author: COLEMAN, Justice.

text:
    CITY OF HOUSTON et al., Appellants, v. Frances F. BULLARD et al., Appellees.
    No. 13886.
    Court of Civil Appeals of Texas. Houston.
    Feb. 1, 1962.

      R. H. Burks, City Atty., Charles F. Weaver, Asst. City Atty., Joe Resweber, County Atty., Felix Salazar, Jr., Asst. County Atty., Houston, for appellants.
    Eugene A. Smith, Houston, for appellees.
   COLEMAN, Justice.

This is an appeal from a judgment declaring invalid and cancelling from the public records certain liens which the Jefferson Davis Hospital, a city-county hospital located in Houston, Texas, claimed by reason of Article 5506a of Vernon’s Ann. Revised Civil Statutes of Texas.

Art. 5506a, R.C.S., provides in part:

“Section 1. Every association, individual, corporation, or other institution maintaining a hospital or clinic rendering hospital services in the State of Texas shall be entitled to a lien upon any and all rights of action, suits, claims, * * *, or demands of any person admitted to any hospital and receiving treatment, care and maintenance therein, on account of any personal injuries received in any accident as the result of the alleged negligence of any other person or firm * * *, which any such injured person may or shall have, assert, or maintain against any such other person * * * for damages on account of such injuries, for the amount of the charges of such hospital or clinic for such treatment, * * *.
“Sec, 2. The lien of any such hospital shall also attach- to any * * * judgment, or final order made or rendered in any action, or proceeding, in any court in Texas, * * * as well as the proceeds of any settlement thereof, or the settlement of any such claim * *■ * effected by any such injured person or other person entitled thereto * * *.
“Sec. 3. No release of any claim or demand on account of any such injuries, * * * executed by any such injured person, or by any person entitled thereto, shall be valid or effectual between the parties thereto or otherwise, unless prior to the execution and delivery thereof, all such charges of any such hospital or institution or clinic, furnishing hospital services, which has filed its, his, or their lien as hereinafter provided, shall have been paid in full, or to the extent of a full and true consideration paid and given to the injured person by the other party or parties to such release * * * ; provided such hospital, institution, or clinic furnishing said services does not charge more than a .reasonable and regular rate for such services, in no event to exceed Fifteen ($15.00) Dollars per day for room charge for not longer than one' hundred (100) days; provided that a notice in writing * * * shall be filed in the office of the County Clerk of the county in which such injury shall have occurred, prior to the payment of any moneys to such injured person or his legal representative or other person entitled thereto as damages for or on account of such injuries. * * * ”

Tom Bullard and Frances F. Bullard were injured in an automobile accident and were taken to Jefferson Davis Hospital for emergency treatment and subsequent care. Tom Bullard died while in the hospital and Frances F. Bullard was removed from the hospital after receiving treatment for 22 days. A suit was filed on behalf of Frances F. Bullard, for the damage suffered by her as a result of the accident. Jefferson Davis Hospital filed a legally sufficient notice in writing with the County Clerk of Harris County claiming a lien for charges for hospital services in the amount of $1263.40 rendered to the Bullards.

Appellee contended that no lien accrued to the hospital and that the notices should be cancelled from the public records because the rates charged by the hospital were not reasonable and were not the regular rates charged to people situated as were the Bullards for the services rendered. The trial court sustained this position by his findings of fact and conclusions of law and rendered judgment “cancelling and holding for naught the said debts and hospital liens * * * and that said hospital liens as filed in the County of Harris, Texas, be and the same are hereby can-celled as to the Plaintiff, Frances F. Bul-lard.”

Only two witnesses testified, both called by appellee. It was established by the testimony of O. Z. Bullard that his parents had an income less than $100.00 per month; that his father received a social security check and lived on its proceeds by choice although he might have been able to secure a job paying as much as $50.00 a week. He was 72 years of age at the time of the accident.

Mrs. Ethel Loper, an employee of Jefferson Davis Hospital, testified that the hospital investigated the financial resources of its patients and classified them as pay patients or charity patients. She testified that if the family income was less than $125.00 per month or if an individual’s income was less than $100.00 per month under the standards established by the City-County Board in charge of the hospital, the patient was classified as a charity patient. She further testified, however, that each case was considered individually and that an investigation was made to determine whether or not there was a possibility of obtaining payment of their charges. She testified that people receiving old age assistance payments were never charged for teatment except in automobile accident cases; that all persons admitted for treatment for injuries resulting from such accidents were admitted as pay patients, but that if investigation revealed no likelihood of collecting the charges, this fact was reported to the Board and the charges were written off the hospital books. She testified that the Bullards were admitted as pay patients, although she had information that they were recipients of old age assistance, since they were injured in an automobile collision, and that the charges made for services rendered them were the usual and customary charges that are usually made for like and similar services rendered. She testified that it was the usual and customary policy and procedure of Jefferson Davis Hospital to charge all patients who are admitted to the hospital for treatment of injuries sustained in automobile accidents. Itemized hospital bills and the hospital admission records showing admission of the Bullards as pay patients were introduced into evidence.

The trial court found as a fact that the charges made were unreasonable and exorbitant in as far as these people were concerned and were not those usually and customarily made to people in their financial condition. He further found that the hospital customarily rendered medical treatment and services free “to persons in the Bullard’s financial condition.” These findings are supported by the testimony except in so far as they are contradicted by the unimpeached testimony that it was the policy of the hospital to admit all persons injured in automobile accidents as pay patients; to make charges for services furnished such persons, which were written off if it was determined that the patient was indigent and that there was no insurance from which a recovery of the charges could be obtained.

The evidence shows that it was the policy of the hospital to furnish services to only two general classes of persons, indigent persons and persons requiring emergency treatment. Charges were made for the treatment of all persons admitted for emergency treatment. The Bullards were admitted for emergency treatment. The charges made for the services rendered the Bullards were the usual and customary charges made for similar services. There is no testimony that the amount charged the Bullards for any specific service was unreasonable or different from the usual and customary charge for that service, nor that the account was in any respect different from that which would have been rendered by any other hospital.

We cannot say that the policy of the hospital in classifying indigent persons receiving treatment for injuries resulting from automobile accidents as pay patients, while classifying indigent persons receiving treatment for illnesses not necessitating emergency treatment as charity patients is so harsh and unreasonable as to constitute discrimination. Art. 5506a. Nor can we hold it beyond the power of the hospital to charge and collect reasonable compensation for services rendered in accordance with policies established by its governing board. Arts. 4486 and 4492, V.A.T.S. There is no evidence from which the court could conclude that the charges made were in excess of the amount allowed by Art. 4486, supra.

In making these findings of fact the trial court gave no weight to the testimony that the hospital customarily made charges in all emergency cases. While the witness was an employee of the hospital, the testimony was clear and direct and unequivocal. There was no testimony to the contrary and nothing in any of the testimony indicating that the policy of the hospital in this respect was not accurately related by the witness. There was no attack made on the credibility of the witness.

The Supreme Court of Texas in the case of Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904, held:

“It is the general rule that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the jury. But there is an exception to this rule, which is that where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law. Springfield Fire & Marine Ins. Co. v. Wm. Cameron & Co., Tex.Civ.App., 96 S.W.2d 788, and numerous authorities there cited * * *. The opinion in the case just cited correctly states the law.”

The findings of fact Nos. 12, 21, 22, 23 and 24 are contrary to the undisputed testimony and must be set aside. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156; Peaslee-Gaulbert Corp. v. Hill, Tex.Civ.App., 311 S.W.2d 461. Appellant’s points numbers 30, 31, 32 and 33, complaining of the failure of the trial court t.o make requested findings of fact, are sustained by reason of the fact that these requested findings go to material issues in the case and are established by the evidence as a matter of law. Santos v. Irick, Tex.Civ.App., 283 S.W.2d 251; Cochran v. Wool Growers Central Storage Company, supra. In view of our holding that those findings of fact noted above must be set aside, the conclusion of law of the trial court is not properly supported by findings of fact and is erroneous. Korkmas v. Ham, Tex.Civ.App., 141 S.W.2d 433. The judgment of the trial court must be reversed. However, it appears that this case probably was not fully developed at the trial because of a misinterpretation of our opinion in Garner v. City of Houston, Tex.Civ.App., 323 S.W.2d 659. Accordingly, instead of rendering judgment, we remand for a new trial. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458.

Reversed and remanded.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. C. T. DAVIS, Appellee.
    No. 3689.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 26, 1962.

      Robert C. Green, Roswald E. Shrull, Crumley & Green, Ft. Worth, for appellant.
    Bob L. Wilson, James W. Jameson, Peery & Wilson, Wichita Falls, for appellee.
   WALTER, Justice.

This is a workmen’s compensation case. C. T. Davis recovered a judgment against The Fidelity and Casualty Company of New York for total and permanent disability benefits.

The insurance company has appealed, contending the court erred in permitting the plaintiff’s attorney to read from a medical text book during cross examination of the insurance company’s medical witness, when the witness did not recognize the text as an authority, thereby injecting hearsay evidence.

The parties will be referred to as they were designated in the trial court. The plaintiff contends that the defendant’s points have not been properly preserved because the objections urged on appeal were not made at the trial. The plaintiff further contends that the evidence was introduced by agreement of the parties.

While cross examining the defendant’s medical witness, the plaintiff’s lawyer asked him if he was familiar with Dr. R. Glenn Spurling’s book on Lesions Of The Lumbar Intervertebral Disc, to which the doctor answered that he was not. The plaintiff’s lawyer then asked, “Doctor, don’t you agree that lumbar pain without radiation into the leg can, of course, be caused by a ruptured disc?” The defendant’s attorney objected to this question. The objection was overruled. The medical witness did not answer the question and plaintiff’s lawyer asked a similar question, but it was different in that it inquired about a disc protruding into the midline. This question was answered without objection. Later on, in the cross examination of this same medical witness, plaintiff’s counsel asked the following question, “My question is, you can have a ruptured disc in the midline and it won’t cause any pain in the leg that will disable a man — ”. This question was answered without objection.

We are of the opinion the question was proper on cross examination. At the time the question was asked there was nothing in the record to indicate that said question was read out of a book. “When appellant’s counsel propounded the question, the language he used became his own, since the language used by him did not reveal any borrowed language or any quotation from any other authority.” Lubbock Bus Company v. Pearson, Tex.Civ.App., 277 S.W.2d 186, at page 191 (Writ Ref. N.R.E.).

Plaintiff’s lawyer asked the doctor another question which did not reveal any borrowed language or any quotation from any other authority, which was as follows, “Now, Doctor, this is probably one of the most important questions I’ll ask you. In talking about the fact that the symptoms come and go, have complete freedom from pain on occasions, and have new attacks coming and going, don’t you agree that there are also more significant explanations based upon sound theory and verified by clinical experience for the intermittency of symptoms ?” The medical witness answered, “Well, read what you have there. Maybe there is something in what you say. I don’t understand what you say.” The defendant’s lawyer said, “I’m not making an objection but I want you to read it, and at the same time I want the record to show what you are read- , ing from.” Plaintiff’s lawyer stated that he was naming the book because he was requested to do so by defendant’s attorney. Whereupon, counsel for defendant then objected to plaintiff’s lawyer reading from a book that a neurosurgeon wrote that the medical witness did not recognize as author- . ity. The objection was overruled and plaintiff’s lawyer thereupon asked another question which did not on it’s face reveal any borrowed language from any authority but which was apparently taken from Spurling’s book. Our Supreme Court in the case of Bowles et al. v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 said:

“When a doctor testifies as an expert relative to injuries or diseases he may be asked to identify a given work as a standard authority on the subject involved; and if he so recognizes it, excerpts therefrom may be read not as original evidence but solely to discredit his testimony or to test its weight.”

The defendant’s medical witness did not recognize Spurling. It would not have been proper for plaintiff’s attorney to read excerpts from the book and ask said witness if he agreed or disagreed with them. It would have been improper to discredit the medical witness’ testimony in this manner under the rule announced in Bowles v. Bourdon. However, the question which the plaintiff’s lawyer asked the medical witness before he was instructed by the medical witness to read from the book was entirely proper. The question did not reveal borrowed language or quotations from any authority. The record does not show from what source plaintiff’s counsel received assistance and information in framing his question. The text book was not introduced as evidence nor considered as such at the time the question was asked. “Nevertheless, when we use the language in our own way without giving others credit for it, such language becomes our own language.” Lubbock Bus Company v. Pearson, 277 S.W.2d 186, at page 191, (Writ Ref. N.R.E.). The defendant’s medical witness expressly instructed plaintiff’s lawyer to read from the book and defendant’s lawyer also told him he wanted him to read from the book and that he was making no objection to it. A party cannot invite and solicit his opponent to introduce evidence, which otherwise might be error, and then object to such evidence. We hold the court did not err in overruling such objection.

Plaintiff’s attorney also contends that he had an agreement with the defendant’s lawyer concerning Spurling’s book. While cross examining one of plaintiff’s medical witnesses, counsel for the defendant said, “I have two statements I want to ask you, Doctor. Of course, counsel and I have agreed we are going to read out of the book, Spurling, to the jury, and it’s his book incidently.” Plaintiff’s contention that he had such an agreement is based on this statement. We find it will not be necessary to pass on this question.

We find that similar testimony to the testimony objected to by defendant was offered and received without objection. See Bolstad v. Egleson, Tex.Civ.App., 326 S.W.2d 506, at page 520.

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

Judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    John GRANTHAM, Appellant, v. Olivia SEAMAN, Appellee.
    No. 3696.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 2, 1962.
    Ben Hagman, Weatherford, for appel-j j.
    George M. Ritchie, Mineral Wells, for appellee.
   GRISSOM, Chief Justice.

Mrs. Bowman filed an application for appointment of Joel D. Kite as guardian of the person and estate of Olivia Seaman,' who was alleged to be of unsound mind. John Grantham then filed an application for appointment as such guardian, asserting that he was entitled to the appointment because he was next of kin. Mrs. Bowman and Kite then filed a pleading in which Kite declined to qualify as guardian and Mrs. Bowman stated that she no longer desired to prosecute her suit. This was, in effect, the taking of a non-suit. Thereafter, a hearing was had on Grantham’s application. It was denied and he appealed to the District Court. Mrs. Seaman filed an answer in the District Court to Grant-ham’s petition in which she denied she was of unsound mind and alleged there was no necessity for appointment of a guardian, as then contended only by Grantham. In a trial to the court, Grantham’s application was denied and he has appealed.

Appellant’s first point is that the court erred in refusing to permit him to introduce in evidence the application of Mrs. Bowman for appointment of Mr. Kite as guardian in which Mrs. Bowman had alleged that Mrs. Seaman was of unsound mind. It is contended'that said application was admissible as an admission for the purpose of showing that Mrs. Seaman was of unsound mind and required a guardian. On the trial it was urged that the application was admissible because it was a declaration of a relative that Mrs. Seaman was of unsound mind. It is not shown that Mrs. Bowman was then a party to the suit. It was hearsay. She did not testify. The court did not err in refusing to admit the application in evidence.

Appellant’s remaining point is that the judgment refusing to appoint Grantham guardian was contrary to the evidence and that the court abused its discretion in denying his application. This contention cannot be sustained. There was ample evi" dence that Mrs. Seaman was not of unsound mind. Her family physician for many years, who was called to testify by appellant, so testified.

Reversible error is not shown. The judgment is affirmed.


author: CHAPMAN, Justice.

text:
    ALANREED INDEPENDENT SCHOOL DISTRICT v. McLEAN INDEPENDENT SCHOOL DISTRICT et al.
    No. 7160.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 29, 1962.
    Rehearing Denied Feb. 26, 1962.
    Douglass, Thompson & Douglass, Pampa, for appellant.
    Hill & Adkins, Shamrock, for appellees.
   CHAPMAN, Justice.

This suit was instituted in the trial court by Alanreed Independent School District, appellant herein, seeking to set aside the orders of the County Boards of School Trustees of Gray and Donley Counties which detached a certain area from Alan-reed Independent School District and attached it to McLean Independent School District in accordance with Art. 2742f, Vernon’s Texas Civil Statutes. The Alan-reed Independent School District has territory within both of the named counties.

All emphases shown herein are ours unless otherwise stated.

The article just mentioned makes provisions for a County Board of School Trustees to detach territory from one district and add it to another district when duly petitioned by a majority of the qualified voters of the territory to be detached if the detached territory is contiguous to the common boundary line of the two districts; “provided the Board of Trustees of the district to which the annexation is to be made approves, by a majority vote, the proposed transfer of territory and provided further that where the territory to be detached exceeds (10%) of the entire district the petition must be signed by a majority of the trustees of said district in addition to a majority of the qualified voters of the territory to be detached.”

By pleadings duly filed in the case appellant first claimed that more than 10% of the Alanreed district was detached without the signatures of a majority of the Alan-reed trustees necessary in such case under the article mentioned, and that the detached territory was not contiguous to the common boundary line of the two districts. Those contentions were abandoned and the case was prosecuted upon the theory that the detachment here involved was part of a scheme of the County Boards of Trustees of the two counties to detach from appellant’s district more than 10% of its territory without the consent of a majority of its trustees. The case was tried to a jury and after it failed to agree on the question submitted the court discharged it and rendered the judgment for defendant, McLean Independent School District and the two named County Boards of Trustees, which it should have rendered upon the motion for instructed verdict made at the close of the testimony.

Appellant’s contentions to the effect that the detachment made by the County Boards of School Trustees of the two counties was part of one transaction and a concerted scheme to detach from its territory more than 10% thereof without the consent of a majority of its trustees is based on the theory that two other petitions had been prepared seeking to detach certain territory which, when added to the detachment here considered, would exceed 10% of its district.

It is true the testimony shows Mr. Cousins, Business Manager of the McLean Independent School District, drew the first petition above mentioned at the special instance and request of the first group of petitioners from appellant’s district, and that the McLean district paid an attorney for his services in drawing two other petitions by two other groups from the Alan-reed district after they had appeared before the McLean Board and asked them if they would accept them into their district. It is also true that the total territory included within either of the second two petitions when added to the territory that had been detached would exceed 10% of the Alan-reed district. However, the petition for the detachment here under consideration was made on the 11th day of March, 1960, the approval of the McLean Board made at a meeting on the 14th day of March, 1960, and the order for detachment made by the Gray and Donley County Boards on April 6 and 12, 1960, respectively. The second petition shows to have been made on the 1st day of August, 1960, more than three and a half months after the detachment made under the first petition. It was never presented to the Gray County Board and was not acted on favorably by the Donley County Board.

We have read the statement of facts very carefully and have failed to find any probative evidence showing a scheme either on the part of the petitioners on the detachment here under '• consideration or on the part of the McLean Board to perpetrate a fraud upon the Alanreed Independent School District in seeking to detach more than 10% of the territory. Such a fraud could not be perpetrated except through the actions, of the County Boards of School Trustees, and there is not any probative evidence showing bad faith on the part of the School Boards in furtherance of a scheme or device to circumvent Art. 2742f.

The testimony shows the Alanreed district had inadequate buildings, taught only through the eighth' grade, sent their high school pupils to McLean High School, and that the people seeking the detachment wanted in the McLean district because they considered it a better school for their children. Additionally, the testimony showed the trustees of the Alanreed district were given a full public hearing before the Gray County Board before the detachment was made and that all interested parties who desired to do so were given an opportunity to present their views. The Superintendent of Schools of Gray County testified that after the hearing he felt, and still felt at the time of the trial in the district court, that the decision made was in the best interests of the school children and parents involved.

It is settled law in this state that county school trustees are vested with discretion .to determine whether the statutory power to detach territory from one district apd annex it to another should be exercised. Dorchester Ind. School District et al. v. Allen et al., Tex.Civ.App., 239 S.W.2d 122 (NWH); Sabinal Ind. School District v. County Board of School Trustees of Uvalde et al., Tex.Civ.App., 211 S.W.2d 331 (Writ Refused); Erath County School Trustees et al. v. Hico County Line Independent School District et al., Tex.Civ.App., 247 S.W.2d 564, 568, Syl. 3 (Writ Refused). In the last cited case the court said:

“The control which courts will exercise to supervise, control or correct action taken by the county school trustees in such cases is limited to instances .in which the power of the trustees has been exercised in such harsh and arbitrary manner as to amount to an. abuse . of discretion.”

Though involving somewhat different facts to the instant case, our court has held that an Independent School District in its corporate capacity has no vested right in respect to territorial boundaries as originally established, and the Legislature has authority to provide the mode and agencies by which such change shall be effected. The Supreme Court has approved such holding. City of Beaumont Independent School District et al. v. Broadus, Tex.Civ.App., 182 S.W.2d 406 (Writ Refused). Article 2742f is one of such modes the Legislature has provided.

The contention was made in Munday Independent School District et al. v. Knox City Independent School District et al., 152 Tex. 89, 254 S.W.2d 381, that if there is no limit upon the number or upon the period of time in which successive annexations of territory, each of less than 10% of the territory of the losing district may occur, one district can “nibble” another to death. The Supreme Court said: “If this be a fault in the statute, the legislature can correct it.” To date the legislature has made no such change.

Subsequently the Eastland Court of Civil Appeals held “where the County Board acts in good faith, and not in furtherance of a scheme or device to circumvent said statute it may grant as many orders as may be presented by the people of a district even though more than ten percent of the territory of a district may be detached, so long as the district is not reduced to less than nine square miles.” Munday Independent School District v. County Board of School Trustees of Knox County et al., Tex.Civ.App., 274 S.W.2d 954. The writer sitting as a trial judge in an exchange of benches tried the case just cited and the Supreme Court approved the holding of the East-land Court by refusing a writ.

Therefore, the fact that other petitions containing less than 10% each had -been presented by different groups within the Alanreed district seeking to detach additional territory therefrom totaling more than 10% when added to the detachment in controversy, which the McLean Independent School District had agreed to accept if properly processed, would not show a scheme or device to circumvent the statute in the granting of the detachment under consideration in the absence of probative evidence that the County Boards of School Trustees acted in bad faith in so granting it. As we have heretofore said, there is not any probative evidence showing such conduct on the part of either one or both of the two County Boards of School Trustees acting within their discretionary power.

At the conclusion of the testimony the trial judge should have granted appellee’s motion for instructed verdict. Having failed to do so he did not commit error in subsequently granting judgment for appel-lees after discharging the jury. Because of our disposition of the case it becomes unnecessary to consider the other points raised by appellant’s brief. Accordingly, the judgment of the trial court is affirmed.


author: COLLINGS, Justice.

text:
    Rolla CAMPBELL et ux., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 3661.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 2, 1962.
    Rehearing Denied March 2, 1962.
    Davis, Phelps & Liles, Houston, for appellants.
    Talbert, Giessel, Cutherell & Barnett, Houston, for appellee.
   COLLINGS, Justice.

This is a garnishment proceeding by Rolla Campbell and wife, Rana Campbell against Allstate Insurance Company, a corporation, based upon a final judgment obtained by plaintiffs against Alfred B. Thyssen in the sum of $4,000.00.

Plaintiffs alleged that Thyssen purchased a policy of automobile liability insurance from defendant, which was in full force and effect at the time of the accident made the basis of plaintiff’s original suit against Thyssen; that the defendant Garnishee was obligated by virtue of the said policy of insurance to defend said suit and to pay on behalf of Thyssen the judgment rendered in- plaintiff’s favor against him; that plaintiffs made demand upon defendant insurance company for payment of said judgment, interest and costs, but defendant wrongfully refused to pay same and plaintiffs sought to recover therefor. Allstate Insurance Company denied that it was indebted to Thyssen or that it had in its hands any effects belonging to him at any time material to this suit. The trial was before the court without a jury and judgment was rendered for the defendant Allstate Insurance Company. Plaintiffs have appealed.

It is undisputed that appellee insurance company did issue a policy of automobile liability insurance to Thyssen. The policy contained a contractual warranty substantially as follows: " — , during the past three years no insurer has cancelled insurance, issued to the named insured, similar to that afforded hereunder.” The policy also provided that: “By acceptance of this policy, the insured agrees that the statements in the declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the company or any of its agents relating to this insurance.” The evidence shows that a similar policy of insurance had been previously issued to Thyssen by the Houston Fire & Casualty Company, and that was cancelled within the time period of the policy provision.

It is stipulated that the sole issue on this appeal is whether or not under the circumstances of the case appellee insurance company waived its right of forfeiture or was estopped to assert such right. Appellants urge that appellee has waived and is estop-ped to assert its defense of forfeiture. The facts as found by the court were in substance that the agent of appellee who took Thyssen’s application for the insurance policy was advised by Thyssen of the facts surrounding the cancellation of the prior policy; that 'the agent without the knowledge or authority of Thyssen made an erroneous answer to the inquiry in the application concerning whether Thyssen had had a similar policy cancelled during the prior three year period. Notwithstanding such knowledge on the part of the agent the company issued the policy to Thyssen. It is contended by appellants that the knowledge of the agent was imputed to the company as a matter of law and that the company is bound thereby.

The rule which we consider controlling in this case is stated in 24-B Tex.Jur., 421 as follows:

“It is the rule that if the insured gives full, true and correct answers to an agent authorized to take written applications for insurance, relying upon the skill and good faith of such agent to fill out the application correctly, and he makes it out incorrectly, or inserts answers different from those given, or false answers, the company is bound thereby, if the insured is justifiably ignorant of the agent’s mistaken or wrongful act.”

We hold that appellee insurance company waived and is estopped to assert its defense of forfeiture. The insured, Thyssen, gave true and correct answers to appellee’s agent, who was authorized to take the application for insurance, and fully informed him concerning the fact that a similar policy of insurance previously issued to Thyssen had been cancelled within the time specified in the policy provision. Thyssen relied upon the agent of appellee company to fill out the application correctly. Such agent, without the knowledge of, or any authority from Thyssen, incorrectly filled out the application, falsely stating therein that Thyssen had not had any similar policy of insurance cancelled during the preceding three years. The knowledge of the agent was knowledge on the part of the insurance company and it was bound thereby. It is now estopped to assert the falsity of the statement as a defense even though the policy purported to set out a contractual warranty to the effect that Thyssen had not, during the past three years had any similar insurance can-celled. Liverpool & L. & G. Insurance Company v. Ende, 65 Tex. 118; Aetna Insurance Company v. Holcomb, 89 Tex. 404, 34 S.W. 915; Supreme Lodge of the Fraternal Brotherhood v. Jones, Tex.Civ.App., 143 S.W. 247 (Error Ref.); Boston Insurance Company v. Rainwater, Tex.Civ.App., 197 S.W.2d 118; Southern Mutual Fire Insurance Company of Yoakum v. Mazoch Bros., Tex.Civ.App., 291 S.W. 257; Traders & General Insurance Company v. Lucas, Tex.Civ.App., 281 S.W.2d 188.

In support of the judgment appellee urges that this is not a case where an insurer seeks to void a policy merely because of erroneous statements in the application. Appellee contends that the policy involved is void because it is undisputed that there was a breach of the contractual warrant contained in the policy itself. In support of this contention, appellant relies upon Freeman v. Commercial Union Assurance Company, Tex.Civ.App., 317 S.W.2d 563 (Ref.N.R.E.); Harris v. Allstate Insurance Company, Tex.Civ.App., 249 S.W.2d 669 (Error Ref.); Farris v. Allstate Insurance Company, Tex.Civ.App., 265 S.W.2d 178 (Ref.N.R.E.), and Leete v. Allstate Insurance Company, Tex.Civ.App., 288 S.W. 237.

The above cases cited by appellee are distinguishable from the instant case and other cases hereinabove cited in support of the disposition we are making of this case. The cases cited by appellee did involve violations of basic conditions or contractual •provisions of a policy of insurance, but it was not shown in any of such cases that the insurance company had prior notice of the violation. In the Harris case it was indicated that an insurer may be held to have waived or to be estopped to assert the right ■of forfeiture if it had prior knowledge of the facts. Also see 24 TexJur. 914. It was ■ pointed out in the Leete case that there was ■no showing that the insured had told the ;agent of the insurance company who filled out the application for an automobile collision policy that the insured had had previous automobile policies cancelled.

The judgment of the trial court is reversed and judgment is here rendered for appellants for the sum of $4,000.00, with 6% interest per annum from May 21, 1960, and for costs.


author: PER CURIAM.

text:
    Juan G. GARCIA et al., Appellants, v. DUVAL COUNTY et al., Appellees.
    No. 13954.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 24, 1962.
    Rehearing Denied Feb. 21, 1962.

      Walter P. Purcell, Perkins, Floyd, Davis & Oden, Lawrence H. Warburton, Jr., Alice, for appellants.
    Gibson, Spence & Gibson, Austin, Lloyd, Lloyd & Dean, Alice, for appellees.
   PER CURIAM.

This is an appeal by Juan G. Garcia and others, from a judgment of the District Court of Duval County, Texas, declaring the elections held in that county, one for the issuance of $5,750,000.00 “Road Bonds”, and the other for the issuance of $250,000.-00 “Park Bonds”, to be valid, and refusing to enjoin the issuance of such bonds.

Appellants’ first contention is that both of said bond elections were void because in each case there was submitted to the voters a proposition which included two or more separate and distinct structures or units. We will first consider this contention as it applies to the “Road Bonds”. The order calling the election stated the purpose of this election in the following language:

“ * * * that an election be ordered to determine whether or not the bonds of said Duval County, Texas, shall be issued in the sum of Five Million Seven Hundred Fifty Thousand ($5,750,000.-00) Dollars, bearing interest at a rate not to exceed five and one-half (5½'%) per cent per annum, and maturing at such times as may be fixed by the Commissioners Court, serially or otherwise, not to exceed thirty (30) years from their date, for the purpose of the construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof, in said County; and whether or not an ad valorem tax shall be levied upon all the taxable property in Duval County for the purpose of paying the interest on said bonds and to provide a sinking fund for the redemption thereof at maturity; * * *.”

All of the County Commissioners and the County Judge testified at the trial. Their testimony was largely concerned with their campaigning in favor of the bond issues. The public appearances in favor of the bonds were led by the County Judge. Overlay maps, prepared by an engineering firm, were used in the campaigning. However, these campaign speeches and the maps are no part of the official record of the bond issues and have no binding effect on the County and its Commissioners Court. Verbal or written campaign promises are not enforceable. The Commissioners Court must act by official orders and not otherwise.

The maps show that it is the plan of the County Judge and Commissioners to improve a number of unconnected roads and streets. Appellants’ contention is, in effect, that these various projects should have been submitted separately to the voters so that they might vote for one proj ect and against another. We do not agree that the failure to do this is fatal to the bond issue election. The purpose of the bonds as stated in the election order and all other proceedings is almost in the exact language of Article 752a, Vernon’s Ann.Civ.Stats., and is legally sufficient. Adams v. Mullen, Civ.App., 244 S.W. 1083, err. ref. In 4 A.L.R. (2d), p. 635, we find the following statement of the law:

“§ 9. Roads or highways.
“Where the proposition is to devote the proceeds of bonds to be issued by a governmental subdivision to the construction or improvement of two or more roads or highways it has been considered a single proposition within the rule forbidding the submission of two or more propositions to the voters as a single question, for the reason that they are naturally related to or connected with each other.”

It is true that Art. 703, V.A.C.S., provides as follows:

“The proposition to be submitted shall distinctly specify:
“1. The purpose for which the bonds are to be issued;
“2. The amount thereof; * * *."

However, the construction and improvement of roads in a county is a single purpose. The advisability of describing each road and each set of streets to be improved is a matter addressed to the discretion of the authority calling and ordering the election. Whether the voters will vote for road bonds without specifications as to the particular roads and streets to be improved is a matter addressed to the discretion of the voters.

The same thing is true as to the park bonds. Art. 6081e, Vernon’s Ann.Civ. Stats., relating to park bonds, reads in part as follows:

“To purchase and/or improve lands for park purposes, an incorporated city and/or county may issue bonds, *

Bonds to purchase or improve two or more parks in a county is for a single purpose, and there is no reason why the bonds for each park would have to be submitted separately, unless the Commissioners Court in its discretion would deem it proper.

When the election proceedings provide that the purpose of road bonds is for “the construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof,” in the County, the purpose of the “Road Bonds” has been distinctly specified. Likewise, when the election proceedings state that the purpose of the bonds is for “purchasing and improving land to be used for park purposes in and for said County,” the purpose of the bonds has been distinctly specified.

' We do not agree that the bonds should have been submitted to the voters in twenty-one different projects, because the County Judge and Commissioners in campaigning for the bonds stated there were numerous different roads to be improved, streets in five different cities or villages to be paved, right-of-ways to be purchased, and parks to be improved. The Commissioners could have submitted twenty-one different projects, if they had thought best to do so, but they were not required to do so. Cannon v. McComb, Civ.App., 268 S.W. 999; Adams v. Mullen, Civ.App., 244 S.W. 1083; Grayson County v. Harrell, Civ.App., 202 S.W. 160; 4 A.L.R.2d p. 635.

There is nothing in the election proceedings to show just what roads are to be built or improved. It is true that there were pre-election speeches made by the County Judge and County Commissioners, and maps exhibited showing just how the Commissioners Court expected to spend the bond money. The County Judge and Commissioners, at the trial, testified that they still intended to spend the money as shown by the maps and stated in their talks. These pre-election statements and maps are not enforceable unless contained in a pre-election order, duly passed by the Commissioners Court sitting as a body. The Commissioners Court is not required by law to pass a pre-election order designating the roads to be paved or the parks to be improved. Black v. Strength, 112 Tex. 188, 246 S.W. 79; Camp v. Thomas, Civ.App., 26 S.W.2d 470; Cannon v. McComb, Civ.App., 268 S.W. 999; Wright v. Allen, Civ.App., 257 S.W. 980; Grayson County v. Harrell, Civ.App., 202 S.W. 160.

Appellants next contend that both elections were void because the voters had submitted to them on the ballot a single proposition of issuance of bonds and levy of taxes, which should have been submitted as separate and distinct propositions.

Under the statutes, the bonds could not be issued unless first there was levied a tax sufficient to pay the interest and establish a sinking fund. The bonds and the tax both had to be voted on. There could not be one without the other. Any voter who was in good faith for the bonds was also for the tax, and one against the tax was also against the issuance of the bonds. The voters were not entitled to have these two inextricably joined matters submitted separately so that they might cast unintelligent votes of being for the one and against the other. Art. 752 et sfeq., and Art. 702 et seq., Vernon’s Ann.Civ.Stats.

The election for the park bonds was not held under an invalid statute. Art. 6081e, Vernon’s Ann.Civ.Stats., under which the election was called, is not governed by Art. 3, § 52 of the Texas Constitution, Vernon’s Ann.St., requiring a two-thirds vote in some instances, but is governed by Art. 8, § 9, of the State Constitution, which does not require a two-thirds vote. Shelby County, Texas, v. Provident Savings & Trust Co. (CCA, Fifth Circuit) 54 F.2d 602; Henderson County v. Allred, 120 Tex. 483, 40 S.W.2d 17; Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d 13; Mitchell County v. City Nat. Bank, 91 Tex. 361, 43 S.W. 880.

The trial court did not err in finding that the bond election proceedings were valid, insofar as they concerned the fixing of the maturity dates of the bonds. The fixing of the maturity of road bonds is governed by the provisions of Art. 752i, Vernon’s Ann.Civ.Stats., reading as follows:

“Such bonds shall mature not later than thirty years from their date, except as herein otherwise provided; they shall be issued in such denominations, and payable at such time or times as may be deemed most expedient by the Commissioners’ Court, and shall bear interest not to exceed five and one-half per cent per annum. The general laws relative to county bonds, not in conflict with the provisions of this Act, shall apply to the issuance, approval and certification, the registration, the sale and payment of the bonds provided for in this Act. Acts 1926, 39th Leg., 1st C.S., p. 23, ch. 16, § 11.”

The judgment of the trial court is affirmed.


author: CULLEN, Commissioner.

text:
    R. A. MITCHELL et al., Appellants, v. CENTRAL CITY, Muhlenberg County, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Woodward, Bartlett & McCarroll, Ow-ensboro, for appellants.
    Jarvis & Cornette, W. D. Bratcher, Greenville, for appellee.
   CULLEN, Commissioner.

The appeal is by remonstrating property owners from a judgment upholding an annexation of territory by Central City, a city of the fourth class.

The territory in question embraces around 53 acres lying north of the present city limits. It is bounded on the west and east by county roads, and a short distance south of the northern boundary of the territory there is a third county road, running east and west, which connects the other two roads. Along these three roads within the territory to be annexed there are 47 residences, many of which have been constructed within the past five years.

One remonstrant owns a tract of five acres in the territory which he uses for gardening or truck farming. Another owns a tract of seven acres, upon which he raises hogs. The remainder of the territory (exclusive of the residences around the perimeter) is undeveloped and unoccupied. It contains some hills and gullies which in the opinion of some of the witnesses makes it unsuitable for development and in the opinion of others does not.

More than a majority of the resident voters in the territory remonstrated against the annexation. In that situation, under the peculiar statute governing annexation by fourth-class cities, KRS 81.220, the sole issue to be determined by the court was whether or not the annexation would “cause material injury to the owners of real estate in the limits of the proposed extension.” See Adkins v. City of Pineville, Ky., 271 S.W.2d 625; City of Ludlow v. Ludlow, 186 Ky. 246, 216 S.W. 596.

The injuries which the remonstrants claim they will suffer consist of (1) general city taxes; (2) assessments for street improvements; (3) taxes or assessments for sewers; (4) possible loss of school bus service and mail delivery; (5) prohibition against use of land for animal husbandry; and (6) subjection to authority of city officials and loss of freedom.

The benefits which the city claims will be conferred on the territory are (1) fire protection; (2) police protection; (3) garbage collection; (4) street lights; (5) street maintenance; (6) planning and zoning protection; (7) reduction in fire insurance rates; (8) eventual inclusion in a sewerage system.

In support of their claims of injuries the remonstrants first argue that they have good roads and they will be injured by assessments for new road construction, curbs and sidewalks. In our opinion it is not reasonably to be anticipated that the city would undertake to reconstruct the roads as long as the existing surface is satisfactory or that curbs and sidewalks would be constructed until such time as the uses of the property make it necessary. When these things become necessary the property owners will receive the benefits, so it cannot be said that they will suffer material injury by being compelled to pay for the improvements.

As concerns sewerage, the prevailing method of financing is through service fees. The property owners will not be compelled to pay the fees until the service is available, so there can be no source of injury there.

The annexation would not affect school district boundaries and the evidence was that it would not affect mail delivery.

With regard to the use of land for animal husbandry, some possible detriment might be suffered by the one owner who now is raising hogs and by another who raised some livestock years ago on his tract, but it seems likely that the other 45 present homeowners would not consider it an injury for the hogs to be removed from the land adjoining their residences.

This leaves as possible injuries the subjection to general city taxes and to the control of city government. Offsetting these are the general benefits in the way of police protection, fire protection, garbage collection, street lights, street maintenance, planning and zoning, and reduction of fire insurance rates. If the territory in question may be considered to be urban in nature and adaptable to municipal uses it is clear that the benefits to be derived from the annexation will not be so disproportionately low in comparison to the burdens as to constitute a “material injury.” See City of Louisville v. Kraft, Ky., 297 S.W.2d 39; City of Prestonsburg v. Conn, Ky., 317 S.W.2d 484.

In the final analysis the issue in this case boils down to the question of whether or not the territory sought to be annexed is urban in nature and adaptable to municipal uses. We think it is clear beyond question that the land around the perimeter of the territory, where there are 47 residences, is urban in nature. On the other hand, the area in the center of the territory is not now of an urban nature and at least as to part of it there appears to be no immediate prospect of its being devoted to municipal uses. This raises the question of whether the situation is such as to warrant taking the nonurban along with the urban.

The rule is that the question of material injury is to be determined from the standpoint of the property holders as a class or the majority of them, and not with reference to individual owners. City of Louisville v. Sullivan, 302 Ky. 86, 193 S.W.2d 1017. The view to be taken is of the entire area and not the separate parcels of real estate in isolation. Masonic Widows and Orphans Home and Infirmary v. City of Louisville, 309 Ky. 532, 217 S.W.2d 815.

Here the overwhelming majority of the owners occupy land of an urban character. Their land completely surrounds the part of the territory that is used for agriculture or is undeveloped. The distance across the latter part of the territory to the fully developed area on the north side is short. Practical difficulties would arise if the city were to attempt to annex the developed area without taking the remainder. The owners of a major portion of the undeveloped area have not remonstrated against the annexation. As long as the area remains undeveloped the burden of city taxes upon it will he small. The geography of the territory is such that it is reasonable to classify it as a unit. Under all of these circumstances it is our opinion that the entire territory was properly annexable.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    Lawrence NANTZ, Appellant, v. Julius NANTZ, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Willis W. Reeves, Maxwell P. Barret, Richard D. Cooper, Hazard, Denver Adams, Hyden, for appellant.
    A. E. Cornett, Hyden, for appellee.
   WILLIAMS, Judge.

The appellee, Julius Nantz, was injured when struck by a truck driven by appellant’s son, Lowell Nantz. Appellee filed suit against the appellant, Lawrence Nantz, individually, and the Leslie Circuit Court, sitting without a jury, entered judgment in the amount of $4,786 in favor of appellee. This appeal is prosecuted from that judgment.

The appellant and his son jointly owned a dump truck which was kept, maintained and operated by the son. The truck was used principally for hire in hauling gravel, timber and coal, but was also used for any odd jobs which might he acquired from time to time. The bill of sale was made to the son, Lowell Nantz, for the purpose, it was said, of avoiding payment of property taxes on the vehicle. The profits realized from use of the truck were small, and they were kept primarily by the son. However, on' occasion, the father did share in the total profits.

On January 23, 1958, Lowell had used the truck to haul gravel and had finished that job when he was approached by Lawrence Wilson, who solicited his aid in pulling Wilson’s pick-up truck out of a ditch. Lowell, in company with the appel-lee, drove up a side road about one mile to the location of the pick-up truck. Lowell directed appellee to fasten a chain to the rear of the dump truck and to the front of the pick-up truck, which was done. Lowell then started forward but the chain became unattached from the dump truck, which proceeded approximately 10 feet before it was stopped. Appellee picked up the chain and was standing on the side of the road preparing to again fasten it to the dump truck when Lowell suddenly and without warning backed the dump truck into appellee, breaking the femur of his right leg. Lowell was paid $3.00 by Wilson for his efforts in extricating the pick-up from the ditch.

Appellant complains that the circuit court should have dismissed the complaint for the reason that it was not proved that Lowell Nantz, the driver of the dump truck, was the agent or servant of the appellant, his father, or that Lowell was engaged upon any business for appellant at the time or upon the occasion of the accident. The circuit court found as a fact that the dump truck was jointly owned by the appellant and his son, that it was used principally for hauling gravel, but was also used for such other odd jobs as could be acquired from time to time. The fact that the truck was used for virtually any odd job which could be obtained, coupled with the fact that Wilson, the owner of the pickup truck, paid $3.00 for the services rendered by the driver of the dump truck, substantiates the finding of the circuit court that such truck was engaged in business for both appellant and his son at the time the accident occurred. The fact that one is a co-owner of an automobile does not render him liable for an injury caused by negligence in its operation by another co-owner who is using the automobile for his own purpose unaccompanied by his co-owner. But liability may attach to each when the automobile is employed directly in the execution of purpose of the joint ownership. See 5A Am.Jur., Automobiles and Highway Traffic, section 563. The circuit court concluded that the relationship of principal and agent existed between appellant and his son, that the truck was owned jointly by them, and that on the occasion of the accident it was being driven by the son for the mutual benefit of the two owners. There is ample evidence in the record to sustain the circuit court’s findings.

The other point assigned as error was the failure of the circuit court to find for the appellant on the ground that the appellee voluntarily and with full knowledge of the danger assumed the risk of his injury, which constitutes contributory negligence as a matter of law. It is well settled that one who voluntarily assumes the risk of injury from a known danger is barred from a recovery. An essential element of the assumption of risk is appreciation of the danger by the person injured. Dean v. Martz, Ky., 329 S.W.2d 371. The appellant relies mainly on the case of Porter v. Cornett, 306 Ky. 25, 206 S.W.2d 83. In that case it was held that a man voluntarily assumed a risk when he placed himself in a ditch and attempted to keep a truck from sliding into the ditch, which it did. Commenting on that case and other similar cases, we said in a recent opinion rendered January 26, 1962, Robertson v. Land, Ky., 353 S.W.2d 389:

“ * * * In all of those cases an accident happened as a natural result of an appreciated danger in an obviously hazardous enterprise. The risk assumed was that of an occurrence which could be reasonably anticipated. * * *

In the present case the appellee had picked up the loose end of the chain while standing on the side of the road and had turned to communicate with the man in the pick-up truck. Being in such position it was not obvious that the driver of the dump truck would back into him and pin him between the two trucks. The circuit court found that the dump truck was suddenly and without warning backed up, and concluded that appellee did not necessarily place himself in a dangerous situation when he volunteered to fasten the chain to the two trucks. Referring again to the case of Robertson v. Land, an accident occurred when a truck, being towed by a tractor down a hill, accelerated faster than the tractor and overran it. In that situation it was said:

“In the present case the possibility that the truck, being independently operated by the defendant, would run over the tractor was not an obvious danger or one that should necessarily have- been anticipated by the plaintiff, even though the truck had once before coasted into the tractor as it was making a sharp turn. The accident was caused, not by an emergency or a danger inherent in the operation, but by the failure of defendant to maintain control of his vehicle. Such active negligence the plaintiff, as a matter of law, was not required to foresee.”

A similar situation exists here, and we cannot say, as a matter of law, that the ap-pellee assumed the risk of injury.

Judgment affirmed.

STEWART, C. J., and MONTGOMERY, J., dissenting.


author: BIRD, Judge.

text:
    The WESTERN FIRE INSURANCE COMPANY, Appellant, v. Pryor PEMBERTON et al., d/b/a W. P. Pemberton & Sons, Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Robert L. Milby, London, for appellant.

      Donald P. Moloney, Lexington, for appel-lees.
   BIRD, Judge.

Pryor Pemberton, Wilson P. Pemberton and Clarence McGaughey are partners engaged in growing and selling flowers as wholesalers.

When this cause of action arose they operated nine greenhouses constructed largely of glass panes two feet square.

The Western Fire Insurance Company sold the partnership a fire insurance policy to which there was attached the following extension of coverage:

“In consideration of the premium for this coverage shown on the first page of this policy * * * the coverage of this policy is extended to include direct loss by WINDSTORM, HAIL, EXPLOSION, RIOT, RIOT ATTENDING A STRIKE, CIVIL COMMOTION, AIRCRAFT, VEHICLES AND SMOKE.”

While the foregoing provision was in full force and effect a windstorm struck the greenhouses and broke two hundred and two (202) panes of glass.

The florists have sued to recover under the quoted provision of the policy for damages to the building and the growing plants.

A jury awarded damages in the sum of $6,999.52. The insurance company appeals.

There is no argument about that part of the judgment which awards damages to the building, nor is there any argument concerning that part of the judgment which awards damages for flowers injured or destroyed by falling glass.

The testimony, however, shows quite substantially that the major damage was caused by evaporation caused by the unusual flow of wind over the growing plants which resulted from the force and pressure of the windstorm without the greenhouses.

Nevertheless, the insurance company contends that the damage was not caused by a windstorm within the contemplation of the quoted provision of the policy. The insurer’s position is thus stated in its brief:

“Thus once again there is an absolute absence of any evidence whatsoever that windstorm was in any way responsible for the wilting, arrested growth, dehydration, freezing or whatever may have been the cause of the damage to the plants in controversy. While wind or air may have been a contributing cause, windstorm certainly was not.”

To follow the insurer’s reasoning we would be required to hold that the plants be exposed to the full fury of the windstorm before there could be a recovery.

It is admitted that a windstorm raged outside and we are not inclined to deny a recovery simply because a less severe part of it got inside. It makes no difference whether the abnormal flow of air came by reason of the broken glass or by force through the usual and normal cracks in most any type of construction. It was a windstorm reduced in fury but devastating nevertheless.

We must look to the source of the force that provided wind currents within the enclosure. It was the windstorm without that provided that force. Artificial barriers diminished the force but the source of the force was the same within the enclosure as without and the injuries done resulted directly from the windstorm.

No complaint is made of the instructions. Under the instructions and the evidence the jury’s conclusion was a proper one.

It is the Court’s opinion that the insurer agreed to pay for the losses established by the testimony.

The judgment is affirmed.


author: STEWART, Chief Justice.

text:
    WEST KENTUCKY COAL COMPANY, Irving Trust Company, Trustee, Liberty National Bank and Trust Company, Co-Trustee, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 13, 1962.
   STEWART, Chief Justice.

This matter coming on to be heard upon appellants’ petition for rehearing and the Court having considered the entire record in this case now orders and directs that the petition for rehearing be sustained; that the opinion heretofore delivered in this case be withdrawn, and further orders that the motion to dismiss the appeal herein be overruled.

It is so ordered.


author: MONTGOMERY, Judge.

text:
    Isaac LEWIS, Appellant, v. Drusie Waggoner LEWIS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Claude Asbury, Catlettsburg, for appellant.
    A. W. Mann, Ashland, for appellee.
   MONTGOMERY, Judge.

Isaac Lewis appeals from a judgment denying him a divorce from Drusie Wag-goner Lewis. She was awarded alimony in the sum of $80 per month and the use and occupany of their home. Isaac insists that he should have been granted a divorce on the ground of cruel and inhuman treatment. Drusie did not seek a divorce by her counterclaim.

Isaac and Drusie are now seventy and fifty-three years of age, respectively. They have been married thirty-eight years. He receives $248 monthly compensation for total disability arising from his World War I service. Their divorced daughter and her child live in the Lewis home. Isaac was discharged from the Veterans Hospital in August 1959. He has been staying with his brother since then.

Isaac and his witnesses testified that for more than six months’ duration Drusie would not cook for him, was quarrelsome, accused him of lying, called him “crazy”- and a “son-of-a-bitch,” and had tried to prosecute him or have him placed in a veterans’ institution. Much of this was denied by Drusie, who said that Isaac had threatened her with a knife. Their daughter corroborated the mother’s testimony in part, but stated that her mother and father had been having arguments for more than a year.

Apparently, part of the discord has arisen from Isaac’s fear that Drusie may have been engaging in extra-marital relations with other men. His attempt to prove adultery and lewd and lascivious behavior failed because of noncompliance with KRS 403.030. Because of such failure, the trial court correctly denied his offer to file an amended complaint setting up such grounds of divorce.

The removal of Drusie’s sexual organs several years ago and the encroachment of time on Isaac’s powers, as he said Drusie was free to suggest, may have been contributing factors to the unhappy state which undeniably existed between them. Certainly Drusie’s habitual behavior was of such cruel and inhuman manner as to destroy permanently Isaac’s peace and happiness. Nall v. Nall, 287 Ky. 355, 153 S.W.2d 909; Trout v. Trout, 296 Ky. 843, 177 S.W.2d 864. Isaac and Drusie will never be able to live together with any degree of satisfaction or contentment. Coleman v. Coleman, Ky., 269 S.W.2d 730.

While Isaac may have been partly in fault, since 1956 this has not barred a husband from obtaining a divorce on the ground sought. The evidence here was such as to establish the ground for granting divorce to the husband under KRS 403.020(4) (d). Pedigo v. Pedigo, Ky., 324 S.W.2d 820. The Chancellor erred in not granting Isaac a divorce.

Judgment reversed with directions to enter a judgment of divorce for Isaac Lewis and to adjudicate the rights of Drusie Waggoner Lewis as to alimony, property rights, and attorney’s fee.


text:
    Jim ROWLAND, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Robert J. Watson, Middlesboro, for appellant.
    John B. Breckinridge, Atty. Gen., David B. Sebree, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Jim Rowland was convicted of indecent exposure and his punishment fixed at a fine of $1500.00 and confinement for 12 months in the county jail.

Upon examination of the record we find no prejudicial error.

The motion for appeal is overruled and the judgment is affirmed.


text:
    E. E. MUSGRAVE et al., Petitioners, v. J. L. HAYS, Judge of the 47th Judicial District of Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.

      Harry M. Caudill, Whitesburg, Dan Jack Combs, Pikeville, for petitioners.
    Howard, Francis & Howard, Fred G. Francis, Prestonburg, for respondent.
   STEWART, Chief Justice.

E. E. Musgrave is a physician practicing in the town of Jenkins. He and Mack Adams, one of his patients, join in this proceeding as co-petitioners for a writ of prohibition against the Honorable J. L. Hays, Judge of the 47th Judicial District. Adams is petitioning as an individual and also as a representative of a class, which he avers is constituted of the private patients of Dr. Musgrave.

About four years ago Dr. Musgrave became chief of medical services at Sharon Heights Hospital at Jenkins. He was permitted to occupy an office at the hospital and under this arrangement was accessible to those patients whose welfare was entrusted to him. At no expense to him the equipment in the office and the facilities of the hospital, together with the personnel attached thereto, were made available to him. The hospital also allowed him to use the office for the treatment of his private out-patients.

Dr. Musgrave signed an agreement with the hospital, binding himself to abide by the hospital by-laws, which included these provisions:

“ ‘The attending physician shall be held responsible for the preparation of a complete medical report for the hospital files. This report shall include identification data, complaint, personal history, family history, history of present illness, physical examination, special reports, such as consultation, clinical, laboratory, x-ray and others. Provisional diagnosis, medical or surgical treatment, pathological findings, progress notes, final diagnosis, condition on discharge, follow-up and autopsy report when available. No medical record shall be filed until it is complete.’ ”
'All records are the property of the hospital and shall not be taken away without permission. In case of readmission of a patient all previous records shall be available for the use of the attending physician. This shall apply whether the patient be free or pay and whether he be attended by the same physician or another.’”

About November 1, 1961, Dr. Musgrave severed his connection with the hospital and opened a private office about 1500 feet away from it. Soon thereafter he requested the hospital to turn over to him the medical out-patient cards which he said had been kept by him on his private cases, which records are in the custody of the hospital and stored therein under lock and key. The hospital refused to comply. Adams and several of his private patients asked that their cards be turned over to the doctor but the hospital refused to deliver any of them.

On November 17, 1961, Dr. Musgrave brought an action in the Letcher Circuit Court against the hospital and its director, claiming the cards withheld were his private physician’s records and that he was entitled to the immediate possession of them. He obtained a temporary order restraining the hospital’s agents from interfering with his efforts to remove the cards he contends are his. The hospital declined to carry out the order and he had the hospital’s director cited for contempt. This brought on a hearing and the hospital when it appeared moved the trial judge to dissolve the restraining order, alleging it was the rightful owner of the records. After a trial on December 4, 1961, the respondent herein, Judge Hays, gave his oral opinion that the records belonged to the hospital but that Dr. Musgrave could examine and copy them when it became necessary in the course of administering medically to any of his patients.

In the proceeding before us Dr. Mus-grave alleges that Judge Hays is about to enter findings of fact and conclusions of law which will conform to the oral opinion previously delivered by him, and that a judgment in conformity with the statement made in court will be entered by Judge Hays unless he is prohibited by a writ issued by this Court.

Are the petitioners entitled to the relief they seek in this original action? We do not believe they are.

The long-established rule is that a writ of prohibition will issue from this Court to restrain proceedings by a court of lesser jurisdiction in a case (1) where the latter is threatening to proceed, or is proceeding, in a matter over which it has no jurisdiction, and there is no remedy through an application to an intermediate court; or (2) where a court, although it have jurisdiction, is exercising or is about to exercise it erroneously, and great injustice and irreparable injury would result to the applicant if it should do so, and there exists no other remedy by appeal or otherwise. See Bender v. Eaton, Ky., 343 S.W.2d 799, Murphy v. Thomas, Ky., 296 S.W.2d 469; Rallihan v. Gordon, 176 Ky. 471, 195 S.W. 783; Stafford v. Bailey, 301 Ky. 155, 191 S.W.2d 218; Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178; Carey v. Sampson, 150 Ky. 460, 150 S.W. 531.

We find none of the elements set forth in either number (1) or number (2) of the preceding paragraph may be relied upon here to support the relief requested. It cannot be denied that the circuit court has jurisdiction of the parties and the subject matter and is acting within its authority. The co-petitioners would also be compelled to admit they have an appeal to this Court from any final judgment entered in the pending cause.

Nor would the fact that no appeal lay from the decision of the judge or court sought to be restrained furnish ground for the issual of the writ, as, in addition to the fact that the complaining party has no adequate remedy by appeal, it must further plainly appear that great injustice would result and irreparable injury ensue from the decision of the lower court or the judge if the writ were not issued. See Rallihan v. Gordon, supra, and the many cases cited therein on this point.

Dr. Musgrave has not shown that great injustice and irreparable injury will result to him or his patients, as the trial judge ruled he will have free access to the records, in order to copy any portions he may need, or in order to use them in the diagnosis and treatment of his patients. The mere inconvenience he may he put to cannot be considered as great injustice and irreparable injury.

Wherefore, the writ is denied.


author: WADDILL, Commissioner.

text:
    Thomas C. CARROLL, Appellant, v. CITY OF LOUISVILLE et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    Thomas C. Carroll, pro se.
    William E. Berry, Director of Law, Marshall B. Woodson, Jr., Louisville, for appellees.
   WADDILL, Commissioner.

Appellant, Thomas C. Carroll, brought this action against appellees, City of Louisville and certain agencies thereof, seeking to recover damages in the sum of $7,750 which he allegedly sustained by reason of the city’s refusal to issue a certain building permit. The circuit court sustained a motion to dismiss on the ground that the complaint did not state a claim on which relief could be granted. The appeal is from the judgment of dismissal.

We summarize the allegations which constitute the basis of appellant’s claim. Appellant obtained an option to purchase certain real estate located in Louisville. The option gave him the right to acquire this property for $9,250. Subsequently, and during the effective term of the option, appellant received an offer of $17,000 for the property. This offer was contingent upon the city’s issuing a building permit for the erection of improvements thereon. In the meantime the Board of Aldermen of the City of Louisville had passed a resolution authorizing the city to acquire by condemnation or purchase an area of real estate, including that optioned to appellant, for the purpose of establishing a redevelopment project. After the passage of the resolution the city refused to issue a building permit and appellant was unable to consummate the sale of the property for $17,000. Appellant asserted that the city’s refusal to issue the building permit to him or his prospective purchaser amounted to a taking of his legal interests in the property without due process of law by which he was damaged in the sum of $7,750.

The issuance of building permits by the City of Louisville is regulated by an ordinance requiring that' applications for such permits be made by the owner of the property. Assuming, without deciding, that an action of this character may be brought against a city, the complaint is fatally defective because there is no allegation that the owner of the property complied with the ordinance by filing an application for a building permit. Irving v. City of Highlands, Colo., 53 P. 234. Moreover, as to appellant’s assertion that there had been a taking of his legal interests in the property amounting to a condemnation thereof by the city, we have specifically said that a holder of an option to purchase real estate does not have an interest which is compensable in a proceeding to condemn the land. City of Ashland v. Kittle, Ky., 347 S.W.2d 522.

The circuit court correctly held that appellant had failed to state a claim upon which relief could be granted.

Judgment affirmed.


text:
    Craig R. SCHMIDT et al., Appellants, v. C. Thomas CRAIG et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 16, 1962.
    H. B. Kinsolving, III, Kinsolving & Kinsolving, Shelbyville, for appellants.
    Bernard B. Davis, Shelbyville, for appel-lees.
   STEWART, Chief Justice.

This is an appeal from a judgment of the Shelby Circuit Court, affirming the action of the board of zoning adjustment (herein called “the board”) of the City of Shelby-ville which granted a special exception to the city’s zoning ordinance to Everett Hall to operate a funeral home in a district zoned as residential.

On November 8, 1960, J. Hayden Igle-heart, the owner of a residence located at 1185 West Main Street in Shelbyville, and Everett Hall, a prospective purchaser of the property, appeared before the board with a formal request that it permit a special exception to the zoning ordinance to allow the property, which is located in a district zoned residential, to be used as a funeral home. This exception was ordered.

No notice to adjoining landowners or to others was given, so this proceeding was ex parte. On the following day, appellants, Mr. and Mrs. Craig R. Schmidt, adjoining landowners, became informed of the action of the board and asked for a rehearing on the matter. This was granted. On November 18, 1960, a new hearing was held on the special exception, with appellants’ witnesses testifying that the value of the surrounding residential property would be decreased; that the beauty of the neighborhood would be destroyed; and that traffic hazards and congestion would be increased substantially, pointing out that the funeral home would be located at a “T” intersection. Mrs. Schmidt testified that the whole way of life of her family would be radically altered by the operation of a funeral home next door to her residence.

Everett Hall appeared and testified as to his contemplated use of the property, which included a double driveway on the east side, a single drive on the west adjacent to the Schmidts, and an expansion of the parking area in front of the garage; but added he planned no immediate change to the exterior of the building. He stated that the doors and windows of the building could be kept closed due to air conditioning; that the west door would have a minimum use; that there was no intention to cut down unnecessarily shrubbery and trees; and that use of the property as a funeral home would not affect the value of the adjacent property.

The board affirmed its original action. On an appeal, the circuit court found the board had authority to grant the exception in controversy under an ordinance that fully empowered it to do so, and that it had before it substantial and adequate evidence to warrant its conclusion that a funeral home could be operated on the property without impairing the residential character of the neighborhood. The court also determined that the board’s action was neither arbitrary nor discriminatory and did not constitute an abuse of discretion. It further ruled that failure of the board to give notice of the November 8th meeting did not invalidate its action, since the protestants were afforded an adequate hearing at the November 18th meeting. Appellants’ motion for a stay of proceedings on the judgment was overruled.

On this appeal, appellants urge reversal of the judgment because:

1. There was a failure to notify any of the parties affected by the proceedings.

2. The board abused its discretion in granting the special exception, not using the proper standards in arriving at its decision but arbitrarily bestowing a favor on the applicants, to the detriment of the public generally and of appellants specifically.

It is not in dispute that the first hearing on November 8, 1960, was an ex parte proceeding without notice to anyone. However, appellants learned what had transpired and, through their counsel, asked for a hearing which was granted. The hearing they were given was held on November 18th thereafter, and they appeared and participated in person and by counsel and introduced witnesses who testified in their behalf. The new hearing was virtually a de novo airing of the whole question. Under the circumstances, we are unable to comprehend how appellants were prejudiced by a lack of actual notice of the first meeting of the board, because a full hearing was later afforded them at their request at which they were given a complete opportunity to present their reasons for opposing the board’s action.

Our next inquiry concerns the contention as to whether the board abused its discretion in granting a special exception. KRS 100.560(1) states that the board of adjustment, such as the one before us, “ * * * may make special exceptions to the terms of the (zoning) ordinance in harmony with its general purpose and intent and in accordance with general or specific rules contained in the ordinance.” KRS 100.520 sets out the purposes of zoning regulations and includes lessening of traffic congestion, securing of public safety, promoting health and the general welfare, providing adequate air and light, preventing overcrowding of land, avoiding undue population concentration, and facilitating adequate provision of transportation, water, sewerage, schools, parks and other public requirements. These regulations are to be made after a reasonable consideration of the character of the district, its suitability for particular uses, and “with a view to conserving the value of the buildings and encouraging the most appropriate use of land.”

The pertinent uses and changes permitted under the general provisions applicable to residential districts contained in the zoning ordinance enacted by the legislative body of the City of Shelbyville are:

“51.11 Single and multiple family dwellings, customary general horticultural uses, and buildings incidental thereto.
“51.12 The following uses are special exceptions and require written approval of the board of zoning adjustment: Churches and other places of worship, parish houses, nurses homes, fraternities, public libraries, schools offering general educational courses, public parks and non-commercial public recreational facilities, municipal, county, state or federal use, public utilities, funeral homes, cemeteries, hospitals for human care, philanthropic institutions and clubs, except a club the chief activity of which is customarily carried on as a business, animal or poultry farms, greenhouses and kennels. The board of zoning adjustment must attach certain conditions to its approval which it feels are necessary requirements in order to preserve and protect the character of the district in which the proposed use would locate.”

This Court in Kline v. Louisville & Jefferson County Board, Ky., 325 S.W.2d 324, pointed up the difference between a “variance” and an “exception,” as to the possibility of invoking the one or the other in connection with a zoning change, and laid down the broad rule that a “variance” is the authority extended to an owner to use his property in a manner forbidden by a particular zoning enactment, while an “exception” gives him permission to put his property to a use which a zoning enactment expressly allows.

As already noted, KRS 100.560(1) empowers the legislative body of a city such as Shelbyville to enumerate and define by ordinance those special zoning matters which the board of adjustment may be allowed to pass upon and grant. It is also the rule, as the Kline case states, that the granting of an exception is not contingent upon the existence of either a difficulty or a hardship.

The subsections of the ordinance under consideration provide, first, that the area which includes appellants’ property shall be restricted to single and multiple family dwellings; and, next, that the board shall have the power to grant various types of exceptions, among which is included a funeral home. The only limitation imposed upon the board by the ordinance is that it should preserve and protect the character of the neighborhood in which the proposed use is to be located.

The record discloses that the Schmidt property and the property in controversy are located on the north side of Main Street in Shelbyville, between Alton Road and Adair Avenue. The next block east-wardly extends between Alton Road and llth Street. Within the next block on the north and on the same side of the street as the Schmidt property are located the Shelby-ville High School and the present funeral home operated by Everett Hall (the same person to whom the instant permit was granted). On the opposite side of Main Street between llth and Magnolia Streets (Alton Road does not cross to the south side of Main Street) are situated the Kentucky Utilities Company business office and the Shannon funeral home.

There is no showing in this case that the board acted in an arbitrary and discriminatory manner but rather that it acted well within its authority and discretion upon adequate and substantial evidence. We conclude, as did the board and the circuit court, that the use of the property in controversy for a funeral home will not alter the general character of the neighborhood as it now exists.

Wherefore, the judgment is affirmed.