text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. Charlie E. McCARTNEY, Appellee.
    No. 3659.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 12, 1962.
    Rehearing Denied Feb. 9, 1962.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Blake Tartt, Houston, for appellant.
    Dixie & Schulman, R. Shearn Smith, Houston, for appellee.
   WALTER, Justice.

This is a workmen’s compensation case. Charlie E. McCartney recovered judgment against Aetna for permanent partial incapacity at the rate of $34.65 per week for 300 weeks.

Aetna has appealed, contending there was no evidence to support the jury’s answers, and that such answers are against the great weight and preponderance of the evidence. Aetna also contends the court erred in submitting Special Issue No. 1 inquiring whether McCartney sustained an accidental injury because it failed to ask separately whether he sustained a general injury or a specific injury.

McCartney sustained an injury in the course of his employment while working for Tenn-Tex Alloy & Chemical Company on October 13th, 1958, when a furnace “blew out” on him.

Appellee’s petition alleged he sustained injuries to his back, spine and right side and to his left leg. He also pleaded total incapacity followed by partial permanent incapacity and loss of use, and partial loss of use of his left leg. Aetna filed a general denial and alleged that any incapacity sustained was temporary and partial.

Special Issue No. 1 is as follows:

“Do you find from a preponderance of the evidence that plaintiff, Charlie E. McCartney, sustained an accidental injury on or about October 13, 1958, iffi the course of his employment for Tenn-Tex Alloy and Chemical Company?” To which the jury answered ‘We do’.”

The jury found that “such accidental injury” inquired about in Special Issue No. 1 was a producing cause of partial incapacity which began on October 13, 1958, and was permanent. The jury also found that “stic& accidental injury” inquired about in Special Issue No. 1 was a producing cause of partial loss of use of McCartney’s left leg which began on October 13, 1958, and was permanent.

We are unable to determine whether the jury took into consideration the specific injury to McCartney’s leg or the general injury to his back and side in finding that the “accidental injury” was a producing cause of partial incapacity. We have n® findings that the general injury was a producing cause of McCartney’s disability.

In the case of Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651, the plaintiff had pleaded a general injury to her neck and a specific injury to her foot. The court inquired if the plaintiff had sustained an accidental personal injury (a) to her foot (b) to her neck. The jury answered: yes to both questions. The court then inquired if such accidental injury was a producing cause of plaintiff’s incapacity tes» which the jury answered yes. Our Supreme Court held this to be an improper method of submission where there was a specific and a general injury involved. The court said: “The question naturally arises: What accidental injury? Was it the injury described in respondent’s pleadings as the injury to the foot or the injury to the neck? We cannot assume that the jury meant to say in answer to Special Issue No. 3 that the accidental injury to the neck was the producing cause of the incapacity suffered by respondent. Neither can we assume that the jury found that the accidental injury sustained to the foot was the producing cause of the incapacity. Each of the classes of injuries involved in this case are separate and distinct and are in no way related to each other. It was the burden of respondent to plead, prove and secure jury findings supporting each of the theories advanced before she would be in position to choose between the two and move the court to render and enter judgment upon the findings establishing the general injury.”

McCartney pleaded and submitted evidence of a general injury and a specific injury. The court failed to inquire separately whether he sustained a general injury to his back and side or a specific injury to his leg.

We hold McCartney had the burden of securing findings on each of these theories before he would be in a position to choose between them and secure a judgment upon the findings for a general injury. Appellant’s point of error on this matter is sustained.

The judgment is reversed and remanded.

ON MOTION FOR REHEARING

McCartney has requested in his motion for rehearing that we pass on Aetna’s first twelve points of error. They are no evidence points and great weight and preponderance of the evidence points. Aetna asserts there is no evidence to support the jury’s answers that McCartney’s injury was a producing cause of partial incapacity; that such partial incapacity began on October 13, 1958; that such partial incapacity is permanent; that McCartney’s earning capacity after his injury was $50.00 per week. Aetna also asserts that each of such answers is against the great weight and preponderance of the evidence. McCartney has requested that we .pass on these points so that if the Supreme Court disagrees with our reversing and remanding this case for a new trial, it will not be necessary to return the case to this court for further action.

McCartney sustained an injury in the course of his employment while working for Tenn-Tex Alloy & Chemical Company on October 13, 1958, when a furnace “blew-out” on him. Hot metal struck his back, chest and leg. He started running but stumbled and fell and hurt his low back and when asked “When is the first time that you ever mentioned hurting your back to anybody, any doctor, or anybody else?” he answered “I mentioned it to the foreman that night.” He also sustained about twenty burns on his back. His foreman treated him at first aid and sometime thereafter he was sent to Dr. Jones, a company doctor. While being treated by the company doctor, McCartney did light duty at the plant. McCartney testified he was not able to do this work but said “It was either do it or starve to death.” The company sent McCartney to Dr. Phillips who treated his back. He left Tenn-Tex and started working for DuPont Construction Company. His brother was a foreman for DuPont. He tried this work of spreading “shells and stuff” but couldn’t take it because his back was bothering him. When asked this question: “And you didn’t miss a day from work as the result of this accident?” McCartney answered: “Even when my leg was swelled up I went out there and I didn’t have no shoe on because I couldn’t wear a shoe, and the Assistant Superintendent called me out in front of the coke machine and said, ‘why, haven’t you got your shoe on?’ I said, T can’t wear a shoe.’ He said, ‘Why can’t you?’ I said, 'My foot is swelled.’ He said, ‘Well, I’ll tell you what — are you going to work?’ And I said, 'I am going to try it.’ He said, ‘You will have to wear a shoe.’ I said, ‘I can’t wear one.’ He said, ‘You will either have to put a shoe on or go home.’ So I went around to the bath room and taken my knife and cut it all to pieces and put the sole on anyway.”

McCartney was unemployed at the time of trial.

Aetna’s no evidence points are overruled. We have considered all the evidence and find that the jury’s answers are not against the great weight and preponderance of the evidence. Aetna’s great weight and preponderance of the evidence points are therefore overruled. Passing on these points does not affect our prior opinion. Appellee’s motion for rehearing is therefore overruled.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    PEOPLES TRUST CO., Appellant, v. Joe RIVERA et ux., Appellees.
    No. 13906.
    Court of Civil Appeals of Texas. Houston.
    March 8, 1962.
    William H. Scott, Jr., Houston, for appellant.
    Herbert Finkelstein, Houston, for appel-lees.
   WERLEIN, Justice.

This is an appeal from the order of the trial court granting a temporary injunction restraining appellant, Peoples Trust Co., its agents and employees, from instituting or going forward with any proceedings against appellees, who are husband and wife, for possession of the premises claimed by them as their homestead.

Appellees alleged in their sworn petition that on or about May 24, 1957 they entered into a written contract with Lumberman’s Acceptance Corporation for the repair of their home, and that the work to be done was the consideration for that certain note executed by them on May 29, 1957, payable to Monterrey Brick & Lumber Corporation in the sum of $2774.00, secured by said contract and also by a deed of trust, which note and lien were assigned to Lumberman’s Acceptance Corporation and by it to appellant ; that a dispute arose between appellees and said Lumberman’s Acceptance Corporation over the performance of the work required by said contract, and appellees filed suit against said corporation and appellant, alleging that said corporation failed to perform the work in a good and workmanlike manner as it was obligated to do, and, in the alternative, was negligent in the performance thereof. Appellees recovered a judgment against said corporation for the sum of $2512.00 but took nothing in said suit as against appellant.

Thereafter at the instance of appellant, said property was advertised for sale under said deed of trust and sold to appellant. After the trustee’s sale appellees brought the present suit to set aside the trustee’s sale and deed and to have the note and contract in question declared usurious and the proper balance owing on the note determined by the court, and for a temporary injunction pending final hearing, enjoining proceedings to dispossess them.

Appellant asserts that the court erred in granting the temporary injunction because appellees are judicially estopped from attacking the trust deed in question; because appellees having elected to assert certain rights under the contract in question may not now seek to invalidate any part thereof; because the judgment in the previous suit involving the identical contract between the parties is res judicata as to the present ■cause of action; and because appellees have waived their present cause of action by failure to assert the same in the previous •suit.

The law is well settled in this State -that the granting or refusing of a temporary injunction is within the sound discretion • of the trial court, and that the court’s ac-tion will not be disturbed on appeal unless ■it clearly appears that the- court has abused its discretion. Harding v. W. L. Pearson & Co., Tex.Com.App.1932, 48 S.W.2d 964; Southwestern Associated Tel. Co. v. City of Dalhart, Tex.Civ.App., 254 S.W.2d 819, error ref., n. r. e.; 24-A Tex.Jur. 382, Injunctions, § 265, and cases cited. The sole question before us is whether the trial court abused its discretion in granting the injunction.

The law is also well settled that the purpose of a temporary injunction is to maintain the status quo in regard to the matter in controversy until a final -hearing can be had on the merits. T. D. Anderson v. Tall Timbers Corporation, Tex.Sup.1961, 347 S.W.2d 592; James v. E. Weinstein & Sons, Tex.Com.App.1929, 12 S.W.2d 959. In the instant case there can be no question that the temporary injunction granted merely prevents appellant from dispossessing ap-pellees from their home and thus preserves the status quo until a final hearing can be had on the merits.

Appellant in its amended answer and cross-action has asserted a number of defenses involving judicial estoppel, res judi-cata, failure to assert their present cause of action against the defendant in the former -suit, thereby waiving the same, and other defenses. Plaintiffs on the other hand, are contending that the note and contract in question are usurious; that appel-lees never acknowledged before a notary public the deed of trust creating a lien for improvements on their homestead; that appellant deliberately withheld notice of the sale of said property in order to defraud appellees and keep them from taking any steps to protect their interest in the property, and that they had paid $228.00 on the note in question and had exercised their option to apply such payment to principal, leaving an unpaid balance owing on the note of only $1597.00 although they had tendered $1621.00 to appellant.

It is thus seen that the pleadings of the parties in this case raise not only questions of law but also disputed fact issues, which should be determined upon a final hearing on the merits of the case and not on a temporary injunction hearing.

We cannot say that the trial court abused its discretion in granting the temporary injunction in question. James v. E. Weinstein & Sons, supra; General Drivers, etc. v. Dallas County Const. Employers’ Ass’n, Tex.Civ.App., 246 S.W.2d 677, error ref., n. r. e.; Dallas Independent School District v. Daniel, Tex.Civ.App., 1959, 323 S.W.2d 639, writ ref., n. r. e., and authorities cited; Texas Foundries Inc. v. International Moulders & Foundry Workers Union, 151 Tex. 239, 248 S.W.2d 460, 464.

Affirmed.


author: WALTER, Justice.

text:
    Gladys MORTON et al., Appellants, v. Russell HILL, Executor, et al., Appellees.
    No. 3695.
    Court of Civil Appeals of Texas.
    March 2, 1962.
    Rehearing Denied March 23, 1962.
    R. J. Balch, Seymour, Dewey Cox, Jr., Ranger, for appellants;
    Virgil T. Seaberry, Jr., Earl Conner, Jr., Eastland, for appellees.
   WALTER, Justice.

Gladys Morton, widow of Gorman Morton and their children filed suit against Mary Leona Owen and Linda Pearl Owen, minor grandchildren of Leona Owen, for title and possession to an undivided one-fourth of the remainder and residue of the estate of Leona Owen deceased. Plaintiffs claim this one-fourth interest under Mrs. Owen’s will. In a non-jury trial, the court rendered a take nothing judgment against the plaintiffs.

The plaintiffs have appealed contending the court erred in holding the devise to Gorman Morton lapsed and that Leona Owen died intestate as to the interest devised to Gorman Morton. They also contend the court erred in failing to approve their request for findings of fact and conclusions of law and in dismissing their cause of action as to Carrie Dulin Ferrell, Folia Morton Thomas and Ina Barber Jones.

The parties stipulated the following:

(1) Leona Owen died October 13, 1959, leaving a last will and testament dated September 4, 1954, which has been duly admitted to probate in Eastland County, Texas.

(2) Gorman Morton, named as a residuary beneficiary in the will of Leona Owen, died January 12, 1959. His widow is Gladys Morton. Three children only were born to Gorman Morton, to-wit: Eloise Upton (wife of Cordell Upton), Edna Jean McKelvain (wife of John L. McKelvain) and June Ann Bryan (wife of Boyce Bryan).

(3) The only descendants and heirs at law of Leona Owen living at her death were Mary Leona Owen and Linda Pearl Owen, minor grandchildren of Leona Owen.

(4) Gorman Morton was a nephew of Leona Owen. Ina Barber Jones, Carrie Dulin Ferrell and Folia Morton Thomas are nieces of Leona Owen.

The court made the following findings of fact and conclusions of law:

Findings of fact

The will of Leona Owen, deceased, contained no provision with respect to the disposition, in the event of the death of Gorman Morton prior to the death of Leona Owen, of the property otherwise willed to Gorman Morton.

Leona Owen did not intend to provide in her will for the disposition, in the event of the death of Gorman Morton prior to the death of Leona Owen, of the property otherwise willed to Gorman Morton.

No substitute recipient for Gorman Morton was designated, or intended to be designated, by Leona Owen in her will as to the property otherwise willed to Gorman Morton.

Conclusions of Law

By reason of the prior death of Gorman Morton, the bequests to him in the will of Leona Owen failed and lapsed, said Gor-man Morton not being a descendant of testatrix so that Section 68 of the Texas Probate Code, V.A.T.S. could apply, and no provision being made or intended by Leona Owen in the event of his death prior to hers for substitution of some other recipient or for other disposition of the property otherwise willed to Gorman Morton.

Leona Owen died intestate as to such property as her will purported to leave to Gorman Morton, and upon her death such property vested in Mary Leona Owen and Linda Pearl Owen, subject to the rights, powers and duties of the executor of such estate and to the administration thereof.

Mrs. Owen’s will devised to Gorman Morton an undivided one-fourth of the remainder of her estate. It also created a life estate in Folia Morton Thomas with one-third remainder interest to Gorman Morton. It also created a trust for the benefit of Mrs. Owen’s two grandchildren with possibility of reverter to Gorman Morton.

The appellants contention that the court erred in holding the devise to Gorman Morton lapsed, because he pre-deceased the testatrix, can not be sustained.

The minor appellees, Mary Leona Owen and Linda Pearl Owen, were the only lineal descendants of the testatrix. The appellants are heirs of Gorman Morton. The appellants seek to recover the interest in Mrs. Owen’s estate that was willed to Gorman Morton. The court held the devise to Gorman Morton lapsed and that Mrs. Owen died intestate as to the property her will purported to leave to Gorman Morton. We agree with the court’s conclusions of law. Our Supreme Court in Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212, at page 215 said: “When a devisee or legatee, other than a lineal descendant, dies during the lifetime of the testator, the gift to him falls or lapses unless the testator prevents it by a provision in his will for the substitution of some other recipient. That is, if the will does not provide for substitution the devise or bequest fails where the deceased devisee or legatee is not a descendant of the testator, or where, being a descendant, he himself was not survived by children or descendants who survive the testator. Bomar v. Carstairs, 124 Tex. 492, 79 S.W.2d 841.” “A testator may prevent a testamentary gift from lapsing, because of the death of the donee before his own death, by the expression of such intention and a provision for the substitution or succession of some other recipient in case of the intermediate death of the first named donee. It is essential, however, to effect this object that it clearly appears that the testator intended to prevent a lapse, and he must declare, either expressly or in terms from which it can be collected with sufficient clearness, what person or persons he intended to substitute for the legatee dying in his lifetime.” 96 C.J.S. Wills § 1216b, pages 1053, 1054.

It was within the testatrix’ power to provide that the gift to Morton should not lapse in the event of his death. If this had been her intention she could have specified in her will what person or persons she intended to take the devise in the event of Morton’s death. No such provision appears in her will. Morton was not a lineal descendant of the testatrix. Said property therefore was undisposed of by her will and descends to her grandchildren. Bittner v. Bittner, Tex.Com.App., 45 S.W.2d 148.

Appellants made Ina Barber Jones, Carrie Dulin Ferrell and Folia Morton Thomas parties defendant. The court sustained their exception and dismissed them as parties to the suit. Appellants assert that this was error because said parties were necessary and indispensable. Appellants pleaded, “That it was the intention and the purpose of the said Leona Owen a one-fourth (14) Part of the remainder of her estate at her death should pass unto the said Gorman Morton and his heirs in fee simple. Your plaintiffs would further show the court that demand has been made upon the — Executor of the estate of Leona Owen, to deliver to them the one-fourth (⅛) part of the remainder of the estate of Leona Owen to which they are entitled under said will.” The appellant also pleaded that Jones, Ferrell and Thomas were nieces of the testatrix and that they were named as beneficiaries in the will.

The issue under the pleadings was whether or not the devise to Gorman Morton lapsed and passed to the heirs of the testatrix or passed to the estate of Gorman Morton. No judgment could be rendered under the pleadings that would, in any way, affect the rights of Jones, Ferrell and Thomas. Our Supreme Court in Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, at page 327 said: “Whether a person is a necessary party is determined by his interest in the subject matter and outcome of the suit. As stated in Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, all persons who have or claim a direct interest in the object and subject matter of the suit and whose interest will necessarily be affected by any judgment that may be rendered therein, are not only proper parties, but are necessary and indispensable parties.” In the case of Shield v. Shield, Tex.Civ.App., 286 S.W.2d 252, (Writ Ref. N.R.E.), a point was raised that the court erred in holding that Edwin J. Glass, the owner of the surface estate and an undivided one-half of the minerals in the lands in controversy was not a necessary and indispensable party. In disposing of this question the court said: “Appellants’ point No. 1 is overruled. The one-half interest in the minerals owned by Edwin J. Glass was never at any time involved in this suit. The subject matter of the suit was the ownership of one-half of the minerals previously owned by the Texas Standard Oil & Royalties, Inc., and the only necessary parties -are those who claim an interest in that mineral interest. The owner of the other one-half is not a necessary party. Bryan v. Bryan, Tex.Civ.App., 262 S.W.2d 736.”

We hold that Jones, Ferrell and Thomas had no claim or direct interest in the subject matter of the suit and that their interest could not be affected by any judgment rendered.

Appellants requested the court to make findings of fact and conclusions of law. The court complied with this request. Appellants objected to the findings and conclusions and requested the court to make additional findings of fact and conclusions of law. The findings of fact made by the court are supported by the evidence. Some of the additional findings requested were identical with the ones filed by the court. Another was substantially the same. Others were immaterial, for example No. 6, “That there was no close association or relationship between Leona Owen and the said grandchildren; that said children were never seen in the home of the grandmother, Leona Owen; that she never spoke about them and the children were not brought to visit with her.” Appellants have cited no authority in support of their contention.

We hold that appellants have not discharged their burden of establishing that failure to make such additional findings was error.

We have examined all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Walter CAMPBELL, Administrator of the Estate of Thomas Allen Campbell, Appellant, v. EAST KENTUCKY BEVERAGE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 16, 1962.
    Don A. Ward, William Melton, Hazard, for appellant.
    M. P. Barret, W. W. Reeves, Richard D. Cooper, Hazard, for appellee.
   PALMORE, Judge.

Tommy Campbell, a 16-year old boy, was drowned when a soft-drink truck on which he was employed as a helper ran off the road into a river. The administrator of his estate brought this action against the employer under the wrongful death statute, KRS 411.130. Among other defenses it was pleaded that the provisions of the Workmen’s Compensation Act applied and the circuit court was without jurisdiction to entertain the action. See Mahan v. Litton, Ky.1959, 321 S.W.2d 243. At the close of plaintiff’s evidence the trial court sustained defendant’s motion for a directed verdict. Plaintiff appeals.

The evidence showed that Tommy began to work as a helper on the appellee’s trucks in 1958, when he was 15 years of age. He reached his 16th birthday on January 3, 1959. On February 21, 1959, he signed the employer’s job application form on which ' his age was shown as 18 years. The fatal accident occurred on October 13, 1959.

It is contended that the employment was in violation of the Child Labor Law, KRS Chapter 339, and that the right to bring this suit is preserved by KRS 342.170, which reads in part as follows:

“If any minor employe is injured or killed while being employed by the employer in willful and known violation of any law of this state regulating the employment of minors, the statutory guardian or personal representative of the minor may claim compensation under this chapter or may sue to recover damages as if this chapter did not exist ⅜ ⅝ ⅜ **

Whether Tommy’s job was a hazardous occupation so as to bring him under the protection of KRS 339.240 is unnecessary to decide. At the least, his employment was in technical violation of KRS 339.280, because no employment certificate was procured. It is conceded, however, that the employer was operating under the Workmen’s Compensation Act. Therefore, in order to bring the action within the saving feature of KRS 342.170 plaintiff had the burden of proving that the violation was “willful and known.” Caldwell v. Jarvis, 1945, 299 Ky. 439, 185 S.W.2d 552; Riddell’s Administrator v. Berry, Ky.1956, 298 S.W.2d 1.

The only evidence conceivably bearing on the employer’s knowledge of Tommy’s true age (other than a photograph taken at least 1½ years before the date of the accident, which had no probative value) was this: Woodward Lyttle, Jr., the driver of the truck in which the boy was riding when it went into the river, said he did not appear to be 18 but “looked like about 17.” Yet this witness himself believed he was 18 until an hour before the tragedy, at which time, he says, as they were riding along the road leading to the place of the accident the matter of Tommy’s having quit school came up in conversation and the boy said he was 16. The witness admitted on cross-examination that one week after the accident he had signed a sworn statement that Tommy “never did mention it (his age) to me because I took it for granted he was eighteen.”

Even if this particular portion of Lyttle’s testimony were credible evidence, and if we should assume arguendo that notice to Lyttle was imputed to the employer, the information came too late to make possible any action by the employer to rid itself of the violation. Certainly it would be unreasonable to hold that such a “notice” could amount to knowledge within the meaning of KRS 342.170.

Swift v. Illinois Central Railroad Company, D.C.W.D.Ky., 1955, 132 F.Supp. 394, on which the appellant places much reliance, is inapplicable for the reason that it did not involve workmen’s compensation and, in particular, KRS 342.170. Moreover, the case of Wynn Coal Co. v. Lindsey, 1929, 230 Ky. 53, 18 S.W.2d 864, cited by the District Court in support of that portion of the opinion which might otherwise be relevant here, was expressly overruled in Caldwell v. Jarvis, 1945, 299 Ky. 439, 185 S.W.2d 552.

Judgment affirmed.


author: MOREMEN, Judge.

text:
    Mitchell ROWLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 16, 1962.

      Raymond C. Schultz, Paducah, for appellant.
    John B. Breckinridge, Atty. Gen., William F. Simpson, Asst. Atty. Gen., for ap-pellee.
   MOREMEN, Judge.

Appellant, Mitchell Rowland, was convicted of obtaining property by false pretenses — a crime denounced by KRS 434.050 —and was sentenced to confinement in the penitentiary for a period of one year.

In October 1960 Rowland went to a nursing home owned and operated by Mrs. Ouida Nance and told her that he was L. K. Johnson or L. J. Johnson (she was not sure about the initials) and that he was president of a union in Calvert City which was soliciting advertisements for the Calvert City telephone directory. While the proof is not too certain on this point, it appears that he was soliciting advertisements for telephone directory covers and the witness seems to have understood that. She entered into a contract for the purchase of advertising space and executed a check for $75 which she delivered to Rowland. The total contract price was $168.

At the trial Mrs. Nance testified that the check had been misplaced. She remembered that it had been endorsed by “Johnson President” but could not remember whether the name of the union appeared in the endorsement. Later she received four telephone directory covers which contained the advertisement. They were received, however, after appellant had been indicted. From direct examination one might draw the impression that she relied upon the representation that appellant was L. K. Johnson and was employed by the Central Trade and Labor Council of the western Kentucky area. However, when she was specifically cross-examined about the matter, it was definitely shown that she had not relied upon the fact that Rowland had impersonated Johnson, but was interested only in subscribing to the advertising medium. For instance, she testified:

“Q. Now, when — did the fact that he gave you this name whether it was L. K. Johnson Advertising Company or that he was L. K. Johnson, did that mean anything to you for purposes of giving him the $75 check and giving him the order? A. No.
“Q. In other words, it wouldn’t have been any different if he had said he was from the Sun Democrat Advertising Company or whether he said he was John Doe? A. No, sir, it wouldn’t have made any difference.
“Q. You didn’t rely on that name? A. On the advertising.
“Q. You were just dealing with the man you were talking to ? A. That is right.”

However, again on re-direct examination she said:

“Q. Mrs. Nance, you testified on direct examination that these false statements were made by Mr. Rowland, that you believed them at the time. A. I did.
“Q. That you relied upon the truth of them. A. I did.
“Q. And had you known they were false you would not have signed the contract or given him your money, is that correct? A. Yes.
“Q. Then you did rely upon them in parting with your money? A. Yes. But I got my covers.”

It appears that Mrs. Nance was easily led into supplying answers suggested by the form of the questions. Her testimony when considered in its entirety demonstrated that false impersonation by appellant was not a material element in inducing her to part with her money. She seemed to be interested only in obtaining advertising space and was content with her bargain and the performance of the supplier. The technicalities invoked by the use of the word “rely” seemed not to be recognized by her. When we look at the entire evidence in the record (only Mrs. Nance and L. K. Johnson testified) we are forced to the conclusion that the Commonwealth did not produce sufficient evidence to warrant submission of the case to the jury.

Subsection (1) of KRS 434.050 reads:

“Any person who, by any false pretense, statement or token, with intent to commit a fraud, obtains from another money, property or other thing which may be the subject of larceny, or who obtains by any false pretense, statement or token, with like intention, the signature of another to a writing, the false making of which would be forgery, shall be confined in the penitentiary for not less than one nor more than five years.”

In Rand v. Commonwealth, 176 Ky. 343, 195 S.W. 802, we said:

“To constitute the crime of obtaining money or property by false pretenses, the following things must appear: (1) A false pretense; (2) the false pretense must be made by the defendant, or by some one, whom he has induced to make it; (3) the defendant must have had knowledge of the falsity of the statement, token, or pretense when he made it; (4) the person defrauded must have relied upon the pretense and been induced thereby to part with his property or money; (5) the property or money must have been obtained by the defendant or by some one in his behalf; (6) the defendant must have had an intent to defraud; (7) and, lastly, an actual defrauding must have resulted.”

Our statute above quoted evolved from the common law offense of cheating and includes offenses which were distinguishable under the common law. It is pointed out in 22 Am.Jur., False Pretenses, § 2, false pretense and the common law cheat elements are often combined in statutory enactments. However, at common law, and now, false personation is a separate and distinct offense. 22 Am.Jur. False Pretenses, § 5. That common law offense is not covered by subsection (1) of KRS 434.050 which we have quoted above. It is covered by KRS 434.060, but that statute expressly limits the occasions where a person may be prosecuted for personating another, and the facts of this case do not place it under any category set forth. In addition, we have other special statutes dealing with false personation, such as marriage, KRS 402.090, or a registered voter, KRS 124.150, which have no application here.

A consideration of the testimony fails to convince us that Mrs. Nance relied upon any pretenses of appellant and was thereby induced to part with money or, for that matter, that an actual defrauding took place, both of which are necessary elements as set out in the Rand case above. The only offense shown was false personation by Rowland and because he was not Johnson as he represented himself to be, seemed to be a matter of small importance to the prosecuting witness.

We believe the Commonwealth failed to prove an offense had been committed under KRS 434.050 and that appellant’s motion for a directed verdict should have been sustained.

The judgment is therefore reversed.


author: CLAY, Commissioner. MOREMEN, Judge,

text:
    Bernard F. VEITH et al., Appellants, v. CITY OF LOUISVILLE et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1962.
    Dissenting Opinion Feb. 16, 1962.
    Richard H. Nash, John A. McCrea, Louisville, for appellants.
    Eugene Alvey, Herman Frick, Louisville, for appellees.
   CLAY, Commissioner.

Appellants are respectively the comptroller and accountant of the City of Louisville. This injunction suit was brought against them by the City of Louisville and three of its employees. The controversy arose when appellants refused to countersign salary checks payable to the appellee employees on the ground that the payment would violate the salary limitation of $7200 fixed by KRS 64.620. The supplementary salary involved was authorized by a 1961 ordinance of the City of Louisville.

The Chancellor ordered appellants to countersign the checks and the appeal is from that judgment. It was based on the Chancellor’s determination that the legal issue involved had been theretofore decided by a judgment in another proceeding before the Jefferson Circuit Court, from which no appeal was taken, and the matter was res judicata. The effect of that prior judgment is the first problem before us.

KRS 64.620 provides that (except for the mayor of a city of the first class) compensation of any officer or employee of a city “shall not exceed the constitutional limit for officers, which is $7,200 per an-num”. In Board of Education of Graves County v. De Weese, Ky., 343 S.W.2d 598 (which did not involve the foregoing statute), we held the word “officer” as used in Section 246 of the Constitution, which fixes their maximum compensation, was restricted to those officers directly named and designated in the text of the Constitution. Somehow conceiving that this decision had the effect of abolishing all statutory salary limitations upon public employees, the Board of Trustees of the Louisville Free Public Library (an agency of the City of Louisville) passed a resolution July 10, 1961 increasing the salary of its Director, Clarence Graham, to $10,755.

Thereafter a taxpayer, Walter Redmon, filed a suit in the Jefferson Circuit Court against the Louisville Free Public Library, the City of Louisville, and the Boards of Education of Louisville and Jefferson County. The suit was in the form of an agreed case under KRS 418.020 and sought a declaration of rights. While apparently the real controversy involved the right of the Director to be paid the increased salary under the resolution of the Library Board, the “agreed statement” of the case posed the larger and more general question of whether or not KRS 64.620 imposed any limitation upon the payment of salaries to officers or employees by the City, the City Board of Education, or the County Board of Education. (The Library Director, Mr. Graham, who obviously was a real party in interest, was not joined in the suit.)

In that suit the Chancellor did not adjudicate the validity of the Library Board resolution or the rights of Director Graham, but made a sweeping declaration that Section 246 of the Kentucky Constitution, KRS 64.600 and 64.620 (in the light of Board of Education of Graves County v. De Weese, Ky., 343 S.W.2d 598) “imposed no limitations on salaries paid to the officers and employees of the defendants and those similarly situated, except the salary of the mayor of the City of Louisville”. No appeal was taken from this judgment.

In the present case the Chancellor decided that the foregoing judgment was res judicata with respect to the present proceedings; that all parties were bound by it; that the appellee employees were therefore entitled to the supplementary salaries allowed by the City ordinance; and appellants should be ordered to make the payment by countersigning the checks.

The first contention made by appellants is that the former judgment in the suit of Redmon v. City of Louisville, et al. is void because it involved the validity of a statute, and in such cases KRS 418.075 requires that the Attorney General be served with a copy of the petition. We find it unnecessary to pass upon this ground because in our opinion the former judgment was ineffective to bind anyone as a matter of res judicata or otherwise for two reasons : (1) In the alleged controversy between the plaintiff taxpayer and the Library Board there was a failure to join an indispensable party, and (2) there was no jus-ticiable controversy between the plaintiff and the City of Louisville and the two Boards of Education.

With respect to reason (1), the only real controversy set forth in the agreed statement involved the legal right of the Library Director to the increased salary allowed by the resolution of the Library Board. No proper judgment could be entered without affecting his interest. I-Ie was clearly an indispensable party with respect to this controversy. See Buckner v. Clay, 306 Ky. 194, 206 S.W.2d 827; Treadway v. Russell, Ky., 299 S.W.2d 245; Clay, CR 19.01, Comment 2.

To make this proposition absolutely clear, we need only ask this question: In the absence of Director Graham as a party to the suit, could the court have entered an effective judgment denying him the right to receive the salary fixed by the resolution of the Board of Trustees? Since the Di-, rector was the principal party in interest and no judgment in the suit could be binding upon him, it was not binding on the other parties. See 30A Am.Jur., Judgments, Section 392 (page 440) ; Henderson County v. Henderson Bridge Co., 116 Ky. 164, 75 S.W. 239, 105 Am.St.Rep. 197. In any event, if the judgment could be construed as effectively deciding the validity of the Library Board resolution, it cannot be given the authoritative force of finally determining prospective legal rights of other parties who were not affected by such resolution.

Turning to reason (2) set out above, it is obvious on the face of the agreed statement and on the face of the judgment that no actual, or real, or justiciable controversy existed between the plaintiff, a taxpayer, and the City of Louisville or either of the Boards of Education. None of these defendants had taken any action to create or deny anyone’s rights. The only pertinent allegation in the agreed statement is that the City and the Boards of Education were proposing to raise the salaries of some of their employees above $7200.

Nothing specific is alleged concerning when such action may be taken, who will benefit thereby, or what will be the form of the increased allowance or the amount thereof. As we shall see, the possible development of a legal issue sometime in the future is too remote to constitute a real controversy. The matter presented for adjudication between these parties consisted of no more than an academic dispute concerning certain general legislative or executive powers of the defendants. The sweeping language of the judgment demonstrates that no one’s rights were being finally adjudicated but that the court was rendering an advisory opinion on a hypothetical question.

The declaratory judgments act (KRS 418.040-418.085) was held constitutional on the specific ground that the court would be exercising a judicial power only if, in making a binding declaration of rights, it was deciding a justiciable controversy. Black v. Elkhorn Coal Corporation, 233 Ky. 588, 26 S.W.2d 481. In that case we said (page 483 S.W.) :

“The court will not decide speculative rights or duties which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties, and in which a binding judgment concluding the controversy may be entered.”

This rule has been consistently recognized and applied. See Axton v. Goodman, 205 Ky. 382, 265 SW. 806; Shearer v. Backer, 207 Ky. 455, 269 S.W. 543; and Nichols v. Rogers, 292 Ky. 428, 166 S.W.2d 867. Clearly the court cannot conclude a nonexistent controversy.

It has been held that a court does not have jurisdiction to decide a question unless there is a real or justiciable controversy involving specific rights of particular parties. Revis v. Daugherty, 215 Ky. 823, 287 S.W. 28; Commonwealth ex rel. Winchester v. Winchester Water Works, 303 Ky. 420, 197 S.W.2d 771; Elrod v. Willis, 303 Ky. 724, 198 S.W.2d 967.

The court may not declare prospective or future rights, unless there is an existing state of facts upon which those rights may be fixed. 16 Am.Jur., Declaratory Judgments, Section 18 (page 292) ;. 87 A.L.R. 1215. For example, in Kelly v. Jackson, 206 Ky. 815, 268 S.W. 539,. a declaratory judgment proceeding was. brought to determine certain rights arising out of a stock law election. The court' determined the principal controversy. The court then went on to make a purportedly binding declaration of rights, determining who would be legal voters in future elections. With respect to this part of the judgment it was said (page 540 S.W.) :

“By the above the court undertook to decide a question that it was asked by an amended petition to settle for these parties. There is no suggestion that an actual controversy exists. It only appears to be a mooted neighborhood question. Courts are not provided for the settlement of arguments or differences of opinion, but actual controversies involving legal rights. No election has been called. No one has any present right to vote on the question that any one is disputing. The amended petition presented only a moot question, and should have been dismissed.”

Similarly in City of Covington v. Sohio Petroleum Company, Ky., 279 S.W.2d 746, the parties had alleged that an actual controversy existed over the right of a municipality to discontinue water service to consumers outside the corporate limits. In the opinion it was observed (page 750 S.W.) :

“There was no actual controversy presented concerning the right to discontinue services on which a binding judgment could be rendered. The court should not be called upon to decide speculative rights or duties which may or may not arise in the future. Appellant urges that this question should be passed upon now because ‘the ripening seeds of controversy are present’ and in order to prevent future litigation. The condition precedent to a declaration of rights is the existence of an actual controversy respecting a justiciable issue, rather than a prospective controversy.”

Under the foregoing authorities it seems clear the former lawsuit between the taxpayer and'the City and the Boards of Education lacked the essential element of a justiciable controversy. In no sense were the rights of the plaintiff and those defendants in conflict because there existed no status out of which a legal controversy could arise. No action had been taken by the City or the Boards of Education which changed or affected anyone’s pre-existing rights (as did the resolution of the Library Board in that case and the ordinance in the present one). Between these parties there was no grist for the judicial mill.

Whether or not the judgment in the case of Redmon v. City of Louisville et al. was void, we are forced to the conclusion that it did not constitute an effective and binding adjudication of any issues raised in the present suit (which are real), and consequently it could not support a plea of res judicata. There are other reasons why this is so but we need not discuss them.

While the Chancellor did not consider this case on its merits, we believe the public interest demands a determination of the clearcut issue presented. It is whether or not KRS 64.620 fixes a statutory limit of $7200 on the compensation lawfully payable by the City to the individual parties plaintiff, who are its officers or employees. The statute reads as follows:

“With the exception of the office of mayor of any city of the first class, the compensation of any officer or employe of a county, city, political subdivision, local governmental unit or district, or of any city or county board or commission, or combined city-county board or commission, for services rendered in one or more offices or positions of employment, shall not exceed the constitutional limit for officers, which is $7,200 per annum, provided, however, that nothing herein contained shall apply to any officer or employe exclusively engaged in performance of a proprietary function for any of such governmental units.” -(Our emphasis.)

The limitation fixed by this statute is clear. The argument that it does not mean what it says is based upon our opinion in the De Weese case (Board of Education of Graves County v. De Weese, Ky., 343 S.W.2d 598). That opinion did not involve this statute. We did specifically point out therein that except for constitutional officers, salary restrictions, if any, were to be determined by the legislature and attention was called to the legislative restriction imposed by KRS 64.480 to 64.-760 (which includes KRS 64.620). To the extent pertinent here, that opinion simply defined “officers”. It did not purport to construe or repeal salary limitations fixed by the legislature.

For the foregoing reasons the defendant should not have been ordered to perform any acts in violation of the law.

The judgment is reversed on the issues discussed in this opinion.

MOREMEN and WILLIAMS, JJ., dissent.

MOREMEN, Judge,

with whom WILLIAMS, Judge, joins, dissenting.

In the opinion it is stated that the former judgment was ineffective to bind anyone as a matter of res adjudicata or otherwise, because (1) In the suit between the taxpayer and the library board there was a failure to join an indispensable party, namely, the library director, Mr. Graham; and (2) There was no justiciable controversy between the plaintiff and the city of Louisville and the two boards of education. It seems to Judge Williams and me that this interpretation of the agreed case statute, KRS 418.020, is so restrictive and confining that it will result not only in making the statute useless, but will have the same effect when applied — and similarly it should be applied if the holding is correct — to KRS 418.040 et sequitur.

We will state some facts in order to discuss the first proposition. In the agreed verified statement in the first case it was-alleged: The plaintiff, A. Walter Redmon,. was a substantial taxpayer of the city of Louisville and of Jefferson County, and had paid and was paying county taxes, county school taxes, city school taxes and taxes of the city of Louisville.

The second paragraph made formal allegations concerning the corporate existence of the library and it was alleged that the city board of education and the county board of education were boards of education of the state of Kentucky having charge of city and county schools.

The third paragraph averred that some of the funds for conducting the libraries in the city of Louisville were rents from property owned by it and that it also received appropriations from the city of Louisville.

In the fourth paragraph it was set forth that Clarence R. Graham had been director of the library for some nineteen years and he had received a salary of $7200 per an-num; in addition for several years prior to July 1, 1961, he had also rendered services to the University of Louisville and received therefrom a salary which the University had discontinued on July 1, 196L

The next paragraph recites this resolution of the Library Board:

“WHEREAS, there is now no constitutional limitation on the amount of salary to be paid to the Director, and, we are advised, KRS 64.620 does not limit the salary to be paid to the Director; now, therefore, in order that the aggregate remuneration to the Director shall not be reduced by reason of the action taken by the University of Louisville, it is unanimously
“RESOLVED that effective July 15,. 1961 the salary to be paid to Clarence-R. Graham as Director of the Louisville Free Public Library shall be at the rate of $10,755 per annum.”-

It seems to us that here we have a clear and actual controversy between a taxpayer who has an interest because he has paid part of a tax, and a board which is charged with the duty, rightfully, to disburse that tax in payment for the discharge of the duties of a public position, namely, director. The one who fills that office, it appears, so far as the legal question is concerned, is immaterial. We presume he could be removed or replaced at the pleasure of the board. The main issue concerns whether the board has a right to disburse tax funds in this amount for this purpose.

In Smith v. Campbell, Ky., 286 S.W.2d 532, a citizen and taxpayer filed action against the county treasurer and all magistrates who had served as members of the fiscal court since 1946, and sought to recover lump sum payments made to the magistrate members of the fiscal court for office rent and telephone expenses. In the year 1935, the fiscal court had passed a resolution providing for allowances to the magistrates for office rent. An appeal was tak<en from the order of the fiscal court to the ■circuit court in which the county attorney was the appellant and the fiscal court as an ■entity was the appellee. The circuit court affirmed the validity of the resolution of the fiscal court and this prior judgment was pled as being res adjudicata of the question.

Upon appeal this court held that the 1935 suit was res adjudicata of the question as to all payments made prior to 1950 at which time the statute was enacted which prohibits lump sum payment of expenses. The court said:

“With respect to the question of whether the parties are the same, the appellee makes some point of the fact that the 1935 judgment was rendered on an appeal from an order of the fiscal court, in which the county attorney was the appellant and the fiscal court as an entity was the appellee; whereas the present action is by a citizen and taxpayer as plaintiff against the individual magistrates as defendants.
“We have no difficulty in concluding that the county attorney in the 1935 adtion, and the citizen and taxpayer in the present action, both represented the people of the county and therefore were privies in interest. Accordingly, on one side of the actions the parties must be considered the same. It is also our opinion that on the other side of the actions the fiscal court in the 1935 action, and the individual magistrates in the present action, must be considered as privies and the same parties. Any individual liability of the magistrates to repay the allowances made to them would depend upon a finding that the fiscal court had no authority to make the allowances. It seems to us that a finding in an action against the fiscal court, that the authority did exist, must be conclusive of the question of individual liability, because of the dependent nature of the liability.”

The recent case of Matthews v. Ward, Ky., 350 S.W.2d 500 (Oct. 20, 1961) was presented under KRS 418.020 as an agreed case to determine the validity of an agreement which the Department of Highways had made with one of its engineers, Mr. Graves. Under the contract the Department of Highways agreed to pay to the engineer the sum of $300 in lieu of his moving expenses. Engineer Graves was not made a party. No question was raised as to whether Graves was an indispensable party. The court expressed its opinion concerning the questions raised.

In Iroquois Post No. 229, American Legion, v. City of Louisville, Ky., 279 S.W.2d 13, which was an action under the Declaratory Judgment Act for a declaration that appellant’s institution was one of purely public charity within the constitutional provision exempting such property from taxation by the city, this question was raised on appeal and it was said:

“It appears from the briefs that some question was raised in the lower court as to whether the county tax commissioner should have been made a party defendant, because of the fact that the ■City of Louisville, in accordance with KRS 132.285, has adopted the assessments of the county tax commissioner. However, we do not find any motion appropriately raising the question. Upon remand of the case, if an appropriate motion is made, the court should ■order that the county tax commissioner be made a party, in view of the fact that his interests may be affected by the declaration. KRS 418.075.”

This opinion, in a limited way, indicates that parties remotely interested should be ■drawn into the controversy but at the same time there is an implication that unless a motion is made to join such parties the defect may be waived. In the case at bar, -no one asked that the library’s director be joined nor was the question raised by the “Statement of Points under C R 75.04.”

The term, indispensable party, is difficult to define. The best attempt to do so, we have found, is in Baltimore & O. R. Co. v. Chicago River & I. R. Co., 7 Cir., 170 F.2d 654, which is as follows:

“An indispensable party is one without whom the court can do nothing, or as was said in Barney v. Baltimore City, 73 U.S. 280, 284, 6 Wall. 280, 284, 18 L.Ed. 825, ‘(an indispensable party is one) whose interests in the subject-matter of the suit, and in the relief sought, are so bound up with that ■of the other parties, that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed.’ ”

As is stated above in this opinion it appears the controversy between the taxpayer and the library board is whether the tax paid by one may be so disbursed by the •other. That question seems complete in itself and subject to judicial determination by "the court. If this were a case by a taxpayer to require the library board to recover back salary paid to its director or a suit to recover payment of the salary from hoth the board and the director, then the director would be an indispensable party because it would fix liability upon him.

If the interpretation given this term by the majority opinion is correct, then in the future, suits under KRS 418.020 and 418.040 will be greatly limited and it will be necessary for the parties to wait until the damage has been done before a judicial determination of their rights may be had.

In connection with the second thesis set forth in the opinion that there was no jus-ticiable controversy between the plaintiff and the city of Louisville and the two boards of education, the original suit, after setting forth in great detail the library’s problem, makes this allegation:

“The City proposes to take similar action in raising the salaries of certain city employees above the limit of $7,200 per annum.
“The City Board of Education and the County Board of Education propose to increase the salaries of their respective superintendents so that they will receive in excess of $12,000.
“The City contends, as does the Library, that KRS 64.620 does not limit salaries to city officers and employees to $7,200 a year, and the City School Board and the County School Board similarly contend that KRS 64.600 does not, when properly construed, limit the salaries of their officers and employees to $12,000 per annum.
“The plaintiff contends that the city employees are limited to $7,200 per an-num and that the officers and employees of the City and County School Boards are limited to $12,000 per an-num.”

The foregoing allegations were unchallenged by any request to make them more detailed or specific. In light of the allegations that preceded them no party could be deceived by the action which the school boards or the city were taking or had taken and here again the question between the taxpayer and the disbursing board was clearcut. We think in such cases of doubt the rules of pleading, as exemplified by the Civil Rules and the intention of the Agreed Suit Act and the Declaratory Judgment Act should be construed as said in C R 1: “To secure the just, speedy and inexpensive determination of every action.”

Both Judge WILLIAMS and I believe the original judgment erroneously interpreted the previous construction of KRS 64.620 and 64.600, hut no appeal was taken from that judgment and whether it was correct or incorrect is now immaterial. See Carroll v. Fullerton, 215 Ky. 558, 286 S.W. 847. The damage which this opinion may do to the usefulness of suits under the Agreed Judgment Act and the Declaratory Judgment act compels us respectfully to dissent from the majority opinion of the court.


text:
    Charles “Red” WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 16, 1962.
    Wm. R. Forester, Harlan, for appellant.
    John B. Breckinridge, Atty. Gen., Robert L. Montague, III, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

The appellant was convicted of unlawfully possessing intoxicating liquor in local option territory. The incriminating evidence was obtained by virtue of a search warrant. The affidavit supporting the warrant was based on information given to the affiant by another. It stated that the named informant told affiant that appellant “has in his possession at this time beer and whiskey in said dwelling home for the purpose of sale.”

Even before the decision in Henson v. Com., Ky.1961, 347 S.W.2d 546, which declared the same rule applicable to affidavits based on the affiant’s personal observation, it was well settled that an affidavit based on information or belief is defective unless-it discloses when the observation was made by the informant. See Com. v. Dincler, 1923, 201 Ky. 129, 255 S.W. 1042; Abraham v. Com., 1924, 202 Ky. 491, 260 S.W. 18; Van Hook v. Com., 1933, 247 Ky. 81, 56 S.W.2d 702; Barton v. Com., 1935, 257 Ky. 419, 78 S.W.2d 310; Duncan v. Com., 1944, 297 Ky. 217, 179 S.W.2d 899; and Webb v. Com., Ky.1960, 339 S.W.2d 177. Hence the warrant in this case fails for lack of a sufficient supporting affidavit, and the evidence obtained through it was inadmissible.

It appears from the testimony that the informant, Morris, had bought- liquor from' the appellant at the latter’s house earlier during the same evening in which the affidavit was made. It would have been no more burdensome to say so in the affidavit than it has been to say it here.

Motion for appeal sustained and judgment reversed.


author: CULLEN, Commissioner.

text:
    NEWARK INSURANCE COMPANY, Appellant, v. Richard W. BENNETT, Rex May, Jr., and Viola May, Appellees.
    Court of Appeals of Kentucky.
    March 16, 1962.
    Herbert C. Howard, Louisville, for appellant.
    William Kiel, Louisville, for appellees, Rex May, Jr., and Viola May.
    Nixon Duncan, Louisville, for appellee, Richard W. Bennett.
   CULLEN, Commissioner.

Newark Insurance Company issued a liability insurance policy to Patrick Franklin, covering a Buick automobile. Thereafter, on an occasion when the automobile was being operated by Franklin’s brother-in-law, Richard Bennett, it was involved in an accident which caused damage to Rex and Viola May. The Mays brought an action against Bennett, which the insurance company undertook to defend. His deposition was taken in that action and in the course of the deposition he stated that he had purchased the automobile from Franklin prior to the accident and that he owned it at the time of the accident. The insurance company then brought a suit against Bennett and the Mays, seeking a declaration that its policy afforded no insurance protection to Bennett because of the change of the ownership of the automobile. The question of who owned the automobile at the time of the accident was submitted to a jury, which found that Franklin was the owner. Judgment was entered declaring that the insurance policy afforded protection to Bennett, under the omnibus clause, as a person operating the automobile with the consent of the owner. The insurance company has appealed.

The primary contention of the appellant is that it was entitled to a summary judgment because Bennett’s statement, in his deposition taken in the action by the Mays against him, constituted a judicial admission which was binding on the Mays. We need not consider the question of whether a deposition taken in a different lawsuit may constitute a judicial admission, because in our opinion the statement in question, even if accepted as a judicial admission against Bennett, could not be binding on the Mays.

The general .rule is that the admissions of a party are not admissible against his coparties unless they consent thereto, adopt the statements as their own, or there is “privity” between the party making the admission and the coparties. 20 Am.Jur., Evidence, sec. 641, pp. 540, 541. The appellant here argues that there is privity between Bennett and the Mays, in that the Mays’ rights must be derived from and through Bennett and that they cannot have any rights greater than his.

The term “privity” appears to have no firmly settled, universally applicable meaning. It seems that the meaning may vary according to the nature of the purpose for which the theory of privity is sought to be invoked. For the purpose of determining whether one party is to be bound by another party’s judicial admission we think an appropriate statement of the elements of privity is that set forth in 24 American & English Encyclopedia of Law, 2nd Ed., p. 747, as follows:

“Absolute identity of interest is essential to privity. The fact that two parties as litigants * * * happen to be interested in proving or disproving the same facts creates no privity between them.”

Under the foregoing definition there is no privity between Bennett and the Mays. Their rights are not identical. In fact (aside from the right of Bennett to be defended by the insurance company, which is not of particular concern in this lawsuit), the rights are exclusive of each other, because Bennett could recover from the insurance company only if he had paid a judgment against him in favor of the Mays, and the Mays could recover from the company only if Bennett had not paid such a judgment against him.

It is true that as concerns the essential fact of ownership of the car by Franklin, either the Mays or Bennett, if seeking a recovery from the insurance company, would be required to prove that fact. But the mere fact that Bennett may have put himself in a position where he, if he were seeking to recover from the company, would be estopped to prove ownership of the car by Franklin, could not have the effect of precluding the Mays from proving such ownership in an action in which they sought recovery from the company.

The appellant maintains that the trial court erred in not permitting the appellant to read Bennett’s deposition, taken in the other action, as “substantive evidence” on the question of ownership of the automobile. The court ruled that the appellant might read “such portions of the deposition * * * as tend to contradict the witness Bennett or which amount to admissions by the witness Bennett” (our emphasis). The appellant put Bennett on the stand, and when he denied ownership of the car the appellant read at length those portions of the deposition in which he had claimed to be the owner of the car. The jury was not given any admonishment that the portions of the deposition so read could be considered for purposes of contradiction only.

Of course the deposition was admissible as substantive evidence against Bennett, but what the appellant desired was that it be admitted against the Mays. In our opinion it was not admissible as substantive evidence against them.

Under the general law of evidence the deposition was admissible against Bennett as an admission agaiilst interest. But for the reasons hereinbefore stated, since there was no privity between Bennett and the Mays, the latter would in no respect be bound by this admission, and consequently it would not be susbtantive evidence against them.

The deposition also was admissible as substantive evidence against Bennett (assuming for the purposes of this discussion that a deposition taken in a different lawsuit is covered by the rule) by virtue of the provision of CR 26.04(2) that the deposition of a party may be used by an adverse party for any purpose. But since a party other than an adverse party cannot use the deposition as substantive evidence we think it necessarily follows that the deposition cannot be used against him. On the sole factual issue in the instant lawsuit (the ownership of the car) the Mays and Bennett were not adverse parties. The Mays could not have used Bennett’s deposition as substantive evidence because they were not adverse parties to him; accordingly, the deposition could not be used as substantive evidence against them.

While the deposition should have been admitted as substantive evidence against Bennett (with an appropriate admonition not to consider it against the other defendants), no actual prejudice to the appellant could have resulted from the restrictions the court placed on its use in this case.

The judgment is affirmed.


author: STEWART, Chief Justice.

text:
    The ATTORNEY GENERAL, etc., et al., Appellants, v. G. L. S. JOHNSON et al., Appellees.
    Court of Appeals of Kentucky.
    March 16, 1962.

      John B. Breckinridge, Atty. Gen., Walter C. Herdman, Asst. Atty. Gen., for appellants.
    Darrell B. Hancock, John R. Cook, Jr., Lexington, for appellees.
   STEWART, Chief Justice.

This is an appeal from an order of the Fayette Circuit Court dismissing appellant’s complaint on motion of appellees.

Appellees, G. L. S. Johnson and his wife, Bridget Johnson, and S. C. Guilfoyle, requested the Board of Adjustment of the City-County Planning and Zoning Commission of Lexington and Fayette County (hereinafter referred to as “the board”) for a permit to conduct a coin-operated laundry at 200 College View Avenue in a residential district, following a building inspector’s refusal to grant a license to carry on the business at this site. Such a permit would amount to a variance from an existing nonconforming use. The University of Kentucky, an adjoining landowner, opposed the allowance of the permit. After a hearing, the board granted it.

The Attorney General of the Commonwealth of Kentucky then entered the controversy on behalf of the university and filed an appeal in the circuit court which, as we have noted, was dismissed. The case is now before us and reversal of the judgment is urged on the ground that the board’s action was arbitrary, unreasonable and illegal because:

1. The nonconforming use had previously been discontinued and abandoned; and

2. The evidence fails to show any “undue hardship” or “peculiar and exceptional practical difficulties” required under the zoning ordinance-resolution for permitting any variance from a nonconforming use.

Section 1 of KRS 100.355 provides in brief that the “lawful use” of land for certain purposes in a city such as Lexington, existing at the time of the adoption of any zoning regulation, or at the time of any amendment thereto, may be continued, although such use does not conform to the terms or conditions of the new regulations or restrictions. Subsection 2 of this section states, in part, that “a nonconforming use of the building or structure may he changed to another nonconforming use of the same or more restricted classification.” (Emphasis added.)

Section 24.422 of the zoning ordinance-resolution of the City of Lexington bestows upon the board the authority to allow a variance where the strict or literal enforcement of its provisions would result “in peculiar and exceptional practical difficulties or exceptional and undue hardship upon the owner” as regards the piece of property affected. Section 5.222 of the zoning ordinance-resolution provides in substance that where a nonconforming use is voluntarily discontinued it is lost and thereafter cannot be resumed nor can a variance be granted.

(The zoning ordinance-resolution was not incorporated in the record but we believe, from the extensive references made to it, we have correctly epitomized the pertinent subject matter of the two sections above mentioned.)

The property in question, located on the corner of College View Avenue and Lexington Avenue, was acquired by the John-sons in 1946, and a structure situated thereon was used by them as a grocery store until August, 1955. It had for 32 years previously been operated as a grocery store and was so operated when the zoning ordinance-resolution was passed.

In December, 1955, the Johnsons leased the main building to the Newman Club of the University of Kentucky to be used for social and missionary group meetings. The Newman Club remained as a tenant until September 1, 1959. The Johnsons stored some fixtures and home-canned goods in the basement and kept some record books in an outbuilding. S. C. Guilfoyle used a portion of the building for a secondary real estate office on some occasions. A garage on the premises was rented to one Walter J. Jordan.

Appellants argue the foregoing facts, which are undisputed, clearly show a change in the original nonconforming use of the property, for which no variance was obtained, and that its established use as a grocery store had voluntarily been abandoned for almost five years prior to appel-lees’ application for a permit to conduct a coin-operated laundry at the site.

In support of this position appellants cite McQuillin, Municipal Corporations, (3d ed.), Vol. 8, sec. 25.189, wherein it is stated: “It is a general rule that the right to a nonconforming use continues only so long as the use continues to exist in fact and until its legal termination, which may be by non-use or discontinuance for a prescribed period, * * *. The original nature and purpose of a nonconforming use must remain unchanged, if it is to continue to exist as of right.”

The policy and spirit of the zoning law of this state ordains the gradual elimination of nonconforming uses, and the general intent of ordinances dealing with the subject matter is to hold nonconforming uses within strict limits; and any change effected, as subsection 2 of KRS 100.355 requires, must be “to another nonconforming use of the same or more restricted classification.” We have pointed out that an important consideration in a case of this character, where a shift in use is contemplated, is to be certain that the type of activity carried on under the second use is merely incidental to the major activity allowed by the former nonconforming use. See Feldman v. Hesch, Ky., 254 S.W.2d 914. See also McQuillin, Municipal Corporations, (3d ed.), Vol. 8, sec. 25.183.

A diligent search has brought to light only two cases decided in this forum which touch on the course this Court has followed where an issue involving a material change in a nonconforming use has been presented to be passed upon. These cases are City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, and Feldman v. Hesch, supra. Each of them laid down the rule that nonconforming uses should be held within a rigid boundary. Under the facts presented, one held the existing use could not be enlarged or extended; the other that a change to a substantially different use was of course not allowable. The same statute, KRS 100.355, and an ordinance similar to the one in this case, were involved. We believe the principles laid down in these two cases are controlling here. This leads us to an inquiry of whether there has been such a discontinuance of the established use of the property under consideration that it must be declared lost.

In other words, has there been an abandonment in this case of the existing nonconforming use? We believe there has been. In the case of State v. Casper, 5 N.J.Super. 150, 68 A.2d 545, it was held that a nonconforming use must be actively and constantly maintained or it will be deemed relinquished. The question of abandonment, like the question of an established use, must be approached upon the basis that the law is concerned, not with a mere plan in mind or a change of intention, but with acts or a failure to act. See McQuillin, Municipal Corporations, (3d ed.), sec. 25.192. Certainly, a considerable lapse of time in the discontinuance of the use may show an intention to abandon the right and may be considered in connection with acts manifesting that intention. See McQuillin, id., sec. 25.192.

When we measure the principles of law we have stated against the facts presented, we must hold that the original nature and nonconforming use of the property in controversy as a grocery store was abandoned in December, 1955, when the Johnsons rented the main building to the Newman Club of the University of Kentucky. In addition, other departures from the existing use of the property besides its employment as a grocery store were placed in effect during this time. These we have recited. That an intention to abandon the established nonconforming use has remained in the minds of the Johnsons since 1955 is also made manifest by their undertaking to lease the premises at a fairly recent date as a coin-operated laundry. Thus, the acts of the Johnsons in ceasing to conduct a grocery store at the site, together with the long period of time, namely, five years, that such nonuse has continued, afford a sufficient basis for concluding there has been an abandonment of the nonconforming use within the meaning of the ordinance-resolution.

Appellees contend the board was estopped to deny the issuance of a permit because the city building inspector, James L. Shea, advised Guilfoyle that a nonconforming business use of the property could be maintained by the placing of a sign on the building indicating that it was to be used for a real estate office. The building inspector issued a permit to Guilfoyle for business use of the property as such an office in 1957 and 1959, each permit covering a period of two years. A sufficient answer to this argument is contained in this statement from 101 C.J.S. Zoning § 390, p. 1235:

“A municipality cannot be estopped to enforce a zoning regulation against a violator by the conduct of its officials in encouraging or permitting such violator or others to violate the ordinance in the past, since in the enforcement of a zoning ordinance, bylaw, regulation, or restriction a municipality or other governmental subdivision acts in its governmental capacity as distinguished from its proprietary capacity, so that the doctrine of estoppel cannot be applied against it.”

In view of the decision we have reached with reference to the first point raised, it becomes unnecessary to consider the second.

Wherefore, the judgment is reversed for consistent proceedings.


author: CLAY, Commissioner.

text:
    Harold MOBERLY, Chairman of The Alcoholic Beverage Control Board, et al., Appellants, v. Charles N. KING et al., Appellees.
    Court of Appeals of Kentucky.
    March 16, 1962.
    William Young, Robert Hines, Dept, of Alcohol Beverage Control, Frankfort, for appellants.
    Rudy Yessin, Smith, Reed & Leary, Frankfort, for appellees.
   CLAY, Commissioner.

Appellant Taylor, the proprietor of a restaurant in Frankfort, applied to the Alcoholic Beverage Control Board for a retail malt beverage license. It was protested by a number of neighbors. After a hearing prescribed by statute, the license was granted. Appellees, the protesting parties, appealed to the Franklin Circuit Court and the order of the Board was set aside. Taylor and the Board appeal.

The rights of the parties and the procedures are governed by Chapter 243 of the Kentucky Revised Statutes. KRS 243.450 specifies causes for which a license shall be refused. Subsection (2) thereof provides:

“A license that might be issued under KRS 243.020 to 243.670 may be refused by a state administrator for any reason which he, in the exercise of his sound discretion, may deem sufficient.” (Our italics.)

The Board found the applicant Taylor had met the requirements of the law and that sufficient cause had not been shown why the license should not be granted.

At the hearing before the Board, conducted pursuant to KRS 243.550, appel-lees introduced substantial evidence that for aesthetic, moral, economic, and other reasons the sale of malt beverages at this location would be inimical to the best interests of the neighborhood. We may assume appellees made a showing sufficient to have justified the State Administrator in refusing the license under KRS 243.450(2) above quoted. However, there is nothing in the law which requires the Administrator to deny a license on these grounds. The trial court took the view that such a license should be refused if the Board fails to1 find that its issuance is in the public interest, and the contrary is shown, concluding that the granting of a license under these circumstances constitutes an abuse of discretion.

The statutory law contains no requirement that the issuance of the license be in the public interest, or that the Board shall consider such question, or make a finding with respect thereto. Under KRS 243.450 an applicant is entitled to a license if he has made proper application, has not violated any of the three conditions prescribed in that statute, and the State Administrator does not find a sufficient reason for denying the application. There is no provision that the Administrator must find a sufficient reason for granting the license. Compliance by the applicant with the statutory conditions is enough to authorize its issuance.

An appeal to the circuit court, allowed by KRS 243.560 to a “citizen feeling himself aggrieved” by an order of the Board granting a license, is to a certain extent illusory. It does not afford him any right to relief from such order on the ground that public interest considerations, would have justified a refusal of the license by the Administrator. While the Administrator, acting under KRS 243.450(2),. may refuse a license on this ground (which would furnish a basis for appeal by the-applicant), there is nothing in the statute which directs or compels him to do so.

At the hearing before the Board appellees, properly presented several objections to the-use of the applicant’s premises for the sale-of malt beverages in an effort to persuade the Administrator to refuse the license. Beyond serving this purpose, their proof' was without legal force. As observed in Alcoholic Beverage Control Board v. Hall, 297 Ky. 432, 180 S.W.2d 293, which involved substantially the same objections presented by appellees, they have no controlling effect, upon the right of a qualified person to obtain a license properly applied for. Consequently appellees’ proof created no right in them to contest, on appeal, the order of" the Board.

KRS 243.570 prescribes a limited review-in the circuit court from an order of the-Board. No contention is made that the-Board acted without or in excess of its. powers, or the order was procured by fraud. The only other question the circuit court-could properly consider was whether or not there was any substantial evidence to support the order “if questions of fact are in issue”. Since the statutory law does not require the Board to determine whether- or not the issuance of this license is desirable, or in the public interest, or contrary to the wishes of those in the neighborhood,, no such issue of fact was before the Board. Consequently the nonexistent issue was not reviewable on appeal, and there was no-ground upon which the circuit court could find an abuse of discretion. The judgment based on this finding was therefore erroneous.

Appellees contend that appellant Taylor’s place of business violates a zoning ordinance of the City of Frankfort. This question was apparently not considered, and certainly not resolved, by the circuit court in its findings or judgment. We cannot comprehend how it has any relevancy to the present proceeding and appellees do not enlighten us in their brief.

The judgment is reversed with directions to enter a judgment sustaining the order of the Alcoholic Beverage Control Board.


author: MONTGOMERY, Judge.

text:
    CITY OF GREENVILLE, Appellant, v. Wilbert GOSSETT et al., Appellees.
    Court of Appeals of Kentucky.
    March 16, 1962.
    Dan Comette, Jarvis & Cornette, Green-ville, for appellant.
    Otto Martin, Hartford, for appellees.
   MONTGOMERY, Judge.

The City of Greenville, a fourth-class city, proposed to extend its boundaries to include the Boggess Heights and Cherry Heights subdivisions. A majority of the resident voters of the area remonstrated. The circuit court held that material injury would result to the owners of real estate within the limits of the proposed extension and denied the annexation. This presents the only question. KRS 81.220. Mitchell v. City of Central City, Ky., 354 S.W.2d 281.

The present boundaries of the City contain an area of 873.57 acres and an estimated 3,340 people. The proposed extension includes 174.06 acres and about 225 people. At the time of the trial, there were approximately seventy houses and five places of business in the area proposed to be annexed.

The two subdivisions sought to be annexed were opened in 1946 and 1953 and are contiguous to the western boundaries of the city. About two-thirds of the area has been laid off into streets and town lots. Some farming was done on a few tracts of land containing five to fifteen acres. The owner of a fifteen-acre tract had sold two building lots containing less than an acre each for $1,000 and $500, respectively.

The City of Greenville’s fire department has two full-time firemen and sixteen volunteers. It is equipped with two trucks. Its police department has five policemen and is equipped with a patrol car and a motorcycle. The City operates and maintains a library and a hospital. Its municipal office building is shared with the County Health Department. It is served by a municipal water system and independent school district, both of which serve the proposed annex, with no rate or tax differential. The City has a planning and zoning ordinance.

The municipal water system was financed by a revenue bond issue. The City has no voted bonded indebtedness. Negotiations were under way at the time of the trial for the construction of a sewer system and sewage disposal plant to be financed by the sale of revenue bonds plus a federal grant of $55,000. Additional police and fire protection was planned in the event of annexation.

Appellees claim that they would be materially injured by the annexation of the territory containing their property because they would be subject to municipal property, occupational, and poll taxes, street and sidewalk assessments, and planning and zoning regulations. They also feel that the City might exercise its power to provide group insurance, public off-street parking, and licensing of motor vehicles. They say that the City would be unable to provide police and fire protection, install fire hydrants, and keep their streets in repair. See Pence v. City of Frankfort, 101 Ky. 534, 19 Ky.Law Rep. 721, 41 S.W. 1011, on presumption that usual municipal services will be extended into annexed area.

The material injury which protestants must show to avoid a proposed annexation to a fourth-class city has been defined as the “clear and obvious imposition of manifest and substantial burdens.” City of Prestonsburg v. Conn, Ky., 317 S.W.2d 484. See also Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815. The burdens are considered as relative to the benefits, and there must be a substantial excess of burdens over benefits in order to defeat annexation. City of Ludlow v. Ludlow, 186 Ky. 246, 216 S.W. 596.

Municipal taxation and regulation, to sum up the principal objections, do not constitute material injury within the meaning of KRS 81.220, but are burdens to be considered in relation to benefits. Some of the benefits of municipal incorporation or annexation which have been held to compensate for the burdens of taxation and regulation are streets and sidewalks, street lights, a better water supply, police and fire protection, reduced fire insurance rates and city rates on electricity, telephone service, and street cars. Yancy v. Town of Fairview, 23 Ky.Law Rep. 2087, 66 S.W. 636; City of Ludlow v. Ludlow, 186 Ky. 246, 216 S.W. 596; City of Georgetown v. Pullen, 187 Ky. 697, 220 S.W. 733; Adkins v. City of Pineville, Ky., 271 S.W.2d 625; City of Prestonsburg v. Conn, Ky., 317 S.W.2d 484.

Where the proposed annex would not receive the standard benefits of municipal incorporation, the imposition of municipal taxation has been held to amount to material injury. Town of Latonia v. Hopkins, 104 Ky. 419, 20 Ky.Law Rep. 620, 47 S.W. 248; Gilley v. City of Russell, 212 Ky. 798, 280 S.W. 101; City of Russell v. Ironton-Russell Bridge Company, 249 Ky. 307, 60 S.W.2d 628; City of Cold Spring v. Laycock, Ky., 312 S.W.2d 882. In the Bridge Company case, where the City of Russell attempted to annex part of the Ohio River, it was held that the imposition of municipal taxes materially injured the company because the bridge could not be benefited by municipal services. In the Cold Spring, Gilley, and Latonia cases, annexation of an area four times, eight times, and forty times the size of the city respectively, was denied because of the inability of the city to provide normal municipal facilities to so large an area. See also Hannah v. City of South Shore, Ky., 332 S.W.2d 247.

In the review by the courts of .a city’s legislative action of proposed annexation, the courts are confined in their fact-finding function to “the realm of clear and obvious.” City of Louisville v. Kraft, Ky., 297 S.W.2d 39; approved in City of Eddyville v. City of Kuttawa, Ky., 343 S.W.2d 404. Considering the benefits as opposed to any burdens, there must be a “clear and obvious” showing that the burdens substantially exceed the benefits to establish “material injury.” There was no such showing here, and the judgment was erroneous in so holding.

It is argued that the territory proposed to be annexed is at least in part not urban in nature and thus not suitable for annexation. A similar argument was advanced, unsuccessfully, in Mitchell v. City of Central City, Ky., 354 S.W.2d 281 to which reference is made for a discussion of the principles governing. A comparison of the records in the two cases indicates that the territory in this case has been more fully developed and is more urban in character than in the Central City case. The finding of fact made by the trial judge here as to the roughness of terrain of a small part of the territory has no merit in view of the Court’s conclusion in the Central City case. See also City of Ludlow v. Ludlow, 186 Ky. 246, 216 S.W. 596, wherein the territory annexed had no buildings on it and some of it was variously described as hilly, steep, precipitous, and rough.

Judgment reversed.