text:
    James NEAL, Administrator of the Estate of Harry L. Neal, Appellant, v. George WELKER et al., Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Luden M. Hall, Harold M. Streets, Streets & Hall, Central City, Rhodes Bratcher, Owensboro, for appellant.
    Leonard T. Mitchell, Mitchell & Withers-, John L. Dorsey, Dorsey & Sullivan, Henderson, Will Tom Wathen, Wathen & Wesley, Morganfield, for appellees.
   DAVIS, Commissioner.

In this malpractice action, the trial court entered summary judgment denying the relief sought in the complaint. This appeal challenges that action of the circuit court.

On July 30, 1965, before noon, Harry L. Neal fell from a pickup truck bed and sustained an injury to his head. He received first aid treatment at nearby Camp Breck-inridge Infirmary where a laceration on the occipital region of his head was sutured. He was forthwith transferred to Our Lady of Mercy Hospital in Morgan-field, where he arrived about 11 a. m. When Neal was admitted to the hospital, he was examined by appellee Dr. John P. Welborn in the emergency room. The examination by the doctor was primarily a routine one in which he tested the patient’s reaction to light in his eyes, tendon reflexes, and noted the relative normalcy of the “vital signs” (respiration, blood pressure, pulse rate, and state of consciousness). X rays of the skull were taken and were negative for fracture, although the X-ray films appear to have been lost before this case was decided.

Dr. Welborn directed that Neal be put to bed and kept under observation; the only medication he prescribed at that time was aspirin. Dr. Welborn had a previous commitment to leave Morganfield at noon on July 30 and referred Neal’s case to his partner, appellee Dr. George Welker. In a deposition, Dr. Welker testified that he observed Neal on four occasions between 1 p.m. and 10 p.m. on July 30 and that on all of these occasions he “was holding his own” in that his “vital signs” were normal. There is dispute as to whether Dr. Welker did visit Neal as often as he said he did, and there is question as to whether Neal’s “vital signs” remained constant during the period between 1 and 10 p.m. on July 30. Neal’s mother and wife arrived at the hospital about 1 p.m. and, according to affidavits in behalf of the appellant, one or the other of them was in the patient’s room at all times, and no doctor attended Neal at any time while they were there. The hospital record reflects that during the night of July 30-31 Neal became substantially worse insofar as his state of consciousness and voluntary control of his bodily functions were concerned. He received paraldehyde and more aspirin (the latter of which was administered rectally due to Neal’s inability to swallow normally).

By the morning of July 31, Neal’s condition had worsened to the extent that his father and other members of his family concluded to remove him to Owensboro for observation and treatment by a neurosurgeon. Neal’s father had telephoned to his own family physician who had advised such procedure, according to affidavit for appellant. Dr. William E. Pearson was the neurosurgeon who observed and treated Neal, beginning about 10:30 a.m. on July 31. When Dr. Pearson first saw Neal, an examination disclosed that the patient was very restless, had fixed dilated pupils, was semiconscious, unable to move the four extremities, had a large abrasion of the posterior thorax, and a laceration which had been sutured in the mid-occipital region. Dr. Pearson directed that X rays be taken of the chest, abdomen, and skull. The chest and abdominal X rays were negative, but the skull X rays revealed a large linear fracture from the posterior parietal region running to the left side down to the occi-put. Dr. Pearson ordered the patient to bed rest and administered cortisone. Neal’s condition rapidly deteriorated, and he died at 4:20 p.m. on July 31.

On August 1, an autopsy was performed by Dr. David Orrahood, specialist in pathology, which revealed that the immediate cause of death was respiratory failure of the lungs, secondary to subdural hematoma. Dr. Orrahood made it plain that the failure of the respiratory system resulted from the injury and damage to Neal’s brain which he found upon the autopsy. Dr. Orrahood said that he found a massive subdural he-matoma in the right frontal lobe and a lesser subdural hematoma in the left frontal lobe. In each of the lobes, he discovered brain damage “with softening and hemorrhage.” Dr. Orrahood said that the right cerebral artery “was also involved in the process.” The autopsy revealed hemorrhage and softening of the base of the anterior temporal lobe on the left side, plus involvement of the hippocampus gyrus on the left side. Dr. Orrahood said that the autopsy disclosed that Neal’s brain was swollen, warranting a diagnosis of cerebral edema. He explained that a subdural he-matoma is a bleeding between the brain and its membranous covering, pointing out that the covering of the brain is spoken of as the dura. The most significant portion of Dr. Orrahood’s evidence is contained in an answer which we quote: “In my opinion based upon medical certainty this is an extensive and advanced type of brain defect which would lead to death and is irreversible or irretrievable.” The just quoted answer was given in response to a question as to whether anything could have reasonably been done to have saved the life of Harry Neal.

Dr. Pearson, the neurosurgeon who attended Neal from the time of his arrival at the Owensboro hospital until his death, testified that in his opinion there was no time from the instant of the accident until the patient’s death at which any surgery looking toward relief of his condition was warranted or indicated. He further related that after examining the hospital records of the patient at Morganfield he saw nothing in the course of treatment afforded Neal which he would have changed or done differently. A most significant answer of Dr. Pearson’s is quoted: “I don’t think there is anything that anyone could have done to reduce the brain swelling or reduce the damage that the patient sustained to both frontal lobes and the tips of both temporal lobes. I feel there was nothing that could be done in this patient’s condition. I feel he was dead when he hit the pavement, at the time of the accident when he fell from the truck.” Dr. Pearson expressed the view that the administration of paraldehyde was proper. It is appropriate to observe that Dr. Pearson testified that he did not consider that Neal died of a subdural hematoma but attributed his death to cerebral edema and brain stem compression with probable hemorrhage. He regarded the edema as resulting from the trauma. Dr. Pearson pointed out that medication to reduce edema is available, and was administered by him to Neal, but that its usage is contra-indicated at times because the reduction of edema tends to decrease the intercranial pressure to the extent that bleeding from any present laceration may be expected to resume or increase and thus bring about a larger sub-dural hematoma. This situation was described by Dr. Orrahood as a “vicious cycle,” when he deposed: “The natural sequence of death in this particular case is spoken of as a vicious cycle. Once this cycle is set into effect it is inexorable, and it consists of first the damage, then followed by edema; the edema of the brain causes more damage. More damage causes more edema. These two factors cause destruction. The destruction itself sets up more hemorrhage and bleeding, and a vicious cycle is set into effect which has little influence outside, it being influenced hardly none by outside factors, and leading to death. It is my opinion that the damage from the very beginning was here and increased in the fashion that I have outlined in an unrelenting course.”

Dr. Orrahood said that edema could, in some instances, be controlled and reduced, but further said that Neal’s was “not the type of case that would have been entered in to reduce the pressure” during the period between the accident and his death.

The appellant made no showing that medical evidence was available to counter the effect of the evidentiary material which we have discussed. It is the appellant’s contention that Drs. Welborn and Welker negligently omitted to perform tests upon Neal which would have revealed his critical condition and indicated the urgent need to undertake control of the swelling of the brain. As stated in the brief for appellant, the thesis of appellant’s argument is: “We contend that Neal had a chance. This chance was based on immediate diagnosis, and either treatment or transfer to a competent neurosurgeon.” We may concede that appellant would have had a case warranting a trial if the availability of any medical testimony had been shown to support the contention that Neal had a chance — and that the chance had been obliterated by inadequate treatment by any of the appellee-defendants. Our difficulty in accepting the argument lies in the fact that there is no showing that such evidence could be presented at a trial. Here the moving party has established the apparent nonexistence of a genuine issue of a material fact. In that circumstance the opposing party (appellant here) is required to “show his hand, or enough of it to defeat the motion, before trial on the merits.” Barton v. Gas Service Company, Ky., 423 S.W.2d 902; Robert Simmons Const. Company v. Powers Regulator Co., Ky., 390 S. W.2d 901, 905.

It is recognized by the parties that summary judgment is to be awarded to the moving party “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56.03. We have searched the record before us, including the pleadings, depositions, and affidavits and can find no genuine issue of any material fact. There is an issue as to whether Dr. Welker visited the bedside of Neal as often as he said he did, and there is an issue as to whether Dr. Welker neglected to confer with Neal’s next of kin, so that they might form an enlightened judgment as to what course to pursue for Neal. None of these issues, however genuine they may be, relates to any material fact. The unrefuted and immutable fact deducible from the record is that Neal’s injury was so grave as to preclude any hope that his life could be saved by medical science.

The appellant has called our attention to Hicks v. United States, 4 Cir., 368 F.2d 626 (1966), as authority for the proposition that a defendant’s negligent action or inaction effectively terminating a person’s chance of survival is actionable, and may not be defended on the premise of conjectures raised as to the extent of the chances of survival. We need neither approve nor disapprove the reasoning of Hicks v. United States, supra, as it is distinguishable from the present case as shown by the face of the opinion. In Hicks appears the following language:

“Both of plaintiff’s experts testified categorically that if operated on promptly, Mrs. Greitens would have survived, and this is nowhere contradicted by the government expert.” Id. 368 F.2d at 632.

Exactly the converse is true in the case before us. The medical experts testified categorically, and without contradiction, that Neal had no chance and that the fatal progress of his condition was irreversible and irretrievable.

Appellant contends that the trial court rendered summary judgment against him for the failure of appellant to respond to an affidavit as to how the accident occurred. We are unable to discern anything in the record that supports such an argument. It is not required that the adverse party file any sort of answer or defensive pleading or other response to a motion for summary judgment, and no such requirement was made of appellant. When the moving party has presented evidence showing that despite the allegations of the pleadings there is no genuine issue of any material fact, it becomes incumbent upon the adverse party to counter that eviden-tiary showing by some form of evidentiary material reflecting that there is a genuine issue pertaining to a material fact. Tarter v. Arnold, Ky., 343 S.W.2d 377. Of course, it is not proper to weigh the evi-dentiary material offered by the adverse parties with a view to determining which side is to be believed. It is necessary only to determine whether there is a genuine issue of fact material to the decision of the case. As noted, there is nothing in the present record to indicate any such genuine issue as to a material fact. Cf. Rowland v. Miller’s Adm’r, Ky., 307 S.W.2d 3.

Upon his motion to set aside the summary judgment, the appellant filed affidavit asserting “that the plaintiff herein both can and will if granted opportunity, produce competent medical evidence that Harry L. Neal was not treated in a manner accepted by the medical profession; was in fact ignored by Drs. Welker and Welborn who until the autopsy had no idea of the extent or nature of the injury and failed completely to treat him for it.” There is no suggestion by the appellant as to the source of any such evidence, nor is there any reason advanced why the alleged evi-dentiary material had not been presented in some form before submission of the case upon summary judgment. In this state of the record, we must hold that the summary judgment was properly granted. The curtain must fall at some time upon the right of a litigant to make a showing that a genuine issue as to a material fact does exist. If this were not so, there could never be a summary judgment since “hope springs eternal in the human breast.” The hope or bare belief, like Mr. Micawber’s, that something will “turn up,” cannot be made basis for showing that a genuine issue as to a material fact exists. Conley v. Hall, Ky., 395 S.W.2d 575. There was no request for continuance to obtain additional affidavits as envisioned by CR 56.06.

This opinion has pointedly failed to make reference to any alleged negligence as respects Our Lady of Mercy Hospital. The appellant makes no claim in his brief against the hospital, nor could he, in view of the utter lack of any showing which could support a finding against the hospital, apart from any derivative liability based on negligence of the doctors on its staff. We do not decide here whether any such liability could exist.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MIL-LIKEN, MONTGOMERY, OSBORNE, and STEINFELD, JJ., concur.

PALMORE, J., not sitting.


source: Caselaw Access Project

author: DAVIS, Commiss ioner.

license: Public Domain

text:
    Arnold FLOWERS, Appellant, v. Robert S. AUGUST et al., Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Terry L. Hatchett, Glasgow, for appellant.
    Joe L. Travis, Nunn & Travis, Glasgow, for appellees.
   DAVIS, Commiss ioner.

The appellees obtained judgment enjoining the appellant from construction of two duplex apartments on Lots 5, 6, 7, and 8 of Spring Hill Subdivision in Glasgow. The appellant urges that the proposed buildings are not violative of the applicable restrictions and seeks reversal.

Each of the four lots owned by the appellant fronts 50 feet on Spring Hill Drive and has depth of 150 feet. The restrictions affecting Spring Hill Subdivision are duly recorded in the county court clerk’s office of Barren County, and Restrictions 1, 4, 7, and 8 are involved in this controversy and are thus phrased:

“(1) This property shall be used exclusively for residential purposes, and no commercial building of any kind shall be erected thereon, and no building erected shall be used as a business or commercial property in any manner.
(4) All residence buildings shall cost at least $10,000.00 or contain 1,200 square feet of building space.
(7) No building shall be erected closer than 35 feet to the street.
(8) This land must be sold as units of one lot or more, and only one residence shall be erected on each unit. The smallest unit is to be the dimensions of the smallest lot.”

We look first at the application of Restriction 7 which requires that no building shall be erected closer than 35 feet to the street. The court found from competent evidence before it that the front walls of the two buildings as laid out on the ground are nearer to the right-of-way line than 35 feet. The appellant contends that the measurement should be made from the surface of the road or street rather than the right-of-way line as shown on the plat. No direct authority for that contention is presented. It seems to us that reason demands that the right-of-way line for the street be used as a measuring point rather than the variable surface of the roadway itself. Uniformity is the objective of such a building line. To adopt a variable measuring point when a fixed one is available would frustrate the purpose of a restriction. We find no merit in appellant’s contention that Restriction 7 affords him the right to build nearer than 35 feet to the right-of-way line.

The evidence reflects that one of the proposed buildings is to be located in part on Lot 5 and in part on Lot 6. The other is to occupy portions of Lots 7 and 8. Each of the buildings is to be 60 feet wide and divided by a common wall so that each unit will be a separate residential apartment. All of one unit and part of another lie on Lot 6, and all of one unit and part of another lie on Lot 7.

It seems clear that the rule announced in Macy v. Wormald, Ky., 329 S. W.2d 212, would preclude construction of duplex apartments in face of Restriction 8, unless that restriction has been deleted by agreement of all the lot owners in the subdivision. In Macy a restriction provided: “Said lots shall be used only for residence purposes, and only one residence shall be erected upon each lot * * There we held that “only one residence” means exactly what it says and cannot be enlarged to mean four residences. McMahan v. Hunsinger, Ky., 375 S.W.2d 820, recognized that a restriction to “residence” purposes, standing alone, does not prohibit multiple dwellings but that a different rule obtains when the modifying term “a,” “one,” or “a single” is prefixed to the word “residence.”

On May 27, 1963, all of the then owners of lots in the subdivision, including the developer of the subdivision, entered into a release agreement in which the following language appears:

“John M. Barrick purchased Lot No. 27 and constructed a house on a portion of Lot No. 27 and conveyed to Robert S. August, the balance thereof. Robert S. August now desires to construct a house on the portion of such lot acquired by him. The restrictions in Spring Hill Subdivision provide that the land must be sold as units, of one lot or more, and that only one residence shall be erected on each unit; the smallest unit is to he the dimension of the smallest lot.
“IT IS NOW AGREED by all of the owners of property in the Spring Hill Subdivision that such portion of the restrictions as provide that the land must be sold as units of one lot or more, and that only one residence should be erected on each unit; and that the smallest unit is to be the dimension of the smallest lot, shall be deleted, and shall no longer be a portion of the restrictions upon said Spring Hill Subdivision, and Robert S. August is given full right and authority to purchase a portion of Lot No. 27, and to construct a home thereon.”

Eight of the persons who signed the document wrote after their signatures “Lot No. 27 only” or words to that effect. The trial court found that the intention of the parties had been to effect a release of the restriction as it applied to Lot 27, but no further. Although the language just quoted from the release is somewhat confusing and ambiguous, we agree with the trial court that its purpose and effect was to provide a release from the restriction insofar as Lot 27 is concerned, but no further. Obviously, the eight signers who specifically limited their signatures to Lot 27 did not agree that the entire subdivision was to be released from the restriction. Less than all of the lot owners could not vitiate the restriction. McFarland v. Hanley, Ky., 258 S.W.2d 3, 20 Am.Jur.2d, Covenants, Conditions, Etc., Section 270.

The appellant contends that there have been several violations of restrictions in the subdivision so that all right to enforce Restriction 8 has been lost by waiver and abandonment. Reliance is placed upon Dartmouth-Willow Terrace, Inc. v. Mac-Lean, Ky., 371 S.W.2d 937, and cases of like import. We recognize the validity of the rule followed in Dartmouth-Willow Terrace but agree with the trial court that there was no showing here of sufficient violations of restrictions to bring that rule into play.

The judgment is affirmed.

All concur.


author: EDWARD P. Hill, Judge.

text:
    William D. SHEA, Appellant, v. James E. BRUNER, Appellee.
    Court of Appeals of Kentucky.
    Oct. 13, 1967.
    As Modified and Rehearing Denied April 26, 1968.
    S. J. Stallings, Robert P. Hastings, Louisville, for appellant.

      James G. Bowman, Hogan, Taylor, Den-zer & Bennett, Louisville, for appellee.
   EDWARD P. Hill, Judge.

The majority verdict of the jury was for appellee-defendant in appellant-plaintiff’s suit for damages for personal injuries sustained when struck by appellee’s automobile while appellant was crossing Poplar Level Road at Quarry Street in Louisville, Kentucky. The one question raised on this appeal is whether the trial court erred in refusing to give the jury a “last clear chance” instruction offered by appellant.

The question here demands a detailed statement of the facts. Poplar Level Road, a four-lane highway, runs generally north and south. Quarry Street is a two-lane street that runs into Poplar Level Road from the east and ends there. A median, sixteen feet wide, separates the two north and southbound lanes of Poplar Level Road south of Quarry Street, but north of Quarry Street the median is reduced to about four feet, partly due to a left turn storage lane for traffic desiring to turn left from Poplar Level Road onto Quarry Street.

William D. Shea, age 73 alighted from a Louisville Transit Company bus on the west side of Poplar Level Road, north of the Quarry Street intersection, late in the afternoon of February 15, 1964. It was raining. He first crossed the southbound lane of Poplar Level Road onto the narrow median (four feet wide). He stopped on the median to allow a panel truck to pass in the inside northbound lane of Poplar Level Road. In lieu of our interpretation of the facts from this point on, it is considered advisable to quote from the testimony of Shea and Bruner.

Shea explained what occurred after leaving the median in this language:

“And then I looked up to see where Mr. Bruner was and he was three hundred feet down the road, and I started on across. I knew I had plenty of time to get across and I started across. And I looked up Quarry Road to see if anything was coming, and started on across.
“And I got out to the center of the road and I looked up and he had- — -he slowed down. And he was almost to Quarry Road and he slowed down then, and I thought he was going to stop for me to go on. I didn’t think he was coming as fast as what he was.
“And so he slowed down and I started on out, and I looked up Quarry Road. I didn’t stop, I just kept on going. I never did stop from the time I started from the center. And when I looked up Quarry Road he hit me.”

Appellee gave this version of the case:

“Q. Well, did you see Mr. Shea as he stood in the median in between the two roads?
“A. Not as he stood, sir.
“Q. Well, then what are you indicating that you did see him when he was at the median and—
“A. (Interrupting) When he was stepping off of the median.
“Q. Well now, when you first saw him you say he was stepping off of the median? And where were you in your car?
“A. I was some distance before — before reaching the entranceway to Quarry Center I saw him.
“Q. Well, tell us your best judgment as to how far you were from him as he stepped off that median and when you first saw him?
“A. Approximately 250 feet, something like that.”
“Q. Well, what if anything did you do when you first saw him ?
“A. I taken my foot off the accelerator, placed it above the brake but I didn’t apply the brake.
“Q. Well now, at the time you first saw him was he headed in an eastwardly direction ?
“A. No, sir, south.
“Q. Well, he was coming facing you then?
“A. Yes, sir.”
“Q. Then it was apparent from the time you first saw him two hundred and fifty feet away up until the time you hit him then?
“A. That he desired to cross the street, yes.
“Q. Yes, sir. Now, did you ever put your brake on ?
“A. Yes.
"Q.- Had you put your brake on when you first saw him 2S0 feet away would you have had ample time to stop?
“A. Yes.
“Q. And not struck him?
“A. Yes.
“Q. Now, from the time you first saw him until the time you hit him did you keep him in your view all the time?
“A. Yes, sir.
“Q. In other words you didn’t glance off up at the Quarry, you were looking straight ahead?
“A. No.
“Q. And watching the man?
“A. I was watching the man.
“Q. And you never did see him at a standstill anywhere along the line?
“A. No, sir.
“Q. In other words he was walking from the time you first saw him go off the median and until — up until the time you struck him?
“A. No, sir. He was walking from the time I saw him come off the median and then he ran right in front of me.”

The philosophy underlying the “last clear chance” doctrine was recently stated by this court in Riley v. Hornbuckle, Ky., 366 S.W.2d 304, 307 (1963) :

“If it (last clear chance doctrine) is to have any real effect as a humanitarian policy, we think the doctrine must be held applicable to the situation in which (as in the Saddler case) there is evidence that a pedestrian who was within the intended path of travel of an oncoming vehicle remained in that area of peril, with nothing to prevent the driver’s seeing him, long enough for the vehicle to move a distance of several hundred feet. When this occurs, there is usually a point in time at which the curtain closes on the ability of the pedestrian to get out of the way of a faster-moving vehicle while it yet remains open for the driver to shift his course. Whether that interim constitutes a ‘clear’ chance ought to be left to the jury.”

It is the conclusion of this court that the rule announced in Riley and Frank, supra, must be invoked in this very similar factual case. Accordingly, appellant was entitled to have the jury instructed on the doctrine of “last clear chance.” If upon another trial the facts are substantially the same as at the first trial, such instruction should be given.

The judgment is reversed for proceedings consistent with this opinion.

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


author: DAVIS, Commissioner.

text:
    Walter (Sonny) GOSSETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 29, 1968.
    Fritz Krueger, Somerset, E. G. Bertram, Jr., R. B. Bertram, Bertram, & Bertram, Monticello, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, C. Homer Neikirk, Commonwealth’s Atty., Somerset, for appellee.
   DAVIS, Commissioner.

Walter (Sonny) Gossett was indicted under Chapter 242 of the Kentucky Revised Statutes, commonly known as the “local option law,” for possessing sixteen pints of liquor for the purpose of sale. Gossett also was charged with having been found guilty of two previous offenses of violating the local option law. He was convicted as charged and sentenced to the maximum of two years in the state penitentiary. KRS 242.990. He appeals from that judgment.

About the fifth day of November 1966, State Trooper Hail made an affidavit for the purpose of obtaining a warrant for search of Gossett’s property. The affidavit was based upon limited observations made by Hail and upon information supplied to him by Vestal Cline. Armed with the search warrant, Hail and other officers went to the Gossett premises. While the search warrant was being read to Effie Gossett, Walter’s wife, officers searched the premises and discovered sixteen pints of whiskey in a sack in the antique shop in back of the house. At that time Walter arrived home.

Gossett contends that the trial court erred in admitting incompetent evidence over his objection. The Commonwealth’s attorney asked Hail about obtaining the search warrant and filed the affidavit and search warrant in evidence. When he was interrogated regarding the search and the results, an objection was made which was overruled. He testified “there was sixteen pints of whiskey found in the antique shop in the back of the house in a sack.” Gossett contends that the affidavit in question was insufficient to authorize the issuance of the search warrant for the Gossett premises, because the information upon which it was based was too remote in time. He charges that the pertinent portion of the affidavit on this question read: “* * * that he has this day been told by Vestal Cline that in the last ten days he was on the aforesaid premises * * He relies on Williams v. Commonwealth, Ky., 355 S.W.2d 302, in which the affidavit stated that the informant told him that the defendant “has in his possession at this time” intoxicants for the purpose of sale, and on Henson v. Commonwealth, Ky., 347 S.W.2d 546, in which the affidavit stated “that the defendant ‘now has in possession,’ * * * alcoholic beverages.” We held in Williams and Henson' that the affidavit for the search warrant was defective by not disclosing when the observation was made. In the case now before us the informant told the officer “* * * that in the last ten days he was on the aforesaid premises, and in the building in the rear of residence known as the antique store room and that he saw on the floor a large quantity of bottled whiskey, and that Walter (Sonny) Gossett said to him: ‘I always keep on hand a good supply of whiskey; calls come to me over the telephone for liquor, and I drive off to answer the call and deliver the whiskey.’ ”

The United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), stated new guidelines for determining the sufficiency of affidavits. We quote a portion of that opinion as follows:

“ * * * the Fourth Amendment’s commands, like all constitutional requirements, are practical- and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”'
* * * * * ⅜
“ * * * when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Citation omitted.)

The affidavit was sufficient. United States v. Bowling, 6 Cir., 351 F.2d 236; Rosencranz v. United States, 1 Cir., 356 F.2d 310; Bentley v. Commonwealth, 239 Ky. 122, 38 S.W.2d 963; Neely v. Commonwealth, 269 Ky. 451, 107 S.W.2d 305.

After explaining to the jury panel the nature of the case, the court asked whether “any one of the jurors knew or had heard anything about the case or knew of any reason why they could not sit as jurors in the matter and render a fair and impartial verdict.” There was no response from any one of the twelve jurors who were ultimately accepted.

When the circuit clerk testified from his records, he revealed that Walter Cline, one of the jurors, had been a member of the jury which convicted Gossett in 1951, and Ottis Van Hdok had been on the jury which found Gossett guilty in 1962. These were the two previous convictions on which Counts 2 and 3 of the indictment were based. Gossett’s counsel promptly moved “to discharge this jury and continue this cause for this reason, the testimony of the last witness discloses * * * that two jurors in this case said they knew nothing about it, one was on the 1951 conviction and the other was on the 1962 conviction.” The judge said that he had realized that these two had been on the previous juries, but that he considered this to be “inconsequential.” Gos-sett seeks reversal claiming that he was not tried by an impartial jury. The Commonwealth argues that Gossett should have made this objection before the jury was sworn, but there was no showing that he recognized these men as having been on the juries which had convicted him.

Section 11 of the Kentucky Constitution guarantees to “the accused” a “trial by an impartial jury.” RCr 9.36(1) directs that “⅜ * * when there is reasonable ground to believe that a juror cannot render a fair and impartial verdict on the evidence he shall be excused and disqualified to serve.” The right of each side to an impartial jury is of great importance. Hemphill v. Commonwealth, Ky., 405 S.W.2d 956. The party charged with a criminal offense is entitled to be tried by a fair and impartial jury composed of members who are disinterested and free from bias and prejudice actual or implied or reasonably inferred. Tayloe v. Commonwealth, Ky., 335 S.W. 2d 556; Brumfield v. Commonwealth, Ky., 374 S.W.2d 499.

In 31 Am.Jur., Jury, Section 140, Page 123, it is written: “Most authorities take the position that the defendant in a criminal prosecution is entitled to make reasonable and pertinent inquiries of a juror on his voir dire, so that he may exercise intelligently and wisely his right of peremptory challenge.” In Webb v. Commonwealth, Ky., 314 S.W.2d 543, we recognized the purpose of the voir dire examination and pointed out that the trial court had erred in limiting the voir dire, but found it unnecessary to determine whether that error was prejudicial since the case was reversed on another ground. The situation at bar is somewhat aggravated when it is recalled that the trial judge pointed out that he had realized that Walter Cline and Ottis Van Hook had sat as jurors in the two previous trials of Gossett, and that they had not made disclosure of it, but that he considered the matter to be “inconsequential.” RCr 9.38 provides that the trial judge may permit the attorney for the Commonwealth and the defendant or his attorney to conduct voir dire examination, or the judge may conduct it himself. Where the court conducts the voir dire, as was done here, and recognizes that members of the panel have failed to make accurate answers, whether inadvertently or otherwise, that circumstance should be brought to the attention of the parties. The right of intelligent exercise of peremptory challenges as permitted by CR 9.40 is a valuable one. Here the defendant was not fully ap ■ prised of the situation respecting prospective jurors, Cline and Van Hook, and the trial court knew it. We believe this was prejudicial error requiring a new trial.

The rationale of Bowling v. Commonwealth, Ky., 286 S.W.2d 889, and Young v. Commonwealth, Ky., 286 S.W.2d 893, does not rule this case because in each of those cases the defendant and his counsel knew that the jurors had served in previous trials involving the defendant and could have exercised peremptory challenges.

Objection was made to the failure to grant a continuance because of the absence of a witness. We need not consider whether error was committed in this respect as the situation likely will not recur at another trial.

The appellant complains of the form and substance of Instruction No. 3 relating to a special defense based on defendant’s claim that the whiskey belonged to his wife. See Ramsey v. Commonwealth, Ky., 325 S.W.2d 307. There is serious question whether the defendant has properly preserved the claimed error in the instruction within the rule of Hatton v. Commonwealth, Ky., 409 S.W.2d 818, and Stewart v. Commonwealth, Ky., 389 S.W.2d 910. There is some dispute whether the question now presented was ever presented to the trial court as appeared in Marcum v. Commonwealth, Ky., 398 S. W.2d 886. Since there may be another trial, we point out that Instruction No. 3, as given, was not in proper form. The defense should have been presented by an instruction within the tenor of the decisions in Ramsey v. Commonwealth, Ky., 325 S.W.2d 307, and Noble v. Commonwealth, Ky., 295 S.W.2d 343, without embellishment relating to possible agency between Gossett and his wife.

The judgment is reversed for further proceedings consistent with the opinion.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, PALMORE and STEINFELD, JJ., concur. .

OSBORNE, J., dissents, because he agrees with the trial judge in that he considers the matter to be inconsequential.

EDWARD P. HILL, J., joins in this dissent.


author: HAMILTON, Justice.

text:
    Johnny Ray SELLERS, Petitioner, v. Edna Ray POWERS et al., Respondents.
    No. B-127.
    Supreme Court of Texas.
    April 3, 1968.

      Elton M. Hyder, Fort Worth, for petitioner.
    Stone, Tilley, Parker, Snakard, Law & Brown, Sam Denny, Fort Worth, for respondents.
   HAMILTON, Justice.

This is a suit to construe the will of Maedel Sellers, deceased. Testatrix was survived by two children, Johnny Ray Sellers and Edna Ray Powers. This suit was instituted by Johnny Ray Sellers against his sister, Edna Ray Powers and her children, Toby Walker, Eddie Ray Walker and Bobbie Ray Walker, who were all in being at the death of testatrix and against his son Chad Curtiss Sellers, who was born after her death. Three of the above named children are minors and were represented throughout the proceedings by a guardian ad litem.

It is alleged that portions of the third and fourth paragraphs of the will violate the rule against perpetuities, which “renders invalid any will which attempts to create any estate or future interest which by possibility may not become vested within a life or lives in being at the time of the testator’s death and twenty-one years thereafter, and when necessary the period of gestation.” Rekdahl v. Long, 417 S.W.2d 387, 391 (Tex.Sup.1967) ; Kettler v. Atkinson, 383 S.W.2d 557, 560 (Tex.Sup.1964). We quote the pertinent provisions of the will:

III. “I give, devise and bequeath all the rest and residue of my said property and estate, real, personal or mixed, community or separate, wherever situated, of which I may die seized and possessed, to my daughter, Edna Ray Sellers Walker, and my son, Johnny Ray Sellers for life, if they both survive me, to have and to hold said residue of my estate as joint tenants during their joint lives; provided, however, if only one of my said children survive me, or if both survive me but one later dies then I give and devise to my surviving child an estate for life in one-half of said residue and to the living issue of my deceased child an es-ate for life in the other one-half of said residue. Upon the death of the last survivor of my son and daughter or upon my death if neither my son nor my daughter survives me, I give, devise and bequeath all the rest and residue of my estate to the issue of my daughter, Edna Ray Sellers Walker, and my son, Johnny Ray Sellers, as joint tenants during the respective lives of said issue and the life of the survivor, or, if only one of such issue survives me, then I give and devise such property and estate to such survivor for life.’’ (Emphasis added.)
IV. “Upon the death of the last surviving life tenant heretofore provided for in paragraph THIRD of this Will, I give, devise and bequeath the remainder of my said property and estate in fee simple title to the persons who would be entitled to inherit said property in accordance with the laws of descent and distribution of the State of Texas, if I had died intestate immediately after the death of the last surviving life tenant heretofore provided for in paragraph THIRD of this Will.”

Plaintiff-petitioner particularly asserted that the emphasized language in paragraph three of the will violated the rule against perpetuities by attempting to devise a life estate to a person or persons not yet in being at the time of the death of the testatrix, and that paragraph four likewise violated the rule in that the vesting of the remainder was postponed until the termination of a life estate of a grandchild potentially not in being at the creation of the interest. Plaintiff then asked that paragraphs three and four be declared null and void and that the property therein bequeathed should vest in the heirs at law of the testatrix, to wit: Edna Ray Powers, and the plaintiff, Johnny Ray Sellers.

The defendants acquiesced in plaintiff’s contention that the life estate in unborn grandchildren as a class violated the rule as did the remainder over after the last survivor of that class, but they contended that to strike out all of paragraphs three and four would completely defeat her testamentary intent, which could be best and most nearly approximated by striking the emphasized portion of paragraph three. The result sought by the defendants then was that the children, Johnny Ray and Edna Ray Powers take life estates, that the children of the first to die take life estates pur autre vie, the measuring life being that of the survivor of Johnny Ray or Edna Ray, and on the death of the survivor of the two that the property of the testatrix vest in her heirs at law as determined by paragraph four of the will. The effect of this would be to give the grandchildren a vested remainder in fee simple.

The District Court and the Court of Civil Appeals sustained the contention of the defendant. 410 S.W.2d 497. We do not agree entirely with the contentions of either party nor with the construction imposed by the courts below.

In order to determine the proper construction of this will, we must examine that portion of the third and fourth paragraphs which are purportedly in violation of the rule. The remainders provided in paragraph four which could vest in testator’s great grandchildren are invalid. At the death of the testatrix she had two living children who might, and in fact who did, have children, testatrix’s grandchildren, born after the death of testatrix. The unborn grandchild might in turn have a child who would be a member of the class in paragraph four. Since it is also possible that the “unborn” grandchild might be the surviving grandchild and might outlive his joint tenants by more than twenty-one years, his child’s interest as one of testatrix’s heirs at law, would vest without the permissible period. Clarke v. Clarke, 121 Tex. 165, 46 S.W.2d 658, 661 (1932); Annot., 18 A.L.R.2d 671 (1951).

We construe the third paragraph of the will to attempt to create the following interests: Life estate in the whole in Johnny Ray and Edna Ray and upon the demise of the first to die, his or her children take a life estate in an undivided one-half of the property. On the death of the surviving parent, the children, testatrix’s grandchildren, take joint life estates in the whole property. Paragraph four then purports to vest the remainder in the testatrix’s heirs at law determined at the death of the last surviving grandchild. Contrary to the assumption of both parties and the Court of Civil Appeals, the joint life estate in the grandchildren does not violate the rule. The reason is stated in Gray, The Rule Against Perpetuities § 370, at 392 (4th ed. 1942).

“A devise to the testator’s grandchildren as a class is good if the vesting is not postponed to a time after they become of age, for they must all become of age within twenty-one years after the death of their parents (the testator’s children), and the parents must all have been born (or begotten) in the testator’s lifetime.”

The measuring lives for determination of vesting of the life estate in the grandchildren are the lives of Johnny Ray and Edna Ray, since the testatrix’s death determined the members of the class, her children. The members of the class, grandchildren, will necessarily be definitely ascertained at the time the preceding life estate terminates since they are the children of the life tenants. Hence, their interests must vest, if at all, upon the death of Johnny Ray or Edna Ray, lives in being when the interests were created i. e. at the death of the testatrix. Smith’s Estate v. Commissioner of Internal Revenue, 140 F.2d 759 (3d Cir. 1944): See Gray, supra §§ 232, 232.1; 2 Simes, The Law of Future Interests § 530; 2 Tiffany, The Law of Real Property § 394 (3d Ed.)

It is fundamental that the primary concern of the court in will construction is the determination of the testator’s intent and the effectuation of that intent as far as is legally possible. Philleo v. Holliday, 24 Tex. 38 (1859). Since the rule against per-petuities precludes the disposition of the remainder here, and since the testatrix did not anticipate this eventuality, the court must determine what the testatrix would have intended to do with the balance of the dispositive scheme had she known of the failure of the ultimate devise. As the parties acknowledge and as is manifest from the will, testatrix provided for a series of life estates; there is no indication that she intended either her children or her grandchildren to have the remainder in fee.

Thus, the Court is faced with two alternatives: first, to excise the void interest and permit the legal interests to take effect as though the invalid interest had never been created; or second, to strike out the whole disposition and the interests created thereby, which would cause the property to pass by intestacy. The first alternative is the general rule and is founded on the determination of what a testator would normally intend. Booth v. Wheat, 211 S.W.2d 577 (Tex.Civ.App.1948, writ ref’d); Gray, supra §§ 247, 248; W. B. Leach & O. Tudor, The Rule Against Per-petuities § 24.47 (1957); 4 Restatement of Property, § 402 (1944) ; 2 Tiffany, Real Property § 413 (3d ed. 1939). The second presents the principle of infectious invalidity or inseparability of the valid and invalid interests and the concomitant question “Is the invalid limitation so essential to the dispositive scheme of the testator * * * that it can be inferred that he would not wish the prior limitation to stand alone?” W. B. Leach & O. Tudor, supra § 24.48. The balance of the disposition is not stricken out merely because the limitation is invalid unless additional language or circumstances are present which require an affirmative finding of this intent. Restatement of property, § 402(c), at 2357. Such a manifestation of intent could he established by facts and circumstances showing that the creation of the intervening estates was merely to support the estate which followed them and was not to benefit the life tenants. See In re Feeney’s Estate, 293 Pa. 273, 142 A. 284, 290 (1928) ; 5 Powell, Real Property § 789 at 681 (1962). The life estates in Johnny Ray and Edna Ray and their children, however, clearly perform- a vital function, the maintenance of a lifetime income for them, the natural objects of Mrs. Seller’s bounty. Here, also, there is nothing to indicate that testatrix had more regard for the unborn issue of her grandchildren than the life tenants, and infecting the series of life estates with an invalidity of the gift to the great grandchildren would produce a result which the testatrix never intended. In that instance the children, Johnny Ray and Edna Ray, would take the full fee simple as her heirs at law and preclude her grandchildren from any participation in her estate; both results are obviously contrary to her expressed intent. We hold, therefore, that the life estates created by paragraph three of the will of Maedel Sellers are valid, subsisting interests and that the Court of Civil Appeals erred in striking the life estate in the grandchildren from the will.

We now turn to the disposition of the remainder interest ineffectively bequeathed by paragraph four. How does such property pass, and when does the interest in it vest and determine? We first note that the failure occurs in the residuary clause and therefore the property passes by intestacy under the statute of descent and distribution to testatrix’s heirs at law. Philleo v. Holliday, 24 Tex. 38 (1859); Heidenheimer v. Bauman, 84 Tex. 174, 19 S.W. 382 (1892). The reversion passed at the death of testatrix, and her heirs at law are determined as of that moment. Tex. Prob.Code Ann. § 37, V.A.T.S. (1956); Lewis v. Martel, 339 S.W.2d 924 (Tex.Civ.App.1960, writ ref’d n. r. e.); Annot., 132 A.L.R. 1069 (1941). The result which obtains was stated in Liggett v. Fidelity & Columbia Trust Co., 274 Ky. 387, 118 S.W. 2d 720, 723, 725 (1938). “[I]n him (the life tenant who was the heir at law) is vested the fee simple title in remainder to the corpus of this estate. Of course, he will never live to enjoy its possession, but the ownership of such corpus is vested in him absolutely, and he may sell it, devise it, or make such disposition of it, as he pleases, subject always of course, to the life estates of his children in the income therefrom, when * * * they become entitled to enjoy it.” We hold, therefore, that Johnny Ray and Edna Ray as testatrix’s heirs at law hold the reversion in fee simple ineffectively bequeathed by the will of Maedel Sellers, but that such reversion is subject to the life estates outstanding in themselves and jointly in their children.

The judgments of the Court of Civil Appeals and trial court are reversed. Judgment is here rendered that Johnny Ray Sellers and Edna Ray Powers take a life estate, and that said Johnny Ray and Edna Ray take the reversion created by the invalidity due to the application of the rule against perpetuities. This reversion is burdened, however, with life estates outstanding in those children of and hereafter born to Johnny Ray and Edna Ray. At the death of the first to die of Johnny Ray and Edna Ray, his/her surviving children take a life estate in an undivided one-half of the property; on the death of the survivor, all of the then surviving children participate as co-tenants for life in the whole.

      . The will itself refers to the takers of the second life estate as the “living issue” and “issue” of Johnny Bay or Edna Bay. Since there is nothing on the face of the will to indicate that “issue” is limited to children, the descendents of those children who pedeceased Johnny Ray and Edna Bay would also be included as life tenants of the second life estate. Munger v. Munger, 298 S.W. 470, 476 (Tex.Civ. App.1927, writ ref’d.).


text:
    J. WEINGARTEN, INC., Petitioner, v. Patsy Ruth RAZEY et vir, Respondents.
    No. B-330.
    Supreme Court of Texas.
    April 3, 1968.
    Vinson, Elkins, Weems & Searls, Ray-bourne Thompson, Jr., and Jeff Crane, Jr., Houston, for petitioner.
    Freeman M. Bullock and W. C. Shead, Houston, for respondents.
   HAMILTON, Justice.

This is an action by Patsy Ruth Razey and husband, Respondents, to recover damages for personal injuries resulting when Mrs. Razey slipped and fell on the sidewalk during a heavy rain outside a grocery store owned and operated by J. Weingarten, Inc., Petitioner. The judgment of the trial court awarding the Plaintiffs’ damages on the jury verdict was affirmed by the Court of Civil Appeals. 414 S.W.2d 532. We reverse and remand.

The evidence considered in the light most favorable to the jury verdict shows that potted flowers and shrubs were exposed for sale in a border along the covered concrete walkway in front of the main store and adjacent to the parking area; displayed plants were rooted in soil, many in metal cans of one to three gallon capacity, and others in boxes with some of the larger varieties of shrubs having their roots balled in moss and burlap wrapped. All plants were outside the store proper and divided into sections leaving occasional openings or aisles of about twenty-four (24) inches in width for customers to enter upon the covered walkway or porch from the parking lot. Some of the plants were under the covered porch and some were outside. The roof was of a height that permitted falling rain to be swept by air currents so as to fall upon plants and their containers.

The stock plants had been arranged and displayed for sale for a period of two months prior to the time Mrs. Razey alighted from an automobile at the edge of the parking area and proceeded toward a store entrance passing near one of the roof support columns, and along an aisle separating the plants and on to the covered walkway. There was a heavy downpour of rain preceding and at about the time of Mrs. Razey’s appearance at the store. Mrs. Razey fell in the aisle on the concrete and was injured. A light skim of mud and silt was observed by her husband on the surface of the walkway at the place she fell. No source of mud and silt in the vicinity except the plant containers is suggested by the evidence.

The jury found that there was mud or silt at the time and place where Respondent, Mrs. Razey, fell; and that it came from the potted plants near such place. It found, also, that the failure of petitioner to remove the potted plants before respondent fell was negligence and proximate cause. The jury found, further, that the failure of petitioner to remove such mud and silt before the occurrence in question was negligence and proximate cause. Petitioner assigned as grounds for a new trial that there was no evidence to support the jury’s finding to either of the negligence issues and has preserved these points on appeal. Admittedly the respondent was a business invitee on the occasion in question. We recognize the rule that the occupier of premises holds a duty to use ordinary care to keep his premises in a reasonably safe condition for his invitees, or to warn of the hazard. This Court has at least three times cited with approval Section 343 of the Restatement of Torts. As applicable here that section provides:

“ ‘A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereof if, but only if, he
“ ‘ (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
* * *
“ ‘ (c) invites or permits them to enter or remain upon the land without exercising reasonable care
“ ‘(i) to make the condition reasonably safe, or
“ ‘(ii) to give a warning adequate to enable them to avoid the harm.
⅜ * *>»

It appears that each spring petitioner customarily displayed nursery plants across the front of its store, extending some seventy or eighty feet. Prior to the occasion in question they had been displayed there for two months. It knew that the plants would be exposed to the rain. However, there is no evidence of any kind that petitioner realized, or should have realized, that the display of the nursery plants in the way that they were displayed involved an unreasonable risk or hazard to its invitees. Neither is there any evidence that petitioner knew the silt and mud was on the walkway prior to the fall of respondent. Nor was there evidence that the substance had been on the walkway such a length of time that petitioner should have discovered it. It is apparent that if the rule we have quoted above from the Restatement of Torts is applicable to the statement of facts we have before us then respondents cannot recover, because they did not even attempt to supply the necessary evidence upon which liability could be predicated.

The Court of Civil Appeals recognizes this lack of evidence but takes the position that the respondents are not required to make such proof in this case, and holds,

“By common knowledge the operator knew, or should have been aware, that during the two or more months the plants were displayed that rains would probably fall and wash over plants and containers, and that soil and silt laden rainwater would probably drain off, particularly from the balled and burlapped plants, and trickle into the display aisles.”

We have been unable to conclude that by common knowledge the petitioner should have realized that the manner in which it displayed its nursery plants, prior to the occasion in question, created an unreasonable risk to its invitees. There are no facts in the record upon which we can base such a conclusion. While petitioners should have anticipated that rain would probably fall and wash over plants and containers from which rainwater would flow on to the walkway, it does not necessarily follow as a matter of common knowledge that such rainwater would be soil and silt laden. The burlap wrapped plants were balled in moss instead of dirt, consequently it is not likely that mud and silt would come from them. There is no evidence as to how deep the top of the soil was from the top of the containers, or if the soil was heaped around the plants and above the top of the containers. If the later condition existed the soil may have very well washed over the top of the container. On the other hand, if the top of the soil was substantially below the top of the container it probably would not do so. There is no evidence in the record as to the type of soil in which the plants were potted. It may have been the type of soil that when an excess amount of water is added to the pot or container water would seep through the soil and out drainage holes at the bottom of container in the form of clear water, as spring water comes from the earth, rather than laden with mud and silt.

While the evidence of respondents that mud and silt was on the walkway in the vicinity of the plants, and the circumstantial evidence that it came from the potted plants is sufficient to support the findings of the jury on those issues, such findings cannot form the basis of a conclusion that such condition resulted as a natural consequence of rain falling on potted plants; and that petitioner, therefore, should have realized that his invitees were exposed to an unreasonable risk. In fact, the very existence of mud and water on the walkway where respondent fell was vigorously contested by the petitioners. There were three witnesses, the manager, assistant manager, and stockkeeper or porter, who testified that they examined the walkway soon after the fall, not only in the place where respondent fell, but along the entire seventy or eighty feet of walkway where plants were displayed, and they found plenty of water but no mud or silt anywhere. Conceding that there was mud and silt where respondent fell, as we must, the undisputed evidence that there was no mud or silt around any of the many other plants which were subjected to the same rain would indicate that what happened was an unusual occurrence.

We hold that the necessary proof to establish negligence in the failure to remove the mud and silt from the walkway prior to the respondent’s fall, and in the failure to remove the potted plants prior to such fall, cannot be supplied by common knowledge. We sustain, therefore, petitioner’s contention that there is no evidence to support the jury’s affirmative answers to the negligence issues. While petitioner prays for a reversal of the judgments of the courts below and for the rendition of a judgment in its favor, we do not have before us the appellate predicate for a rendition. While petitioner filed a motion for instructed verdict, it did not assign as error in its motion for a new trial the action of the trial court in overruling such motion; therefore, the cause must be remanded for new trial. Tex.R.Civ.P. 325; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960).

      . Western Auto Supply Company v. Campbell, 373 S.W.2d 735 (Tex.Sup.1963); Smith v. Henger, 148 Tex. 456, 226 S.W. 2d 425, 20 A.L.R.2d 853 (1950); Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, 376 (1948).


author: GREENHILL, Justice.

text:
    GENERAL AIR CONDITIONING COMPANY, Inc., Petitioner, v. THIRD WARD CHURCH OF CHRIST et al., Respondents.
    No. B-558.
    Supreme Court of Texas.
    April 10, 1968.
    Schlosser & Whitcomb, James H. Whit-comb, Houston, for petitioner.
    Bobby H. Caldwell, Houston, for respondent.
   GREENHILL, Justice.

This case involves the construction of the statutes relating to liens for mechanics, contractors and materialmen. The respondent Church entered into a contract with Henry J. Webb Construction Co. for improvements to its church building. Webb entered into a subcontract with petitioner General Air Conditioning Company for the furnishing and installation of air conditioning and heating as part of these improvements. Webb and General completed their work under their respective contracts, and the Church paid Webb in full; but a balance of $1400 was left unpaid by Webb to General on the subcontract for the air conditioning contract. The sum of $1400 is less than ten per cent of the full contract between the Church and Webb.

As will be discussed below, General made certain demands upon the Church and notified the Church of its claim for this unpaid balance. General filed this suit against Webb and the Church for the unpaid balance on its contract and to establish and foreclose its “statutory and constitutional lien” against the Church property. General secured a default judgment against Webb, and that judgment has become final. The trial court, however, denied General any recovery or lien against the Church, holding that General had failed to establish a statutory lien against the Church property, and that General’s recorded mechanic’s lien was of no force and effect. The Court of Civil Appeals affirmed. 418 S.W.2d 839. The question before this Court is whether the courts below erred in holding that General failed to establish a statutory mechanic’s and materialman’s lien against the property of the Church under the provisions of Articles 5452-5469.

The facts relating to General’s attempted establishment of its lien are largely undisputed. Webb’s work was complete and formally accepted by the Church on November 6, 1965, and Webb was paid in full by the Church on November 10, 1965. The Church did not retain ten per cent of the contract price for thirty days after completion of the work as required by Article 5469, and there was no agreement between the Church and Webb for any retainage. On December 2, 1965, General notified the Church by registered mail of its claim and its intention to file a lien against the Church property. The Church advised General by letter on December 6, 1965, that it had paid Webb in full and disclaimed any liability to General. On December 17, 1965, General sent a lien affidavit and claim in the statutory form to Webb and the Church by certified mail, and General’s lien and affidavit were filed with the county clerk on December 20, 1965. As stated, the courts below have held that, under these circumstances, General failed to establish a statutory lien against the property of the Church. We cannot agree because this evidence conclusively establishes that General complied with the applicable statutory requirements and thereby established a valid mechanic’s and materialman’s lien against the Church property.

Article 5452 provides that those persons or firms including subcontractors who furnish labor or materials for the construction or improvement of a building shall have a lien upon the improvements and property of the owner “upon complying with the provisions of this Chapter.” General comes within the definition of a “subcontractor” contained in Section 2f of Article 5452.

Article 5453 contains the following requirements for the fixing and securing of the lien provided by Article 5452:

“The lien provided for in Article 5452 may be fixed and secured in the following manner:
1. Every original contractor, not later than one hundred twenty (120) days, and every other person or firm, lumber dealer or corporation, artisan, laborer, mechanic or subcontractor who may be entitled to a lien under this Act, not later than ninety (90) days, after the indebtedness accrues as defined hereinafter in Article 5467, shall file his affidavit claiming a lien, to be recorded in a book kept by the county clerk for that purpose in the office of the county clerk of the county in which such property is located or through or into which such railroad may extend, and he shall send to the owner by certified or registered mail, addressed to his last known business or residence address, two (2) copies of such affidavit claiming a lien. * * *
2. If the claimant for such lien is other than an original contractor, such claim shall not be valid or enforceable unless the claimant shall also have complied with the applicable notice requirements hereafter set forth which shall be conditions precedent to the validity of such claims:
a. * * * [Agreements for retain-ages]
b. Excepting instances of retainages for which notices have been given in accordance with the preceding subpara-graph, the claimant shall give the applicable notice or notices described, as follows:
(1) Where the claim consists of a lien claim arising from a debt incurred by a subcontractor, the claimant shall give written notice of the unpaid balance of such claim to the original contractor not later than thirty-six (36) days after the tenth (10th) day of the month next following each month in which the claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part; and claimant shall give a like notice to owner not later than ninety (90) days after the tenth (10th) day of the month next following each month in which the claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part.
(2) Where the claim consists of a lien claim arising from a debt incurred by the original contractor, no such notice need be given to the contractor but notice to the owner, as prescribed in paragraph 2b(l) of this Article will be sufficient.
Such notices shall be sent by certified or registered mail, addressed to the owner, and where required by this Article to the original contractor, at their last known business or residence address. A copy of the statement or billing in the usual and customary form shall suffice as a notice under this subparagraph; provided, however, if such statement or billing is to be effective to authorize an owner to retain funds for the payment of such claim as provided in Article 5463 of this Act, it shall contain or be accompanied by some form of statement to an owner to the effect that if the bill remains unpaid he may be personally liable and his property subjected to a lien unless he withholds payments from the contractor for the payment of such statement or unless the bill is otherwise paid or settled.”

General’s certified letter and lien affidavit notified the Church of its claim within the time and in the manner prescribed by Article 5453; the lien claim and affidavit met the requirements for form and substance contained in Article 5455; and the lien was filed with the county clerk within ninety days after the indebtedness accrued as required by Article 5453. Therefore, General properly secured and fixed its lien against the Church property unless other applicable statutes imposed further requirements upon General.

Articles 5463 and 5469 contain special provisions relating to the property owner’s liability to those other than original contractors under certain circumstances. Article 5469 requires an owner to retain ten per cent of the contract price for a period of thirty days after the work is completed for the protection of laborers and material-men “whenever work is done whereby a lien or liens may be claimed under Article 5452.” Article 5469 further provides as follows:

“ * * * All persons who shall send notices in the time and manner required by this Act and shall file affidavits claiming a lien not later than thirty (30) days after the work is completed shall have a lien upon the fund so retained by the owner, his agent, trustee, or receiver; with preference to artisans and mechanics, who shall share ratably therein to the extent of their claims; with any remaining balance to be shared ratably among all other participating claimants. If the owner, his agent, trustee, or receiver refuses or fails to comply with the provisions of this Article, then all claimants complying with the provisions of this Act shall share ratably among themselves, with preference to artisans and mechanics as above specified, liens at least to the extent of the aforesaid fund of ten per cent (10%) which should have been retained, as against the house, building, structure, fixture, or improvement and all of its properties, and on the lot or lots of land necessarily connected therewith, to secure payment of such liens.”

A complementing provision of Article 5463 provides as follows:

“2. When an affidavit claiming a lien is filed by any one other than the original contractor under the provisions of this Act, the original contractor shall defend the action brought thereupon at his own expense. In case of judgment against the owner or his property upon the lien, he shall be entitled to deduct from the amount due the contractor the amount of said judgment and costs; and, if he shall have settled with the contractor in full, he shall he entitled to recover from the contractor any amount so paid for which the contractor was originally liable. The owner shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the provisions of Article 5469 hereof, that he may have paid to the contractor before he is authorized under this Article to retain the money. If the notices prescribed in Article 5453 have been received by the owner and claimant’s lien has been secured in accordance with Article 5453 and the claim or any part thereof is reduced to final judgment, the owner shall be required to pay, and his property shall be liable for, any money that he may have paid to the contractor after he is authorized to retain such money by virtue of this Article, as well as any money he is required to retain by the provisions of Article 5469 hereof.”

The foregoing statutes provide that when an owner fails to retain the ten per cent required by Article 5469, the claimants who have complied with the provisions of Article 5453 are entitled to recovery against the owner and a lien “at least to the extent of the aforesaid fund of ten per cent (10%) which should have been retained.” Article 5469 requires a claimant to file his affidavit within thirty days in order to secure a lien against the fund retained by the owner, but does not require filing within thirty days in order to secure the lien on the owner’s property provided by Article 5469 or to obtain recovery against the owner as provided by Article 5463. General did not claim its lien within thirty days, but the Church did not retain the ten per cent required by Article 5469. Under these circumstances, we hold that the quoted provisions of Articles 5463 and 5469 are controlling, and that General was entitled to a recovery and a lien against the Church property to the extent of the ten per cent fund that the Church was required to retain. We do not construe the thirty-day period for claiming liens contained in Article 5469 as being applicable when the owner fails or refuses to retain the ten per cent fund, because, under these circumstances, Article 5469 grants a lien against the owner’s property to “all claimants complying with the provisions of this Act;” and Article 5463 authorizes recovery from the owner of the amount that should have been retained “[i]f the notices prescribed by Article 5453 have been received by the owner and claimant’s lien has been secured in accordance with Article 5453.”

Therefore, since General fixed and secured its statutory lien under the provisions of Article 5453, it was entitled to recovery against the Church and a lien on the Church’s property under the provisions of Articles 5463 and 5469 to the extent of the ten per cent of the contract price that the Church was required to retain. General’s claim is less than this ten per cent fund, and therefore General is entitled to full recovery from the Church and a lien on the Church property to secure payment thereof.

Since no amount in excess of ten per cent of the contract price is here involved, we reserve the question as to the extent of recovery, if any, to which a subcontractor might be entitled for amounts in excess of ten per cent.

The judgments of the courts below are reversed and the cause is remanded to the trial court for further proceedings including a foreclosure of the lien, in accordance with this opinion.

      . All references herein are to Vernon’s Annotated Texas Civil Statutes.