author: CLAY, Commissioner.

text:
    Raymond O. BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 24, 1964.
    John B. Breckinridge, Atty. Gen., Frankfort, for appellant.
    Raymond O. Baker, LaGrange, pro se.
   CLAY, Commissioner.

In this habeas corpus proceeding appellant sought release from the State Reformatory at LaGrange on the ground that he was being held without authority because Kentucky had waived or forfeited its jurisdiction over him. The trial court denied relief.

While out on parole from a 21 year sentence appellant was arrested in Jefferson County on the charge of robbery. A parole violation warrant was issued but it is not clear from the record whether this was served upon him. In any event, he was not arrested and taken into custody by the parole authorities on this warrant.

The Jefferson County authorities filed away the robbery charge and released him to the federal government on a detainer filed by it. He was tried on the federal charge and given a two year sentence, which was subsequently reduced. Upon his release by the federal authorities he was picked up on the parole violation warrant and returned to LaGrange to serve out his original sentence.

It is contended that under our cases of Jones v. Rayborn, Ky., 346 S.W.2d 743; Davis v. Harris, Ky., 355 S.W.2d 147; and Thomas v. Schumaker, Ky., 360 S.W.2d 215, Kentucky had waived or forfeited its jurisdiction to reconfine appellant. In Crady v. Cranfill, Ky., 371 S.W.2d 640, we concluded that the question was not one of constitutional right but of state policy and comity. Assuming, however, that appellant has properly presented a claim of violation of his rights, the facts do not justify granting relief under this doctrine.

In the Jones, Davis and Thomas cases the prisoner was released to another jurisdiction for trial by those having him in custody by virtue of a conviction and sentence. We are not inclined to extend the principle applied in those cases beyond this basic situation.

Here appellant was not in custody under his original conviction or sentence. He was being held by the Jefferson County authorities on another criminal charge. His release by those having him in custody on this charge did not constitute a waiver or forfeiture of jurisdiction. Prather v. Commonwealth, Ky., 368 S.W.2d 175.

Assuming that if he had been in custody of the parole authorities under the parole violation warrant this would have been by virtue of his sentence, at the time of his release he was not in such custody.

The judgment is affirmed.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    W. A. FREDERICK, d/b/a West Hi Market, Appellant, v. Lillian M. COLLINS, Adm’x of the Estate of Charles E. Collins, Appellee.
    Court of Appeals of Kentucky.
    April 24, 1964.
    Denney & Landrum, Lexington, for appellant.
    Weldon Shouse,-Lexington, -for appellee.
   DAVIS, Commissioner.

On April 27, 1961, Robert Frederick shot and killed Charles E. Collins in the grocery store owned by appellant, W, A. Frederick, in Lexington. Appellee, administratrix of Charles E. Collins, obtained judgment of $5,000 in Fayette Circuit Court in this wrongful death action; the judgment was rendered pursuant to the jury’s verdict imposing liability on both Robert Frederick and his employer, appellant W. A. Frederick. This appeal is by W. A. Frederick alone, and presents the sole question whether the act of shooting was within the scope of the employment of Robert Frederick, who was the son and employee of the appellant.

Appellant owned and operated a neighborhood grocery at the intersection of Spring and High Streets, known as West Hi Market. In addition to groceries, meats, and vegetables, package beer was sold from the store. It appears that the business was conducted by appellant with the aid of other members of his family, including his son Robert Frederick. At the rear of the store was an area in which was located a TV repair shop that was independently conducted by Robert Frederick. However, it is undisputed'that at the time of the unfortunate killing of Charles E. Collins, Robert Frederick was in sole charge of the operation of appellant’s store. It is also undisputed that Robert worked in the store part-time, on a commission basis, and that he had done so for about five years prior to the incident involved here.

Robert Frederick was the only eyewitness to the shooting. His explanation was that Collins entered the store about 7:00 p. m. and said, “Stick ’em up; this is a hold up.” Robert related that he had not seen Collins enter, nor did he hear him; that Collins, whom he admitted knowing by sight as a regular customer of the store and resident of the immediate neighborhood, had “changed” his voice. Robert explained that he was so frightened that he turned around and hit Collins in the face with the pistol and then shot him, without ever' realizing that it was Collins. Robert accounted for his having such ready access to the pistol by testifying that he had been repairing the weapon — that he had. had it at the meat block, when, he decided to check the cash register in order, to have a starting figure from which his commissions on sales could be computed. So, he walked from the meat block, carrying the pistol; before he could lay the pistol down to check the register, he heard Collins, speak the quoted words.

Appellant testified that he had not known that Robert had the pistol; that he had frequently instructed all of his employees, including Robert, never to resist a hold up, because he had ample insurance to guard against any loss. . In this he was corroborated by Robert.

The trial court submitted the case to the jury under instructions authorizing recovery against both the appellant and Robert Frederick, unless the jury should believe that Robert Frederick acted in self-defense, real or reasonably appearing so to Robert. The court also submitted-as a basis for liability the theory of the negligence of Robert Frederick. The trial court did not submit to the jury any issue as to whether Robert Fredericks actions were within the scope of his employment. It is the failure of the trial court to include that theory, plus the claim that the trial court should have directed a verdict for appellant, upon which we are asked to reverse the trial court.

The question of liability of the master for the assaults committed by his servant has been before this and other courts frequently. Some of our cases in which it has been held that the master was not liable are: Creamer v. Kroger Grocery & Baking Co., 260 Ky. 544, 86 S.W.2d 288; Phillip’s Adm’r v. Tway, 269 Ky. 583, 108 S.W.2d 525; McBee’s Adm’x v. Indian Head Mining Co., 280 Ky. 82, 132 S.W.2d 515; Cincinnati, N. O. & T. P. Ry. Co. v. Rue, 142 Ky. 694, 134 S.W. 1144, 34 L.R.A.,N.S, 200; John v. Lococo, 256 Ky. 607, 76 S.W.2d 897; Moore v. Ford Motor Co., 265 Ky. 575, 97 S.W.2d 400; Wood v. Southeastern Greyhound Lines, 302 Ky. 110, 194 S.W.2d 81; Citizens Finance Co. v. Walton, Ky., 239 S.W.2d 77.

In other cases from this jurisdiction the master has been held to be liabie: J. •]. Newberry Co. v. Judd, 259 Ky. 309, 82 S.W.2d 359; Fournier v. Churchill Downs-Latonia, Inc, 292 Ky. 215, 166 S.W.2d 38; Dennert v. Dee, 308 Ky. 687, 215 S.W.2d 575; Louisville & N. R. Co. v. Moore’s Adm’r, 292 Ky. 223, 166 S.W.2d 68.

Neither list of citations is intended to be complete; examination of the cases cited discloses that although opposite results were reached, because of widely variant factual situations, they recognize principles of law which are substantially consistent.

In 34 A.L.R.2d 372, et seq. is found a recent annotation dealing with the law relating to “Assault by Servant.” In discussing the applicable legal principles relating to mercantile establishments, it is said at page 427 of 34 A.L.R.2d:

“The rule discussed in the previous two sections to the effect that certain employees, from the nature of their du-tics, may cause their employers to become responsible, under the doctrine of respondeat superior, for assaults committed by them upon a customer, patron, or other invitee has been applied in certain situations to employees of mercantile establishments. The question of the master’s responsibility in such cases appears to be determined by the type of work which such employees are expected to perform, and hence employees such as store detectives, and managers and other agents who exercise control over the conduct of the master’s business, and who are expected to safeguard the master’s property and maintain order are ordinarily held to be acting within the scope of their employment when committing an assault upon a customer, patron, or other invitee even though such assaults are to some extent personal and malicious.”

In Prosser on Torts, 2nd Ed., pp. 3S4, et seq. it is observed that early cases denied recovery against the master, adhering to the fiction of an “implied command” of the master against intentional wrongdoing by his servant. However, under modern theories of allocation of the risk of the servant’s misbehavior, it has been recognized, says Prosser, that even intentional torts may be so reasonably connected with the employment as to fall within the scope of it. The present tendency is to extend the employer’s responsibility for such conduct. Op. cit., p. 354.

The principle is thus stated in Restatement of Agency, 2d, § 245:

“A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant’s employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant.”

It is noteworthy that the Reporter’s Notes, Restatement of Agency, 2d, § 245, recognize the present rule of liability reflects a broader basis for liability than did the rule in the first edition. It is said in the Reporter’s Notes:

“It is believed that it is now desirable to state a rule invoking a somewhat greater liability because of the cases in the intervening years.” Page 389, op. cit.

In the case at bar Robert was admittedly the appellant’s employee; moreover, he was in sole charge of the store at the time of the incident. Without douht Robert Frederick was under obligation generally to manage and protect the appellant’s store and its contents. There is no evidence that Robert sought to serve any personal purpose in his activity toward Collins. In fact, Robert asserted that he did not know whom he was shooting — that he acted in self-defense. He actually testified that he would have shot his father or brother under the same circumstances. So it is obvious that this case is not governed by any of the authorities which deny liability because the employee has acted in furtherance of a personal motive as distinguished from a motive connected with the employer’s business.

In our view the reasoning of the Georgia court in Great Atlantic & Pacific Tea Co. v. Dowling, 43 Ga.App. 549, 159 S.E. 609, is sound. There the manager of the A & P store said he saw a small negro girl slip a piece of candy into her pocket, whereupon he retained part of the change due her from a purchase she had made. The manager slapped the child twice, then tied her hands over her head and held her thus captive until her release was purchased for $5.00 by her foster mother. Other indignities were shown to have been committed by the manager against the child. There, as here, the employer defended on the ground that it had given specific instructions to the manager against such activity. That defense was rejected in the Georgia case, and we reject it here. The following language of the Georgia court aptly states our view of this situation:

“The true question is, Was the manager of the defendant company, at the time he committed the tort, acting in an individual capacity or as manager of the defendant company’s store? The tort was committed in the store of the defendant company, by the manager of the company, in dealing with a customer of the company, to avenge a wrong done the company, because of candy stolen from the company, and to prevent further stealing from the company. There is not the slightest intimation that the manager had been wronged personally or that he had any personal grievance against the child. He was manager of the store, and this was the method he adopted of protecting the store’s interest, avenging the wrong, and preventing a recurrence of the alleged theft from the store. The selection of a manager who would pursue such an improper course in a matter concerning the company’s business was made by the defendant company. The manager was at the time engaged in serving his master, the defendant company. His tortious act was in the prosecution of the master’s business. It was not in the prosecution of his individual business.” Op. Cit., 159 S.E. p. 611.

Since the employment was admitted, it follows as a matter of law that Robert Frederick, while acting as manager of the store, was acting within the scope of his -employment in protecting the premises. Thus, the trial court correctly assumed the actions of Robert to have been within the ■scope of his employment. If but one con-elusion regarding facts reasonably may be ■drawn from the evidence, such factual conclusion may be assumed in instructing the jury. Louisville & N. R. Co. v. Foster, 230 Xy. 157, 18 S.W.2d 983; 53 Am.Jur., Trial, § 158. See Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684, 172 A.L.R. 525, wherein the California Supreme Court upheld the trial court’s ruling that the employee’s activities were within the scope of his employment, as a matter of law and not of fact, when the facts were not in dispute.

The judgment is affirmed.

STEWART, J., dissenting.


author: MONTGOMERY, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. K. M. HERNDON et al., Appellees.
    Court of Appeals of Kentucky.
    April 24, 1964.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Frank D. Berry, Madisonville, F. D. Curry, Harrodsburg, James G. Osborne, Covington, for appellant.
    Sam Boyd Neely, Martin, Neely & Reed, Mayfield, for appellees.
   MONTGOMERY, Judge.

The Commonwealth of Kentucky, De•partment of Highways, appeals from a judgment in a condemnation action by which K. M. Herndon and wife, as property owners, were awarded $200 for land taken and $6,650 for damages. Appellant urges that: (1) the damages are excessive; (2) the opinion evidence as to value was •not properly substantiated; (3) the jury was erroneously permitted to consider the closing of the Oak Grove Road as an item of damage; (4) the court failed to define fair market value for the jury; and (5) certain evidence was erroneously admitted.

The Herndons owned a rectangular tract of 2.446 acres, of which .47 acre was taken for right of way for the Mayfield Bypass. The area taken was from the rear portion of the tract, and it contained trees and a pond. The improvements remaining consisted of an old dwelling, meat house, chicken house, hog house, and new dwelling. The property fronted on the Oak Grove Road.

The building of the bypass, a limited access facility, necessitated the closing of the Oak Grove Road east of the Herndon property. Prior to the taking appellees had three available routes of travel to May-field. After the taking appellees were able to travel westwardly on Oak Grove Road to Sutton Lane and on by Kentucky 80 into Mayfield. This route was variously stated to be from ,6 of a mile to a mile farther than the shorter of the two routes lost by construction of the bypass.

Over objection appellees were permitted to testify to the closing of the road and the inconvenience caused thereby. The trial court instructed the jury that they could consider evidence of inconvenience from the road closing for the purpose of “determining the damages to the sale price of the remainder of the land.”

In Ex Parte Commonwealth, Ky., 291 S.W.2d 814, the right of property owners to claim damages for the closing of a road by the construction of a limited access road was considered. It was held that “a property owner on a road proposed to be closed is entitled to damages (for depreciation in the value of his property) only when the closing of the road will deprive him of his sole or principal means of ingress and egress.” See also Commonwealth v. Carlisle, Ky., 363 S.W.2d 104, and Commonwealth v. Raybourne, Ky., 364 S.W.2d 814. The trial court was in error in permitting the jury to consider the inconvenience arising from the road closing as an element of damage when there was another means of ingress and egress available.

Appellant complains that without any definition of fair market value the jury was instructed to determine the difference in the fair market value of the property before and after the taking. Appellant complains further that there was some evidence erroneously admitted of the price for which the Herndons, as unwilling sellers, sold the property after the taking. In such circumstance the giving of a definition of fair market value was especially pertinent’ and necessary in order that the jury might have the proper standard by which to determine the damages. In order to arrive at the true damages,' values must be given without regard to any element of compulsion or unwillingness in either selling or buying. Commonwealth v. Begley, 272 Ky. 289, 114 S.W.2d 127; Commonwealth v. Darch, Ky., 374 S.W.2d 490. It was error to admit evidence indicating an unwilling sale, and it was error to fail to define fair market value.

Ralph Waldrop, a real estate man, testified for appellees that the property was worth $7,200 after the taking. When asked how he arrived at the valuation, he answered, “Well, Mr. Herndon actually had this property listed with me to sell for $8,200.00.” Appellant’s objection was overruled.

A listing of property with a real estate man for sale is an offer to sell made by the owner. Such evidence as to asking price is obviously not admissible. Similar testimony of offers to buy or to sell has been condemned. Commonwealth v. Combs, 229 Ky. 627, 17 S.W.2d 748; Warfield Natural Gas-Company v. Wright, 233 Ky. 378, 25 S.W.2d 1036; Brock v. Harlan County, 297 Ky. 113, 179 S.W.2d 202. The statement as to listing should have been excluded.

In the view taken it becomes unnecessary to discuss the question of excessive damages since the evidence may be different on another trial. On the matter of substantiation of opinion testimony on evaluation, guidance may be found in Stewart v. Commonwealth, Ky., 337 S.W.2d 880; Commonwealth v. Tyree, Ky., 365 S.W.2d 472; Commonwealth v. Fister, Ky., 373 S.W.2d 720; Commonwealth v. Darch, Ky., 374 S.W.2d 490; Commonwealth v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249.

Judgment reversed for a new trial consistent herewith.


author: CULLEN, Commissioner.

text:
    Robert Wayne SMITH et al., Appellants, v. Byrd Smith WHITE et al., Appellees.
    Court of Appeals of Kentucky.
    April 24, 1964.

      Joseph E. Fineman, Felix J. Sanders, Jr., and Herman E. Frick, Louisville, for appellants.
    Davis Williams, Munfordville. for appel-lees.
   CULLEN, Commissioner.

This appeal involves the construction of the residuary clause of the holographic will of Kate Smith, which is:

“ * * * the rest of my estate land and Stock and belongings to my sister Poca Smith, if she out lives me she de-vide my little among my nephews & Nieces.” -

Poca survived Kate and subsequently died leaving a will in which she undertook to devise all of her estate, including what she had received from Kate, to a brother and two sisters.

The appellants are the nephews and nieces. Their contention is that the will gave Poca a life estate with remainder to them. The appellees are the devisees under Poca’s will. They contend that Kate’s will gave Poca a fee simple except for personal keepsakes (they say that the words “my little” means keepsakes).

The circuit court adjudged that Poca took a fee simple under Kate’s will. The judgment was based on the following conclusions of law:'

1. The ambiguity in the will is patent and therefore extrinsic evidence is not admissible to show the intent.
2. That portion of the will begin- . ning with the words “if she out lives me” is so unintelligible, indefinite and uncertain as to be incapable of being given effect, so that portion is void.
3. Even if such portion of the will is. not void for uncertainty the will should be considered to give Poca a fee, under the rule that where a will is susceptible of two interpretations, one conveying a fee and the other a lesser estate, the court will adopt the construction, favoring a fee.

The appellants first contend- that extrinsic evidence should have been admitted. They offered evidence that Kate on occasions had referred to her property as her “little estate.” ’They maintain this was admissible to show that in using the words, “my little,” in the will,'Kate meant all of her estate. Assuming for the purpose of argument that this evidence was admissible, we do not see how the admission would help, because even if “my little” be construed as “all of my estate” the will is still ambiguous. It is impossible to determine whether Poca was being designated as an executrix or- trustee to make an immediate division among the nephews and nieces, or-was given a life estate with power to appoint the remainder unequally among the nephews and nieces, or was given a life estate with remainder equally to the nephews and nieces.

The appellants also offered evidence of a witness that on one occasion some few years after the will was executed, Kate had said that she “wanted Poca to run the place like she ran it until she died and then she wanted her part of the stuff to go to her nephews and nieces.” The authorities relied upon by the appellants do not support their argument that this kind of evidence is admissible. They go no farther than to hold that extrinsic evidence is admissible for the purpose of identifying the person or the subject matter, or in other words, to determine the nature of the property willed and those entitled -to it. See Eichhorn v. Morat, 175 Ky. 80, 193 S.W. 1013; Hall’s Adm’r v. Compton, Ky., 281 S.W.2d 906. No authority is cited for the proposition that extrinsic evidence is admissible to show what kind of legal estate the testator intended to create.

The appellees offered evidence designed to show that in using the words,, “my little,” Kate meant her personal keepsakes. We believe that extrinsic’ evidence is admissible to show that certain words used by a testator had a peculiar personal or colloquial meaning. See Jarman on. Wills, sec. 732. But here the evidence that was offered simply did not prove that Kate had ever used the words “my little” as referring to her keepsakes. The evidence really amounted to nothing more" than expressions of opinions by witnesses that they thought she probably meant her keepsakes, when she used the words “my little” in the will. ’ • •

It is our conclusion, therefore, that the trial court’s ruling on the matter of admission of extrinsic evidence was not prejudicial, though perhaps erroneous in part.

The appellants next contend that the trial court erred in holding only part of the residuary clause void for uncertainty. With this we agree. It is apparent that Kate intended some kind of limitation on the devise to Poca — she did not intend Poca to have an unqualified fee. Therefore, for the court to hold invalid only the part of the will, imposing the limitation or qualification would produce a result obviously not intended by the testatrix. It is. our opinion that the entire residuary clause must be held void for uncertainty. See McKee v. Hedges, Ky., 297 S.W.2d 45; Whitehead v. Donnelly, Ky., 368 S.W.2d 337.

It is our opinion also that this is not a proper case for application of the rule that if the language of a will is doubtful and admits of two constructions, one conveying an absolute fee and the other a lesser estate, the court will construe the language as conveying an absolute fee. See Boggs v. Baxter, Ky., 261 S.W.2d 684. Kate’s will is not susceptible to the construction that Poca was to get an absolute fee in Kate’s main property unless the words “my little” are interpreted to mean keepsakes. There is nothing in the will itself to suggest that meaning, and as we hereinbefore have said, the extrinsic evidence did not prove any such meaning. We believe that the rule above statéd, favoring a fee construction, should not be applied where a fee construction is only a bare, remote, speculative possibility.

The judgment is reversed with directions to enter judgment holding the entire residuary clause of the will void for uncertainty.


author: STEWART, Judge.

text:
    Edward A. WAGNER, Jr., Petitioner, v. W. B. ARDERY, Judge, Woodford Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    April 24, 1964.
    Edward A. Wagner, Jr., pro se.
    Robert F. Matthews, Atty. Gen., Frankfort, for respondent.
   STEWART, Judge.

Petitioner, Edward A. Wagner, Jr., is a prisoner at Eddyville. In March, 1962, he was convicted on a charge of rape in the Woodford Circuit Court and sentenced to life imprisonment. He appealed. The judgment was reversed by a memorandum opinion dated October 12, 1962, and the case was remanded for a new trial.

. Petitioner’s former attorney, Ted Marye, thereafter wrote him he could no longer represent him without compensation and that he was to have a new trial at the March 1963 term of the Woodford Circuit Court. Petitioner alerted his witnesses, and some had to travel from Louisville and others who had to arrange for time off from work or for baby-sitters, but he heard nothing from the trial court. Petitioner then filed a motion for a quick and speedy trial, which was received by the Woodford Circuit Court Clerk, but no action was taken at the March term.

In April, 1963, the reformatory chaplain sent a letter to the Court of Appeals, who referred the matter to the Attorney General, and he advised the chaplain counsel had been newly appointed for petitioner and that a trial was set for the September 1963 term.

In September, 1963, petitioner was removed to the Woodford County jail and his witnesses were present for the trial. However, petitioner never left the jail, and his case was continued at the request of the Commonwealth’s attorney to the November 1963 term. His counsel told him, if this happened again, he would move for immediate trial or dismissal. Petitioner was returned to Eddyville.

On November 22, 1963, petitioner was again removed to the Woodford County for trial. He did not see his defense counsel. He was brought before the trial court and told that he was being transferred to Eastern State Hospital for 35 days. Petitioner did not object to this. The trial court also told him he would be returned in March, 1964, for trial. Petitioner went to the hospital and was then sent back to Eddyville, awaiting the call to the March 1964 term of court.

He wrote his counsel to ask what preparations were being made for the trial. His counsel responded that he was surprised petitioner was still in the penitentiary, as it was his understanding his transfer to the hospital had concluded the case, and that both he and his court-appointed co-counsel were relieved of their obligation to represent petitioner. Petitioner has written to his counsel again but has received no reply; he has also written the Woodford Circuit Court Clerk but 'has received no , response. He has not heard from the' trial court during the March term. The next term of court is in'September.

Petitioner claims that, as 17 months have passed since the Court of Appeals reversed' and remanded his case, he has been deprived of his' constitutional rights to a quick and speedy trial and of equal protection of the law. He denounces the fact that no one will tell him anything about the present status of his case. He complains of the inconvenience to his witnesses. He also states that the suspense is causing him mental anguish, worry, fear and anxiety.

He asks that the judge of the Woodford Circuit Court grant him a prompt trial of the case or direct a dismissal of the indictment. Respondent has not answered this petition.

Under the facts presented, we conclude petitioner’s substantial rights have been violated because he has not been afforded a ■speedy trial, as required by Section 'll of the Constitútion of' Kentucky

Wherefore, the judge of the Woodford Circuit Court is ordered to grant petitioner a prompt trial, upon due notice, and, if he does not have adequate counsel, to appoint a competent and experienced, attorney to represent him throughout this proceeding. In the alternative, if petitioner is not given a prompt trial, the indictment now pending against him is directed to be dismissed.


author: MOREMEN, Judge.

text:
    Calloway COMBS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 1, 1964.

      M. B. Fields, Hazard, for appellant.
    Robert Matthews, Atty. Gen., Joe Nagle, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, Calloway Combs, Jr., was convicted of the crime of murder and sentenced to life imprisonment.

On the afternoon of May 1, 1963, Grover Fugate, age 76, and Ira Cross, age 82, were drinking beer in a tavern in Perry County. Late in the aftenoon they were joined by Calloway Combs, Jr., age 20. They drank for a while, then Combs announced that he had to return home. It was suggested instead that they go to the rooming house where Cross and Fugate were staying. They gave Combs $1.20 with which to purchase a bottle of wine. Cross and Fugate went immediately to the rooming house and had supper. Not long afterwards Combs returned with a fifth of wine and ate his supper. They all went to Fugate’s room where Combs was to spend the night after they had disposed of the wine. They drank for some time and Combs then left for the purpose of making a telephone call to his wife who was expected to return home from Ohio on a bus that night. Cross went to his own room and Fugate stayed in his room. This was early in the morning of the next day. About two o’clock Combs returned, a difficulty arose, and Combs struck Fugate with a Seven-up bottle. He suffered cuts, bruises and a concussion, and died about seven days later from a massive blood clot on the brain. Cross testified that from his room he saw Combs return and enter Fugate’s room. He heard Fugate call out the name “Junior” but that was all that was intelligible to him. Combs then came out of the room rapidly and left the building. Another witness, Venus Pilkin, a waitress who lived on the premises and who had a room near that occupied by Fu-gate, testified that on the night of the trouble she was unable to sleep and sat up and read a magazine. It was a warm rather humid night and she had left her door open, as had Cross, to obtain better circulation of air. During the evening she heard the men talking in the other room, but did not pay much attention to the conversation. She did testify, however, that she heard Combs ask Fugate for money with which to buy whiskey and that Fugate had told him he did not have any change. Thereupon both of them tried to persuade Cross to give them money for that purpose. Soon thereafter she saw Combs come out of the room and pass her door. About one and one half hours later she saw Combs return and she heard Fugate say, “Hey, son, what are you doing here ? ”, which was followed by the sound of a blow. Combs then ran out of the door and, in his haste, hit the door-facing of her room. In a few minutes Fugate came out of his room where he was joined by Cross, and Fugate said, “Junior Combs, that boy that was here tonight, hit me.” Soon afterwards Cross and Fugate left and went to the police station. Fugate stayed at the boarding house for about two days and then went to the hospital where he died.

Junior Combs testified in his own behalf. His testimony as to the events which preceded the fatality generally agreed with that above outlined. His story varied to some extent because he stated that while they were drinking, Fugate began to talk about the people he had killed and later when the wine was all gone Fugate became angry and jerked out a knife and backed him into a corner. He stated that he hit Fugate one time, but Fugate kept coming and he hit him again with a Seven-up bottle. Fugate staggered back and Combs ran out of the door and left the boarding house.

Appellant contends 'that the court erred in failing to instruct the jury on the full law of the case. The court gave five instructions. The first submitted the crime of murder; the second, self defense; the third defined the word “wilful” and the expression “with malice aforethought”; the fourth, the question of whether a Seven-up bottle was such an instrument as was reasonably calculated to produce death when used by a person of defendant’s physical strength; the fifth was a reasonable doubt instruction. The fourth instruction was not tied into any of the other instructions and perhaps should not have been given. Under the instructions the jury had no alternative but to find appellant guilty of murder and fix his punishment at life imprisonment or death, or to find him not guilty under the self-defense instruction.

It has been held that if there is any evidence that tends to show that the crime was of less magnitude than murder, it is the duty of the court to give an instruction on such other phases of the case. Benson v. Commonwealth, 290 Ky. 713, 162 S.W.2d 538. In Shorter v. Commonwealth, 252 Ky. 472, 67 S.W.2d 695, it was pointed out that if there was any evidence tending to show that the homicide was manslaughter, the accused was entitled to an instruction upon that hypothesis.

There is no showing in this case that Combs and Fugate, before the final incident, had borne any ill will toward each other or had had previous trouble; to the contrary, the men seem to have been friends and drinking companions. The character of weapon used does not indicate that there was any preparation by appellant to commit a murder. His seizure of the Seven-up bottle seems to have been an improvisation of the moment and the choice of the weapon, to a certain extent, tends to negate the idea that Combs intended to inflict a fatal injury.

It was said in Pennington v. Commonwealth, Ky., 344 S.W.2d 407: “Under such circumstances the jury should have the right to determine whether the killing was done with malice aforethought, in sudden affray without malice, or in self-defense.” In addition this case was tried after KRS 435.022 became effective on June 14, 1962, wherein the legislature for the first time defined involuntary manslaughter in two degrees of that crime. We believe the evidence indicated circumstances which require that the jury be instructed on that section of the statute. See, Lambert v. Commonwealth, Ky., 377 S.W.2d 76.

The judgment is therefore reversed and the case remanded for a new trial in conformity with this opinion.

MONTGOMERY, J., dissents on ground that a voluntary manslaughter instruction should not be given.


author: WILLIAMS, Judge.

text:
    Micheal A. LONG, Petitioner, v. JUDGE OF the WEBSTER CIRCUIT COURT, Respondent.
    Court of Appeals of Kentucky.
    April 24, 1964.

      Micheál A. Long, pro se.
    Robert F. Matthews, Atty. Gen., for respondent.
   WILLIAMS, Judge.

Micheál A. Long, a prisoner in the State Penitentiary under sentence from the Webster Circuit Court, has filed in this Court a petition naming as respondent Judge of Webster Circuit Court, seeking an order of mandamus.

Petitioner has failed to- name the judge against whom the order of mandamus is sought, which is fatal to his cause. Trod-;glen v. Judge, Daviess Circuit Court, Ky., .371 S.W.2d 40; Clevenger v. Judge, Pike Circuit Court, Ky., 375 S.W.2d 277. In the Trodglen case it was stated that an order to control the action of the trial court is in the nature of a personal action against the judge of the trial court, and the judge against whom the order is sought must be sued by name and properly served with notice of the petition.

The petition is dismissed.


author: CHESLEY A. LYCAN, Special Commissioner.

text:
    Iola CUPPY et al., Appellants, v. GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, Ltd., et al., Appellees.
    Court of Appeals of Kentucky.
    April 24, 1964.

      Daniel B. Boone, . Henry A. Triplett, Louisville, for. appellants.
    J. D. Raine, Louisville, for appellees.
   CHESLEY A. LYCAN, Special Commissioner.

The automobiles of appellant William C. Cuppy and appellee John Drake collided in Louisville on May 19, 1960, injuring appellant Iola Cuppy, wife of William C. Cuppy. Appellee General Accident Fire and Life Assurance Corporation, Ltd., was the insurance carrier for Drake. On the day of the collision, Armón Morgan, an adjuster for the insurance company, appeared at the Cuppy home and discussed the collision. Morgan .saw the Cuppys twice more. He places the time of his last visit as “the first part of August.” Cuppy agrees that the last time they saw Morgan was August 1960. Iola Cuppy substantially agreed on the date, saying she was in the hospital in July and saw Morgan after she got -out. Appellants brought suit on September 1, 1961, and, realizing that more than one year had elapsed since the collision, attempted in the complaint to plead around the statute of limitations on the grounds that the adjuster for the insurance company had “promised plaintiffs that it would take care of everything” and thereby “obstructed the prosecution of this action within one year.” Appellees relied upon the statute of limitations, KRS 413.140(1) (a) (b), .and the statute of frauds, KRS 371.010(4).

There is no dispute that the adjuster did visit the Cuppys at least three times; that the Cuppys knew Morgan was an insurance adjuster; and that the conversation with Morgan was friendly at all times. There is a dispute as to what was said when Morgan visited the Cuppys. Morgan said that Iola Cuppy made the positive statement that she was going to sue. He said that he gave her his card and told her “to show her that we would try to be fair about it,” that he “would be happy to discuss it with her.” William C. Cuppy, who was present and took part in some, if not all, of the conversations with Morgan, stated that Morgan said, “he wanted her to get well, and they would take care of everything,” and that they relied on the statements. Iola Cuppy said, “He told me when I found out how much it was going to be to call him and we would sit down together and discuss it and I didn’t know how much it was going to be. I never called him and that’s the reason I didn’t.”

The trial court dismissed appellants’ complaint “insofar as it avers a claim for personal injuries, incidental damages and loss of consortium, * *

Two recent cases in point are Pospisil v. Miller, Ky., 343 S.W.2d 392, and Burke v. Blair, Ky, 349 S.W.2d 836.

In Burke v. Blair, this Court said;

“The general rule is that a party may be estopped to plead limitations where he has induced inaction on'the part of the plaintiff by his false representations or fraudulent concealment. However, the fraudulent action must be of a character to prevent inquiry or elude an investigation or otherwise mislead the party having cause of action, and such party is under the duty to exercise reasonable care and diligence. See 53 C.J.S. Limitations of Actions § 25.
“ * * * We said that the plaintiff is presumed to know that an action will be barred in one year by the statute of limitations, and has no right to rely upon representations of an insurance adjuster who is her adversary.”
“It is not denied that the appellee knew •when he discussed 'settlement with appellant’s attorney that the attorney was working for his adversary. Mere negotiations looking toward an amicable settlement do not afford a basis for estoppel to plead limitations.” See also Bryant v. Bryant, Ky., 246 S.W.2d 457.

Those cases are in point. We see no reason to depart from the principles announced therein. Moreover, it should be observed that more than one year elapsed between the last contacts of Morgan, the adjuster, with the Cuppys in August 1960, .and the institution of this action on September 1, 1961.

Appellants also contend that the question whether the adjuster’s action tolled the statute of limitations should be submitted to the jury. That was done in Burke V. Blair, supra, and the jury found for the plaintiff, but this Court held that “appellant’s motion for a judgment n. o. v. should have been sustained.” Whether an action is barred by the statute of limitations is a question of law to be decided by the courts, especially in those cases in which the evidence when viewed in the light most favorable to one .seeking to avoid the statute of limitations still calls for the application of the statute. We find in this case that álthough viewing the evidence in the light most favorable to the appellants, to-wit: “he wanted her to get well, and they would take care of everything,” still the action is barred by the statute of limitations, KRS 413.140(1) (a) (b). That testimony in this case is no stronger than the testimony in Burke v. Blair, supra, where the attorney in attempting to negotiate settlement said, “he was going to be paid.”

Louisville & N. R. Co. v. Carter, 226 Ky. 561, 10 S.W.2d 1064, and Clover Splint Coal Co. v. Lorenz, 270 Ky. 676, 110 S.W.2d 457, cited by appellants, are distinguishable because there were payments or continued employment. In Adams v. Ison, Ky., 249 S.W.2d 791, the confidential relationship of surgeon and patient is a distinguishing factor.

By the tests set out in Pospisil V. Miller, supra, and Burke v. Blair, supra, we find no facts constituting an estoppel to plead the statute of limitations, and we affirm the holding of the trial court that the action is barred by the statute of limitations.

Appellees also relied upon the statute of frauds, KRS 371.010(4), which provides in part:

“No action shall be brought to charge any person:
* * * * * *
“(4) Upon any promise to answer for the debt, default or misdoing of another;
* * * ‡ Hí *
“unless the promise, contract, agreement, representation, assurance or ratification, or some memorandum or note thereof, be in writing and signed by the party to be charged therewith, or by his authorized agent. * * * ”

Appellants’ pleading does not set out the terms of Drake’s policy and simply refers to it as “public liability insurance,” which ordinarily is only a contract to defend actions against insured and to indemnify insured against loss or judgment arising out of the use of the automobile referred to in the policy. The rule is (with the possible exception in case of insolvency or bankruptcy, neither of which is pleaded or proved here) that an injured person cannot sue the insurance company in his original action against the insured. New York Indemnity Co. v. Ewen, 221 Ky. 114, 298 S.W. 182; Chambers v. Ideal Pure Milk Co., Ky., 245 S.W.2d 589; Happy v. Erwin, Ky., 330 S.W.2d 412.

The action against General Accident Fire and Life Assurance Corporation, Ltd., should have been dismissed in so far as the action was based on tort.

Appellants’ complaint, however, declares both in tort and contract.

The alleged contract is pleaded for two purposes: First, as an estoppel against the plea ,qf the statute of limitations, which we have held to be insufficient to constitute an estoppel against the plea of limitations, and second, as a cause of action against General Accident Fire and Life Assurance Corporation, Ltd., on a settlement contract, which the insurance company moved to dismiss, denied, and pleaded statute of limitations and statute of frauds.

Every contract requires mutual assent and consideration, and contracts to answer for the debt, default or misdoing of another must be in writing.

Depositions were taken of the appellants and of Morgan, the insurance adjuster, covering both the question of estoppel to plead the statute of limitations and also the contract theory. They all agree that Morgan negotiated with the aim of settlement but there the agreement stops, the theory of appellants being that Morgan agreed to “negotiate and pay,” and the theory of Morgan being that he agreed to “negotiate and be fair.”

The alleged consideration for the contract sued upon is, “abstinence from seeing a lawyer and filing a suit.” That leaves some ambiguity. The most favorable view to the appellants is that “she promised to and did abstain from seeing a lawyer and filing suit,” while the most favorable to the appellees is that “without promise plaintiff merely abstained from seeing a lawyer and filing suit.” All doubt on the matter is resolved by the following question and answer in Iola Cuppy’s deposition:

“Q. Did you ever promise Mr. Morgan that if he would make a settlement with you that you would not see a lawyer or file a suit ?
“A. No sir, we didn’t discuss it at all.”

The Court holds, therefore, that the alleged consideration for the alleged contract did not exist. Simple failure to act not pursuant to request or agreement is-no consideration.

If we consider Morgan’s negotiations toward settlement to be an admission, of liability against the insured, Drake, that would not stop the running of the statute of limitations for the reason that “The rule relating to acknowledgments and new promises is confined in its application to-contracts express or implied for the payment of money, and does not extend to actions in tort, * * See 34 Am.Jur., Limitations of Actions, Section 291, page-235 ; Luther & Morgan v. Payne, 197 Ky. 359, 247 S.W. 39; Mutual Trust & Deposit Co. v. Boone, Ky., 267 S.W.2d 751, 45 A.L.R.2d 961.

The contract theory fails because the evidence shows that the negotiations between Morgan and the Cuppys contemplated a. compromise or settlement, but no compromise or settlement was ever made and there was never a novation abolishing the tort liability and substituting a promise of the insurer to pay and of the injured to accept. In fact, relief was sought on the-tort liability. Even if there had been such mutual assent, and we hold there was not,, there was no consideration to support it. Inasmuch as we hold there was no contract,. it is unnecessary to consider the defense of the statute of frauds.

It is our opinion that the judgment should he affirmed.

The opinion is approved by the Court and the judgment is affirmed.


text:
    Claude E. WELDON and Garnett Weldon, Appellants, v. FEDERAL CHEMICAL COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 1, 1964.
    Vincent J. Hargadon, Louisville, for appellants.
    Norman A. Curtis, Louisville, for appel-lee.
   GEORGE O. BERTRAM, Special Commissioner.

The parties will be referred to as they appeared in the lower court, plaintiffs and defendant. Plaintiffs sued for a total of $37,811.00, alleging damages involving an automobile accident March S, 1960. The Jefferson Circuit Court granted a summary judgment in favor of defendant on the theory that the agent of defendant company was engaged in his personal affairs at the time of the accident.

This appeal seeks reversal of the lower court and offers five reasons:

1. Genuine issues of fact existed so that it was improper to grant defendant a summary judgment.

2. Action of general agent entrusted with principal’s automobile, for business and pleasure, in leaving same in a dangerous place to accomplish an object of his own, does not necessarily make the act of leaving it outside the scope of employment.

3. Notice td assistant general sales manager was notice to the employer, Federal Chemical Company, that the employer’s automobile was in a dangerous place likely to cause harm to members of the public.

4. Jury question is presented whether the defendant company had reasonable time in which to repair its vehicle or have it towed to a position of safety.

5. In any event, after a showing that a vehicle is in the possession of an agent and the creation of the presumption of agency, it is improper to grant a summary judgment that the act of the agent is outside the scope of employment.

The accident involved the automobile owned and driven by plaintiff Claude E. Weldon, with plaintiff his wife, Garnett Weldon, as a passenger. Dorris T. Morris, assistant general sales manager of defendant company, abandoned the defendant vehicle driven by him about 1:00 a. m. due to a frozen carburetor. Morris was on his way to pick up his son at a party. The abandoned vehicle, near an intersection, loomed up in the headlights of the vehicle plaintiffs were in. There were no lights on the abandoned vehicle. The plaintiff vehicle struck the defendant vehicle.

The defendant vehicle was purchased by defendant for the general use of Morris as assistant general sales manager. Morris was authorized to use this vehicle for the general business of defendant company and also for his private pleasure.

Plaintiffs lean heavily on the theory that Dorris T. Morris, employed by defendant company as its assistant general sales manager, was engaged in a permitted enterprise, since he was authorized to use the defendant vehicle for his personal use as well as business affairs, and the private enterprise by Morris being permitted tends to indicate that the leaving of the vehicle at the intersection was within the scope of his employment. With this we cannot agree. It is uncontradicted and admitted that Morris was on a purely personal mission as father going after his teenage son who was attending a party at the home of a neighbor, and that the trip had absolutely nothing to do with any furtherance of the defendant company business. This Court has, without exception, held the defendant to be without liability in such cases. See Taulbee v. Mullins, Ky., 336 S.W.2d 597, and the cases cited therein. Also Sharp v. Faulkner, 292 Ky. 179, 166 S.W.2d 62.

In reaching this conclusion we are not unaware of the other reasons given by plaintiffs; however, as we review the record, including the depositions, we think there is no evidence, either direct or inferred, that the defendant driver was on the business'of defendant company at the time and place of the accident and such was not alleged in the complaint.

For the reasons given we think the trial court properly granted a summary judgment.

We recommend that the judgment be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


text:
    Buddy Wayne LAIRSON, Petitioner, v. JUDGE, CLARK CIRCUIT COURT, Respondent.
    Court of Appeals of Kentucky.
    May 1, 1964.

      Buddy Wayne Lairson, pro se.
    Robert F. Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for respondent.
   STEWART, Judge.

Petitioner, Buddy Wayne Lairson, is a prisoner in the Kentucky State Penitentiary at Eddyville, under sentence from the Clark Circuit Court. He seeks an order against ‘‘Judge of the Clark Circuit Court,” as respondent, to vacate the judgment entered upon the ground that the indictment was erroneous and unauthorized, but he does not specify the ground.

This Court has uniformly held that a proceeding to control the action of a trial court is of a personal nature and that the judge of that court must be sued by name. The failure in this case to designate the trial judge by name is fatal to petitioner’s cause. See Long v. Judge, Webster Circuit Court, Ky., 378 S.W.2d 628; Clevenger v. Judge of Pike Circuit Court, Ky., 375 S.W.2d 277; Gibson v. Judge of Warren Circuit Court, Ky., 375 S.W.2d 276.

Wherefore, the petition is dismissed.


author: TERILL A. WILSON, Special Commissioner.

text:
    Ida COZINE, Appellant, v. Mary E. SHUFF, Appellee.
    Court of Appeals of Kentucky.
    May 1, 1964.

      Fielden Woodward and Kenneth L. Anderson, Woodward, Hobson & Fulton, Louisville, for appellant.
    D. H. Robinson & Joseph W. Cambrón, Cambrón, Harvin & Robinson, Louisville, for appellee.
   TERILL A. WILSON, Special Commissioner.

Seventy-five-year-old Mary E. Shuff brought this action against her sister, Ida Cozine, asking for $27,000 in damages for personal injuries resulting from a fall on the kitchen floor in her sister’s home. The jury awarded her $5,854.97 and judgment was entered accordingly. Mrs. Cozine has appealed, seeking a reversal of the judgment for the following reasons:

1. The evidence failed to show any negligence on the part of the defendant.
2. The testimony showed, as a matter of law, that plaintiff was guilty of contributory negligence.
3. There was no evidence of causal relationship between any claimed negligence of Mrs. Cozine and any injury to Mrs. Shuff.
4. Mrs. Shuff at time of the accident was a social guest at the home of Mrs. Cozine, was a licensee, and no duty to plaintiff was violated by the defendant.

The facts briefly stated are as follows: Mrs. Cozine became ill beyond her ability to do her house work, and failing to so advise her husband who left for his work, she had her sister Mrs. Shuff come to her home around 3:00 p. m. to help her. After she had been sitting for a while near her sister’s bedside, she was requested by Mrs. Cozine to close the back door of the kitchen to cut off a draft, and while so doing she slipped and fell, seriously injuring herself. She was lifted from the floor by Mrs. Cozine at a spot where the evidence indicated some lard had fallen from Mrs. Co-zine’s dog platter earlier in the day, and of which Mrs. Shuff had not been apprised. A relative took her to the hospital where she remained for several weeks in apparent pain and suffering. The extensive pain and aggravated injuries are not questioned, nor is the amount allowed for damages contested.

The Court will consider the points raised by defendant in the order heretofore stated, namely: (1) “The evidence failed to show any negligence on the part of the defendant.” This Court believes otherwise. The record fully discloses that Mrs. Cozine spilled grease, described as lard, on her linoleum floor, of which she knew, and about which she failed to advise her sister who had no such knowledge of this deceptively hazardous object. In City of Madisonville v. Poole, Ky., 249 S.W.2d 133, the Court discussed the duties of a possessor of property to persons invited therein. There the Court held the defendant to be negligent in maintaining the premises and said:

“If the possessor knows, or by the exercise of ordinary care or reasonable diligence could discover a natural or artificial condition which, if known, he should realize involves an unreasonable risk to the invitee and does not remedy the condition or serve fair warning of peril, he is negligent.”

The Court will consider the second contention of the defendant: (2) “The testimony showed, as a matter of law, that plaintiff was guilty of contributory negligence.” This Court does not so believe, and consequently does not so hold. The lard having been deposited on the floor by the careless act of the defendant was deceptively concealed by the color of the rug. It is apparent that this hazardous substance was unobservable except by a minute inspection, and that a person of ordinary prudence would not have seen lard blended against a similar coloring on a kitchen linoleum. In Kentucky and West Virginia Power Company v. Goodman, Ky., 257 S.W.2d 553, the rule is thus stated:

“Before one as a matter of law can be held to have been so contributorily negligent as to be denied a recovery because of having exposed himself to a known danger, the danger must be so imminent and obvious that a person of ordinary prudence, under like circumstances and with like knowledge, would not subject himself to it.”

The third contention of the defendant is: (3) “There was no evidence of causal relationship between any claimed negligence of Mrs. Cozine and any injury to Mrs. Shuff.” This Court finds there was sufficient evidence to connect the cause with the effect. There was an unwarned, careless act of the defendant; then a fall and resulting injuries to the plaintiff. Mrs. Cozine was asked,

“Now, Mrs. Cozine, wasn’t there grease on the floor where Mrs. Shuff fell?”

She replied:

“But I dropped the grease and didn’t clean it up. * * * And there was where she scooted and fell.”

Unquestionably this evidence alone connects the negligent act of the defendant with the injuries of the plaintiff.

Coming now to the fourth contention of the defendant: (4) “Mrs. Shuff at the time of the accident was a social guest at the home of Mrs. Cozine, was a licensee, and no duty to plaintiff was violated by the defendant.”

From the evidence in this record, this Court finds that Mrs. Shuff was an invitee and not a licensee. The facts in this case fully and conclusively disclose that Mrs. Cozine invited her sister to come and help her keep house while she was sick. She responded, no doubt, out of compassion and love for her sister, and while so engaged, whether gratuitously or on a monetary basis, she was injured while on a call of devoted duty.

In defining the distinction between an invitee ¿nd a licensee, the Court stated in Scuddy Coal Company v. Couch, Ky., 274 S.W.2d 388:

“[T]he distinction between an invitee and a licensee is oftentimes shadowy and indistinct. * * * An invitee enters upon the premises at the express or implied invitation of the owner or occupant on business of mutual interest to them both, or in connection with business of the owner or occupant. A licensee enters by express invitation or implied acquiescence of the owner or occupant solely on the licensee’s own business, pleasure or convenience.”

In a California case, Cain v. Friend, 171 Cal.App.2d 806, 341 P.2d 753, the Court said:

“Where the services are for the benefit of the occupant of the premises, the fact that they are performed gratuitously does not negative the performer’s status as an invitee. * * * Even where the benefit to the occupant is intangible, the one rendering services may rely on them to establish his status as an invitee.”

In holding that Mrs. Shuff was an invitee of the defendant, it follows as a matter of law that Mrs. Cozine owed the plaintiff the duty of ordinary care, hence the obligation of warning her of the dangerous condition of her kitchen floor.

The Court properly instructed the jury on all issues presented, and the verdict being within the limits of temperance and reason, considering our present day de-valuated dollar, finds no errors of a prejudicial nature. It is therefore our opinion that the judgment should be affirmed.

The opinion is approved and the judgment is affirmed.


text:
    Henry PETERS et al., Appellants, v. BOARD OF EDUCATION OF HARDIN COUNTY, Kentucky, Appellee. Wendell JEFFRIES et al., Appellants, v. BOARD OF EDUCATION OF HARDIN COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 1, 1964.
    James M. Collier, Faurest & Collier, Eliz-abethtown, for appellants.
    Paul M. Lewis, Hatcher & Lewis, Eliza-bethtown, for appellee.
   JAMES B. STEPHENSON, Special Commissioner.

Appellants, plaintiffs below, filed these actions, consolidated on appeal, against the Board of Education of Hardin County, the appellee, alleging that appellee negligently constructed or operated a sewerage system from their school buildings so as to cause sewage to come upon appellant’s property and contaminate their water wells, and claiming monetary damages as a proximate result of the aforesaid alleged negligence.

Appellee filed motion to dismiss and a conference in the nature of a pre-trial was apparently held by the court, resulting in the trial court sustaining appellee’s motion to dismiss, and adjudging that the dismissal of the complaint “be and it is a final and complete determination of said issue”, without, however, the recitation of a determination that there is no just reason for delay. In the same order appellants moved for leave to amend their complaint for an injunction against appellee, which motion was sustained and the amended complaint was ordered filed.

Thereafter, notice of appeal was filed and within the time set out in CR 52.02 for amendment of findings, appellee moved the Court to make findings of fact and conclusions of law. The court heard the attorneys in conference, considered briefs, and made the following findings of fact:

(1) That the cause oí action is based on negligence in the construction and operation of a sewage plant of a public school at Stephensburg in Hardin County;

(2) That the operation and maintenance of sewage facilities of the Stephens-burg school plant is, and was at all times herein, a public governmental function of the Board of Education of Hardin County;

(3) That there was no trespassing or taking of property by the Board of Education ; and

(4) That the damage, if any, was to subterranean waters.

The record in this case presents two problems involving the interpretation and application of the rules of civil procedure. The final order noted above purported to adjudicate one claim for relief in an action, but less than all of the claims, since the amended complaint asking for injunctive relief is still pending. We are presented herewith the effect of the failure of the trial judge to recite a determination that there is no just reason for delay. This question has not been raised by counsel.

It is our view that an appellate court will on its own motion raise the lack of its jurisdiction where an order lacks finality. Moore’s Federal Practice, Vol. 6, section 54.34. CR 54.02 sets out the procedure to be followed in granting a final judgment upon one or more, but less than all, of the claims in an action. The rule provides that final judgment may be granted upon one or more, but less than all, of the claims only upon a determination that there is no just reason for delay. The judgment which recites such determination and which recites the judgment is final is appealable. In the absence of such recitals, any order or other form of decision, however designed, which adjudicates less than all of the claim shall not terminate the action as to any of the claims and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims.

Since this rule is originally designed for a specific purpose, its provisions must be strictly followed to transform an interlocutory order into a final one for the purpose of appeal. In the absence of the recitations required by the rule, in the order or judgment, an adjudication of one or more claims, but less than all the claims in an action, will not be entertained on appeal by the Court of Appeals. (See Clay CR 54.02, comment 5; also Moore’s Federal Practice, Vol. 6, sec. 54.41.)

The proposition that this Court is without authority to entertain an appeal in this situation was decided in Marr v. Falls City Stone Co., Ky., 329 S.W.2d 71, wherein it was ruled that the order failed to contain the recitals required by CR 54.02 so as to invest this Court with jurisdiction over the appeal.

The underlying reason for CR 54.02 providing that a final judgment may be granted in one claim for relief where multiple, claims are presented only upon determination that there is no just reason for delay, is to prevent staggered appeals or piecemeal proceedings in appellate courts. See Cornett v. Wilder, Ky., 307 S.W.2d 752.

Wherefore, it is ordered that the appeal be and it is hereby dismissed.

The opinion is approved by the Court and the appeal is dismissed.


author: MORRISON, Judge.

text:
    Richard Allan WHEELER, Appellant, v. The STATE of Texas, Appellee.
    No. 36855.
    Court of Criminal Appeals of Texas.
    April 15, 1964.
    Rehearing Denied May 27, 1964.
    No attorney for 'appellant on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State. ’ ’ :
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 180 days in jail and a fine of $50.00.

No.statement of facts, accompanies the record, however, by an approved and unqualified bill of exception appellant complains of the action of the court in accepting the following form of verdict and entering a judgment of guilty thereon, to wit:

“We, the jury find the defendant ‘Not Guilty’. We, the jury, find the defendant guilty as charged and assess his punishment at $50.00 fine and 180 days in jail.
(Signed) Leslie Shield Foreman”

Elsewhere in the transcript we find the actual verdict rendered which is as follows:

“We the Jury, find the Defendant ‘Not . Guilty’.
s/ Guilty Leslie Shield Foreman
We, the Jury, find the Defendant guilty as charged and assess his punishment at $50.00/100 dollars fine and 180 days in jail.
s/ Leslie Shield Foreman”

If we construe the bill of exception as a certificate of error by the trial court, we are not bound thereby because the entire matter is before us. Free v. State, 165 Tex.Cr.R. 374, 307 S.W.2d 808, and cases there cited. . ,

It is apparent from the record that only' one verdict was rendered by the jury, and the judgment of the trial court is accordingly affirmed.


author: DICE, Commissioner.

text:
    Ex parte William Joe ISOM.
    No. 36998.
    Court of Criminal Appeals of Texas.
    May 13, 1964.
    Clyde W. Woody, Houston, for relator.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

An application for writ of habeas corpus was presented by petitioner to the Honorable Max M. Rogers, Judge of the 12th Judicial District Court, in which he alleged that he is being illegally restrained of his liberty by Honorable George Beto, Director of the Texas Department of Corrections, by virtue of certain judgments and commitments set out in the application.

Upon presentation of the petition, Judge Rogers, acting under Art. 119, Vernon’s Ann.C.C.P., proceeded to hear the same and ascertain the facts, which facts have been transmitted to this court for determination as to whether the writ shall issue and the relief prayed for be granted.

The writ of habeas corpus not having been granted by Judge Rogers, we shall treat petitioner’s application for writ of habeas corpus as an original application to this court.

The facts show that petitioner is being confined in the penitentiary under the following judgments and sentences:

Two judgments and sentences dated March 18, 1946, in causes numbered 7919 and 7920 in the 8th Judicial District Court of Hunt County, assessing petitioner’s punishment in each case at confinement in the penitentiary for ten years, upon convictions for felony theft and burglary, respectively

The sentences were cumulated, making a total of twenty years to be served by petitioner in the two cases. See: Ex parte Isom, 168 Tex.Cr.R. 434, 331 S.W.2d 753.

Judgment dated January 21, 1949, and sentence dated January 28, 1949, in Cause No. 60879, styled The State of Texas v. William Joe Isom, in the Criminal District Court of Harris County, wherein petitioner was convicted of robbery by assault and assessed punishment at confinement in the penitentiary for twenty-five years.

In pronouncing' sentence in the cause it was ordered by the court that “this sentence is cumulative with the sentence in Cause No. 7919 assessed in the District Court of Hunt County, Texas.”

Judgment dated February IS, 1950, and sentence dated February 16, 1950, in Cause No. 10212, styled The State of Texas v. Billy Isom, in the 12th Judicial District Court of Walker County, wherein petitioner was convicted of the offense “Escape from Prison” and assessed punishment at confinement in the penitentiary for three years.

The sentence pronounced by the court in the cause ordered that “this sentence cumulates with sentence in Cause No. 10679 in Harris County, Texas.”

When this court takes judicial notice that there is more than one district court in Hunt County (8th and 62nd Judicial Districts: Art. 199, Vernon’s Ann.Civ. St.), it becomes apparent that the attempted order of cumulation of the twenty-five-year sentence assessed against petitioner in Cause No. 60879, in the Criminál District Court óf Harris County, with the sentence assessed in Cause No. 7919 in the District Court of Hunt County, is insufficient because it does not designate the court in which the prior conviction was had. Ex parte Hamilton, 163 Tex.Cr.R. 283, 290 S.W.2d 673.

The attempted order of cumulation of the Walker County sentence with the sentence in “Cause No. 10679” in Harris County is also insufficient. Petitioner was not convicted in Harris County in Cause No. 10679 but had been convicted in Cause No. 60879 in the Criminal District Court of Harris County and the attempted cumu-lation of the sentence with the Walker County sentence ■ was incorrect.

The attempted cumulations of the sentences in Harris and Walker Counties being insufficient, the twenty-five-year sentence assessed against petitioner in Cause No. 60879 in the Criminal District Court of Harris County began to run on January 28, 1949, and the Walker County sentence began to run on February 16, 1950.

It is shown that the petitioner has accumulated more than twenty-five years’ credit in the penitentiary since January 21, 1949, and that there are no other detainers against him.

Having served the sentences pronounced against him, petitioner is entitled to his release from confinement.

The writ of habeas corpus is granted and petitioner is ordered discharged.

Opinion approved by the court.


author: WOODLEY, Presiding Judge.

text:
    Tony R. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36950.
    Court of Criminal Appeals of Texas.
    May 13, 1964.

      A. A. Garza, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., James E. Hope, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is statutory rape; the punishment, 5 years.

No statement of facts showing the evidence introduced before the jury accompanies the record.

There is one formal bill of exception which the court qualified. It complains of remarks of the assistant district attorney in his closing argument to the jury.

In the absence of a statement of facts, this Court is not in position to find that the argument was prejudicial or that it resulted in harm to the appellant.

■ The sentence appearing in the transcript Orders appellant’s confinement in the penitentiary for a period of not less than 2 nor more than 5 years.

The jury having assessed the punishment at 5 years, and that being the minimum punishment for the offense of rape, the sentence is reformed so as to provide for appellant’s confinement in the penitentiary for 5 years.

As reformed, the judgment is affirmed.


text:
    John Thomas FISHER, Appellant, v. The STATE of Texas, Appellee.
    No. 36856.
    Court of Criminal Appeals of Texas.
    May 13, 1964.
    No attorney of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Sidney L. Farmer, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $100.00.

Highway Patrolman Denby testified that he observed a pickup truck weaving across the center stripe, off on the shoulder of the highway and that he brought the same to a halt. He stated that appellant, who was the driver, was unsteady on his feet after he dismounted, “had to step back now and then to keep from falling”, smelled strongly of alcohol, had bloodshot eyes, was “confused in his speech, ran his words together”, that he took him to the La Porte jail and expressed the opinion that appellant was intoxicated.

Appellant and several of his friends testified that they had been fishing on the afternoon in question, that appellant had consumed only three beers and was not in? toxicated.

Officer Williams of the La Porte Police testified that when Patrolman Denby brought appellant to the jail on the night in question he spoke in a “disjointed” manner, “would start to say something and would change and say something else”, that his eyes were bloodshot and “he wandered more or less from wall to wall down the hall to the cells where I was locking him up” and expressed the opinion that he was intoxicated.

The jury resolved the conflict in the evidence against appellant, and we find the evidence sufficient to support the conviction.

There are no formal or informal bills of exception, no motion to quash and no objections to the court’s charge.

Finding no reversible error, the judgment is affirmed.


author: ■ PHILLIPS, Justice.

text:
    Wayne KING, Appellant, v. Flay BREVARD, Appellee.
    No. 11191.
    Court of Civil Appeals of Texas. Austin.
    April 22, 1964.
    Rehearing Denied May 6, 1964.

      .. Snodgrass, ■ Smith, Rose & Finley, San Angelo, for appellant. ■ • •
    Bedford & Underwood, Ballingér, Woodward & Johnson, Coleman,-for appellee.
   ■ PHILLIPS, Justice.

This is a suit by Wayne King, appellant, against Flay Brevard, appellee, for the specific performance of an option to purchase land contained in the following lease agreement :

“LEASE AGREEMENT
“THE STATE OF TEXAS | “COUNTY OF RUNNELS j
“Know all men by these presents that Flay Brevard, of Runnels County, Texas, hereinafter known as the First Party, and Wayne King, of Runnels County, Texas, hereinafter known as the Second Party, have on this date entered into the following agreement, to-wit:
“That for and in Consideration of the sum of Nine Hundred Sixty and No/100 ($960.00) dollars, Cash in hand and Nine Hundred Sixty and No/100 ($960.00) dollars on or before December 1, 1961, agrees to lease his farm of 320 acres, situated in the Blanton Community of Runnels County, Texas, together with all improvements, for a period of Two (2) years beginning January 21, 1962, to have and to hold for his use, and he shall have full control thereof. The said Second Party is not required to purchase fire and extended coverage insurance on the improvements, but he shall be required to maintain the fences in repair as a result of any damage that may result from his usage, as well as any other improvements that he may cause to be damaged.
“It is hereby further agreed that the First Party shall not sell the place to anyone for a period of one (1) year from date herein and then the Second Party shall have an option at the agreed price of $65.00 per acre after that period. It is further agreed that not less than one fourth (54) of the mineral right and full leasing rights shall go with the place, should it be purchased by the Second Party.
“In witness whereof, the First Party and the Second Party have hereunto affixed their signatures, in the presence of witnesses, this 14th day of September A.D., 1961, at Ballinger, Runnels County, Texas.
“/a/ Chas. B. Shepard /s/ Play Brevard Witness First Party
“/s/ Zelma Shepard /s/ Wayne King AVitness Second Party”

Brevard answered King’s suit specifically alleging that the contract made the basis of the suit was unenforceable because it was in violation of the statute of frauds, Art. 3995, Vernon’s Ann.Civ.St, and the rule against perpetuities, Art. 1, Sec. 26 of the Texas Constitution, Vernon’s Ann.St. Brevard maintains that the rule against per-petuities has been violated in the above instrument in that the option to purchase thp property is unlimited in time and is an unwarranted restriction on the alienation of the property.

Brevard filed a motion for summary judgment based on the abovementioned defenses, which motion was granted by the court. King is before this Court on appeal from the summary judgment.

We reverse the judgment of the Trial Court and remand the case for trial.

King plead that he paid Brevard the consideration due under the lease contract; that he entered into possession as a lessee of the land sought to be conveyed and that he performed all of the agreements and obligations called for in the written contract. King also plead that he exercised his option to purchase the land; that he tendered the purchase price agreed upon to Brevard, and that Brevard’s attorney wrote King’s attorney stating that Brevard did not care to sell the land.

It is undisputed that Brevard owns a farm of approximately 321 acres in the Blanton Community in Runnels County and that this is the only land that Brevard owns in Runnels County.

In defense of the judgment, Brevard maintains that the description of the land is insufficient to satisfy the statute of frauds; that the instrument fails to designate who is lessor in its second paragraph; that the language describing the option set out in the third paragraph of the lease fails to disclose what sort of an option King is to have or to what type of estate in land the option refers.

Two well known maxims pertaining to the construction of contracts are, one, that if a contract is susceptible of two constructions, only one of which will render the agreement valid and effective, that construction will be adopted which will render the contract valid. Mattern v. Herzog, 367 S.W.2d 312, Supreme Court. The other maxim is that if the language used in the agreement is susceptible' of two constructions, that interpretation will be adopted which renders the contract fair and reasonable, rather than a construction that will lead to unreasonable, oppressive, or ridiculous results. See 13, T.J.2d Sec. 111 and the cases there cited.

As pointed out by Brevard, his name does not appear in the second paragraph of the writing positively identifying him at this place as the lessor of the property; however, for the court to ignore the fact that the writing taken as a whole designates Brevard as the lessor would force a construction of the instrument both unreasonable and ridiculous.." See 13 T.J.2d Sec. 113. Contracts within the statute of frauds are to be read and understood in the same manner as are other contracts. 23 A.L.R.2d 16. It "has also been held that the omission of an essential word or a name will not invalidate the instrument if the omitted word or name is indicated by the context of the instrument as a whole. Eldridge v. Poirier, Tex.Civ.App., 50 S.W.2d 888, er. ref.; Beckham v. Scott, Tex.Civ.App., 142 S.W. 80; Roberts v. State, 11 Tex.App. 26.

The contract itself is entitled “Lease Agreement,” then it specifically names the two-parties to the agreement: If one is not content' with ■ the construction that Brevard is leasing the farm" to King, he must construe the instrument to mean that King-is -leasing the farm to Brevard. Guided by the abovementioned -rules of construction, the latter’•'¡construction -would be both unreasonable and ridiculous as the instrument recites that, “the said Second Party (King) is not required to purchase fire and extended coverage insurance on the improvements, but he shall be required to maintain the fences in repair as a result of any damage that may result from his usage, as well as any other improvement that ■ he may cause to be damaged. (Emphasis added.) The con-' elusion that King was the tenant is further strengthened from the fact-that the writing-states “First party, -shall not sell' the place to' anyone fór a period of one (1) year from the date herein,” and “it is further agreed that not' less than one fourth (J4) of the mineral right and full leasing rights shall go with the place, should it be purchased by the second party.” (Emphasis added.) It would be unreasonable to conclude that Brevard would agree not to sell the farm if King owned it, or that King would get one fourth of the mineral rights and full leasing rights under the contract if he already owned them.

In addition to the construction of the wording of the contract itself, King entered into possession of the Brevard farm under the lease agreement, paid the stated consideration and performed the remaining requirements of the lease contract. Such performance on King’s part in itself excepts this lease transaction from the requirements of the statute of frauds. Oak Cliff Realty Corporation v. Mauzy, Tex.Civ.App., 354 S.W.2d 693, writ, ref., n. r. e.; Medical Professional Bldg. Corporation v. Ferrell, Tex.Civ.App., 131 S.W.2d 683.

Brevard describes the land as “his farm of 320 acres” and the written agreement discloses further that this farm is in the Blanton Community in Runnels County, Texas. The description of the land itself is sufficient under the law as stated by the Supreme Court in Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222. Here the Court held that a memorandum writing was sufficient that described the property in question as, “my property described on the opposite side hereof,” and then on the reverse side of the memorandum, “20.709 acres out of John Stephens 640 acre survey in Tarrant County, Texas,” The Court stated that the settled rule in this State is that such description, by reason of the use in the memoran-’ dum or contract of such words as “my property,” “my land,” or “owned by me,” is sufficient when shown by extrinsic evidence that the party to be charged and who has signed the contract or memorandum owns a tract and only one tract of land-answering the description in the .memoran-; dum. That the stated ownership of the property is in itself a matter of description which leads to the certain identification of the property and brings the description within the terms of the rule that the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty, citing cases.

Brevard cites Rowson v. Rowson, 154 Tex. 216, 275 S.W.2d 468 wherein a description of “my lake cottage” was held insufficient under the statute. This case is distinguishable from the case at bar as in the Rowson case the description did not allude to any county or State. Such is not the case here.

We further hold that the description of the land is sufficient for the purposes of the option contract. In fact, King’s actual occupancy of the land in question under the same instrument in which he is given the right to purchase is even stronger identification of the land upon which the option is given.

As stated above, Brevard contends that the language describing the option in the third paragraph fails to disclose what option King is to have or to what type of estate in land the option refers.

The rule is stated in 51 C.J.S. Landlord and Tenant § 81, pp. 637, 638 as follows:

“Under the rules of construction applicable to contracts generally, a provision in a lease giving an option to purchase will be so construed as to effectuate the intention of the parties where it is ascertainable from the language employed by them. In construing the agreement the court should consider the situation of the parties and all the circumstances under which the contract was made, and should give effect to each and every part of the contract, construing several instruments together where necessary. An option to purchase, being inserted in the lease for the benefit of the tenant, must be construed with that purpose in view.”

The last sentence in paragraph three referred to above is as follows: “It is further agreed that not less than one fourth (!4) of the mineral right and full leasing rights shall go with the place, should it be purchased by the second party.” (Emphasis added.) The intention of the parties that the option was to purchase the property for the stated price is clear,

With respect to the mineral rights described in the option, the writing itself furnishes the essential elements, the details of which may be explained or clarified by extrinsic evidence. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150.

Brevard cites Article 1, Sec. 26 of the Texas Constitution, which outlaws per-petuities and maintains that the agreement in question violates this prohibition in that an unreasonable restraint on the alienation of the land is placed thereon. That the option granted could be exercised at a time beyond that permitted by the rule. This is in reference to that part of the agreement which states the First Party, “shall not sell the place to anyone for a period of one year from date herein and then the Second Party shall have an option at the agreed price of $65 per acre after that period.”

We overrule this contention under the authority of Mattern v. Herzog, 367 S.W.2d 312, Supreme Court. Here certain realty was devised to a number of children; however, one of the children was given an option to purchase this realty from the others for a stated price. No time limit was stated in which the option was to be exercised. Certain children who did not wish to sell their portion of the land claimed that the option provision of the will was void and within the rule against perpetuities. The Supreme Court, after stating the rule we announced above that where an instrument is equally open to two constructions, the one will be accepted which renders it valid rather than void, held that it was intended that the option was to be exercised within a reasonable time and thus was not within the rule. The Court stated that options are generally of a limited duration and that when the wording of an option does not compel a construction that the parties intended that the time element should be unlimited, the Court will not construe an option contract to run for an indefinite time and thus destroy the validity of the option provision.

Inasmuch as this case is before us on a summary judgment, we must view all evidence in a light most favorable to King and to indulge in his favor every intendment reasonably deducible from the evidence. Herold v. City of Austin, Tex.Civ.App., 310 S.W.2d 368, writ ref., n. r. e.

The judgment of the Trial Court is reversed and remanded for trial.

Reversed and remanded.