author: CLAY, Commissioner.

text:
    Norcla CONLEY, Appellant, v. Geo. W. HALL et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.

      Duff Arnett, Bruce Stephens, Hazard, for appellant.

      Robin Griffin, Miller, Griffin & Marks, Lexington, for appellees Hall, Maggard and Combs.
    Armand Angelucci, Lexington, for appel-lees Rector and Napier.
   CLAY, Commissioner.

This case presents for our consideration a procedural maze. The terminal point was a summary judgment for the appellee defendants.

Appellant plaintiff filed suit against defendant lessees and sublessees under a coal lease, claiming she had not been paid the royalties due. She asked for an accounting and a judgment for a specified sum.

Hereafter is set forth the chronological history of these proceedings:

October 21, 1960. Complaint.

December 2, 1960. Motion of original lessees to dismiss for failure to state a claim.

December 7, 1960. Same motion by sublessees.

March 1, 1961. Answers by original lessees with cross-claim against sub-lessees.

June 5, 1961. Original lessees’ motion to dismiss overruled.

August 11, 1961. Deposition of the plaintiff and seven others taken “to be read and used in the trial” of the action.

March 26, 1962. Original lessees’ motion for summary judgment (admitting an indebtedness of $137.15).

April 13, 1962. Order assigning motion for summary judgment for hearing to June 5, 1962.

May 23, 1962. Motion of plaintiff to file amended complaint asking for punitive damages. (The complaint accompanied the motion but the motion was never passed upon.)

May 26, 1962. Attempt by plaintiff to take deposition of Bill Sloan, who refused to appear though subpoenaed.

August 7, 1962. Plaintiff filed her own affidavit concerning the nature of the testimony she expected from Bill Sloan.

August 9, 1962. Motion of original lessees to strike plaintiff’s affidavit. _

August 11, 1962. Depositions of two witnesses, who had explored the mine, taken by plaintiff.

August 15, 1962. Motion of plaintiff concerning her offer to permit defendants’ representatives to verify evidence given by the two witnesses on August 11, 1962.

September 25, 1962. Order of court reciting that a hearing had been held on June 5, 1962, on defendants’ motion for summary judgment, and giving the parties until October 11, 1962, in which to file memorandums on the merits of said motion.

January 18, 1963. Final order of the trial court reciting that plaintiff’s affidavit of August 7 and the two depositions taken on August 11, 1962, would not be considered, sustaining motion for summary judgment, entering judgment for plaintiff in the sum of $137.15, and giving the original lessees a judgment against the sublessees on their cross-claim.

These proceedings remind us of a chess game played by mail between contestants at opposite ends of the globe. However, no one seemed quite sure of the name of the game, or the rules, and neither contestant paid much attention to the preceding move made by the other. With one exception, nobody paid any attention to time limitations.

As we see it, since this action involved an accounting, it was an equity case required to be tried on depositions. CR 43.04. The basic issue of fact was whether defendants had mined more coal than they had paid for. In the midst of the trial defendants injected a motion for summary judgment under CR 56. While such a motion may be made at any time, it cannot be converted into a method of short-circuiting the right of a plaintiff to prove his case. The function of the motion is to terminate unnecessary litigation, normally prior to the trial stage, when it clearly appears there exists no genuine issue of a material fact to be tried and decided. See Rowland v. Miller’s Adm’r, Ky., 307 S.W.2d 3, and International Latex Corporation v. Lexicon Products, Inc., D.C.Pa., 37 F.R.D. 524.

There are two reasons why summary judgment should not have been granted in this case. The first is that the pleadings and the depositions filed prior to the “hearing” date of June 5, 1962, not only failed to show the absence of an issue of fact but established beyond question that such an issue existed.

The plaintiff in her deposition testified that defendants had been late in paying royalties; that they had never given her a final accounting; that she had been unable to obtain from defendants or their representatives pertinent records; that one of the defendants had told her all of the merchantable coal had been taken out; and that according to her figures, by using a generally accepted method of calculation, defendants had removed approximately 30,000 tons of coal and had only accounted for approximately 4,000.

On the face of it, plaintiffs deposition standing alone shows an issue of fact as to whether defendants had accounted to her for all of the coal they had mined on the 9i/2 acre tract involved. Defendants assert that plaintiff’s testimony was in several respects hearsay. Assuming that is true, we are not concerned with the competency of evidence. See Corley v. Life & Cas. Ins. Co., 111 U.S.App.D.C. 327, 296 F.2d 449. We are examining this record for the sole purpose of determining whether an issue of material fact exists. Plaintiff’s deposition did not prove her claim so as to entitle her to judgment, but that is not the question involved on a motion for summary judgment.

Let us look at other depositions taken by plaintiff prior to the June 5 “hearing” date. Both expert and nonexpert witnesses testified that the method used by plaintiff in calculating the minable coal in the tract was correct; and they made estimates, based upon admitted facts with respect to the seam of coal involved, that between 26,000 and 38,000 tons of merchantable coal could have been mined from this tract. Clearly this evidence tended to establish that defendants had mined substantially more coal than they had accounted for (approximately 4,000 tons).

Defendants contend this evidence was not sufficient to establish how much coal had actually been mined. That may well be true, but we are not examining the sufficiency of the evidence. We are to decide this case on the motion for summary judgment, not on the merits. We are seeking only an issue of fact.

Let us examine further the deposition of Rector, one of the defendants. He admitted the existence of a seam of coal upon which the testimony of plaintiff and her other witnesses had been based. He admitted some records were lost. He also admitted that he had failed to comply with KRS 352.480(3), which requires a survey and a map to be made when a mine is abandoned or closed which will show the entire worked-out area. He made the following replies to the following questions:

Q. “And you don’t know if you paid for all this tonnage or not ?
A. “I think we did.
Q. “As of right now you don’t know if you have paid, is that correct?
A. “No, I don’t.”

In view of this last answer, how could it be said that no fact issue existed? It is positive proof to the contrary.

Defendant Rector filed with his deposition a statement of his accounting officer showing that this mine had “received pay for” approximately 4,000 tons. This of course constituted a form of proof (though hearsay) on the fact issue of how much coal had been mined. Defendants contend that Rector’s evidence established their nonliability, except in the amount of $137.-15, which they admittedly had not accounted for. It would be a peculiar way of deciding a motion for summary judgment if a defendant’s denial of liability would entitle him to judgment. However, we are not considering the question of liability. We must first decide if there is a disputed issue of fact which must be tried and determined,

It is plainly evident from the record and defendants’ brief that they were seeking a judgment on the merits of this controversy via the route of a motion for summary judgment. Their basic contention is that at the time they made such motion plaintiff had failed to prove her right to judgment. This was wholly irrelevant to the question of whether a fact issue existed. See International Latex Corporation v. Lexicon Products, Inc., D.C.Pa., 37 F.R.D. 524. We would like to dispel once and for all the notion that one party may compel the other to try the question of ultimate liability on a motion for summary judgment. See Robert Simmons Const. Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901; Turner v. McWhirter Material Handling Co., D.C.Ga., 35 F.R.D. 560.

The burden was on defendants to establish that there was no issue of a material fact. Essentially there was only one such issue in this lawsuit and defendants introduced nothing (by way of affidavit or otherwise) to establish it did not exist. There was nothing in the depositions taken by the plaintiff which even tended to make it disappear. The record before the court on June 5 conclusively showed there was this fact issue to be tried. If there was any doubt about it, the motion could not be granted. Mitchell v. Jones, Ky., 283 S.W.2d 716; Castlegate, Inc. v. National Tea Company, D.C.Ga., 34 F.R.D. 221. Since defendants failed to carry the burden of supporting their position, the motion should have been summarily denied.

There is yet another reason why the motion should not have been granted, and because it involves novel questions we will discuss them. They concern what constitutes a “hearing” on such motion, and what Supplemental matters may be considered.

CR 56.03 provides in part:

“The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits.” (Our emphasis.)

CR 56.05 provides in part:

“The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.” (Our emphasis.)

Defendants’ motion was assigned for hearing on June 5, 1962. No notation in the record shows that a hearing was held on that date. However, an order was entered on September 25, 1962, reciting, “a hearing having been held on June 5, 1962, by the court on said defendants’ motion for summary judgment”, and ordering “the defendants shall have until October 1, 1962, in which to submit a memorandum in support of their motion for summary judgment and the plaintiff shall have until October 11, 1962, in which to file a responsive memorandum”.

We will observe here that between June 5 and October 11 the plaintiff filed her affidavit concerning the testimony she expected to elicit from the key witness, Bill Sloan, whose testimony she had theretofore been unable to obtain by deposition. She had also taken the depositions of two witnesses who had inspected the mine. If by any stretch of the imagination it could be said that no issue of fact existed on June 5, this affidavit and these depositions positively established the contrary.

In its final order (January 18, 1963) the court refused to consider this affidavit on the ground the plaintiff’s statements were hearsay. Even though this affidavit did contain hearsay, we think it could have been considered as within the scope of CR 56.06, and since it related to the unavailability of an important witness, it had a significant bearing on the fact issue question. See Wittlin v. Giacalone, 81 U.S.App.D.C. 20, 154 F.2d 20. The last two depositions were rejected, apparently on the ground that plaintiff should have had all her “proof” in prior to June 5, 1962, the original “hearing” date.

We are at a loss to understand the magical significance of the June 5 “hearing” date. Assuming a hearing was held at that time, it was obviously not completed because the court gave the parties until October 11 to submit memorandums on the motion.

We think it should be borne in mind that a motion for summary judgment is not a trick device for the premature termination of litigation. Its function is to secure a final judgment as a matter of law when there is no genuine issue of a material fact. The fact question presented on the motion is simple and clearcut. The hearing on the motion would not seem to be a complicated affair. The burden is on the movant to establish the nonexistence of a material fact issue. He either establishes this beyond question or he does not. If any doubt exists, the motion should be denied.

For the purposes of this motion the “hearing” would ordinarily constitute the final submission of the issue for judicial examination, consideration and determination. Matthews v. Weiss, 15 Ill.App. 2d 530, 146 N.E.2d 809. Of course the court may actually “hear” the parties on more than one occasion but until the question is ready for a decision, the hearing has not been completed. As said in 88 C.J.S. Trial § 1, page 20:

“A requirement of a ‘hearing’ in ju- - dicial proceedings, aside from any constitutional requirement of due process, by common consent presupposes a proceeding before a competent tribunal for the trial of issues between adversa-; ry parties, the presentation and consideration of proofs and arguments, and determinative action by the tribunal . with respect to the questions raised by the issues presented.”

In the present case the date of “hearing” was fixed for June 5, 1962. The record fails to disclose what transpired on that date, if anything, but if a “hearing” was actually held, then nothing - more should have remained but for the court to decide the merits of the motion. This the trial judge did not do. Instead, in effect he reassigned the case for further hearing to October 11, 1962, within which time the parties were permitted to file memorandums. The record fails to show that these were filed and the court did not decide the motion until January 18, 1963. To say the least, this is the most drawn out and complicated method of submitting and deciding a motion for summary judgment with which we have ever been confronted.

As before mentioned, this motion is not a trick device. A summary judgment, which is a final order, should not be entered as a form of penalty for failure of the plaintiff to prove his case quickly enough. We think the court should be extremely liberal in allowing the parties to present additional material up until the time the matter is ripe for decision. This judicial approach is exemplified by the following statement in Moore’s Federal Practice, Vol. 6, section 56.15(6) (page 2157):

“And although the opposing party’s affidavits do not measure up fully to the requirements of Rule 56(e), the court should, nevertheless, in the exercise of a sound discretion grant a continuance or deny the motion for summary judgment where the opposing party is proceeding in good faith and his claim or defense has some merit.”

An example appears in Mason v. New York Cent. R. Co., D.C.N.Y., 8 F.R.D. 637, wherein the court denied summary judgment even though plaintiff failed to counter by a proper affidavit defendant’s papers in support of the motion, where it appeared in plaintiff’s argument that he intended to raise a substantial factual issue. A proper judicial attitude was exemplified in Pittsburgh Hotels Ass’n v. Urban Redevelop. Auth., D.C.Pa., 29 F.R.D. 512. Defendants had moved for summary judgment with a supporting affidavit and the plaintiffs filed no opposing affidavit prior to the time of hearing on the motion. Subsequently, and before the court passed on the motion, both parties filed affidavits and the plaintiff took the deposition of one of the defendants. The trial court decided that all this supplementary material should be considered and made the following observation:

“Upon further reflection I am of the opinion that the deposition of Mr. Pease should be considered, and that defendants should answer those Requests for Admissions which are proper. I can find no authority, and none has been called to my attention, which would limit discovery and prohibit service of a Request for Admissions subsequent to the hearing on the Motion for Summary Judgment; indeed, subsection (f) ■ of Rule 56 indicates rather strongly that a decision should be continued in order to permit parties opposing the motion to take depositions and have discovery of facts essential to justify their opposition.”

We do not think Mills v. Reserve Life Insurance Company, Ky., 335 S.W.2d 955, is inconsistent with the principles we have discussed above. In that case a hearing was held on such motion May 2, 1958, and apparently the case was submitted for judgment, which was not entered until May 14. On May 13 and 14, the plaintiff tendered affidavits. It was held the trial court properly ordered these affidavits stricken. While the opinion intimates that CR 56.03 forecloses the right of a party to submit supplementary material, the decision goes no further than to find the court had a right to reject further affidavits after a final hearing when the case was ready for a ruling on the motion. Had it not been for the September 25 order in the present proceeding, the above cited case may have been controlling.

When the court entered this order giving the parties until October 11 in which to file memorandums on the motion for summary judgment, plaintiff’s affidavit, as well as the two additional depositions taken on August 11, were before the court. We are of the opinion that when this order was entered the “hearing” was still continued on the motion for summary judgment and that it continued up until the time (October 11) when the motion was apparently ready for submission and determination. In view of the nature of such motion and the unusual circumstances in this case, the trial court should have considered this affidavit and the two additional depositions in passing upon it. Were we to assume that the depositions taken prior to June 5, 1962, sustained defendants’ burden of establishing the nonexistence of a material fact, this additional material completely refuted such a contention and the summary judgment should have been denied.

We do not mean to say that the “hearing” under CR 56.03 is not terminated until the court rules on the motion. The “hearing” date generally is the cut-off time for the filing of additional material, as in Mills v. Reserve Life Insurance Company, Ky., 335 S.W.2d 955 (above cited). This contemplates, however, that a hearing actually be held and that the merits of the motion are ready for final submission. While extending time for the filing of briefs does not necessarily- continue the “hearing”, we think under this unusual record it did so.

We are somewhat at a loss to understand why, if a full “hearing” is held on the question of whether a material fact issue exists, briefs would be required. As we have before stated in this opinion, that question is simple and clearcut. The defendants’ motion in effect seeks to deny the plaintiff his right to trial. It is not the duty of the trial judge to search for the absence of a fact issue. It is the duty of the moving party to establish beyond question that none exists. If he cannot do this at a hearing, it is difficult to see how extended written arguments would remove the judicial doubt.

It should be borne in mind that the granting of a summary judgment is a drastic remedy because it deprives a party of a trial and results in a final judgment against him. If the motion is denied, the moving party suffers no such consequences and may still obtain a favorable judgment. It is for these reasons the considerations on a motion for summary judgment must be loaded in favor of the party opposing the motion, particularly when that party is the plaintiff. The very latest emphasis upon this aspect of the motion appears in Fowler v. Connecticut Mutual Life Insurance Co., D.C.La., 38 F.R.D. 11, page 12:

“The granting of a summary judgment in effect means there is no evidence in existence upon which a trial is necessary. Because it is such a drastic remedy it must be used with a due regard for its purposes, and a cautious observance of its requirements in order that no person will be deprived of a trial upon disputed factual issues.”

We believe if this approach is kept in mind, summary judgment procedure will be viewed in its proper perspective.

We have written at length on the problems presented because this record indicates the parties, and perhaps the trial court, misunderstood the function of a motion for summary judgment and the primary issue involved on such motion; and because the judgment finally entered appears to have been on the merits of the controversy and not on the fact issue question posed by the motion. It seems to us that in a suit involving an accounting it would be extremely improbable that a motion for summary judgment could be sustained unless one of the parties admitted that the other party’s records were correct. There was no such admission here, and defendants filed absolutely nothing to suggest the absence of a genuine issue of a material fact. The burden was on them to make a clear showing to that effect, yet plaintiff’s depositions taken prior to June 5 showed quite the contrary. If there was any doubt about the existence of such a fact issue, the court should have denied the motion, and the long period of time it took to decide this motion indicates some doubt somewhere.

In addition to that, this case was not finally “heard” on the motion until October 11, 1962, because it was not ripe for a judicial decision until after that date. By that time the plaintiff had filed an affidavit and two additional depositions which conclusively established a genuine issue of a material fact.

The consideration of depositions brings us to one final question in this case. We have heretofore noted that CR 56.03 permits a party opposing a motion for summary judgment to serve “affidavits” prior to the day of hearing, and that CR 56.05 provides the court may permit affidavits to he supplemented or opposed by “depositions” as well as “further affidavits”. In view of the nature of this motion and the narrow issue it presents, and in view of the latter Rule, we construe CR 56.03 as authorizing the serving or filing of depositions and other pertinent papers prior to the day of hearing. In other words, a party opposing a motion is not limited to the filing of affidavits.

On this motion affidavits may be used by themselves or in conjunction with other materials on the question of whether there is a triable issue of fact. Moore’s Federal Practice, 2d Ed., Vol. 6, section 56.11(1)—2 (page 2059). In Pittsburgh Hotels Ass’n v. Urban Redevelop. Auth., D.C.Pa., 29 F.R.D. 512, (heretofore cited) the court accepted a deposition and allowed discovery after the hearing date had passed. We think it only sensible to construe the word “affidavits” in CR 56.03 as including any other pertinent materials which will assist the court in adjudicating the merits of the motion.

The judgment is reversed.

MONTGOMERY, J., dissenting.

        . Briefs would certainly be appropriate on the question of whether the moving party was entitled to judgment (and what kind) as a matter of law after the court found there was no issue of fact.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    CITY OF DANVILLE, Kentucky, a Municipay Corporation, Petitioner, v. Hon. Gilbert M. WILSON, Judge, Boyle Circuit Court et al., Respondents.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.

      James G. Begley, Danville, for petitioner.
    Gilbert M. Wilson, Lancaster, pro se.
    James F. Clay, Sr., Danville, for respondents Benedict et al.
   DAVIS, Commissioner.

The City of Danville, a third class municipal corporation, invokes the original jurisdiction of this Court seeking an order prohibiting Hon. Gilbert M. Wilson, Judge of the Boyle Circuit Court, from further proceedings in a remonstrance suit against proposed annexation by the City. The four plaintiffs in the remonstrance suit are named as respondents also.

The factual background of the controversy reflects that Danville’s Board of Council enacted an ordinance November 16, 1964, proposing the annexation of certain territory adjacent to the City. On December 12, 1964, four freeholders of the area sought to be annexed filed a civil action in the Boyle Circuit Court opposing the annexation. The defendants named in that remonstrance suit were the twelve members of the Board of Common Council of Dan-ville. The corporate entity, City of Dan-ville, was not named as a party defendant. Service of summons was had on each of the twelve named members of the Council; no process was then issued or served upon the mayor of Danville, nor was there any allegation that the mayor was absent from the City.

On December 23, 1964, the twelve named defendants filed motion in the Boyle Circuit Court seeking dismissal of the complaint on the grounds that it failed to state facts warranting relief, and for failure to join an indispensable party, the City of Danville.

On December 24, 1964, the plaintiffs filed an amended complaint naming the City of Danville as a party defendant and caused summons to be issued and served upon the City’s mayor. The City sought dismissal of the action as to it as being untimely filed; the City also sought summary judgment, but the respondent trial judge denied the relief asserted by the City, and ordered the case to proceed to trial. Conceiving that the trial court was proceeding beyond its jurisdiction, the petitioner prosecuted this original action here for prohibition. Ky. Constitution, Section 110; RCA 1,420.

The pertinent annexation statutes are KRS 81.100; 81.110, and 81.190. The latter section makes applicable to third class cities, with certain exceptions, the annexation procedures prescribed for first class cities by KRS 81.100 and 81.110.

KRS 81.110(1) provides that a remonstrance suit must be brought “[wjithin thirty days after the enactment of an ordinance proposing to annex unincorporated territory.” The same section directs that process in such a remonstrance suit shall be executed upon the chief executive of the city, “ * * * and the answer of the city shall he filed within twenty days after service of the summons.” We think there can be no serious question that the city — in its corporate being — is the proper party against which a remonstrance suit must be brought. See Hannah v. City of South Shore, Ky., 332 S.W.2d 247; Hardin v. City of St. Matthews, Ky., 240 S.W.2d 554; Lewis v. Board of Councilmen of Frankfort, 305 Ky. 509, 204 S.W.2d 813. The language of the pertinent statute impels the conclusion that the city is the party against which the remonstrance is to be brought.

It is well settled that an action against members of a Board of Council, or members of any governing group of a municipal corporation, is not to be equated with an action against the corporate entity. Some of the authorities so holding are: Buckner v. Clay, 306 Ky. 194, 206 S.W.2d 827; Howell v. Haney, Ky., 330 S.W.2d 941; Johnson v. King, Ky., 349 S.W.2d 845. Therefore, the original suit filed against the members of the Board of Council did not constitute a suit against the City of Danville.

The amended complaint naming the City of Danville as a party was not filed “within thirty days” after the enactment of the annexation ordinance, as required by KRS 81.110. Clearly, if the suit had been first filed at the date of the amended complaint it would have been too late. The question arises whether the amended complaint may relate back to the time of the timely filing of the original complaint. Although CR 15.03 provides that an amendment shall relate back to the date of the original pleading “(W)henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth * * * in the original pleading * * * ” the rule is inapplicable if the amendment substitutes a different party defendant after the statute of limitation has run. Clay, CR 15.03, Author’s Comment 4, p. 275; Howell v. Haney, Ky., 330 S.W.2d 941.

We have consistently recognized that annexation is primarily a matter of legislative function. Moreover, we have adhered to the principle that it is a legislative function to prescribe the facts and conditions under which annexation may take place. The judicial function is to find whether the legislatively imposed facts and conditions exist. City of Louisville v. Kraft, Ky., 297 S.W.2d 39, 42. In the present situation a prime condition imposed by the legislative function is that any remonstrance must be filed within thirty days after enactment of the annexation ordinance. When that condition is not met, the court is without authority to interpose judicial limitations or conditions inconsistent with those prescribed by the legislature. Yount v. City of Frankfort, Ky., 255 S.W.2d 632; Keathley v. Town of Jenkins, 194 Ky. 156, 238 S.W. 377; Department of Highways v. Matney, 290 Ky. 440, 161 S.W.2d 617; it follows, therefore, that the declared purpose of the respondent judge in undertaking to hear the untimely remonstrance suit is beyond the scope of judicial function. In the exercise of our duty to preserve the orderly administration of the laws we feel this case requires that the relief sought be granted.

The respondent has filed response herein in which he points out that his course of action is founded on his belief that to follow it is to lend recognition to substance over form. In the area at hand, in which the judicial function is delicately balanced and narrowly restricted by reason of the basic legislative nature of the case, we feel that more than “form” is involved. The legislative branch has prescribed a limited period (30 days) for seeking judicial review of annexation proceedings. When remonstrants fail to invoke properly the judicial review within the alloted time the curtain effectively closes upon judicial review — the jurisdiction of the court has terminated. It is our view that respondent’s proposed action to try the merits of the remonstrance suit would be a usurpation of jurisdiction within the meaning of Schaetzley v. Wright, Ky., 271 S.W.2d 885. Moreover, the circumstances at hand are adequate to evoke our discretionary power to grant the relief sought as against the respondent judge.

We decline to grant relief as to the four freeholders who instituted the remonstrance suit. Fundamentally, the order of prohibition is to enable this Court to exercise general control of inferior jurisdictions, and is not issued against nonjudicial litigants. Ky. Constitution, Section 110; Sandusky v. Alsmiller, 291 Ky. 666, 165 S.W.2d 342; Pruitt v. Davidson, Ky., 334 S.W.2d 899.

It is ordered that the respondent proceed no further in the remonstrance suit pending in the Boyle Circuit Court styled Mildred Benedict, et als. v. Perry Hawn, et als., identified as File No. 2487 upon the docket of the Boyle Circuit Court, except to enter such order or orders as may be required to dismiss the action appropriately. The prayer for relief against appellees Mildred Benedict, Charles Onstott, Gregory Case and Johnnie Logue is denied.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William L. McQUOWN et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Charles W. Huddleston, Dept, of Highways, Bowling Green, for appellant.
    Marion Vance, Glasgow, for appellees.
   WILLIAMS, Judge.

The appellant, Commonwealth of Kentucky, Department of Highways, built a limited access bypass around the City of Glasgow. The road ran through the appel-lees’ farm, which is located at the city limits. 5.68 acres were taken for construction of the road, leaving 14.74 acres on one side and 38.33 acres on the other. A Barren Circuit Court jury awarded the appellees $10,000, and the Commonwealth has appealed.

The first alleged error assigned by the Commonwealth pertains to the testimony of the landowners’ witnesses regarding the highest and best use for which the property was adaptable. Some witnesses testified the highest and best use was for farming purposes, others for commercial purposes, others for subdivision purposes, and some for a combination. The Commonwealth argues that this confused the jury and resulted in a higher award than would otherwise have been granted. However, it seems entirely feasible to us that evaluation witnesses may logically differ in their opinions as to the highest and best use of property. The fact that one expert differs with another does not disqualify either as a witness.

One of the landowners’ witnesses used in his calculation a factor which technically amounted to a duplication. It was a factor which could have been explained and corrected had he been given the opportunity so to do. In Commonwealth, Department of Highways v. Mayes, Ky., 388 S.W.2d 125 (1965), we said that, if a witness was able to revise his figures by eliminating an improper factor and give an opinion on the correct basis, he should be permitted to do so. Here the Commonwealth moved to strike the witness’s testimony in its entirety. It should have directed its motion to the objectionable testimony which would have been sustained. The witness would then have been afforded an opportunity to state his opinion based upon proper factors. The trial court correctly overruled the motion to strike the witness’s testimony in its entirety.

The award set by the county court commissioners was $13,330. The Commonwealth appealed from the county court judgment, but the landowners did not, and it was agreed between the parties that $13,330 was the top limit the jury could award in this action. In his opening statement to the jury, counsel for the landowners advised the jury that they were limited to that amount, but he did not state that that was the amount of the judgment in the county court. It is argued by the Commonwealth that the amount which was set by the county court commissioners was improperly brought to the attention of the jury and, as a consequence, a reversible error resulted. It is true that the award made by county court commissioners is inadmissible and may not be commented upon. Commonwealth, Department of Highways v. Swift, Ky., 375 S.W.2d 691 (1964). As heretofore stated, however, the landowners’ attorney did not advise the jury that the $13,330 figure was the county court commissioners’ award, nor did he specifically bring out that fact in testimony taken at the trial. On the other hand, the Commonwealth did bring to the attention of the jury who the three county court commissioners were and the manner in which they made their determination of the value. The Commonwealth cannot now object to the admission of evidence for which it was primarily responsible. Moreover, there was no showing that the Commonwealth was prejudiced by the introduction of that testimony, in view of the fact that the jury’s $10,000 verdict was considerably lower than the county court commissioners’ figure.

Finally, the Commonwealth argues that the verdict was excessive. The landowners’ witnesses testified the difference in value of the property before and after the taking was anywhere from $12,500 to $25,000. The Commonwealth witness placed the difference at $4,525. The county court award was for $13,330, but this jury allowed only $10,000. We are of the opinion that a $10,000 verdict resulting from the taking of almost six acres of land lying at the city limits of Glasgow is not an excessive award.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Thomas H. MINARY, Jr., et al., Appellants, v. Myra Galvin MINARY et al., Appellees. CITIZENS FIDELITY BANK & TRUST COMPANY, etc., et al., Appellants, v. Thomas H. MINARY, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.
    James W. Stites, Louisville, for Thomas H. Minary,.Jr., and Amelia Minary Gant.
    Joseph J. Leary, Frankfort, for Myra Gavin Minary.
    William J. Goodwin, and Garner M. Petrie, Louisville, for Citizens Fidelity Bank & Trust Co.
   WADDILL, Commissioner.

These appeals, which are being considered together, present for our determination whether the trial court erred in dismissing these actions for lack of jurisdiction.

Amelia Minary died testate on June 15, 1932. Her will placed the residue of her estate in a trust, the income of which was to be paid to her three sons, James, Helm and Alfred, during their lifetime.

Alfred Minary died September 16, 1963, without issue but leaving a widow, Myra Minary, whom he had adopted as his child and heir through proceedings in the Jefferson Circuit Court in 1959. By the terms of Amelia Minary’s will the trust terminated upon Alfred’s death and was to be distributed “ * *’ * to my then surviving heirs according to the laws of descent and distribution then in force in Kentucky, * *

On November 8, 1963, the trustees under Amelia Minary’s will sought a declaration of rights in the Jefferson Circuit Court under KRS 418.040 to determine the proper distributees of the trust. Thomas Minary and Amelia Gant, the only grandchildren by blood of Amelia Minary, and Myra Minary, each of whom claimed an interest in the corpus of the trust, were made parties. Thomas Minary and Amelia Gant then filed a separate action directly attacking the judgment of adoption of Myra Minary, seeking to have it declared void. These two actions were considered together by the trial court. Immediately after the filing of the trustee’s action Myra left Kentucky and she was constructively served by warning order attorney in each of these actions.

Myra appeared specially in both actions and moved to dismiss for lack of jurisdiction of her person. In passing on these motions the trial court was of the opinion that each action was essentially an attack on the adoption judgment and that each action was, therefore, in personam. Accordingly judgments were entered dismissing each action. Upon these appeals it is contended for reversal that each action is in rem and that the trial court had jurisdiction to decide these controversies.

Apparently the nature of a direct attack on a judgment of adoption has not been considered by this Court. However, the Supreme Court of Indiana in Risner v. Risner, 243 Ind. 581, 189 N.E.2d 105, had this specific question presented by an attack on an Indiana adoption judgment where the adopted child and its adoptive parents had become residents of Floridá and were served constructively. In holding that it did not have jurisdiction to determine the validity of the adoption judgment, the Indiana Court said:

“Insofar, as there was no res over which the court could have had jurisdiction, the action was in personam in nature.”

We had an analogous situation in Prothro v. Prothro, Ky., 265 S.W.2d 39, wherein a wife sought to annul a marriage although she had only constructively served her husband in California. We held that the action was in personam and the court did not have jurisdiction. After a careful consideration of the many aspects involved we have concluded that the attack on the judgment of adoption was in personam and that the trial court properly dismissed this action for lack of jurisdiction. Cf. Moore v. Smith, 228 Ky. 286, 14 S.W.2d 1072.

We next consider the appeal from the judgment entered in the action for a declaration of rights. The chief question which the trustees seek to have determined is how the corpus of the trust should be distributed. It cannot be successfully denied that the situs of the trust is in Jefferson County and is therefore within the jurisdiction of the Jefferson Circuit Court.

In a similar declaratory judgment action to obtain the direction of the court for distribution of the remainder of a trust wherein the beneficiary of the trust was a nonresident who had been served constructively this Court held that, since the court had jurisdiction of the trust res (as in the instant case), it could render judgment affecting the beneficiary’s interest in the res (although in the absence of personal service it could not impose personal liability). Tyler v. Smith, Ky., 272 S.W.2d 454. In a subsequent companion case we held that this decision was res judicata on the question of jurisdiction of the subject matter and we further held that constructive service of the non-resident beneficiary gave the court sufficient jurisdiction of the person to subject the trust res to a claim made against the interest. of the non-resident. Tyler v. Churchill’s Trustee, Ky., 293 S.W.2d 731. We believe the foregoing cases are dispositive of the primary question here presented. Hence, we conclude that the action for a declaration of rights was in rem and it was error to sustain Myra’s motion to dismiss.

The judgment dismissing the action instituted by Thomas Minary and Amelia Gant against Myra Minary is affirmed; the judgment dismissing the action for a declaration of rights brought by the trustees is reversed with directions to overrule the motion to dismiss and for further proceedings not inconsistent with this opinion.


text:
    Mary Ann YELTON (now Haley), Appellant, v. Phillip A. YELTON, Appellee.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.
    William E. Wehrman, Wehrman & Wehrman, Covington, for appellant.
    Walter D. Vest, Covington, A. D. Yelton, Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant is the former wife of appellee. She appeals from an order modifying the original divorce judgment as it related to custody of the two children of the parties. The original judgment, entered December 13, 1960, awarded to the now appellant-wife the custody of the two children, a girl then nine years old, and a boy then five.

On June 22, 1964, appellee filed the motion to modify the original judgment as to custody, asserting a change in conditions, and praying that he be awarded the permanent custody of the two children. After a hearing on the motion, the chancellor did modify the original judgment and awarded the custody of the children to the appellee. Appellant urges that the order of modification be reversed on the ground that the chancellor abused his discretion in granting it.

Appellee’s motion for custody was supported by his own detailed affidavit. Appellant filed a counter-affidavit, and presented testimony of herself and several witnesses orally before the chancellor. The undisputed facts may be summarized as follows. Appellant and appellee have made second marriages since their divorce. Appellant married Foster Haley in March, 1962. Haley had been convicted in a United States District Court for illegal traffic in intoxicating liquor prior to appellant’s marriage to him. While Haley was a federal prisoner in the Fayette County jail, awaiting trial, appellant visited Haley in the jail and was accompanied there by the two children. Haley was confined at a federal penal institution in 1961 as the result of his conviction upon the liquor charge. While he was so confined the appellant visited him at the prison on several occasions; on many of these visits she was accompanied by the two children.

In February, 1962, appellant took the two children with her to Moses Lake, Washington, where she stayed with her brother for a brief time. About March 1, 1962, appellant, with the children, returned to Boone County, Kentucky, and moved into the Haley residence. There is some indication that appellant proclaimed that she and Haley had been married at a time earlier than the actual wedding date. Already residing in the Haley home were four children, ranging in age from nineteen to eight years, offspring of an earlier marriage of Haley’s.

Appellant separated briefly from Haley in June, 1962, at which time she journeyed to California with the two children. Haley persuaded her to return with him to Kentucky. Sometime in November, 1962, Haley was arrested and charged again with illegal dealing in alcoholic beverages. He was again convicted in the federal court, and sentenced to confinement at Terre Haute, Indiana; he was there confined at the time of the hearing below. Appellant stated that she had taken the two children to visit Haley at Terre Haute on several occasions, and planned to continue the practice. She pointed out that there was no prison atmosphere in the area to which the children were admitted. Since Haley’s confinement appellant has received a public assistance allotment of $45.00 per month for herself and the children; additionally she has received $120.00 per month from appellee; other income has increased her total receipts to about $195.00 per month.

Witnesses told of appellant’s traits as a good mother, and that the children appear happy, healthy, and normal. Appellee’s annual income was shown to be $9000. His present wife had a separate income at the time of the hearing, but appellee testified that if custody of the children should be awarded to him, his present wife would discontinue her work to look after the children.

The litigants recognize that the prime consideration in child custody cases is the welfare of the children. In all such cases the “ideal” situation is unattainable; that “ideal” — a well ordered home led by happily mated parents — has been destroyed by the divorce. Thus the quest is for the “next-best”. Under the circumstances of this case, we are persuaded that the chancellor has exercised a sound judicial discretion in awarding the custody of the children to the father, subject to the visitation rights permitted in the order. What we have said is not to say that the appellant is “unfit,” as that term is sometimes used. See Polivick v. Polivick, Ky., 375 S.W.2d 683; Nichol v. Conlan, Ky., 385 S.W.2d 779; Hall v. Hall, Ky., 386 S.W.2d 448. The unfitness here results from the disparity between the homes available to the children. We think it needs no elaboration to sustain the proposition that appellee’s home presents an infinitely better prospect for the welfare of these children than does appellant’s.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Steve H. STOUT et al., Appellants, v. CITY OF MARTIN et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.

      Joe Hobson, Prestonsburg, for appellants.
    W. W. Burchett, Prestonsburg, for ap-pellees.
   PALMORE, Judge.

Several owners of real property in the city of Martin brought this action against the city and its contractor, Ramsey & Clubb Construction Company, to enjoin them from building a sewage disposal plant. The ground for relief as stated in the complaint was that if the plant is completed and put into operation it will constitute a private nuisance to each of the plaintiffs by reason of offensive odors emanating from it. The issues were joined by answer on December 7, 1964, and trial was had before the court on March 11, 1965. On the day of the trial plaintiffs moved orally for leave to amend the complaint and on the next day tendered the desired amendment with a written motion. The trial court thereafter filed an extensive written opinion and entered judgment overruling the motion to amend and dismissing the complaint on the merits. Plaintiffs appeal.

The new matter alleged in the amended complaint tendered by appellants was that the defendant city had never enacted an ordinance or adopted a resolution authorizing the construction of a sewage disposal plant or any contract for that purpose. Whereas the original complaint had sought to enjoin construction of the plant at a particular location, the amendment sought to enjoin it altogether.

CR 15.01 provides that leave to' amend “shall be freely given when justice so requires.” Under liberal modern practice a change in the theory on which relief is demanded is not an obstacle to amendment, nor is the assertion of a new claim that could have been joined in the first instance with the claim stated in the complaint, per CR 18.01. See Clay, Kentucky Practice, CR 15.01, Note 4; Dombrovskis v. Murff, 24 F.R.D. 302 (S.D.N.Y.1959). “If no problem of relation back is involved, the question for the court is not whether a new and independent claim or ‘cause of action’ is pleaded by amendment but whether the just and expeditious disposition of the controversy between the parties will be advanced by permitting the amendment.” Barron & Holtzoff, Federal Practice and Procedure, § 448 (Vol. 1A, p. 753). Nevertheless, by the express terms of the rule permission to amend is mandatory only if “justice so requires.”

“The more common reasons for denying leave to amend are that the amendment will result in undue prejudice to the other party, is unduly delayed, is not offered in good faith, or that the party has had sufficient opportunity to state a claim and has failed.” 3 Moore’s Federal Practice, R15 (Par. 15.08, pp. 897-900).

In this instance the testimony evinced a consensus among the individual plaintiffs that the construction of a sewage disposal plant was a desirable prospect for the community. Their objections were confined to a preference that it not be established in close proximity to the particular properties owned or occupied by them. Had they wished to defeat the project entirely, it is obvious that they could and would have ascertained from the official records of the city whether the contract had been duly authorized. Hence even if it be assumed without argument that the amendment was proffered in good faith, at the very least it was an afterthought. The city did not, of course, come to the court house prepared to try the issue raised by the amendment, and for that reason it probably would have been necessary for the court to continue the hearing until a later date, even perhaps to the point of granting the city time in which to take amendatory actions ratifying or otherwise perfecting any inadequacies found to exist with respect to its official records. Meanwhile the nuisance case was ready for trial, and in our opinion justice did not require the court to delay it in order to hear the new claim. It was not vital to the plaintiffs that it be asserted in the form of an amendment; they were free to bring a separate suit. We find no error in the refusal to allow the amendment.

On the merits of the nuisance claim there was ample evidence to support the trial court’s findings. The new plant will be located near a public septic tank that now serves a substantial part of the town and will be eliminated. Assuming that the new plant may create some odor, it can hardly be as bad as the “terrible odor” one of the plaintiffs’ leading witnesses testified has existed for years in connection with the septic tank. At most, any new odor would replace the old one. The evidence given in defense indicates that it will be minimal.

A sewage treatment plant is not a nuisance per se. City of Harrodsburg v. Brewer, 243 Ky. 378, 48 S.W.2d 817 (1932); Bartman v. Shobe, Ky., 353 S.W.2d 550, 555 (1962). “To sustain an anticipatory injunction against a threatened nuisance there must be sufficient evidence ‘that a nuisance necessarily would result from the activity.’ ” Associated Contr. Stone Co. v. Pewee Val. San. & Hosp., Ky., 376 S.W.2d 316, 317 (1964) ; Harman v. Allen, Ky., 297 S.W.2d 59, 60 (1956). Even without the rebutting evidence produced by the city, the testimony of the plaintiffs and their witnesses fell far short of meeting this criterion.

The judgment is affirmed.

HILL, J., not sitting.


text:
    Samuel BALL, Appellant, v. BEATRICE FOODS COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 29, 1965.
    G. C. Perry, III, Paintsville, O. T. Hinton, Pikeville, for appellant.
    Baird & Hays, E. R. Hays, Pikeville, for appellee Beatrice Foods Co.
    J. A. Runyon, Friend & Mullins, Pike-ville, for appellees Smith and Horne.
    L. D. May, Pikeville, for appellee Childers.
   WILLIAMS, Judge.

Appellant Samuel Ball claims he has the right to recover from somebody for damage done to his truck. Judgment of the Pike Circuit Court denied recovery. Hence this appeal.

Appellant’s truck driver parked the large coal truck, which was later damaged, in front of a grocery store operated by ap-pellee Lauchie Childers. Appellees Arnold Smith, a driver-salesman for Beatrice Foods Company, and Andrew Horne, a self-employed distributor of Gordon’s Foods Products, were in Childers’ store, making deliveries. Childers, who is crippled, asked Smith and Horne to move the truck. They complied by hitching another truck to the coal truck and pulling it away. They did not realize that the coal truck was equipped with air brakes, which functioned only when the ignition was turned on. As a consequence, once the coal truck started moving, they could not stop it and it crashed into a tree.

Appellant sued Smith and Horne, Gordon Foods, Beatrice Foods and Lauchie Childers. Gordon Foods was dismissed on appellant’s motion when it developed that Horne was not an employee of Gordon Foods but an independent contractor. After a pre-trial conference, the complaint was dismissed as to Smith, Horne and Beatrice Foods, leaving only Childers as a defendant. A jury trial against Childers was had and appellant lost.

Appellant asks that the judgment of the Pike Circuit Court be reversed and that a judgment be entered against all of the ap-pellees, but he gives us no reason why Gordon Foods, which was dismissed on appellant’s own motion, should be held liable. Neither does he advise us why Beatrice Foods should be retained in the case when it is obvious that their driver, Horne, was not acting within the scope of his employment when he took it upon himself to move the coal truck. Nor does appellant point out any error committed in the jury trial he had against Lauchie Childers. We assume that as to those three appellees appellant is not pressing for a reversal. We are left then with the question of whether the two men, Smith and Horne, one who towed the coal truck, the other who steered it, should have remained in this case.

The first question raised is a technical one. The trial judge dismissed the case as to all appellees except Childers on August 1, 1962. Appellant moved the court to set aside the order on February 6, 1964. On February 14, 1964, the Pike Circuit Court overruled that motion, and in such order stated that it was final. No recitation that there was no just reason for delay, as required by CR 54.02 in order to make the order appealable, was made. Ap-pellees argue that, since appellant did not timely appeal from the February 14, 1964, order, he cannot now complain. This argument is not well taken, since that order did not meet the requirements of CR 54.02 in that it did not recite that there was no just reason for delay, and consequently that order was not appealable. Linkous v. Darch, Ky., 299 S.W.2d 120. When more than one claim for relief is presented in an action, a judgment upon less than all of the claims shall become final and appealable only if it is recited therein that such judgment is final and that there is no just reason for delay. Clay, Ky.Practice, Vol. 7, CR 54.02, comment 5, at page 134. The appeal from the order dismissing Horne and Smith is timely.

Appellees assert that a master-servant relationship existed between Childers and Horne and Smith in that Childers requested Horne and Smith to push the truck out of the way. They also contend that the jury verdict, which absolved Childers of any liability, acts as a bar to any claim against Horne and Smith on a new trial. That argument is defective because no master-servant relationship actually existed. Childers had neither control nor supervision over Horne and Smith, nor did he direct the method and means of moving the coal truck. In Blair v. Boggs, Ky., 265 S.W.2d 795 (1954), we held:

“The essential characteristic of the master and servant relation is the retention by the employer of the right to direct and control the manner in which the work will be performed and to determine not merely the result, but the methods and means by which the result is to be accomplished. * * * ”

We are of the opinion that appellant has the right to a trial to have the liability of Horne and Smith determined.

Insofar as the judgment declares no liability against Gordon’s Foods Products, Beatrice Foods Company, and Lauchie Childers, it is affirmed. The judgment is reversed as to Horne and Smith, and the case is remanded for trial to determine the liability of Horne and Smith.


text:
    Arnold LOVELL, Appellant, v. OSBORNE MINING CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.
    Rehearing Denied Dec. 3, 1965.
    Kelsey E. Friend, Friend & Mullins, Pikeville, for appellant.
    E. R. Hays, Baird & Hays, Pikeville, Armer H. Mahan, Davis & Mahan, Louisville, for appellees.
   DAVIS, Commissioner.

In this workmen’s compensation case appellant Arnold Lovell seeks to overturn the circuit court judgment sustaining the ruling of the Workmen’s Compensation Board denying his claim for disability payments. The case turns on construction of KRS 342.316(4), (12). There is no dispute concerning the facts.

Lovell worked in coal mines in Pike County, Kentucky, for thirty-three years; during this time he was injuriously exposed to the occupational disease silicosis. Lovell had worked for appellee Osborne Mining Corporation (and its predecessors in title) during the entire time of his Kentucky employment. On August 15, 1961, Lovell was laid off from work at Osborne incident to a work force reduction. Up to that time he had worked regularly and had not asserted any disability.

On November 16, 1961, the appellant Lovell entered on duty as a miner in West Virginia in the employ of Crystal Block Coal Company. He continued regularly employed at Crystal until September 15, 1962, when he was again laid off in a work force reditction. During a part of the ten months in which Lovell worked at Crystal in West Virginia he was exposed to the hazards of silicosis.

In December, 1962, appellant sought employment at a coal mine in Kentucky. He then represented himself as physically and otherwise capable to engage in the required work. Upon a pre-employment physical examination it was learned that Lovell had silicosis, so employment of him was refused by the mine operator (not appellee company). Shortly thereafter, and again in December, 1962, appellant applied for work at another mine in Pike County, Kentucky, but was rejected after a physical examination, and for the same reason.'

Appellant testified that in December, 1962, he advised appellee Osborne Company of the results of these physical examinations. Just after his second rejection for employment appellant filed the claim for compensation now under consideration.

The medical testimony reflects that appellant is a victim of silicosis, and that he has a substantial and perhaps total disability. However, the referee for the Board recommended that the claim be dismissed; this determination was predicated upon KRS 342.316(12), which is as follows:

“When an employee has an occupational disease that is covered by this chapter, the employer in whose employment he was last injuriously exposed to the hazard of the disease, and the employer’s insurance carrier, if any, at the time of the exposure, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier; except as otherwise provided herein.”

Upon review by the full Board, the result was the same, but the reasoning was different. The full Board was of the view that KRS 342.316(4) precluded recovery by the appellant. That portion of the statute is as follows:

“In claims for compensation due to the occupational disease of silicosis or any other compensable pneumoconiosis it must be shown that the employe was exposed to the hazards of the disease in his employment within this state for at least two years immediately next before his disability or death.”

When the matter was presented to the circuit court for review the same result was reached, although it is not discernible whether the trial judge predicated his ruling on KRS 342.316(4) or (12).

Denial of compensation in this case works a harsh result. KRS 342.004 directs that a liberal construction of the Workmen’s Compensation Act shall be the judicial policy with respect to law; we have recognized and followed the policy. Dick v. International Harvester Co., Ky., 310 S.W.2d 514; 19 Ky.Digest, Workmen’s Compensation,

Yet we may not extend the Act beyond its legitimate scope. Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247.

The explicit language of KRS 342.316(4) appears to us to preclude compensation to the appellant under the circumstances cf this case. The words “it must be shown that the employe was exposed to the hazards of the disease in his employment within this state for at least two years immediately next before his disability or death” leave little or no room for “liberal construction.” Cf. Chapman v. Eastern Coal Corp., Ky., 385 S.W.2d 78.

For appellant it is forcibly contended that appellant must have truly had silicosis on August 15, 1961, — all of which was a result of his Kentucky exposure. This is buttressed by reference to medical testimony indicating that silicosis is a disease which requires much time to develop, and that perhaps ten years of exposure would have been required to present the situation now present in appellant’s lungs. It is reasoned that the obvious purpose of KRS 342.316(4) is to protect Kentucky employers from liability to migrant workers coming into this Commonwealth already ravaged by the occupational disease. The difficulty we have with this argument is that appellant was not disabled on August 15, 1961. In fact, he continued working until a time more than -a year following that date, and would have worked on, presumably, had he been accepted for employment in December, 1962.

Our cases stand for the proposition that a worker is not disabled so long as he can continue to perform his duties to the satisfaction of his employer, even though he experiences discomfort in doing so. See Alva Coal Corporation v. Trosper, Ky., 375 S.W.2d 406; Brock v. International Harvester Co., Ky., 374 S.W.2d 507, and Stephens Elkhorn Coal Co. v. Tibbs, Ky., 374 S.W.2d 504. Within the rationale of the last cited cases appellant was not “disabled” on August 15, 1961. He subsequently engaged in mining activities for several months, and was undertaking to do so as late as December, 1962,

Whether the legislature would have written the present statute as it did if it had envisioned the situation at hand we may not fathom; the fact is that the law is so written, and we are not at liberty to change it. Harsh or not, it is too clear to be construed in any way except literally. Cf. Com., Dept. of Highways v. Hatcher, Ky., 386 S.W.2d 262, 263.

The judgment is affirmed.


text:
    Dennie MILLER and Delbert (Deb) Caudill, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 22, 1965.
    Rehearing Denied Dec. 3, 1965.

      S. M. Ward, Hazard, for appellants.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   DAVIS, Commissioner.

Delbert (Deb) Caudill and Dennie Miller were separately indicted, but were tried jointly and convicted. Caudill was charged with maliciously striking and wounding Clifford Campbell with a deadly weapon, with intent to kill; Miller was charged with aiding and abetting Caudill in the commission of the offense. KRS 435.170(2). Pursuant to the jury’s verdict, each of the appellants was sentenced to imprisonment for two years. In this appeal three grounds for reversal are presented: (1) the trial court erred in refusing a continuance; (2) the verdict is flagrantly against the evidence, and (3) a peremptory instruction of acquittal should have been given for appellant Miller.

On the day of trial appellants filed affidavits setting out the unavoidable absence of two witnesses. The substance of the testimony expected from the witnesses was set forth in the affidavits. The trial court permitted the affidavits to be read to the jury as the evidence of the witnesses, without objection by the Commonwealth’s Attorney. RCr 9.04 provides that in such circumstances the trial shall not be postponed. We are not to be understood as holding that RCr 9.04 forecloses the exercise of sound judicial discretion, but to-hold that in the case at bar there was no abuse of the discretion. As to one of the absent witnesses, the appellant did not aver that the witness would or could be made available to the jurisdiction of the court — but said that the witness was out of the state. The other absent witness did not see the fight, but would have testified that Clifford Campbell and his companions had avowed their intention to “beat üp” the appellants. We are not able to say that the effect of that testimony was fatally impaired by its submission through affidavit as opposed to the personal presence of the witness. Cf. Dunn v. Commonwealth, Ky., 350 S.W.2d 709.

The verdict was not flagrantly against the evidence. The witnesses for the prosecution testified to an unprovoked assault by the appellants; the appellants gave evidence directly in conflict. The jury had the right to resolve the issue — the evidence in support of the verdict was substantial and ample to support the verdict. In such a case we are not able to say that the verdict is flagrantly against the evidence. See Turner v. Commonwealth, Ky., 328 S.W.2d 536, and authorities discussed there.

It is vigorously argued that in any event a directed verdict should have been given as to appellant Miller. The basis for this contention is that Miller did not aid and abet Caudill. The evidence for the prosecution was that Miller first hit Campbell with a pistol, and that while Campbell was virtually unconscious as the result of it, Caudill heat Campbell with a club. Campbell suffered the loss of vision in an eye as the result of the beating, according to evidence for the Commonwealth. For appellant Miller it is urged that there is no evidence that Miller aided Caudill with respect to the clubbing of Campbell; that Miller’s prior striking of Campbell with the pistol had no relation to the activities of Caudill. In support of this point, appellant Miller relies on Whitt v. Commonwealth, 221 Ky. 490, 298 S.W. 1101; Fairchild v. Commonwealth, 312 Ky. 741, 229 S.W.2d 754; Moore v. Commonwealth, Ky., 282 S.W.2d 613; and Howard v. Commonwealth, 304 Ky. 149, 200 S.W.2d 148. Those cases recognize the rule:

“To constitute an aider and abettor, sometimes called a principal in the second degree, it is essential that he be present, actually or constructively, at the commission of the crime, and participate in it, sharing the criminal intent of the principal in the first degree.” Whitt v. Commonwealth, supra, at 298 S.W. 1103.

The Commonwealth does not challenge the rule, but contends that the facts at hand warrant its application to appellant Miller. We agree. In his own testimony, Miller gave the following account of the melee :

“Q. 17 What did Clifford Campbell say to you ?
A. He come out and said, ‘Son, I have waited long enough on that money, you have owed me a long time,’ and he started pulling me out of the car and then his daddy run around and Deb run around and took his arm and knocked him out of the way.
Q. 18 Did you ever hit Clifford with anything but your fist ?
A. No, I might have kicked him with my foot.
Q. 19 What did he do ?
A. He jerked me out of the car.
Q. 20 Did he have anything in his hand?
A. He had something in his right hand, you could just see — looked like the blade of a knife sticking out of his hand.
Q. 21 How many times did you hit him?
A. I don’t know.
Q. 22 What was he doing when Deb hit him?
A. Me and him was fighting.”

In view of the fact that these events occurred almost simultaneously, coupled with the fact that Miller and Caudill were together that night, it is our view that the jury properly could believe that Miller’s actions in the conflict were in support of Caudill’s part in it. It is apparent from Miller’s testimony that Caudill (referred to as “Deb” in the quoted testimony) came to the aid of Miller — to “even” the fight when Campbell’s “daddy” entered the fray. According to Miller, “me and him was fighting” when “Deb” hit him. That is, Miller was fighting Campbell when Deb hit Campbell. We think this is sufficient basis to hold appellant Miller as an aider and abettor. See Warfield v. Commonwealth, Ky., 334 S.W.2d 913.

The judgment is affirmed as to each of the appellants.


author: HAMILTON, Justice. SMITH, Justice CALVERT, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Petitioner, v. Troy Alvie LEATHERS, Respondent.
    No. A-10343.
    Supreme Court of Texas.
    July 21, 1965.
    Rehearing Denied Dec. 1, 1965.
    Jones, Boyd, Westbrook & Lovelace, L. Wayne Scott, Waco, with above firm, for petitioner.
    Dunnam, Dunnam & Dunnam, James F. Greer, Waco, for respondent.
   HAMILTON, Justice.

This is a workmen’s compensation case. The respondent alleged that he was injured hy an electric switch blowing up in his face on November 11, 1954, and that said injury resulted in the burning of his face and eyes and caused an electrical shock thereto which caused him to have se,vere dizzy spells which started about six months after said accident, and which injury resulted in respondent’s being totally and permanently incapacitated thereafter. Respondent filed his claim for compensation for said injury and total permanent incapacity resulting therefrom with the Industrial Accident Board on July 25,1962. As ground for good cause for not filing said claim within the time required by law respondent alleged:

“ * * * at the time of said injuries and up until the time he began having said dizzy and blackout spells, he believed and was informed by physicians that he had no injury of any serious or disabling nature, and upon the outset of said dizzy and blackout spells up until a few days before the filing of his claim herein, he believed and was informed by physicians that said dizzy and blackout spells were caused by a heart condition which was congenital and had no connection with said injuries, and upon his finding; out otherwise a few days prior to the filing of his claim herein, he immediately contacted attorneys and they immediately prepared his claim and filed same on the date heretofore set out, * *

Petitioner filed an answer under oath denying that respondent is suffering any disability or incapacity as a result of the November 11, 1954 accident, and denying that respondent had good cause for failure to file his claim within the time required by law. Petitioner thereafter filed a motion for summary judgment stating that from the pleadings and depositions on file that respondent without good cause failed to file his claim for compensation with the Industrial Accident Board of the State of Texas within the time required by law, and further that respondent has suffered no disability or incapacity as a result of the accident allegedly occurring on November 11, 1954.

In addition to the pleadings there are in the record two depositions, one taken of the respondent, Troy Alvie Leathers, and another of Dr. Chas. Dulaney. On this record the trial court granted petitioner’s motion for summary judgment and entered judgment that plaintiff take nothing. The Court of Civil Appeals has reversed this judgment and remanded the cause for trial. 380 S.W.2d 852. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The respondent testified in his deposition that he worked for the Universal Atlas Cement Company from 1950 to December 30, 1961, and on November 11, 1954, he had an accident when an electric switch blew up in his face. He suffered burns on his face and was treated by Dr. Marstaller. He spent one night in the hospital and returned to work the next day. He had no difficulty thereafter until he had a fainting spell on the job in the latter part of 1955, about a year after the accident. He was taken to the hospital and was treated by Dr. Marstaller, his own doctor. He was released from the hospital after about four ór five days. The doctor told him he had a light heart condition. He did not mention to his doctor about the accident of 1954, but said that the doctor knew about his accident. Respondent said he did not have an electrocardiogram at that time. After the 1955 hospitalization he began having dizzy spells and blackout spells once or twice a month, which continued up until December 30, 1961, when he was again hospitalized. He “took sick” with fainting spells on December 30, 1961, and went back to the hospital. He stayed there eleven days and was treated by Dr. Dulaney and Dr. Morrison. While he was there they gave him an electrocardiogram. He reported back to his company to go to work in July of 1962, the company doctor turned him down, and he was laid off.

Respondent Leathers further testified that he knew these dizzy spells were disabling, but he continued to work because he had to, as he had no other source of income; that the first time he ever got the idea that there might have been some connection between his dizzy spells and the 1954 accident was when his brother, who is an iron worker, mentioned to him that it could have been caused by the accident; that he went to a lawyer and had his claim filed two or three days after his brother told him.

Doctor Dulaney in his deposition testified that he was a member of the clinic of which Dr. Marstaller was a member in 1954 when Leathers was seen on November 11, 1954, in the emergency room at Hill-crest Hospital with first and second degree burns of the face. Leathers was admitted to the hospital with an episode of acute pneumonia and pneumonitis on October 20, 1955, and discharged on October 24, 1955. The records show that on July 6, 1959, he was complaining of chest pain and the trouble was diagnosed as pleurisy and bronchitis. An electrocardiogram was given Leathers at that time, which showed a normal heart condition.

Dr. Dulaney further testified that in January, 1962, Leathers was again hospitalized. He was complaining of blackout spells at that time. The record shows that Leathers was found to have an abnormal heart beat at the time he was seen in January and was placed on medication to slow the heart rate. He was treated again in March of 1962 as a follow-up of the blackout spells and the heart abnormality which he had developed. Dr. Du-laney concluded that the abnormal heart was a rhythm disturbance. He described it as an atrial flutter with supra ventricular tachy cardia, which he had in January and at subsequent follow-up visits. He said in effect that the cause of this type of heart condition is not known. The last time he saw him was May 23, 1962, when he discharged him. He told him that he wanted to recheck him in two weeks, but he had not seen him since.

For cause for not filing his claim any sooner than he. did respondent is relying on his pleading that he did not believe his injuries were serious up until the onset of the dizzy and blackout spells which began in 1955, and that after the onset of his dizzy and blackout spells “he believed and was informed by physicians that said dizzy and blackout spells were caused by. a heart condition which was congenital and had no connection with said injuries.” And upon finding out otherwise from his brother he immediately filed the claim upon which this suit is based on July 25, 1962.

This record shows that for nearly seven years after Leathers began suffering from dizzy spells he consulted with doctors numerous times, but not once did he inquire as to the cause of his dizzy spells. He alleges that he believed that his heart condition was the cause of his dizzy spells and he believed his heart condition had no connection with his injury, but he says he never did ask a doctor about such connection. Consequently, his belief cannot be based on what any doctor told him. If his brother, a layman, could tell him what was causing his dizzy spells some seven years later, then a doctor should have been able to tell him much sooner had he used any diligence.

While good faith belief of a claimant that his injuries were caused by something other than an accident he received in the course of his employment may be good cause for failure to present his claim within the statutory time, yet such belief must meet the test of ordinary prudence. The rule as applied to a similar situation is stated by Justice Norvell in Copinjon v. Aetna Casualty and Surety Company, 242 S.W.2d 219, (Tex.Civ.App.1959, writ ref.) as follows:

“It has been held that a good faith belief on the part of a claimant that his injuries were not serious may constitute ‘good cause’ for failing to present a claim within the statutory time. Such belief, however, must meet the primary test of ordinance prudence. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370.
“Taking as true his statements of pain and suffering undergone by him following the accident of August 5, 1946, appellant’s action in delaying the filing of his claim until December 27, 1948, does not meet the standard of ordinary prudence. This conclusively appears as a matter of law.” 242 S.W.2d at p. 220.

See also Texas Employers’ Insurance Association v. Portley, 153 Tex. 62, 67, 263 S.W.2d 247 (1953).

Assuming as true that the disability of which Leathers complains is the result of dizzy spells caused by the 1954 accident, he had ample opportunity to learn the facts simply by asking, during some of the numerous times he consulted with doctors over a period of nearly seven years after his disability from dizzy spells began. This record shows conclusively that Leathers’ conduct does not meet the standard of ordinary prudence.

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

GREENHILL, J., concurs in the result.

CALVERT, C. J., and WALKER, J., dissenting.

SMITH, Justice

(dissenting,

joined by STEAKLEY, Justice).

I respectfully dissent. The deposition testimony, introduced in evidence, does not establish as a matter of law that the dizzy spells suffered by Leathers were not caused by the injury alleged to have been sustained by him on November 11, 1954. The record shows that there is an issue of fact as to the extent of his disability suffered as a result of his injury. There is also a fact issue presented by this record on the question of “good cause” on the part of Leathers for his delay in filing a claim for compensation with the Industrial Accident Board. These reasons furnish a sufficient basis for the affirmance of the judgment of the Court of Civil Appeals. There is still another reason why Leathers is entitled to a trial of the issues of fact raised by the pleadings and depositions. The movant has completely failed to discharge its burden of establishing that no genuine issue of any material fact existed.

Leathers pleaded that he sustained an injury on November 11, 1954, while in the course of his employment with Universal; that he filed a claim for compensation with the Industrial Accident Board of the State of Texas on July 25, 1962. It is undisputed that the Board thereafter denied the claim and Leathers duly perfected his appeal to the court of proper and competent jurisdiction, within the time prescribed by statute, to set aside the final ruling and decision of the Board. In the District Court Leathers filed pleadings alleging good cause for failure to file his claim with the Board within the time required by the Texas Workmen’s Compensation Act. Leathers alleged that he sustained an accidental injury when a “square ‘D’ electrical switch blew up in his face,” causing “a burning of plaintiff’s face and eyes and causing an electrical shock thereto.” The petition alleged that as a result of such injuries, Leathers, about six months after the accident, began to suffer from “severe dizzy spells” (sometimes referred to in the pleadings and depositions as “dizzy and blackout spells”). These general pleadings were followed by the following special pleadings bearing upon the issue of good cause for Leathers’ failure to file his claim with the Board within six months from the date of injury:

“Plaintiff shows that, at the time of said injuries and up until the time he began having said dizzy and blackout spells, he believed and was informed by physicians that he had no injury of any serious or disabling nature, and upon the outset of said dizzy and blackout spells up until a few days before the filing of his claim herein, he believed and was informed by physicians that said dizzy and blackout spells were caused by a heart condition which was congenital and had no connection with said injuries, and upon his finding out otherwise a few days prior to the filing of his claim herein, he immediately contacted attorneys and they immediately prepared his claim and filed same on the date heretofore set out, and all of the above facts constituted and are good cause for not filing said claim until the date that same was so filed.”

Texas Employers’ sworn answer to Leathers’ pleadings consisted of a general denial; a denial that Leathers suffered incapacity due to an accident in the course of his employment with Universal on November 11, 1954; that, if suffering any disability or incapacity, such was due to causes or conditions unconnected with his employment; that, in the alternative, “such incapacity, if any, is partial and temporary.” On the issue of good cause, Texas Employers pleaded:

“Defendant specifically denies that plaintiff filed claim for compensation within six months from the date of his alleged injury and specifically denies that he had good cause for failing to file a claim within six months as required by the Workmen’s Compensation Laws of the State of Texas.”

On October 3, 1963, Texas Employers filed its unsworn motion for summary judgment. No affidavits other than the attorney’s affidavit attached to Texas Employers’ answer were filed. No affidavits were filed by Leathers in opposition to the motion for summary judgment.

The motion for summary judgment alleged that Texas Employers was entitled to a summary judgment because it was shown by the pleadings and the depositions on file “that as a matter of law the plaintiff without good cause failed to file his claim for compensation with the Industrial Accident Board of the State of Texas within six months of the date of his alleged injury, and further it appears as a matter of law that 401 weeks have elapsed between the date of the alleged injury to the date of the filing of plaintiff’s claim with the Industrial Accident Board and it further appears as a matter of law that plaintiff has suffered no disability or incapacity as a result of the accident allegedly occurring on November 11, 1954.”

It is obvious that the motion for summary judgment as well as the answer and affidavit attached thereto are merely conclusions of law. Mere conclusions of law or fact must be ignored in deciding whether there is any genuine issue of fact. See United States v. Britten, 161 F.2d 921, (3d Cir. 1947); State of Washington v. Maricopa County, 143 F.2d 871, (9th Cir. 1944); Box v. Bates, 162 Tex. 184, 346 S.W.2d 317, (1961); Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215 (1956). The underlying purpose of Rule 166-A, Texas Rules of Civil Procedure, was to eliminate patently unmeritorious claims or untenable defenses. However, in adopting the rule, the Legislature did not intend to deprive litigants of their right to a full hearing on the merits of any real issue of fact. Kaufman v. Blackman, 239 S.W.2d 422, (Tex.Civ.App.1951, wr. ref., n. r. e.) ; quoted with approval in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Mere conclusions of law and hearsay statements made by counsel are insufficient to warrant the granting of a motion for summary judgment. See Sparkman v. McWhirter, 263 S.W.2d 832, 838, (Tex.Civ.App. 1953, wr. ref.).

The depositions considered by the Court fail to support Texas Employers’ motion for summary judgment. Texas Employers, in support of its motion for summary judgment, introduced in evidence the oral depositions of Leathers and Dr. Charles Du-laney. These depositions fail, in content, to aid Texas Employers in its effort to pierce the formal allegations of fact contained in Leathers’ pleadings. As stated in Sparkman v. McWhirter, supra, the object of Rule 166-A is to permit a movant for summary judgment to “pierce formal allegations of fact in pleadings and grant relief by way of summary judgment when it appears from uncontroverted facts set forth file that, as a matter of law, there are no in affidavits, depositions, dr admissions on substantive issues of fact presented for trial.” In view of the failure of the mov-ant in this case to show that its motion for summary judgment meets the requirements of Rule 166-A with respect to pleadings, affidavits, depositions and admissions necessary to demonstrate that no genuine issue as to any material fact existed, Texas Employers was not entitled to a summary judgment as a matter of law. Leathers made no admission and gave no evidence in his depositions which in any manner can be held to have defeated his cause of action under the Workmen’s Compensation Act. In the case of Box v. Bates, supra, the Court pointed out that no depositions or admissions were on file in the cause. Although the depositions of Leathers and Dr. Du-laney were before the trial court, the rule announced in Box v. Bates, supra, must be applied in the present case. In order for the pleadings, depositions, admissions, if any, and affidavits, if any, to afford a proper basis for judicial action under the rule in favor of the movant, it must clearly appear therefrom that there are no substantive issues of fact presented for trial. Schreffler v. Bowles, 153 F.2d 1, (10th Cir. 1946); Sparkman v. McWhirter, supra. If, under the facts developed, the trial court would be required to direct a verdict for the moving party, then and only then a summary judgment should be entered. Christianson v. Gaines, 85 U.S.App.D.C. 15, 174 F.2d 534, (1949); Arlington Heights Appliance Co. v. Gordon, 244 S.W.2d 337, (Tex.Civ.App.1951, no wr. hist.).

It is only where the motion for summary judgment is supported by affidavits, depositions, admissions, or other extrinsic evidence, sufficient upon its face to establish facts which if proven at the trial would entitle the movant to an instructed verdict, that the opposite party is required to either come forward with evidence which will raise an issue of fact or a justification in law for his failure to do so. See McDonald’s article in 30 Tex.L.Rev., p. 297.

Applying these well recognized rules to the record made on the motion for summary judgment we should hold that Leathers was not under a burden to contravene the allegations in Texas Employers’ motion. However, if he had such burden, then the depositions fail to establish as a matter of law that no genuine issue of fact existed. Dr. Dulaney’s testimony is based largely upon the clinical records which were in his possession. According to these records, Leathers appeared at the clinic on several different occasions; the records showed that Leathers was seen by Dr. Marstaller, a member of the clinic, in September, 1953; that according to the records, Leathers appeared at the clinic on April 15, 1954, and was treated for injuries he had sustained in an automobile accident; that on April 19, 1954, he "had an acute respiratory infection”; that on July 27, 1954, Leathers “had a left inguinal hernia, and he had surgical repair of the hernia in August, the 5th, of 1954. That was in the hospital.”

Dr. Dulaney testified by deposition that, according to the records, Leathers was seen on November 11, 1954 (the date of Leathers’ alleged injury); that “he was seen at the emergency room at Hillcrest Hospital with first and second degree burns of the face. He stated at this time that an electrical switch blew up in his face and he had the burns, which required dressing and cleaning up”; that Leathers was not admitted to the hospital. “He was treated as an out-patient.” When asked to describe the nature of the burns, the Doctor, still referring to the records, testified that “ [apparently it was first and second degree of the face only. The record is made face and neck, but no other description is here at the time of the burns.” “Q. No other complaints made there, Doctor? A. No, that’s the only thing.” All of this evidence relative to the November 11, 1954, visit by Leathers to the hospital to some extent at least corroborates Leathers’ pleadings. The records contain evidence of examinations and treatments after November 11, 1954. In October, 1955, Leathers remained in the hospital five days. “He had acute pneumonia, pneumonitis.” “ * * * [h]e was actually in the hospital five days with that episode of pneumonitis and pneumonia.” On December 10, 1955, Leathers, according to the records, was treated “for an acute sacroiliac sprain.” This had no connection with his employment. The record reflects that on July 6, 1959, Leathers appeared at the clinic. “At that time, he had chest pains with a diagnosis of pleurisy and bronchitis.” According to the records of the clinic, when Leathers next appeared “he had an acute upset stomach.” Following the clinical records still further Dr. Dulaney found a notation that Leathers appeared again on October 17, 1960, “at which time he sustained a dislocated right elbow and was referred to Dr. Robert Gassier.” “[T]hat was the last visit until January the 19th, 1962. At this time, the patient was seen by Dr. Woolley, who was in practice here at the time.” Leathers made several visits to Dr. Woolley. “The patient was complaining of blackout spells” on January 19, 1962. “Q. Had he ever, prior to that date, complained of blackouts according to your records? A. There’s no mention made prior to that at all.” The testimony is confined to the clinical records. There is no evidence in this record that Leathers did not complain of “blackout spells” prior to January 19, 1962. There is no evidence in the record that Leathers did not have “severe dizzy spells, which started about six months after said accident.” There is no evidence in this record that Leathers was not informed by “physicians that said dizzy and blackout spells were caused by a heart condition which was congenital and had no connection with said injuries.” As a matter of fact, Dr. Du-laney testified that the records in his clinic showed that in January, 1962, Leathers had developed an abnormal heartbeat. In this connection, the following questions and the answers of Dr. Dulaney appear in the record:

“Q. Had that [abnormal heartbeat] ever been detected before, or had he ever complained of anything beforé ?
“A. Not to my knowledge, it hadn’t been found. Like I said, he’d been seen by other people for these blackout spells; now, whether they—
“Q. That’s outside of this clinic?
“A. * * * yes; when I refer to someone else, I exclude the ones that have worked in this clinic. So I don’t know; I can’t honestly answer that.”

Dr. Dulaney testified, based upon the records, that he could see no connection between “the accident which occurred on November 11, 1954, * * * the burns on his face and his complaints at that time and subsequent thereto, * * * and the heart condition which * * * [he] observed in 1962 or at any time.” Texas Employers introduced no evidence to even indicate a probable causal connection between any of the “episodes” and the accidental injury which occurred on November 11, 1954. There is no evidence in support of Texas Employers’ motion that the alleged injuries sustained by Leathers on November 11, 1954, were not the producing cause of the “dizzy spells” or “blackouts” and the resultant incapacity alleged by Leathers. What I have said thus far disposes of all of the contentions of Texas Employers, except the contention that as a matter of law Leathers cannot recover because more than 401 weeks’ time had elapsed between November 11, 1954, the date of the alleged injury, and the date of the filing of his claim. I would overrule this contention. Texas Employers cites no authority to sustain this contention and I have found none. To sustain Texas Employers’ contention would be to deprive Leathers of the statutory right to plead and prove good cause facts excusing his failure to file his claim with the Industrial Accident Board within six months after the date of the alleged accident. Leathers should not be deprived of his day in court merely because seven years’ time elapsed before the claim was filed.

Since it is clear that Texas Employers made no showing before the trial court in the nature of pleadings, affidavits, depositions, admissions or other evidence that no issue or issues of fact were presented by the record, and since it is clear that genuine issues of fact exist, the Court of Civil Appeals acted properly in entering its judgment reversing the trial court’s action in sustaining the motion for summary judgment.

The judgment of the Court of Civil Appeals should be affirmed.

STEAKLEY, J., joins in this dissent.

CALVERT, Chief Justice.

I dissent.

In my opinion the deposition testimony in the record does not establish as a matter of law that Leathers’ dizzy spells and fainting spells were not caused by his 1954 injury. Neither does it establish as a matter of law that he has not suffered disability as a result of his injury. The only question remaining is whether the deposition testimony establishes as a matter of law that Leathers did not have good cause for his delay in filing his claim for compensation. The Court holds that it does. I disagree.

The Court’s holding that lack of good cause is established as a matter of law is grounded on a finding that Leathers’ conduct during the long interval between the date his dizzy spells began in 1955 and the date on which his claim was filed in 1962 did not meet the standard of conduct of a reasonably prudent man. This finding is predicated on the failure of Leathers during the period to ask a doctor if his dizzy spells were caused by his injury. I can find no testimony in the depositions that he did not ask. But conceding that the only reasonable inference from the testimony is that he did not do so, I am yet unable to agree that he was imprudent as a matter of law in failing to take steps to rid himself of his mistaken belief that his dizzy spells were caused by a heart condition.

Leathers testified that when he had the fainting spell in 1955 his doctor told him he had a light heart condition. That testimony must be accepted as true. Should we hold that the workman, continuing to have the same symptoms and ailments for six and a half years, was imprudent as a matter of law because he failed during that period to seek a second diagnosis? Some men, more cautious than others in protecting their health, surely would have sought a second diagnosis. Others, less cautious, would have accepted their family doctor’s diagnosis as the final word. Are we to say as a matter of law that none of those in the latter group are people of ordinary prudence? I would not. I would let a jury decide the issue. Accordingly, I would affirm the judgment of the Court of Civil Appeals.

      . This Court “refused” a writ of error in 1953 in the case of Sparkman v. McWhirter, supra. That case cit.ed with approval Schreffler v. Bowles, supra; Christianson v. Gaines, supra, and Arlington Heights Appliance Co. v. Gordon, supra.

      . Hon. Boy McDonald, author of McDonald, Texas Civil Practice 3 (1950).