author: ' PALMORE, Judge.

text:
    George D. VICARS, Appellant, v. BEAVER CREEK MINING COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    Francis M. Burke, Francis D. Burke, Pikeville, for appellant.
    Robert. Matthews, Atty. Gen.,- Fred G. Francis, Howard & Francis, Prestonsburg, for appellee.
   ' PALMORE, Judge.

This appeal in a workmen’s compensation case raises one question, whether the board abused its discretion in overruling a motion by the claimant to require the defendant to produce and deliver to the claimant’s counsel, for examination, certain X-ray photographs taken at the instance of the physician who had examined the claimant in behalf of the defendant.

The claimant was 60 years of age and had worked in coal mines most of the time for 42 years. He was employed in the defendant’s mine in 1955 and operated á coal cutting machine until some time in 1961, when he was put on a job running a mine motor. Both of these occupations involve much exposure to dust, as had his previous employment in other mines. For the last two years during which he worked for the defendant company he experienced shortness of breath, and in June of 1963 he consulted Dr. W. F. Clarke, of Pikeville, Kentucky, who advised him that he had silicosis. Meanwhile, he had quit his job in August of 1962 and had not returned to work because, he says, he was not physically able.

Both Dr. Clarke and Dr. Boyce Jones, of London, Kentucky, testified that in their opinions the claimant was suffering from silicosis. Both had conducted physical and X-ray examinations. Both had observed in their X-ray films the presence of discrete nodular type fibrosis in the lung fields. This condition usually is considered indicative of pneumoconiosis. Dr. Porter Mayo, Jr., of Lexington, Kentucky, examined the claimant in behalf of the defendant company. He testified that as a part of his examination he had used a fluoroscope as well as X-rays made at his request by a technician in another doctor’s office. He observed certain fibrotic changes but no nodules, and testified that there was no evidence of pneumoconiosis.

The referee found that the claimant was disabled by pneumoconiosis or silicosis arising out of and in the course of his employment and awarded compensation. On full board review the board rejected the referee's findings and, in view of the “excellence of the content of the testimony of Dr. Porter Mayo plus the thoroughness of his examination, in conjunction with the other testimony which found that emphysema existed,” concluded that the claimant “does not now suffer from pneumoconiosis or silicosis.” Its dismissal of the claim was sustained by the circuit court.

The motion for production of the X-ray films used by Dr. Mayo was made promptly after his deposition had been taken at Lexington. It, recites that permission to withdraw them, in order that they might be examined by an expert of the claimant’s choice, was asked and refused at the time the deposition was given. The motion was overruled by the board.

Rule WCB-12 of the Rules of Procedure of the Workmen’s Compensation Board provides that the parties can take depositions in accordance with CR 26 through 37.06, excepting CR 27, 33 and 36. CR 34 provides that on motion showing good cause therefor (subject to exceptions not here pertinent) the court may order any party to produce and permit the inspection and reproduction of any relevant documents, photographs or other objects in his control. The order “may prescribe such terms and conditions as are just.”

It was pointed out in Cox v. Peabody Coal Company, Ky., 357 S.W.2d 878 (1962), with specific reference to X-ray films, that there is no justification for. playing hide-and-seek with records that may be of assistance in determining the truth. We agree with counsel for the appellee that “good cause” for the production of a particular thing means more than mere relevancy, competency or desirability, but we are unable to agree that there was no good cause in this instance.

We are constantly confounded (as indeed must be the Workmen’s Compensation Board) by the diametrically contradictory testimony of medical witnesses.. Usually there is no way at all to reach behind it But when they both use X-rays and differ as to what should there be revealed in black and white (e. g., extensive nodulation in the lung fields), there is every good reason for further inquiry. To put it mildly, something is wrong. We do hot insinuate any chicanery. We realize that X-ray films are subject to “interpretation,” and an explanation may lie in the kind of pictures, the angles from which they were taken, and so on. Nevertheless, the state of the evidence is unsatisfactory, and reasonable inspection of all X-ray films by both sides is not only desirable but necessary to any thorough inquiry designed to ascertain the facts.

It is of no importance that Dr. Mayo had the X-rays with him when he gave his deposition and claimant’s counsel did not ask him to file them as exhibits. If he could have done so, as appellee’s counsel appears to concede, a motion still would have been necessary in order for the claimant’s expert to examine them anywhere but in Frankfort. We hardly think it would be reasonable or consistent with the objectives and policy of the Workmen’s Compensation Law to expect a man in this claimant’s position to pay a doctor’s expenses from Pikeville or London to Frankfort so that he might examine X-ray films that can just as easily be made available elsewhere.

The case history and symptoms observable upon physical examination of the claimant being unquestionably consistent with a diagnosis of silicosis or pneumoconiosis, any X-ray film that indicates otherwise is a vital piece of evidence which ought to be made available for a careful and competent inspection. After all, though aided by fluoroscopic examination the X-ray films used by Dr. Mayo provided the main basis for the eventual result in this case. Why should they not be open to scrutiny? In our opinion it was an abuse of the board’s discretion not to make them available under some reasonable terms.

The judgment is reversed with directions that the cause be remanded to the Work-mens’ Compensation Board for further proceedings consistent with this opinion.

      . Effective August 1, 1964, this rule was renumbered WCB-1-1-9.

      . In justice to able counsel for the employer it should be pointed out that as ’part of his motion for full board review • ■ hei moved that a disinterested medical expert be appointed to conduct an independent examination and report bis findings to tbe board. With a favorable ruling of tbe referee under bis belt at tbis stage, tbe claimant naturally resisted, and that aspect of tbe motion was not sustained.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Buford COMBS et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Deddo G-Lynn, Lexington, for appellant.
    Charles R. Coy, James S. Chenault, Che-nault & Coy, Richmond, for appellees.
   PALMORE, Judge.

This is a highway condemnation suit in which the state acquired a narrow strip of road frontage from a 7}4-acre tract in Madison County near the city limits of Richmond. The jury returned an award of $2840. The condemnor appeals from a judgment in that amount.

The state offered three valuation witnesses, two of whom had been employed by it and were not residents of Madison County and the other of whom, Richard Tipton, was a farmer and lifelong resident of the county. Tipton had served as one of the commissioners appointed by the county court to fix the preliminary award pursuant to KRS 177.083. After he had answered questions directed to his qualifications as an expert witness the landowners objected to further testimony by him, whereupon a conference took place at the bench and the witness was excused. The court later admonished the jury as follows:

“Members of the jury, for reasons sufficient to the Court, you are admonished to disregard the testimony of Mr. Tipton who started to testify earlier this morning, and so, that’s all I need to say about it.”

At the close of the state’s evidence in chief an avowal was made to the effect that the objection had been sustained on the ground that Tipton had served as one of the county court commissioners, and that if allowed to testify he would have given a figure of $532 as the total damage resulting from the condemnation. The landowners stipulated that the witness, “had he been permitted to testify, would have testified in substance” as set forth in the avowal.

Following introduction of the avowal the trial court made this explanatory comment for the record:

“My position is that I don’t think the appraisers should be used as witnesses here unless it is the kind of case where they can’t get anybody else along that line. I don’t want to say that I think it is incompetent, but I think the Court of Appeals has found that it ought to be discouraged and should not use them unless it is almost an emergency.”

We have detailed this particular aspect of the proceeding because the landowners now contend, in view of the comment by the trial court, that Tipton’s evidence was not really excluded, that the state could have gone ahead and introduced it but chose not to do so. It seems to us, however, that the fair import of the record is that the objection was sustained and that it was so understood by the parties at the time.

In Tennessee Gas Transmission Co. v. Million, 314 Ky. 137, 234 S.W.2d 152, 158 (1950), and Gulledge v. Texas Gas Transmission Corp., Ky., 256 S.W.2d 349, 352 (1953), the court “disapproved the practice of using in the circuit court, as witnesses on the question of valuation, the commissioners appointed in the county court, where the circumstances are such that the commissioners, on appointment, might anticipate employment as witnesses." (Emphasis added.)

There is nothing in this record to suggest that at the time he was appointed or was acting as a commissioner Tipton had any reason to anticipate employment as a witness, or even that he was in fact thereafter “employed” in the sense of remuneration. Hence the disapproval expressed in the cited decisions does not apply to this case.

It was held categorically in Commonwealth, Dept. of Highways v. Evans, Ky., 361 S.W.2d 766, 770 (1962); that a witness who has served as a commissioner may give valuation testimony in the circuit court proceeding so long as he does not indicate the amount of the county court award. In other words, such evidence is competent, from which it follows that its exclusion is erroneous.

As the witness Tipton was a native and citizen of Madison County and the other valuation witnesses used by the state were not, we cannot ignore the obvious desirability of his testimony from the state’s point of view. It is our conclusion that its rejection was prejudicial.

The other questions raised on this appeal may not arise in the retrial of the case, so we reserve discussion of them.

The judgment is reversed with directions for a new trial.

      . The other two state witnesses had estimated the amount to be $400.

      . In -which. a commissioner testified for the eondemnee.


author: . HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Essie H. BENNETT, Administratrix, et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Madisonville, Joyce Ferris Nedde, Highway Dept., Frankfort, for appellant.
    William F. Bennett, David C. Brodie, H. Randolph Kramer, Owensboro, for appel-lees.
   . HILL, Judge.

This is a highway right-of-way condemnation action instituted in Daviess County by the Commonwealth of Kentucky, Department of Highways, pursuant to KRS 177.081 et seq., to acquire a lot 30 by 162.4 feet for use in extending Breckenridge Street. There was on this .lot a one-story brick building under lease and operated by the Fourth Street Bar. The entire lot is sought.

Daviess County Court entered judgment in favor of appellees for $8,000.00. The trial in circuit court resulted in a jury verdict and judgment of $17,000.00. Only the Commonwealth appeals to this Court, stating the following grounds for reversal:

1. The witnesses for appellees should have been required to state the definition of market value upon which they had based their valuation estimates and it was error for the court to permit counsel for appellees to read a definition of fair market value to the witnesses.

A. The trial court erred in admitting valuation testimony based upon sales which, were not comparable or indicative of market value.

B. • It was error for the trial court to overrule appellant’s motion to strike valuation testimony which was based on asking price.

2. The trial court erred in admitting valuation testimony which was based on appraisals made after the date of taking.

We shall discuss these grounds in the order presented by appellant.

We hasten to state we cannot agree that witnesses' for appellees “should have been required to state the definition of market value.” Iri the first place, lay witnesses ordinarily do not know the technical definition of market value. In fact,' the courts have trouble determining its various elements. In the second place, it is good practice for the trial judge, or the attorney for ’the party offering a witness, to make it clear the witness knows, as best he can, the meaning of market value.

Appellant next complains of evidence of the witriesses, Christie and Morton, pertaining to another sale made in 1960 of a vacant lot by John B. Bradley to Mills Brothers Drug Store for a parking iot. It is. urged this is not a comparable sale. True there are some differences in the Bradley lot and the appellees’ property. It is difficult to locate identical sales. This sale furnished some evidence of market value. These witnesses were otherwise qualified as witnesses on market value. Their testimony cannot be eliminated because of this one isolated reference to what they thought a comparable sale.

Ground I-B urges the testimony of Harry Bottorf should not have been admitted because this witness considered the “asking” price of other property. The testimony of this witness, taken in context, indicates to us it is competent. We quote from his testimony:

“I used some values of what a man would take to have to sell it, and some other values where property was sold in that territory.”. ■

He testified he had been a banker over forty years; that he was “executive head” of Central Trust Company of Owensboro, and was formerly “head” of the Farmers & Traders Bank of the same city; that he owned real estate; that he had made many loans on real estate in this vicinity without loss; that he made appraisals. The sound rule announced in Commonwealth of Kentucky, Department of Highways v. Darch, Ky., 374 S.W.2d 490, 492 (1964) does not apply here. In the Darch case, the “value to the owner” was the prime consideration of the qualifying witness. For the same reason Commonwealth v. Begley, 272 Ky. 289, 114 S.W.2d 127 (1938) does not govern the case at bar. The Court said in the Begley case the witnesses “completely nullified the effect” of their opinions by admitting they based their opinion on value of “what people asked for their property.” Here, the witness had long and varied experience. His casual reference to asking price of other property only tended to show his familiarity with the. market for property. His testimony taken as a whole clearly indicates he was qualified to testify on “market, value.” The -trial court correctly overruled appellant’s motion, tb strike this testimony. .' ■ ■ ’ ■

The final ground relied on for reversal pertains to evidence on valuation based on appraisal made after the date of taking. The witness, Morton, testified it. was about six weeks ago, meaning, we take it, six weeks before he testified. He was familiar with this lot and improvements, and had been for some time. We think the actual time he made up his mind, as to its appraised value, is unimportant so long as it was within a reasonable time of the taking. This conclusion is not a material deviation from the rule announced in Commonwealth, Dept. of Highways v. Baldwin, 312 Ky. 782, 229 S.W.2d 744 (1950), and Gulf Interstate Gas Company v. Garvin, Ky., 303 S.W.2d 260 (1957).

Appellant does not complain of the amount awarded by the jury.

The judgment is affirmed.


author: CLAY, Commissioner.

text:
    Troy T. DESKINS et al., Appellants, v. Clarence LESLIE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    Francis D. Burke, Pikeville, for appellants.
    Dan Jack Combs, Pikeville, for appellees.
   CLAY, Commissioner.

By cross-claim in a declaratory judgment action appellants sought reformation of a deed on the ground of mutual mistake. This relief was denied by the Chancellor.

The land involved was at one time jointly owned by two sisters. It had been divided and the mineral interests severed from the surface. Appellee had acquired both surface and mineral rights in the land. He conveyed his surface title to appellants. The latter claim it was the intention of the parties to include in the deed a conveyance of the mineral rights as well.

Appellants offered substantial proof of mutual mistake. However, appellee’s testimony and the surrounding circumstances tended to prove the contrary. It was shown that the purchase price paid by appellants was $10,000 less than the figure fixed in prior negotiations when the conveyance of the mineral rights was contemplated. In view of the knowledge appellants had of the different interests in the land owned by appellee and in view of the extensive negotiations of the parties, it is difficult to understand why the conveyance of the minerals was omitted from this deed if they were intended to be included. In any event, the Chancellor’s conclusions are amply supported by the record.

In examining the law with respect to the quantity and quality of evidence which will justify the reformation of a written instrument, we find a discrepancy in our opinions. Time and again we have given lip service to the proposition that “[a] direct conflict of testimony [or in the evidence] is conclusive against the reformation of an instrument”. Litteral v. Bevins, 186 Ky. 514, 217 S.W. 369; Reiss v. Wintersmith, 241 Ky. 470, 44 S.W.2d 609; Sutherland Bros. v. Travelers’ Insurance Company, 245 Ky. 756, 54 S.W.2d 340; Vernon Casualty and Reinsurance Company v. Rosenberg, Ky., 280 S.W.2d 207; Wagner v. Ratliff, Ky., 337 S.W.2d 24. Though in these cases such a rule is stated, some ■of the opinions proceed to examine the evidence and to determine whether, in spite of the conflict, the party seeking reformation has established his claim by strong, •convincing or most satisfactory evidence of mistake.

In other cases we have pointed out that the quoted rule cannot be justified and will not be followed. Maupin v. Sumpter, 308 Ky. 713, 215 S.W.2d 832; Karrick v. Wells, Ky., 307 S.W.2d 929; Angel v. Brown, Ky., 308 S.W.2d 286. The Maupin case ■specifically overruled Litteral v. Bevins, 186 Ky. 514, 217 S.W. 369, on this point. The time has come to expurgate the quoted proposition from the law of reformation because it is not sound and has no practical or legal value. To the extent the •cases cited in the preceding paragraph, and other cases, have applied the principle we .are condemning, they are overruled.

It is difficult to be definitive with respect to the quantity and quality of evidence necessary to sustain the burden imposed on a party seeking reformation of a written instrument. As observed in French v. Boyle, 230 Ky. 619, 20 S.W.2d 439, each •case must be determined upon its own peculiar facts and circumstances. It was further observed in that case that the evidence must be “clear, unequivocal and convincing”, or “strong and most satisfactory”, or must establish the mistake “beyond reasonable controversy”. These standards are generally applied to justify a decision one way or another.

We think the terms “clear and convincing” are sufficient as a standard of measurement. See Karrick v. Wells, Ky., 307 S.W.2d 929; Pressley v. Morton, Ky., 325 S.W.2d 81. Additional terminology and criteria do not aid in the solution of the problem. A party has sustained the burden of proving a right of reformation on the ground of mistake if the evidence favorable to him is sufficient in quantity and quality to be clear and convincing,

That is exactly the test applied by the Chancellor in this case. We can find no error in his judgment.

The judgment is affirmed.

      . The same considerations apparently would apply where reformation was sought on the ground of fraud.


author: DAVIS, Commissioner.

text:
    Hayden Eugene RUEHL et al., Appellants, v. Mildred HOUCHIN et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.

      James F. Clay, Sr., James F. Clay, Jr., Danville, for appellants.
    P. Joseph Clarke, Jr., Danville, for appel-lees.
   DAVIS, Commissioner.

This appeal stems,from a. collision between automobiles driven by .appellee Mildred Houchin and appellant Hayden. Ruehl. Appellee Levi Engle was the owner of the Ford driven by his daughter, Mildred Houchin; the Buick driven by Hayden Ruehl was jointly owned by him and appellant Donna Ruehl. The judgment, pursuant to the jury’s verdict, awarded $9,483.56 to Mildred Houchin for her personal injuries, and $850 to Levi Engle for property damage. The counterclaims of the appellants, for personal injury to Hayden and property damage were dismissed. •

The appellants maintain that the trial court erred (1) in refusing an offered instruction presenting appellants’ theory of the case, (2) in making improper comment upon the evidence, and (3) in the instructions given.

The accident occurred in the early afternoon on a clear day in January, 1963. Ruehl was driving the Buick car eastwardly on Ky. Highway No. 34 toward the community of Parksville. In general, the road extends from east to west. Mrs. Houchin backed her father’s Ford from his driveway, situated on the south side of the highway, preparatory to driving it in a westerly direction toward Mitchellsburg. According to her version, Mrs. Houchin backed the Ford across the road and headed it west-wardly toward Mitchellsburg; she maintains that she did not stop the car in the eastbound traffic lane at all.

On the other hand, it is the contention of appellant that Mrs. Houchin so backed the Ford as to bring it to rest in the eastbound lane (appellant’s proper driving lane). Appellant testified that when he rounded a curve, some 766 feet west of the driveway from which Mrs. Houchin backed, she had' backed the Ford in such position as to completely block his lane of traffic. At that time, appellant said, he “imagined” he was traveling fifty miles per hour; he slowed his car by releasing his foot from the ac■celerator, but did not then apply the brake. Appellant supposed that the Ford was stalled, since “she just set out there.” Thereupon, when appellant was within two ■or three hundred feet of the Ford, he decided to pass the Ford by pulling his car to his left. He said that he sounded his horn, .and “tapped his brake” just before he began to pull to his left; that he then increased his ■speed “just for an instant.” Then, according to appellant, Mrs. Houchin drove the Ford partially into the westbound lane. Thereupon, appellant applied his brakes hard; he laid down skid marks 171 feet long just before the impact. The point ■of impact, according to all the evidence, was five feet north of the center line —that is, five feet into the proper lane for Mrs. Houchin and the lefthand lane for ■appellant. After the collision the Ford •came to rest on the south side of the road, -at a point 48 feet from the point of impact; the Buick traveled 52 feet and off the road on the north side after the collision. The •cars were demolished; Mrs. Houchin and Hayden Ruehl sustained extensive personal injuries. Appellants lay particular stress on the physical evidence which tends to indicate that the main force of the impact to each car was sustained in the right front portion of each. From this, it is reasoned that since the width of each car was more than six feet, necessarily the Houchin car had to be partially in Hayden Ruehl’s lane, and that a portion of the Ruehl car remained in its own righthand lane when the collision occurred.

For the appellees there was evidence indicating a very high rate of speed on the part of appellant; other evidence for ap-pellees tended to show that Hayden Ruehl had consumed a substantial quantity of beer shortly before the accident.

For the purpose of testing whether appellant was entitled to a “sudden emergency” instruction, we will view the evidence in the light most favorable to him, as the jury had a right to do. Even so, it is our conclusion that the circumstances here shown fail to reflect facts warranting such an instruction.

Appellants rely on Phipps v. Bisceglia, Ky., 383 S.W.2d 367; Agee v. Hammons, Ky., 335 S.W.2d 732; Edmiston v. Robinson, 293 Ky. 273, 168 S.W.2d 740; Remmer’s Ex’r v. Mayhugh, 303 Ky. 366, 197 S.W.2d 450; and V. T. C. Lines v. Murray, 309 Ky. 643, 218 S.W.2d 675. Examination of these cases reveals that factually they differ from the case at bar. Without detailing the facts of each of the cited cases we note that in none of them did the “emergency” arise two or three hundred feet ahead of the motorist, as is the situation at bar. In fact, when the appellant rounded the curve, according to his own evidence, he saw the Ford car in his lane of traffic. It is quite obvious that he was then on notice that further driving would entail some negotiation of his own car with respect to the Ford. When he proceeded for four or five hundred feet, and then decided to turn to the left, he did so because he had considered that course to be the proper one—certainly he did not do it as a matter of last minute emergency. Accordingly, the trial court properly refused to instruct on “sudden emergency.”

The claimed error respecting alleged improper comment by the trial judge is not properly before us for review. Appellants designated a partial record pursuant to CR 75.01 and appropriately served with the designation a statement of points as prescribed by CR 75.04. Among the seven enumerated points so stated was no reference to the asserted' error of the trial judge’s comments during the trial. Under this state of the record the point is not preserved for appellate review; accordingly, we do not pass upon the question which is thus improvidently urged. Cf. Travelers Indemnity Insurance Co. v. Patrick, Ky., 386 S.W.2d 256, (decided October 16, 1964); Dunson v. Swiggum, Ky., 280 S.W.2d 510.

Evidence was heard tending to prove that Hayden Ruehl was under the influence of intoxicating beverage at the time of the accident. In instructions to the jury the trial court defined “ordinary care” as the degree of care “that a sober person of average prudence uses under conditions the same or similar to those shown in this case.” In defining the duties of appellant Hayden Ruehl, the court instructed the jury that Ruehl’s duties included the obligation, among others, “ * * * to exercise the care that an average prudent and sober man would exercise under like circumstances * * Another duty of Ruehl was defined as “Not to drive his car upon the public highway while under the influence of alcohol.” Our decisions support the proposition that it is correct to instruct the jury — when an issue relating to intoxication is in evidence — that the standard of care is gauged by the standards applicable to a sober person. See Meadows v. Bailey, Ky., 350 S.W.2d 630; Wootton v. Dixon, 312 Ky. 521, 228 S.W.2d 428; B-Line Cab Co. v. Hampton, Ky., 247 S.W.2d 34; Whittaker v. Thornberry, 306 Ky. 830, 209 S.W.2d 498; Hatfield v. Sargent’s Adm’x, 306 Ky. 782, 209 S.W.2d 306; and Stanley’s Instructions to Juries, 2d Ed., § 589. We think it is appropriate, in such cases, to include in the definition of “ordinary care” the phraseology contained in § 589, Stanley’s Instructions to Juries, 2d Ed. Better practice would be to limit the reference to sobriety to that one instruction defining “ordinary care.” Thereafter, all references to “ordinary care” in the instructions will encompass the definition, so that further repetition of it will not be required.

However, in the instant case we are not persuaded that the additional references to the standard of a sober person rise to the level of prejudicial error. As abstract propositions of law, the instructions were correct. We regard as sound, and applicable here, the statement written in § 17a, Stanley’s Instructions to Juries, 2d Ed.:

“Abstract instructions which clearly state legal principles in a general way are not in themselves iniquitous.. Although they are improper and tech- - nically erroneous, the giving of such instructions is not generally- regarded as prejudicial error. They may be erroneous, however, if they appear to have been misleading or the statements were inapplicable to the issues in the case.”

We are unable to perceive that the instructions here challenged were misleading or inapplicable to the issues in the case.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Dessie GLOVER, Appellant, v. Roy HAZELWOOD et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    Rehearing Denied March 26, 1965.

      Damon A. Vaughn, Jerry W. Nall, Vaughn, Nall & Stephens, Dixon, for appellant.
    William L. Sullivan, Dorsey & Sullivan, ! Henderson, for appellees.
   CULLEN, Commissioner.

Dessie Glover brought action against Roy Hazelwood, Jailer of Henderson County, and the surety on the latter’s bond, to recover damages for personal injuries sustained by Glover when, being confined in the Henderson County jail on a drunkenness charge, he was assaulted by another prisoner, Kelly Moss, who was in jail pending appeal of a conviction of murder. The theory of the action was that the jailer knew or should have known that Moss had dangerous propensities and the jailer did not take proper precautions to protect the other prisoners. At the close of the plaintiff’s evidence the court directed a verdict for the defendants on the ground that there was no evidence that the jailer knew that Moss was a dangerous person. From the judgment entered on that verdict Glover has appealed.

The jailer, called as a witness by the plaintiff, testified among other things that: Moss had been held in the jail for almost a year prior to the time of the attack upon Glover. During that period some other prisoners had sustained injuries but upon inquiry among the prisoners the answer always was that the injured person had fallen; however the jailer “would hear later Kelly Moss did this and that.” He had “heard conversations,” but not from any of the prisoners, that Moss had beaten other prisoners. He knew Moss “wasn’t the safest man.” He had no reason to be afraid of Moss but he “wouldn’t have wanted to visit with him” and he would not have gone into the “bull pen” with Moss by his own choice.

In our opinion the testimony of the jailer was sufficient to create a jury issue as to whether the jailer could reasonably have anticipated that Moss would attack Glover. See Ratliff v. Stanley, 224 Ky. 819, 7 S.W.2d 230, 61 A.L.R. 566; Lamb v. Clark, 282 Ky. 167, 138 S.W.2d 350.

The jail had a “bull pen” area upon which a number of cells opened. The prisoners were simply placed in the bull pen without being assigned to or confined in any particular cell, and the cell doors were not locked. This was because there were no toilet or water facilities in the individual cells. The jailer maintains that he had no adequate means to keep Moss so confined and isolated as to protect the other prisoners. However, it appears that the locking of Moss in a cell would not have been impossible or impracticable or have imposed an unreasonable burden on the jailer; it merely would have caused some inconvenience and special attention in connection with giving Moss access to the water and toilet facilities. We think a jury reasonably could find that the facilities were such as to have enabled the jailer to give protection to the other prisoners from Moss.

It is our conclusion that the court erred in directing a verdict for the defendants.

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

PALMORE, J., not sitting.


author: WADDILL, Commissioner. MOREMEN J.,

text:
    DEPARTMENT OF REVENUE, Commonwealth of Kentucky, Appellant, v. STITZEL-WELLER DISTILLERY (a Kentucky Corporation), Appellee.
    Court of Appeals of Kentucky.
    Nov. 20, 1964.
    Rehearing Denied March 26, 1965.
    William S. Riley, Robert J. Rieckhoff,. Paul D. Ross, Dept, of Revenue of Kentucky, Frankfort, for appellant.
    Millard Cox, Louisville, for appellee.
   WADDILL, Commissioner.

In this action for a declaration of rights we are asked to determine whether the' tax imposed by KRS 243.680(1) is applicable to the manufacture of distilled spirits to be exported. This'státute provides:

“No person shall. manufacture distilled spirits in this state unless he first obtains from the department a permit •to engage in the business of manufacturing distilled spirits. At the time of the issuance of the permit he shall pay to the state a tax of ten cents for each proof gallon of distilled spirits for which the permit is issued.”

The stipulation of facts which the parties filed shows that: The appellee, a licensed manufacturer of distilled spirits, is -negotiating a contract to manufacture fifteen (15) barrels of bourbon whiskey for a •customer in Mexico; that this whiskey, when manufactured, will be drawn off into barrels identified for export in compliance with 26 CFR 252.103; that the whiskey when manufactured will be entered into ap-.pellee’s Class 6 U.S. Customs Bonded Manufacturing Warehouse (26 U.S.C. §■ 5521 (1959)), and that appellee is unable to complete its contract negotiations since it is unable to determine whether it is liable for payment of this tax.

The trial judge recognized that Congress has established a scheme whereby certain products, such as whiskey, may be relieved •of local taxes so as to meet foreign competition. He assumed that the whiskey in the instant case would be exported subject to the strict control of the federal government from the time of production until exportation, and he concluded the levy of this tax would be an infringement of the congressional regulation of commerce under the Federal Constitution: . Judgment was accordingly entered.

Appellant contends that since KRS 243.-'680(1) has been held to be an occupational tax (Brown-Forman Distillers Corp. v. Commonwealth of Kentucky, Ky., 346 S.W.2d 752), its incidence is on the privilege of manufacturing which precedes the time when the tax immunity of the Federal Constitution attaches. Appellee asserts that this whiskey will be committed to be exported from the time it is produced and may not be constitutionally taxed by Kentucky.

The applicable test was enunciated in Empresa Siderurgica S.A. v. County of Merced, 337 U.S. 154, 69 S.Ct. 995, 93 L.Ed. 1276, as follows:

“ * * * The tax immunity runs to the process of exportation and the transactions and documents embraced in it. * * *. It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.”

When goods are under federal supervision from the inception of their manufacture until delivery to a common carrier for export, they are not subject to state taxation (McGoldrick v. Gulf Oil Corp., 309 U.S. 414, 60 S.Ct. 664, 84 L.Ed. 840) and if the incidence which gives rise to the accrual of the tax is a step, in the ’export process, the levy is unconstitutional (Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80).

In the instant case the stipulated facts nowhere state that this whiskey will be produced in a bonded manufacturing warehouse. Moreover they show that the whiskey will be manufactured and “drawn off” before it is placed in such bond. We conclude; that this whiskey will not be committed with certainty to the stream of exportation until it has been segregated from a common mass of distilled spirits and placed under federal supervision in a Class 6 Bonded Warehouse. Therefore the incidence of the tax imposed by KRS 243.680 (1) has not been shown to be a step in the process of exportation and the tax may be collected from appellee.

The judgment is reversed with directions to enter a new one approving the collection of the tax imposed by KRS 243.680(1).

MOREMEN J.,

with whom MILLIKEN, C. J.,

joins (dissenting).

The opinion suggests that the only whiskey which may be exempt from the production tax under subsection (1) of KRS 243.-680 must be produced and manufactured within the physical boundary and confines of a Class 6 U. S. Customs Bonded Manufacturing Warehouse. (I doubt very much if any distiller within this state has a still in a Class 6 Warehouse or a Bonded Warehouse of any nature; the still house is usually in a separate building.) The opinion, however, holds that if the whiskey is not produced under such unusual circumstances, it has not been committed with certainty to the stream of exportation. I cannot understand why the particular spot of production has such importance. Under subsection (2) of § 5002, Title 26 U.S.C. it is required that the entire premises be bonded, and the bonded premises are subjected to rigid federal control.

It appears that the most important thing should concern whether a distiller has committed with certainty 15 barrels of whiskey to specific export trade — otherwise we are concerned only with security measures. There is no more likelihood that goods will be diverted to domestic use from a bonded Class 6 Warehouse than from the bonded premises of the entire unit which is also highly policed. It will be remembered that as soon as whiskey is drawn off, it is placed in specially marked barrels and immediately taken to the Class 6 Warehouse. As soon as it comes into being as raw spirits, it is marked and on its way to a foreign land.

I believe that the covenant and promise of the distiller has greater significance than the physical property of the plant. It is plain from the letter of intent which is made a part of the complaint that appellee requested the issuance of a tax free permit from the state for the manufacture of’ fifteen barrels of whiskey. It follows that when that fifteen barrels of whiskey are produced and come into being they are immediately committed to specific export trade under the terms of the letter. If there is any diversion thereafter, there are sufficient sanctions, both state and federal,, which may be applied. It is a matter of' common knowledge — -at least in this state— that the manufacture and storage of distilled spirits are subject to strict control of" the federal government during the period" of its manufacture and transportation to the-warehouses and, for that matter, thereafter.. In addition, under 26 U.S.C. § 5521 et sequitur, the manufacturer must execute satisfactory bonds for the faithful observance-of all provisions of federal law and regulations promulgated thereunder.

It is apparent from the facts stated in-the majority opinion that the distiller has-covenanted to comply with all laws and regulations as to identification and storage.. The only flaw the majority opinion finds-with the proposed plan is that the entire-manufacturing process did not take place within a Class 6 Warehouse. Such a holding, I believe, is beyond the spirit and intent, of the constitution and federal statutes and regulations. I am convinced that under the facts the 15 barrels of whiskey which will be ultimately produced under a permit granted under subsection (1) of 243.680 (whether tax free or not) are definitely committed to exportation from the beginning of the distillation process.

We, therefore, respectfully dissent.


author:
GRIFFIN, Justice.
      CALVERT, Chief Justice.

text:
    CONCORD OIL CO., Petitioner, v. ALCO OIL AND GAS CORP., Respondent.
    No. A-10041.
    Supreme Court of Texas.
    Feb. 24, 1965.
    Dodson, Duke & Branch, San Antonio, Black & Stayton, Austin, for petitioner.
    Cox, Smith & Smith, San Antonio, for respondent.
   ON MOTION FOR REHEARING ■

GRIFFIN, Justice.

The opinion heretofore rendered by this Court is withdrawn and the following substituted therefor:

Respondent, Aleo, filed this suit in a district court of Bexar County,. Texas, to recover from Concord the sum of $23,000.00 which Aleo had paid Concord by virtue of a written contract between the parties.

Concord filed a cross action for damages because it alleged Aleo had not carried out the terms of the contract, but had defaulted thereon. Concord contended as a defense to Alco’s suit, that it had performed the contract, except in so far as Aleo had extended the time of performance and pleaded that Aleo was estopped to insist on the provisions of the contract because by its actions and conduct Aleo had led Concord to believe that a strict compliance with the terms of the contract would not be insisted upon by Aleo.

On a trial by jury and the answers the jury gave to the Court’s charge, the trial court had entered a judgment that Aleo take nothing by its suit, but awarded Concord $23,000.00 damages by virtue of Alco’s breach of the contract.

Upon appeal the Court of Civil Appeals reversed the trial court’s judgment and rendered judgment in favor of Aleo against Concord for the $23,000.00 sued for. On Concord’s cross-action a take-nothing judgment was entered. 375 S.W.2d 463.

Concord has appealed seeking to uphold its judgment in the trial court and to overturn the judgment of the Court of Civil Appeals.

We affirm the judgment of the Court of Civil Appeals.

The contract involved was in the form of a letter offer prepared.by Concord and submitted to Aleo and which was accepted by Aleo.

The contract, generally speaking, was one whereby Concord farmed out to Aleo an oil and gas lease which it had secured on a portion of the bed of the Colorado Eiver.-iri Colorado County,- Texas.

After setting out the consideration, to be, paid by Aleo to Concord for an assignment of the lease, and providing for the reassignment of an undivided j4th interest in the lease when certain conditions had been met, the contract recognized that a well must be drilled on the leased premises, and that a drillsite must be obtained on lands adjoining the river.

Paragraph V is the one dealing with this drillsite and the obligations of the parties, in this regard. It provides:

“It will be necessary to drill the-well above described, or the substitute-therefor, at the surface location adjoining the actual riverbed covered by the lease to be assigned to you [Aleo]. We [Concord] are presently negotiating with the owner of said surface location for a lease thereof, together with the right of ingress and egress to and from same. In the event such negotiations do not promptly result in our securing such surface lease, we will promptly proceed to condemn such surface location in accordance with the-law of the State of Texas providing therefor. You hereby authorize the bringing of said suit in our joint names if necessary to complete such, condemnation. The securing of such, surface location shall be at our sole-cost and expense, and we agree and, obligate ourselves to execute and deliver to you an assignment of such surface lease or condemned surface location, promptly after we have secured same. It is contemplated that the assignment of said surface location-will be delivered to you prior to the date on which you are .obligated to-commence the drilling of the ‘ well above described but if, ■ for • any • reason, w.e are delayed in securing- said location beyond such time, the date for commencement of said first well! shall be deferred- for a period of thirty (30) days after tender to you of the .assignment-of said surface location, If we are unable to secure and-assign,¶, to you, such surface location, by June-1, 1961, after" a bona fide good, faith. attempt on our part to do so, you shall be relieved from all further liability hereunder, and upon tender of reassignment of the above described lease, Concord firmly agrees and obligates itself to refund to you the cash consideration, theretofore paid by you to us under the terms of this agreement, and thereafter we shall both be relieved from further liability under the terms hereof.”

In paragraph XI it is expressly provided “and it is understood that time is of the essence hereof.” A reading of the contract as a whole demonstrates that it was the intention of Concord when it drew and tendered the contract to Aleo and of Aleo when it accepted this offer and completed the contract that time was of the essence.

The Court of Civil Appeals opinion has correctly and clearly analyzed this proposition that time was of the essence- and we agree with and adopt its holding that the contract is not ambiguous and that time was made the essence of the contract. Baker v. Fell, 135 Tex. 375, 144 S.W.2d 255 (1940); 13 Tex.Jur.2d p. 524, § 287; 31 C.J.S. Estoppel p. 402, § 67; Corbin: On Contracts, Vol. 3A, p. 360, § 715; Williston: On Contracts, 3rd Ed. Jaeger, p. 181, § 846; Herbert v. Denman (Tex.Civ.App., 1931), 44 S.W.2d 441(4), writ refused. It is undisputed that Concord had not obtained the drillsite by June 1, 1961,. the date set out in the contract.

Concord relies on facts, and circumstances, and conduct on the part of Alco’s agents and officers to estop Aleo from claiming and relying on the provision that time was of the essence of the contract.

Concord was unable to secure the drill-site voluntarily from the landowners and was forced to file condemnation suit there-, for. This contingency was specifically covered by the terms of the contract. . .

Concord plead equitable estoppel in the trial court. Issues were submitted to the jury on this defense and the jury gave favorable answers to Concord on such issues. In the Court of Civil Appeals and here estoppel is relied upon as a defense to Alco’s suit.

The letter from Concord was dated February 8, 1961, and accepted by Aleo February 10, 1961. It was soon ascertained by Concord that it was not going to be able to get the drillsite by an agreement with the landowners, so condemnation proceedings were commenced at once. The landowners by three different restraining orders secured from the various Judges of Colorado County having jurisdiction, prevented the commissioners of condemnation from hearing any witnesses until May 31, 1961.

The third petition for condemnation was filed May 5, 1961, and the hearing set for May 16, 1961. May 12, 1961, a temporary restraining order was entered by the District Judge enjoining the May 16th hearing.

May 19, 1961, Concord’s president, Pawel, telephoned the general counsel for Aleo and told him of this restraining order and the delay in condemnation proceedings and told him that it would be his “guess that it would take about another 30 days to get the drillsite.” And Mr. Moore (Alco’s counsel) said that “We are having a meeting on Monday, May 22nd. * * * ” And he said, “At that meeting we will discuss whether these delays are all right, and if they are not all right we will let you know.” He never told Concord the result of this meeting. Concord’s president testified “by not letting me know I came away with the firm impression that if I had gotten a drillsite any time until 30 days from May 19th, I guess June 18th that that was agreeable with Aleo.”

May 22, 1961, Concord dismissed its condemnation proceedings and filed its fourth petition in condemnation and hearing was set on this petition for May 31, 1961. In this petition it was alleged Concord and the. landowners were unable to agree on the amount to be paid for..the needed drill-site.

On May 30th those owning the land sought to be condemned for the drillsite, secured an injunction prohibiting the hearing on May 31st. This injunction was dissolved the morning of May 31st and the commissioners for condemnation heard one witness that date and postponed further hearing until June 5th.

May 29, 1961, Pawel again telephoned Alco’s general counsel “and told him that the new setting was May 31st * * * ; that we had now been restrained by the two Judges, who had slowed us down, we overcame their objections, there was one more district judge and we thought he would not stop us; and that we should have this drillsite within a few days after this May 31st hearing.” When asked what Mr. Moore said in reply to this, Pawel testified: “Well, he said something like, ‘that’s fine’ or something non-committal.”

With reference to the May 19th and later conversations on June 1st with Moore, Pawel testified, “I think I had the general impression that he [Moore] did not have the authority to extend the contract.”

Concord’s president, Pawel, after dismissal of the restraining order on May 31st, put in a telephone call for Mr. Moore in Chicago. Moore was out of town. June 1st Pawel called Moore in Chicago and was informed Moore was in Denver. Pawel called the Denver office and left word for Moore to call him. Moore returned the call about 3:00 or 3:30 the afternoon of June 1st, and Pawel told Moore of the status of the condemnation.

Pawel testified, “I sort of gathered some hesitance on his part, and he said, ‘Well, we will have a meeting on this and I will call you back.’ ” Moore did call back about 4:00 or 4:30 that afternoon and told Pawel something to the effect, “Our position has changed, and we have no quarrel with you but we would like to get out from under this deal.” On Pawel’s expressing shock and surprise, Moore said: “Well, I would like you to give us an option to stay in this deal and let us know after June 5th when you get the drillsite, and we will see then where we stand.”

The above are the statements of Alco’s agents and officers Concord relies on to establish their plea of estoppel.

While Pawel was talking to Moore the second time on June 1st a telegram was delivered to him from Alco’s Denver officé signed by its president, stating, in part, that “Aleo hereby elects to tender reassignment to Concord Oil Company and be relieved from further liability under said agreement and lease.” Aleo formally demanded return of the $23,000.00 consideration it had paid and stated a letter was following. This letter was dated June 1st and was received by Concord June 2nd and it was to the same effect as the telegram.

Concord proceeded with the condemnation and June 5th the Commissioners made their award. June 6th Concord deposited in the County Clerk’s office of Colorado County, Texas, double the amount of the award, and made the necessary bond required by statute in order to take possession of the drillsite.

Concord by proper instruments tendered the drillsite to Aleo and insisted that it proceed to drill as the contract provided. Aleo refused to accept the drillsite on the ground it was not procured by June 1st, sent to Concord a reassignment of all its rights under the original assignment to it from Concord and demanded again the return of the $23,000.00. Concord never returned the $23,000.00.

The facts in this record do not establish an estoppel.

After the May 19th and 29th conversations, Concord took no action other than they were required to take by virtue of their letter contract. This action was to proceed to condemn the land needed. Concord says that had Moore told Pawel that Aleo was going to insist on the June 1st deadline, Concord would have gone out and paid the landowners an amount necessary to secure the drillsite without condemnation.

“The burden of proving' an estoppel, and the essential elements thereof, is on the party asserting it.” 31 C.J.S. Estoppel § 160 a, p. 765.

“Estoppel is ordinarily regarded as affirmative matter; and under the rule that he who has the affirmative of the issue has the burden of proof, a party who claims, asserts, or invokes, or who alleges and relies on, an estoppel has the burden of establishing it, or all of the facts or elements necessary to constitute it, or the grounds on which it rests, and the failure to prove any one or more of the elements constituting an estoppel has been declared to be fatal. The opponent of the party relying on an estoppel is not required to show the absence of any of its component elements.” Idem pp. 765-767. (Emphasis added).

See also 22 Tex.Jur.2d 692, Estoppel § 21; 19 Am.Jur. 852, Estoppel § 199; Wentworth v. Collins (Tex.Civ.App.1938), 115 S.W.2d 442, dismissed w. o. j.; United States Gypsum Co. v. Southern Pine Lumber Co. (Tex.Civ.App.1935), 84 S.W.2d 823, 824, n. w. h. An essential element of estop-pel is that the party relying on an estoppel must have acted on it to his prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932(6, 7) (1952).

“No intendments are made in favor of a plea of estoppel, but it is incumbent on the pleader to aver all facts essential to its existence with particularity and precision.” Lloyd v. Singleton (Tex.Civ.App.1929), 16 S.W.2d 891(4), n. w. h.; Gulbenkian v. Penn, supra.

“In order for an estoppel to exist, it devolves upon the party seeking the advantage thereof to establish that he has been misled to his injury. Fitch v. Lomax (Tex.Comm.App.) 16 S.W.(2d) 530, 66 A.L.R. 758; 17 Tex.jur. § 15, p. 144.” Free v. Smith (Tex.Civ.App.1935), 80 S.W.2d 419 (1,2). Rev. on procedural point, 130 Tex. 23, 107 S.W.2d 588.

Concord’s pleading of estoppel is set out in its application for writ of error, and consists of two pleas. First, it is pleaded that Aleo and its agents remained silent with regard to whether or not Aleo would be agreeable to extending the time for procuring the drillsite for thirty days after May 19th, “and permitted the defendant (Concord) to proceed thereafter with th* expenditure of over $6,000.00 in drillsite acquisition costs. That all of the aforesaid conduct on the part of plaintiff (Aleo) and its agents, and their said silence when they had a duty to speak, was calculated to, and did induce the defendant to continue in its very expensive efforts to acquire the drill-site and right-of-way.” There were allegations of reliance by Concord on the conduct and silence of Aleo and its agents in continuing the condemnation proceedings and expending large' sums of money in its efforts to acquire the drillsite. The second part of the allegation was: “That had plaintiff and its agents not remained silent when it became obvious, as aforesaid, that the hearing in the condemnation proceedings would probably extend beyond June 1, 1961, and had they not been guilty of the other acts and conduct above described calculated to mislead this defendant as to plaintiff’s intention with respect to the June 1, 1961 date, defendant could have concentrated on the acquisition of such drillsite, and could have secured the same prior to June 1, 1961, * * *, or in the alternative, defendant could have ceased its fantastically expensive efforts to secure said drillsite.”

Concord relies on the cases of Schwarz v. National Bank of Texas, 67 Tex. 217, 2 S.W. 865 (1887); Weinstein v. National Bank of Jefferson, 69 Tex. 38, 6 S.W. 171 (1887); and Fifth National Bank of San Antonio v. Iron City National Bank of Llano, 92 Tex. 436, 49 S.W. 368 (1899), and similar cases following these authorities to sustain its plea of estoppel.

In each of these cases the facts show there was a change of position by the banks which resulted in injury to them should the plea of estoppel not be given effect In Schwarz, the bank had credited Schwarz’s indebtedness with the value of the lot transferred to it and Schwarz had failed in his business. In the Llano Bank case, the San Antonio Bank had surrendered collateral it had as security for Richardson’s note, and had also paid out the Llano Bank’s balance, relying on its statement of the balance as correct in the absence of objection from the Llano Bank. In addition, when suit was brought Richardson was a fugitive from justice. In Weinstein the bank had paid out funds it had on hand by virtue of the forged checks. As said in that case: “The object of the statement of the account in the pass-book, and its return with the checks, is to apprise the depositor of the full state of his account as shown by the books of the bank, to the end that he may verify it if it be correct, or detect its errors if it be found erroneous. * * * By his (Weinstein’s) failure to speak in proper time, he virtually admits the correctness of the items charged.”

Those cases do not apply here, for the record conclusively shows, as we herein set out, that Concord could not have purchased the drillsite from the landowners by June 1st. Until dissolution of the restraining order on May 31, 1961, the landowners were resisting the legal right of Concord to condemn the drillsite and they would not negotiate on the price to be paid.

Petitioner says that in all its many conversations with various representatives of Aleo, no mention was made by Aleo that it was going to insist on the June 1st deadline. Aleo owed no duty to again tell Concord that June 1st was the deadline.

Concord had prepared the contract between the parties. This contract provided for the June 1st cut-off date and it further provided that time was of the essence of the contract. Both parties had copies of the contract and operated thereunder. Where there is such a contract neither party has a duty to the other, every time contact is made with the other to say, “You know June 1st is the cut-off date.” The parties have so contracted and are bound to such date in the absence of estoppel. This failure on the part of Aleo to point out to Concord that June 1st was the cut-off date cannot be any basis for an estoppel.

More than once Pawel testified that he tried to negotiate with the landowners, and they would not negotiate or agree with him on payment for the drillsite.

As to the first part of the allegation, it is unquestioned that the telegram and letter of June 1st (letter received June 2nd) were plain and unqualified statements that Aleo was insisting on the June 1st deadline. Concord could have no question about this. Up to that time Concord had done everything it considered necessary as required by the contract to secure the drillsite by June 1st. In fact, Concord had proceeded with all diligence, using every means available and in the utmost good faith to secure the drillsite by June 1st.

Having been notified on June 1st that Aleo was electing “to be relieved of all further liability” under the contract, and was tendering a reassignment of all rights under the state lease and demanding return of its $23,000.00, Concord then proceeded with the condemnation proceedings, and expenditure of funds with full knowledge that Aleo considered itself not further bound.

Concord contends that by Moore’s statement, made in the second and last telephone conversation with Pawel June 1st, that “Well, I would like you to give us an option to stay in this deal, and let us know after June 5th when you get the drillsite, and we •will see where we stand,” (emphasis added), Aleo was estopped to put an end to the contract.

In view of the use of the words “option” and “we will see where we stand” Aleo was not binding itself to anything past June 1st except to take another look at the deal when the drillsite was procured and then determine if it wished to go into a contract with Concord. Aleo did take another look when Concord notified it that the drillsite had been secured, and Aleo did not desire to make another contract. The word “option” connotes the meaning there is nothing binding, but Aleo would decide later if it wished to become bound or not.

As to the second allegation that Concord could have secured the drillsite prior to June 1st, Pawel testified that he could have and would have secured the drillsite, but for the acts and conduct of Aleo misleading him. The record shows conclusively that he could not have secured the drillsite by June 1st.

The evidence shows that it was November 24, 1961, before Concord was able to secure any agreement out of the landowners to accept any sum of money for the drillsite or to take the condemnation award. In fact, Concord alleged in its trial petition filed in this case about November 15, 1962, that it “was unable to secure the drill-site mentioned in the aforesaid agreement between the parties by voluntary purchase from the owners of the land adjacent to the leased premises” and was required to institute condemnation proceedings to secure same. This was in accordance with Paragraph V of the contract, in the event Concord could not successfully secure the drill-site by negotiation with the landowners.

Prior to the hearing set for May 31, 1961, Concord had not refused or failed to take action toward securing the drillsite by June 1st as the contract required them to do. The record shows that the landowners up to and including May 30th would not set a price on their land. May 29, 1961, Pawel talked with Moore and advised that he should have the drillsite within a few days thereafter and Moore replied, “something like ‘that’s fine’ or something non-committal.” Neither in the conversation af May 19th or May 29th did Moore ever give an extension of time past June 1st for performance by Concord.

The elements of an equitable estoppel are not present in this record, and therefore the parties are bound by their contract. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Kelly v. Heimer, Tex.Civ.App., 312 S.W.2d 430; Terrell Hills Baptist Church v. Pawel, Tex.Civ.App., 286 S.W.2d 204; 22 Tex.Jur.2d, Estoppel, § 8.

Concord claims that Paragraph V of the contract required Aleo to tender the reassignment of its rights under the lease as a condition precedent to terminating the contract.

Paragraph V does not so read. After setting out the necessity of securing a drillsite, and at the sole cost and expense of Concord, and other matters, the contract provides, “If we are unable to secure and assign to you such surface location by June 1, 1961, after a bona fide good faith attempt on our part to do so, you shall be relieved from all further liability hereunder.” The only condition to relief to Aleo from “all further liability” under the contract is that Concord, after good faith efforts, fails “to secure and assign to” Aleo by June 1, 1961, the drillsite.

The contract then proceeds to set out that Concord is not to be relieved of its liability “under the terms hereof” until it has refunded to Aleo the cash consideration heretofore paid by Aleo to Concord. For Aleo to be entitled to receive this cash consideration theretofore paid, it was necessary for Aleo to tender reassignment of its rights under the lease. This Aleo did and should recover the $23,000.00.

The petitioner’s motion for rehearing is overruled and the judgment of the Court of Civil Appeals is in all things affirmed.

CALVERT, C. J., and STEAKLEY, J., dissenting.

NORVELL and POPE, JJ., not sitting.

CALVERT, Chief Justice.

I respectfully dissent.

Alco’s right to recover the sum of $23,-000.00 paid to Concord depends, in final analysis, on whether there is evidence and jury findings in the record which will support a legal conclusion that Aleo is estopped from asserting its contract right to have the money returned because of Concord’s failure to procure the drillsite by June 1. The Court of Civil Appeals held that a legal conclusion of estoppel is not supportable because “there is no evidence of a false representation or concealment of material facts by Aleo which was relied upon by Concord.” 375 S.W.2d 467. The majority of this Court takes a different tack, and holds that the conclusion is insupportable because Concord was not injured by Alco’s conduct inasmuch as “the record shows conclusively that he [Concord’s president, Pawel] could not have secured the drillsite by June 1st.”

Neither the Court of Civil Appeals nor the majority of this Court suggests that the jury’s verdict is inadequate to support the conclusion, but an understanding of the verdict will serve to bring the holdings of both into better focus. In answer to special issues, the jury found that the officers and agents of Aleo by their course of conduct led Concord’s officers and agents reasonably to believe that Concord’s failure to have the drillsite by June 1 would not cause Aleo to attempt to terminate the agreement; that Concord’s officers relied on the course of conduct of Alco’s officers and agents to the extent that Concord’s officers in good faith believed that Aleo would not attempt to terminate the agreement on June 1 because of failure to secure the drillsite by that date; that but for its good faith belief, Concord could and would have secured the drillsite by June 1. Inasmuch as the judgment of the Court of Civil Appeals is bottomed upon a finding of “no evidence” to support essential elements of the jury’s verdict, and the judgment of affirmance by this Court is based upon a finding of “conclusive evidence” that an essential element of estoppel does not exist, the evidence on the controlling issues should be summarized.

The record reflects that during the months of March, April and May, 1961, Concord and Aleo exchanged numerous letters and long-distance telephone calls. Most of these letters and calls dealt with technical details relative to drilling the proposed well such as obtaining a railroad crossing and using a more economical casing for the well. Once during April, Aleo inquired of Concord’s progress in obtaining the drillsite. However, there was nothing in any of these exchanges indicating that Aleo was particularly concerned with Concord meeting its deadline, and nothing to indicate that Aleo wanted to back out of the deal. It appeared that Aleo was eager to begin drilling. It was in this context that the crucial telephone conversation of May 19 occurred. The conversation was between Pawel, president of Concord, and Moore, general counsel and assistant secretary of Aleo. According to Pawel’s version (which the jury obviously believed), he told Moore that it might take another thirty days to get the drillsite through condemnation; whereupon, Moore told Pawel that Alco’s board of directors was having a meeting on the 22nd at which the contemplated delay would be discussed, and assured him that if the thirty-day delay in securing the drillsite through condemnation was not “all right” with Alco’s directors, Pawel would be so advised. Moore testified that Alco’s board of directors met on June 23 and 24, but did not make a decision on the matter. Moore did not notify Pawel.

Concord asserts that at the time of the May 19 conversation and following the board meeting there was ample time before the June 1 deadline to seek the drillsite through further negotiation with and purchase from the landowners, and that, as Pawel testified, it would have used the time for that purpose had it known Aleo would insist on obtaining the site by that date, even if it meant “paying through the nose”; but that due to Alco’s failure to advise promptly that the delay was not all right, Concord was led to believe that the delay was agreeable and that Aleo would not insist upon its contract right to have the site by June 1. It is Concord’s position that under these circumstances the law imposed a duty upon Aleo to speak, and that because of Alco’s silence, Concord lost its opportunity to use the time available before June 1 to obtain the drillsite by purchase.

Although the Court of Civil Appeals recognized in its opinion that silence under some circumstances may furnish a basis upon which to predicate an estoppel (see 375 S.W.2d 466), it held, nevertheless, that Concord could not sustain its plea of estoppel in the absence of evidence of a false representation or concealment by Al-eo on which Concord relied. What the court meant by the holding is not entirely clear. It could have meant that there is in the record no evidence of a false representation or concealment by Aleo, or it could have meant that there is no evidence that Concord relied on a false representation or concealment which is supported by evidence. I do not share the conclusion in either event.

Silence, where there is a duty to speak, may be as misleading as a positive misrepresentation of existing facts. Humble Oil & Refining Co. v. Harrison, 146 Tex. 216, 205 S.W.2d 355, 361 (1947); Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605 (1935); Burnett v. Atteberry, 105 Tex. 119, 145 S.W. 582, 587 (1912). “Silence, when there is a duty to speak, is deemed equivalent to concealment.” 19 Am.Jur. 666, Estoppel, § 55.

Moore had been representing Aleo in dealing with Pawel about the drillsite. He knew on May 24 that Alco’s board of directors had failed to approve the contemplated thirty-day delay sought by Concord.

He knew, therefore, that the delay had not been agreed to and had not been approved as “all right” by Aleo. He knew that, in keeping with his assurance, Pawel expected to be advised if the delay was not approved by the board as “all right.” He knew from Pawel’s statement to him that Concord probably would not succeed in obtaining the drillsite by June 1 through condemnation proceedings. He knew that negotiation with and purchase from the landowners was an alternative means for securing the site. His knowledge was Al-co’s knowledge. Under these circumstances, good faith and fair dealing required that Moore speak for Aleo, and his failure to speak was the equivalent of concealment of a material fact. Pawel’s testimony supports the jury’s finding that he relied on the concealment and was misled into believing that Aleo would not insist on its right to terminate the contract if the drillsite was not secured by June 1.

Concord argues that it was injured by loss of opportunity to acquire the drillsite by purchase. In support of its argument, Concord cites Schwarz v. National Bank of Texas, 67 Tex. 217, 2 S.W. 865 (1887), Weinstein v. National Bank of Jefferson, 69 Tex. 38, 6 S.W. 171 (1887), and Fifth National Bank of San Antonio v. Iron City National Bank of Llano, 92 Tex. 436, 49 S.W. 368 (1899). These cases will support the proposition that an estoppel will be raised in favor of one who, in reliance upon the misrepresentations or inaction of another, can show that he has been deprived of a reasonable opportunity to save himself from injury. In Weinstein v. National Bank, supra, it was said:

“It has been held by this court that when one party has been prevented or induced by the conduct and representations of another from taking prompt action for the collection of his debt, that this is such a change in his position for the worse as to meet the requirement of the law in order to create an estoppel. Schwarz v. [National] Bank, 67 Tex. 217, 2 S.W.Rep. 865.”

Further, the party pleading estoppel need not prove to a certainty that the lost op-pórtunity would have ripened into success but for the misrepresentations or inaction of another; it is enough to show that the lost opportunity carried a reasonable possibility of success. Indeed, to force one such as Concord to show what offer it could and would have made and what would have been the landowners’ response to such offer would all but destroy the estoppel defense.

In the case of the Fifth National Bank of San Antonio v. Iron City National Bank of Llano, supra, San Antonio Bank’s lost opportunity to recover its funds from the Llano Bank cashier — a swindler who owned no property — would seem rather remote. Yet this Court there upheld the San Antonio Bank’s plea of estoppel against the Llano Bank for the latter’s negligent delay in notification. The Court quoted with approval the following language taken from Leather Manufacturer’s Nat. Bank v. Morgan, 117 U.S. 96, 6 S.Ct. 657, 29 L.Ed. 811:

“It is not necessary that it should be made to appear, by evidence, that benefit would certainly have accrued to the bank from an attempt to secure payment from the criminal. * * * As the right to seek and compel restoration and payment from the person * * * was in itself a valuable one, it is sufficient if it appears that the bank, by reason of the negligence, * * * was prevented from promptly and, it may be, effiectively exercising ' it.”

The majority does not question the soundness of Concord’s argument or of- its supporting authorities.. What the majority holds is that Concord was not injured by its loss of opportunity because the evidence establishes conclusively that the drillsite could not have-been .purchased by. June 1. I cannot agree with the holding..

In the instant casé it is true, as respondent contends, that' the landowners were' vigorously resisting Concord’s efforts to condemn the drillsite.. They obtained three temporary restraining orders staying the proceedings, and prior to the filing of the condemnation suit, the landowners had refused at least two offers made by Concord to purchase the drillsite. However, as Pawel testified, his first offers were substantially less than the $4,064 condemnation award which was finally set on June 6, 1961 and accepted by the landowners in November, 1961. He further testified that had Concord realized Aleo intended to insist on the June 1 deadline, Concord would have been willing to “pay through the nose”' for the site. There is nothing in the record to show that the landowners would not have sold to Concord if it had raised the ante. Had Concord offered the landowners a handsome premium for the drillsite, there would have been at least a reasonable possibility that the site could have been procured prior to the deadline, and the evidence does not, in my judgment, establish conclusively that it could not have been purchased by June 1.

I would grant the motion for rehearing and reverse the judgment of the Court of Civil Appeals and would affirm the judgment of the trial court denying Aleo a recovery.

STEAKLEY, J., joins in this dissent.