author: EDWARD P. HILL, Judge. MONTGOMERY, Judge

text:
    Truman HOLLINGSWORTH d/b/a Tompkinsville Transfer Company, Appellant, v. SKAGGS TRANSFER, INC., Department of Motor Transporation, Commonwealth of Kentucky, and Ben M. Combs, Commissioner, Appellees.
    Court of Appeals of Kentucky.
    June 9, 1967.
    Robert M. Pearce, Bowling Green, for appellant.

      Rudy Yessin, Frankfort, Virgil Gaitskill, Dept, of Motor Transportation, Frankfort, for appellees.
   EDWARD P. HILL, Judge.

This appeal is from a judgment upholding an order of the Commissioner of Motor Transportation prohibiting appellant Truman Hollingsworth, doing business in the name of Tompkinsville Transfer Company, from serving the town of Glasgow, Kentucky, from Louisville, Kentucky, in the motor freight business.

Appellee Skaggs Transfer, a corporation, initiated the controversy by filing with the Department of Motor Transportation a complaint against appellant seeking to prohibit appellant from serving the town of Glasgow from Louisville.

We shall adopt a large portion of the well-reasoned and able order of the Department of Motor Transportation.

On June 14, 1937, the (then) Division of Motor Transportation granted to Hagan, Landrum, Cook and Company of Tomp-kinsville, Kentucky, the certificate referred to herein as Common Carrier Certificate No. 358, which is the subject of this proceeding. This certificate of public convenience and necessity granted to Hagan and others authority “to operate a common carrier motor freight line from LOUISVILLE, KENTUCKY, TO THE KENTUCKY-TENNESSEE 'STATE LINE VIA GLASGOW AND TOMPKINS-VILLE SERVING ALL POINTS SOUTH OF GLASGOW, KENTUCKY, TO THE KENTUCKY-TENNESSEE STATE LINE VIA TOMPKINSVILLE AND SERVING ALL POINTS NORTH OF THE KENTUCKY-TENNESSEE STATE LINE TO GLASGOW VIA TOMPKINSVILLE; AND RESTRICTED FROM HANDLING ANY TRAFFIC FROM GLASGOW TO LOUISVILLE AND INTERMEDIATE POINTS.”

Complicating our interpretation of the above authority is the fact that in the same order, in the paragraph immediately following, another authority was granted which is not involved in this litigation except as it may shed light upon the interpretation of Certificate 358. This other authority granted to Hollingsworth provided that:

“[A] certificate of public convenience and necessity to operate a motor freight line between LOUISVILLE AND THE KENTUCKY-TENNESSEE STATE LINE VIA GLASGOW, KENTUCKY, AND TOMPKINSVILLE, KENTUCKY, SERVING ALL POINTS FROM GLASGOW SOUTH TO THE KENTUCKY-TENNESSEE STATE LINE AND ALL POINTS NORTH FROM THE KENTUCKY-TENNESSEE LINE TO AND INCLUDING GLASGOW, KENTUCKY, VIA TOMPKINSVILLE, KENTUCKY BUT RESTRICTED FROM SERVING ANY POINTS BETWEEN LOUISVILLE AND GLASGOW AND INCLUDING GLASGOW FROM LOUISVILLE.”

Counsel for appellant argues that the specific restriction contained in the latter authority was worded “but restricted from serving any points between Louisville and Glasgow and including Glasgow from Louisville,” while the specific restriction contained in Certificate 358 was worded “and restricted from handling any traffic from Glasgow to Louisville and intermediate points.” Counsel for appellant states :

“It stands to reason that if the director was attempting to impose the same restriction on Hagan, Landrum, Cook and Company as was imposed on Gid Hol-lingsworth in this order, that identical language or similar language should have been used. This the director did not do. One application was restricted 'from' Glasgow 'to' Louisville; the other 'between’ Louisville and Glasgow and including Glasgow. This language is so dissimilar insofar as its restrictive nature is concerned that no one could seriously argue that the director was attempting to impose the same type restriction on both applicants.”

In considering this argument, we must first return to the first portion of the authority covering the appellant’s southbound operation, which the appellant would have us read “serving all points south from Glasgow, Kentucky, to the Kentucky state line,” thereby including Glasgow in its southbound authority. However, in construing a point to point authority, the interpreter must have a point of beginning and the phrase, “all points south” standing alone gives us no point of beginning since the term “south” is nothing more than a direction. We must, therefore, extend this phrase to read “serving all points south from Glasgow, Kentucky,” arriving at the first service point south of Glasgow as the point at which the appellant may begin to render service out of Louisville, Kentucky.

It should be remembered that Director Moore’s order was issued in the year 1937. Specific meanings for particular words and the use of tried and proven clauses to grant or restrict motor carrier authority had not been developed to any degree even approaching the present level. It is our opinion that it was the intention of this order to grant the same authority to each applicant. The latter was more carefully restricted because the wording preceding the restriction might be given a broader interpretation than was intended had such a restriction not been employed. Such a restriction was not necessary in Certificate 358 because the service point description effectively imposed the same restriction.

There are other reasons for this conclusion. We have available to assist us the original application for Certificate 358 wherein the applicant stated:

“We accept restrictions between Louisville, Kentucky and Glasgow, Kentucky, but ask to serve intermediate points between Glasgow and TompkinsviUe.” (Emphasis added)

The transcript of the hearing on the application of Hagan, Landrum, Cook and Company consisted of the testimony of one of the applicant’s witnesses questioned by Director Moore. This witness stated:

“We want to operate over Highway 63 to Glasgow. We want to serve all points between Glasgow and TompkinsviUe and go on to Louisville; but we don’t want to serve any points between Glasgow and Louisville and then back from Louisville via Glasgow; and do not want to serve any between Louisville and Glasgow or in Glasgow, but want pick-up privileges from Glasgow to TompkinsviUe and all points between Glasgow and Tompkins-ville.”

Director Moore in questioning this witness asked the direct question, “Do you ask to serve Glasgow out of Louisville?” to which the witness responded, “No; just out of Glasgow.” On the basis of this and other testimony of a restrictive nature, Whitney Transfer Company, predecessor of appellee’s authority, withdrew its protest.

The testimony introduced on behalf of Gid Hollingsworth for the authority here-inabove compared to Certificate 358 contains this exchange between Director Moore and Gid Hollingsworth:

“Q. Mr. Hollingsworth, go ahead and state your application, where you desired to operate and so on.
“A. Just exactly as Hagan, Landrum, Cook and Company except I have in my application to the Tennessee state line, and they don’t have. I think you will find that.
“Q. You wish to operate from Louisville to Glasgow?
“A. That’s right.
“Q. But be exempt from handling any freight between Louisville and Glasgow either way?
“A. That’s right.”

From the foregoing it seems clear that neither applicant sought authority to serve either Glasgow from Louisville or Louisville from Glasgow.

The notice of the hearing on the application for Certificate 358 indicated that applicant sought a common carrier truck certificate to operate a motor freight line from “Louisville, Kentucky, to Tompkins-ville with restrictions between Louisville and Glasgow, asking to serve intermediate points between Glasgow and Tompkinsville * * We think this clearly indicated an intention to restrict the authority from serving Glasgow out of Louisville and that the authority resulting from the order of the director was not likely to exceed that indicated by the notice of hearing on the application for such authority.

Another significant circumstance supports the interpretation given Certificate 358 by the judgment appealed from, which is, a hearing held by the director on January 19, 1939, pursuant to a complaint by ■appellee’s predecessor against appellant. This complaint was based on one shipment of freight from Louisville to Glasgow by appellant. At this hearing, appellant’s witness Bedford denied authorizing this shipment and went on to say that, “If he (the truck driver) had asked us about it, we would have told him not to bring the wire.” Whereupon Director Moore asked: “You will instruct your drivers in the future not to make any more deliveries into Glasgow?” To which Bedford answered: “Yes, sir.” Although no formal order was entered in connection with this complaint, it is apparent the complainant was satisfied with the explanation and the position taken by the owners of Certificate 358.

Appellant next contends that regardless of the interpretation of Certificate 358 by "tacking” it with Certificate 465 (also held by him) he is authorized to render service between Glasgow and Louisville. Certificate 358 has been construed previously to authorize service between Louisville, Kentucky, and points south of Glasgow, but not including Glasgow. Certificate 465 authorizes the following service:

“From Glasgow, Kentucky, to Tompkins-ville, Kentucky, through Barren and Monroe Counties. This Certificate grants permission to operate a motor freight line from Glasgow, Kentucky, to Tompkinsville, Kentucky, and return via Highway 63, with intermediate stopping points at Temple Hill, Mt. Herman and Mud Lick;. also from Tompkinsville to Center Point by Highway 100, with intermediate stopping point at Moshack; also from Tompkinsville, Kentucky, to Fountain Run, Kentucky, via Highway 100 and 63, with intermediate stopping points at Gamaliel and Flippin.”

KRS 281.600 provides in part that “The Department of Motor Transportation shall exercise all administrative functions of the state in relation to motor transportation as defined in this chapter, and shall apply, as far as practicable, the administrative and judicial inter* retations of the Federal Motor Carrier Act * *

Apparently relying on this statute, appellant cites numerous decisions of the Interstate Commerce Commission authorizing “tacking” or consolidating authorities. We do not consider these authorities controlling in view of KRS 281.631(1) which provides:

“Every holder of a certificate of public convenience and necessity issued by the Department of Motor Transportation authorizing the transportation of persons or property for hire, which certificate authorizes service at a point that is also a point at which service is authorized under the terms of any other certificate of the same type held by the same person, is authorized to transport persons or property, as the case may be, for hire, from any point on either of said certificated routes via such common point of service to any point on any other such connecting certificated route or routes, unless such service he restricted by the terms of any of said certificates." (Emphasis added)

Subsection (2) of the above quoted statute makes the intention of the Legislature crystal clear by providing that:

“It is the purpose of this section to further clarify the provisions of KRS Chapter 281 relating to the application of the administrative and judicial interpretations of the Federal Motor Carrier Act to the administration of KRS Chapter 281.”

It is concluded the restriction in Certificate 358 does prohibit the “tacking” of the two certificates. It is true the specific restriction in Certificate 358 limits service only “from Glasgow to Louisville and intermediate points.” Yet, the positive statement of the authority itself accomplishes a limitation of service from Louisville to Glasgow by authorizing no service southbound from Louisville until reaching a point “south of Glasgow.” It is concluded the holder of Certificate 358 is restricted from rendering any service between Glasgow and Louisville in either direction. Therefore, Certificate 358 may not be “tacked” at Tompkinsville or at any other point with Certificate 465 for the purpose of serving Glasgow from Louisville or vice versa.

Finally appellant contends he is authorized to render Louisville-Glasgow service by reason of the grandfather clause of KRS 281.665(1), which reads:

“Grandfathering of certain pre-1954 operations; exempted commodities.
“If any person or predecessor in interest was in bona fide operation as a motor carrier or a local cartage operator by motor vehicle on December 31, 1953, over the route or routes or within the territory for which application is made and has so continuously operated since that time, the department shall issue a certificate or permit granting such authority as the proof of past operations may warrant after a hearing held to determine that the applicant has so operated without requiring further proof that convenience and necessity will be served by such operation.”

This statute clearly comtemplates the filing of an “application” for such authority. No application has been filed; hence, the statute does not apply.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, STEINFELD, and OSBORNE, JJ., concur.

MONTGOMERY, J., dissents.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent because I feel that appellant’s business, after twenty-eight years of unquestioned, continuous service to Glasgow, should not now be seriously disturbed by an interpretation of a certificate which is so ambiguously drawn. The certificate under which appellant operated during that period .was issued June 14, 1937. No serious question was ever raised concerning its meaning until the present controversy. While I am not advocating certificate by prescriptive right, I do think that the doctrine of contemporaneous construction would require an acceptance of an interpretation of the language of the certificate to include appellant’s right to serve Glasgow as it had done, unquestioned, for twenty-eight years.

The principle of contemporaneous construction has long been used in construing constitutional and statutory enactments when the language was ambiguous. Board of Education of Louisville v. Sea, 167 Ky. 772, 181 S.W. 670; Nichols v. Wells, 2 Ky. (Sneed) 255; City of Louisville v. Kesselring, Ky., 257 S.W.2d 599. No reason is perceived why such rule of construction should not apply to the certificate in question.

A particularly pertinent case of contemporaneous construction is Clark’s Run & S. R. Turnpike Road Company v. Commonwealth, 96 Ky. 525, 29 S.W. 360, 16 Ky.Law Rep. 681, involving the construction of the charter of a turnpike company’s right to erect toll gates. When the turnpike company’s right was questioned in a quo warranto proceeding, it answered and “ * * * justified the erection and maintenance of the gates, upon the ground that it had the right to do so by virtue of the provisions of its charter, or if, upon a strict construction of the language, it might not have such right, yet that this right has been exercised continuously for more than 30 years, and had been acquiesced in by the state and the public for that length of time without complaint; and that this construction of the provisions of the charter asserted continuously and uninterruptedly for so long a time itself fixed a practical interpretation of these provisions, and established a right in the company in the nature of a right by prescription, now too late to call in question.”

It was therein held that a construction of the ambiguous provisions of the charter adopted by the incorporators and officers of the company for some thirty-four years which had been acquiesced in and, in effect, adopted by the public and the officers of the state and county for the length of time mentioned should prevail. In applying the principle of contemporaneous construction, this court upheld the right of the turnpike company to maintain toll gates as it had in the past. In doing so, it was pointed out that the practical construction given by those who enforce or those who carry into effect a charter is entitled to great respect and is perhaps decisive in cases of doubt.

I think the authorities cited require that the construction placed on Certificate Number 358 by appellant, other common carriers, the Department of Motor Transportation and its predecessors, and the public generally for twenty-eight years, whereby appellant was allowed to serve Glasgow, should continue to be recognized as the accepted construction of an ambiguous certificate. A construction which works inequality and hardship will not be enforced unless such construction is manda-torily required by the language employed. Martin v. Gage, 281 Ky. 95, 134 S.W.2d 966, 126 A.L.R. 449. Such a construction of the certificate here is not mandatorily required.

Therefore, I feel that the majority opinion is in error.


source: Caselaw Access Project

author: STEINFELD, Judge. PALMORE, Judge

license: Public Domain

text:
    Stanley SHOCKLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 9, 1967.

      Frank R. Goad, Douglas Keen, Titus. Lyle, Keen & Lyle, Val A. House, Jr., Scottsville, for appellant.
    Robert Matthews, Atty. Gen., Charles W.. Runyan, Asst. Atty. Gen., David Martin, Commonwealth’s Atty., Franklin, James S.. Secrest, County Atty., Scottsville, for ap-pellee.
   STEINFELD, Judge.

On February 11, 1966, the dwelling of J. B. Tracy located in Allen County was broken into and a number of articles were taken from it. Truman Mays, the sheriff of that county and W. C. Smith, detective of the Kentucky State Police, investigated and traced a number of the stolen articles to Carl Pedigo. After interrogation, Pedigo confessed to the crime and implicated Stanley Shockley, the appellant herein. Without a warrant a deputy sheriff of Allen County arrested Shockley. He was held in jail for about a week and then permitted to make bail. On April 25, 1966, Shockley was indicted for dwelling house breaking which accused him of breaking into the Tracy home on February 11, 1966, and a bench warrant was issued for his arrest.

On May 3, 1966, Douglas Keen was appointed by the court to represent Shockley at his arraignment that same day. Shockley pled not guilty. His attorney moved for a continuance. The attorneys agreed, and the court ordered, that the trial take place on September 27, 1966. On September 17, 1966, a bench warrant was issued and Shockley again was arrested, this time on the indictment. On September 27, 1966, Shockley appeared and three lawyers, Frank R. Goad, Val A. House, Jr. and Douglas Keen were appointed to represent him at his trial. They moved that the case be set over for a later date so that they could prepare for trial. The court set the trial for October 10, 1966. For reasons not revealed by the record, on October 6, 1966, the court called the Shockley case for trial. Mr. Keen was absent from the county. Mr. Titus Lyle, also a practicing attorney, was appointed as additional counsel for Shockley to assist in this trial. On October 6, 1966, in behalf of Shockley, Lyle made a motion for a continuance and a motion to dismiss the indictment but the motions were overruled. The trial was held on October 6, 1966, at which Shockley was represented by Messrs. Goad, House and Lyle. At the conclusion of the Commonwealth’s evidence, the defendant moved for a directed verdict which motion was overruled. Evidence on behalf of the defendant was presented and after the jury was instructed and heard arguments of counsel it found Shockley guilty as charged in the indictment and fixed his punishment at three years in the penitentiary.

Shockley moved for a new trial in which motion he made many of the same contentions which are presented on this appeal.

Shockley claims that his arrest which occurred before the indictment was illegal and that all further proceedings following the indictment were void; therefore, he says that he was entitled to have the indictment dismissed. He relies upon the 5th Amendment of the Constitution of the United States and Section XI of the Kentucky Constitution. The 5th Amendment provides that “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, * * * There are certain exceptions not applicable here. Section XI of the Kentucky Constitution, among other things, provides in substance that the accused has the right to demand the nature and cause of the accusation against him. This court cannot consider these complaints because they are raised for the first time on this appeal. It is now too late. Lewis v. Commonwealth, Ky., 318 S.W.2d 857; Collins v. Commonwealth, Ky,, 297 S.W.2d 54, cert. den. 355 U.S. 816, 78 S.Ct. 16, 2 L.Ed.2d 32.

He also relies upon KRS 431.025 which states the procedure for making a valid arrest. Among other things, it requires that the person making the arrest inform the person being arrested of the intention to make the arrest and the nature of the offense for which the arrest is being made. This contention also was raised for the first time in this court. It is too late. Ramsey v. Commonwealth, Ky., 267 S.W.2d 730; Patton v. Commonwealth, Ky., 273 S.W.2d 841.

• The next point on which Shockley relies for a dismissal of the indictment and his release is the fact that he was not informed of his constitutional rights to remain silent, to confer with an attorney and to have an attorney present with him at any interrogation. He cites Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, in support of his argument.

The Commonwealth counters by contending that Miranda stands for the principle that the warnings are required in connection with the use by the prosecution of statements or confessions. No statement or confession of Shockley was used at the trial. We consider the contention made by Shockley to be without merit, for if there was a violation of any constitutional rights this was not prejudicial to him. Matthews v. Commonwealth, 261 Ky. 484, 88 S.W.2d 8.

The next contention is that Shockley was entitled to a continuance and was prejudiced by the failure of the court to grant one. As heretofore pointed out the trial was originally set for October 10, 1966, but over Shockley’s objection it was advanced to October 6, 1966. The counsel with whom he had conferred at the arraignment, Mr. Keen, was out of the county. There was a motion by Shockley to continue the trial but on other grounds. He cannot now complain that he was prejudiced by the advance of the case. (See cases above cited on other points.)

He next complains that the court erred in not sustaining his motion for a continuance on the grounds that the panel from which the jury was selected had heard •discussions concerning him between his appointed counsel and attorneys for the Commonwealth. He also claims that the panel heard remarks from the court all of which were prejudicial to him. No affidavit or writing was filed in support of the motion for continuance which is required. CR 43.03. Harlan-Central Coal Co. v. Gross, 298 Ky. 540, 183 S.W.2d 550. Furthermore, there is nothing in the record from which we can discern the nature of the conversations and remarks; therefore, we cannot find that the trial court acted incorrectly.

Counsel for Shockley complains that the accused was entitled to a continuance for the reason that his appointed counsel had not had sufficient opportunity to make a defense. We have examined the record and find that the motion for a continuance was made exclusively on the basis herein-above mentioned and that there was no motion made to delay the hearing because of inadequate time to prepare. On a motion for a new trial this contention was first asserted. We point out that three practicing lawyers were appointed for the defendant on September 27, 1966. The trial was started nine days later. If these lawyers had not had time to prepare it was their duty to make the motion for a continuance at the beginning of the trial and to apprise the trial court of the basis of the motion. CR 43.03. The trial court was entitled to an opportunity to properly exercise his discretion before the trial started. Dunn v. Commonweatlh, Ky., 350 S.W.2d 709. The overruling of the motion for a new trial for failure to continue the case was not reversible error. Hood v. Commonwealth, 303 Ky. 686, 198 S.W.2d 793.

It is the contention of the appellant that he was entitled to a continuance because a material witness subpoenaed by him failed to appear. No affidavit was filed and no motion was made prior to the trial to continue on that ground. There is no merit in this contention for the reasons already stated. Furthermore, CR 43.03 provides what must be done in order to obtain a continuance because of the absence of a witness. This procedure was not followed.

He next contends that the conviction was based upon insufficient evidence. Shockley was implicated in the commission of the crime and in the activities of the other participants after the crime. Testimony linked the stolen goods to Shockley. There is no merit in this contention.

We have given very careful consideration to the other contention for reversal which is asserted herein. When Shockley was testifying in his own defense he was asked questions by his counsel and he made answers as follows:

“65. Stanley, some of the members of your family have been in trouble, and I believe you have also before, haven’t you?
A. Yes sir, I sure have.
66. You’ve told the Jury all you know. Now tell them if you’ve been to the penitentiary?
A. Yes sir, I sure have.
67. And when did you get out ?
A. April 14, 1965.”

Shortly after his direct examination was concluded he was interrogated on cross examination and made answers as follows:

“70. Stanley, you say you’ve been in the penitentiary before?
A. Yes sir.
71. For what?
A. Dwelling house breaking.”

The transcript of evidence shows that immediately the following occurred:

“MR. LYLE: Your Honor, we’d like to request that you admonish the Jury that the only purpose this testimony can be considered for is to impeach the witness, if it does.

MR. MARTIN: I didn’t bring it out. They did that on direct.

THE COURT: Well now we are just trying him on this issue alone.

MR. MARTIN: That’s all I wanted to ask him. Just what he’d been in for, and he said dwelling house breaking.

THE COURT: Well just don’t go into it any further.”

Shockley contends that he was entitled to have the jury admonished that it should consider his previous conviction only for the purpose of affecting his credibility as a witness if it believed that it affected his credibility.

He relies upon Cowan v. Commonwealth, Ky., 407 S.W.2d 695, wherein we said: “A witness may be asked if he has been convicted of a felony. If he says ‘Yes,’ that must be the end of it, with the usual admonition. If he says ‘No,’ refutation by the record will be limited to one previous conviction, again with the admonition.” Cow-an explained the meaning of CR 43.07 which states the methods to be used in impeaching a witness.

CR 43.07, among other things, says: “ * * * that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony.” This impeachment method discussed in Cowan is deep seated in the Kentucky law. It has been authorized by a provision of the Kentucky Civil Code for many years. Carroll’s Kentucky Civil Code, section 597. In criminal prosecutions it contemplated that “Evidence as to the character of the defendant as a witness must first be introduced by the commonwealth and may then be rebutted by the defendant by testimony of the same kind. It is confined to evidence of general moral character, and for truthfulness or veracity.” Shell v. Commonwealth, 245 Ky. 223, 53 S.W.2d 524. In the Shell case we said: “It is the duty of the court to admonish the jury the purpose for which the evidence is introduced.”

An earlier case which discussed this law was Atkins v. Commonwealth, 224 Ky. 126, 5 S.W.2d 889, wherein a conviction was reversed because of the failure of the court to admonish the jury as to the purpose for which the evidence of conviction of a felony might be received. We said:

“The first objection made is that, though the defendant objected to all the testimony impeaching the reputation of the defendant and his witnesses, the court did not admonish the jury as to the purpose for which this evidence might be received. While under section 597 of the Code a witness may be impeached ‘by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief,’ such evidence may only be considered by the jury for the purpose of impeaching the testimony of the witness, and it cannot be considered as substantive evidence in the case. Before the amendment of the Code it was uniformly held that it was prejudicial error for the court to fail to admonish the jury as to the purpose for which the evidence might be considered, but since the amendment to the Code (see Cr.Code Prac. § 353), providing that a judgment for conviction may only be reversed where upon the whole case the substantial rights of the defendant have been prejudiced, the court has in some cases refused to reverse where on the whole case the real truth was so apparent that the error could have had no effect on the result of the trial. But the court has held to the rule that it is an error not to admonish the jury where the proper steps are taken by the defendant in objecting to the evidence. Johnston v. Commonwealth, 170 Ky. 766, 186 S.W. 655; Clark v. Commonwealth, 201 Ky. [620,] 624, 257 S.W. 1035; Davidson v. Commonwealth, 204 Ky. [414,] 419, 264 S.W. 1051.
In view of the number of impeaching witnesses introduced here, the fact that the defendant was also impeached, and all the circumstances of the case, the court is unable to say here that this is not substantial error. The defendant may not be convicted because he was a man of bad reputation for truthfulness. He may only be convicted when he is proved guilty beyond a reasonable doubt.”

In Buchanan v. Commonwealth, 304 Ky. 225, 200 S.W.2d 459, the Commonwealth in rebuttal introduced the sheriff for the purpose of attacking the reputation of the accused “for honesty and integrity in the community in which he lived”. Over objection the court permitted the witness to answer whereupon he said that the reputation was bad. He was then asked about the accused’s reputation for morality, and again over objection he was permitted to answer and said that it too was bad. The accused moved the court to exclude the testimony and to admonish the jury not to consider it for any purpose. The court overruled the motion and did not admonish the jury that the testimony could be considered only for the purpose of affecting the credibility of the defendant as a witness, if it did so. We held this to be error. We said: “The general character of the accused and his disposition to commit crime may not be introduced in evidence against him as ground for presuming guilt, Snapp v. Commonwealth, 82 Ky. 173, 6 Ky.Law Rep. 34; Robertson’s New Kentucky Criminal Law and Procedure, second edition, section 1838, page 1932, unless the accused has introduced testimony of his good reputation as ground for the presumption of innocence.” Also see Nichols v. Commonwealth, Ky., 283 S.W.2d 184; Ochsner v. Commonwealth, 128 Ky. 761, 109 S.W. 326, 33 Ky.Law Rep. 119.

We held in Commonwealth v. Reynolds, Ky., 365 S.W.2d 853, that “When a felon is offered as a witness under CR 43.07 the purpose of impeachment is to warn the court and the jury that the testimony given by him may not be worthy of belief because of his status as a criminal.” We then said: “Plainly it was the intention of the Rule only to fix the status of the witness and the circuit court erred in rejecting evidence on this point.”

The distinction between Cowan and the case now before us is that Shockley testified on direct examination that he had “been to the penitentiary”. The Cowan case and the other cases which we have examined clearly show that CR 43.07 and its predecessor, section 597 of the civil code were enacted so that any party to a trial may show a felony conviction of any witness in order that the jury may evaluate the testimony of that witness. In those circumstances this court has insisted that upon request of the party introducing the witness the trial court must explain to the jury the purpose for which the inquiry had been made. It it better practice in all cases, when the request is timely made, to admonish the jury that the prior conviction should be considered only as it may affect the credibility of the witness.

However, it is our opinion that it was not contemplated by the rule or the code that the accused could show, for his own purposes, that he had been convicted of a felony and then require the court to admonish the jury that the conviction only affected his credibility as a witness. When the accused voluntarily introduces the evidence of his prior conviction the admonition is not absolutely required. In Turpin v. Commonwealth, Ky., 74 S.W. 734, 25 Ky. Law Rep. 90, we said:

“But in this case, where the appellant brought out the fact that he was in the penitentiary voluntarily and in aid of his defense, we are of opinion that the court did not err in failing to admonish the jury that the fact of his having been in the penitentiary could only be considered as affecting the credibility of appellant as a witness.”

Under the circumstances shown by this record that the appellant “opened the door” on direct examination we conclude that the failure to give the usual admonition, even though it was requested, was not error. Taylor v. Commonwealth, Ky., 392 S.W.2d 914.

The judgment is affirmed.

MONTGOMERY, OSBORNE and MIL-LIKEN, JJ., concur.

WILLIAMS, C. J., and PALMORE and HILL, JJ., dissent.

PALMORE, Judge

(dissenting).

In Cowan v. Commonwealth, Ky., 407 S.W.2d 695, 698 (1966), we recognized that “no admonition can really assuage the prejudice that is done to a defendant on the merits of his case by disclosure of his past •felonies in the name of impugning his credibility,” and for that reason restricted this type of evidence to the bare essentials. By recognizing the limited practical effect of the customary admonition we did not, however, in any sense imply that it is not important. Indeed, it will be noted that the majority opinion carefully avoids saying that the failure to give it was not prejudicial. The majority opinion does not purport or intend to change the law that ordinarily a refusal to give the admonition when requested is a substantial error.

Why should the law be different when the defendant has made the disclosure voluntarily upon direct examination? If he does so, and in so doing does not ask for the admonition, then of course he can have no complaint. But if the Commonwealth wishes to delve further into the same subject, by what sensible logic does the defendant become disentitled to an admonition explaining to the jurors the limited purpose for which they must consider the evidence? Are we in a game, in which by the introduction of competent evidence a party deprives himself of the right to have the jury properly instructed that its purpose is limited to impeachment of his credibility?

I can understand that if a party introduces incompetent matter he cannot complain of cross-examination, or of rebutting or explanatory evidence, touching the same subject. This is a matter of admissibility. In this case we are not concerned with admissibility, but with the right of a party to have the jury advised of the special purpose for which admissible evidence is to be considered. I am rather surprised that the majority of the court should be befuddled by such a red herring as, “Well, you brought it up first.” What does that have to do with whether an admonition should be given? After all, the purpose of an admonition is to help the jury decide the case according to law. It is not a trading stamp.

Turpin v. Commonwealth, Ky., 74 S.W. 734, 25 Ky.Law Rep. 90 (1903), simply has no application to this case. In Turpin, the defendant was accused of having stolen a horse. Witnesses for the prosecution testified that a man answering to the defendant’s description had sold the horse at Cory-don, Kentucky, in the fall of 1902. The owner’s daughter testified it was stolen in October of 1902. The defendant testified that he had been arrested on September 22, 1902, and remained in jail until the trial, and that he had served a term in the penitentiary for housebreaking. The prosecution then produced further evidence to show that the correct date on which the horse had been sold was September 17, 1902, whereupon the defendant took the stand again and stated that he had returned to Henderson from the penitentiary on September 12, 1902, in a weak and sickly condition and remained in and about Henderson until after September 17, 1902. The opinion does not indicate that the prosecutor questioned the defendant on the subject of his previous conviction, as was done in this case, or that the defendant asked for an admonition, as he did in this case. But even so, it is readily apparent that in Turpin the defendant used the circumstances of his stay in the penitentiary as a part of his defensive story. They were explanatory of his actions and doings at and about the time in question, and therefore were recited “in aid of his defense,” as pointed out in the opinion. That is not the case here. There is no suggestion that this defendant’s previous conviction was introduced or even admissible for any purpose other than its bearing upon his credibility. This fact is not made different by his having admitted it himself in order to avoid the possible inference, upon its being later adduced by the prosecution, that he wished to conceal it.

The prejudicial effect of refusing the admonition is well illustrated by the following passage from the closing argument of the Commonwealth’s Attorney in this very case: “Now if you want to break this up in Allen County, find him guilty and give him ten years in the pen. * * * He’s been there once and he didn’t learn a lesson for the same crime, and now he tells us today that he didn’t do it.” (Emphasis added.) No admonition having been given the jurors, they were authorized to consider the prior conviction for any and all purposes, including the probability of guilt and the length of sentence to be imposed. This is not proper and it is not right. It runs contrary to the fundamental idea that a man ought not to be convicted by his previous record.

WILLIAMS, C. J., and EDWARD P. HILL, J., join in this dissent.


author: PER CURIAM.

text:
    Faustino C. ROSAS et al., Petitioners, v. Dorthy SHAFER and Kathleen Franklin, Administratrices of the Estates of Martin Luther Bunn and Fannie Elizabeth Bunn, Respondents.
    No. B-143.
    Supreme Court of Texas.
    May 24, 1967.
    Rehearing Denied June 21, 1967.
    Jack M. Glover, Galveston, for petitioners.
    Groce, Hebdon, Fahey & Smith, Edward P. Fahey, San Antonio, Allison & Wallace, Kerrville, for respondents.
   PER CURIAM.

Plaintiffs sued for personal injuries arising out of a head-on collision. Judgment was for the defendants by reason of jury findings that (1) the defendant driver was not negligent in the manner in which he drove his car, (2) the plaintiff, Gilbert Rosas, was negligent in the manner in which he drove, and (3) plaintiffs, Gilbert and Evangalene Rosas, were on a joint enterprise at the time of the collision. Plaintiffs urged in the court of civil appeals that the findings had no support in the evidence. The intermediate court affirmed the judgment because the plaintiffs failed to preserve their points either by motion for instructed verdict, objections to the issues, or motion for judgment notwithstanding the verdict. Plaintiffs did, however, file a motion for new trial and distinctly complained that each of the findings had no support in the evidence. Since plaintiffs’ contentions were made clear to the court in time for the court to correct any error, if any existed, there was a predicate for the “no evidence” points on appeal. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 758-759, 81 A.L.R.2d 1180 (1960). The judgment of the court of civil appeals is correct, however, since there was evidence in the record which absolved the defendant driver of negligence.

The application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.


author: SMITH, Justice.

text:
    BILDON FARMS, INC., Petitioner, v. WARD COUNTY WATER IMPROVEMENT DIST. NO. 2, Respondent.
    No. A-11371.
    Supreme Court of Texas.
    May 31, 1967.
    Rehearing Denied June 28, 1967.

      A. R. Archer, Jr., Monahans, Garland Casebier, Midland, for petitioner.
    Johnson & Dionne, Hart Johnson, Fort Stockton, L. Holt Magee, Monahans, for respondent.
   SMITH, Justice.

Bildon Farms, Inc., brought this suit against Ward County Water Improvement District No. 2 for damages allegedly caused by the District’s breach of its contract to furnish water from Red Bluff Reservoir for irrigation purposes. The case was tried to a jury. The jury in answer to a special issue found that the District delivered to Bildon Farms water of a higher saline quality than contemplated under the terms of the contract and that such water originated from sources other than Red Bluff Reservoir. The jury also found in answer to Special Issues 2 and 3 that such delivery was negligence and a proximate cause of damages to Bildon Farms’ growing crops. In answer to other issues, the jury found that Bildon Farms suffered damages in the sum of $23,349.88, but that 30% of such damages to its growing crops was proximately caused by Bildon Farms’ poor husbandry. The jury also found that Bildon Farms failed to farm the premises in keeping with good husbandry.

The trial court accepted the verdict. Both parties filed motions for judgment. Bildon Farms’ motion for judgment was based on the verdict. It made no request to the court to disregard the finding of the jury that 30% of the damages was caused by its poor husbandry.

The Water District filed a motion for judgment on the verdict. This motion was based on the finding of the jury that 30% of the total damages found by the jury was caused by Bildon Farms’ poor husbandry. The Water District’s position being that the finding amounted in law to a finding of contributory negligence and as a consequence thereof the only proper judgment to be entered was one that Bildon Farms take nothing by its suit. The Water District also filed a motion for judgment non obstante veredicto. This motion will be discussed later in this opinion. The trial court granted Bildon Farms’ motion for judgment and overruled the motions for judgment filed by the Water District. Judgment was entered for $16,344.81, which was 70% of the damages suffered. On appeal, the Court of Civil Appeals sustained the Water District’s contention that it was entitled to judgment that Bildon Farms take nothing on the ground that the finding of the jury in answer to Special Issue No. 7 was a finding of contributory negligence which precluded Bildon Farms from a recovery of damages. Based on this holding, the intermediate court reversed the judgment of the trial court and rendered judgment that Bildon Farms take nothing by its suit. The intermediate court did not pass upon the.points before it complaining of the action of the trial court in failing to grant the Water District’s motion for judgment non obstante veredicto. Tex.Civ.App., 399 S.W.2d 373.

Bildon Farms has appealed from this adverse take nothing judgment and confines its points in this Court to the alleged error of the Court of Civil Appeals in rendering judgment in favor of Water District on the grounds that Bildon Farms was guilty of contributory negligence. We have concluded that the judgment of the Court of Civil Appeals based upon its holding' that Bildon Farms was guilty of contributory negligence cannot be upheld, but will first dispose of the Water District’s points presented in the Court of Civil Appeals which would, if sustained, require an affirmance of the judgment of that court.

In order to better understand our decision, we deem it necessary to state in some detail, the status and relationship of the parties, the terms of the contract between the parties, the pleadings, and the evidence bearing upon the basic issue to be decided in this case.

Ward County Improvement District

The Respondent, Ward County Water Improvement District No. 2!, hereinafter referred to as the Water District, was established pursuant to the provisions of Chapter 86 of the General Laws of the Thirty-Fifth Legislature (1917), as amended (Acts 1919, 36th Leg., 2d C.S., p. 65, ch. 28), and these legislative enactments are now found in Article 7622 et seq. In 1934 the Water District and six other water districts similarly situated along the Pecos River entered into a contract designated as the Master Contract, creating Red Bluff Water Power Control District and assigning to said master district all of the District’s water rights in the Pecos River. The Red Bluff District was designated as a master district including within its boundaries the seven other subdistricts. Under the terms of the Master Contract, the Red .Bluff District agreed to construct a reservoir on the Pecos River approximately ten miles: south of the Texas-New Mexico line and to operate said reservoir so as to store the water of the Pecos River belonging to the subdistricts. When notified of the need for the water, Red Bluff would distribute the requested water to the subdistricts by conveying such water down the Pecos River to the headgate of the requesting subdistrict. After the water entered the system of the requesting subdistrict, it was responsible for getting the necessary irrigating water to the farmers of its district. Red Bluff District was originally a party defendant in this suit, but was dismissed therefrom and is not involved in this appeal.

Bildon Farms

During 1961, the time materia! to this suit, Bildon Farms was the lessee of a 600-acre tract of land situated within the confines of the District upon which petitioner desired to plant and harvest a crop of rnilo maize. Because it is necessary to irrigate in order to produce crops in this arid section of the State, Mr. Joe Boswell, president and stockholder of Bildon Farms, Inc., contacted the Grandfalls office of the Water District in April, 1961, with regard to the availability of sufficient irrigation water for that year. Boswell testified that he was assured of a plentiful supply of water to be delivered at proper times, but, that notice would be required to the Water District office several days in advance of the need for the water “because they had to deliver the water from Red Bluff Dam to this District, and then to our farms.” Such notice did not have to be written; only a telephone call or visit to the office was required. Boswell testified that when the contract was being discussed with representatives of the Water District that he and the employees of the Water District were “talking about” Red Bluff water; and he estimated Bildon Farms would need, during 1961, 1600 acre-feet of water for its 600 acres of milo maize, for which he paid $4,-400 in cash in advance, plus a $2,000 credit to the account of petitioner’s predecessor on the farm.

Pleadings

Bildon Farms pleaded that it entered into a contract about April 1, 1961, whereby the District agreed to deliver at least 1,640 acre-feet of Red Bluff Reservoir water and at times requested by Bildon Farms; that under the contract the Water District agreed to deliver to Bildon Farms water it was to procure from Red Bluff Reservoir as needed to make a crop. Bildon Farms alleged that the contract was breached in that it delivered water from sources other than Red Bluff Reservoir; and that it failed to respond to the plaintiff’s request for water when needed, although “there was adequate water stored in Red Bluff Reservoir to meet the needs of plaintiff and the other users of water in defendant district.”

Bildon Farms also alleged certain acts of negligence on the part of the Water District. Although the trial court ruled that the negligence theory only was to be submitted to the jury, it is our view that Issue No. 1 and related issues embraced the breach of contract theory as well. We construe the pleadings to allege a claim for damages arising out of a breach of contract for the failure to furnish the Red Bluff Reservoir water contracted for at the times requested and for breach of contract for furnishing water from a source other than Red Bluff Reservoir. Therefore, disposition of the negligence issues is unnecessary to our decision.

Evidence

The Water District presented points in the Court of Civil Appeals attacking the judgment of the trial court on the ground that there was no evidence to show that the Water District delivered inferior water to Bildon Farms and that there was no evidence in the record to establish that the water which was delivered proximately caused damages to Bildon Farms’ crops. We have carefully considered the statement of facts consisting of 776 pages of testimony. In the interest of brevity, we shall not attempt to detail the evidence at length, but will summarize the evidence. We have discarded all adverse evidence and have given credit to all evidence favorable to Bildon Farms. In accordance with well settled rules of law, we have viewed the evidence from the standpoint of Bildon Farms, and have concluded that the evidence supports the findings under attack. The evidence showed that Bildon Farms had 600 acres of land under lease for the purpose of growing milo maize; that this land was divided into blocks as shown by a plat of the land which was introduced in evidence. The evidence reflects that some of the blocks were marked “salt”. This indicated the tracts or blocks which were affected by the salt water or inferior water during the period of time from July 25th or July 28th to August 8th or 10th. Evidence showed that tracts “T,”, “R” and “P” were not irrigated during the critical period involved; that in addition to tracts “T”, “R” and “P”, tracts “B”, “F” and “G” and the west half of “H” consisting of 171 acres were not irrigated with salt water. These tracts produced 685,000 pounds of grain. The remaining 429 acres, which was irrigated during the critical period produced only 207,10o1 pounds of grain. The same preparations of the land for farming and the same type of husbandry were exercised. The crops which received the water from the Water District during the critical period first “fired” or “burned” and later died because of the excess salt water. This occurred during the period inquired about in Special Issue No. 1. The evidence is, depending upon the composition of the soil, that excessive salt in the water will cause the soil to “turn white and in some cases it will turn black.” According to the evidence such changes in the color of the ground occurred. One witness testified that he had been engaged in irrigation and farming for many years; that he checked the soil on Bildon Farms for the year 1961 and found it to be “good”; that he checked the water in Red Bluff Reservoir and it was suitable for irrigation purposes. This witness testified in detail as to the farming methods used and the particular manner- of planting “Northrup-King” maize. He testified that he examined the ground and the crop during the critical period and that “about the 6th of August, I noticed that this first field that I had put this water [salt] on began to what we call ‘fire’. It began to 'show signs of dying, turning brown and leaves turning brown;” that the “ground at that time was beginning tO' show white, showing a salt condition;” that the ground had not looked “that way to that extent previous to that time.” As heretofore pointed out, the jury found that Bildon Farms suffered damages to its 1961 grain crop in the sum of $23,349.88. The evidence supports such finding. The evidence-shows that during the critical period the-Water District delivered to Bildon Farms irrigation -water of higher saline quality than Red Bluff Reservoir water. In 1952, this Court had for decision the case of Pickens v. Harrison, 151 Tex. 562, 252 S.W.2d 575. That case was a suit for damages to a rice crop alleged to have been caused by underground salt water. We upheld a jury finding of damages upon facts similar in many respects to the facts in the present case.

In addition to the evidence hereinabove related, the testimony shows that the water flowing in the Pecos River contained a higher proportion of dissolved salts and other minerals than the water impounded in Red Bluff Reservoir. While the salinity of the water in Red Bluff Reservoir during July, 1961, was 6,310 parts salt per million parts water and in August, 1961, 6,700 parts salt per million parts water, yet the evidence shows that the salinity of Red Bluff Reservoir water was not of such degree as to render the water impounded in the reservoir unsuitable for irrigation purposes. The testimony shows that the Water District did not furnish Red Bluff Reservoir water to Bildon Farms in accordance with the terms of the contract. A witness testified that the character of water delivered during the critical period was principally base flow and accretionary water in the Pecos River rather than Red Bluff Reservoir water. His testimony follows:

“Well, the hydrograph would indicate between July the 22nd and July the 25th that the water being delivered through Brush Dam was undoubtedly Red Bluff water with whatever small accretionary water might be available at that time, but it was principally Red Bluff water delivered out of the reservoir.
“The hydrograph would indicate to me that beginning on July the 25th and extending through to the early part or early morning hours of August the 7th, there was no Red Bluff water being delivered through the Brush Dam weir or turnout. This was based upon the fact that the water, the amount of water being taken up by the constituent Districts above Brush Dam account for all of the water being delivered out of Red Bluff plus some additional increments which I believe to be accretionary waters because the ratio of total water being delivered out of Red Bluff and the total amount being used by the upper Districts is a little bit too large, or too small, rather to account for the seepage losses in the canal. At least there is no evidence that there was any excess water from Red Bluff available to go through the canal during this period from July the 25th to August the 7th. From August the 7th on, obviously the water is reservoir water. I don’t think there’s any doubt about that. In my judgment, the water being delivered on, I believe July the 29th, from that point on to August the 7th is base flow in the River, accretionary waters * * * and by that, I mean waters added to the River from other sources, spring flow, return flow from irrigation operations, tail water being discharged from upper irrigation operations, return waters from bank storage in the River itself and in the canal, this being the water that would be stored back in the banks of the channels itself during higher stages of water in the River which would drain out as the water recedes and the water level recedes in the River itself, the bank storage water will drain out. It is a combination of all of the normal sources of water plus the return to irrigation water from the District above or the Districts above." [Emphasis added.]

We now turn to consider two other questions which must be answered. The questions are closely related and will be dealt with together. The first question is whether the findings of the jury in answer to Special Issues 4 and 5 to the effect that Bildon Farms’ failure to farm the land in question in keeping with good husbandry was a proximate cause of the damages sustained precludes a recovery of the damages as found by the jury. The Court of Civil Appeals, as above indicated, held that these particular findings amounted to a finding of contributory negligence and upon that finding rendered its judgment that Bildon Farms take nothing by its suit. We do not agree with such holding; hence, the next question is whether there is some evidence to support the findings of the jury in answer to Special Issue No. 7, supra, that the Water District caused 70% of the loss and Bildon Farms 30% thereof. This question was before the Court of Civil Appeals and was left undecided by that court. On the questions of negligence and contributory negligence, we simply hold that this being a suit for damages for breach of contract to furnish Red Bluff water, negligence is not in the case. While it is true that the pleadings allege and the evidence indicates that the Water District negligently breached its contract, we hold that the questions of negligence and contributory negligence are immaterial. Thus, the findings of the jury on such issues cannot operate to defeat Bildon Farms’ recovery of damages.

The Water District argues that as a matter of law Bildon Farms is bound by the terms of the Master Contract, supra, especially the provisions that “each of the seven parties thereto other than Red Bluff District” combined “its water appropriations and water rights by assigning same to the Red Bluff District” and the provision in Section 4 of the Master Contract which provides that water to be “possessed, controlled and distributed by the Red Bluff District includes all water impounded in and passing through its reservoirs and all water flowing in the Pecos River from said reservoirs down said river to the intake of party hereto. * * * ” It is argued that since the Water District owned all of the waters of the Pecos River above its intake canal and below that of its nearest neighbor district upstream from it, and since the Water District conveyed all rights in such water to the Red Bluff District, “that district owned all of the water in the Pecos River, and the water from the Pecos River which appellant [Water District] delivered to ap-pellee, [Bildon Farms] was as a matter of law water obtained by appellant from Red Bluff District.” In taking this position, the Water District assumes that no contractual relationship exists between it and Bildon Farms and based on this assumption, it argues that there was no warranty, either express or implied, of the irrigation water it furnished Bildon Farms. We cannot agree with these contentions. We reiterate that the record in this case clearly establishes a contract between the parties, as above outlined, and the evidence shows a breach of such contract. This issue was submitted to the jury and there can be no question but that Special Issue No. 1 adequately distinguished “other water” from “reservoir water.” The fact that the Water District executed the Master Contract which includes all water in the Pecos River as well as that in the reservoir did not prevent the Water District from entering into a valid contract to limit the water to be delivered to that of Red Bluff Reservoir water.

The Water District argues that, even if contributory negligence is not in the case, there is no evidence to support the jury’s answer to Special Issue No. 7 that the Water District caused 70% of the loss and Bildon Farms 30% thereof. This argument is grounded upon the theory that the burden was on Bildon Farms to separate with mathematical certainty the exact amount of damages caused by each party. We disagree with this contention. We also disagree with the holding of the Court of Civil Appeals that Issue No. 7, as submitted, called for the application of the doctrine of comparative negligence. The issue simply called upon the jury to apportion the damages. The rule announced in the case of Powell Salt Water Co. v. Bigham, 69 S.W.2d 788 (Tex.Civ.App.1934, no writ hist.), although declared in a suit for damages against joint tort-feasors, is equally applicable in the present case. In that case it was held:

“It is true that the evidence does not establish to a mathematical certainty the exact amount of damages caused by appellant alone, nor does it separate with exact accuracy the damages caused by appellant from that caused by others who discharged salt water into the creek in question; but the law does not require such exactness. Where the evidence establishes that a plaintiff has suffered substantial damages, he is not to be denied a recovery merely because others than the defendant contributed to bring about his loss and he is unable to show distinctly the amount of damages contributed by each tort-feasor. All that the law requires is that the best evidence of which a case is susceptible be produced, and if from such evidence the amount of damages caused by the defendant can be inferred or estimated by the jury with reasonable certainty, then the amount of such damages is for the jury. 17 C.J. 758, 759; 13 Tex.Jur. 368; Owens v. Navarro County Imp. Dist. (Com.App.) 115 Tex. 263, 280 S.W. 532, par. 5; Burr’s Ferry v. Allen (Tex.Civ.App.) 164 S.W. 878; Fort Worth & D. C. Ry. Co. v. Tomson (Tex.Civ.App.) 250 S.W. 747, par. 5.”

Having disposed of all of the controlling questions presented in the Court of Civil Appeals and this Court, we reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

      . “SPECIAL ISSUE NO. 1
      “Do you find from a preponderance of the evidence that the Defendant Ward County Water Improvement District No.
      2 during a period between July 28th and August 9th, 1961, delivered into Bildon Farms, Inc.’s ditches, water of higher saline quality than Red Bluff Reservoir water from sources other than waters from Red Bluff Reservoir?
      “Answer ‘Yes’ or ‘No’
      ANSWER: Yes

      “SPECIAL ISSUE NO. 2
      “Do you find from a preponderance of the evidence that the delivery of such water, if you have so found, was a proximate cause of the damages, if any, to the grain crop of Bildon Farms, Inc.? “Answer ‘Yes’ or ‘No’
      ANSWER: Yes

      “SPECIAL ISSUE NO. 3
      “Do you find from a preponderance of the evidence that such delivery of water for such period, if you have so found, was negligence?
      “Answer ‘Yes’ or ‘No’
      ANSWER: Yes”

      . Bildon Farms alleged that the water to be furnished was to be procured from the Red Bluff Water Power Control District.

      . “SPECIAL ISSUE NO. 6
      “Prom a preponderance of the evidence, what damages, if any, were suffered by Bildon Farms, Inc., to the 1961 grain crop?
      “Answer in Dollars and Cents, if any, or ‘None’
      ANSWER: S23.349.88
      “SPECIAL ISSUE NO. 7
      “What, from a preponderance of the evidence, do you find the damages, if any, to said crop was proximately caused by:
      “A: Water of inferior quality to Red Bluff Reservoir from other sources, if any;
      “B: Poor husbandry, if any;
      “Answer in percentages of 100 if any, as to each, if any.
      “ANSWER:
      “A: 70%
      “B: 30%’’

      . “SPECIAL ISSUE NO 4

      “Do you find from * * * the evidence that Bildon Farms, Inc., failed to farm the premises in question in keeping with good husbandry at the time and place involved?”
      The jury answered ‘Yes’.”

      . All references to statutes are to Vernon’s Texas Civil Statutes unless otherwise indicated.


author: POPE, Justice.

text:
    EXCHANGE BANK & TRUST COMPANY, Petitioner, v. PURE ICE & COLD STORAGE COMPANY, Respondent.
    No. B-5.
    Supreme Court of Texas.
    May 31, 1967.
    Rehearing Denied July 5, 1967.
    Bailey, Williams, Weber & Allums, Lawrence R. Maxwell, Jr., Dallas, for petitioner.
    Biggers, Baker, Lloyd & Carver, John C. Biggers, Dallas, for respondent.
   POPE, Justice.

The question presented is whether Pure Ice & Cold Storage Company, the plaintiff and payee of a check drawn on defendant Exchange Bank & Trust Company, exercised an election to hold Exchange Bank liable for its admitted delay in returning a dishonored check within the time provided in art. 342-704 Vernon’s Ann.Civ.St. The trial court sustained Exchange Bank’s motion for judgment notwithstanding the verdict because Pure Ice, as a matter of law, failed to exercise the election. The court of civil appeals reversed the judgment and rendered judgment for Pure Ice. 408 S.W. 2d 319. In our opinion the judgment of the trial court was the correct one.

The case is controlled by that part of the Bank Collection Code contained in art. 342-704 which section has since been repealed and changed by the enactment of the Uniform Commercial Code, Acts 1965, 59th Leg., Vol. 2, p. 1, ch. 721. The former statute required a drawee bank to return a dishonored check by midnight of the banking day after presentment at the risk of being liable for the delay. The bank’s liability under the statute was not automatic, but depended upon the check owner’s exercise of an election to hold the drawee bank. Morrison and Sneed, Bank Collections, 32 Tex.L.Rev. 259, 293 (1954). The article provided:

“Except where otherwise provided in this Code, or by express agreement of the parties, items presented to a drawee bank shall be received by it, subject to final adjustment and all clearing house settlements, checks, drafts, credits, advances of money, charges or entries to accounts, (including sight posting), shall be conditional and subject to revocation during the day on which the item is presented (or in case of a time item, the due date), or until midnight of the banking day after the day of presentment, exclusive of Sundays and holidays, if it is finally determined that the drawee bank was not at the time of presentment (or in case of a time item, the due date) authorized or obligated to pay the item, and if the drawee bank shall within that time refuse payment and return the item, or undertake to give notice in the manner hereinafter prescribed:
⅝ sf* ⅝ ⅜ ⅜ ⅜
“2. If the item is presented through a clearing house, the drawee bank shall, within the time prescribed, return the item to the clearing house presenting it.
“3. * * If the drawee bank in refusing payment of any item fails to comply with the provisions of this Article within the time above prescribed it shall, at the election of the owner of the item, be deemed to have accepted the item, and shall be liable for the amount thereof. If an item is presented by a bank as agent or sub-agent of owner, such bank may, in the absence of definite instructions from the owner, exercise the election herein provided for. Acts 1943, 48th Leg., p. 154, ch. 97, subch. VII, art. 4; Acts 1957, 55th Leg., p. 1295, ch. 434, § 1.”

The trial court submitted issues to the jury inquiring whether Pure Ice waived its right to hold Exchange Bank. The jury found that Pure Ice did not waive its right. The trial court, however, rendered judgment notwithstanding the jury findings on waiver because all of the evidence showed that Pure Ice did not exercise its statutory election to hold Exchange Bank. The rights of the owner of an item against the drawee are expressed in the statute in terms of an election rather than waiver, but the parties have used the terms and tried the case without distinguishing them. In any event, it is our opinion that the trial court correctly rendered judgment for Exchange Bank because the stipulations and undisputed evidence show that Pure Ice did not elect to hold and did voluntarily relinquish its known rights against Exchange Bank.

On Friday, September 21, 1962, James O. Calvin gave Pure Ice his check for $4,500.00 drawn on defendant, Exchange Bank. On Monday, September 24, Pure Ice deposited the check to its account with Mercantile National Bank at Dallas. The parties stipulated that Mercantile was the agent for Pure Ice in the events which followed the deposit. Article 342-702, V.C.S. They also agreed that Mercantile on the day of the deposit, sent the check through the Dallas clearing house to the drawee, Exchange Bank. Exchange Bank received the check on Tuesday, September 25 and dishonored it because Calvin had insufficient funds in his account. Exchange Bank did not return the check until September 27, two days later, which was beyond the statutory deadline. Mercantile knew that Exchange Bank returned the check after midnight of the banking day after the day of presentment. Mr. Kadane, president of Pure Ice, testified that both he and Mercantile knew of the two-day lapse of time. One of Mercantile’s officers testified that three courses of action were then available to it as agent for its depositor. It could have advised Exchange Bank that the owner of the check elected to hold Exchange ’Bank liable for its late return. It could have accepted the late return of the check after requiring Exchange Bank to furnish a letter guaranteeing payment of the item. It could have charged back the amount of the check which had been credited to Pure Ice. Mercantile, in fact followed the last procedure.

When the dishonored check was first returned to Mercantile, the person handling the account called and reported that fact to Mr. Kadane, the president of Pure Ice. Mr. Kadane in turn called Calvin, the drawer, who assured Kadane that he had sufficient funds on deposit at Exchange Bank. Mercantile, upon Kadane’s instructions, sent the check back through the clearing house to Exchange Bank and it was dishonored a second time. On Monday, October 1, Mercantile reported to Kadane that the check was again dishonored. Kadane instructed Mercantile to send the check back to Exchange Bank a third time, and the check was again dishonored. Mercantile discussed with Kadane the matter of the dishonored check by telephone conversations on September 27, October 1, 3 and 4. On October 5, Mercantile revoked the provisional credit it had given its depositor, Pure Ice. On October 6, Kadane obtained a promissory note from Calvin to evidence the amount of his unpaid check as well as several others not here involved. Kadane testified that he knew Mercantile had charged back the $4,500.00 which was provisionally credited to his account when he made the original deposit on September 24 and that his purpose in obtaining the promissory note from Calvin was to have “an acknowledgment of his indebtedness to me.” He said that he was looking to Calvin during the time that the check was dishonored.

From September 25, 1962 to September 18, 1964, nobody contacted or notified Exchange Bank that Pure Ice elected to hold Exchange Bank because of its late return of the dishonored check. The institution of this action was the fact which Pure Ice contends was an exercise of its election under art. 342-704 to hold Exchange Bank. That fact is the basis for the intermediate court’s opinion that Pure Ice elected to hold Exchange Bank. Mr. Kadane testified that he had entertained an intent to hold Exchange Bank liable, but there is no evidence that such an intent was ever communicated to Exchange Bank or anyone else prior to the time Pure Ice filed this action.

The meaning of the term “election” used in the statute has not been construed so far as the parties or this court have been able to discover. In general, an election means the obligation to choose between two inconsistent or alternative rights. Black’s Law Dictionary 632 (4th ed. 1951). A portion of art. 342-704 was construed in Carder v. Tyler Bank & Trust Company, D.C., 132 F.Supp. 495, 503, affirmed 5 Cir., 224 F.2d 687, cert. den., 350 U.S. 913, 76 S.Ct. 197, 100 L.Ed. 801 (1955). The case concerned the effect of a bank’s customary practice of holding drafts beyond the statutory deadline. The case incidentally states that sometime before suit was filed, the payee made demand upon the drawee bank. Suit was actually tried ten months after the late return of the drafts. Election was not the issue in that case and it is not helpful.

The very nature of the banking transaction required Pure Ice to exercise its election to hold Exchange Bank with reasonable promptness. When a payee deposits a check to his account, he receives a provisional credit. The check may then pass through several correspondent banks and a clearing house before it reaches the payor bank and as it does, each bank which handles the transaction records a provisional credit for the item. Upon payment by the payor bank, all the provisional credits become final settlements. If, however, the check is dishonored, all the provisional credits are revoked and charged back as-the check returns along the route from whence it came until it is returned to the original depositor, who then holds the dishonored check. See Uniform Commercial Code, art. 4-213, V.C.S. The practical necessity for settling the provisional credits is the reason for the statute’s requirement that the payor bank promptly return any dishonored check. Otherwise the provisional credits remain unsettled. Applied to the facts of this case, all of the provisional credits were reversed and charged back as the check traveled back to the hands of Pure Ice, the original depositor-payee. After almost two years, Pure Ice took the position that the provisional credits should not have been reversed but should have stood, because Exchange Bank, by holding the check, in law, was deemed to have honored the check. Such a construction would mean that provisional credits or their revocation would remain unsettled up to the time limitations barred an action against the payor bank. The payor bank’s remedy against the drawer of the check would ip many instances be affected or lost by the drawer’s, death, insolvency, or his closing the account. Many recorded balances would be so uncertain as to be meaningless for long periods of time.

In this context, the election authorized by the Bank Collection Code required the payee to elect and to make known its election to the payor bank with reasonable promptness, which the evidence shows did not happen in this case. Pure Ice for almost two years neither said nor did anything consistent with its contention that it elected to hold Exchange Bank. The trial court properly granted judgment for Exchange Bank notwithstanding the verdict.

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.

      . Uniform Commercial Code: § 4 — 302. “In the absence of a valid defense such as breach of a presentment warranty (subsection (1) of Section 4-207),, settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of
      (a) a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor, until after its midnight deadline; or
      (b) any other properly payable item unless within the time allowed for acceptance or payment of that item the bank either accepts or pays the item or returns it and accompanying documents.”

      . “Subsection (4) states when certain credits given by a bank to its customer become available for withdrawal as of right. Subsection (4) (a) deals with the situation where a bank has given a credit (usually provisional) for an item to its customer and in turn has received a provisional settlement for the item from an intermediary or payor bank to which it has forwarded the item. In this situation before the provisional credit entered by the collecting bank in the account of its customer becomes available for withdrawal as of right, it is not only necessary that the provisional settlement received by the bank for the item becomes final but also that the collecting bank has a reasonable time to learn that this is so. Hence, subsection (4) (a) imposes both of these conditions. If the provisional settlement received is a provisional debit or credit in an account with the intermediary or payor bank or a remittance instrument on some bank other than the collecting bank itself, the collecting bank will usually learn that this debit or credit is final or that the remittance instrument has been paid merely by not learning the opposite within a reasonable time. How much time is “reasonable” for these purposes will of course depend on the distance the item has to travel and the number of banks through which it must pass (having in mind not only travel time by regular lines of transmission but also the successive midnight deadlines of the several banks) and other pertinent facts. * * * ” Comment on art. 4-213, Uniform Commercial Code, Uniform Commercial Code Reporting Service, § 4213.


text:
    Frank B. BOATRIGHT et al., Petitioners, v. The CITY OF MINERAL WELLS et al., Respondents.
    No. B-249.
    Supreme Court of Texas.
    May 31, 1967.
    Rehearing Denied June 28, 1967.
    Tom Huckaby, Big Spring, for petitioners.
    N. A. Irsfeld, Herman Fitts, John R. Creighton, Mineral Wells, for respondents.
   PER CURIAM.

Plaintiff, Frank B. Boatright, suing individually and as representative of a class of taxpayers and citizens of the City of Mineral Wells, Texas, brought suit against the City of Mineral Wells and its Mayor, City Commissioners, City Secretary and Chief of Police, seeking a restraining order, temporary injunction and permanent injunction restraining the individual defendants from vacating their offices and abandoning their sworn duties as public officials. Boatright contended that an adoption of a new charter on July 26, 1966, which provided for a different form of city government, was void in that the statutory requirements for the adoption of a charter by a home rule city had not been complied with.

Upon hearing of the application for temporary injunction, the trial judge dismissed the cause. Boatright did not assert in his brief in the Court of Civil Appeals that the trial court erred in rendering final judgment upon a temporary injunction hearing. The Court of Civil Appeals dismissed the appeal for mootness because it appeared that a successor group of officials had taken over the city government and obviously a court could not now enjoin the original defendants from surrendering their offices. 413 S.W.2d 743.

It may be that the trial court should have merely refused to issue a temporary injunction and not dismissed the cause, but no point so asserting was presented to the Court of Civil Appeals upon submission of the case in that court, and it appears that plaintiff was not injured by such dismissal as a change in administration had taken place before the case was submitted in the appellate court. The defendants had surrendered their offices and an order restraining them from so doing would be wholly ineffective. Naland v. Maxey, 119 Tex. 462, 32 S.W.2d 822 (1930), 3 Tex.Jur.2d 317, Appeal and Error, Civil Cases, § 53.

Ordinarily, the rule followed by this Court is that stated in Texas Foundries v. International Moulders and Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460 (1952), wherein it was said:

“The rule has long been established in this court that when a case becomes moot on appeal, all previous orders are set aside by the appellate court and the case is dismissed.’’

See also, Guajardo v. Alamo Lumber Company, 159 Tex. 225, 317 S.W.2d 725 (1958).

However, when the dismissal of an appeal or application for writ of error would accomplish the same result, both the Courts of Civil Appeals and this Court have occasionally dismissed an appeal or application for writ of error rather than strictly following the rule set down in the Texas Foundries case, Naland v. Maxey, supra, wherein the trial court defendants prevailed in the Court of Civil Appeals and the injunction was dissolved. The dismissal of the application for writ of error had the same result as did the dismissing of the cause from the docket of the trial court. See also, Richmond v. Hog Creek Oil Co., 239 S.W. 904 (Tex.Comm’n App.1922); Bell v. Lucas, 34 S.W.2d 356 (Tex.Civ.App.1930, no writ).

The trial court dismissed this cause. In view of this circumstance, the application for writ of error is refused, no reversible error.