text:
    COMMONWEALTH of Kentucky, DEPT. OF HIGHWAYS, Appellant, v. John L. PARKER et al., Appellees.
    Court of Appeals of Kentucky.
    March 19, 1965.

      Robert Matthews, Atty. Gen., Wm. Lam-kin, Jr., Asst. Atty. Gen., Frankfort, Dan-dridge F. Walton, Emery & Carroll, Padu-cah, for appellant.
    John L. Dorsey, Jr., and Dorsey & Sullivan, Henderson, for appellees.
   DAVIS, Commissioner.

The Department of Highways appeals from the judgment awarding appellees $12,-305 in this condemnation proceeding. Three stated grounds for reversal are presented: (1) The court erroneously failed to strike valuation testimony based on “asking price”; (2) it was error to permit a valuation witness to utilize a “comparable sale” because the sale had occurred after the date of taking in the present case; and (3) the court erroneously refused to strike testimony of a valuation witness who based his testimony on factors which were irrelevant, speculative and noncompensable. There is no specific claim that the resulting verdict is excessive, although we indulge the assumption that the appeal implies that.

Prior to the taking the appellees owned a lot situated on the west side of U. S. Highway 41 just north of Henderson. The lot had frontage of 150 feet along U. S. 41. Elm Street abuts the rear or western boundary of the lot, which is 126 feet in width. The lot had depth of 191 feet on its southern boundary and 160 feet on its northern side. An irregularly shaped grocery store building is located in the northeastern corner of the lot; the building is about 36 feet in width at its front. The depth of the building is 62.5 feet; the north wall is straight, but the south wall jogs, at a depth of 36.2 feet, so that the width of the rear of the building is 41.3 feet.

Before the taking the front of the building was 25.5 feet from the existing right of way line of U. S. 41 and 43 feet from the closest edge of the traveled portion of the highway. After the taking the new right of way line will be 8 feet from the building front, and the edge of the new pavement is to be 17 feet from the building. There is a stoop or porch in front of the building, 7 feet in width and extending 4 feet toward the highway.

The right of way taken is a strip along the entire frontage of the lot (on U. S. 41) for an average depth of 17.6 feet, embracing 2,640 square feet. The jury awarded $11,-500 as the difference in the market value of the property, before and after the taking, plus $805 as the “fair market rental value” of the temporary easement’s 1,100 square feet.

The first attack upon the judgment relates to testimony offered by appellee Howard Dejarnett, one of the owners. On cross-examination the following questions and answers appear %

“Q.5. What do you base your before value of your grocery property there on?
“A. Well, the amount we have in it.
“Q.6. You have any knowledge of market value?
“A. Well, I know what I would want for it before the taking, before they ever started the road, yes sir.
“Q.7. Is that what you base your opinion on?
“A. Yes sir.
“Mr. Walton: (Attorney for appellant) Move to strike his testimony.
“Mr. Dorsey % (Attorney for appellees) He is the owner of the property and there is no question about the value of it.
“Mr. Walton: Object on that basis.”

Following this colloquy there appears nothing in the record as to any ruling of the court, nor is there any recorded showing that appellant’s counsel insisted upon a ruling on his motion to strike and his objection.

We think it too late to debate the question that such a basis for valuation is incompetent. For some of the authorities so holding see : Com., Dept. of Highways v. Darch, Ky., 374 S.W.2d 490, 492, and authorities there discussed. In 7 A.L.R.2d 781, et seq. is found a collation of authorities on the subject, and there it is recognized that the vast majority of American jurisdictions reject “offer” evidence as a basis for valuation.

However, the appellant failed to pursue its motion and did not obtain a ruling of the court. For this reason the objection to this incompetent evidence was waived and may not be considered on appellate review. Moore v. Collins, Ky., 314 S.W.2d 207; 2 Ky.Digest, Appeal & Error, Under these circumstances we do not have for review the question whether the quoted evidence should have been stricken.

There is no merit in the complaint that one of appellees’ valuation witnesses was permitted to use as a “comparable” a sale which occurred after the taking. In the first place, there is no definitive showing in the record that the questioned sale did occur after the taking date. Secondly, it would not have mattered anyway. There is no hard and fast rule which automatically precludes reference to a sale, as a “comparable sale,” merely because the “comparable sale” occurred at a date later than the taking date. Our rule, and the one usually followed, simply requires that the “comparable sale” be a sale that is indeed comparable — that is, one that is reasonably similar to the subject property. This presupposes that the similarity will include, among other things, reasonable proximity to the time of taking. Cf. West Ky. Coal Co. v. Com., Dept. of Highways, Ky., 368 S.W.2d 738, and cases there cited. We consider sound the reasoning of the U. S. Circuit Court of Appeals, 2nd Circuit:

“There is no absolute rule which precludes consideration of subsequent sales. The general rule is that evidence of ‘similar sales in the vicinity made at or about the same time’ is to be the basis for the valuation and evidence of all such sales should generally be admissible, United States v. 5139.5 Acres of Land, etc., 4 Cir., 1952, 200 F.2d 659, 662; 1 Orgei, Valuation Under Eminent Domain, § 139 (2d Ed.1953), including subsequent sales. Cf. People ex rel. Horwitz v. Miller, 1st Dept. 1944, 267 App.Div. 897, 47 N.Y.S.2d 168; People ex rel. Four Park Ave. Corp. v. Lilly, 1st Dept. 1942, 265 App.Div. 68, 37 N.Y.S.2d 733, 737-738. The generality of this rule is limited, however, by the consideration that a condemnation itself may increase prices and the government should not have to pay for such artificially inflated values. See International Paper Co. v. United States, 5 Cir., 1955, 227 F.2d 201. But that possibility does not produce a hard and fast exclusionary rule. In every case it is a question of judgment as to the extent of this danger and, particularly where a judge is sitting without a jury, it would seem the better practice to admit the evidence and then to weigh it having due regard for the danger of artificial inflation.” United States v. 63.04 Acres of Land, 245 F.2d 140, 144.

Since there was no showing here that the comparable sale did occur after the taking date, nor was there any effort to demonstrate that any appreciable change in market conditions had impaired comparability, there is clearly no merit in the appellant’s charge of error in this regard.

The final assignment of error relates to the testimony of appellees’ witness Fryer, a real estate broker; the crux of the matter may be best understood from this quotation of cross-examination of the witness;

“Q.27. Now, Mr. Fryer, after this taking you valued what is remaining at $18,050.00, a difference of $18,850.00, what were some of the things that entered into your appraisal, entered into that difference that went to the value of that property that depreciated it?
“A. Well, sir, one of the main things I considered in this appraisal this store building at the present time is located very dose to the highway, they had enough room to where they could park cars out in front, they could park cars across the entire one hundred and fifty feet of the frontage there and when you take seventeen foot six inches off of there then this absolutely eliminates all front parking, there is absolutely no way to park an automobile out in front without it being out in the highway. And in my opinion this grocery store building has practically no value after the taking especially for use as a grocery store. Now it could be used as a warehouse or storage but anything that catered to the retail public I think would be very undesirable because a child could dart out the front door of the building and just in two or three steps be out in the highway. I have talked to Mr. Dejarnett, of course as I say I sold them the property back a number of years ago, about fifteen years ago, but this, the highway traffic will be very close to the front of the building and a truck could run over a rock or stick and just flip it right inside the building very easily.”

It is obvious that some of the matters mentioned by the witness are irrelevant, speculative and noncompensable, e. g. danger to children and possibility that passing trucks might “flip” a rock or stick into the building. It would appear that these matters particularly relate to possible interference with the operation of the particular grocery business. In any event, such projections of possible happenings must be condemned as highly speculative. On the reading of the entire evidence of witness Fryer, however, it is the opinion of the majority of the Court that the quoted portion of his evidence is not sufficient to warrant striking his testimony; neither is it regarded as prejudicially erroneous. CR 61.01.

For the appellees the testimony as to differences in before and after values ranged from $17,869 to $22;500. The values ascribed for appellees to the temporary easement ranged from $1,200 to $2,500. The jury’s verdict was well within the limits of the evidence. The verdict appears quite liberal, but is not considered by the Court as so excessive as to appear to have been rendered as the result of passion and prejudice.

The judgment is affirmed.


source: Caselaw Access Project

author: HILL, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Margaret PARKER, Appellee.
    Court of Appeals of Kentucky.
    March 19, 1965.
    Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Madisonville, Rob-bert L. Hall, Covington, for appellant.
    L. B. Lawton, Henderson, for appellee.
   HILL, Judge.

This appeal from the Henderson Circuit Court involves the taking by the appellant of a strip off the front of appellee’s lot located in the city of Henderson for the purpose of widening of U. S. 41. The strip sought is about 10 feet wide and extends 337 feet, the entire length of appellee’s lot, and contains about 3253 square feet.

Judgment in the county court was for $5500.00 for land and $2500.00 damages to the remainder of the lot, the total being the amount fixed by the county court commissioners. From this judgment both parties prosecuted appeals to the Henderson Circuit Court, where a jury awarded appellee $10,000.00 for land and $1300.00 for rental of temporary easement, making a total verdict of $11,300.00. From the judgment entered on this verdict only the Commonwealth appeals.

The argument and grounds assigned by appellant for reversal are as follows:

1. The court erred in not giving the instructions and verdict form offered by the appellant.

2. The court erred in refusing to strike the testimony of appellee’s witness, Chean-ey.

3. The verdict is excessive and is not supported by sufficient evidence of probative value.

The judgment appealed from is dated September 11, 1963. The date of taking is November 26, 1962.

First, to the instructions. This case was tried before Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963). The instructions given in the present case have been uniformly upheld by this Court. We think the issues were properly presented to the jury.

It is next insisted the trial court erred in overruling appellant’s motion to strike the testimony of John Cheaney because he did not consider a restriction in appellee’s deed and because he admitted he considered disadvantages to the remaining property. These matters were proper considerations for the jury to take into account in weighing his evidence. They were not sufficient to justify disregarding his evidence.

Appellee introduced three other witnesses to which there was no objection. One fixed total benefits for appellee at $29,-157.00, another at $22,003.00, and the third at $24,370.00. So, eliminating the evidence of Cheaney, which we do not do, there is sufficient evidence to support the verdict. To repeat, the verdict was $11,300.00.

The final ground urged by appellant for reversal is the verdict is excessive and is not supported by sufficient evidence of probative value. The evidence referred to in the preceding paragraph fully answers this contention.

The judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    Jimmie A. WOODFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 19, 1965.

      Holland G. Bryan, Paducah, for appellant.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Albert Jones, Commonwealth’s Atty., Paducah, for ap-pellee.
   MOREMEN, Chief Justice.

Appellant, Jimmie A. Woodford, was indicted and tried under KRS 435.020. He was found guilty of involuntary manslaughter in the first degree and sentenced to two years’ confinement in the state penitentiary. This is the second appearance of this case in this court, the first one being reported in Ky., 376 S.W.2d 526.

At approximately 11:15 p. m. on November 7, 1962, an automobile driven by appellant and one driven by Mildred Traughber collided at the intersection of 17th and Jefferson Streets in Paducah. Jefferson is a boulevard or through street; 17th where it crosses Jefferson is a stop street. The Commonwealth’s testimony indicated that appellant was proceeding north on 17th Street, failed to observe the stop sign at Jefferson and ran out into the through street and- crashed into the Traughber car. Appellant testified that he was proceeding west on Jefferson Street at a reasonable rate of speed when Mrs. Traughber’s car emerged suddenly from 17th Street in front of him, that he applied his brakes and skidded so that his car made a ninety degree turn and ran into the Traughber car. Therefore a direct conflict in evidence was presented as to whether appellant was driving his car on Jefferson Street or on 17th Street. Each side had a witness or witnesses who, to a certain extent, corroborated its view. There was also a direct conflict in evidence as to whether appellant was intoxicated at the time.

Appellant urges four grounds for reversal; (1) certain evidence introduced was inadmissible because it was obtained by plying appellant with questions in violation of subsection (1) of KRS 422.110; (2) refusal to discharge the jury because of an alleged conversation between a prosecuting witness and a juror; (3) misconduct of a detective of the Commonwealth in stating to a witness in the courthouse corridor “you had better change your testimony ; ” (4) the trial court should have given a concrete instruction on sudden emergency.

One of the first officers to arrive at the scene of the collision was Bert Rankin. The ambulance was called for Mrs. Traughber after which the officer attempted to get the crowd to stand back from her. Later he took appellant to a squad car in order to question him. Appellant admitted that he ran the stop sign when proceeding north on 17th Street. It is this period of questioning that appellant contends violates KRS 422.110 and renders the evidence incompetent. Section (1) reads:

“No peace officer, or other person having lawful custody of any person charged with crime, shall attempt to obtain information from the accused concerning his connection with or knowledge of crime by plying him with questions, or extort information to be used against him on his trial by threats or other wrongful means, nor shall the person having custody of the accused permit any other person to do so.”

The officer testified that he talked to appellant for a period of about twenty minutes. Appellant testified as follows:

“Q. How long did they keep you there before they took you down to the city hall? A. About thirty minutes I guess.
“Q. Did anybody else question you there besides Bert Rankin? A. Yes, but I don’t remember who it was. Other officers got in the car and got out, and got in again and got out.
“Q. Just different ones taking turn about talking to you, is that it? A. Yes sir.”

The proof falls far short of disclosing that the admissions were obtained by sweating or were induced by hope or fear raised by promises or threats. See Milam v. Commonwealth, Ky., 275 S.W.2d 921.

The incident involving the juror is as follows: Appellant Woodford testified that during a short recess he entered a rest room and heard one of the witnesses for the Commonwealth and one of the jurors conversing. He did not hear what they said and they ceased talking when he entered the room. The court examined the witness and he testified that he did talk to one of the jurors about a fire which he had had in his store. He said there was not one word in the conversation concerning the trial of Woodford. The court concluded after the examination that no prejudice resulted from the conversation and overruled the motion to dismiss.

At a previous recess the court had admonished the jury in accordance with RCr 9.70 and, before the recess in question, had told them that the same admonition applied. This section of the criminal rules does not require that the juror be mute during the interim, but only places upon him the duty not to permit anyone to speak or communicate with him on any subject connected with the trial. We have held several times that it is not contemplated that the jury must be in a vacuum during the trial. Horton v. Commonwealth, Ky., 240 S.W.2d 612; Roark v. Commonwealth, Ky., 321 S.W.2d 783; and Sherley v. Commonwealth, Ky., 387 S.W.2d 284 (handed down February 1965). We believe the court properly determined that the admonition had not been violated.

Appellant next complains of the statement of a detective for the Commonwealth. Two witnesses testified that he told them in the corridor that they should change their testimony; both of these witnesses testified that they did not change their testimony because of the remark. It was not made in the presence of the jury and we find no prejudicial error in this instance.

Appellant urges that under the opinion in Marye v. Commonwealth, Ky., 240 S.W.2d 852, appellant was entitled to an instruction on sudden emergency. There Marye testified that he was driving on the right-hand side of the highway at a reasonable speed. As he approached the Land residence he observed an automobile with its lights burning parked on the wrong side of the highway in. front of the Land residence. He stated that when he was within a short distance of the parked automobile it suddenly pulled out into the highway in the path of his automobile. In order to avoid a collision he swerved his car sharply to the right, ran onto the lawn of the Land residence and struck Mr. and Mrs. Land. We held that under such a situation concrete instructions on sudden emergency should have been given. The facts were quite different from those presented here since there was no act by a third party that caused appellant to make a quick choice of action when in a position of peril. The basic question concerns the street on which appellant was traveling at the time of the accident. We believe the instruction properly presented this question.

Finally appellant urges that the pictures of the automobiles introduced as evidence should not have been permitted because they disclosed only the right side of appellant’s car and the left side of the deceased’s car, and failed to show both sides of both automobiles. In Lee Lewis, Inc. v. Dosch, 193 Ky. 163, 235 S.W. 355, it was stated:

“* * * while the photographs must be identified, and must be a fair representation of the object pictured, they are not, and cannot in the nature of things be a complete representation of every detail of an injury to an automobile.”

We do not believe the court abused sound discretion in admitting the photographs.

We are of opinion that appellant received a fair trial and the judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William C. STAPLES et al., Appellees.
    Court of Appeals of Kentucky.
    March 19, 1965.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Joyce Ferris Nedde, Frankfort, Dandridge F. Walton, Dept, of Highways, Madisonville, for appellant.
    Irvin Marcus, Louisville, Leo King, Ul-vester Walker, Walker & West, Henderson, for appellees.
   HILL, Judge.

A jury of the Henderson Circuit Court awarded appellees $6675.00 for a strip of land three feet wide and 150 feet long, and $1764.00 for diminution of the rental value for temporary easement, a total of $8439.00. Only the Commonwealth appeals.

The strip of appellees’ lot is sought for reconstruction of US 41. Prior to the taking, appellees’ lot was 150 feet square. A filling station was situated and being operated thereon.

The county court commissioner’s report and the county court judgment amounted to $1937.50. The circuit court trial date is September 9, 1963.

Here, verbatim, are the three grounds assigned for reversal:

“I. The Circuit Court erred in refusing to exclude, over appellant’s objection, appellees’ valuation evidence which was based on the noncompensable element of loss of business.
“II. The jury’s award for the fair rental value of the temporary easement is excessive and not sufficiently supported by the evidence.
“HI. The Circuit Court erred in overruling appellant’s motion for a new trial based on an award of excessive damages which appeared to have been given under the influence of passion and prejudice and in disregard of the evidence and instructions of the court.”

We consider first the competency of evidence of appellees pertaining to values, before and after the taking. A witness for appellees testified that because of the taking the station’s ability to handle the highway and tourist type of trade was “about gone;” that the capacity of the station to accommodate the usual traffic had been impaired; that in arriving at the before and after value of the property, he considered “how many gallons” (gasoline) it will sell before and after. However, the witness did not attempt to fix a value on this item, nor did he give any specific figures or data pertaining to business. Complaint is also made of the argument of counsel for ap-pellees on this evidence. It should be kept in mind that the improvements on appellees’ lot were designed for a gasoline filling station, and that the 3' strip taken comes off the front of the property. Before the taking it was 16 feet from the island containing the pumps, to the edge of the right-of-way. After the taking there is 13 feet. Although it cannot be said that this small strip is sufficient to accommodate another line of traffic, certainly it can be said the strip has some considerable value. The taking of this strip has an important bearing upon the after value, and it was not incompetent or prejudicial for the witness to testify he considered this element in arriving at after value. This conclusion is not in conflict with our rule announced in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963).

Appellees were allowed to introduce Exhibit 4, a photograph showing conditions during the use of the temporary easement. This was improper under Commonwealth Dept. of Highways v. Fister, Ky., 373 S.W.2d 720 (1963), wherein it was said:

“The Commonwealth next contends the court erroneously permitted the owners to introduce pictures showing the condition of the premises during the construction work. These pictures were inadmissible on the ground just discussed which rendered evidence of business losses inadmissible. They tended to prove an injury to the business of the motel caused by unsightly construction operations. * * * ”

Appellant did not object to the introduction of this photograph. Hence we do not reverse the case on this ground. Since we are reversing the case for a new trial, for other reasons, we think it proper to point out that such photographic evidence is incompetent and prejudicial and should not be allowed on another trial.

Appellant next contends in parts two and three of its argument that the award of the jury is excessive, both as to value of the land taken and the value fixed for temporary easement. We agree.

It should be kept in mind that the land taken was 3' wide and ISO' long; that the temporary easement was used just over three months; that the temporary use was not exclusive. Appellees also used the temporary easement during this time.

Appellees’ entire lot contained 22,-500 square feet before the taking. Only 4S0 square feet were taken. To take the highest value, $42,500.00, fixed by appellees’ witness, this gives us $1.88 per square foot for the entire lot with improvements. At this rate the 4S0 square feet -taken amounts to only $846.00. The jury awarded $14.82 per square foot for the strip taken. We are not so unphilosophic as to imply the front of appellees’ property is of the same value as the remaining part. It may be, more or less, depending on the location of improvements, the amount and prospective use of the remainder, or other considerations. However, we do not think it is more than seven times as valuable.

Turning to the award for temporary easement, it is clear from the evidence that the two witnesses who testified for appellees considered loss of business during construction. One testified the rental value of the temporary easement was $2,000.00; the other made it $2,500.00. The temporary easement involves approximately 1930 square feet. The award of the jury was $1,764.00, or ninety-one cents per square foot. The rental value of the whole lot before the taking, at this rate, amounts to $20,475.00 for three months.

In Commonwealth of Kentucky, Department of Highways v. Rankin, Ky., 346 S.W.2d 714 (1961), in a somewhat similar case, this Court said:

“The testimony for the appellee is unconvincing, highly speculative, and contrary to common knowledge. There is no reasonable basis given upon which to rest such unrealistic estimates of values and damages. The damages allowed are so excessive that they appear to have little relation to the true market value of the property before and after the taking, and, as said in the Mauk case, ‘strike us as being unreasonable, and such as to show the jury was actuated by passion or partiality or by prejudice.’ ”

It is our conclusion the case at bar comes within the rule in the Rankin case.

The judgment is reversed, with directions to sustain the motion of appellant for a new trial.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. June CAUDILL et al., Appellees.
    Court of Appeals of Kentucky.
    March 19, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Reed D. Anderson, Madisonville, for appellant.
    Ralph N. Walter, Nickell & Walter, West Liberty, for appellees.
   PALMORE, Judge.

This is a condemnation case in which the highway department has acquired 5.76 acres of a 70-acre tract of land at the southwest edge of West Liberty, county seat of Morgan County, incident to widening, straightening and re-grading U. S. 460 as it leads from the city up and over Index Hill toward Frenchburg. The highway bisects the property, as it did before the improvement project, and the taking embraced an area bordering each side of the road along a distance of some 1400 or 1500 feet. Also included within the taking were a tenant house and ramshackle coal shed. In a trial held under pre-Sherrod practice the jury awarded $5,000 for the land taken and $3,000 for damages to the remainder.

Witnesses for the landowners testified that the property fronting both sides of the highway had commercial value, though its development would have required filling on one side and excavating on the other. They cited recent instances in which hillside lots on the other side of town fronting 150 feet on the same highway had sold for $6,000 each and had been thereafter prepared for commercial use by cutting into the hill. It was their opinion that the property in question, which lies partially within the city limits, was equally adaptable and equally desirable for commercial purposes. Their estimates of value were founded very largely on that premise.

The state’s first contention is that its motion to strike testimony relating to the commercial potential of the property should have-been sustained because it was not shown that the land was reasonably adaptable to commercial development and that there was a probability that it would have been put to such use in the near future. We are unable to agree. The fair import of the testimony was that the frontage was currently salable for commercial purposes. Moreover, it seems to us that in the absence of evidence to the contrary any unzoned land fronting a main highway at the edge of a city or town, if reasonably adaptable to building purposes, would be presumed to have commercial value.

A closely related argument is that the comparable sales to which we have alluded should not have been admitted in evidence, because the property sold was not reasonably similar. It is true that a town lot and a 70-acre farm, as a whole, are dissimilar, but if there is a market for the sale of lots off the farm on an “as is” basis, certainly it is proper to show what prices have been paid for similar lots in comparable locations. Witnesses qualified as experts indicated that the property sold as lots in or near the city limits at the opposite end of town was of the same type and character and otherwise comparable with those portions of the Caudill farm bordering the highway. We think this was a sufficient showing of comparability. Cf. Commonwealth, Dept. of Highways v. Finley, Ky., 371 S.W.2d 854 (1963).

The witnesses did testify to one sale of a lot on Water Street or Riverside Drive in West Liberty without so much as being asked whether it was comparable. In fact, the only suggestion of comparability was that the lot was the same distance from Licking River. (on the other side) as the Caudill home. This, of course, is about like equating Standi ford Airport or the Kentucky State Fairgrounds with some of the knobs across the Ohio River in Indiana. However, there was neither an objection nor a motion to strike.

All of the improvements and the greater portion of the farm in question are on the southeast side of the highway, 20 acres of unimproved and unused hill land being across the road on the northwest side. There is a coal vein of questionable value in this 20 acres, and years ago some of it was mined. At that time there was a usable entranceway into the 20 acres from the highway, but after the mining operation ceased the highway department cut a ditch through it, so that as of the time this condemnation proceeding was begun there was no actual means of access to the 20 acres. However, an engineer testifying for the landowners testified that in spite of the ditch an approach could have been reestablished with very little difficulty, whereas it will now be impossible (without, at least, an encroachment permit) because the state’s plans call for a concrete conversion ditch running parallel with the highway just beyond the top of the cut, which at the site of the old entranceway will be some four feet high. Hence the 20-acre tract is virtually landlocked, and that is one of the factors the owners’ witnesses took into consideration in estimating the amount of resulting damages.

A motion to strike the loss-of-access testimony was overruled. The state takes the position that the owners had no actual means of access to begin with, hence they lost none by reason of the condemnation and, further, “that so long as the landowner retains reasonable access to the highway system by the same means available to him as before the faking, * * * the difficulty of access created by ‘cuts’ and ‘fills’ on the new road is not a proper damage factor,” etc., citing Commonwealth, Dept. of Highways v. Raybourne, Ky., 364 S.W.2d 814 (1963).

Accepting the engineer’s testimony as true, which the jury was entitled to do, the ditch existing prior to the institution of the present improvement was not a formidable obstacle to re-establishment of access to the 20 acres. Therefore, the owners really did have a means of access. They simply had no immediate reason for using it. The fact that it was there, and was available for use if and when needed, obviously was a factor in whatever value the 20 acres had. Now it is gone, and the converse is equally clear — the land cannot be as valuable as it was when it was accessible from the highway. So, the only question on this phase of the appeal is whether the physical obstruction or destruction of all access from the public highway to a piece of land is an allowable factor in. determining the reduction in value for which the owner is entitled to compensation.

It is the law in this state that a landowner along a public road has “a right of reasonable access to the highway system.” Commonwealth, Dept. of Highways v. Carlisle, Ky., 363 S.W.2d 104, 107 (1962). See also Department of Highways v. Jackson, Ky., 302 S.W.2d 373 (1957), in which it is pointed out that “damages resulting from the deprivation of such property right are to be measured by the depreciation in the value of the land.” It cannot make any logical difference whether the right of reasonable access is destroyed by design or by accident, whether by closing roads, by prohibiting access, or by physical obstructions such as walls, fences, ditches, cuts and fills. The end result is the same. The access rights of the landowners in this case were just as effectively squelched as if the highway department had declared U. S. 460 a limited access highway and put up a wire fence along the right-of-way. We therefore hold that this deprivation was a proper factor in determining the allowable compensation.

The worst aspect of the case is the virtual certainty that the award reflects a duplication of damages for loss of frontage on the highway, as in Commonwealth, Dept. of Highways, v. McGeorge, Ky., 369 S.W.2d 126 (1963). In each of these two cases there was nothing to justify the amount awarded for the land taken except that it was road frontage. In both, for one reason or another the new frontage left after the taking was devoid of the value theretofore possessed by the frontage taken. In McGeorge the loss of ready access, which is the essence of frontage value, was the only basis given by the witnesses for reduction in value of the remaining land, and we held that since the award for the land taken obviously was based on frontage value there could not be an additional recovery for damage to the remainder.

It was suggested in Commonwealth, Dept. of Highways v. Finley, Ky., 371 S.W.2d 854, 856 (1963), that the premium value of a lot or strip taken from the front of a larger tract necessarily reflects and includes the resulting diminution in value of what is left behind it. This is no less true when the state is the purchaser and, like a private buyer, takes the property for a use that bars access between the road and the land left to the rear. The resulting situation of non-access to the road from the rear is bound to be an important factor in the price at which the intervening frontage will sell.

In this case the witnesses for the landowners stressed the loss of commercially usable frontage as the main factor tending to reduce the value of the remaining property. They advanced only two other relevant circumstances. One was the resulting inaccessability of the coal vein in the 20 acres. The other was that a comer of the new right-of-way line will be some 12 feet closer to the residence. Some of the coal already had been mined and the operation long since abandoned, and there was no proof that the remaining coal either is mineable or of any substantial contributory value to the land in which it lies. So far as the closer proximity of the right-of-way to the dwelling is concerned, none of the testimony would support an inference that the damage from that factor alone would approach $3,000.

These circumstances force the conclusion that the $3,000 award for damages to the remainder must have included, to a major degree, compensation for loss of frontage. That particular factor being also a necessary component of the $5,000 price awarded for the land taken, there is an improper duplication. Commonwealth, Dept. of Highways v. McGeorge, Ky., 369 S.W.2d 126 (1963).

In McGeorge we permitted the award for the land taken to stand and directed that there be no allowance for damages to the remainder. In this instance, however, there may actually have been some damage attributable to factors not covered in the award for the portion taken. Hence in fairness to the owners it is necessary that there be a new trial. Sherrod will apply.

Reversed with directions for a new trial.

      . Commonwealth, Dept. of Highways v. Sherrod, Ky,, 367 S.W.2d 844 (1963).

      . Apparently the topography is such that this particular place, in a hollow between steep cuts on the highway right-of-way, was the only spot at which a passageway into the 20 acres could feasibly he located.


author: STEAKLEY, Justice.

text:
    Wayne KELSO, Petitioner, v. Frank S. HANSON et al., Respondents.
    No. A-10311.
    Supreme Court of Texas.
    March 10, 1965.
    Rehearing Denied April 7, 1965.

      Neal, Hazelwood & Wolfram and John B. Reese, Amarillo, for petitioner.
    Gibson, Gchsner, Harlan, Kinney & Morris and Harris E. Lofthus, Amarillo, for respondents.
   STEAKLEY, Justice.

This case presents for decision the question of the liability of sureties on a replevy bond executed pursuant to Rule 708. Delbert D. Flock employed Wayne Kelso, Petitioner, to repair a machine for him. After completion of the repairs the machine was returned to Flock’s possession. Kelso was not paid and thereafter regained possession of the machine. Flock sued Kelso and sequestered the machine pursuant to Rule 696 et seq. Flock alleged in his suit that Kelso wrongfully regained and was withholding possession of the machine; that it earned an average of $100.00 per day; that he was entitled to damages in the sum of $100.00 for each day possession of the machine was withheld from him; that he was entitled to recover $10,000.00 in exemplary damages. Kelso did not replevy the machine as he could have done under the authority of Rule 701. Flock did so pursuant to Rule 708.

Some months later Kelso filed a cross-action against Flock in which he sought to recover the reasonable value of his repair services and to foreclose his mechanic’s and materialman’s lien. He also sought damages for wrongful sequestration and wrongful replevy, together with damages for malicious prosecution growing out of a criminal complaint which Flock had filed against Kelso.

The case was tried to a jury. With respect to Flock’s suit against Kelso the jury found that Flock sustained a loss of income from the loss of use of the machine during the time it was in Kelso’s possession but that such loss was not the result of Kelso’s “own action.” In the subsequent appeal the Court of Civil Appeals expressly held that this latter finding was supported by the evidence. Flock v. Kelso, 366 S.W.2d 698 (C.C.A.1963, no writ hist.). The jury further found that Flock was not entitled to any compensation for loss of income from the machine or to attorney’s fees. The jury did find, however, that Flock’s machine was removed from the premises of Kelso “with Kelso’s knowledge and consent.” There were also findings favorable to Kelso with respect to Kelso’s cross-action against Flock.

The trial court entered a take nothing judgment against Flock in his suit against Kelso. Judgment was also entered in favor of Kelso on his cross-action against Flock that he “recover of and from plaintiff and cross-defendant, DELBERT D. FLOCK, on his sequestration bond and replevy bond given in the sequestration proceedings herein the sum of ONE THOUSAND NINE HUNDRED FORTY-TWO and 69/100 DOLLARS ($1,942.69), together with 6% interest per annum thereon from and after January 18, 1962, until paid, and that defendant and cross-plaintiff, WAYNE KEL-SO, have foreclosure of his constitutional lien. * * * ” As adverted to above, Flock appealed this judgment and it was affirmed.

This case is a subsequent suit filed by Kelso against Respondents, Hanson and Blackburn, who were the sureties on the replevy bond given by Flock in the previous proceedings, for the difference between the value of the machine at the time of replevy and at the time of the judgment in the previous case. Kelso’s petition set forth- the facts of the previous suit, together with the sequestration and replevy proceedings, and alleged that the machine “was surrendered to the sheriff by Delbert D. Flock in a materially and substantially altered, changed and delapidated condition”; further, that the machine brought only $50.00 in the foreclosure sale pursuant to the judgment for Kelso in the previous proceeding which ordered a foreclosure of Kelso’s constitutional lien on the machine and its sale under execution in satisfaction of the judgment. Kelso further alleged that execution against Flock for the balance of his judgment was returned nulla bona by the sheriff because of his inability to collect from Flock or to locate any property belonging to Flock subject to execution.

Respondents filed a special exception to Kelso’s petition, asserting that it did not allege a cause of action because the judgment in the previous case “by its implied finding found in favor of Delbert D. Flock as to the right of possession to the machine in that it foreclosed a constitutional lien against such machine; such lien being a nonpossessory lien and enforceable only by judgment of the court. Said judgment further shows that the jury in answer to Special Issue No. 20 found that Wayne Kelso surrendered his possessory lien. The judgment entered was on the cross-action of the defendant for a debt. * * * ” The trial court sustained this special exception,, and upon Kelso’s refusal to amend, dismissed the suit. The Court of Civil Appeals has affirmed. 380 S.W.2d 187.

The Court of Civil Appeals considered as controlling the finding of the jury in the previous suit that Kelso consented to the return of the machine to the possession of Flock after he, Kelso, had completed his repairs. It was the reasoning of the Court of Civil Appeals that under this finding the act of Kelso in recovering possession of the machine was unlawful, from which it follows that the sequestration of the machine by Flock could not be wrongful since Flock was merely regaining that which he had a right to have. It is implicit in the decision that the Court of Civil Appeals was of the view that liability could not exist on the replevy bond except and unless there was a wrongful sequestration and there was none here. As a consequence, the Court of Civil Appeals did not reach the problem inhering in the fact that the trial court entered a take nothing judgment against Flock in Flock’s suit against Kelso in which Flock sequestered and replevied the machine. Rule 709 provides that “ * * * in case the suit is decided against the plaintiff, final judgment shall be entered against all the obligors in such bond, jointly and severally for the value of the property replevied as of the date of the execution of the replevy bond, and the value of the fruits, hire, revenue or rent thereof as the case may be.” (Emphasis added.)

The conditions of the replevy bond which Flock was required to give under Rule 708 were that he would have the machine “in the same condition as when it is replevied, together with the value of the fruits, hire or revenue thereof, forthcoming to abide the decision of the court, or that he will pay the value thereof, or the difference between its value at the time of replevy and the time of judgment (regardless of the cause of such difference in value, and of the fruits, hire or revenue of the same in case he shall be condemned to do so).”

Respondents contend that liability on the replevy bond turns on the question of who had the right to immediate possession of the machine at the time Flock filed his suit; and that since Flock was found to have this right by the jury it necessarily follows that he prevailed in the suit in which the writ of sequestration was issued within the contemplation of Rule 709. This being so, Respondents continue, there can be no liability on the part of the obligors on either the sequestration or replevy bonds.

Kelso, on the other hand, draws a distinction between a suit for damages because of wrongful sequestration and a suit on a replevy bond for the decrease in value of the personal property when it is returned to the sheriff. He argues that the replevy bond serves a different conservatory purpose and that his suit on the replevy bond is independent of and not controlled by the prior sequestration proceedings. He insists that it can be presupposed in this appeal that the loss of value of the machine while in Flock’s hands as the replevisor would not have occurred had the machine been left in the hands of the sheriff under the sequestration, and that the replevin bond is required to protect him against this very happening.

It is apparent on the face of the rules that the sequestration bond required by Rule 698 and the replevy bond required by Rule 708 serve two different purposes, and are conditioned against different contingencies. The sequestration bond guarantees the payment of damages and costs in case it is decided that the sequestration was wrongfully issued. The replevy bond guarantees that the replevisor will have the property in the same condition to abide the decision of the court. Cf. Finegan v. Read, 8 Tex.Civ.App. 33, 27 S.W. 261 (Tex.Civ.App.1894, no writ).

It is also correct to say that the condition of liability on the replevy bond declared by Rule 709 — decision of the suit against the plaintiff — refers to the suit filed by the plaintiff pursuant to and under which the sequestration and replevin rights are invoked. The liability of Respondents as sureties on Flock’s replevy bond is unaffected by the success of Kelso in the subsequently filed cross-action against Flock. The problem is whether Flock lost Ms suit against Kelso within the contemplation of Rule 709. His prayer in this suit was “* * * that a writ of sequestration issue to preserve said machine during the pendency of this action against disposition or disposal by the defendant; and that on final hearing hereof plaintiff have judgment for his damages, attorney’s fees and costs as herein prayed for,” and for all other relief to which he shows himself entitled.

The judgment of the trial court pertaining to Flock’s suit against Kelso was that Flock “take nothing by virtue of . his cause of action herein.” Presumably, this take nothing judgment was based on the jury finding that the loss of income sustained by Flock was not the result of Kelso’s actions since this was the jury finding expressly sustained by the Court of Civil Appeals in affirming the judgment against Flock. Flock v. Kelso, supra. Rule 709 does not condition liability on the replevy bond on a wrongful sequestration (as is true of the sequestration bond under Rule 698), or on a decision that the replevisor was not entitled to possession of the property. Rule 709 conditions liability in this respect upon the suit being decided against the plaintiff, and this condition is present here. It cannot be gainsaid that Flock’s suit against Kelso was decided against him, and this is determinative of the question on this appeal.

A plaintiff availing himself of the replevin proceeding, and those obligating themselves on the replevy bond guaranteeing the performance of its terms by the plaintiff, are bound to the conditions imposed by the rules governing the procedure. Sequestration of the machine by Flock preserved it against destruction by Kelso while Flock’s suit against him was pending. When Flock chose to exercise the replevin procedure,, and thereby obtain possession and control' of the machine, he bound himself and his sureties to the conditions of liability prescribed by the rules. These rules should be construed in accordance with their provisions which establish the purposes for which they were ■ enacted. Cf. American Mortgage Corp. v. Samuell, 130 Tex. 107, 108 S.W.2d 193. The trial court erred in sustaining Respondents’ exception to the cause of action stated by Kel-so.

The judgments of the trial court and of the Court of Civil Appeals are reversed, and the cause is remanded to the trial court

      . All references are to Texas Rules of Civil Procedure.

      . Kelso’s suit is not one seeking to enforce the judgment in the previous case which decreed him a recovery on the “sequestration and replevy bond,” nor does Kelso claim that the previous judgment is res adjudieata of the liability of Flock and his sureties on the replevy bond.

      . We are mindful that the Court of Civil Appeals erroneously stated in this opinion that the jury found that the machine was taken from Kelso’s possession without his knowledge and consent.


author: CALVERT, Chief Justice.

text:
    CITY OF FORT WORTH, Petitioner, v. L. C. JOHNSON et al., Respondents.
    No. A-10154.
    Supreme Court of Texas.
    Nov. 18, 1964.

      S. G. Johndroe, City Atty., Fort Worth, for petitioner.
    Campbell & Campbell, Fort Worth, for respondents.
   CALVERT, Chief Justice.

The City of Fort Worth brought suit to enjoin L. C. Johnson, La Verne Hurt, and others from using a building owned by Mrs. Hurt as a six-unit apartment house in violation of a City zoning ordinance. Trial was on the prayer for a permanent injunction, and the trial court rendered judgment denying the relief sought by the City. The Court of Civil Appeals has affirmed. 377 S.W.2d 699. We reverse the judgments of the courts below and remand the cause to the trial court for entry of judgment for the City of Fort Worth.

Pursuant to Arts. lOlla-lOllk, the Fort Worth City Council, on November 26, 1952, enacted Comprehensive Zoning Ordinance No. 3011, effective March 1, 1953. Section 4 of the ordinance limits use of property in “B” Two-Family Districts to one-family and two-family dwellings.

On September 27, 1958, the City granted a permit for the construction of a two-family dwelling on Lot 3, Block 5, Hawkins Scenic Hill Addition to the City of Fort Worth. The owner of the property at that time was D. E. Hansen. Contrary to the permit, the building was completed on January 2, 1959, as a six-unit apartment house. Following completion of the building, the City issued a 10-day notice to the owner of the property to discontinue the use of all but two of the units. Some time following completion of the building, L. C. Johnson acquired the property. Mrs. Hurt purchased the property from him for a valuable consideration on July 14, 1961. Within approximately a week from the date the property was conveyed to Mrs. Hurt, the City Building Inspector notified her that she and her tenants were making use of the property in violation of the zoning ordinance. The violation continued; and in October of 1961, the City instituted this suit to enjoin Johnson, Mrs. Hurt and Mrs. Hurt’s tenants from using the building in violation of the City ordinance.

In answer to the City’s original petition, defendants pleaded a general denial and that due to laches on the part of the City they would be irreparably damaged should the ordinance be enforced. Trial was before the court. The City proved up and introduced its Comprehensive Zoning Ordinance in evidence, and proved that the property was in a “B” Two-Family District. It then tendered proof that the structure contained six separate family units, whereupon defendants stipulated that fact and that each unit was occupied by a separate family group. The City then rested its case. The defendants called no witnesses. They did establish by cross-examination of the City’s witnesses that from the standpoint of physical appearance the structure would add to improvement of the neighborhood and that off-street parking space was provided for the tenants. The trial court recited in its judgment denying the injunction that the evidence was “insufficient to entitle plaintiff to the relief requested.”

The Court of Civil Appeals seems to have based its judgment of affirmance on two grounds: (1) because the City failed to prove that use of the structure in violation of the ordinance “would damage it and its residents in their health, safety, and welfare,” and (2) because Mrs. Hurt acquired the property “two and one-half years after its completion, for a valuable consideration without notice that it was finished in violation of the permit granted for its construction.” We hold that neither of the grounds affords a sound basis’for the judgment.

The first ground is unsound because it fails to take cognizance of the rule, firmly established in this State, that a zoning ordinance, duly adopted pursuant to Arts. 101 la-101 lk, is presumed to be valid, and the burden is on one seeking to prevent its enforcement, whether generally or as to particular property, to prove that the ordinance is arbitrary or unreasonable in that it bears no substantial relationship to the health, safety, morals or general welfare of the community. City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43; City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477; Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706, writ refused. Adoption of a zoning ordinance by the governing body of a city represents the exercise of a delegated legislative discretion, and enforcement or non-enforcement of the ordinance is not a matter for judicial discretion. City of Snyder v. Cogdell, Tex.Civ.App., 342 S.W.2d 201, no writ history, cited by Respondents, does not hold to the contrary. In that case the City was not seeking to enforce a zoning ordinance. Moreover, denial was of a temporary and not of a permanent injunction. If the evidence is conclusive that a zoning ordinance is arbitrary and unreasonable, generally or as to particular property, it is the duty of the courts to refuse to enforce it; but in the absence of such proof, it is the duty of the courts to enforce it.

The City of Fort Worth made its case for a permanent injunction when it proved that its Comprehensive Zoning Ordinance No. 3011 was duly adopted; that Lot 3, Block 5, Hawkins Scenic Hill Addition to the City is in an area zoned as a “B” Two-Family District; that the structure in question contained six separate family living units, and that each unit was being used to house a separate family group. Testimony that the physical appearance of the structure was attractive and that off-street parking was provided for the tenants did not establish conclusively that the ordinance was arbitrary and unreasonable if applied to the property.

We consider next the second ground, noted above, for the Court of Civil Appeals’ judgment of affirmance. Aside from the fact that there is absolutely no evidence in the record that Mrs. Hurt did not know that the structure was completed in violation of the building permit, absence of such knowledge does not constitute a defense to the suit. Were it otherwise, integrity of all zoning could be destroyed by erecting buildings in violation of permits and selling them to persons ignorant of permit terms.

But there is a suggestion in the second ground that the judgment of the trial court was affirmed because the City’s right to enforce the ordinance as to the particular property was barred by laches. We cannot approve that reason for affirmance. In considering the question in the light of the record before us, we need not decide, and therefore put aside, such questions as (1) whether unreasonable delay by the City as a basis for the defense of laches should be measured by a statute of limitation, and (2) whether laches can under any circumstances be a defense to a suit to enforce a zoning ordinance.

We need not decide the first question because an action by a city to enforce a zoning ordinance is not barred by a statute of limitation, see Art. 5517 and Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 109; and if unreasonable delay should, nevertheless, be measured thereby, it would be measured by the four-year statute, Art. 5529.

We need not decide the second question because Respondents did not discharge their burden of proving laches. Laches is an affirmative defense. Rule 94, Texas Rules of Civil Procedure. Being an affirmative defense, the burden was on Respondents, as defendants, to prove its essential elements. Arrington v. Cleveland, Tex.Civ.App., 242 S.W.2d 400, 403, writ refused; Gulf, C. & S. F. Ry. Co. v. McBride, 1S9 Tex. 442, 322 S.W.2d 492, 500. The defense of laches is akin to that of estoppel. Humble Oil & Refining Co. v. Trapp, Tex.Civ.App., 194 S.W.2d 781, 786, writ refused. Two of the essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay. Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 170-171; 19 Am.Jur. 343, Equity, § 498. The Respondents thus had the burden of proving not only unreasonable delay and lack of diligence by the City of Fort Worth in asserting its right to have the use of the structure brought into compliance with its ordinance, but also that their position had, in good faith, been changed because of the delay. They offered no evidence to prove either.

The only proof in the record relevant to the defense of laches is that the building” permit was granted September 27, 1958; that the structure was completed January 2, 1959, in violation of the permit; that notice was given promptly by the City to the owner to discontinue the violation; that Mrs. Hurt’s immediate predecessor in title was the defendant L. C. Johnson; that Johnson conveyed the property to Mrs. Hurt July 14, 1961; that Mrs. Hurt was notified about one week thereafter that her use of the property was in violation of the ordinance, and that this suit was filed on October 17,1961,

There is no proof in the record of non-assertion by the City during the interval from January 2, 1959 to July 14, 1961 of its right to have the structure and its use brought into compliance with the ordinance. For aught the record shows, there may have been owners of the property other than Hansen, Johnson and Mrs. Hurt. The record shows that notice that the City was asserting its rights was promptly given to Hansen and Mrs. Hurt. There is no proof that the same notice was not given to Johnson and to any others who may have owned the property. There is no proof that legal proceedings were not filed against Hansen and all successive owners. Thus, the record is devoid of proof that the City was guilty of unreasonable delay and negligence in asserting its rights.

There is, likewise, an absence of proof in the record that because of the City’s delay Mrs. Hurt changed her position in good faith. The deed from Johnson to Mrs. Hurt reflects a valuable consideration, but that fact alone does not import a good faith change of position. Mrs. Hurt was charged in law with knowledge of the City’s zoning ordinance and that the structure she purchased was in a “B” Two-Family District. Johnson v. City of Dallas, Tex.Civ.App., 78 S.W.2d 265, 270, writ refused; Davis v. City of Abilene, Tex.Civ.App., 250 S.W.2d 685, 688, writ refused; City of Dallas v. Coffin, Tex.Civ.App., 254 S.W.2d 203, 206, writ refused, no reversible error. She did not even prove that she had no actual notice of those facts. She knew that she was purchasing a six-unit apartment house, and she did not prove lack of knowledge that it was erected in violation of the building permit. It simply cannot be said that there is evidence in the record before us that Mrs. Hurt changed her position to her detriment in good faith.

The brief of the Respondents offers no reasons, other than those discussed, for affirming the judgment of the Court of Civil Appeals.

The judgments of the Court of Civil Appeals and the trial court are reversed, and the cause is remanded to the trial court with directions to grant a permanent injunction restraining and enjoining use of the property in violation of the ordinance.

      . All Article references are to Vernon’s Texas Civil Statutes.

      . The Supreme Court of Oregon has held that when a city’s suit is not subject to the bar of a statute of limitations, the statutory period will not be used to measure unreasonable delay as a basis for the defense of laches. City of Pendleton v. Holman, 177 Or. 632, 164 P.2d 434, A.L.R. 249.

      . This fact is sufficient in itself to distinguish Town of Highland Park v. Marshall, Tex.Civ.App., 235 S.W.2d 658, writ refused, no reversible error, cited by the Court of Civil Appeals.


author: PER CURIAM.

text:
    Robert H. THOMPSON, Jr., Petitioner, v. REPUBLIC ACCEPTANCE CORPORATION, Respondent.
    No. A-10568.
    Supreme Court of Texas.
    March 10, 1965.
    Rehearing Denied April 7, 1965.

      Mauzy & Mauzy, Houston, for petitioner.
    Leonard L. Franklin, Isaac D. White, Austin, Frank Y. Hill, Jr., Michael R. Gibson, San Antonio, for respondent.
   PER CURIAM.

The opinion by the majority in the Court of Civil Appeals has correctly held that a promissory note payable “in Austin” is a contract in writing that is performable in Travis County, Texas. Republic Acceptance Corporation v. Thompson, 384 S.W.2d 792. The opinion is subject to the interpretation, however, that one who relies upon subdivision 5, Article 1995, Vernon’s Ann.Civ.St., need not introduce into evidence the written document relied upon. The writing relied upon must be proved. The fact that defendant Thompson did not deny execution under oath excused proof of execution, but the terms of the note must still be proved. Davis v. Marshall, 25 Tex. 372 (1860); Able v. Chandler, Adm’r, 12 Tex. 88 (1854). There is no statement of facts and ordinarily we would presume that the facts proved support the judgment. Mays v. Pierce, 154 Tex. 487, 489, 281 S.W.2d 79, 82 (1955). However, petitioner has no point that the note which was attached to the pleadings was not introduced in evidence. He has, in fact, briefed the case upon the basis that it was introduced into evidence. The Court of Civil Appeals has reached the right result on the only points which petitioner has raised by his assignments in his application. City of Deer Park v. State, ex rel. Shell Oil Co., etc., 154 Tex. 174, 275 S.W.2d 77, 84 (1954). We accordingly refuse the application for writ of error, no reversible error. Rule 483, Texas Rules of Civil Procedure.


text:
    W. B. FULTZ, Petitioner, v. FIRST NATIONAL BANK IN GRAHAM, Texas, Respondent.
    No. A-10348.
    Supreme Court of Texas.
    Feb. 24, 1965.
    Rehearing Denied March 24, 1965.

      Jennings, Montgomery & Dies, Graham, for petitioner.
    Cantey, Hanger, Gooch, Cravens & Scarborough, Edward Kemble, Fort Worth, for respondent.
   STEAKLEY, Justice.

This suit was brought by W. B. Fultz, Petitioner here, against the First National Bank in Graham, Respondent, to recover the sum of $13,060.00 representing “less cash” sums, in amounts ranging between $50.00 and $300.00, paid by the bank to Mrs. Fern McCoy, an employee of Fultz, in “for deposit only” transactions to the account of Fultz over a period of time between February, 1960, and April, 1963. The sums so paid to Mrs. McCoy were misappropriated to her personal use. Mrs. McCoy had not signed a signature card at the bank and was not authorized by Fultz either to check on his account or to withhold cash amounts from the deposits made for him. The full endorsement which was stamped on each of the checks read: “Pay to the order of the First National Bank, Graham, Texas — For deposit only — W. B. Fultz.”

Both parties moved for summary judgment and the trial court granted the motion of Fultz. The Court of Civil Appeals held that the alleged negligence on the part of Fultz in not examining his bank statements and other records and discovering the defalcations so as to notify the bank would, if found to be true, constitute a defense to his suit against the bank. Consequently, that Court held that in these respects there were issues of fact to be determined by the trier of facts and the summary judgment for Fultz was improper. The Court of Civil Appeals was also of the view that an issue of fact existed as to whether Wilford Fultz, the son of Fultz, who was either a partner or joint owner, received all or part of the “less cash” withdrawals. 380 S.W.2d 894. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The key to the first problem is the undisputed fact that the bank violated the written instructions of Fultz, and hence breached its deposit contract with him in each deposit transaction. In the exercise of care by Fultz, all of the checks which were deposited were endorsed “For Deposit Only.” This was an unqualified direction to the bank to place the full amount of the checks to the account of Fultz. This instruction was violated when part of the amount of the checks was paid to Mrs. McCoy in cash. The bank had knowledge of its acts in violation of the instruction. Fultz as the depositor had the right to rely on the bank to honor the “For Deposit Only” instructions he had established as the regular deposit routine for his employee and the bank to follow; he was under no duty to exercise further care to ascertain if the bank had followed his instructions, and it is not asserted that Fultz had actual knowledge that the bank had not done so. The instruction carried in the restricted endorsement, “For Deposit Only,” if followed, afforded absolute protection to both the bank and the depositor in the check deposit transactions and would have rendered the misappropriations impossible. The bank was in no way misled. Fultz had not filed a signature card for his defalcating employee and had not authorized his employee to sign checks on his account or make cash withdrawals in connection with deposits to his account. The “For Deposit Only” endorsements in the latter transactions were positively to the contrary.

The decisions which consider the question of the liability of a bank for the payment of forged checks recognize the principle stated by the Supreme Court of the United States in Leather Manufacturers’ National Bank v. Morgan, 117 U.S. 96, 6 S.Ct. 657, 29 L.Ed. 811 (1885), and quoted with approval in Southwest National Bank of Dallas v. Underwood, 120 Tex. 83, 36 S.W.2d 141 (1931), that “If the bank’s officers, before paying forged or altered checks, could by proper care and skill have detected the forgeries, then it cannot receive a credit for the amount of these checks, even if the depositor omitted all examination of his account.”

So it is here. The Respondent bank had only to exercise proper care by following the specific instructions of Fultz, the depositor; the doing of this required no skill. Its course of action in failing to do so resulted in liability to Fultz “even if” he “omitted all examination of his account.” This distinguishes the decisions in the cases which are premised upon a duty of the depositor to examine his statements from the bank, which examination would have revealed the defalcations, e. g., Southwest National Bank of Dallas, supra; Fifth National Bank of San Antonio v. Iron City National Bank of Llano, 92 Tex. 436, 49 S.W. 368 (1899); Weinstein v. National Bank of Jefferson, 69 Tex. 38, 6 S.W. 171 (1887); and Atlas Metal Works v. Republic National Bank, 176 S.W.2d 350 (Tex.Civ.App.1943, wr. ref. w. o. m.). Cf. Rudisill Soil Pipe Co. v. First National Bank of Anniston, 224 Ala. 436, 140 So. 569 (1932).

Another rule of general acceptance, quoted with approval by this Court in Liberty State Bank v. Guardian Savings & Loan Assn., 127 Tex. 311, 94 S.W.2d 133 (1936), is that “[T]he duty imposed upon the depositor to examine his pass book and vouchers does not extend to an ex-animation of the signatures of the payees on the returned vouchers.” This rule is bottomed upon the premise that “it is the duty of the bank to determine the genuineness of a payee’s indorsement, and the depositor is not expected to know his signature.” By analogy, it was the clear and simple duty of the hank in the case here to honor the “For Deposit Only” endorsement, and Fultz was not expected to know that the bank had not done so, or to anticipate that the bank might not do so, or to take measures to determine if the bank had done so.

Further, as recognized in Liberty State Bank, since Fultz owed no duty to the bank to examine his bank statements and other records, he was, for that reason, not guilty of negligence in not doing so, and in not discovering the defalcations of his employee. For the same reason he is not estopped to assert the liability of the bank. There existed no genuine issue of fact between the parties in such respects.

A further reason for the reversal by the Court of Civil Appeals of the summary judgment in favor of Fultz was the holding that an issue of fact was shown to exist as to whether Wilford Fultz, Petitioner’s son and either his partner or a joint owner, received all or a part of the “less cash” payments, citing Heusinger Hardware Co. v. First National Bank, 367 S.W.2d 710 (Tex.Civ.App.1963, writ ref. n. r. e.). It is our view that the bank had the burden of proof on this issue. In addition to the respective motions of the parties, the summary judgment record consists of the depositions of various witnesses, including those of Mrs. McCoy, Wilford Fultz, and two of the bank tellers. Mrs. McCoy and Wilford testified in their depositions that Wilford did not receive any of the funds. Wilford also testified that he did not know anything about the conduct of Mrs. McCoy. Mrs. McCoy stated, however, that when an Internal Revenue agent first discovered her defalcations while auditing the income tax returns of Fultz, she said to him, and probably to an auditor employed by Fultz, that Wilford “got some of this money [she] was taking.” The two bank tellers testified that on one or more occasions when Mrs. McCoy was paid funds in the “less cash” transactions she volunteered information to the effect that Wilford needed some money to go out of town. Mrs. McCoy sought to explain this testimony by saying in her deposition : “ * * * we would have a discussion about Wilford, whether he was going on a trip or something, and they gathered from that that I was getting it for him, but I did not state I was getting it for him.” The bank made no further showing with respect to the receipt of the funds by Wilford.

It is the well-settled rule in this State, and elsewhere, that prior inconsistent statements are usable only for impeachment purposes and are not substantive evidence of the facts stated. Bradley v. Texas & P. Ry. Co., 1 S.W.2d 861 (Tex.Com.App.1928); Anderson v. Houston Motor Car Co., 131 S.W. 419 (Tex.Civ.App.1910, no writ); Woodward-Wanger Co. v. Nelson, 11 S.W.2d 371 (Tex.Civ.App.1928, no writ); see Comment Note, 133 A.L.R. 1454. Therefore, the showing of the prior inconsistent statements by Mrs. McCoy did not discharge the defensive burden of the bank since these statements are not substantive evidence that Wilford did, in fact, receive the funds.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

POPE, J., not sitting.