author: WILLIAMS, Judge. MONTGOMERY, Judge

text:
    Ruby Ann JEFFERY, Administratrix of Estate of Richard Jeffery, Deceased, Appellant, v. Houston RAY, Appellee. Hazel JONES, Administratrix of Estate of Franklin Stone Henson, Deceased, Appellant, v. Leon COLLIE et al., Appellees.
    Court of Appeals of Kentucky.
    May 27, 1966.
    Rehearings Denied Nov. 4, 1966.
    Wm. Donald Overbey, Overbey & Over-bey, Murray, for appellant Ruby Ann Jeffery.
    Henry Lovett, Lovett, Lovett & Lovett, Benton, for appellant Hazel Jones.
    Henry Whitlow, Waller, Threlkeld & Whitlow, Paducah, for appellees.
   CONSOLIDATED CASES

WILLIAMS, Judge.

These two consolidated actions for wrongful death arise from an automobile accident which occurred in Hazel, Kentucky, where the automobile allegedly driven by the defendant Houston Ray left the road at a speed in excess of 100 miles per hour and struck a building. Richard Jeffery, a passenger in the automobile, was killed instantly and the other passenger, Franklin Stone Henson, died within a few hours without regaining consciousness. For the purpose of this appeal we will assume that Houston Ray was the driver, since the trial court directed a verdict in his favor on grounds that the deceased passengers were contributorily negligent as a matter of law. The sole issue on this appeal is whether this ruling of the trial court was correct.

The appellee Ray, age 23, was employed as a “hook-up” driver and he had returned to Murray, Kentucky, at about 12:00 o’clock noon from Chicago, Illinois. He had driven all night from Chicago and he testified that he had not slept in bed for approximately forty-eight hours. At about 2:00 p. m., Ray picked up the decedents and they left Murray to go to a beer tavern just across the Tennessee state line. They arrived at the tavern about 3:00 o’clock, drank three beers apiece and “nearly all” of a fourth, when they decided to go back to Murray. Evidence indicates that the men were at this tavern for approximately two and one-half hours.

Appellee Ray testified that he was not drunk but was “asleep” or “just out.” He likewise testified that after ordering the fourth beer he remembered nothing until he woke up in the hospital two days later. The only other witness testified that Ray and the decedents seemed to carry on their conversations normally and naturally and did not appear to be under the influence of alcohol. There is no other evidence in the record to indicate that Ray or the decedents were so incapacitated that they were unable to act with ordinary care. Nor was there any evidence that Ray communicated the fact that he was sleepy to the two decedents.

The fatal accident occurred on the return trip to Murray. At the conclusion of appellant’s proof the lower court directed a verdict for the defendant appellee on the ground that decedents were contributorily negligent as a matter of law by getting in the car with a driver who had consumed three or four beers.

The question is whether appellee was under the influence of alcohol, lack of sleep, or both, to such an extent that his driving was affected, and whether decedents knew, or by the exercise of ordinary care should have known this fact if it did exist. This Court has enunciated the rule that this question usually is for the jury. “Usually it is a question of fact whether a driver was so far intoxicated at the time of an accident as to affect his ability to operate the car, and whether his passenger had any cause, in the exercise of ordinary care, to be apprehensive on that account for his own safety.” 4 Blashfield’s Cyclopedia of Automobile Law (Permanent Ed.), section 2453, cited with approval in Toppass v. Perkins’ Adm’x, 268 Ky. 186, 104 S.W.2d 423, and Kavanaugh v. Myers’ Adm’x, Ky., 246 S.W.2d 451. See also Graves v. Cantrell, Ky., 273 S.W.2d 556; Coy v. Hoover, Ky., 272 S.W.2d 449, and Lewis v. Perkins, 313 Ky. 847, 233 S.W.2d 984.

But the appellee urges us to apply the well-recognized exception to this general rule that where the facts are undisputed and but one conclusion can fairly be drawn from the evidence and there is nothing about which the minds of reasonable men might differ, the issue becomes a question of law for the court. Rennolds’ Adm’x v. Waggener, 271 Ky. 300, 111 S.W.2d 647. Appellee cites at least three cases where this exception was applied. In Lewis v. Perkins, supra, the court found the passengers guilty of contributory negligence as a matter of law where it was proved that the driver had consumed eleven or more beers and evidence indicated that the driver seemed to be under the influence of intoxicants. In Kavanaugh v. Myers’ Adm’x, supra, the court held that the passenger was guilty of contributory negligence as a matter of law where the passenger not only participated in, but also urged and approved the actions of the driver, and all the evidence indicated that it was obvious the driver had been drinking to the extent that he could feel the effects thereof. We also sustained a directed verdict for defendant in Rennolds’ Adm’x v. Waggener, supra, where it was undisputed that the driver warned the passengers of his need of sleep and he cautioned them to talk to him to keep him awake. In that case, the passengers fell asleep and the driver ran off the road. We are of the opinion that the above-cited cases áre distinguishable from the instant case since in those cases the facts were undisputed that the passengers were well aware of the driver’s incompetent condition.

Here it was necessary that it be established that Ray was sufficiently drunk or asleep so as not to be capable of handling the automobile with due care, and that the decedents knew or should have known of this fact. Had this been done, a motion for a directed verdict would have been well taken. However, the evidence did not warrant such a conclusion as a matter of law. The witness who testified as to the condition of Ray stated that he did not appear to be under the influence of alcohol but that the three men carried on their conversations normally and naturally. There was no showing that the passengers knew that Ray was so incapacitated that he would not or could not properly operate his automobile. We are unwilling to hold as a matter of law that any time a passenger participates in drinking with the driver, regardless of the proof of extent of intoxication, the passenger is guilty of contributory negligence.

The judgment is reversed.

MONTGOMERY and HILL, JJ., dissenting.

MONTGOMERY, Judge

(dissenting).

The opinion of the majority of the court is that they are “unwilling to hold as a matter of law that any time a passenger participates in drinking with the driver, regardless of the proof of extent of intoxication, the passenger is guilty of contributory negligence.” In view of the facts of this case, I cannot agree with the majority opinion. The facts are that the driver of this car had been without sleep for approximately forty-eight hours, had consumed almost four beers, and was driving in excess of 100 miles per hour when his car struck the City Hall in Hazel, Kentucky. Under these circumstances it seems to me that the passengers, who had been with him for a period of approximately four hours prior to the accident, should have observed and should have known his condition, and, therefore, were contributorily negligent as a matter of law.

HILL, J., joins in this dissent.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Karl E. ROTHROCK.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.

      Charles S. Cassis, Frankfort, for complainant.
    Karl E. Rothrock, pro se.
   PER CURIAM.

On July 27, 1961, the respondent attorney, Karl E. Rothrock, pleaded guilty to an indictment charging him with five counts of forgery and was sentenced to three years’ confinement in the penitentiary. He served one year of the sentence before being placed on parole. On July 16, 1965, the Kentucky State Bar Association filed charges of unethical and unprofessional conduct against him.

Following proceedings pursuant to RCA 3.335, the Board of Governors of the Bar Association voted 8 to 3 to find respondent guilty of unethical conduct, and by another 8 to 3 vote recommended to this Court that he be permanently disbarred. Respondent now contends that the eight members who voted in favor of finding him guilty and of recommending he be disbarred did not constitute the majority required by RCA 3.420 for such action. That rule requires “a majority of all members of the Board then holding office” to agree before a finding of guilt and a proposed disciplinary action may be presented to this Court. However § 4 of the by-laws of the Kentucky State Bar Association provides in pertinent part:

“(a) The Board shall consist of two members of the bar from each Appellate District of the State, the President, and Chairman of the House.”

and § 7 provides that the Chairman of the House may vote “in all affairs of the Board except disciplinary matters” Hence it appears that while the Board consists of 16 members for the transaction of most business, it has only 15 voting members in disciplinary proceedings. RCA 3.420 which deals only with disciplinary proceedings necessarily refers only to voting members when it requires a majority of the members for action. Consequently eight votes were sufficient to permit the Board to act in this case.

Respondent next contends that since four years elapsed between his conviction and the filing of these charges he should not be disbarred. Disciplinary proceedings should be handled as promptly as practicable (RCA 3.190). While the delay in instituting this proceeding is regrettable it does not preclude the taking of disciplinary action.

Finally, respondent asks that we decline to disbar him because there is evidence that he is becoming a useful and valuable member of society. However, his premeditated acts in violation of this state’s law involve moral turpitude and tend to cast a shadow on the integrity of the members of our Bar. In re Shumate, Ky., 382 S.W.2d 405. We agree with the Board of Governors that it would be unwise to permit his remaining a member of this honorable Association.

The recommendation of the Board of Governors is confirmed and respondent Karl E. Rothrock is disbarred from further engaging in the practice of law in Kentucky.


author: CLAY, Commissioner.

text:
    Hazel D. OATTS, Appellant, v. CITY OF HOPKINSVILLE, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    W. E. Rogers, Jr., W. E. Rogers, III, Hopkinsville, for appellant.
    Robert Matthews, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., Frankfort, James P. Hanratty, Commonwealth’s Atty., J. Thomas Soyars, County Atty., Samuel A. Fletcher, City Pros., Hopkinsville, for appellees.
   CLAY, Commissioner.

Appellant was convicted in the Hopkins-ville Police Court on a misdemeanor charge of driving an automobile while intoxicated, and was fined $100. On the same day he paid the fine and costs. Thereafter he timely perfected an appeal to the Christian Circuit Court. The appeal was dismissed on the ground that appellant, by satisfying the judgment, had waived or otherwise lost his right of appeal. The correctness of this ruling is the question before us.

Prior to 1962 section 369 of the Criminal Code was controlling on this question. It specifically provided that no appeal could be taken from a judgment of a police court after it had been satisfied. That section of the Criminal Code, along with others, was repealed by the 1962 Legislature, and its provisions were not incorporated in a new statute or in our new Rules of Criminal Procedure. (This may have resulted from inadvertence.) It is appellant’s argument that the General Assembly has exclusive power to fix the right of appeal, and, in the absence of some statutory provision to the contrary, the defendant satisfying a judgment of conviction does not lose the right he originally had under KRS 23.032.

We are unwilling at this time to accept the argument that the matter is exclusively one of legislative cognizance. Other jurisdictions (apparently in the absence of a statutory provision) have taken the view that satisfaction of such a judgment bars an appeal on the grounds that there remains nothing on which the appellate court could act effectively, or the defendant would be unable to recover the fine paid, or the matter had become moot, or the voluntary payment constituted a waiver of the right to appeal. See State v. Pefley, 80 Idaho 525, 335 P.2d 340. Some texts state that this is the majority rule. See 24 C.J.S. Criminal Law § 1668; 18 A.L.R. 867; 74 A.L.R. 638. There is, however, ample authority for a different view. See cases cited in the texts above referred to.

We are not inclined to follow those cases that hold the defendant has waived his right of appeal. Waiver, of course, involves an intentional relinquishment of a right, and we cannot infer such intent when the defendant has exhibited the opposite inclination by taking and perfecting an appeal. See People v. Chamness, 109 Cal.App.Supp. 778, 288 P. 20. Obviously the fine was paid by defendant to preserve his liberty, and it is unrealistic to interpret such act as an intentional relinquishment of the right of appeal. See State v. Steel, Ohio App., 199 N.E.2d 24.

In the absence of a waiver, we do not find sufficient other reasons to justify denial of the right of appeal. In civil cases we have held that satisfaction of an adverse judgment does not impair such right. Moss v. Smith, Ky., 361 S.W.2d 511. In the interest of consistency, and in the absence of a statute or criminal rule foreclosing his right, it is our opinion that the satisfaction of a police court judgment does not affect the defendant’s right of appeal. The circuit court erred in entering the order of dismissal.

The judgment is reversed.


author: PALMORE, Chief Justice.

text:
    Isadore MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.

      John W. Coomes, New Castle, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., for appellee.
   PALMORE, Chief Justice.

The appellant, Isadore Martin, shot and killed one Augustine Redden in an argument arising in the course of a crap game. He was indicted for murder and upon trial was convicted of the lesser crime of involuntary manslaughter in the first degree and sentenced to three years’ imprisonment. KRS 435.022(1). He appeals, contending that (1) he was entitled to a directed verdict of acquittal and (2) the evidence did not justify instructions on involuntary manslaughter.

It was substantially uncontradicted that Redden, a much larger and more powerful man than Martin, had knocked Martin down with a blow of his fist and was in the process of continuing the assault as Martin rose from the floor, drew a pistol, and shot him twice. Redden was unarmed, and he had no warning before the shots were fired that Martin had a gun. Relying on self-defense, Martin testified as follows :

Q — “Why did you shoot Augustine?”
A — “To get him off me.”
Q — “To get him off you?”
A — “Yes, sir.”
Q — “What was he doing ?”
A — '“Beating me, choking me.”

It “sometimes happens that the evidence is all one way, and makes out a case of self-defense,” in which event the defendant is entitled to a directed verdict of acquittal. Minix v. Commonwealth, 266 Ky. 801, 100 S.W.2d 825 (1937); Taul v. Commonwealth, Ky., 249 S.W.2d 45 (1952); Richie v. Commonwealth, Ky., 242 S.W.2d 1000 (1951). We do not believe, however, that this is such an instance. In Minix, the defendant was in an enclosed room and in the direct line of a hail of bullets being fired through a door into the room when he fired the fatal shot in return. In this case Martin was not subject to the menace of a deadly weapon. In Taul the decedent was threatening to kill the defendant and continued to advance upon him in face of a pointed shotgun and an express warning that he would be shot if he did not desist. In this case Redden had no warning and, so far as the evidence reveals, never knew Martin had a gun. The facts of this and the Richie case differ even to a greater degree.

“The mere fact that a man says he killed another in self-defense, or describes events which show that to be the case, does not have to be accepted at face value where the jury may reasonably infer from his incredibility or the inherent improbability of his own testimony, or all the revealed circumstances, that one or more of the several factors that qualify or enter into the legal right of self-defense were missing. Among these are reasonableness of the defendant’s belief of imminent danger of great bodily injury or loss of life, the necessity or reasonable judgment of necessity to shoot to avert that danger, real or apparent, and the absence of aggression by the defendant.” Taul v. Commonwealth, Ky., 249 S.W.2d 45, 47-48 (1952).

“Great latitude must be allowed the jury in determining whether the accused acted in self-defense, and unless the evidence convincingly established that the killing was in self-defense, it cannot be said as a matter of law that the homicide was excusable.” Carson v. Commonwealth, Ky., 239 S.W.2d 262, 265 (1951).

It is our opinion that this is a case in which the evidence as a whole does not demand a factual conclusion that Martin was reasonably in fear of death or great bodily harm or that the apparent necessity of shooting Redden was reasonable.

The argument that there was no justification for an instruction or instructions on involuntary manslaughter is well taken. In the recent case of Shanks v. Commonwealth, Ky., 390 S.W.2d 888 (1965), under evidence more suggestive of accident vis-a-vis intentional killing than in this instance, it was held that the defendant was not entitled to such an instruction. “Where a deadly weapon was used, and where the accused admits that he was attempting to defend and protect himself with the deadly weapon, there is no room for argument that he did not intend the result of the action taken by him.” Id. at 890.

It makes no difference that in Shanks the instruction was not given whereas in this case it was, the respective postures of the appellants in the two cases being opposite. If a defendant is not entitled to a finding of accident, neither is the Commonwealth. There is nothing to justify it one way or the other. We ascribe notable significance to the fact that the jurors expressly chose to fix Martin’s punishment at three years under the KRS 435.022(1) instruction, whereas it could have been fixed at more, less, or the same under a conviction of voluntary manslaughter pursuant to the KRS 435.020 instruction. It means they deliberately rejected all of the theories of intentional homicide, which were the only theories on which the evidence justified a conviction. Necessarily, then, the error was prejudicial. It may not be said that the jurors could have given Martin the same term of years on the basis of a theory they could not bring themselves to believe, because that would have violated their oath as well as the defendant’s right to depend on their moral integrity.

The cause is reversed with directions for a new trial.


text:
    In re A. M. CARROLL.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.

      Kenny Grantz, Louisville, for respondent.
    Reford H. Coleman, Gen. Counsel, Frankfort, for complainant.
   PER CURIAM.

Respondent, A. M. Carroll, an attorney at the Louisville Bar, was convicted of a felony in the U. S. District Court for the Western District of Kentucky. The crime of which he was convicted was “ * * * buying, receiving and possessing goods of a value of $799.90, which had been stolen while moving and constituting part of an interstate shipment of freight, knowing said goods to have been stolen, in violation of Title 18, Section 659, U.S.C.” The U. S. Court imposed punishment of imprisonment for a year and a day and a fine of $1,000. The prison sentence was suspended and respondent was placed upon probation for a period of two years. Pursuant to RCA 3.335 the Board of Governors of the Kentucky State Bar Association initiated disciplinary action against respondent, seeking his disbarment.

A trial committee of the Bar Association conducted a hearing, at which the respondent was heard. At the conclusion of the hearing the committee recommended that respondent be suspended from the practice of law for a period of two years. This recommendation was adopted by the Board of Governors of the Bar Association. Respondent urges that we reject the recommendation of the Board of Governors, and insists that he was not guilty of the offense of which he was convicted.

Our ruling in In re Shumate, Ky., 382 S.W.2d 405, is dispositive of this case. Here as there the conviction of the felony forecloses inquiry as to respondent’s guilt or innocence of the felony charged; clearly the offense of which respondent stands convicted is one involving “moral turpitude.” It is plain, we think, that the officers of the Bar Association took into consideration the circumstances of the matter in mitigation of the punishment to be imposed.

The recommendation of the Board of Governors of the Kentucky Bar Association is confirmed, and respondent, A. M. Carroll is hereby suspended from practicing law in Kentucky for a period of two years.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky on relation of the ATTORNEY GENERAL of Kentucky, Honorable Robert Matthews, Appellant, v. Earl HESTER, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.
    Rehearing Denied Nov. 4, 1966.

      Glay E. Maggard, Munfordville, Ben Fowler, Dailey & Fowler, Frankfort, for appellant.
    Joseph R. Huddleston, Huddleston & Huddleston, Bowling Green, Robert T. Schneider, Horse Cave, for appellee.
   HILL, Judge.

This is an appeal from a judgment declining to oust appellee Earl Hester after his election to his fifth four-year term as a member of the Board of Education of Hart County. It is said he does not have the educational qualifications required by KRS 160.180(1) (c).

The case was prepared in the trial court by affidavits and depositions.

It is clear that in a proceeding of this nature the burden of showing one of the three educational requirements is upon the board member seeking to qualify. Cf. Commonwealth, by Funk v. Clark, 311 Ky. 710, 225 S.W.2d 118. The statute in question provides:

“Unless he has completed at least the eighth grade in the common schools as shown by the records of the school in which the eighth grade was completed or by affidavits of the teacher or teachers under whom the work was completed, or unless he has the equivalent of an eighth grade education as determined by an examination held under rules and regulations adopted by the State Board of Education * * (Emphasis added.)

The records of the State Department of Education do not list appellee as one of the graduates of the eighth grade during the period in question. It is not claimed by appellee that he took the examination provided for in the statute above quoted. Appellee contends he was graduated from the eighth grade and filed the affidavit of Mrs. Estella Lewis, an eighty-four-year-old lady, who stated in her affidavit that during the year 1922 she taught the eighth grade at Cub Run in the Hart County school system, that appellee Earl Hester was one of her students, and that he successfully completed the full eight grade course of study and was graduated from the eighth grade. Appellee also testified he completed the eighth grade. Other teachers in the Cub Run school, as well as school records, during the period in question, cast some doubt that Mrs. Lewis was a regular or certified teacher during this period. However, Dr. Sidney Samandle Director of Teacher Education and Certification of the State Department of Education, admitted “it is possible that there would be some persons who were certified on a local basis.”

Appellant introduced considerable testimony to the effect appellee did not complete the eighth grade. So, the material question of fact was in sharp conflict. The trial court resolved that fact in favor of appellee. We cannot say the conclusion was clearly erroneous. CR 52.01.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Thelma McCLELLAN, Appellant, v. Ernest FORD, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    James Levin, Hanish & Hanish, Louisville, for appellant.
    Thomas G. Mooney, Jones, Ewen, Mac-Kenzie & Peden, Louisville, for appellee.
   MONTGOMERY, Judge.

The question is whether Thelma McClellan was a fare-paying passenger when she suffered injuries while riding in the car of Ernest Ford in Indiana. Summary judgment was granted in favor of Ford from which the appeal is taken.

The Indiana Guest Statute, Acts 1937, Chapter 259, Section 1, Page 1229, being Section 47-1021, Burns’ 1952 Replacement, is as follows:

“The owner, operator, or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest, while being transported without payment therefor, in or upon such motor vehicle, resulting from the operation thereof, unless such injuries or death are cause by the wanton or wilful misconduct of such operator, owner, or person responsible for the operation of such motor vehicle.”

Appellant received her injuries when ap-pellee’s car collided with a truck in Jeffer-sonville, Indiana, on March 8, 1963. They had been living together as husband and wife since January 1963 in Clarksville, Indiana, in a house bought by appellee. They had planned to be married in May 1963 if appellee could obtain permission from his parole officer. While they were living together appellant had been doing the housework, including washing, ironing and cooking. Appellee had supported her by providing food, clothing, shelter, and entertainment.

Appellee was a barber. Appellant had done some babysitting and during the two months’ period she had earned $17, of which she had given appellee $5. He had spent $2 of this for gasoline four days before the accident.

On the morning of the accident appellee was taking appellant to the place where she was to babysit. The weather was clear, cold, and sunny. Prior to leaving home ap-pellee had cleaned an area of frost from his windshield “about as big as a windshield wiper would.” The accident occurred about three and one-half blocks from his house. As his car turned a corner it faced directly toward the sun. Appellee became blinded and his car collided with a truck, thereby causing appellant’s injuries. He was driving about twenty to twenty-five miles per hour.

Appellant relies on Allison v. Ely, Ind., 159 N.E.2d 717, a decision of the Indiana Appellate Court, which was reversed by the Indiana Supreme Court in Allison v. Ely, 241 Ind. 248, 170 N.E.2d 371. The elements which distinguish a guest riding without payment for such transportation from a passenger for hire and the authorities governing are fully discussed in the latter opinion. Therein it was said:

“The purchase of a few gallons of gasoline by appellee-Ely did not constitute ‘payment’ for his transportation from Oxford, Ohio, to his home in Illinois. The payment of $1.80 for gasoline and the alleged benefits listed by appellee-Ely did not directly compensate either the driver or the owner of the automobile in a substantial or material manner. ”

Recovery was denied the passenger because he was not a fare-paying passenger. The same result was reached in Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d 1342, wherein a guest statute with identical language was construed. See also Anno., 10 A.L.R.2d 1351. The result reached by the trial court here was correct.

There is no merit in the argument that appellee’s conduct was “willful” or “wanton.” Bedwell v. De Bolt, 221 Ind. 600, 50 N.E.2d 875; Brown v. Saucerman, 237 Ind. 598, 145 N.E.2d 898; Reynolds v. Langford, 241 Ind. 431, 172 N.E.2d 867. Equally lacking in merit is the contention that summary judgment should not have been granted because there was a material issue of fact. The facts were not in dispute and the trial court properly construed the Indiana statute as applying to the facts of the case.

Judgment affirmed.


author: CLAY, Commissioner. PALMORE, Chief Justice

text:
    Edward CARNES, Appellant, v COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.

      Sampson B. Knuckles, Barbourville, Ky., for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, Ky., for appellee.
   CLAY, Commissioner.

Appellant was convicted of possession of alcoholic beverages for sale in local option territory, a second offense, was fined $100 and given a jail sentence of 60 days.

The first contention is that the indictment was fatally defective in that it did not allege the conviction of the first offense as being prior to the second offense with which appellant was charged.. We do not find in the record any motion attacking the indictment. (See RCr 8.14, 8.16 and 8.18.) Assuming there was, the statement in the indictment, “second offense”, was sufficient to apprise the defendant under RCr 6.10(2) of the essential facts constituting the specific offense with which he was charged. See Brown v. Commonwealth, Ky., 378 S.W.2d 608. Under RCr 6.12 we find no prejudice of defendant’s substantial rights. (It might be observed that defendant’s punishment was within the limits fixed by statute for the principal offense charged.)

It is next contended that the evidence of defendant’s prior conviction was inadmissible because the warrant issued in that proceeding was defective. Of course defendant cannot succeed in a collateral attack on the judgment for a defect that would not render it void.

It is finally contended the Commonwealth’s attorney used improper language in his closing argument to the jury. These statements were made:

“You don’t find bootleggers around here feeling sorry for these little children that go hungry and starving. You never seen them coming to the Orphanage or come to the church, or come somewhere and say here’s some money, here’s some help, here’s some clothing. They’re the last ones to ever do any help.”
“I have been your Commonwealth’s Attorney four years and I truthfully say, ladies and gentlemen, that ninety per cent of our crime is a direct result of alcoholic beverage, liquor, beer, these broken homes, these divorces, this child desertion, the wrecks on the highway, robberies, you can trace about every one of them to liquor.”

There was no evidence in the record to support comments of this character. We have heretofore condemned similar remarks. Harrison v. Commonwealth, Ky., 368 S.W.2d 171. This type of argument is obviously designed to influence and inflame the jury. We cannot assume it did not have the prejudicial effect intended. The judgment must be reversed on this ground.

Appellant raises an academic question with respect to the “good behavior” bond he was required to execute under KRS 242.410, which we decline to decide.

The judgment is reversed.

PALMORE, C. J., and STEWART and HILL, JJ., dissenting.

PALMORE, Chief Justice

(dissenting).

I do not agree that the statements of the Commonwealth’s Attorney justify a reversal of this conviction. The first comment in substance was that bootleggers are bad citizens. They are. The second was that a very high percentage of crime, automobile accidents, and domestic troubles is attributable to the consumption of alcoholic beverages. That too is common knowledge. Under KRS 242.990(1) the jurors could have fixed the appellant’s punishment at a $200 fine and 120 days in jail. That they fixed it at exactly half ($100 and 60 days) would seem proof enough that they were not so chicken-headed as to be “inflamed” and “prejudiced” by these harmless remarks of the prosecutor.

STEWART and HILL, JJ., concur in this dissent.


author: WILLIAMS, Judge.

text:
    Ann FERGUSON, Appellant, v. J. BACON & SONS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.

      E. P. Sawyer, Louisville, for appellant.
    Fielden Woodward, Woodward, Hobson & Fulton, Louisville, for appellees.
   WILLIAMS, Judge.

Appellant Ann Ferguson fell and injured herself in a parking lot owned and operated by Bacon-Shively Shopping Center, Inc., one of the appellees. She was employed in a dress shop located at the Shopping Center and was on her way to work at the time of her injury. There had been patches of ice and snow for some time on the parking lot, and on the morning in question a light snow had fallen. She fell when she stepped on a patch of ice which was covered with snow.

Appellees moved for a directed verdict following the opening statement by appellant’s counsel. The Jefferson Circuit Court sustained the motion and this appeal results.

Appellant alleges that this case differs from the usual store-customer case in that it is a landlord-tenant type of case. She fails to make any further distinction, and we are of the opinion that in either case the individual using the property is an invitee.

It is generally held that a store owner is not liable to a customer who slips because of water, mud, et cetera, which is outside the store building if the area is properly constructed and not inherently dangerous. Curtis v. Traders National Bank, 314 Ky. 765, 237 S.W.2d 76; Fisher v. Hardesty, Ky., 252 S.W.2d 877; Weathers v. Morris’ Estate, Ky., 397 S.W.2d 770. The same reasoning would necessarily follow in a situation which involves a parking lot. The Supreme Court of Ohio has stated it well in Levine v. Hart Motors, Inc., Ohio App., 143 N.E.2d 602 (1955):

“ * * * In cases where there is no act on the part of the landlord creating a greater danger than was brought about by natural causes, the dangers that are created by the elements, such as forming of ice and the falling of snow, are universally known and unless the landlord has contracted to provide against these dangers, all persons on his property must assume the burden of protecting themselves therefrom.”

There was no showing in this case that the parking lot was not properly constructed, nor was it shown there was any special contract concerning its use. Appellant knew that the ice and snow were on the parking lot just as did the appellee. In fact she was being cautious in her trek across the parking lot and was apparently injured because the snow hid the patch of ice from her view.

The doctrine of res ipsa loquitur does not offer appellant any relief because the circumstances do not create a clear inference that the accident would not have happened if the appellee had not been negligent. It is apparent the appellee was not guilty of any negligence.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Sherman BOLES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    James B. Stewart, Charles T. Walters, Winchester, for appellant.
    James Chenault, Commonwealth’s Atty., Richmond, Robert Matthews, Atty. Gen., Frankfort, Joseph Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

The appellant, Sherman Boles, seeks reversal of the trial court’s order denying his RCr 11.42 motion to vacate sentence. He is now imprisoned and serving a sentence of life imprisonment without privilege of parole as a consequence of his violation of KRS 435.090; (rape of female over 12 years old). It is contended that the prosecutrix was under 12 years of age at the time of the alleged offense, so that the prosecution should have been had under KRS 435.080; (rape of female under 12 years old). The statute denouncing the offense against a female under 12 (KRS 435.080) provides only two possible punishments upon conviction, namely, a death sentence or imprisonment for life. The statute relating to the offense when committed upon a female over 12 provides possible punishments as follows: “ * * * by death, or by confinement in the penitentiary for life without privilege of parole, or by confinement in the penitentiary for life, or by confinement in the penitentiary for not less than ten years nor more than twenty years.”

The original conviction was had in this case on January 14, 1952. The trial record reflects that the appellant (to whom we shall refer as defendant) entered a plea of guilty to the indictment charging his violation of KRS 435.090 (dealing with the offense against females over 12 years of age), and specifically asked that the jury be instructed to fix his punishment at imprisonment for life without privilege of parole. The jury so fixed the penalty, and the judgment was entered in conformity with the jury’s verdict.

In this RCr 11.42 proceeding the defendant contends that the prosecutrix was under 12 years of age, hence the sentence of life imprisonment without privilege of parole was a penalty not authorized under the appropriate statute, KRS 435.080.

When the RCr 11.42 motion was filed, the defendant made five attacks upon the validity of the sentence, but on this appeal he presents only the question of the legality of the sentence in light of the assertion that the prosecutrix was under the age of 12. With commendable fairness the Commonwealth’s Attorney moved the trial court to appoint counsel for defendant and afford him an evidentiary hearing upon the motion to vacate. During the course of the hearing the Commonwealth’s Attorney conceded that the prosecutrix was under 12 years of age at the time of the offense.

The record discloses that defendant was arrested in the fall of 1951, charged with rape of a female under 12 years of age. An order was entered by the examining court binding defendant over to await the action of the grand jury on the same charge. On December 5, 1951, the grand jury returned two indictments against the defendant; one of them (No. 2428) charged his violation of KRS 435.080 (forcible rape of a female under 12); the other (No. 2429) charged his violation of KRS 435.090. The latter indictment did not make any specific reference to the age of the victim, but described her as an “infant female child.”

Three members of the Clark County bar were appointed to represent the defendant when he was arraigned upon the two indictments. It is evident that considerable animosity against the defendant was rampant in the community; the court-appointed counsel apprised the defendant of the grave danger of his receiving a death sentence. We think it is to be inferred from the record before us that the defendant was cognizant of the strong possibility of his being sentenced to death. Shortly after the two indictments were returned, and during a period when defendant’s attorneys were presenting motions for bail and continuance, a somewhat unique court entry appeared on the order book — a writing subscribed by the then Commonwealth’s Attorney advising the defendant “ * * * that the offense charged in Indictment No. 2428 and the offense charged in Indictment No. 2429 is one and the same offense, and the proof and witnesses on the trial of either would be the same as on the trial of the other.”

The next entries upon the circuit court’s orders included a motion by defendant’s attorneys that the court instruct the jury to find the defendant guilty and fix his punishment at imprisonment for life without privilege of parole, and a written guilty plea to Indictment No. 2429 by the defendant. The plea of guilty was placed “ * * on the condition that the prosecuting officers recommend to the jury that they find [defendant] guilty and fix his punishment at * * * life without privilege of parole.” The plea was signed by defendant, by mark, witnessed by a circuit court clerk deputy.

In accord with those entries, the court did instruct the jury as requested by defendant, and the jury returned its verdict fixing the penalty sought by the defendant. Thereupon an order was entered dismissing Indictment No. 2428 on motion of the prosecution. No appeal was perfected from the conviction.

It is admitted that the language of Indictment No. 2429, charging violation of KRS 435.090, properly charged a public offense. The defendant entered a guilty plea to that valid indictment; in doing so he confessed the allegations of the indictment. We have recently reaffirmed the rule which recognizes that “[T]he effect of a plea of guilty is to waive all defenses other than that the indictment charges no offense and to authorize the imposition of the penalty prescribed by law.” Commonwealth v. Watkins, Ky., 398 S.W.2d 698, 701, quoting from Tarrence v. Commonwealth, Ky., 265 S.W.2d 52. See 6 Ky. Dig. 1, Criminal Law, ⅜3273.

It is plain, we think, that had defendant gone to trial on Indictment No. 2429 (rape of female over 12) he could have placed in issue the age of the prosecutrix as it might affect the possible limits of the penalty to be imposed. If it were assumed that he had gone to trial upon a plea of not guilty and the evidence for the prosecution showed that the victim was under 12 and the court nevertheless submitted the penalties provided by KRS 435.090 (over 12) we hold that the error, if any, would be subject to review upon appeal — but such an error, if any, would not render the judgment void. The defendant’s recourse would have been to attack the conviction on appeal, on the ground that the punishment fixed by the verdict was not supported by the evidence. Our cases teach that an attack upon a verdict of conviction on the ground that it was not supported by the evidence is not one that can be presented by RCr 11.42. Johnson v. Commonwealth, Ky., 391 S.W.2d 365; Henry v. Commonwealth, Ky., 391 S.W.2d 355, and cases there cited.

It will be remembered that the defendant, in person and by counsel, specifically requested the court to instruct the jury to fix his punishment at imprisonment for life without privilege of parole. We have written that claimed errors in the instructions are not reviewable upon an RCr 11.42 motion. See King v. Commonwealth, Ky., 387 S.W.2d 582, 585; Langdon v. Thomas, Ky., 384 S.W.2d 508. It eludes us how we could reconcile those holdings with one granting the relief requested here in face of the defendant’s own request for the very instruction fixing the limit of penalty of which he now complains.

It is proper to note that the defendant testified that his court-appointed attorneys at the original trial explained to him the significance of the expression “imprisonment for life without privilege of parole.”

The judgment is affirmed.


text:
    Donald Edwin McBRAYER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.

      Robert S. Miller, Miller, Griffin & Marks, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Darryl T. Owens, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

Donald Edwin McBrayer was convicted of armed robbery and sentenced to imprisonment for life. He appeals and urges that there was an improper joinder of offenses in the indictment, the evidence is insufficient to support the verdict, and the instructions are erroneous.

Appellant and Wilbur G. Smith, a friend, both of Raceland, with other friends attended the state high school basketball tournament in Louisville. He and Smith, in separate cars, on their way home stopped at the Downtowner Motel in Lexington to stay overnight. They had dinner and made dates for the evening. Each man, with his date, spent the evening watching television in his room. They occupied adjoining rooms with connecting door.

At approximately 3 a. m., the motel was robbed by a single bandit, who was flashing a pistol and wearing a ski mask and a dark overcoat. The bandit approached the desk clerk from a side door which was twenty to twenty-five feet from the room of appellant. Smith checked out of the motel for appellant although appellant had walked through the lobby on the way to breakfast.

About five to six hundred dollars in checks payable to Downtowner Motel and two to four hundred dollars in cash were taken. A week or so after the robbery appellant cashed five of the checks, with some other checks, where he regularly did his banking business.

Warrants charging knowingly receiving stolen property and armed robbery were served on appellant. The indictment in two counts charged both offenses. Appellant urges that the offenses were improperly joined in violation of RCr 6.18, in that the two offenses were not “the same or similar offenses.” Appellant did not object to the joinder until the close of the Commonwealth’s testimony.

RCr 9.16 makes it mandatory for a defendant to raise the question of misjoinder before the jury is sworn. This was not done by appellant. His excuse that he did not know he would be prejudiced until evidence of both offenses was given in the trial availeth nought. Inasmuch as he permitted the trial to start without raising the question of misjoinder in the indictment, he will not be permitted to ambush the Commonwealth and will not be heard to complain later. He should have anticipated the very thing of which he now complains and availed himself of relief under RCr 9.16.

Further, if appellant considered the misjoinder as a defect in the indictment it was mandatory that he raise the objection before trial; otherwise, it would be considered as waived under RCr 8.18.

In support of his argument that the evidence is insufficient to sustain the verdict of armed robbery, appellant points to the testimony introduced in his behalf to the effect that he was in his room at the time of the robbery. This testimony was given by him and by his friend Smith. Their testimony was at variance as to the time when appellant left his room to take his visitor home and when he returned. The testimony in this respect was also in conflict with the testimony of Mary McMillan, Smith’s friend, on these points. Appellant introduced two witnesses who testified that there was no gun, ski mask, or dark overcoat in his luggage or car while he was in Louisville. Appellant also assails the inability of the holdup victim, the desk clerk, to identify him although the general description given fitted.

In explanation of his possession of the checks made payable to Downtowner Motel which he cashed, appellant said that on his way home he won them in a crap game with a group of men, unknown to him, at a rest stop on Interstate Highway 64. The game lasted about a half hour. He testified that he used his money to participate in the game and the unknown men used the motel checks. He noted that they were payable to Downtowner Motel and bore its endorsement. He said that he won several checks from several different men. When the game broke up appellant asked one of the men to endorse the checks.' The man did so, using the name “George Wilson” without giving any identification as to whether that was his name or not.

In reviewing the sufficiency of the evidence to sustain the verdict it should be pointed out that attention is directed to all of the evidence rather than to only the Commonwealth’s evidence. Appellant apparently concedes the correctness of the denial of the motion for a directed verdict made at the close of the Commonwealth’s testimony since this question is not raised on appeal. Counsel for appellant insists that appellant’s testimony about the crap game and cashing the checks must be true because no one in his right mind would do such a thing unless he be innocent. The inference to be drawn from such conduct was one to be drawn by the jury. Certainly possession of the checks cast a burden on the appellant to explain. The nature of his testimony in explanation and its improbability, when measured by well-known standards of human conduct and when taken with all of the circumstances in the case, may be looked to by the jury as the triers of facts in reaching a correct conclusion as to the truth in the matter. Bailey v. Commonwealth, 236 Ky. 126, 32 S.W.2d 725. A jury is justified in rejecting the testimony given in defense which is intrinsically improbable when considered in the light of rules of ordinary behavior. Kearney v. Commonwealth, Ky., 386 S.W.2d 953. The evidence is sufficient to support the verdict.

Appellant urges that the court erroneously failed to instruct the jury on reasonable doubt and on unanimity. Such objections were raised for the first time on appeal and are too late. Hartsock v. Commonwealth, Ky., 382 S.W.2d 861; Marcum v. Commonwealth, Ky., 398 S.W.2d 886. This case is identical in this respect with Rice v. Commonwealth, Ky., 387 S.W.2d 4. The comfort sought by appellant from

Marcum arises from a misunderstanding of the facts therein. It is too late to question the failure to instruct on reasonable doubt and on unanimity.

Judgment affirmed.


text:
    Fermon DURHAM, Administrator of the Estate of Larry W. Durham, Appellant, v. COMMONWEALTH of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.
    Charles Allen Williams, Paducah, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Frankfort, for appellees.
   HILL, Judge.

As administrator of the estate of his son, Larry W. Durham, appellant commenced this proceeding by authority of Chapter 44 of Kentucky Revised Statutes by filing before the Board of Claims a complaint asking damages against the Board of Regents of Murray State College and the Commonwealth of Kentucky, in which it was claimed the defendants negligently caused the death of his son Larry, a student at the college. The Board of Claims disallowed appellant’s claim. An appeal to circuit court re-suited in a judgment affirming the order of the Board of Claims. This appeal followed.

Around five o’clock on the afternoon of November 13, 1961, Larry W. Durham was discovered lying limp on the bottom of the deep end of the indoor swimming pool of the college. There were about thirty-five other people in and about the pool. Lifeguard James Hawley was on duty at the time. The first information the lifeguard had of the distress of Larry was when Robert Harry reported a “body on the bottom.” Robert dived into the pool and came up with Larry. The lifeguard testified he also went into the pool and assisted Harry and others in getting Larry onto the deck. In so doing, Larry’s head was allowed to “slap” against the side of the pool or deck. When Larry was turned over preparatory to the administration of artificial respiration, it was noticed that his ear and nose were bleeding. The Board of Claims found that the “probable cause of death” was “the blow on the head that the decedent received after being lifted out of the pool onto the tile or concrete deck.” Appellant admits in one breath that “the cause of death so far as this appeal is concerned” is limited to what occurred at the time Larry was removed from the pool. Yet, near the conclusion of appellant’s brief, it is stated: “We think that the failure on the part of the lifeguard to pay attention to his duties resulted in Durham being at the bottom of the pool in the first place * *

Although the Board of Claims’ judgment may technically limit the scope of our review to a determination of the question of negligence after or at the time of the removal of Larry from the pool, we are inclined to examine the facts to determine whether there was conclusive evidence of negligence on the part of the lifguard before Larry was removed from the water.

The lifeguard knew Larry was a poor swimmer accustomed to using the shallow end of the pool. He also saw Larry standing on the deck at the deep end talking with two girls. There is some evidence the lifeguard was engaged in a conversation with some bystanders about the time Harry reported the “body on the bottom” of the pool. But, there was no evidence of Larry or anyone else being reckless or engaging in “horseplay” or that anything else occurred before the discovery of Larry “on the bottom” sufficient to attract the attention of the lifeguard or any one of the thirty-odd other persons in the pool.

Notwithstanding the finding of the Board of Claims that the proximate cause of Larry’s death was the injury received while being removed from the water, it seems strange and mysterious that he could have slipped into the pool uninjured and unnoticed and not “come up” a time or two for “help.” There is no evidence of the manner in which Larry came to be in the pool or how long he remained there. There is no evidence of his breathing or having any pulse after he was removed from the water.

We quote from the testimony of the doctor who performed the autopsy:

“* * * and found a fracture line running across the temporal parietal bone for approximately two to two and a half inches. I turned my skull flap in this area making my skull burr below and above the fracture line and rectangle in the area with my saw in order to expose the membranes beneath. When I turned my front flap to square my rectangle and lifted the portion of bone I was thus removing free blood poured from this area. Free blood will not pour from a turned flap unless there is a recent hemorrhage area beneath. In fact, I would say there was enough blood that I had to take time out and wipe my glasses and, continuing the turning of my skull flap, we found that on the dural surface, that membrane covering the brain, between it and the skull was a large pool of blood from a ruptured vessel.”

It is difficult to understand how so much hemorrhaging could have occurred after removal from the water without evidence of heart beat or breathing. In any event, we conclude from the record before the Board of Claims that there was not sufficient evidence of negligence before removal from the pool to force a judgment allowing the claim.

Proceeding now to the hypothesis outlined by the Board of Claims to the effect that “probable cause of death was the blow on the head of decedent received after being lifted out of the pool onto the tile or concrete deck,” we examine the record to determine whether there was actionable negligence on the part of appellee or its employees.

The lifeguard on duty was duly certified by the American Red Cross and held a Red Cross Senior Lifesaving Badge. He was experienced. He joined in the removal of appellant’s decedent from the pool at the time or shortly before decedent was lifted out of the water. Four student swimmers were in the process of lifting decedent from the pool when the lifeguard joined them. Of these four student swimmers, three had previous lifesaving experience. Two of them had senior lifesaving ratings. One of them, Robert Harry, who first discovered decedent on the bottom of the pool, stated: “ * * * and we were sort of panicky and when we pulled him up each of us had a leg or hand or something and nobody had his head and his head was loose and just slapped the floor * *

Under circumstances similar to those found in this case, time is of the essence. Every man participating was rushing every effort to get decedent onto the deck so artificial respiration could be commenced.

Assuming there was some “panic” or even carelessness on the part of the four student swimmers undertaking the removal of decedent from the pool, when the lifeguard joined them it cannot be said that the failure of the lifeguard to quell the panic and initiate a better plan of removal constituted actionable negligence under the circumstances. The Board of Claims found there was no negligence.

Our conclusion is that “the evidence of the claim was not so clear-cut and con vincing that we could justifiably conclude that the Board acted erroneously as a mat ter of law” in disallowing the claim. See Lee v. International Harvester Company, Ky., 373 S.W.2d 418, 421 (1963).

The judgment is affirmed.


text:
    Roosevelt BALDWIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 7, 1966.

      Roosevelt Baldwin, pro se.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellee.
   PALMORE, Chief Justice.

Appellant is serving a sentence of life imprisonment pursuant to a conviction of armed robbery in the McCracken Circuit Court. He appeals from an order overruling an RCr 11.42 motion to vacate.

As the order was entered without a hearing, our review is directed to whether the motion stated grounds that are not conclusively refuted by the record and which, if proved, would establish a constitutional infirmity sufficient to invalidate the conviction.

The grounds stated in the motion were:

(1) Movant was “denied the compulsory process of obtaining witness in his favor.”

(2) He was defended by “inadequate and ineffective counsel” in that the attorney (a) failed to advise petitioner “of his constitutional rights,” (b) failed to object to “the many irregularities during the trial,” and (c) “went through the niceties and formalities of the trial and procedures, but failed to adequately defend this petitioner.”

(3) A witness for the prosecution was bribed by a promise of leniency in his own case.

(4) The jurors were permitted to separate during the trial, and were seen talking with the Commonwealth’s Attorney and to a deputy sheriff who was hostile to the movant.

(5) The court failed to give an accomplice instruction.

(6) Because of “the publicity given his apprehension via the news media, of radio and the Paducah Sun Democrat * * * it was impossible for him to receive a fair and impartial trial.”

We do not regard grounds (3), (4) and (5) as sufficient to render the conviction void. They are no more than grounds for reversal on appeal or new trial under RCr 10.02.

Ground (1) is not sufficient because it does not specify the facts. What witness? Where was the witness? Who denied the process and how did he deny it? If there is any substance to the allegation, the movant surely knows and is able to state this information. His failure to do so justifies the conclusion that the allegation is without substantial basis. Nevertheless, upon remand of this proceeding the motion can be amended.

Ground (2) also is insufficiently specific. Ringo v. Commonwealth, Ky., 391 S.W.2d 392 (1965); Lawson v. Commonwealth, Ky., 386 S.W.2d 734 (1965).

In view of Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. (1966), we are of the opinion that ground (6) is enough to warrant a hearing. Though it is stated generally, the subject matter does not lend itself to specificity of pleading, especially under the authorship of a person in confinement and without reputable counsel. We hardly expect that the movant will be able to prove the existence of publicity comparable with that in Estes and Sheppard, but neither this court nor the trial court can take judicial notice that it was not enough to have probable effect upon his trial.

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

MONTGOMERY, J., dissenting.


author: CALVERT, Chief Justice.

text:
    PETROLEUM ANCHOR EQUIPMENT, INC., Petitioner, v. William D. TYRA, Sr., et ux. Dorothy B. Tyra, Respondents.
    No. A-10996.
    Supreme Court of Texas.
    Oct. 5, 1966.
    Burford, Ryburn & Ford, Spencer C. Relyea, III, and John L. Estes, Dallas, for petitioner.

      Baker, Jordan, Shaw & Foreman, Dallas, Robert L. Netterville, Natchez, Miss., Forrest B. Jackson, Jackson, Miss., for respondents.
   CALVERT, Chief Justice.

The only question presented by the appeal in this case as it reaches this court is one of indispensable parties. The court of civil appeals on its own motion reversed a trial court judgment adverse to petitioner, Petroleum Anchor Equipment, Inc., and remanded the cause to the trial court because one Luther S. Fite was not a party to the suit. 392 S.W.2d 873. We reverse the judgment of the court of civil appeals and remand the cause to that court.

Petroleum Anchor Equipment, Inc., was the owner of an application for letters patent to an invented device used in anchoring pipelines in marshy terrain. Petroleum executed a bill of sale and assignment of the invention and the application for letters to Fite in the name of the corporation on February 14, 1963, and Fite executed an assignment to William D. Tyra, Sr., on March 4, 1963.

Petroleum, as plaintiff in the trial court, sought by its suit to cancel the bill of sale and assignments from it to Fite and from Fite to Tyra, to recover ownership and possession of the invention and the application, and to enjoin further transfer and assignment thereof by the defendants during pendency of the suit. Only Tyra and his wife were made defendants to the suit. Cancellation was sought by Petroleum on the ground that the sale and assignment from it to Fite was the result of a fraudulent conspiracy between its president and Fite, and that execution of the instrument was unauthorized by proper corporate authority and was therefore void. Following a jury trial of the issues made by the pleadings, the trial court rendered judgment directing that plaintiff take nothing and dissolving a temporary injunction, theretofore granted, which had restrained and enjoined the Tyras from selling and assigning the invention and letters during pendency of the suit. Petroleum appealed.

As heretofore indicated, neither party raised the question in the trial court or in the court of civil appeals that Fite was a jurisdictionally indispensable, a necessary, or even a proper party to the suit. Nevertheless, the court of civil appeals noted Fite’s absence as a party and held that he was a necessary and indispensable party in whose absence the trial court had no jurisdiction to proceed. The court thus treated the action of the trial court in proceeding to trial and judgment in the absence of Fite as fundamental error.

If Fite were truly an indispensable party to the suit, we would agree that the error in proceeding in his absence was fundamental error which could and should have been noticed by the court of civil appeals on its own motion. It was so held in Sharpe v. Landowners Oil Ass’n, 127 Tex. 147, 92 S.W.2d 435 (1936), and it must be so in the narrower concept of fundamental error announced in the opinions in Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947). Jurisdiction over indispensable parties to a suit is as essential to the court’s right and power to proceed to judgment as is jurisdiction of the subject matter. See Scott v. Graham, 156 Tex. 97, 101, 292 S.W.2d 324, 327 (1956). Compare McCauley v. Consol. Underwriters, 157 Tex. 475, 304 S.W.2d 265 (1957). However, we do not agree that Fite is an indispensable party to this suit.

Decision of any question of necessary parties to a suit should be made in light of the provisions of Rule 39, Texas Rules of Civil Procedure. The rule was adapted from Rule 19, Federal Rules of Civil Procedure. Since the adoption of rule 39, the courts of this state, following the lead of the federal judiciary, have been inclined to give too little attention to the wording of the rule and overriding attention and effect to prior judicial decisions, often ignoring the rule altogether.

Rule 39, titled “Necessary Joinder of Parties,” reads:

(a) Necessary joinder. Except as otherwise provided in these rules, persons having a joint interest shall be made parties and be joined as plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so, he may be made a defendant or, in proper cases, an involuntary plaintiff.
(b) Effect of failure to join. When persons who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court, the court shall order them made parties. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them can be acquired only by their consent or voluntary appearance; but the judgment rendered therein shall not affect the rights or liabilities of persons who are not parties.
(c) Names of omitted persons and reasons for non-joinder to be pleaded. In any pleading in which relief is asked, the pleader shall set forth the names, if known to him, of persons who ought to be parties, if complete relief is to be accorded between those already parties, but who are not joined, and shall state why they are omitted.

It is at once apparent that the “necessary” parties of which the rule speaks fall into two categories: (1) those who under paragraph (a) “shall be made parties,” and (2) those who under paragraph (b) “ought to be parties if complete relief is to be accorded between those already parties.” It is also at once apparent that “persons having a joint interest” within the meaning of paragraph (a), properly interpreted, are indispensable parties, but that those who simply ought to be joined if complete relief is to be accorded between those already parties are not indispensable. The rule expressly confers discretion upon trial courts to proceed without joinder of persons in the second category if jurisdiction over them can be acquired only by their consent or voluntary appearance. IT joinder of such persons is discretionary, their joinder cannot be essential to jurisdiction of a court to proceed to judgment.

The distinction between the two categories of necessary parties was recognized by the late Robert W. Stayton, Professor of Procedure in the University of Texas School of Law and member of the Supreme Court Advisory Committee and its subcommittee which drafted the rule. In a lecture entitled Important Developments Since 1940 in the Texas Law Relating To Parties and Actions, delivered within a few years after adoption of the rules, Professor Stayton said:

Now, all the authorities agree that, whether you take the old Federal rule, or whether you center upon the Texas rule, this rule 39 that you have before you embraces indispensable parties, and another class, which, for want of a better name, I will call insistible parties, that is to say parties who should be made, and, if another party in the suit insists upon it, must be made, in the proper way, unless jurisdiction cannot be gotten over them, in which event, this procedure is excused. The heads, then are ‘indispensable’ and ‘insistible’ parties. Really, there is no such word as the latter. I have invented it to give you the idea.

In 3 Moore’s Federal Practice, § 19.05 [2] (2d ed. 1964) persons in the second category are referred to as “conditionally necessary” parties.

Much has been written on the subject of necessary and indispensable parties by the courts of this State, both before and since adoption of the Texas Rules of Civil Procedure. No useful purpose would be served by undertaking a review of all of the cases cited in the opinion of the court of civil appeals and in the briefs of the parties. It is sufficient to say we have concluded that Fite may be an “insistible” or “conditionally necessary” party, but he is not an indispensable party to this suit; and, therefore, that it was not fundamental error to proceed to trial and judgment in his absence.

Fite has no “joint interest” in the invention or in the application for letters patent, either as assignee of Petroleum or as assignor of Tyra. He has long since disposed of his interest, and no judgment for injunctive relief or for damages is sought against him. Any judgment cancelling the bill of sale and assignment from Petroleum to him would not be res judicata as to him in any suit to which he may be a party. The Tyras do not contend otherwise. Their claim that Fite is an indispensable party is three-fold: (1) it is a settled rule of law that all parties to a written instrument are necessary parties to a suit to cancel it; (2) Fite’s rights will be prejudiced by the judgment in this case if the Tyras should lose it and later sue him to recover the money paid him; (3) similarly, the Tyras’ rights may be prejudiced if they should lose this case and should later sue Fite to recover the money paid him.

Most of the Texas cases cited for the proposition that all parties to a written instrument are necessary parties to a suit to cancel it antedate the Rules of Civil Procedure. Our latest decision directly on the question when the instrument sought to be cancelled is only a link in a chain of title is McDonald v. Alvis, 154 Tex. 570, 281 S.W.2d 330 (1955). In that case Al-vis and wife brought suit to cancel a mineral deed executed by them to G. O. Kelley who, during his lifetime, had conveyed the mineral interest to T. B. McDonald and Claude McDonald, Trustees. A trial court judgment for the McDonalds was reversed by the court of civil appeals on its own motion because the heirs of Kelley, among others, were not parties to the suit. The court of civil appeals held, in effect, that because Kelley was a party to the instrument sought to be cancelled, his heirs were indispensable parties to the suit. 276 S.W.2d 957. This court disagreed, and said (281 S.W.2d 330 at 331):

His [Kelley’s] unknown heirs are not necessary parties, for the reason that Kelley had conveyed all of his interest to the McDonalds and no relief of any kind or character was sought against the estate of Kelley or his unknown heirs.

Compare Hunt v. Ramsey, 162 Tex. 133, 345 S.W.2d 260 (1961), a bill of review proceeding to set aside a judgment awarding title to land, in which proceeding the mineral lessee under the judgment was made a party but those in its chain of title were not, and in which we held that those in the chain of title were not even “insistible” parties because they had “no present interest to protect.” In that case the trial court had sustained a plea in abatement and exceptions based on the absence of necessary parties and had dismissed the suit.

The principal cases relied upon for a holding that Fite is an indispensable party because he is a party to the written instruments sought to be cancelled are Royal Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313 (1960); Sharpe v. Landowners’ Oil Ass’n, 127 Tex. 147, 92 S.W.2d 435 (1936); Merritt v. Ryno, 268 S.W.2d 546 (Tex.Civ.App.—Waco 1954, no writ); and Backus Portable Steam Heater Co. v. Simonds, 2 App.D.C. 290 (D.C.Cir.1894). In Dennis we had no occasion to determine whether the absent persons were indispensable parties; the defendants had insisted by plea in abatement that the absent persons be joined, and we held that the trial court properly sustained the plea. Sharpe was decided before adoption of the Rules of Civil Procedure, Moreover, the absent persons held to be indispensable parties were shown to have a present interest under the instrument sought to be cancelled. Inasmuch as Merritt v. Ryno is a no writ history case, it would be persuasive at best; and the failure of the court deciding it to notice rule 39 and its possible application robs the decision of any persuasive force.

Simonds is rather closely analogous on the facts. It was decided according to a test of indispensability laid down by the Supreme Court of the United States in Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158 (1855), long before adoption of Federal Rule 19, a test which has since been liberalized in many respects to permit a court to proceed to adjudicate the rights of the parties in the suit before it. See 2 Barron & Holtzoff, Federal Practice and Procedure, § 512 (Rules ed. 1961); Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich.L.Rev. 327, 340 (1957). In Simonds the Steam Heater Company sued the Commissioner of Patents and Whipple and Baldwin. It alleged that it was the owner of letters patent on a heater and that Whipple, its former agent, fraudulently assigned the rights thereto to Baldwin. It sought cancellation of the assignment and an injunction against both to prevent the exercise of any rights under the fraudulent assignment. The court held that both were indispensable parties to the suit to cancel the assignment because of the allegation that it was fraudulent and void. It is apparent that Whipple was an indispensable party to the suit because injunctive relief was sought against him. Beyond a holding to that effect, the opinion would seem to be dicta.

The second reason, listed above, for insisting that Fite is an indispensable party, must refer to factual rather than legal prejudice since a judgment in this case canceling the assignment to Fite would not be res judicata of a subsequent suit by Tyra against Fite. Persons whose rights will be only factually prejudiced are sometimes held to be indispensable parties, but in such cases the interests of the absent parties should be more directly involved than are the interests of Fite in this suit. See 55 Mich.L.Rev. 327, supra; Note, 65 Harv.L.Rev. 1050 (1952). A similar argument was advanced and rejected in Chance v. Buxton, 163 F.2d 989 (5th Cir.), rehearing denied, 164 F.2d 341 (5th Cir. 1947). On subsequent appeal, see 170 F.2d 187, 189 (5th Cir. 1948). In Chance one grantee of land sued another grantee from a common grantor to recover the land and to cancel the deed to the second grantee. It was urged that the common grantor was a necessary party to the suit because of the possibility of liability of the grantor on the warranty in the deed sought to be cancelled. One of the grounds on which the argument was rejected was that the issue was a separate one and could be tried separately. Compare Hook v. Hook & Ackerman, Inc., 187 F.2d 52 (3d Cir. 1950).

The third listed reason furnishes a sound basis for holding that Fite is an “insistible” or a conditionally necessary party since a judgment in this case adverse to the Tyras might be followed by an unsuccessful suit by the Tyras against Fite. However, this is not a sound basis for holding that he is an indispensable party. The claim that the Tyras who are parties to the suit cannot be accorded complete relief because of the absence of Fite, should have been presented to the trial court by plea in abatement. The record shows that Fite is a resident of Mississippi and was therefore not subject to the jurisdiction of the court. The situation, if properly presented to the court, would have invoked the discretion of the court as expressly provided in paragraph (b), rule 39.

The ultimate relief sought by Petroleum is recovery of the application for letters patent and title to the invention from the Tyras who are the only persons having any claim of interest thereto. The good faith of Tyra in paying a valuable consideration for the assignment from Fite is not in question. The only basis asserted for Petroleum’s right to recover the application and title to the invention is that the bill of sale and assignment from its president to Fite was unauthorized by corporate authority and is void. Whether cancellation of that instrument is essential to the ultimate relief sought from the Tyras, or will afford complete relief, is not for us to decide. In any event, we hold that Fite, having and claiming no joint or present interest in the subject matter of the suit, is not an indispensable party.

The judgment of the court of civil appeals is reversed, and the cause is remanded to that court for further consideration.

      . Emphasis ours throughout unless otherwise indicated.

      . The lecture is on file at The School of Law, University of Texas, in a folder titled U. of T. Law Refresher.


text:
    E. L. BRISTOW et al., Petitioners, v. R. E. SELMAN et ux., Respondents.
    No. A-11521.
    Supreme Court of Texas.
    Oct. 5, 1966.
    Tom Steele, Linden, for petitioners.
    Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

On the authority of Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878, the Court of Civil Appeals has held that the one-eighth of the royalty reserved by Mrs. A. Mae Weeden et al. in their deed to Austin and Bristow must be carved out of the one-fourth mineral interest reserved by Austin and Bristow in their deed to R. E. Selman. 402 S.W.2d 520. We are in agreement with this holding, and the application for writ of error is Refused, No Reversible Error.

Petitioners argue that the contrary conclusion is indicated by our opinion in Pich v. Lankford, 157 Tex. 335, 302 S.W.2d 645, where it was said that the royalty interest adjudged to Mrs. Fuehr would ordinarily be carved proportionately from the two mineral ownerships. We were not concerned with' the Duhig rule in Pi'ch, and the statement upon which petitioners rely should be read in that light.


text:
    J. C. TURNER, Jr., Petitioner, v. TRAVELERS INSURANCE COMPANY et al., Respondents.
    No. A-11515.
    Supreme Court of Texas.
    Oct. 5, 1966.
    Rehearing Denied Nov. 2, 1966.
    Scarborough, Black, Tarpley & Scarborough, Abilene, for petitioner.
    John J. Watts and Clyde C. Bishop, Odessa, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

We approve the holding of the Court of Civil Appeals that under Section 8a of Art. 8306 and Section 38 of the Probate Code, Vernon’s Annotated Tex.Civ.Stat., a dependent child is entitled to receive the benefits provided by the Workmen’s Compensation Act to the exclusion of the mother of the deceased workman. For other reasons, the application for writ of error is refused with the notation, no reversible error. The opinion of the Court of Civil Appeals is reported in 401 S.W.2d 618.


author: WALKER, Justice.

text:
    S. D. BENDALIN, Petitioner, v. Robert R. DELGADO, Sr., Respondent.
    No. A-11231.
    Supreme Court of Texas.
    Oct. 5, 1966.

      Gerald B. Shifrin, El Paso, for petitioner.
    Lipscomb, Fisk & Cox, El Paso, for respondent.
   WALKER, Justice.

This began as a suit by Robert R. Delgado, Sr., respondent, for specific performance of an alleged oral contract whereby S. D. Bendalin, petitioner, agreed to purchase, at an unspecified price, respondent’s fifty shares of stock in Consumers Wholesale Lumber Company. After the verdict but before judgment, respondent filed a trial amendment which asked alternatively for specific performance or damages. In response to Special Issues Nos. 1 and 2, the jury found: (1) that petitioner did agree to purchase the stock; and (2) that the reasonable value of the stock on February 21, 1962, was $2,867.44. On the basis of these findings, the trial court rendered judgment in respondent’s favor for $2,867.44, and the Court of Civil Appeals affirmed. 397 S.W.2d 889.

On the principal questions presented for decision we hold: (1) that specific performance is not precluded by the fact that the parties did not fix a price for the stock; and (2) that there is no evidence to support the jury’s finding that the reasonable value of the stock on February 21, 1962, was $2,867.44. The judgments of the courts below are reversed, and the cause is remanded for a new trial.

Petitioner was a large stockholder, director and president of Consumers Wholesale Lumber Company. Respondent was employed as general manager of the corporation in 1960. At petitioner’s urging respondent decided in August of that year to buy fifty shares of Consumers stock owned by one McCutcheon, who had preceded respondent as general manager of the company. On September 28, 1960, petitioner and respondent drove together to the El Paso National Bank to consummate the purchase. Respondent testified that en route to the bank petitioner orally agreed to buy the fifty shares of stock from respondent if the latter’s employment with Consumers ever terminated. Nothing was said, however, about the price petitioner was to pay respondent for the stock. Respondent further testified that he would not have bought the stock from McCutcheon if petitioner had not agreed to purchase the same. Petitioner insists that he made no such agreement, but this conflict in the evidence was resolved by the jury in respondent’s favor. Respondent bought the fifty shares of stock from McCutcheon for $5,000.00 and continued to work for Consumers until February 21, 1962. At that time he terminated his employment and called upon petitioner to purchase the stock. Petitioner refused, and respondent instituted the present suit.

“A court cannot enforce a contract unless it can determine what it is. It is not enough that the parties think that they have made a contract; they must have expressed their intentions in a manner that is capable of understanding.” 1 Corbin, Contracts, 2nd ed. 1963, § 95. Thus, to be enforceable, a contract must be sufficiently certain to enable the court to determine the legal obligations of the parties thereto. Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940. It has often been said, moreover, that a contract which does not fix the price or consideration or provide an adequate way in which it can be fixed is too incomplete to be specifically enforceable. See 81 C.J.S. Specific Performance, § 35 and authorities there cited.

There are decisions which seem to support the general proposition that specific performance will not be granted unless the parties have expressly agreed upon the price or a means of determining the same. See Zimmerman v. Rhoads, 226 Pa. 174, 75 A. 207; Barnes v. Cole, 77 W.Va. 704, 88 S.E. 184; Conos v. Sullivan, 250 Mass. 376, 145 N.E. 529. Practically all of the cases in which this rule has been stated, however, were actions for specific performance of contracts for the sale or lease of land. The requirement that the price be stipulated by the parties appears to have arisen, in some instances at least, from the provisions of the statute of frauds. See King v. Stanley, 32 Cal.2d 584, 197 P.2d 321; R. F. Robinson Co. v. Drew, 83 N.H. 459, 144 A. 67; Sturm v. Dent, 141 Miss. 648, 107 So. 277; Wiley v. Robert, 31 Mo. 212. In Fogg v. Price, 145 Mass. 513, 14 N.E. 741, the bill was for specific performance of a lease covenant that “ ‘if the premises are for sale at any time, the lessee shall have the refusal of them.’ ” It was held that the action would not lie. After noting that the contract neither fixed the price nor provided the way it should be fixed, the court stated that the agreement, when considered as a contract to sell, did not satisfy the statute of frauds and apart from the statute was not such a contract as equity could specifically enforce. The opinion then continues:

“It may be said that the contract does mean that the lessor will deal with the lessee on the same terms as with any one else or at least will not discriminate against him; that the lessor has now fixed his price by a sale; and that, as the purchaser had notice of the contract, the defendants have removed the difficulties in the way of specific performance by their own conduct. It might be that the remedy would do substantial justice as against the lessor, but, in order to do it, a term would have to be added which is not in the contract. * * * The statute of frauds remains unsatisfied, notwithstanding what has happened.”

the failure of the parties to reach some understanding as to price often indicates that there has been no meeting of the minds. In other cases specific performance has been denied where the parties evidently intended to make a binding contract but overlooked some stipulation which could not fairly be supplied by implication. See American Mining Co. v. Himrod-Kimball Mines Co., 124 Colo. 186, 235 P.2d 804. Our decision in Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614, falls into that category. In still other cases the courts have been unwilling to fix the price when the contract provided that it should be determined in a particular manner. See Fry, Specific Performance, 6th ed. 1921, § 355 et seq.

Where the parties have done everything else necessary to make a binding agreement for the sale of goods or services, their failure to specify the price does not leave the contract so incomplete that it cannot be enforced. In such a case it will be presumed that a reasonable price was intended. See United States v. Swift & Co., 270 U.S. 124, 46 S.Ct. 308, 70 L.Ed. 497; Paschal v. Hart, Tex.Civ.App., 105 S.W.2d 337 (no writ); Burger v. Ray, Tex.Civ.App., 239 S.W. 257 (wr. dis.); 1 Williston, Law of Contracts, 3rd ed. 1957, § 41. As pointed out by Professor Prosser, “it seems fair to say that in most cases the parties clearly intend to make a binding agreement, with the price left open, and the court does violence to their intention, and injustice to one of them, if the agreement is defeated. Unless we are to assume that they are unreasonable men, probably the nearest approximation to their actual intention which the court can offer is a binding agreement at a reasonable price. In all cases where the price is left open, and a contrary intention does not clearly appear, such an interpretation is highly desirable.” Prosser, Open Price in Contracts for the Sale of Goods, 16 Minn.L.R. 733, 790. See also 1 Corbin on Contracts, 2nd ed. 1963, § 97.

Cases in which a reasonable price has thus been implied are ordinarily suits to recover damages and involve contracts for the sale of goods or the rendition of services. No sound reason has been suggested, however, for applying a different rule to an agreement for the sale of corporate stock, and it seems to us that a court of equity should be as ready and able to invoke the standard of reasonableness as a court of law. Petitioner insists that a greater degree of certainty is required in an action for specific performance than in a suit for damages. Statements to that effect can be found in the opinions of many courts, but the doctrine clearly is not a rule of universal application. See 12 Tex.Law Rev. 359. Determination of the contract price is essential to the granting of relief by way of either damages or specific performance. Where certainty-as to the price is concerned, therefore, a court of law must be as exacting as a court of equity.

The American Law Institute recognizes that specific performance will not be decreed unless the terms of the contract are so expressed that the court can determine with reasonable certainty the obligations of each party and the conditions under which performance is due, but it also points out that “the usual aids to interpretation will be availed of by the court, just as in the case of enforcement by other remedies. Expressions that at first appear incomplete or uncertain are often readily made clear and plain by the aid of common usage and reasonable implications of fact.” Restatement of the Law of Contracts, § 370 and Comment c thereunder. See also Pomeroy, Specific Performance of Contracts, 3rd ed. 1926, § 148. We accordingly hold that the absence of an express agreement as to price in the present case is not fatal to the maintenance of an action for specific performance. This disposes of petitioner’s first six points of error.

By his seventh and eighth points, petitioner asserts that there is no evidence to support the jury’s finding that the value of the stock was $2,867.44, or $57.35 per share, at the time respondent’s employment with Consumers terminated. Consumers was a small, closely held corporation, and there was no market for its stock. The par value of the stock was $100.00 per share, and respondent introduced a balance sheet showing that its book value on December 31, 1961, was $63.22 per share. Book value is entitled to little, if any, weight in determining the value of corporate stock, and many other factors must be taken into consideration. See Warner v. E. C. Warner Co., 226 Minn. 565, 33 N.W.2d 721; Marnik v. Northwestern Packing Co., 335 Ill.App. 568, 82 N.E.2d 195; Barsan v. Pioneer Savings & Loan Co., 163 Ohio St. 424, 127 N.E.2d 614; Kelley v. 74 and 76 West Tremont Ave. Corp., 24 Misc.2d 370, 198 N.Y.S.2d 721; O’Neal, Close Corporations § 7.24.

On the present record the book value of the Consumers stock constitutes nothing more than a scintilla of evidence as to its reasonable worth. The company had lost a substantial amount of money since its organization, and evidently was still losing money in 1962. Petitioner testified that its assets were not worth book value. He was the only witness who undertook to estimate the value of the stock, and according to his testimony it was worth only ten or fifteen cents on the dollar. His testimony in this respect could be disregarded by the trier of fact, but no attempt was made to prove the actual value of the assets or the rate of earnings or losses at or about the time respondent left the company’s employ. It does appear that on an undisclosed date in 1962 petitioner bought 100 shares of stock for $35.00 per share, and some time in 1963 he bought another 100 shares for ten cents per share. He claimed that the relatively high price paid in the earlier of these transactions was due to his sympathy for the seller, whose husband had died recently, and that the low price paid in the later transaction was attributable to the seller’s desire to take a tax loss. The foregoing is a summary of all the evidence tending to establish the value of the stock. In our opinion it is sufficient to warrant submission of Special Issue No. 2, but the record is devoid of any evidence to support the conclusion that the stock was worth as much as $57.35 per share as found by the jury.

Petitioner’s ninth and final point presents a question which probably will not arise on another trial. The judgments of the courts below are accordingly reversed, and the cause is remanded to the district court for a new trial.

      . Respondent’s motion to disregard the jury’s answers to a number of other issues was granted by the trial court, and there is no contention that this action was improper.