author: DIXON, Chief Justice.

text:
    Charles C. VITITOW et al., Appellants, v. Rufus RUPARD et al., Appellees.
    No. 16092.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 4, 1963.
    Rehearing Denied Feb. 1, 1963.

      Ralph R. Rash, Sulphur Springs, for appellants.
    Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellees.
   DIXON, Chief Justice.

Charles C. Vititow and eighteen other persons brought this trespass to try title suit as heirs of Dollie Vititow, deceased, claiming an undivided one-half interest in forty-six acres of land located in Dallas County, Texas. The defendants in the trial court, appellees here, were the four children of Jasper Rupard, Jr., deceased. Raymond Reeves, mortgagee of the land in controversy, is also a party.

On May 24, 1902 Annie E. Rupard, first wife of Jasper Rupard, Jr., died testate. No children had been born of this union. The property in controversy was part of the separate estate of Annie E. Rupard.

By her will, Annie E. Rupard, provided that her husband, Jasper Rupard, Jr., should have, hold and control and use the forty-six acre tract during the life time of her brother, Stephen Chenault, and that after Stephen’s death the tract should be divided between her two nieces, Dollie and Ora Vititow.

At the time of the death of Annie E. Rupard her brother, Stephen Chenault, was an inmate of a State Insane Asylum. He died in 1914. The rights granted to him under the will did not survive his death. Neither Stephen Chenault nor his heirs are involved in the present controversy.

Dollie Vititow, one of the nieces named in the will, died in March 1905. She had never married. Appellants claim a one-half interest in the land as the heirs-at-law of Dollie Vititow through her three brothers and a sister, all now also deceased.

Appellees, defendants in the trial court, claim title to the entire forty-six acres. They are the four children of Jasper Rupard, Jr., deceased and his second wife, also named Annie Rupard, and also now deceased.

Appellees base their claim of title on a number of conveyances from various heirs to their father. They also claim title by limitation.

A jury returned a verdict the substance and effect of which was to uphold appel-lees’ claim of title under the five and ten year statutes of limitations.

Appellants had filed a motion for instructed verdict; and after the return of the jury verdict filed motions for judgment non obstante veredicto and for judgment disregarding the jury’s answers to Special Issues Nos. 1 and 2. Appellants’ motions were overruled. Judgment was rendered in favor of appellees that appellants take nothing by their suit.

In two points appellants assert that (1) the undisputed evidence shows that appel-lees have never held possession under a deed to the interest of Dollie Vititow, and (2)the undisputed evidence shows a repeated recognition of a cotenancy relationship between the parties; and there is no evidence of a repudiation of the cotenancy, therefore, there is no basis for appellees’ claim of title by limitations.

It is our opinion that the trial court did not err in rendering judgment on the jury finding favorable to appellees in regard to the five year statute of limitations, Art. 5509, Vernon’s Ann.Civ.St. In 1904 Jasper Rupard, Jr., obtained a warranty deed to the land in dispute from F. E. Vititow, F. D. Vititow, C. C. Vititow and Oriana Vititow Kernes, joined by her husband, W. W. Kernes. Oriana Vititow Kernes was one and the same person as the Ora Vititow who was one of the two nieces named in the will of Annie E. Rupard, the first wife of Jasper Rupard, Jr.

The above deed conveyed to Jasper Rupard, Jr. “all our present right, title and interest,' and all the right, title and interest which we may hereafter acquire by inheritance or devise in and to all of the estate of our Uncle Stephen Chenault and our aunt A. E. Rupard, deceased.” (Emphasis ours.) The named grantors were the next of kin of Dollie Vititow, the other of the nieces named in the will of Annie E. Rupard. When Dollie Vititow died in 1905 they became her legal heirs. The deed they executed in 1904- contained the usual habendum clause and clause of warranty. The instrument had the effect of maturing the title in Jasper Rupard, Jr. to the grantors’ interest in the land in dispute upon the death of Stephen Chenault in 1914. Merriman v. Blalack, 57 Tex.Civ.App. 270, 122 S.W. 403; Kirby v. Pitchfork Land & Cattle Co., 61 Tex.Civ.App. 229, 129 S.W. 1151. See also Hale v. Hollon, 90 Tex. 427, 39 S.W. 287, 36 L.R.A. 75; Barre v. Daggett, 105 Tex. 572, 153 S.W. 120; Hammett v. Farrar, Tex.Civ.App., 8 S.W.2d 236; Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270.

The record discloses that Jasper Rupard, Jr. died June 18, 1930. The land in dispute was included in the inventory and appraisement of his estate. It was also included in the land set aside by the County Court as the homestead of his wife and minor children. The order of the County Court so designating and setting aside the homestead is sufficient as a muniment of title to support a claim under the five year statute of limitations. Fossett v. McMahan, 74 Tex. 546, 12 S.W. 324.

Appellants’ first point on appeal is overruled.

We are of the further opinion that regardless of the five year statute of limitations, there is ample evidence to support the jury’s verdict favorable to appellees’ claim of title under the ten year statute of limitations.

It is true, as appellants contend, that where a cotenancy exists limitation does not start to run in favor of one co-tenant against the other cotenant until there has been a clear repudiation of the cotenancy relationship by the cotenant claiming under limitation. But it is equally true that the repudiation and notice thereof may be shown by circumstantial as well as direct evidence, and may be constructive as well as actual. Mills v. Vinson, Tex.Civ.App., 342 S.W.2d 33; Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926; Payne v. Price, Tex.Civ.App., 203 S.W.2d 544; Seibert v. Markham, Tex.Civ.App., 116 S.W.2d 501; Mauritz v. Thatcher, Tex.Civ.App., 140 S.W.2d 303; Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137; Rae v. Baker, Tex.Civ.App., 38 S.W.2d 366. In connection with the submission of Special Issue No. 2, the Court gave the jury instructions correctly stating the law in regard to limitations with reference to cotenancies. No objections were made to these instructions.

In the case now before us the evidence shows that for a period of forty-four years from the death of Stephen Chenault in 1914 to the filing of this suit in 1958 — ■ appellees or their father and mother have had peaceful, adverse possession and complete dominion and control of the property in dispute. They have continuously kept the north twenty acres of the forty-six acre tract under fence and have had livestock on this portion of the land every year. They have continuously cultivated the south twenty-six acres. They have kept all proceeds derived from the land and have never accounted to any other persons, said proceeds at times including rent from tenants. They have paid all taxes on the land. They have not admitted or recognized ownership in any other person, but have openly claimed full title in themselves. The property was included in the inventory and appraisement of the estate of Jasper Rupard, Jr. deceased, in 1930 and was set aside as the homestead of his wife and children. The property was held in general repute in the neighborhood to be the property of the Rupards and their parents. There is no evidence that at any time during the forty-four years any of the appellants or their privies made any claim to the land or the proceeds from it until this suit was filed in 1958.

Under the circumstances the evidence supports the jury verdict that appel-lees had peaceable and adverse possession of the property against any claim of title by appellants since 1914. Appellants’ second point on appeal is overruled.

The judgment of the trial court is affirmed.

BATEMAN, J., not sitting.


source: Caselaw Access Project

author: HUGHES, Justice. HUGHES, Justice

license: Public Domain

text:
    The STATE of Texas et al., Appellants, v. Glenn L. KINGHAM, dba Kingham Conoco Station, Appellee.
    No. 10907.
    Court of Civil Appeals of Texas. Austin.
    Jan. 16, 1963.

      Will Wilson, Atty. Gen., Marvin Thomas, Asst. Atty. Gen., Austin, for appellants.
    Donald W. Callahan, Houston, for appel-lee.
   HUGHES, Justice.

This suit was brought by the State of Texas and its Attorney General, Honorable Will Wilson, on behalf of the Texas Employment Commission against Glenn L. Kingham, doing business as Kingham Con-oco Station in Harris County and, we quote from the State’s Petition, “this is a suit for taxes other than ad valorem.” Judgment for $305.94 delinquent taxes plus $56.00 accrued penalties and penalties subsequently accruing was sought.

The provisions of the Texas Unemployment Compensation Act under which ap-pellee’s tax liability is sought to be established are the following:

“Art. 5221b — 17(f) [Vernon’s Ann. Civ.St.]
“ ‘Employer’ means:
“(1) Any employing unit which for some portion of each of twenty (20) different days within the current or preceding calendar year, each day being in a different calendar week, whether or not such weeks are or were consecutive, has or had in employment four (4) or more individuals, but not necessarily simultaneously, (irrespective of whether the same individuals are or were employed in each such day);
“(2) Any individual or employing unit which acquired the organization, trade, or business, or substantially all of the assets thereof, of another which at the time of such acquisition was an employer subject to this Act.”

The record discloses that Billy Robertson operated Robertson’s Conoco Service Station at 5842 South Park Boulevard in Houston for a period of time up to and including December 19, 1957. During such period Robertson was an employer subject to tax under the Unemployment Compensation Act. On December 20, 1957, Kingham signed a lease agreement with Continental Oil Company for the lease of the building located at 5842 South Park Boulevard and for the lease of four (4)' gasoline tanks, four (4) gasoline pumps, and many other items of equipment.

On the same date Kingham also leased from Continental a triangle sign, an imprinter, and purchased from it quantities of oil and gas.

On or before December 20, 1957, King-ham purchased from Robertson, his predecessor, 2200 gallons of gasoline, some motor oil, wax polish, a grease gun, tire changing equipment, cash register and battery charger. Kingham paid Robertson $3000.-00 for these items, the manner of so doing being as follows: Conoco, by way of extending credit, gave Kingham a check for $3000.00, which he endorsed to Robertson, who in turn endorsed it back to Conoco for the reason that Robertson was indebted to Conoco for more than the amount of the check.

Kingham opened his service station at the Robertson site on December 20, 1957. He employed two of Robertson’s employees. He did not use Robertson’s name in his business. He did not purchase from Robertson any of his accounts receivable. He paid him nothing for good will, and he did not obtain from Robertson a list of his customers.

Under these facts, the Trial Court found, the trial being non-jury, that Kingham did not acquire “the organization, trade, or business, or substantially all the assets thereof” of the Robertson service station, and legally concluded that he was not liable for the tax sought to be imposed.

We agree with the Trial Court and affirm its judgment.

Conceding, as we do, that appellee purchased from Robertson the items involved in the $3000.00 check transaction, we hold that they do not constitute an “organization”, a “trade” or “business” or “substantially all of the assets” of an organization, trade or business.

We will disregard the term “organization” in our discussion because we doubt that a service station is an organization. It undoubtedly is a “trade” or “business”. Of what does it consist? It seems to us that the one essential of a service station business is a service station. Appellee did not acquire the service station or the right to use it from Robertson. This right he obtained from Conoco who owned the station. Without the service station, its tanks, pumps and other equipment, the gasoline, oil, wax, grease gun, tire changing equipment, cash register and battery charger purchased by appellee could not conceivably .be called a service station trade or business, or substantially all the assets of such a trade or business.

Appellants do not contend appellee was a successor to Conoco in the service station trade or business and we do not, for that reason, discuss it.

The judgment of the Trial Court is affirmed.

Affirmed.

PHILLIPS, J., not sitting.

HUGHES, Justice

(concurring).

Believing that the nature of the suit was as described by the State in its pleading, I concurred in the original opinion by this Court. 353 S.W.2d 915. I dissented on re-hearing only because I learned from an unreported opinion that the Supreme Court had passed on the question of the Trial Courts jurisdiction. Neither this opinion nor the only other case to be found on the subject, Lally v. State, Tex.Civ.App., 138 S.W.2d 1111, was cited by the Supreme Court when it reversed this Court, 361 S. W.2d 191.

I believe when this case was before this Court, and I believe now, that the nature of this suit is as described by the State, “a suit for taxes.”

The problem presented is to reconcile the two constitutional provisions involved, each being peremptory in nature. Section 16 of Art. V of our constitution, Vernon’s Ann. St. gives the County Courts “exclusive” jurisdiction of suits where the amount in controversy exceeds $200.00 and does not exceed $500.00.

Sec. 8 of this same Article gives to the District Courts original jurisdiction of suits by the State to recover penalties. How are those constitutional provisions to be reconciled? The problem is not new. It has been repeatedly resolved by application of the rule well stated by Judge Powell for the Commission of Appeals in Pierce v. Foreign Mission Board, 235 S.W. 552, in these words:

“ * * * the primary and essential nature of a suit, and not its incidental character, determines the jurisdiction of the courts relative to it.”

See Zamora v. Gonzalez, 128 S.W.2d 166, San Antonio Civil Appeals, writ ref.; Smith v. Armes, 208 S.W.2d 409, and Hudson v. Nowell and Son, 8 S.W.2d 778, both by the Fort Worth Court of Civil Appeals.

No one could gainsay the fact that this is primarily a suit for the collection of delinquent taxes. The penalties sought are derivative only. They flow from and their exaction are wholly dependent upon the tax delinquency.

The cases cited by the Supreme Court on this question are of no help in determining it. There is no question here as to what is or what is not a penalty, as in Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 79 A.L.R. 983. The $56.00 sued for here is clearly a penalty imposed for failure to pay taxes. The other case cited, Aulanier v. Governor, 1 Tex. 653, was wholly a suit for recovery of a penalty; no other recovery was sought. Its nature could not be doubtful.

Under the opinion of the Supreme Court, or its implications, suit by the State for $499.00 taxes and a 1 cent penalty must be brought in the District Court despite the constitutional provision giving exclusive jurisdiction to the County Court of the $499.00 claim for taxes. This permits a very small tail to wag a very large dog.

The Supreme Court in remanding the case to this Court states:

“The case of Jones v. Williams, supra, decides that the penalty and interest added to delinquent taxes is not an incident of the taxes, but is a separate and distinct item provided by the Legislature as a punishment for failure to pay taxes, prior to delinquency, and therefore a ‘penalty’ within the meaning of the Constitution. It follows that this suit was properly brought in the district court of Travis County, Texas.”

Does this mean that this Court should only render appropriate judgment as to the penalty sought and not as to the claim for taxes? The Court has said this is a suit for a penalty. This is conceded. It is also a suit for taxes, a suit without the jurisdiction of the Trial Court. As to this phase of the case the Supreme Court has given us no instructions. As will appear, however, from the Court’s opinion herein, we have decided all issues presented on their merits.

This is nominally a concurring opinion; actually, it is more in the nature of a petition for rehearing to the Supreme Court, none having been previously made to it. As such, it is not filed on behalf of any litigant, nor on behalf of this Court. It is filed only in the interest of continued stability in sound constitutional construction.

PHILLIPS, J., not sitting.


text:
    GABLE ELECTRIC SERVICE, INC., Appellant, v. Warren B. MIMS, Sr., d/b/a Texas Tool Traders, Appellee.
    No. 16096.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 18, 1963.

      Bradford, Pritchard & Ashley, W. A. Pritchard, Dallas, for appellant.
    Eades & Eades, Eric Eades, Jr., Dallas, for appellee.
   DIXON, Chief Justice.

Appellant Gable Electric Service, Inc., brought this suit against appellee Warren B. Mims, Sr., doing business as Texas Tool Traders for damages for the alleged conversion by appellee of three large transformers.

It is conceded that the City of Dallas is the common source of title to the three transformers. They are valued at about $5,250.

The trial was to the court without a jury. After appellant as plaintiff had finished the presentation of its evidence, appellee, defendant, made a motion for judgment in his favor. The motion was sustained. Judgment was accordingly rendered that appellant take nothing from appellee by its suit.

Appellant’s cause of action is based on a written contract. In its brief on appeal appellant asserts that “we think it a logical inference that Appellant was verbally awarded the contract by the City of Dallas on or about April 27, 1959, hence it acquired title to said transformers on said occasion.” However appellant’s pleadings do not support the above assertion. We quote from the pleadings: * * * “Plaintiff would show the Court that on or about April 27, 1959, plaintiff entered into a written contract with the City of Dallas which provided, among other things, that plaintiff was to remove four power poles carrying 13,200 volt primaries, with all cross-arms, insulators, conductors and three 5,000 KVA transformers, 13,200 volts to 480 volts. * * * That by virtue of said contract, plaintiff became the lawful owner of said transformers and plaintiff promptly thereafter removed said power poles and arranged for the equipment to remove said transformers, which were extremely heavy. * * * ” (Emphasis ours).

The alleged written contract of April 27, 1959 is not an instrument by virtue of which appellant became the lawful owner of the transformers. It is denominated “Request for Bids” and is simply a written notice that bids would be received by the City of Dallas “To remove 4 power poles carrying 13,200 volt primaries w/all cross-Arms, Insulators, Conductors and 3 — 5,000 KVA Transformers, 13,200 volts to 480 volts.” The notice further states: “Work will be performed after the D. P. & L. Co. has disconnected and removed their feeders and metering equipment from the first pole.” This Request for Bids says nothing about title to the transformers. It does not remotely resemble a bill of sale.

The testimony shows that appellant in its bid offered to do the work for $124.00.

Thereafter on May 20, 1959 the City of Dallas issued a written document denominated a “Purchase Order” signed by J. W. Dorff, City Purchasing Agent. This document provided for the removal by Gable Electric Service, Inc., of the material described in the Request for Bids for a consideration of $124. In describing the work to be done it repeats exactly the language used in the written Request for Bids of April 27, 1959. Stamped on the face of the instrument are the words “Confirmation Only Do Not Duplicate.” It does not mention title to the transformers or any of the other materials described. It is not a bill of sale.

The City Purchasing Agent, J. W. Dorff, was presented as a witness in behalf of appellant, but his testimony can be of little comfort to appellant in its claim of title. Dorff was asked whether he could look at the written Request for Bids of April 27, 1959, Exhibit Number 7, and tell when the City of Dallas entered into an agreement with appellant. We quote pertinent parts of his testimony:

“Q , And this Plaintiff’s Exhibit Number 7, is that an instrument that originated in your office?
“A Yes, sir.
“Q Did your office submit this to several contractors for bids?
“A Yes, sir.
“Q Did you subsequently enter into any sort of an agreement with anyone pertaining to this removal work described on this exhibit?
“A Yes, sir.
“Q Who, sir, with whom did yotr enter into such an agreement?
“A Gable Electric Service.
“Q Now Plaintiff’s Exhibit 7, does that describe the work which Gable Electric Service was to perform?
“A Yes, sir.
“Q Does that make any provision for the disposition of three transformers ?
“A Well, we say to remove them, that’s what we asked them to do.
“Q Now, while — first, let me ask you this: Can you look at Plaintiff’s Exhibit 7 and tell us when you entered into an agreement with Gable Electric Company to do the work that is described there?
“A No, sir, you can’t tell from this document, we opened bids on 4— 27-59, now we would normally place a purchase order to follow through on this.
“Q Now do you have any recollection about announcing to the successful bidder on this contract, did you do it by purchase order or some other manner ?
“A I am sure that we did it by purchase order, I am quite sure we did it that way, we have to issue a purchase order to consummate this transaction.
“Q All right, sir, I hand you what has been marked for identification as Plaintiff’s Exhibit Number 8, do you recognize this instrument, sir?
“A Yes, sir, this is the purchase order covering this bid here to Gable Electric, well, this is a purchase order, that’s it.
“Q All right, so Plaintiff’s Exhibit 8, then, is the purchase order that you issued to Gable Electric Company based on the work they bid on on plaintiff’s Exhibit 7, is that right ?
“A Yes, sir.
MR. PRITCHARD: We offer into evidence Plaintiff’s Exhibits Numbers 7 and 8, Your Honor. ⅜ ⅜ ⅜
“Q Now, Mr. Dorff, looking at Plaintiff’s Exhibit Number 8, does that refresh your memory then as to what time you awarded this contract to Gable Electric Company?
“A Well, I can only tell you by tying this up with other things similar to this. * * *
THE COURT: Does it shorn the date?
MR. PRITCHARD: It shows the date, and I asked him if it refreshes his memory as to the time they actually awarded the contract to Gable Electric.
THE COURT: Well, is the date on the purchase order; wouldn’t it speak for itself ?
MR. PRITCHARD: The instrument speaks for itself, Your Honor, hut I would like to let the witness answer the question.
THE COURT: Well, if it speaks for itself, he doesn’t need to answer it. (Emphasis ours).
MR. PRITCHARD: That’s correct, it’s on there. * * *”

The date shown on Exhibit No. 8, the Purchase Order, is May 20, 1959.

The evidence shows that appellee, Mims, claimed title to the transformers by purchase from Johnny Morrow Wrecking Company. The latter company claimed title from the City of Dallas by virtue of a written contract providing for the sale and removal of six buildings at Love Field, the Municipal Airport of the City of Dallas. Three of the buildings were airplane hangars formerly used by Braniff Airways. This contract expressly states: “That the removal covered herein shall be considered as removal of property owned by the Contractors * * Appellee claims that the transformers were part of the buildings described in the contract.

OPINION

In its first point on appeal appellant asserts that the trial court erred in excluding the testimony of Dorff when he would have testified that the City intended that appellant Gable Electric Company should have the transformers. Appellee objected on the ground that such testimony amounted to an attempt to vary the terms of a written contract. The court in its discussion of the matter stated that the proffered testimony was hearsay. Appellant insists it was not hearsay. Be that as it may, we think appellee’s objection was good and the testimony was properly excluded on the ground that it would vary -the terms of a written instrument. The two written instruments, the Request for Bids of April 27, 1959, pled and introduced in evidence by appellant, and the Purchase Order of May 20, 1959, introduced into evidence by appellant, are not ambiguous. Dorff properly was not allowed to testify that the legal effect of the writings was different from that embodied in the writings themselves. Kingsbery v. Phillips Petroleum Company, Tex.Civ.App., 315 S.W.2d 561, 572; Stitz v. National Producing & Refining Co., Tex.Civ.App., 247 S.W. 657; Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004; American Ry. Express Co. v. Patterson Produce Co., Tex.Com.App., 12 S.W.2d 158; Fowler v. Stoneum, 11 Tex. 478; 14 Tex.Jur.2d, 71. Appellant’s first point is overruled.

In its second point on appeal appellant says it was error for the court to render judgment for appellee since appellant had made out a prima facie case of conversion. As we have said, the trial court sustained appellee’s motion for judgment at the conclusion of the testimony offered in behalf of appellant.

There is no merit in appellant’s second point. The undisputed testimony shows that on April 27, 1959, the City of Dallas still had title to and possession of the transformers. Appellant failed to show any title by virtue of .the written Request for Bids of April 27, 1959, which it pled as the basis for its title. It also failed to show any title based on the Purchase Order of May 20, 1959. Appellee’s predecessor in claim of title took possession of the transformers on May 10, 1959. It is inescapable that the transformers on that date were still owned by the City of Dallas, not by appellant. In order for appellant to maintain an action for conversion it was necessary for him to allege and prove that at the time of the conversion he had some right or title to the chattels claimed to have been converted. O’Connor v. Manning, Tex.Civ.App., 255 S.W.2d 277; Employers Casualty Co. v. Rockwall County, 120 Tex. 441, 38 S.W.2d 1098; Oliver Chilled Plow Works v. Askey, Tex.Civ.App., 22 S.W.2d 743. Even if we were to hold that the Purchase Order of May 20, 1959 undertook to pass title to appellant, (we do not so hold) it would not avail appellant, for the alleged conversion took place on May 10, 1959.

Appellant’s second point is overruled.

In its third point on appeal appellant contends that it was error for the trial court to enter Findings of Fact and Conclusions of Law.

It has been held as appellant points out, that “in the trial of a case before the court the granting of a motion for judgment urged at the conclusion of the plaintiff’s evidence is the legal equivalent of granting a motion for an instructed verdict where the trial is before a jury.” See Rhinetubes, Inc., v. Norddeutscher Lloyd, Tex.Civ.App., 335 S.W.2d 269, 274, and cases there cited.

We do not disagree with the above statement of the law, but it will not avail appellant here. It was appellant who twice requested that the trial court file findings and conclusions. Finally the court did so at appellant’s behest. If it was error it was invited error. Ingram v. Ingram, Tex.Civ.App., 249 S.W.2d 86; Reynolds v. McMan Oil & Gas Co., Tex.Com.App., 11 S.W.2d 778. Moreover if we consider the record before us in a light most favorable to appellant we think the court properly sustained appellee’s motion for judgment. The findings and conclusions filed by the court are immaterial and need not be considered by us in arriving at our decision. Appellant’s third point on appeal is overruled.

Appellant’s remaining points, numbers 4 to 17, inclusive, are presented in the alternative. They attack one by one the court’s findings and conclusions. Since we have held that said findings and conclusions are immaterial and need not be considered, we shall not pass on appellant’s points 4 to 17, inclusive.

The judgment of the trial court is affirmed.

Affirmed.


text:
    C. H. LANGDEAU, Receiver of Midwestern Security Life Insurance Company of Texas, Appellant, v. Howard W. M. JONES et ux., Appellees.
    No. 16094.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 11, 1963.
    Cecil C. Rotsch, John R. Grace and A. M. LeCroix, Austin, for appellant.
    Paul K. Hyde, Dallas, for appellees.
   DIXON, Chief Justice.

C. H. Langdeau, Receiver of Midwestern Security Life Insurance Company, has appealed from an order overruling a plea of privilege. Langdeau, Receiver, is one of two defendants named in a suit pending in Dallas County. He was appointed Receiver by a Travis County District Court pursuant to Art. 21.28, Insurance Code, V.A.T.S. He seeks to have the cause of action as to him transferred to Travis County for trial.

Appellees Howard W. M. Jones and wife Aleñe Jones were plaintiffs in the trial court. The transcript does not contain a copy of their original petition. Elsewhere in the record it is stated that the original petition was filed March 23, 1960, and that Midwestern Security Life Insurance Company was originally the only defendant. In their brief appellees say they sued Midwestern for damages for breach of contract, defamation of character and business reputation, fraud, deceit and unlawful conduct.

Thereafter while said suit was pending in Dallas County, delinquency proceedings against Midwestern Security Life Insurance Company were instituted in the 53rd District Court of Travis County as provided by Art. 21.28, Insurance Code. On October 28, 1960, by order of said Court Midwestern was placed in permanent receivership. Appellant Langdeau, as statutory liquidator, was appointed receiver.

Subsequently on December 6, 1960, appel-lees Jones filed their First Amended Original Petition wherein for the first time Langdeau, Receiver, was named as a party defendant along with Midwestern.

On January 6, 1961, Langdeau, Receiver, filed his plea of privilege, which is in statutory form and in addition expressly alleges that venue lies in Travis County under the provisions of Art. 21.28, Insurance Code.

In their controverting affidavit appellees assert that venue properly lies in Dallas County under Subd. 23 of Art. 1995, Vernon’s Ann. Civ. St. In their argument in their brief they seek to invoke both Subds. 23 and 4 of the Statute.

On April 6, 1961, a hearing was held on appellant’s plea of privilege. In connection with this hearing the attorneys for appellant and appellees signed a written agreement wherein it is stated that plaintiffs (appellees here) had no evidence to tender or offer except their sworn reply to pleas in abatement and to the jurisdiction previously filed by defendant (appellant here). This agreed statement also stated that “the hearing on the plea of privilege was strictly a matter of legal construction of the insurance code, * * The court took the matter under advisement and on January 29, 1962, overruled appellant’s plea of privilege.

Appellees’ sworn answer to the pleas in abatement and to the jurisdiction, above referred to, alleges that appellees’ suit against Midwestern was instituted in Dallas County, March 23, 1960, prior to the time the delinquency proceedings against Midwestern were instituted in Travis County; that on December 8, 1960, Langdeau, Receiver, was made a party defendant in the Dallas County suit; and that Sec. 4(d) of Art. 21.28, Insurance Code, is applicable to this case, not Secs. 3(a) and (h) of the Statute.

Sec. 4(d) of the Code provides that in pending lawsuits no order or judgment entered by any court after the commencement of delinquency proceedings shall be binding on the receiver unless the receiver shall have been made a party to such suit.

Secs. 3(a) and (h) refer to the filing of claims with the receiver and the receiver’s action thereon.

Appellant Langdeau, Receiver, contends that venue in this case as to him lies in Travis County under the provisions of Secs. 4(e) and (f) of Art. 21.28, Insurance Code. These sections are as follows:

“(e) * * * the provisions of Articles 2310 and 2311 of the Revised Civil Statutes of Texas of 1925, as amended, shall not apply to insolvent insurance companies being administered under this Article.
“(f) New Lawsuits. The court of competent jurisdiction to the county in which the delinquency proceedings are pending under this Article shall have venue to hear and determine all action or proceedings instituted after the commencement of delinquency proceedings by or against the insurer or receiver.”

We agree with appellant. We have found no case exactly in point. But the opinions of our Supreme Court in a number of cases seem to point the way here. In State Board of Insurance v. Betts (1958), 158 Tex. 612, 315 S.W.2d 279, and State Board of Insurance, et al. v. Betts (1958), 158 Tex. 624, 315 S.W.2d 286 it is held that the statutory provision is mandatory that the liquidator designated by the Insurance Commissioner shall be appointed receiver in the liquidation proceedings. In Langdeau v. Republic National Bank of Dallas, 161 Tex. 349, 341 S.W.2d 161 venue is held to be in the county in which delinquency proceedings are pending. It is true that Art. 21.28, Insurance Code, classifies receivers of insolvent insurance companies separately from general receivers, nevertheless in Langdeau, Receiver v. Bouknight, 162 Tex. 42, 344 S.W.2d 435, 441-442 the Statute is held to be valid.

We are not holding in this opinion that the provisions of Sec. 4(f) of Art. 21.28, Insurance Code, are mandatory in the sense that they are jurisdictional in nature — that no other court than a court in Travis County has jurisdiction to try a suit by or against a receiver appointed pursuant to Art. 21.28, Insurance Code. That question is not before us. We are simply holding that it was mandatory under the law for the trial court to sustain appellant’s plea of privilege under the circumstances presented by the record before us.

Appellee argues that Sec. 4(f) of the Statute is not applicable in this case because this is not a “New Lawsuit”; that the original lawsuit against Midwestern Security Life Insurance Company as sole defendant was filed before the delinquency proceedings were filed in Travis County. Appellees’ argument is not valid as to Langdeau, Receiver. The filing of the amended petition subsequent to the institution of the delinquency proceedings made the Receiver a party for the first time. As to him it was certainly a “New Lawsuit”. Sec. 4(f) expressly refers to “proceedings by or against the insurer or receiver.” (Emphasis ours).

There are other reasons why the plea of privilege in this case should have been sustained. Subd. 23 of Art. 1995, relied on by appellees, provides that suit may be brought against a corporation in the county in which its principal office is situated. There is no evidence in the record before us that the principal office of Midwestern is in Dallas County. Furthermore, since Langdeau, Receiver, is not a corporation Subd. 23 cannot be applicable to him.

Subd. 4 of Art. 1995, also relied on by appellees, provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. However, under this subdivision it is necessary for a plaintiff to prove a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Owen v. Herring, Tex.Civ.App., 330 S.W.2d 500. There is no evidence in the record before us in support of the cause of action pled by appellees against Midwestern, the resident defendant. Therefore appellees are not entitled to look to Subd. 4 to retain venue in Dallas County.

Appellant’s point on appeal is sustained.

The judgment of the trial court is reversed, judgment is here rendered sustaining the plea of privilege of Langdeau, Receiver, and the trial court is directed to transfer the cause of action as to the Receiver to Travis County.

BATEMAN, J., not sitting.


author: WILLIAMS, Justice.

text:
    Charles ZAPFFE, Appellant, v. Walter B. McELROY, Jr., et al., Appellees.
    No. 16097.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 18, 1963.

      Brown & Elliott, Frank Brown, Dallas, for appellant.
    R. L. McSpedden, Dallas, for appellees.
   WILLIAMS, Justice.

Summary judgment proceeding. Rule 166-A, Texas Rules of Civil Procedure. Charles Zapffe brought this action in the district court against Walter B. McElroy, Jr., Walter B. McElroy, Sr., and Whitney-Merrill Corporation, alleging that he was induced to enter into a partnership arrangement with Walter B. McElroy, Jr., and Walter B. McElroy, Sr., by the making of certain fraudulent verbal representations and relied upon by plaintiff. Plaintiff alleged that as a result of such fraudulent representations he was caused to invest a total of $12,005.52 in such partnership venture, such amount being claimed by him to be liquidated damages, and the additional sum of $2,500.00 was sought as exemplary damages.

Both McElroy, Jr., and McElroy, Sr., answered asserting the specific defense of the Statute of Limitations and, in addition thereto, McElroy, Sr., filed a sworn answer denying the partnership agreement. The defendant Whitney-Merrill Corporation filed a general denial and it is undisputed in this record that any liability as to this defendant is derivative through Walter McElroy, Jr.

All defendants filed motions for summary judgment, same being supported by affidavits raising the defense of Statute of Limitations and also release of partnership obligation executed by plaintiff on September 6, 1960. Plaintiff answered said motions for summary judgment, claiming that the release of September 6, 1960 was entered into through misrepresentations and therefore not binding upon him. Upon hearing the motions for summary judgment the trial court sustained same, denying plaintiff any recovery and it is from this judgment that this appeal is brought to this court.

Although appellant presents four points of error he admits in his brief: “only one basic question is presented to this court: under the pleadings and the evidence was there a bona fide dispute as to material facts?” We shall, therefore, consider appellant’s points in the light of the sole question presented — was there an issue of fact presented to the trial court.

Certain rules have been firmly established to govern disposition of appeals from summary judgments. Summary judgment disposing of the entire action upon the merits is proper when, but only when, the trial court, on motion therefor, is satisfied that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Drake v. First National Bank, Mercedes, Tex.Civ.App., 254 S.W.2d 230; O’Quinn v. Scott, Tex.Civ.App., 251 S.W.2d 168. A defendant moving for summary judgment on the whole case assumes the negative burden of showing that as a matter of law the plaintiff has no cause of action against him. Neigut v. McFadden, Tex.Civ.App., 257 S.W.2d 864; Pattison v. Highway Insurance Underwriters, Tex.Civ.App., 292 S.W.2d 694. A defendant’s motion may be proper upon a showing that the claim is barred by an affirmative defense, such as limitations. McDonald, Texas Civil Practice, Vol. 4,, Section 17.26.1, 1962 Supplement and cases cited under note 21; Carter v. Walter G. Russell, et al., Tex.Civ.App., 300 S.W.2d 673; Taylor v. Missouri-Kansas-Texas Railroad, Tex.Civ.App., 294 S.W.2d 167; Lacy v. Carson Manor Hotel, Inc., et al., Tex.Civ.App., 297 S.W.2d 367.

Governed by these well established rules we have carefully reviewed the entire record in this case and have reached the conclusion that appellant’s cause of action is shown to have been barred by the statute of limitations and that, accordingly, the action of the trial court in granting summary judgment was proper.

The facts are undisputed. Appellant •claimed that the alleged fraudulent representations resulted in his action in entering into the partnership agreement on April 15, 1958. In his petition he says that he “failed to discover that said statements, and representations on behalf of said defendants were untrue and totally false until the latter part of 1959”. The two years statute of limitations, Art. 5526, Vernon’s Ann.Civ.St. was specifically pled as an affirmative defense. In support of motions for summary judgment affidavit of Waller M. Collie, Jr., attorney, contains testimony to the effect that on September 16, 1959, all of the matters concerning the partnership venture (including all the pleaded grounds of fraud) were discussed and revealed in conversations with Zapffe, McElroy, Jr., and Donald Yarborough, who was then Zapffe’s attorney. Zapffe, in his answer to the motions for summary judgment, does not deny these facts. It is further undisputed that appellant’s suit was not instituted until October 23, 1961, more than two years after the date that he became aware of the alleged fraudulent misrepresentations. Thus, as a matter of law, appellant’s suit was barred by the two year statute of limitations

Appellant makes no effort to controvert these facts, but does attempt to evade the effect thereof by contending that in this case, and under these facts, the four year statute of limitations, Art. 5527 (3), V.A.C.S., is applicable rather than Art. 5526, V.A.C.S., as contended by ap-pellees. We are unable to agree with appellant.

Art. 5527, V.A.C.S. provides that “[a]c-tions by one partner against his co-partner for a settlement of the partnership accounts * * shall be commenced and prosecuted within four years after the cause of action shall have accrued. This statute is not applicable here for the simple reason that appellant’s cause of action is not one for partnership accounting nor a settlement of partnership accounts, as contemplated by Art. 5527, V.A.C.S., but as stated above, is obviously an action to recover liquidated damages, as well as exemplary damages flowing from an alleged fraud perpetrated on appellant by appellees. Appellant, in effect, seeks to rescind the alleged partnership arrangement, contending same never legally came into being due to fraudulent representations. Art. 5526, V.A.C.S., is applicable to suits based on fraud. Pelton v. Trico Oil Company, et al., Tex.Civ.App., 167 S.W.2d 625; Taylor v. Missouri-Kansas-Texas Railroad Company, Tex.Civ.App, 294 S.W.2d 167; Carter v. Walter G. Russell, et al, Tex.Civ.App, 300 S.W.2d 673; White v. Bond, Tex.Sup.Ct, 362 S.W.2d 295.

Art. 5526, V.A.C.S., is the correct statute of limitations applicable and therefore the suit not being instituted within two years after the alleged fraud was made known to appellant, same is barred by the provisions of such statute.

In view of our disposition of this case we deem it unnecessary to discuss the question of release of the partnership agreement.

The judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    WACO TRANSIT CORPORATION et al., Appellants, v. Doris E. RESVANIS et al., Appellees.
    No. 4085.
    Court of Civil Appeals of Texas. Waco.
    Jan. 17, 1963.
    Rehearing Denied Feb. 7, 1963.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellants.
    Dunnam & Dunnam, Waco, for appel-lees.
   WILSON, Justice.

Appellees recovered judgment for dam.ages resulting from an intersectional collision. The automobile in which they were riding approached and entered the uncontrolled intersection from the right of appellants’ bus, with which it collided.

It is urged the court erred in refusing to submit appellants’ requested issues concerning plaintiffs’ pleaded failure ■to yield the right-of-way. If it may be said the request was in proper form, under Rule 279, Texas Rules of Civil Procedure, .a careful examination of the record considered most favorably to appellants establishes there was no evidence to raise appellants’ claim to right-of-way. It is conceded the point of impact was 22 feet equidistant from both entrances to the intersection. Each street was 38 feet wide. Plaintiffs pleaded their vehicle entered at .a speed of 20 to 25 miles per hour. Plaintiff driver testified she approached at this speed, but just before entering slowed to 10 or 15 miles per hour, and saw the bus to her left when she “got to the middle •of the intersection”, after which her car traveled three feet to the point of collision. When she saw the bus she “speeded up.”

Appellant’s bus left skid marks beginning two feet from the intersection extending an additional 22 feet to the impact point, where the marks “straddled” the ■center line of the street. The bus driver testified he was driving 20 miles per hour, .and first saw plaintiffs’ car when he was -40 feet from the intersection, at which time the plaintiffs’ vehicle was “about 10 or 12 feet, or maybe 15 feet, back from the intersection”. When he was about 30 feet from the intersection he applied his brakes. The bus was traveling “uphill”, and decelerated when the driver’s foot was removed from the accelerator. He testified that plaintiffs’ car “came on out into the intersection” and “as soon as I saw they wasn’t going to stop I stepped on the brakes to stop”. He thereafter turned to his left. “The right front of the bus struck the car just in front of the hind wheel.” Photographs in evidence and physical conditions at the scene do not alter the factual situation described. There is no evidence or favorable circumstance from which it can reasonably be inferred that the bus entered the intersection first.

Appellant, “in order to claim the right-of-way, was required to show under his pleading that he was first in the intersection, since the other vehicle was in fact to his ¡right”, because, under Art. 6701d, Sec. 71, Vernon’s Ann.Tex.Civ.St., and the facts in this case, “The burden was upon each of the parties to prove their claim to the right-of-way, and until this was done no subsidiary issues could be submitted.” Pressler v. Moody, Tex.Civ.App., 233 S.W.2d 165, 166; Knight v. Stewart, Tex.Civ.App., 282 S.W.2d 307, 310, and see Dallas Ry. & Terminal Co. v. Orr, Tex.Civ.App., 210 S.W.2d 863, 869, affd., id., 147 Tex. 383, 215 S.W.2d 862.

Reversal is sought because the court overruled appellants’ motion to declare a mistrial after plaintiffs’ counsel asked a police officer whether, after investigating the accident, the officer told the driver he had found that the driver “failed to yield the right-of-way”. The court promptly sustained appellants’ objection to the question, and instructed the jury not to consider it. The asking of this question, in our opinion, was probably improper under Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277, 281; although appel-lees plausibly insist the fact the driver made no response to the officer’s statement, as reflected by the bill of exception, authorized the inquiry. Our problem is whether, on review of the whole record, the inquiry was reasonably calculated to cause and probably did cause rendition of an improper judgment. The testimony of four witnesses related to the right-of-way issue. Findings of additional acts of negligence on the part of appellants proximately causing the collision, to which the question asked did not relate, are otherwise sufficient to sustain the judgment. Another police officer who investigated the occurrence at the same time testified in much more detail concerning the physical facts. If it be assumed the jury inferred from the question complained of that the officer was of the opinion the bus driver failed to yield the right-of-way, the uncontroverted evidence establishes he did not yield it, if he, in fact, had a duty to do so. The question did not necessarily imply an opinion on the latter question; and as has been pointed out, there is no evidence that he entered the intersection first. In Con-dra Funeral Home v. Rollin, as here, the jury answered liability issues favorable to the party whose counsel asked the question, and the question, as here, concerned the adverse driver.

Error is assigned to failure to submit damages sustained by the driver. We find no evidence raising the issue.

We have carefully examined each of appellants’ points, and in our opinion they do not require reversal.

Affirmed.


author: STANLEY, Commissioner.

text:
    James E. EPLING, Jr., et al., d/b/a C. & E. Coal Company, Appellants, v. Ruth Coleman RATLIFF et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 25, 1963.
    Baird & Hays, Pikeville, for appellants.
    Dan Jack Combs, Ronald W. May, Pike-ville, for appellees.
   STANLEY, Commissioner.

Lawson Ratliff, an employee of James E. Epling, Jr., et al. d/b/a C. & E. Coal Company, was fatally injured in an accident in December, 1960. After a hearing on an application for the benefits of the Workmen’s Compensation statute, a referee filed with the board an opinion and finding that the employee did not lose his life in an accident arising out of or in the course of his employment. KRS 342.005(1). The report concluded, “Subject to the approval of the full board, it is now ordered and adjudged that plaintiff’s application shall be dismissed.”

The case was not submitted to the Workmen’s Compensation Board or any member thereof. Instead of seeking such consideration, the applicant for compensation filed suit in the circuit court, praying that the order of the board be reversed and the case remanded with directions to award compensation. The complaint states that since the applicant did not elect to ask a full board review, under the terms of KRS 342.280 and 342.285(1) the opinion and award of the referee became final. The procedure was not authorized but was not questioned and is not questioned by the parties here.

The statute, KRS 342.255(2), provides that any hearing the board is authorized to hold may he held by a member or “a referee acting for him, under authorization of the hoard.” It is further provided that any decision or order made by a single member when approved by a majority of the members shall be considered an order of the board. KRS 342.275 more definitely describes the procedure when the board or a single member has made an award. KRS 342.280(1) provides for a review by the full board if the first hearing was not held before the full board. Nowhere does the statute indicate or provide that the preliminary hearing by a referee or his report shall be regarded as a decision of a member of the board or of the board itself. In the instant case, as stated above, the report of the referee, by its terms, was made subj ect to approval by the board.

A referee is an agent of the board, and his function is similar to the function of the commissioner or trial examiner of a court. It is imperative that the decision in the case shall be that of a majority of the board. That is prerequisite to validity, finality and right to a resort to the court. We expressly held in Spencer v. Chavies Coal Company, 280 Ky. 152, 132 S.W.2d 846, that no award or order made by a referee has any effect until approved by a majority of the members of the board, and that no appeal lies to the circuit court from the award or order of a referee. That conclusion was confirmed in Kabai v. Majestic Colleries Company, 286 Ky. 279, 150 S.W.2d 898. See also Childers v. Hackney’s Creek Coal Company, Ky., 337 S.W.2d 680.

The circuit court should have ruled on the face of the record that it had no jurisdiction and dismissed the complaint. The judgment reversing and remanding the case is void.

Section 763 of the former Civil Code expressly provided that no void judgment should be reversed or modified by the Court of Appeals until a motion to set it aside had been overruled in the circuit court. The provision was intended to prevent appeals for the correction of errors which might be corrected in the court below by motion made after the term in which the judgment was rendered. An appeal prosecuted from a void judgment was ordinarily dismissed by this court summarily. There are many cases to that effect.

Section 763 of the Civil Code was superseded by Civil Rule 60.02. That rule provides inter alia that a trial court may on motion relieve a party from a final judgment where the judgment is void. But the express provision that no void judgment should be reversed or modified by the Court of Appeals until the circuit court had acted upon a motion to set aside a void judgment was repealed and not carried into the Civil Rules. However, as pointed out in Noel v. Noel, 307 Ky. 122, 210 S.W.2d 137, where a party waives objection to a hearing of an appeal from a void judgment by failing to move this court to dismiss it, the court may entertain the appeal, declare the judgment void and reverse it.

With removal of the restriction contained in § 763 of the former Code, which was construed throughout the years as prohibiting the right of an appeal from a void judgment, we have the general provision of KRS 21.060, giving the right of appeal from all final judgments in civil cases, with certain enumerated exceptions which do not include a void judgment. It is the function of this court to deal with judgments that are erroneous or are valid, and a void judgment is a nullity and without legal effect save in form. But we believe, in the absence of a motion to dismiss an appeal from a void judgment, we should entertain the appeal and declare such judgment void. This will enable a party injured thereby to have the judgment removed from the record without injury to the adverse party who acquired no rights under the void judgment. This will restore the parties to the position they originally occupied. To do otherwise would sacrifice substance to technical form. This procedure seems to be in accord with the weight of authority. Note, 81 A.L.R.2d 541; 4 C.J.S. Appeal and Error § no.

The judgment is reversed with directions to set it aside.

Reversed.


author: CLAY, Commissioner.

text:
    Jasper B. HENDREN et al., Appellants, v. Louise D. BROWN et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 5, 1962.
    Rehearing Denied Feb. 22, 1963.

      Shackelford & Burnam, James E. Thompson, Richmond, John Y. Brown, Lexington, for appellants.
    Robbins, Robbins & Robbins, George C. Robbins, Steve Robbins, George W. Robbins, Shumate & Shumate, Thomas D. Shumate, Richmond, for appellees.
   CLAY, Commissioner.

This is a will contest. After a trial resulted in a hung jury, the circuit judge granted judgment upholding the will under CR 50.02. On this appeal contestants contend they were entitled to another jury trial on three grounds.

The principal controversy concerns a holographic will apparently executed by the decedent, a middle aged widow, on July 1, 1946. She subsequently executed a codicil on April 26, 1952, properly attested by two witnesses. She died about five years later.

The beneficiaries of the will were á niece and nephew, both of whom had lived with her for several years. The nephew had resided with her since 1937, at which time he was 11 years of age, and he received the larger share of the estate. The codicil left $100 each to other nieces and nephews.

Before reaching the grounds upon which the will is attacked, it is necessary to consider a question not decided by the trial court but here raised by appellees. That question is whether the execution of the codicil six years after the purported will constituted a republication of the latter. If so (assuming the codicil was valid), it would be unnecessary to consider appellants’ contentions.

A defective will may be validated by a duly executed codicil. 57 Am.Jur. Wills § 626, page 428; 95 C.J.S. Wills § 303, page 95; Spradlin v. Adams, 182 Ky. 716, 207 S.W. 471; Farmers’ Bank & Trust Co. v. Harding, 209 Ky. 3, 272 S.W. 3; Hurley v. Blankinship, 313 Ky. 49, 229 S.W.2d 963, 21 A.L.R.2d 817. As pointed out in the foregoing authorities, perhaps the most important factor is identification of the earlier will. If a writing is to be validated as a will by a later formal document, the latter should clearly incorporate the former. The general principles of incorporation by reference apply. See Daniel v. Tyler’s Ex’r, 296 Ky. 808, 178 S.W.2d 411.

In the present case the codicil recited: “I wish to add this codicil to my will.” This recitation immediately raises the question: What will? There is no reference to the date of the will, or its terms, or its whereabouts. It has been held that such a reference by itself is not sufficient identification. In re Foulds’ Will, 21 Misc.2d 402, 196 N.Y.S.2d 816.

This conclusion is consistent with the principles set forth in the authorities heretofore cited. The uncertain character of this reference is more evident when we consider the fact that the will in question was executed six years prior to the codicil and there is a real controversy in this case as to whether the former was written and signed by the testatrix. She could possibly have written other wills.

It is true that a written reference to a former will is not the only means of identification. Other circumstances, such as a codicil written on the same paper as the will (Farmers’ Bank & Trust Co. v. Harding, 209 Ky. 3, 272 S.W. 3), or the physical attachment of the will to the codicil (Hurley v. Blankinship, 313 Ky. 49, 229 S.W.2d 963, 21 A.L.R.2d 817), may serve to identify the-earlier testamentary paper.

An attempt was made in this case to prove the will and the codicil were put together in a sealed envelope, but assuming this would constitute sufficient incorporation, the evidence did not establish the fact. The only identification of the two instruments as a single testamentary act of the decedent is the reference in the codicil to “my will”. Under the circumstances shown, we do not think this validated the will by republication.

Returning to the will, appellants’ first ground of contest is that the decedent lacked mental capacity. Evidence offered on this point was that she lost by adverse possession a tract of real estate which her husband had deeded to her. The argument is made this proves she did not know the extent of her property. A rational explanation of the occurrence was given by appel-lees’ witnesses, but even if unexplained, we cannot comprehend how this title development had probative value that decedent lacked mental capacity.

An attempt was made to show that shortly before the execution of the codicil the decedent was ill and “didn’t know what she was doing”. Hospital records were offered in evidence (and refused) that showed after she executed the codicil she was “talking irrational”. These isolated events occurring almost six years later had no reasonable tendency to indicate decedent’s mental condition at the time she executed the will. See Pardue v. Pardue, 312 Ky. 370, 227 S.W.2d 403.

The next contention is that the nephew exercised undue influence and coercion. The principal basis of this claim is that the nephew on occasion would physically beat up his aunt. There is some evidence that the decedent was afraid of her nephew and that he wanted her to make over her property to him. However, the nephew’s brutal and peculiar acts were in no way tied up with the execution of the will. There is no showing he even knew of its execution.

Any slight probative value of this evidence on the issue of undue influence is dispelled by significant uncontradicted facts. The will itself divided decedent’s property between this nephew and a niece, both of whom were natural objects of her bounty. There was uncontradicted evidence the aunt had always intended to leave most of her property to these two. In addition, she made no apparent attempt to revoke this will for a period of over 10 years. Finally, the execution of the codicil six years later, wherein bequests were made to others, is entirely inconsistent with the theory that the nephew had coerced the disposition of her property. Under the circumstances shown, we are of the opinion that the proof of sporadic violence against decedent’s person cannot reasonably be converted into substantial evidence of undue influence.

We finally reach appellants’ contention that this holographic will was not wholly in • the handwriting of the decedent. On its face the paper shows what appears as two different types of handwriting, or at least the use of two different pens. Appellants introduced witnesses who compared the signature on this paper with other known signatures of the aunt and stated they were not the same. In addition, they offered to call some of the contestants to testify that they were familiar with the handwriting of the decedent and that the signature on the paper was not hers. The court would not permit appellants to introduce this evidence, apparently on the ground it violated KRS 421.210(2) (formerly Civil Code Section 606(2)).

We believe this testimony was clearly competent. Essentially it constituted opinions of the witnesses wholly unrelated to a specific transaction, act or omission of the decedent observed by or communicated to the witness. The purpose of the statute is to exclude testimony recounting specific conduct of the deceased which inures to the benefit of the witness.

In Kendall v. Hillsboro & P. P. Turnpike Road, 23 K.L.R. 2372, 67 S.W. 376, and Ferguson v. Billups, 244 Ky. 85, 50 S.W.2d 35, interested parties were permitted to testify to the contents of a lost document, their testimony being based on what they had observed independently of any act of the deceased. On the other hand, in Gibbs v. Terry, Ky., 281 S.W.2d 712, 713, and Whitcomb v. Whitcomb, Ky., 267 S.W.2d 400, it was held that a beneficiary could not testify concerning the contents of a will when the source of the information was an act of the testator in the presence of the witness. It is evident from these cases that the prohibited testimony must at least involve a fact arising out of the decedent’s conduct on a particular occasion and not a fact that may be established independently of it.

Even if the fact in issue concerns the general conduct of the deceased in the presence of the witness, opinion testimony as to the mental capacity of that person is admissible to the extent it is based upon observable conditions. Wilbur’s Ex’r v. Lemmon, 306 Ky. 675, 209 S.W.2d 82.

We have had one case involving the testator’s handwriting. In Nelson v. Nelson, 235 Ky. 189, 30 S.W.2d 893, it was held the widow of the testator could properly testify a will being contested was wholly in his handwriting. This decision, however, was based on the assumption that the statute did not apply to will contests. In Hale v. Hale, 242 Ky. 810, 47 S.W.2d 706, this assumption was repudiated. See also Whitcomb v. Whitcomb, Ky., 267 S.W.2d 400.

Nevertheless, we have no hesitancy in- concluding that testimony with respect to the handwriting of a deceased person based on observation and analysis of a document is not within the prohibition of the statute.Such conclusion is based upon two grounds: (1) the testimony does not recount or describe a specific transaction or act of the deceased, and (2) it constitutes an opinion of the witness based on physical evidence which does not purport to portray a particular event. The trial court therefore erroneously excluded proffered testimony of the contestants with respect to the apparent authenticity of the decedent’s handwriting.

This evidence, along with testimony that was admitted, clearly created a jury issue as to whether or not this will was wholly in the handwriting of the deceased. The judgment must be reversed for a new trial on this issue.

The judgment is reversed with directions to grant appellants a new trial on the sole issue of whether or not the holographic will tendered for probate is wholly in the handwriting of Iva Hendren Burton.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. William BLACKBURN et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 25, 1963.

      J. B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Patrick J. Dixon, Atty., Dept, of Highways, Louisville, F. D. Curry, Atty., Dept, of Highways, Frankfort, for appellant.
    Ottis Lanter, Williamstown, Denney & Landrum, Lexington, for appellees.
   PALMORE, Judge.

Appealing from a judgment it regards as •excessive in this condemnation case, the Commonwealth asks that it be granted a new trial “with the specific direction that the taxpayers should not be liable for increments of land value created by the public improvement itself.” However, not a single error of any kind on the part of the trial court is cited to authorize or justify a reversal.

Shortly after the location of the improvement project had been established, neighboring property comparable with the property here in question was sold to Ash-land Oil and Refining Company for $30 per front foot. This price, according to the Commonwealth, represented an enhanced value resulting from the improvement project, and was used by its witnesses in estimating the value of that portion of the appellees’ property remaining in their ownership after the taking. Witnesses for the landowners, however, used it in estimating the value of the property before the taking, and this, argues the Commonwealth, violates the principle that enhancements in value resulting from the prospect of the improvement are not compensable. Cf. 18 Am.Jur. 884, Eminent Domain § 246; Annotation, “Increment to value, from project for which land is condemned, as a factor in fixing compensation,” 147 A.L.R. 66.

Conceding the correctness of the Commonwealth’s theory, in this particular case the questions of whether and the extent to which the price paid in the Ashland Oil transaction was influenced by the prospect of the highway improvement project were for the jury to determine under a proper instruction covering the issue. The instructions of the trial court are not in the record, but we note that they were offered by the Commonwealth and given without objection. Moreover, even if it had been clear from the testimony that the price paid by Ashland was so affected by the prospect of the improvement that it should not have been admitted in evidence as a comparable sale, it would have been incumbent on the Commonwealth either to object to its admission, move that it be stricken, or seek an appropriate admonition to the jury. None of this was done, and there is simply no error called to our attention. Cf. Louisville Gas & Electric Company v. Cornell, Ky.1961, 344 S.W.2d 830; Commonwealth, Department of Highways, v. Williams, Ky.1958, 317 S.W.2d 482.

Hence the judgment must be and is affirmed.

      . This is proper, of course, to the extent that the enhancement offsets residual damage claimed by the landowner. Commonwealth, Department of Highways v. Evans, Ky.1962, 361 S.W.2d 766, 769.


author: CULLEN, Commissioner.

text:
    PULASKI COUNTY, etc., et al., Appellants, v. CITY OF SOMERSET, a Municipal Corporation, et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 25, 1963.
    Don E. Cooper, Charles C. Adams, Somerset, for appellants.
    Viley O. Blackburn, Somerset, for appel-lees.
   CULLEN, Commissioner.

In the center of the public square in the City of Somerset there is a small park, known as Fountain Square Park, that has been in existence since 1909. In January 1959 the city council adopted an ordinance directing that the park be removed and that the area be devoted to traffic purposes so that the streets entering the square would extend straight through the square. The County of Pulaski then brought this action seeking a declaration that the ordinance was invalid and an injunction against removal of the park. The circuit court upheld the ordinance and denied injunctive relief. The county has appealed.

The park was built in 1909 as a result of joint action of the Commercial Club of Somerset, the city, and the county. Each paid one-third of the cost. Although there was no formal ordinance or resolution of either the city or the county dedicating the area to park purposes, the evidence shows that from the beginning the area has been designated, maintained and used as a public park in every sense of the term. There has been manifested a clear and unequivocal intention to devote the area to park purposes only. It must therefore be regarded as having been impliedly dedicated as a park. Board of Park Com’rs of Ashland v. Shanklin, 304 Ky. 43, 199 S.W.2d 721.

Under KRS 97.530 a city of the third class (which Somerset is) has authority to “repeal ordinances heretofore or hereinafter enacted creating * * * public * * * parks * * * where the same were not acquired or given to the city for such specific purposes, and provide, by appropriate ordinances, for the use of said land * * * for other purposes * * ⅜ ” (our emphasis). The city maintains that it has authority under this statute to abolish Fountain Square Park.

In our opinion the statute applies only where the city, by its own exclusive authority, has established a park. If it were considered as being applicable to a park dedicated by interests other than the city a serious question of its constitutionality would be presented. See City of Hopkinsville v. Jarrett, 156 Ky. 777, 162 S.W. 85, 50 L.R.A.,N.S., 465. By reason of the history of the Fountain Square Park, hereinafter related, we think it comes within the exception stated in KRS 97.530 of having been “acquired or given to the city for such specific purposes.”

The original site of the Town of Somerset was deeded to the trustees of the town “for the County’s use.” The plat outlined a public square in the center of the town, and the deed referred to. the “Publick Square, which the Court House of Pulaski County is to be fixed on.” It appears that the first courthouse was built in the center of the square and it continued there for 30 years. Thereafter a new courthouse and other county buildings were erected on one side of the square. Along in the 1850’s, by authority of the fiscal court, a public well was dug in the center of the square. In 1867 a portion of the square, on which the county jail had stood, was sold by the fiscal court to private interests.

The evidence indicates that over the years portions of the square were used for street purposes, but it is not established that the center of the square was so used. On the contrary, there is indication that the center was used as a public gathering place, for fairs, etc.

In 1908 the Commercial Club of Somerset proposed the establishment of a park in the center of the square, and with the county, the city and the club each putting up a third of the cost, the park was built

The city maintains that it had the right of control over the public square and the right to determine to what public use the square should be devoted, and therefore the establishment of the park was by sole authority of the city so as to come within the provisions of KRS 97.530 authorizing a city to abolish a park established by it. It may be conceded that under various legislative enactments the city had police power over the square, but we do not find any basis of authority in the city to determine the uses to which the square should be devoted in the way of structures. Certainly the county had the right to build its original courthouse in the center of the square, and the right later to build a new courthouse and other county buildings on one side of the square. It may be true that the county lost its rights in such parts of the square as by implied dedication became public streets, see Graves County ex rel. Robbins v. City of Mayfield, 305 Ky. 374, 204 S.W.2d 369, but the evidence here does not establish any implied dedication of the center of the square for street purposes.

Certain legislative Acts of 1846 and 1871, relied Upon by the city, merely gave the city title to the streets and alleys in the city, and have no bearing on the question of control of the use of such portions of the square as had not become dedicated streets. An Act of 1888 declaring that all “commons” of the town of Somerset should be the commons of the city we construe as merely transferring from the town to the city such commons as belonged to the town, and not as attempting to divest the county of its rights to determine the use of the public square.

KRS 85.120(3) and KRS 94.360(1), giving the city council power of control over “public grounds belonging to” or “of” the city, are not significant here because the entire public square did not “belong” to the city.

KRS 85.140(2), giving the city council authority to open and establish streets, clearly does not mean that the city may establish a street over land on which the county has the right to place county structures. The same is true of KRS 94.110(1) (a), which gives the city control over construction, reconstruction, maintenance, repair and supervision of “public ways, squares, fountains” within the city.

The circuit judge was o-f the opinion that the public square had been dedicated originally for public use generally, and that the city under its power to establish streets had the right to determine that the square should be used for street purposes. The trouble with this view is that the square was not dedicated originally for general public use, but for the county’s use, such as for county buildings.

Our conclusion is that at the time the park was created the county had such interest and rights in the area in the center of the square that it cannot be said that the park was established solely by the city so as to come within KRS 97.530.

It is clear that in the absence of statutory authority the city cannot abolish the park. See Bedford-Nugent Co. v. Argue, 281 Ky. 827, 137 S.W.2d 392.

The judgment is reversed with directions to enter judgment holding the city ordinance of 1959 invalid and granting appropriate injunctive relief against removal of the park.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Pat LYONS et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 25, 1963.

      John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Paul E. Hun-ley, Phillip K. Wicker, Dept, of Highways, Frankfort, for appellant.
    H. R. Wilhoit, Grayson, for appellees.
   CULLEN, Commissioner.

In connection with a project for widening and straightening U. S. Highway No. 60 near the city of Olive Hill, the Department of Highways condemned a triangular shaped strip of land, 10 feet wide at one end and 29 feet wide at the other, along the 105-foot frontage of residential property of Pat and John Lyons. The jury in circuit court awarded damages of $8000. The department has appealed from the judgment entered on that verdict.

Prior to the relocation of the highway the distance from the right of way line to the front porch of the Lyons dwelling was 26.8 feet, and the distance from the edge of the pavement to the porch was 41 feet. After the relocation the right of way line will be 9.3 feet from the porch and the edge of the new pavement, according to the plans, will be 32 feet from the porch.

The first contention of the department is that the trial court erred in refusing to permit testimony of a witness for the department as to the distance the new pavement would be from the porch of the Lyons house. (After the court refused to admit the testimony it was put in the record by avowal.) Passing for the moment the question of whether the rejection of this testimony was error, we express the view that the rejection, were it the only error in the case, would not be grounds for a reversal because, in cross-examination of another state witness by the property owners’ attorney, the fact was brought out that under the plans the new pavement would be at -least 30 feet from the porch. But since we are reversing the judgment for other error it is necessary for the purposes of another trial that we pass on the admissibility and effect of the plans of the department for the highway project.

We conceive the law to be that evidence of the plans and specifications of the highway department for the particular project is admissible in order that the jury may determine to what extent the use of the remaining land will be affected. See Pursiful v. Commonwealth, 212 Ky. 690, 279 S.W. 1106; Louisville & N. R. Co. v. Hargis, 230 Ky. 806, 20 S.W.2d 991; 18 Am.Jur., Eminent Domain, sec. 354, p. 998; Annotation, 89 A.L.R. 879. However, the plans are not conclusive as to future use of the condemned land, and the jury is entitled to consider future uses of the property that may be made by the condemnor. See Commonwealth v. Ball, 246 Ky. 584, 55 S.W.2d 413; 18 Am.Jur., Eminent Domain, sec. 249, p. 887.

In our opinion the testimony in the instant case as to the planned location of the pavement was admissible. The jury would be entitled to give consideration to the right of the state to construct a pavement closer to the right of way line than called for in the plans, but at the same time the jury should consider whether there is any reasonable likelihood of that being done in the light of normal highway standards.

The second contention of the appellant, on which we are reversing the judgment, is that the testimony of the witnesses for the property owners does not have sufficient probative value to support the award of damages.

There was no substantial dispute concerning the value of the piece of land actually taken, which was estimated at around $650 or $750. The main question was as to the damages to the remainder of the property. The witnesses for the state estimated that the house was worth $7,800 before the condemnation and that its value was reduced 50 percent by reason of the highway’s being brought closer to the house. The witnesses for the property owners valued the house at $9,000 before the condemnation but they all said that the house was absolutely worthless after the condemnation, because of the close proximity of the highway. They also said that the remaining tract of land was worth not more than $1,000 because it was too small for residential use.

In our opinion the testimony that the house was rendered completely valueless simply because of the closeness of the highway is so incredible and contrary to common knowledge as to be without evidentiary value. See United Fuel Gas Co. v. Mauk, Ky., 302 S.W.2d 368; Commonwealth v. Rankin, Ky., 346 S.W.2d 714. Without this testimony there is no evidence to sustain the award of damages in the amount of $8000.

The judgment is reversed with directions for further proceedings in conformity with this opinion.


author: MILLIKEN, Judge.

text:
    KENTUCKY HOME MUTUAL LIFE INSURANCE COMPANY, Appellant, v. John E. WISE, Appellee. OTIS ELEVATOR COMPANY, Appellant, v. KENTUCKY HOME MUTUAL LIFE INSURANCE COMPANY, Appellees.
    Court of Appeals of Kentucky.
    June 23, 1961.
    As Modified on Denial of Rehearing Feb. 22, 1963.

      John P. Sandidge, Woodward Hobson & Fulton, Louisville, for Ky. Home Mut. Ins. Co.
    Norman A. Curtis, Louisville, for Otis Elevator Co.
    Richard C. Oldham, E. A. Sherman, Louisville, for John E. Wise.
   MILLIKEN, Judge.

John E. Wise recovered a judgment for $29,582 against Kentucky Home Mutual Life Insurance Company for a back injury received when a passenger elevator in the Kentucky Home Life office building in Louisville fell a short distance with him on July 26, 1955, and the trial court entered a judgment on a directed verdict for Kentucky Home Mutual Life Insurance Company for the same amount against Otis Elevator Company, based upon an elevator maintenance and service contract between the companies. Both judgments have been appealed.

In the circumstances, Wise necessarily relied solely upon the doctrine of res ipsa loquitur as the legal basis of his claim while the two companies attempted to avoid liability, basically, by showing that they were not negligent. Thus brought into sharp focus is the procedural effect of the doctrine of res ipsa loquitur. Before discussing the specific problems presented by these appeals, we believe a summary of the general principles of law involved would be helpful.

There are three ways to treat the procedural effect of that form of circumstantial evidence within the scope of the doctrine of res ipsa loquitur. First, as a permissive inference which would require no directed verdict f@r the plaintiff in case the defendant failed to offer any evidence in defense. This is the present weight of authority. Second, to treat it as a presumption which would require a directed verdict for the plaintiff in case the defendant offered no evidence in rebuttal. . Third, to treat res ipsa loquitur as if it threw the burden of proof entirely over on the defendant to rebut negligence by evidence of greater weight which, in a sense, is closely related to the presumption theory. See Prosser, Law of Torts, 2nd Ed. (1955), pages 211-217. The classic statement of the permissive inference theory was made by Justice Pitney in Sweeney v. Erving in 1913 in 228 U.S. 233, 33 S.Ct. 416, 418, 57 L.Ed. 815, “ * * * res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff.” When we get right down to practicalities, the procedural theory followed by courts in a given case depends largely on “the strength of the inference to be drawn, which will vary with the circumstances of the case.” Prosser, above, page 212. In fact, in Vernon v. Gentry, Ky., 334 S.W.2d 266, we said, “In the event the defendant can explain away the presumption so conclusively as to completely overcome it, he is entitled to a directed verdict.” With this analysis in mind, let us examine the evidence.

In addition to the operator, who was an employee of Kentucky Mutual Life Insurance Company, Wise and a woman passenger were the only occupants of the elevator when its upward travel halted and it began its descent from about the nineteenth floor. The consensus appears to be that it came to a stop about three feet below the eighteenth floor, a descent of fourteen or fifteen feet. Wise said he heard a strange noise when the elevator started down, that the operator was moving the control handle first one way and then another, that in a few seconds the elevator came to a jarring stop and made “a couple of little, small jars” as it settled into position. He said the resultant force “more or less pushed me down, sort of like an accordion.” The operator opened the door, Wise climbed out, reached down and helped the woman passenger out. The operator said the elevator rattled and squeaked when it came to a stop; that he did not realize it was falling, but that the stop caused his knees to buckle. The woman passenger said she noticed no jarring or peculiar noise when the elevator stopped. Neither she nor the operator was injured, and it was not until several days later that Wise began having serious trouble with his back. However, he had told the elevator starter fifteen or twenty minutes after the accident that his back was aching.

In defense of the claim, by attempting to show no negligence on the part of the companies, testimony was offered that the elevator had all the safety devices required by the Elevator Code of the City of Louis-ville and met the standard of the American Society of Engineers; that the elevator had -a capacity of 2,500 pounds, and had counterweights equal to the weight of the cab plus 40% of its capacity which would have ■drawn it back to the nineteenth floor with its three person load had not the automatic application of the brakes prevented it. The elevator itself was inspected every week, its safety devices every six months by representatives of Otis Elevator in conformity with their contract, and no defects were visible at the last inspection. In fact, the elevator came to a stop without the ■safety devices going into action. Evidence was offered that a fuse blew as a result of the grounding of one of the armature coils inside the motor due to a breakdown of the insulation which could not have been discovered by visual inspection except by dismantling the motor at great cost, and possibly could not have been detected even then by visual examination. What caused the break in the insulation was largely speculative.

We do not believe that the evidence negating negligence is so strong that we may say as a matter of law that the jury must accept it — that reasonable men would have to accept it, for the reliability of mechanical safety devices is not absolute as was pointed out in Otis Elevator Company v. Robinson, 5 Cir., 287 F.2d 62 (1961), where the court said: “Of course this is not -the first time that something has occurred that simply could not have happened. The more complex becomes our machine age civilization the more this becomes evident. * * * Indeed, it is the likelihood that the ‘impossible’ will occur which augments the growing business of insurance, engages the professional attention of lawyers * * * .and furnishes to us and others the inexhaustible but well-nigh exhausting grist for the judicial mill.”

Considering the high degree of care required of the operator of elevators as in the case of other common carriers of passengers, Kentucky Hotel Company v. Camp, 97 Ky. 424, 30 S.W. 1010, and the application of the res ipsa loquitur doctrine in such cases, 56 A.L.R.2d 1059-1089, Wise’s testimony about the jarring stop and the strange noise, confirmed in part by the operator of the elevator, is sufficient for the jury to find negligence if it cares to do so. The defense contention that the elevator did not “fall,” that it did not come to a sudden jarring stop because it could not on account of the counterweight and short distance traveled, does not preclude the jury from believing that the elevator did come to a sudden jarring stop, that the elevator did make a peculiar noise, and that the whole truth has not been told. The case is one for a jury to decide under proper instructions.

The instructions given were not correct, and we must reverse the case for that reason. The instruction given by the trial court was in pertinent part:

“If you believe from the evidence that the elevator on which John E. Wise, the plaintiff was a passenger fell suddenly and abruptly and that plaintiff was thereby injured, then you will find for the plaintiff against the defendant Kentucky Home Mutual Life Insurance Company * *

This instruction made the Kentucky Home Mutual Life Insurance Company tantamount to an insurer in case the jury believed the elevator “fell suddenly and abruptly,” which is much more than the high degree of care required of a common carrier where liability is premised on negligence and avoided if the elevator fell through no fault of the defendant. In fact, the instruction did not submit the issue of negligence at all. An instruction adapted from Stanley’s Kentucky Instructions to Juries, Vol. 1, Sec. 252, page 399, sets forth the proper standard.

Since it is necessary to set aside the judgments, the complaint about the amount of damages awarded is not a matter for us to consider in this opinion because the evidence offered on a retrial may not be the same. Louisville & N. R. Company v. Mattingly, Ky., 318 S.W.2d 844 and 339 S.W.2d 155.

When Wise obtained his verdict against the Kentucky Home Mutual Life Insurance Company, the trial court directed a verdict against Otis Elevator Company in the third party action brought against it by Kentucky Home Mutual Life Insurance Company on the maintenance and servicing contract, premised on the theory that Otis Elevator was an indemnitor by way of the contract against any liability incurred by Kentucky Home Mutual Life Insurance Company in the normal operation of its elevators. Since we are reversing Wise’s judgment, it follows that the judgment, against Otis Elevator must be reversed. However, we point out that the standard: of care required of Otis Elevator by the terms of the contract is “reasonable care” and not the high degree of care required: of a common carrier. Other provisions, of the contract further reveal that it was improper to direct a judgment against Otis on the theory that it is an indemnitor ■ under the contract for any liability incurred by Kentucky Home Mutual Life Insurance Company by reason of the operation of the elevator. The only jury question as to Otis-is whether it used reasonable care in the-fulfillment of its contract.

The judgments are reversed.