained substantially more acreage than would fit into the building lot plan.

The deed consistently confirms the distinctive differences between the two types of property shown on the plat. The descriptive clause refers to lots as “Lots” and each tract as “Tract”. In the light of the plat and the deed description only one conclusion can be drawn with respect to the restriction upon “lots”. The restriction was not placed upon “Tracts”.

A similar question of construction was presented in Hoge v. Street, 310 Ky. 370, 220 S.W.2d 830. In one part of a will the testator had referred to “livestock, machinery, crops and personal property”, and later in the will he had given one of the devisees an option to purchase the “personal property”. We held the testator, by the wording of the instrument, had made a distinction between livestock, machinery, crops and personal property and therefore the latter did not include the former. By the same token, where the grantor here designated different types of property by distinctive descriptive names, the restriction upon one designated class did not encompass the other.

It is unnecessary to consider the ambiguity of the word “lots” as used in the deed before us, which, under the principle applied in Connor v. Clemons, 308 Ky. 9, 213 S.W.2d 438, would call for the same conclusion we have reached. It is therefore our opinion that the deed from the original owner to appellants did not impose residential restrictions upon Tracts A, B and C.

The remaining question in the case is whether appellants, by their subsequent conduct after the purchase of this property, promulgated and evinced a general scheme for the development of the “Tracts” into residential property and by implication subjected it to the residential restrictions. Appellees invoke the doctrine of “reciprocal negative easements”. The general principle is thus stated in Rieger v. Wessel, Ky., 319 S.W.2d 855, 857:

“If the owner of two or more lots, so situated as to bear the relation to a general scheme of development, sells one with an easement of benefit to the land retained, the servitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lots sold.”

See also 60 A.L.R. 1216 and 144 A.L.R. 916.

In McCurdy v. Standard Realty Corporation, 295 Ky. 587, 175 S.W.2d 28, we observed that the doctrine should be applied with extreme caution because in effect it lodges discretionary power in a court to deprive a man of his property by imposing a servitude through implication.

The basic condition upon which this doctrine rests is that the property sold and subjected to a servitude must be similarly situated and bear a mutual use relationship to the property retained by the grantor. Otherwise there is no foundation for the implication of a reverse restriction. To illustrate, in the Rieger case above cited, the owner of a tract subdivided it into 31 building lots and recorded a plat thereof. He sold 24 of the lots upon which were imposed residential building restrictions. He sought to sell the seven remaining lots free of the restrictions. Since there was an obvious general scheme for residential development of similarly situated lots, and in addition representations were made to the purchasers that the subdivision was restricted, we held the .restrictions applied to the last seven lots sold.

The situation before us is markedly different. As we have heretofore observed, both the plat and the deed to appellants exhibited a different classification of “Lots” and “Tracts”. From a topographical as well as an area standpoint the “Tracts” bore no relationship (except proximity) to the carefully laid out subdivision scheme.

It is true appellants have sold, as lots, certain parts of Tracts B and C. These deeds did not, however, impose a residential restriction upon such property, and there is no evidence that appellants at any time represented to anyone that the “Tract” areas would be incorporated into the residential subdivision plan. There simply exists no basis upon which we could adjudge that by implication the “Tracts” owned by appellants were subjected to the residential restrictions imposed upon the numbered subdivision lots.

Since the essential facts are not in dispute (most of them were stipulated), the questions involved in this case were matters of law. We believe the Chancellor erred in his conclusions.

The judgment is reversed, with directions to enter a judgment consistent with this opinion.

WILLIAMS, C. J., and HILL, MILLI-KEN, OSBORNE, PALMORE and STEINFELD, JL, concur.

      . The doctrine of the Connor case is not the “strict construction” rule which was repudiated in McFarland v. Hanley, Ky., 258 S.W.2d 3, and Brandon v. Price, Ky., 314 S.W.2d 521.

      . It is arguable that the property sold by appellants in lot form out of Tracts B and 0 was by implication subjected to the residential restriction by reason of the fact that it was added to the subdivision plan, but with that question we are not confronted.


author: DAVIS, Commissioner.

text:
    The TRUST DEPARTMENT OF the FIRST NATIONAL BANK, Administrator with the Will Annexed of Hollie Heflin, Deceased, et al., Appellants, v. W. W. HEFLIN et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1968.
    Rehearing Denied. April 26, 1968.

      Farland Robbins, Mayfield, for appellant.
    Henry Jack Wilson, Mayfield, for appel-lee.
   DAVIS, Commissioner.

This is a will contest in which a jury found that Hollie Heflin lacked testamentary capacity. The propounders of the will prosecute this appeal, asserting as the chief ground for reversal that there was insufficient evidence to warrant submission of the case to the jury.

To avoid confusion we shall refer to the testator, Hollie Heflin, as Hollie. The purported will was executed December 24, 1962, and by its terms, Hollie’s entire estate was devised to his nephew, Robert Earl Green. The value of the estate was about $34,000. Hollie was seventy-six years of age when he died on May 1, 1963.

Hollie was one of seven children. He was never married and left surviving him two brothers and one sister, as well as children of another brother who had died before Hollie’s death. The sole beneficiary is the son of the sister who survived Hollie.

Hollie lived on the “home farm” with his unmarried brother, Lubie, and his unmarried sister, Lexie, both of whom died before the date of Hollie’s death. Hollie’s mother, after a lingering- twenty-year illness, died in 1930. The loss of his mother affected Hollie to the extent that he had a “mental breakdown,” followed by an apparent attempt at suicide in 1931. Hollie’s mental condition at that time deteriorated to the point that he was adjudged of unsound mind and committed to the Western State Hospital where he remained for about a week. He was able to leave the hospital and gradually resume his normal activities without specific incident indicating any mental relapse. In 1938 he was adjudged to be of sound mind and legally restored as provided by KRS 202.290. There was evidence explaining that the restoration proceedings were not had earlier than 1938 simply because there was no occasion for Hollie to execute any legal documents until that time.

Hollie was a farmer and took pride in his recognized ability in handling mules and plowing a singularly straight furrow. He was described as a “perfectionist” who became inordinately exasperated whenever he was unable to attain the result he desired in the matter of repairing farm machinery or doing other chores of that nature. Hollie attended school through the eighth grade and was able to read, write, and handle elementary mathematics.

More than twenty witnesses testified on each side of the case. The only medical testimony was negative in nature. Dr. Colley testified as to having treated some physical infirmities for Hollie during the recent years before the execution of the will, but he expressly declined to give any opinion as to Hollie’s mental capacity. Dr. Colley insisted that the professional services which he had rendered had no relation to any mental disorder and that he had not addressed his attention to that matter so as to enable him to express an opinion one way or the other.

To undertake an individual analysis of the evidence of each witness would unduly lengthen this opinion. A general summary of the aberrations mentioned by witnesses for the appellees, not including some incidents which occurred during the last few days of his terminal illness, is as follows:

Testator had a “mental breakdown” in 1930 following the death of his mother, was adjudged of unsound mind, and committed to Western State Hospital from which he was released after about a week.
Testator had attempted suicide in 1931 during convalescence from the “breakdown”; he was legally restored in 1938 pursuant to KRS 202.290.
He was “subnormal” and “submental,” which was explained as meaning “a little under par.”
He had a few “falling out spells all through 1962.” These “spells” were described as blackouts similar to those experienced by W. W. Heflin, Hollie’s brother, who gave the testimony concerning them.
His general attitude was variously described as one of “extreme pessimism,” “ascetic,” “hypersensitive,” “ultra conservative,” “miserly,” and a “fanatic about religion.”
Some of the witnesses described Hollie’s mental condition as like a “ten-year-old boy.”
Another witness said he “couldn’t talk intelligent to you” (without citing specific examples).
Hollie purportedly sought to have a five-dollar bill changed, but mistakenly submitted a ten-dollar bill instead of a five.
He would sit in the same seat at church and would not talk to his fellow wor-shippers “without you said something to him.”
At various times he would say he was “worth ten thousand dollars, or twenty thousand, or thirty thousand dollars.”
He frequently pointed out certain calves as being twin calves, when in truth the twin calves had already been sold.
When “you would get to talking to [testator] about a subject he would turn it off on something else.”
He was “peculiar.”

So long as Hollie, Lubie, and Lexie all lived together, they had an informal farm partnership. For the most part, the details of clerical work were handled by Lubie or Lexie and not by Hollie. It seems plain from the record that Lubie took the lead although Hollie usually accompanied him in the various farming transactions. All of the witnesses said that Hollie was a kind man, and none of them recalled any occasion when Hollie failed to recognize them (except during the last day or two of his terminal illness when he was admittedly in a feeble condition of mind and body).

For the propounders, it was shown that the will was executed with due formality on December 24, 1962, at Mayfield, in the law offices of Honorable Farland Robbins, an attorney of that city. The evidence disclosed that the testator had arranged with the chief beneficiary for the latter to transport him into town on the Friday before the Monday on which the will was signed. Mr. Robbins testified that the testator apprised him of his intention to have a will drafted leaving his entire estate to the nephew and explained that when he learned this, he directed the nephew to remain out of the office in which the will was being prepared. Mr. Robbins expressed the unqualified opinion that the testator possessed requisite mental capacity at the time the will was executed.

There were other bits of evidence showing that the testator had signed deeds during 1962, at least one of which was incident to conveyance of land to W. W. Hef-lin, one of the chief contestants. The testator had signed checks including checks to W. W. Heflin for his room and board during the eighteen months prior to his terminal illness.

Our decisions teach that opinion testimony as to the mental capacity of a testator is admissible, whether the evidence is presented through medical experts or laymen, e.g., Tye v. Tye, 312 Ky. 812, 229 S.W.2d 973; McKinney v. Montgomery, Ky., 248 S.W.2d 719; 8A Kentucky Digest, Evidence, <®==*S01 (3) and 568(2). It is equally clear that nonexpert opinion evidence relating to testamentary capacity is not sufficient to make a jury issue or support a verdict against the will, unless the opinion is based on facts and circumstances related in the evidence which reasonably induce the belief or opinion expressed by the witness or witnesses. Tate v. Tate’s Ex’r, Ky., 275 S.W.2d 597; 8A Kentucky Digest, Evidence, ^568 (2). See Yates v. Wilson, Ky., 339 S.W.2d 458, 463-464.

Our reports are replete with cases presenting widely divergent sets of facts and circumstances, many of which appear to more strongly reflect lack of capacity than do the facts in the case at bar. Yet in the cases referred to, some of which we shall list, the court has consistently held that the verdict against the will was unsupported by the evidence. As typical of this line of cases (by no means a complete list), reference is had to Dossenbach v. Reidhar’s Ex’x, 245 Ky. 449, 53 S.W.2d 731; Mc-Crocklin’s Adm’r v. Lee, 247 Ky. 31, 56 S.W.2d 564; Clark v. Johnson, 268 Ky. 591, 105 S.W.2d 576; Kentucky Trust Co. v. Gore, 302 Ky. 1, 192 S.W.2d 749; Bickel v. Louisville Trust Co., 303 Ky. 356, 197 S.W.2d 444; Rice v. Pack, 306 Ky. 777, 209 S.W.2d 327; and Gerard v. Gerard, Ky., 350 S.W.2d 719.

It appears from this record that the witnesses who opined that Hollie lacked testamentary capacity based their opinions chiefly upon his eccentricities. In 1 Kentucky Practice, Section 270, Page 200, it is said in part (supporting citations omitted) :

“An insane delusion must be distinguished from an eccentricity. Peculiar beliefs and extraordinary conduct may be entirely compatable (sic) with testamentary capacity. In a will contest there is apparently no end to the peculiarities of testators which disappointed relatives can dredge up. Evidence of most of these peculiarities is admissible. * ⅜ *. By way of illustration some of the more common eccentricities have been considered.
“Personal habits which are unorthodox do not establish mental unsoundness. For example, a person with testamentary capacity may by preference sleep on straw covered with old sacks and use his Texas saddle for a pillow, or he may sleep with the dogs. A belief that everyone else in the world is needlessly extravagant is not a bar to making a will.
“Efforts to interest members of the opposite sex in a matrimonial venture may be regarded as quite normal despite a difference in ages. Repeatedly showing the family album to visitors may be merely the remnant of an old-fashioned custom. That the testatrix wished to be buried with her husband’s cane, a pistol in each hand and her eyes open was said to be ‘unusual,’ but no evidence her mind was unsound.”

The appellees have cited Creason v. Creason, Ky., 392 S.W.2d 69; Blankenship v. Blankenship, Ky., 389 S.W.2d 933; Ward v. Norton, Ky., 385 S.W.2d 193; Roland v. Eibeck, Ky., 385 S.W.2d 37, 7 A.L.R.3d 992; McKinney v. Montgomery, Ky., 248 S.W.2d 719; Pardue v. Pardue, 312 Ky. 370, 227 S.W.2d 403; Hines v. Price, 310 Ky. 758, 221 S.W.2d 673; and Pfuelb v. Pfuelb, 275 Ky. 588, 122 S.W.2d 128, as well as two cases from Texas and one from Tennessee. We have examined carefully each of these cited authorities and note that for the most part there was qualified, expert medical testimony in addition to the lay proof. In nearly all of the cited cases there was evidence supporting undue influence as well as lack of mental capacity, in which situation we have frequently said that the evidence which tends to show both lack of capacity and undue influence “* * * need not be as convincing as would be essential to prove one or the other alone.” See Roland v. Eibeck, Ky., 385 S.W.2d 37, 40. In Ward v. Norton, Ky., 385 S.W.2d 193, relied on by ap-pellees, there was no issue raised touching the sufficiency of the evidence as to lack of capacity, but the court noted that it was questionable whether the evidence on that score was sufficient to sustain the verdict and cited many cases. Ward v. Norton, Ky., 385 S.W.2d at 195; Smith v. Smith, Tex.Civ.App., 389 S.W.2d 498; and Seigler v. Seigler, Tex.Civ.App., 386 S.W.2d 849, relied on by appellees, are cases in which there was medical and lay testimony reflecting lack of capacity, and in each case the contest was pitched on the combined grounds of undue influence and lack of capacity. The other foreign case cited, In Re Padgett’s Will, 54 Tenn.App. 1, 387 S. W.2d 355, is not apposite, as it deals with questions unrelated to the one at bar.

We think it may not be said that the will before us is an unnatural will, even though it results in devising the relatively modest estate to one nephew to the exclusion of all other members of Hollie’s family. There was evidence that would support the proposition that the disposition was a natural and normal one in light of the circumstances in which the testator wrote it. The propounders met the preliminary burden of showing mental capacity as discussed in Holden v. Bennett, 243 Ky. 667, 49 S.W.2d 568, even if it were assumed that the will was so irrational on its face as to make it apparent that it was the result of lack of testamentary capacity.

After a careful review of the entire record, we are persuaded that the evidence adduced for the contestants lacked sufficient probative value, in light of the authorities we have discussed, to warrant submission of the case to the jury on the issue of lack of testamentary capacity. It follows that the court erred in failing to grant the propounders’ motion for a directed verdict and in failing to sustain pro-pounders’ timely motion for judgment n.o. v.

The judgment is reversed with directions to enter a new judgment upholding the will of Hollie Heflin and affirming the judgment of the Graves County Court admitting said will to probate.

All concur.


text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Mattie HASSELL, Charles E. Jones, Phoenix Assurance Company of New York, and Elmer Moore, Appellees. MARYLAND CASUALTY COMPANY, Appellant, v. Elmer MOORE, and Phoenix Assurance Company of New York, Appellees. PHOENIX ASSURANCE COMPANY OF NEW YORK, Appellant, v. Mattie HASSELL, Charles E. Jones, Maryland Casualty Company, and Elmer Moore, Appellees. PHOENIX ASSURANCE COMPANY OF NEW YORK, Appellant, v. Elmer MOORE, and Maryland Casualty Company, Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Rehearing Denied April 26, 1968.

      John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for Maryland Cas. Co.
    ' John A. McCrea, Louisville, for Mattie Hassell.
    John L. Harbolt, Hargadon, Hargadon, Lenihan & Harbolt, Louisville, for Elmer Moore.
    C. M. Leibson, Leibson & Leibson, Louisville, for Charles E. Jones.
    Henry D. Hopson, Hamilton, Hopson & Hamilton, Louisville, for Phoenix Assurance Co.
   PALMORE, Judge.

On Sunday, December 23, 1962, Elmer Moore had an automobile accident while driving a Ford Falcon station wagon owned by his employer, Simmonds Women’s Apparel (hereinafter Simmonds), a retail clothing establishment. Two guest passengers riding with Moore were injured and brought suit against him for their damages. Both Phoenix Assurance Company of New York (hereinafter Phoenix), which had issued a liability insurance policy to Sim-monds covering its station wagon, and Maryland Casualty Company (hereinafter Maryland), which had issued a similar policy to Moore covering a Buick automobile owned by him, refused to defend against the claims. One of the passengers got judgment for $6,000, the other for $3,S00, and Moore incurred attorney’s fees and costs aggregating $1,218.60. Executions issued against Moore were returned nulla bona, whereupon by supplemental proceedings he and the two passengers asserted claims against Phoenix and Maryland for these amounts. Phoenix and Maryland appeal from a judgment which in substance holds them jointly and severally liable on all three of the claims and requires Phoenix to indemnify Maryland.

The omnibus clause of Phoenix’s policy covers anyone using the Simmonds vehicle “provided the actual use of the automobile is by the named insured or [his] spouse or with the permission of either.” Maryland’s policy covers Moore while using a non-owned vehicle “provided the actual use thereof is with the permission of the owner,” and in that situation applies only as “excess insurance over any other valid and collectible insurance.”

The principal issue in the case is the factual question of whether at the time of the accident Moore was using the station wagon with the “permission” of Simmonds within the meaning of that term as used in either or both of the insurance contracts. It is conceded that such permission may be express or implied. A jury answered “Yes” to the following interrogatory:

“Do you believe from the evidence that at the time the accident occurred * * Elmer Moore was operating the station wagon belonging to Simmonds Wearing Apparel with the express or implied permission of Simmonds Wearing Apparel?
“ ‘Permission/ within the meaning of the provisions of the insurance contracts involved in these actions, is not limited to that expressly granted, but may arise and be implied from circumstances. The use of the Simmonds Station Wagon outside of the Simmonds employment can not be implied unless there had been permission to use the station wagon, or a course of conduct or a practice with the knowledge and acquiescence of the owner such as would indicate to a reasonable mind that the employee, Elmer Moore, had the right to assume permission under the circumstances.”

The insurance companies contend they were entitled to a directed verdict, so the main question here is whether the evidence was sufficient to support the verdict. In reaching the answer this court must, of course, accept the evidence from the standpoint most favorable to the plaintiffs. Lever Bros. Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002, 1004 (1950).

At the time of the accident Moore was about 50 years of age and had been employed by Simmonds for nine months. His job was to keep the premises clean, help decorate the windows, and do all of the delivering. The station wagon was used for the deliveries and usually was left overnight in a parking area next to the Simmonds store building. However, the store was located near Bardstown Road and Douglass Boulevard, in the east part of Louisville, and Moore lived on 28th Street, several miles away in the western portion of the city, and occasionally Moore would drive home in the station wagon and keep it overnight or over the week-end until he returned to work. This happened some 30 times during the nine months of his employment with Simmonds prior to the accident. Though flatly denied by the Simmonds witnesses, suffice it to say that the evidence amply justified the jury’s believing that the management must have been aware of and tacitly acquiesced in this practice.

On Saturday, December 22, 1962, Moore had a late afternoon delivery to make in the West End, so he took the station wagon on to his home afterward. On Sunday, the next day, though he had an automobile of his own, he used the station wagon to take his girl friend out to LaGrange, some 30 miles away, to visit the girl friend’s brother. It was on the trip back to Louisville that the accident occurred and the two passengers were injured.

There was no evidence of any actual knowledge by the Simmonds management that Moore ever had used the station wagon for purposes other than traveling to and from work except for one instance. On or about October 1, 1962, after he had taken it for the night he was arrested for “drunk driving” in Shively, a suburban city just south of Louisville, and the station wagon was temporarily impounded. Simmonds learned of the incident on the next day, and the manager testified that he warned Moore he would be fired “if he ever did that again.” Moore’s version of this conversation was that it took place about three weeks after the incident and he was told “if I got drunk again and got arrested in the station wagon again they were going to fire me.” As it developed, he actually was discharged immediately after the accident out of which the instant litigation arose.

Had the accident happened in the course of Moore’s driving to or from his work there would not be any argument about this case. The problem is whether implied permission to take and keep the car until the next working day kept the insurance policies in force while Moore was using it for a private purpose other than transportation between his house and some place where his employer’s business required him to be. In other words, what was the scope of the implied permission?

Phoenix and Maryland contend that implied permission for Moore to use the vehicle “to go back and forth to work would certainly not extend to permit its use for a trip on Sunday to LaGrange, some thirty miles from Louisville.” It is their view of the law in this state that while minor deviations do not exceed the scope of the permission, material deviations do, and that this was a material deviation. They cite United States Fidelity & Guaranty Co. v. Hall, 237 Ky. 393, 35 S.W.2d 550 (1931), and United States Fidelity & Guaranty Co. v. Brann, 297 Ky. 381, 180 S.W.2d 102 (1944).

In the Hall case the owner gave her son express permission to take her car downtown to a hotel in Louisville to see a friend on business, and she asked him to return by 8:00 or 8:30 P.M. and take her to the home of a sister-in-law. After completing his business the son took two other men and some girls to a place of entertainment outside the city, where they stayed until after 1:00 A.M. On the return trip they had an accident. A judgment holding as a matter of law that the omnibus clause of the owner’s policy covered the son’s operation of the car at the time and place of the accident was affirmed. However, the opinion does not help in this case, because the son was an adult member of the owner’s household and the omnibus clause expressly extended to any person driving the car “with the permission of an adult member of the named Assured’s household other than a chauffeur or a domestic servant.” So, reasoned the court, if by his own permission the son could extend the protection of the policy to someone else, surely he did not need permission from the owner to be covered himself.

In the Brann case a young man who worked for a grocer as a delivery man, and who had a close relationship with the grocer and his wife, was asked by the grocer on a Sunday morning to take the delivery truck and gather up a group of young men for a Sunday School class taught by the grocer. The young man complied, after which he returned the truck to the garage where it usually was kept. However, instead of hanging the truck keys back up where they belonged at the store, he kept them in his pocket. In the afternoon, after the grocer and his family had gone somewhere else in their passenger car, the delivery boy took the truck and went joyriding with some of his friends, in the course of which he had a collision with another vehicle and injured its occupants. He was insolvent, and after obtaining judgments against him the injured parties sought recovery from the grocer’s insurer under the omnibus clause. A judgment entered in their favor on a verdict based on implied permission was reversed.

There was no evidence in Brann that the delivery boy had ever used the truck without the express permission of its owner. His possession of the truck at the time and place of the accident did not originate from and therefore was in no sense a “deviation” from a permitted use. At the time he took possession of the truck during the absence and without the knowledge of the owner he had no permission whatever, express or implied, and that is the basis on which this court held the evidence insufficient to support the verdict.

In Scott v. Massachusetts Bonding & Insurance Company, Ky., 273 S.W.2d 350 (1954), the omnibus clause of a policy issued to Pike County and covering its motor vehicles was held inapplicable to a situation in which a truck driver who had been instructed to spread gravel on two county roads used the truck to deliver gravel to a private party on another road and, in so doing, allowed a 15-year-old boy to drive it. Pointing out that the truck had been classified in the policy as “commercial,” the court commented that “a general permission, or a comprehensive permission, is much more readily to be assumed where the use of the motor vehicle is for social or non-business purposes than where the relationship of master and servant exists and the employment of the motor vehicle is for business purposes.” 273 S.W.2d at p. 352.

In Vezolles v. Home Indemnity Co., New York, 38 F.Supp. 455 (W.D.Ky.1941) (aff’d, 128 F.2d 257), a young man named Ruemmele and his girl friend visited until 2:30 or 3:00 o’clock in the morning with another young couple named Morton. Ruem-mele had no transportation of his own and had borrowed Morton’s car to pick up the girl friend. When the party broke up Morton let Ruemmele use the car to take the young lady home, telling him to return to Morton’s house so that Morton might then take him home. When Ruemmele arrived back at the Morton home the Mortons had retired, the house was locked, and he could not arouse them, so he took the car and went to a cafe located four blocks beyond the street on which he lived. There he met another friend, and they decided to take a ride before going home. They drove still farther away from the vicinity of Ruem-mele’s residence, perhaps a mile, and were continuing away when the car ran over a pedestrian. The pedestrian obtained a judgment against Ruemmele which proved to be uncollectible, so she sued Morton’s insurer under the omnibus clause of its policy. In upholding a verdict in her favor and denying a judgment n.o.v., the late and distinguished Shackleford Miller, then United States District Judge and later Judge of the Circuit Court of Appeals for the Sixth Circuit, wrote as follows:

“The purpose of the omnibus clause was to extend the coverage beyond the limitations which would otherwise exist under the law of principal and agent. Its addition to the usual terms of liability insurance policies was for the purpose of increasing the advantages of the policy being purchased, to provide additional coverage, and to be used as a selling point in competition with other standard policies. To give it a construction which is closely parallel to the existing law of principal and agent would ignore the evident purpose of its being made a part of the policy. In my opinion the purpose of the omnibus clause was to extend the liability insurance coverage to a person other than the owner who had the possession and use of the car with the permission of the owner for a somewhat limited period of time, without arbitrary and definite restrictions as to just what could be or what could not be done with the car during that period of time. The time element during which the use is permitted by the owner is in my opinion the element to be stressed rather than the particular use to which the car is put, so long as the particular use does not vary materially from the contemplated or usual use of a car under similar conditions. The main purpose of the clause is to substitute the operator of the car for the owner of the car while the car is being operated with the permission of the owner. This purpose is not given effect to its normal and full extent if we adopt the limitations now urged upon us by the defendant.”

The Hall, Brann and Vezolles opinions all are analyzed and discussed in Yorkshire Indemnity Co. of New York v. Collier, 172 F.2d 116 (6 Cir., 1949), in which one Legg, a farm hand on the stock farm of Warner Jones, Jr., a prominent horseman, had an accident while joyriding with his girl friend in the Jones automobile. He had been instructed to wash the car, have it serviced at a garage about a mile and a half up Highway 42, and return it to the farm by 5 o’clock. After washing the car, Legg took his girl friend with him to the garage, had the car serviced, and decided to go up the road “for a little pleasure trip,” in the course of which he collided with two other vehicles at a point on U. S. 42 four or five miles beyond the garage or service station. An occupant of one of the other automobiles involved in the accident was injured and obtained a judgment against Legg, which proved to be uncollectible. She then brought suit in federal court against Mr. Jones’ insurance carrier under the omnibus clause of its policy. At the close of the evidence the court directed a verdict for the plaintiff, explaining to the jury that Legg’s deviation from his mission in riding up the highway with his girl “was not such an unwarranted or unusual use of the car” as would, in view of the omnibus clause, vitiate the coverage of the policy. In affirming a judgment entered pursuant to the directed verdict, the Circuit Court of Appeals concluded as follows (172 F.2d at p. 122) :

“In both the Vezolles case and the case at bar, the time element of permissive use broadly distinguishes them from the Brann case. Viewing the Brann case in its complete aspect, we consider it, as well as the Vezolles case, as authority under Kentucky law for affirmance of the judgment herein.”

In a comprehensive annotation entitled, “Automobile liability insurance: permission or consent to employee’s use of car within meaning of omnibus coverage clause,” 5 A. L.R.2d 600, it is said (5 A.L.R.2d at p. 622) that the courts throughout the country divide along three lines in determining whether a deviation from the purpose and use for which permission is granted will preclude coverage of an employe under the omnibus clause. At one extreme is the “strict” rule that the vehicle must have been used for a purpose reasonably within the scope of the permission given and that any deviation as to time or place will defeat liability. At the other extreme is the “liberal” rule that if the employe has obtained possession by permission, such permission extends to any and all uses of the vehicle. In between, and most difficult to apply, is the “minor deviation” rule that a “slight” deviation from the scope of the express or implied permission will not lift the coverage but a “material” deviation will. On the basis of the authorities we have thus far discussed, Kentucky is listed as belonging to the last school of thought. Cf. 5 A.L.R.2d at pp. 625 et seq.

It will be noted that all of the cases we have mentioned deal with the omnibus clause, under which the owner’s insurance is extended to third parties using the vehicle with permission. With respect to Maryland, however, we are concerned with the clause under which the insured himself is covered while using a vehicle he does not own, and although the language of the two clauses relating to “permission” is virtually identical, we are of the opinion that they do not call for the same construction.

Under the omnibus clause the insurance company extends its coverage to third parties in reliance on the judgment and discretion of its insured in giving his permission. It really does not bargain for risks arising outside and beyond what is fairly within his contemplation when he gives that permission, whether it be express or tacit. Therefore it is proper that such permission not be stretched beyond what he ought reasonably to foresee at the time and under the circumstances of the permission. But when the driver of an automobile, by whomsoever it may be owned, is the insured himself, he is the same man on whose skill and judgment the company relied. Should he steal a car and flee, of course, the risk of accident increases beyond what the company is willing to insure against, but under almost any other circumstances it is hard to understand what difference it would make to the insurer whether he does or does not have permission to use the vehicle. And so we are of the opinion that under that clause of Maryland’s policy insuring Moore while using a non-owned vehicle with the permission of its owner the “liberal” or “initial permission” rule should prevail, and that since at the time of the accident Moore had possession of the station wagon with the tacit permission of its owner it is immaterial that the purpose and place may not have been within the scope of such permission.

The jury’s finding that Moore was operating the station wagon with the permission of Simmonds was tantamount, of course, to a finding that he had possession of it with the consent of Simmonds. That, in our opinion, is enough to satisfy the permission requirement of Maryland’s clause covering Moore while using a non-owned vehicle, With respect to Phoenix, however, a majority of the court is of the opinion that the Sunday trip to LaGrange was not fairly within the contemplation of Sim-monds in suffering Moore to use the station wagon and was therefore a material deviation, exceeding the scope of the implied permission.

The judgment is affirmed in part and reversed in part with directions that a judgment be entered dismissing the actions as to Phoenix and awarding recovery in full against Maryland.

All concur except that OSBORNE, J., would apply the “liberal” or “initial permission” rule to both policies and would affirm the judgment of the circuit court.


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    Richard W. SHIELDS and Herbert H. Monsky, Co-administrators of the Estate of Thelma M. Shields, Deceased, Appellants, v. Larry R. GOINS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 17, 1967.
    Rehearing Denied April 26, 1968.

      Edwin Cohen, Cohen & Cohen, Louisville, for appellants.
    Herman L Humphrey, Louisville, for appellee.
   DAVIS, Commissioner.

This action stems from a two-car collision at the intersection of Norris Place and Deerwood Street in Louisville. A jury returned a verdict denying recovery for the claimed wrongful death of Mrs. Thelma M. Shields, driver of one of the vehicles. This appeal seeks reversal of the judgment entered on the verdict and presents four grounds of error: (1) the testimony of an important witness was erroneously excluded; (2) the appellee was guilty of gross negligence so that contributory negligence of the decedent is no bar to recovery; (3) an erroneous instruction was given as to the right-of-way of the appellee; and (4) an instruction on last clear chance should have been given.

The accident occurred on a clear day in December at a time when the streets were dry and visibility good. For convenience we shall refer to the participants as Mrs. Shields and Goins. For practical purposes we shall regard Norris Place as running in a north-south direction and Deerwood Street as running in an east-west direction.

Goins was traveling north on Norris Place in a black Chevrolet Impala car; there were three passengers with him. Norris Place is the boulevard or preferred street at its intersection with Deerwood. Mrs. Shields was traveling eastwardly along Deerwood and had stopped her station wagon in compliance with a fixed stop sign for traffic on Deerwood. The speed limit along Norris Place as fixed by ordinance of the City of Louisville was thirty-five miles per hour. Goins made various estimates of his speed, ranging from forty to forty-five miles per hour. According to the evidence for Goins, he observed Mrs. Shields’ vehicle stopped at the intersection when he was more than 240 feet south of the intersection. When Goins passed an alley about 240 feet from the intersection, he observed Mrs. Shields move her car slightly, but he testified that she did not enter the intersection at that time but stopped again, and he assumed that she would remain stopped until he had passed the intersection. However, when Goins had come to another alley about 141 feet south of the intersection, he saw Mrs. Shields driving her car eastwardly in an effort to cross the intersection in front of him. He said that he then locked his brakes and did all that he could to avoid colliding with her car, but to no avail. The passengers in Goins’ car substantially corroborated his version of the accident.

There were two passengers in the Shields station wagon, but neither of them saw the Goins car until it was right on them. Mrs. Shields gave no outward sign of serious injury just after the accident, and she related to an investigating officer that she never did see the Goins car. There were various estimates as to the length of skid marks laid down by the Goins car, ranging from forty-five to one-hundred feet. Norris Place is thirty-six feet wide and has two driving lanes and two parking lanes at its intersection with Deerwood. Goins was unable to recall any car parked in the northbound parking lane, and there was some indication that the front of Mrs. Shields’ vehicle had reached the parking lane on the east side of Norris Place at the moment of impact.

It was shown that Goins had observed an acquaintance passing in a green Chevrolet and that he abruptly took off from a parked position in pursuit of the acquaintance. Goins denied that he was pursuing the Chevrolet, but explained that he intended to proceed to a place or places (two) to which he anticipated the acquaintance would go. The appellants seek to imply that Goins was hotly pursuing his acquaintance, but there was no direct evidence to support that theory-

The administrators of Mrs. Shields’ estate offered a witness who testified by avowal that he saw a black Chevrolet Impala just before the time of the accident and that the car was then traveling about forty-five miles per hour, and he heard its tires “scream” as it rapidly turned a corner. The witness was unable to say that the car he saw was the one being operated by Goins. The trial court excluded the evidence on the theory that there was no proper identification warranting its admission. We believe that the trial court was correct in its ruling, but even had it not been so, it is our view that no prejudicial error occurred in rejecting the evidence. This is so because there was an abundance of testimony including admissions by Goins himself of a speed as great as that related by the proffered witness. The avowal testimony would have been merely cumulative.

Appellants tendered instructions which would have authorized the jury to find in behalf of Mrs. Shields’ estate, even though they regarded her as having been contributorily negligent, if the jury believed that the negligence of Goins was wanton. In support of their contention that the instruction should have been given, the appellants cite Casey v. Com., Ky., 313 S.W.2d 276, and Ratliff v. Big Sandy Co., Ky., 389 S.W.2d 911. Those decisions would be persuasive if the evidence revealed conduct on the part of Goins which could be characterized as wanton. It does not. It is our view that the trial court correctly refused the tendered instructions because there was no evidence to support a finding that Goins was guilty of wanton negligence as defined in the authorities relied upon by appellants.

The appellants complain that the trial court erroneously instructed the jury that Goins had an absolute right-of-way at the intersection. Reliance is had upon Thomas v. Dahl, 293 Ky. 808, 170 S.W.2d 337, and Siler v. Williford, Ky., 375 S.W.2d 262, for the general proposition that the matter of right-of-way is not an unqualified right but a relative one notwithstanding the literal language of the statute. The argument fails because the trial court gave a proper instruction relating to Mrs. Shields’ duty “ * * * to yield the right-of-way to traffic on Norris Place including the automobile being operated by the defendant, Goins, which traffic was then in the intersection or so near to it as to constitute an immediate hazard, and not to enter the intersection unless and until she could do so with reasonable safety.” This instruction did not give Goins an absolute right-of-way, but complied with KRS 189.330(4) and (5). Riggs v. Miller, Ky., 396 S.W.2d 69.

The appellants contend that the court erred in refusing to give an instruction upon last clear chance. In support of that contention, Louisville Taxicab & Transfer Co. v. Tungent’s Adm’r, 313 Ky. 1, 229 S.W.2d 985, is cited. We consider the factual situation at bar distinguishable from that presented in the just cited case. We consider the rationale of Desgrosiellier v. Vaughn, Ky., 320 S.W.2d 304, as ruling the case at bar. In commenting upon the issue at hand, it was said in Desgrosiellier:

“While the doctrine of last clear chance has been recently applied in this jurisdiction in cases involving collisions between moving vehicles (Louisville Taxicab & Transfer Co. v. Tungent’s Adm’r, 313 Ky. 1, 229 S.W.2d 985), we are of the opinion that it should not be applied to the ordinary intersection accident case in which the act creating the peril occurs almost simultaneously with the happening of the accident and in which neither party can fairly be said to have a last clear chance thereafter to avert the consequences.”

Of like import see Freeland v. Todd, Ky., 379 S.W.2d 723; Seamon v. Bolton, Ky., 351 S.W.2d 51; and Smith v. Crenshaw, Ky., 344 S.W.2d 393. It is our view that the facts of the present case do not present a sufficiently substantial case of last clear chance to justify an instruction upon that theory.

The judgment is affirmed.

All concur.