author: OSBORNE, Judge.

text:
    Donnie JEWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Rehearing Denied March 15, 1968.
    Robert T. Schneider, Horse Cave, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   OSBORNE, Judge.

On September 13, 1965, appellant was in jail in Horse Cave, Kentucky, awaiting trial on a charge of child desertion. William S. Smith, a detective with the Kentucky State Police, was looking for him in connection with an investigation on an offense of store-house breaking. Smith, in company with another officer, went to the jail in Horse Cave where appellant was released to them for interrogation. They took him into their automobile in front of the jail where they talked for approximately ten minutes concerning the charge being investigated by the officer. Officer Smith testified that they “just asked him what he knew and he indicated he knew something.” Following this conversation he was taken to the jail at Cave City, Kentucky, some five miles away. There he readily confessed to the charge, which confession was reduced to writing and signed by him. Before questioning commenced, appellant was given a warning concerning his rights, which is set out in full at the beginning of the written statement.

“September 13, 1965. I Donny Alton Jewell make the following free and voluntary statement to Detective William C. Smith and Trooper Cecil Overstreet, both known to me to be members of the Kentucky State Police. T have been advised I don’t have to make any statement and any I do make can be used against me in a court of law. I have been advised I am entitled to an attorney before making this statement. No promises have been made to me, no threats or promise of reward. I am 29 years of age and can read and write. * * *

At the outset of the trial here in question, appellant objected to the introduction of the confession in evidence and asked for a hearing. The trial court heard evidence concerning the confession, at the conclusion of which it made the following ruling:

“I think the confession is competent for the reason that the man was informed in general terms as to his right. He was specifically informed that he did not have to make the statement and if he made it, it could be used against him. I think that is competent.”

The confession was later introduced in evidence. Appellant was convicted of storehouse breaking under KRS 433.190 and sentenced to imprisonment for two years. His sole claim of error is that the confession should not have been used in evidence against him because it was obtained in violation of the rules announced by the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The substance of what the court had to say in that case can be found on page 444, 86 S.Ct. on page 1612, as follows:

“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. * * * Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any state of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”

We do not believe the confession here violates the rule set out by the court in Miranda. True, the interrogation was a custodial interrogation as therein defined, however, the appellant was advised of his right to remain silent. He was advised that any statement he made could be used against him as evidence; that he was entitled to the advice of an attorney before making a statement, and that he was given a hearing by the trial court before the statement was introduced in evidence. The court being cognizant of Miranda it is, therefore, apparent that it was of the opinion the statement was given voluntarily, knowingly and intelligently. It does not appear that at any time during the taking of the statement appellant ever requested to consult with an attorney before going forward or that he at any time indicated in any manner that he did not wish to be interrogated by the officers. The statement clearly meets the requirements set out by the court in Miranda v. State of Arizona, supra. We perceive no error in the trial.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Carl E. HEFLEY, Appellant, v. E. I. duPONT de NEMOURS & COMPANY and Workmen’s Compensation Board, Appellee.
    Court of Appeals of Kentucky.
    Jan. 19, 1968.
    Rehearing Denied March 15, 1968.
    Wilton R. Long, Jr., Louisville, for appellant.
    Edgar A. Zingman, Louisville, for appel-lee.
   OSBORNE, Judge.

This is an appeal from an order of the Jefferson Circuit Court reversing an award of the Workmen’s Compensation Board.

Carl E. Hefley, appellant herein, suffered an injury to the knee while employed by the appellee. He instituted a claim with the Workmen’s Compensation Board for total disability. The appellee moved to require him to submit to surgery on the injured knee or to be barred from recovery under KRS 342.035(2), and tendered the cost of such surgery. The Board refused to require surgery and awarded the appellant total and permanent disability.

Medical evidence consists of the testimony of two doctors who treated the appellant. They both testified that he could not hold his former employment with his knee in its present condition and that the knee would not improve on its own but would get worse. They both testified that corrective surgery could be performed; that such corrective surgery was not particularly dangerous; and that corrective surgery would have a 95% chance of restoring appellant to a condition where he could work. This testimony was undisputed. The board found the above as a matter of fact. However, the board found as a matter of law that they could not order appellant to submit to major surgery, and awarded compensation for total and permanent disability. The circuit court set aside the order of the board, and this appeal was taken.

The rule where there is no dispute in evidence is that a major operation does not have to be undergone “unless the prospects of unsuccessful results, as well as risk to life or health, are minimal,” American Tobacco Co. v. Sallee, Ky., 419 S.W.2d 160. But if such prospects of failure are minimal and the danger to health is minimal then the operation must be undergone or all rights to compensation are forfeited under KRS 342.035(2). Here the undisputed testimony and the findings of the board are that the risk of failure was only 5% and that the danger to health and life was only that inherent in any surgery involving a general anesthetic. Therefore, the circuit court’s determination that a refusal to undergo the surgery was unreasonable was proper.

The judgment is affirmed.

All concur.


author: MILLIKEN, Judge.

text:
    Isadore MARTIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.
    John W. Coomes, New Castle, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MILLIKEN, Judge.

The appellant, Isadore Martin, shot and killed Augustine Redden in the course of an argument arising out of a crap game. Martin was indicted for murder but was convicted of voluntary manslaughter and sentenced to three years in the penitentiary.

On July 24, 1965, at approximately 2 a. m., Martin and eight or ten other people were in the basement of a house in Eminence, Kentucky, owned by Martin. Curtains were hung from the rafters around a table where a crap game was in progress. Around the table were Redden, Martin, Martin’s nephew, Robert Carter, and several other people. Martin and Redden began arguing over whether a bet should be placed and Redden lost his temper and went after Martin. The others present attempted to restrain Redden, but he brushed them aside and hit Martin. At this point everyone except the combatants left from behind the curtain. Two shots were fired and Martin came out from behind the curtain. Redden was found on the floor, dead from two gunshot wounds in the chest.

Martin has been tried twice for this homicide. His first trial resulted in a conviction for involuntary manslaughter which he appealed on grounds that the involuntary manslaughter instruction should not have been given, and his conviction was reversed. Martin v. Commonwealth, Ky., 406 S.W.2d 843 (1966).

The evidence introduced by the Commonwealth at the retrial of this case was substantially the same as the evidence introduced by it at the original trial. In each trial the appellant’s defense was based on the premise that the Commonwealth failed to show any evidence which would indicate guilt on the part of Martin. The only difference between the two trials is that upon the original trial, Martin took the stand and attempted to show self-defense; in the retrial, he did not take the stand or offer any evidence in his behalf.

The appeal of the judgment on retrial is based first on Martin’s contention that the trial court erred in overruling his motion for a directed verdict. Martin’s position is that the Commonwealth’s evidence was so strong in his favor that a sound inference of self-defense could hardly be avoided. However, our opinion in Martin v. Commonwealth, (above) clearly destroyed this assertion when we said:

“It ‘sometimes happens that the evidence is all one way, and makes out a case of self-defense,’ in which event the defendant is entitled to a directed verdict of acquittal * * * We do not believe, however, that this is such an instance * * * Martin was not subject to the menace of a deadly weapon * * * Redden had no warning and, so far as the evidence reveals, never knew Martin had a gun. * *
It is our opinion that this is a case in which the evidence as a whole does not demand a factual conclusion that Martin was reasonably in fear of death or great bodily harm or that the apparent necessity of shooting Redden was reasonable.”

We think this reasoning is applicable to the present appeal because, as was mentioned before, the Commonwealth’s evidence presented in the second trial was substantially the same as that introduced by it at the first trial.

Martin’s second and final argument for reversal is that the trial court erred in failing to give an instruction on involuntary manslaughter. This is the exact opposite of the contention he raised on his first appeal. In Martin v. Commonwealth, (above) the court concluded that the evidence indicated the homicide was intentional, which rendered illogical any instruction on involuntary manslaughter, citing Shanks v. Commonwealth, Ky., 390 S.W.2d 888 (1965) to support the court’s conclusion where we said :

“Where a deadly weapon was used, and where the accused admits that he was attempting to defend and protect himself with the deadly weapon, there is no room for argument that he did not intend the result of the action taken by him.”

See also, Hatton v. Commonwealth, Ky., 412 S.W.2d 227 (1967).

The evidence presented does not show a lack of intention to kill or an accidental killing which would justify an instruction on involuntary manslaughter.

The judgment is affirmed.

All concur.


author: EDWARD P. HILL, Judge.

text:
    QUICK LOANS, INC., Appellant, v. ASHLAND FINANCE COMPANY NO. 2 OF LEXINGTON, Appellee.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.
    Gess, Mattingly, Saunier & Atchison, Lexington, for appellant.
    W. H. Dysard, Dysard, Dysard, Johnson & Welch, Ashland, Angus W. McDonald, McDonald, Alford & Roszell, Lexington, for appellee.
   EDWARD P. HILL, Judge.

Appellant filed this suit to collect $125,-953.07 from appellee for breach of a contract to “either purchase or to make reasonable, diligent and efficient efforts to effect the collection” of 301 small notes aggregating the above amount. The judgment appealed from dismissed the complaint and amendments thereto with prejudice. This appeal followed.

The important provisions of the contract sued on are quoted herewith:

“WHEREAS, Quick is desirous of selling, transferring and assigning said notes, without recourse, to Ashland at the price and upon the terms, provisions and conditions hereinafter set forth and Ashland is willing to purchase $30,000.00 face principal balance of said notes as shall be selected by it and further of acquiring the furniture, fixtures, office supplies and leasehold, if any, in the premises designated as 150 South Limestone Street, Lexington, Kentucky
“NOW, THEREFORE, for and in consideration of the sum of $40,000.00, of which $10,000.00 has this day been remitted by Ashland to Quick, the receipt of which is hereby acknowledged and $30,-000.00 to be paid by Ashland to Quick within sixty (60) days immediately following the date hereof, Quick does hereby agree to sell, transfer, assign and endorse, without recourse, to Ashland, it successors and assigns $30,000.00 of face principal balance of its notes receivable as shall be selected by Ashland within sixty (60) days from the date hereof.
“Quick shall and it does hereby deliver to Ashland all of its notes receivable, as listed in the attachment hereto for the purpose of purchase or collections thereof at the option of Ashland, except at the option of Ashland, except only with respect to $30,000.00 thereof which Ashland is unconditionally obligated to purchase as aforesaid. The price payable for all such notes (exclusive of the initial $30,000.00 face principal value thereof) shall be the face principal balance thereof plus an amount equal to twenty-five per cent (25%) of the accrued and collected interest thereon.
“All accrued and uncollected interest upon the selected notes of the aggregate principal balance of $30,000.00 shall vest in Ashland as of the date of the transfer of said notes.
“Simultaneously, with the purchase by Ashland of the total of $30,000.00 of face principal balances of notes payable to Quick, as aforesaid, Quick shall designate Ashland as its agent to collect for its account all of the remaining notes listed in the attachment hereto, and in consideration of reasonable, diligent and efficient efforts on the part of Ashland to collect said notes, Ashland shall receive as its sole compensation * * *.
“Quick may withdraw from the agency at any time subsequent to sixty (60) days from the date hereof, the whole or any amount of the aforementioned promissory negotiable notes for the purpose of undertaking the collection thereof through its own employees or otherwise * * *.
“Quick shall have the right and privilege of designating a representative or representatives to work with Ashland in connection with the collection of the aforementioned notes and in the event that Quick, its representative or representatives request Ashland to re-write any such note or notes Ashland will forthwith do so, making the same payable to its order and the endorsing such note or notes to Quick, without recourse.” (Emphasis added.)

Appellee purchased and paid for the notes it selected, aggregating $30,000, and paid the $10,000 ostensibly for the furniture, leasehold estate, and its franchise; there is no question as to these items. Ashland did not exercise its option to purchase the balance of the notes.

The contract was dated July 21, 1964. The notes then remaining in the hands of Ashland were delivered on October 6, 1964, to Richard D. Moloney, treasurer of Quick. The following receipt was taken by Ashland from Moloney:

“This is to certify that I, Richard D. Moloney, this date 10-6-64, received from Ashland Finance Company, 150 South Limestone, Lexington, Kentucky, 301 accounts totaling $125,915.87.
“I also certify that this relieves Ashland Finance Company of all obligations pertaining to all Quick Loan accounts. “This date, I have received all notes and ledger cards.
“Quick Loan Company, by Richard D. Moloney, Treasurer.”

It is the position of appellant that upon Ashland’s failure to exercise its option to purchase the remaining notes, it was obligated to “make reasonable, diligent and efficient efforts to effect the collection” of them; that it failed to do so, which failure amounted to a breach of Ashland’s obligation under the contract. Appellant also argues that Quick, being a corporation, could speak only through the action of its board of directors, and that the action of Moloney was unauthorized by the corporation and was ultra vires and not binding upon the corporation. It would have Ash-land take the notes back and pay the full amount of them. Needless to say, appellee took the opposite view.

In his first opinion, the chancellor concluded that there was a valid “rescission” of the contract as to the notes or accounts in question; therefore, it was not necessary for him to determine from the evidence whether Ashland did in fact exercise “reasonable, diligent and efficient efforts” for collection of the notes.

The chancellor also found as a matter of fact and stated in his opinion that: “[T]he evidence makes it abundantly clear that though Quick was in form a corporation, nevertheless from its inception it was operated as though it was a partnership or a joint venture.”

In a supplemental opinion made in connection with his ruling on appellant’s motion, and grounds for a new trial, the chancellor concluded the contract was also unilateral-

We copy herewith appellant’s “Statement of Questions Presented”:

“1. Were the findings of fact and conclusions of law stated in the first opinion of the Court below and the decision and judgment resulting therefrom correct?
“2. Was the decision of the trial Court to believe appellee’s witnesses and discredit the testimony of appellant’s witnesses reasonable or arbitrary?
“3. Were the findings of fact and conclusions of law stated in the second opinion of the Court below and the decision and order resulting therefrom correct?”

We shall treat the first question presented as an argument that the judgment is unsupported by competent evidence and clearly erroneous. In regard to this question, it should be noted the contract made no provision for a remedy to Quick in the event Ashland did not exercise “reasonable, diligent and efficient efforts.” On the contrary, the contract authorized Quick to “withdraw from the agency at any time subsequent to sixty (60) days from the date hereof, the whole or any amount of the aforementioned promissory negotiable notes for the purpose of undertaking the collection thereof through its own employees or otherwise.”

There was abundant evidence that Ashland was diligent in its efforts to collect. Here we quote from the testimony of Moloney, appellant’s treasurer:

“Q. 16 Thank you. Now, with respect to the activities of you and Mr. Frankey subsequent to July 21, I will ask you to say if it isn’t a fact that almost every day for the first six weeks after that date of July 21, if you and he did not jointly call on the people who owned Quick Loans for the purpose either of purchasing their notes by Ashland or of making collections on them?
“A. Yes, sir.
“Q. 17 And Mr. Frankey went with you on a substantial number of these occasions ?
“A. Yes, sir.
“Q. 18 And even after the $30,000.00 had been collected, was that still true?
“A. In a number of cases, yes sir.
“Q. 25 In addition to purchasing those additional notes over and above the $30,-000.00, did the Ashland Finance people further assist you in making collections on those which they didn’t buy ?
“A. Yes, sir.”

There was other evidence of like import that indicated Ashland was diligent which we shall not quote in the interest of brevity. Although the chancellor did not find it necessary to determine the question of “diligence” on the part of Ashland there was abundant evidence to justify a finding that Ashland was “diligent.”

Appellant says the notes became worthless during the seventy-seven days they were in the possession of Ashland. There is no proof to this effect, and we are not persuaded that so many individual notes could become “worthless” in such a brief time.

We direct our attention to the question of the authority of Moloney to accept return of the notes and execute the release. Quick Loans was a corporation with four stockholders who constituted the board of directors. Moloney was duly selected secretary-treasurer, with authority under the bylaws to have custody of its notes. He was the same person who turned the notes over to Ashland in the beginning. He worked with Ashland in efforts to collect the notes. We think Moloney had both actual and ostensible authority to accept the return of the notes and execute the release. 19 Am. Jur.2d Corporations, § 1164; Kyle Furniture Co. v. Russell Dry Goods Co., Ky., 340 S.W.2d 220, 85 A.L.R.2d 428.

The second question presented is whether the decision of the chancellor in believing appellee’s witnesses and discrediting the testimony of appellant’s witnesses was “reasonable or arbitrary.” Where there is conflict in the evidence, the chancellor must by necessity believe one theory to the disbelief of the other; otherwise, he would never arrive at a judgment. In so doing, he does not act unreasonably or arbitrarily; he only performs his duty.

The third and final question presented urges that the second findings of fact and conclusions of law were incorrect. This conclusion, as noted above, merely added that the contract was unilateral. We need not determine whether this was or was not correct. The chancellor’s first opinion, findings of fact and conclusions of law were correct and fully justified by the evidence. We also think the chancellor would have been fully justified in finding that Ashland was “diligent.”

Sandwiched in appellant’s brief is the further argument that appellant was entitled to a new trial for newly discovered evidence. The chancellor overruled the motion for a new trial. The newly discovered evidence was that of a secretary to one of the officers of Quick Loans, who worked in the office of appellant during the time involved. We cannot say the chancellor abused a sound discretion in holding that appellant “could have, by the exercise of reasonable diligence produced Mrs. Rappert” as a rebuttal witness at the trial.

The judgment is not found to be clearly or at all erroneous. CR 52.01.

The judgment is affirmed.

All concur.


author: PALMORE, Chief Justice.

text:
    ED HALL DRILLING CO., et al., Appellants, v. Johnnie PROFITT et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    As Modified on Denial of Rehearing Feb. 23, 1968.

      J. W. Craft, Jr., (Craft & Haynes) Hazard, for appellants.
    Martin Glazer, Frankfort, Paul Rehm, Versailles, for Special Fund.
    Edward Jackson, Beattyville, Steve Robbins, Richmond, for appellees.
    William A. Rice, Harlan, for amicus curiae.
   PALMORE, Chief Justice.

Appellee, Johnnie Profitt, was injured in a fall from a mast while working as a tool dresser for the appellant Ed Hall Drilling Company. His application for workmen’s compensation resulted in an award based on a finding of 20% permanent partial disability, half of which was attributed to a dormant non-disabling degenerative condition of the spine and the other half to the specific injury sustained in the accident. Profitt appealed, and upon a review of the record pursuant to KRS 342.285 the Lee Circuit Court adjudged him to be 100% permanently disabled solely as a result of the accident. The employer appeals.

The claimant having had the burden of proof, the issue presented by his appeal from the action of the Workmen’s Compensation Board was whether the evidence as a whole forces a factual conclusion different from and more favorable to him than the conclusion reached by the Board. Cf. Sullivan v. Foster & Creighton Company, Ky., 394 S.W.2d 917, 918 (1965). If not, the circuit court was not authorized to disturb the award. The answer requires an analysis of the salient testimony.

At the time of the accident, July 7, 1964, Profitt was 36 years of age and in apparent good health. He had worked regularly at strenuous labor and had not sustained any serious injury. There is no evidence that he had ever experienced symptoms of back trouble. The accident in question consisted of his falling several feet onto a steel beam. The immediate manifestations of injury were a fractured cheek bone and painful hip. An attending physician referred him to Dr. Andrew Moore at Lexington. Dr. Moore treated the facial injury and called in Dr. Kearns Thompson, an orthopedic surgeon, for further examination and treatment. Dr. Thompson had an AP X-ray of the pelvic region made, and it did not reveal “any abnormality of the pelvis or in the hip joints.” The doctor’s “tentative impression at the time * * was that he had sustained a sprain of the right hip.” On July 13, 1964, Dr. Thompson noted that “his right hip discomfort has healed completely” and released him from orthopedic care. The patient was hospitalized for a total of nine days.

Dr. Thompson next saw and again X-rayed Profitt on September 8, 1964, after he had been back to see Dr. Moore about his face and had advised Dr. Moore that he was having back trouble. According to Dr. Thompson, “At this time he was complaining of pain in his low back. He noted the onset of this discomfort * * * when he got home and became active and particularly when he tried to cut some grass with a power mower * * * Patient pointing to the area of the lower lumbar spine as the region of his discomfort This area was entirely pain free when he was examined initially on July 9th in the hospital.” The X-rays taken on September 8, 1964, disclosed “some narrowing or degenerative change to the lumbo-sacral junction, primarily on the right side.”

As instructed, Profitt returned to Dr. Thompson on October 8, 1964, for reexamination. Meanwhile he had worked for one day; but this had produced soreness in his back and he had not worked thereafter. On this occasion the doctor advised him to go back to work “and not be so energetic when he initially started his employment.” However, when Profitt made his next visit to Dr. Thompson, on November 5, 1964, he had not returned to work and the doctor again advised him to do so.

The next and last time Dr. Thompson saw the claimant was on January 4, 1965. Profitt 'reported that during December he had worked six days at mixing cement, but it had made his back sore. A clinical examination produced substantially normal findings, and the visit ended as follows:

“It was my feeling at this time that this patient manifested no residual impairment. Work was discussed with him. He was advised to return to work when such was available to him, and he was again released from orthopedic care, and it was my opinion that he related no residual manifestation as the result of his injury from an orthopedic standpoint. He had no complaint referable to his right hip at this time.”

Dr. Thompson’s direct testimony for the defense concluded with the following question and answer:

Q “Doctor, does the plaintiff have any permanent partial disability as the result •of his injury in your opinion ?”
A “From an orthopedic standpoint, no, sir.”

All that was gleaned from Dr. Thompson by cross-examination was that the degenerative condition in the claimant’s lumbo-sacral region is permanent.

Profitt was seen and examined by Dr. Carl W. Noble, of Beattyville, on November 10, November 13, and November 27, 1964, and on February 22, 1965. X-rays of the spine indicated “chronic degenerative changes of the lumbo-sacral joint and a narrowing of the disc spaces at this level.” It was Dr. Noble’s opinion that although the degenerative changes had developed over a long period of time, the accident had caused the narrowing of the disc spaces and this narrowing “is the direct cause of hig present symptamology.” He testified that Profitt is totally and permanently disabled for heavy manual labor, a condition which, in the absence of X-rays taken or symptoms existing prior to the injury, must be attributed entirely to the injury of July 7, 1964.

Dr. J. C. Coldiron, of Manchester, examined Profitt on February 22, 1965. X-rays revealed the same conditions observed by Dr. Noble. Dr. Coldiron stated that Profitt “is unable to do any heavy work of any kind * * *. My opinion is that it is permanent.”, He declined, however, to give an opinion as to the relationship between the pre-existing degenerative changes and the accidental injury of July 7, 1964.

Dr. T. R. Miller, an orthopedic surgeon of Lexington, examined Profitt on March 16, 1965, at the instance of the employer. He took X-rays and a case history and had before him the X-rays taken for Dr. Thompson in July of 1964. He observed “unquestionable localized degenerative changes that may have been made symptomatic by such an accident,” and except for which the claimant should have recovered completely. It was his opinion that the aggravation of these changes by the injury “might produce a present disability of perhaps ten per cent to the body as a whole.” In describing the narrowing of the inter-vertebral space at L5-S1 he said that the joint is about 25% the width of the other interspaces.

Responsive to an appropriate motion under KRS 342.120 the Special Fund was made a party defendant and Dr. William C. Mitchell, an orthopedic surgeon of Louisville, was appointed to examine Profitt and render an evaluation in terms of present disability, if any, and causative factors. KRS 342.121. Specifically, Dr. Mitchell was asked to report the following: (1) Pri- or conditions capable of being aroused into disability by the injury of July 7, 1964, and the respective percentages of disability to Profitt’s body as a whole resulting from each; (2) Total percentage of disability to the body as a whole existing immediately prior to July 7, 1964: (3) Percentage of disability to the body as a whole resulting from the injury of July 7, 1964, assuming the absence of any dormant pre-existing condition capable of contributing to it; (4) Total percentage of permanent or other disability presently existing; (5) Percentage of disability, if any, attributable to a combination of (2) and (3) in excess of disability calculated by simple addition of (2- and (3); and (6) Percentage of present disability, if any, resulting from arousal of previously dormant conditions by the accident of July 7, 1964.

The report was in the form of a letter dated May 13, 1965, setting forth the case history obtained from the claimant and describing the examination and its results. X-rays showed “an advanced degenerative and hypertrophic lumbosacral disc inter-space with narrowing and mild degenerative changes.” The report concluded with an opinion that “this man appeared to have a degenerative lumbosacral disc * * *. I think he would do well to have a firm back support and to work at a light type of work for a time and should do well * * *. As of this date and this evaluation, this man would appear to have a 15 to 20 per cent permanent partial impairment expressed in terms of his entire body, which by way of history can be properly relagated [sic] to the injury” of July 7,1964.

Except for No. (4), total percentage of existing disability, Dr. Mitchell’s report did not give the specific items of information requested by the Board. The employer filed exceptions “because the same is not responsive to the questions asked.” The claimant moved for a review of the7 findings and for permission to take Dr. Mitchell’s deposition for the following reason: “Dr. Mitchell stated that the plaintiff should have a firm back support and do light type of work which means that he can not do his former job and his ability to do any job is impaired. Dr. Mitchell’s rating of 15 to 20 [per cent] permanent partial impairment to his entire body is a functional disability and not an occupational disability.” The Board sustained the latter motion and passed the employer’s exceptions to the merits.

When his deposition was taken Dr. Mitchell explained his use of the word “impairment” as follows:

“Well, this is to be distinguished from disability. Disability is to be considered in terms of the type work he had done. Impairment simply stated * * * implies that for ordinary living and expressing it in terms of his entire body he had a 15 to 20 per cent impairment. But it’s to be distinguished from disability. He could be totally disabled as of this date for heavy work, but still in my opinion have a 15 to 20 per cent partial impairment.”

Dr. Mitchell would not undertake to estimate the respective relationships of Profitt’s injury and pre-existing condition to this present impairment. He declined also to translate his estimate of functional impairment in terms of occupational disability, quite properly pointing out that this is not a medical function, but the responsibility of the fact-finding board. See Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78, 80 (1965). He closed by remarking that although Profitt’s physical impairment cannot be expected to change materially, he nevertheless has not attained his maximum expectable recovery from the standpoint of disability — that although he may now be totally disabled, that degree of disability is temporary and might well decline “with further time and supportive care.”

Since Dr. Mitchell did not answer all the queries put to him in the order of appointment the Board treated his report and testimony as inconclusive and not binding upon it, but still of probative value. It has been held, of course, that when the medical report made pursuant to KRS 342.121 is equivocal or inconclusive it is not binding. Cf. Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905, 907 (1964). But Dr. Mitchell’s report was not entirely unresponsive or inconclusive. In some important respects it was clear and to the point. One of these was the estimate of 15% to 20% per-manant partial impairment of Profitt’s overall physical capacities. Another was the implicit conclusion, later confirmed in his testimony, that this impairment resulted from the aggravation of a pre-existent degenerative condition by the injury.

KRS 342.12Í(4) provides that “no such findings of the physician shall be subject to review unless specific objections thereto shall be filed with the board,” etc. (Emphasis added.)

The sole ground upon which the employer objected was that the report was not responsive to the questions asked. This did not, in our opinion, authorize the Board to review the substantive content of such finding or findings as were in fact responsive to the order requesting the report. As we construe it, the review provided by the statute is limited to the particular questions raised by the objections. In this instance the “specific objection” made by the employer was not that any portion or phase of the report was erroneous but, in effect, that it was irrelevant.

On the other hand, the claimant’s motion, while directed specifically to the matter of whether the percentage of existing disability estimated by Dr. Mitchell was “functional” or “occupational,” actually amounted to a request for clarification through the taking of a supplemental deposition rather than a “specific objection” which would have been required in order to authorize a review.

It is our conclusion that regardless of the particulars in which Dr. Mitchell’s report was unresponsive or may have been equivocal or inconclusive, the clear and unequivocal findings he did make, and which were in fact responsive to the Board’s request, were never specifically objected to and were conclusive. Hence the estimates of disability given by the other medical witnesses should have been disregarded.

The comment in Kerns Bakery v. Hodges, Ky., 377 S.W.2d 88, 90 (1964), to the effect that if exceptions are filed the report is not controlling refers to specific objections. In that case the complaint filed in the circuit court alleged and the answer admitted that the bakery company had filed an application for review of the medical report “with specific objections thereto as provided by law.” Again, in the recent case of Kentucky West Virginia Gas Company v. Ritchie, Ky., 402 S.W.2d 704, 705 (1966), holding a KRS 342.121 medical report not conclusive, the application for review contained more than two typewritten pages of specific objections alleging substantive de-ficencies and inaccuracies in the report. It specified, for example, that the case history received by the doctor was not accurate or complete; that the estimate of pre-existing-disability was inconsistent with the evidence-of claimant’s having nevertheless actually engaged in his usual occupation; that there were certain inconsistencies in the report itself, and so on, for all of which reasons it contended that the doctor’s estimates of disability, both pre-existing and ultimate, and whether temporary or permanent, were erroneous and should be reviewed.

We do not hold that exceptions-need be so detailed as they were in the Kentucky West Virginia Gas Company case in order to qualify as “specific”. It seem» clear, however, that in its use of that word the statute reveals a legislative intent that something more than a perfunctory or general objection be required in order to open up the report for review, and that only those aspects of the report that are specifically called into question may be reviewed. In this last respect, for example, an objection to the effect that Dr. Mitchell had failed to answer questions 1, 2, 3, 5 and 6 could not have constituted a “specific objection” against his answer to question 4.

Since the appointed physician would not estimate the relative contributions of the two causative factors, the Board’s finding that they were equal is not an unreasonable conclusion. We are of the opinion, however, that the finding of occupational disability in a degree no greater than the percentage of functional impairment was unrealistic and clearly erroneous.

What Dr. Mitchell so aptly explained with regard to the distinction between “disability” and percentage of physical impairment has been recognized by this court on numerous occasions. See Congleton Brothers, Inc. v. Farmer, Ky., 399 S.W.2d 722, 723 (1966); Kilgore v. Goose Creek Coal Co., Ky., 392 S.W.2d 78, 80 (1965); Deby Coal Co. v. Caldwell, Ky., 383 S.W.2d 905, 906 (1964); Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, 731 (1963); E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 241, 84 A.L.R.2d 1102 (1960). In its opinion and award the Board noted that Dr. Mitchell had stated the degree of existing disability “to be a temporary total disability for heavy manual labor — as distinguished from a lesser (fifteen to twenty per cent) impairment for ‘ordinary living.’ ” He did not say directly and categorically that Profitt is presently 100% disabled for strenuous labor, but we agree that this was the only fair inference to be drawn from his testimony. Recall, for example, his recommendation of a “firm back support” and “light type of work” for the time being. Therefore, is not this also an unequivocal finding of the appointed physician and thus binding? We think it is.

So, in terms of occupational disability plain logic leads to the conclusion that at the time the evidence in this case was closed the claimant was totally disabled from the performance of the only kind of work he was qualified to do. The prognosis was indefinite. Dr. Mitchell said that with time he might improve. Stated another way, in time he may be less than 100% disabled. It seems to us that this prospect, on the basis of the testimony, is not firm enough to warrant a lesser finding at this time, but is a contingency designed to be covered by the reopening provision of KRS 342.125(1).

In Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78 (1965), the medical examiner appointed pursuant to KRS 342.121 estimated a coal miner’s functional disability at 25% but did not indicate that he was physically unable to resume his usual work. We held that a 25% functional impairment, without further elaboration, was not necessarily translatable into a 100% occupational disability. In fact, the examining physician testified that whether the man could return to his former work “would depend on many other factors.” By contrast, the situation here is comparable with Deby Coal Company v. Caldwell, Ky., 383 S.W.2d 905, 907 (1964), in that the physician’s statement to the effect that the claimant’s physical condition limits him to a “light type of work” admits of no other reasonable conclusion than that he is, for the time being at least, totally disabled.

We find the judgment of the circuit court to be correct in determining permanent total disability as a matter of law but erroneous in attributing it wholly to the injury. The Board’s finding that the injury and the pre-existing condition were equal factors should stand.

The judgment is affirmed in part and reversed in part with directions that the cause be remanded to the Workmen’s Compensation Board for entry of an award in conformity with this opinion.

All concur.


text:
    UNIVERSAL C. I. T. CREDIT CORPORATION, Appellant, v. MIDDLESBORO MOTOR SALES, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 9, 1968.
    Robert J. Watson, William A. Watson, Watson & Watson, Middlesboro, Bert Combs, Julius Rather, Lexington, for appellant.
    J. C. Helton, Pineville, Edward M. Dooley, Middlesboro, Robert Berger, Pineville, E. P. Nicholson, Jr., Middlesboro, for ap-pellees.
   OSBORNE, Judge.

Middlesboro Motor Sales, Incorporated, one of the appellees herein, was engaged in the business of selling new and used cars and held the Chrysler-Plymouth franchise for Middlesboro, Kentucky. The corporation had been in business for several years. It was owned by James Sharp, also an appellee herein, and president of the corporation. His wife, Mary Sharp, worked at the business and was secretary-treasurer of the corporation. Edward Mason was chief salesman and vice-president of the corporation. Mrs. Sharp and Mason are also appellees herein. The motor company had a wholesale financing arrangement wtih Universal C. I. T. Credit Corporation, appellant herein, under which C. I. T. would advance money on all new cars and on some used cars for the motor company. As part of the agreement, the motor company was to use cars secured under the agreement only for the purpose of showing and demonstrating and were to pay the company whenever such cars were sold. To protect their investment C. I. T. made frequent but irregular car checks at the premises to insure that the covered cars had not been sold without the proceeds being reported.

On January 23, 1964, a car check was made and it was discovered that four cars were missing. Mr. Sharp was not present, and Mrs. Sharp issued a check in the amount of $10,402.31 which was the amount of the wholesale loan on these four cars. On January 27, both the motor company and C. I. T. learned that this check was being returned by the bank for insufficient funds. During the next four days C. I. T. kept asking for payment but did not demand it or threaten suit. The motor company kept insisting they would try to raise it although they didn’t promise to. Mr. Sharp, who had been sick, did not attempt to contact C. I. T. and did not come to the business. However, he resumed selling cars from his home. Most of the major receipts of the company during this period were turned into cash and turned over to Mr. Sharp' who held them in his pants pocket ostensibly to raise enough money to pay the returned check. However, this intention was never communicated to C. I. T. On January 30, the company offered to pay C. I. T. some $3,000, part of which was for cars not included in the $10,402.31 check, and turn over the title certificates on the cars covered by loans. C. I. T. neither accepted nor refused this offer. The same day they learned that a check which had been given them for payment of their loan on another car had been stopped, and apparently were told that a blanket stop payment order on all checks issued to C. I. T. had been made by Mrs. Sharp. C. I. T. then brought a claim and delivery, action for all the cars held by the company. Possession of these cars was taken the same day by the sheriff. Some time later C. I. T. instituted an action for debt and attached the same cars and the bank accounts of the corporation. The motor company filed a counterclaim in this action, and recovered a judgment of $100,000. The validity of this judgment is the chief question before the court in this appeal. However, it is not the only issue. Two of the cars seized under the claim and delivery action were claimed to be owned by Mary Sharp and Edward Mason individually. They had each given a lien on these cars to one of the local banks. The banks intervened in the claim and delivery action claiming their lien was superior to that of C. I. • T. On this issue the trial court directed a verdict for the banks. C. I. T. is appealing from this determination.

The motor, company apparently bases its claim on two theories. The first is that C. I. T. had no right to institute action at that time because their previous conduct waived the requirement that payment be made for each car at the time it was sold, and that their contention of insecurity was unfounded, or at least at that time they did not have sufficient information to feel insecure. This contention of waiver is based on the fact that in the past C. I. T. had accepted payment for cars at the time of the car checks, and they should have and must have realized that all of these cars were not sold immediately before the check. However, C. I. T. showed that many cars had been paid for at times other than the car checks. Mr. Sharp testified that one of the managers of C. I. T. had asked him to pay more promptly. To support its contention the motor company cites KRS 355.2-208 on the effect of a course of conduct on a contract. This section deals with sales only. As to secured transactions the code apparently does not contain a rule for varying the contract by performance. In any event, the contract in question contains a provision covering this situation. It provided that “waiver of any default is not waiver of any subsequent default.” This court has previously upheld this provision in a conditional sales contract which is also a secured transaction, and there seems to be no reason not to follow it here. Home Finance Company v. Frazier, Ky., 380 S.W.2d 91. The motor company cites no Kentucky precedent to the contrary, nor have we located any. There seems to be no reason not to apply the provision in this type contract. In any event, the course of conduct theory would only relieve the motor company of the obligation to pay prior to the car checks. It would not relieve them of a duty to pay not later than the car checks. Therefore, they were in default when they gave a bad check for the cars.

The second theory is that even though C. I. T. was within its rights under the contract in bringing the claim and delivery action, the circumstances surrounding it show a lack of good faith and it therefore breached the condition required in enforcement of rights under a contract by the Commercial Code. This requirement, KRS 355.1-203, is “Every contract or duty within this chapter imposes an obligation of good faith in its performance or enforcement.” The conduct relied upon as a breach of this requirement is that C. I. T. led the company to believe they were being given time to raise the money by first not demanding immediate payment or threatening to take action if immediate payment was not forthcoming, and secondly by accepting two checks in partial payment, one for $1000 and another for $950. The motor company later stopped payment on the $950 check. This contention is not based on any specific promise of time, but simply on the failure to demand immediate payment or to refuse anything less than full payment. The legal basis for this type of claim is found in Skeels v. Universal Credit Corporation, 3 Cir., 335 F.2d 846 (1964). That case also involved a car dealer and the same finance corporation. However, in that case, C. I. T. had promised through a local manager to make a substantial loan to the dealer. The dealer relying on this paid other bills and let himself get very short on cash. C. I. T. then refused the loan, made a car check, and found various cars missing and when he was unable to pay took possession of the cars by self-help. The facts in this case are much weaker. There was no specific assurance, and the company has not shown that they relied on any specific assurances to their detriment. Under these facts it cannot be said that C. I. T.’s action amounts to bad faith. The motor company has failed to make out a case on which relief could be granted. The trial court should have granted C. I. T.’s motion for a directed verdict on the dealer’s claim for damages.

UCIT V. BANKS

We now come to the question of priority of liens between the two banks and C. I. T. on the cars which Mary Sharp and Edward Mason purchased. The lower court directed a verdict for the banks on this issue. The facts in this issue are fairly clear. Early in December, Mason went to the Commercial Bank to borrow money to buy a new Valiant from the motor company. At their request he procured a signed and notarized sale contract from the motor company to him, which reserved a security interest in the motor company. The motor company then assigned this lien to the bank and the bank made out a draft to the motor company for the wholesale price of the car. This draft was deposited to the account of the motor company. Mason kept this car at the place of business, with dealer’s tags on it, and accounted for it on car checks. C. I. T. did not realize that it had been sold until shortly before the claim and delivery action was brought. The motor company did not at any time pay or offer to pay the wholesale loan on this car which was owing to C. I. T. Mason did not present the bank with a registration certificate, indeed did not obtain one in his name until January 30.

The Mary Sharp transaction occurred during the final hectic week. She went to the bank on Monday, January 25, and applied for a personal loan of $2000 to be secured by a 1963 Plymouth she said she owned. The car in question had been traded in to the company. C. I. T. had advanced $1750 on this car and a trust receipt evidencing this advance was signed by Mary Sharp herself. On January 27 she had a registration receipt issued to herself. She took this registration receipt to the bank where she gave a security interest on the car and obtained the $2000. She testified that she gave' her husband $1000 from this and traded in a car she owned which was worth $750. Her husband verified the transfers and the ownership of the traded-in car. C. I. T. offered evidence that the car she claimed to have traded was registered in the name of the motor company. Sometime on January 30 the motor company through their accountant offered to pay C. I. T. for certain cars. One of these was the Mary Sharp vehicle. This was after the stop-payment order to the bank on checks to C. I. T. and this offer was made in lieu of paying anything else at the time.

Though the entire history of these two transactions- is riddled with questionable behavior on the part of Mary Sharp and Edward Mason, it is nowhere shown that the banks knew or should have known of anything wrong.

The sort of transactions involved herein is not uncommon among the types of businesses involved. Generally with this type of inventory financing, the lien of the wholesale financer is automatically extinguished upon sale. This is under KRS 355.9-307 which provides that “A buyer in ordinary course of business (as defined in KRS 355.1-201(9)) * * * takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence.” KRS 355.2-403(2) provides that where goods are entrusted to a dealer, he can give good title, but this section again requires that the one to be protected must be “a buyer in ordinary course of business.”

Considering these sections alone, the banks prevail only if Mary Sharp and Edward Mason were “buyer in ordinary course of business” and if they would have prevailed against C. I. T. The code sets out very specific requirements for such a person. KRS 355.1-201(9), the definitional section provides, “(9) ‘Buyer in ordinary course of business’ means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind * * Obviously, Mary Sharp and Edward Mason do not meet these requirements. There is a definite question about their “good faith” in this situation. The Pennsylvania Supreme Court reached this result under similar facts in Taylor Motor Rental, Inc., v. Associates Discount Corp., 196 Pa.Super. 182, 173 A.2d 688 (1961).

However, here we have additional facts which in our opinion will have to change the result. In the case at bar the contract provided, the motor company “shall have liberty to exhibit and to sell each chattle in the ordinary course of trade and for the respective Principal Obligations shown in the respective statements.” (Emphasis added). Therefore, the lien would be released under KRS 355.9-306(2) which provides: “Except where this Article otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless Ms action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.” (Emphasis added). The effect of this provision of the code and the provisions of the security agreement is to release the lien. The banks’ evidence shows that sales to officers and employees were common and usual among car dealers in the area. From this evidence we conclude that this sale was in the ordinary course of trade. They further presented evidence that the individuals involved paid the motor company the wholesale price of the cars which is the respective Principal Obligations referred to in the security agreement. This evidence was not seriously disputed, therefore, the judge was not clearly erroneous in directing a verdict for the banks. We do not hereby decide the issue of what would happen if the security agreement did not allow such sales. It could be that the section above referred to is broad enough to protect a bank, which with no knowledge of violation of the agreement, loans money in this type situation in reliance on the apparent authority of the retailer to make the sales. The official annotation to the code and the case of Clovis National Bank v. Thomas, 77 N.M. 554, 425 P.2d 726 seem to indicate that this might be the result under such a factual situation.

For the reasons stated above, the judgment for Middlesboro Motor Sales against C. I. T. is reversed and on remand the trial judge should enter a judgment n. o. v. for C. I. T. The judgment for the ap-pellee banks against C. I. T. is affirmed.

All concur.

      . This term appears to be deceptively like “buyer in the ordinary course of business” referred to above. However, “buyer in the ordinary course of business” is a specifically defined term in the code, and a reading of its definition shows that it specifically imposes several requirements in addition to a sale being in the ordinary course. Por a definition of sales “in the ordinary course of trade” when not specifically defined otherwise see Stemmons, Inc., v. Universal C. I. T. Credit Corp., Okl., 301 P.2d 212 (1956). In that case, the court looked strictly to proof that the acts were common and ordinary practice among local businesses of the same type.


author: PER CURIAM.

text:
    The STATE of Texas, Petitioner, v. Anastacio VARGAS, Respondent.
    No. B-591.
    Supreme Court of Texas.
    Feb. 7, 1968.
    Rehearing Denied March 6, 1968.
    Crawford C. Martin, Atty. Gen., Monroe Clayton, Asst. Atty. Gen., Austin, for petitioner.
    Rizik & Lieck, Michael Rizik, San Antonio, for respondent.
   PER CURIAM.

In the trial of this suit by Vargas against the State of Texas for compensation for wrongful imprisonment, brought under and pursuant to the provisions of art. 1176a, Vernon’s Texas Penal Code, the State objected to the admission in evidence and consideration by the court of certain recitations in Vargas’ pardon proclamation signed by the Acting Governor and filed in the office of Secretary of State in 1929.

The court of civil appeals held that if admission of the recitations was error, the error was harmless. 419 S.W.2d 926. We are of the opinion that admission of the recitations was not error and we do not reach the problem of harmless error. Accordingly, the application for writ of error is refused, no reversible error. Rule 483, Texas Rules of Civil Procedure.

Article 957, Texas Code of Criminal Procedure, in force in 1929 when Vargas was pardoned, required the Governor when granting a pardon to “file in the office of Secretary of State his reasons therefor.” The Code of Criminal Procedure was revised in 1965 by the same Legislature which enacted art. 1176a, and art. 48.02 of the Revised Code is identical with art. 957 of the former code.

The recitations contained in the Vargas pardon proclamation to which the State objected on the ground that they were hearsay and incompetent as evidence, are “reasons” given by the Governor for granting the pardon.

With full knowledge of the statutory requirement that the Governor give his “reasons” for granting a pardon, the Legislature provided in sec. 5 of art. 1176a that in a suit for compensation brought under the statute “The record of the trial at which the person bringing suit * * * was convicted, and the pardon or proclamation issued to him by the Governor are admissible as evidence * * * By this provision the Legislature created an exception to the hearsay rule of exclusion and made the “reasons” given by the Governor in a pardon proclamation competent evidence on any issue to which it is relevant, including the issue of guilt of the person pardoned of the offense for which he was imprisoned.


author: NORVELL, Justice.

text:
    Frank K. MEYER, Individually, etc., et al., Petitioners, v. TEXAS NATIONAL BANK OF COMMERCE OF HOUSTON, Administrator, Respondent.
    No. B-268.
    Supreme Court of Texas.
    Feb. 14, 1968.
    Rehearing Denied March 13, 1968.
    Hirsch & Westheimer, Charles F. Cock-rell, Jr., Andrews, Kurth, Campbell & Jones, Palmer Bradley, Hall E. Timanus and Brian E. O’Neill, Houston, for petitioners.
    Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, W. J. Knight, Gail Whitcomb, Fred Parks, Bohn Phillips, Houston, for respondent.
   NORVELL, Justice.

The trial court on motion for summary-judgment held that the wills of Joseph F. Meyer, Jr. and his wife, Alpha Genevieve Meyer, were mutual wills based upon an oral contract. Both sides had filed motions for summary judgment. The motion of the executors of the Joseph F. Meyer, Jr., estate, Frank K. Meyer and the guardian and guardian ad litem of the estate of George B. Meyer, non compos mentis, was overruled. The motion of Texas National Bank of Commerce of Houston, administrator of the estate of Alpha Genevieve Meyer, was granted and judgment rendered against the Joseph F. Meyer, Jr. estate, Frank Meyer and George B. Meyer, impressing a trust upon an undivided two-thirds interest of the estate of Joseph F. Meyer, Jr. in favor of the heirs at law of Alpha Genevieve Meyer. The Court of Civil Appeals affirmed. 412 S.W.2d 957.

Being of the tentative opinion that a recovery upon the oral agreement was precluded by the statute of frauds, Article 3995, subd. 4, we granted writ of error. After full argument and upon plenary examination of the record, our tentative opinion has been confirmed. Accordingly, the judgments of the courts below are reversed and judgment here rendered sustaining the motion for summary judgment filed by petitioners and overruling the motion of respondent and decreeing that respondent take nothing of petitioners. Rule 505, Texas Rules of Civil Procedure. We base our decision upon the statute of frauds and hold as a matter of law that the summary judgment proofs do not disclose circumstances such as would in equity avoid the bar of the statute.

The facts pertinent to our decision may be briefly stated as follows:

Joseph F. Meyer, Jr. and Alpha Genevieve Meyer were husband and wife, having married on January 10, 1909. They had no natural born or adopted children. On January 10, 1944, Alpha Genevieve Meyer executed a holographic will in which she appointed her husband independent executor of her estate and provided that after all just debts had been paid, her “entire estate^ of every kind and character, real, personal and mixed and wheresoever situated,” should go to her husband in fee simple. The will contained no provision for the vesting of the property in the event Joseph F. Meyer, Jr. should predecease his wife.

Some six months later, on July 21, 1944, Joseph F. Meyer, Jr. executed a will before two attesting witnesses in which he designated his wife to serve as independent executrix of his estate and stated that it was his will that “all of the property, both real, personal and mixed, that I may die seized and possessed of, after payment of my just debts, together with all expenses incident to the probating of this will, shall pass to and vest in fee simple in my beloved wife Alpha G. Meyer, * * This will like that of Alpha Meyer contained no provision relating to the testator’s property in the event his wife should predecease him.

In neither of the 1944 wills executed by Mr. and Mrs. Meyer was there a written provision or statement to the effect that said wills had been executed in pursuance of an agreement between them. The estates of both consisted primarily of real property, and there is no contention here that Article 3995, subd.'4, is not applicable.

Some eighteen years later, on March 13, 1962, Joseph F. Meyer, Jr. executed another will which revoked his 1944 will and provided that all his property, real, personal and mixed, should pass to his wife and to his brothers, George B. Meyer and Frank K. Meyer, in equal shares of one-third each. The three devisees in this will were designated as independent executors. On May 18, 1962, some two months after the execution of this later will, Joseph F. Meyer, Jr. died, and on July 3, 1962, the later will was admitted to probate. Shortly thereafter, Frank K. Meyer and George B. Meyer took their oaths as executors.

On June 15, 1962, Alpha Meyer died and Texas National Bank of Commerce of Houston is now serving as administrator of her estate.

Despite the circumstance that the 1944 wills of Mr. and Mrs. Meyer were executed upon different dates and neither will alluded to or mentioned a contractual arrangement as being extant between them, we shall assume for the purposes of this opinion that the wills were executed in pursuance of an oral agreement. This assumption, however, should not be construed as an indication that in our opinion the existence of a contract between Mr. and Mrs. Meyer was established as a matter of law and that there was no jury question involved in the determination of such issue. Although some discussion of the summary judgment proofs is entailed in stating the basis of our holding, it is unnecessary for us to pass upon the existence of a contract, vel non.

The controlling question in the case comes down to this: Is the present case distinguishable upon the facts from our recent holding in Kirk v. Beard? We hold that it is. From the report of that case, 162 Tex. 144, 345 S.W.2d 267 (1961), it appeared that two brothers, J. E. Sexton and W. H. Sexton, “orally agreed that they would make mutual and reciprocal wills. [They] executed identical wills devising each to the other his undivided half interest in all lands owned by them in Johnson, Hill and Somervell Counties, together with all personal property situated thereon; and leaving to the nieces (plaintiffs in the case), share and share alike, the remainder of his property, both real and personal.” W. H. Sexton died on September 30, 1952. His will was probated and his one-half interest in the lands passed to his brother in accordance with the terms of the will. Thereafter, J. E. Sexton attempted to make a different disposition of the property than that contained in the wills of November 23, 1948, and litigation resulted shortly after J. E. Sexton died.

In Kirk v. Beard, property passed from one of the contracting parties to the other, and it was held that it would be a fraud to permit the one who had received property from the other party to thereafter repudiate the contract. An intervention by equity was hence deemed supportable.

In the present case, no property passed from Alpha Genevieve Meyer to her husband under her will allegedly executed in pursuance of a contract. If we assume an oral agreement to execute mutual wills, does the making of a will in accordance with the agreement and keeping it potentially operative by not revoking it constitute such performance as will render the oral contract enforceable in equity notwithstanding the statute of frauds? To justify such intervention and the setting aside of a legally enacted statute, it is settled that there must be something more than a mere wrong or breach of contract. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216 (1916); Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624 (1938).

The parties have not cited nor does our research disclose a case by this court which controls the present situation. There is conflict among the cases decided in the American jurisdictions as to whether Mrs. Meyer’s performance of the oral contract by making her will of January 10, 1944 (and not revoking it) would be sufficient to avoid the bar of the statute.

In Turnipseed v. Sirrine, 57 S.C. 559, 35 S.E. 757 (1900), it appears that Susan Turnipseed and her niece, Viola Neblett, entered into an oral agreement to make mutual wills, leaving the bulk of the property of the one to the other. Susan Turnipseed made a will in accordance with the agreement, but Viola Neblett made a different disposition of her property and then predeceased Susan Tur-nipseed who sued Viola Neblett’s executor, George W. Sirrine, to enforce the oral agreement. She prevailed despite the statute of frauds upon the theory of partial performance. Although no property had ever passed under the will of Susan Turnip-seed to Viola Neblett, the court nevertheless reasoned that Mrs. Neblett had received a benefit by reason of Susan Turnipseed’s execution of a will in accordance with the oral agreement. An analogy was drawn between the execution of a will and the procurement of a life insurance policy. The South Carolina court said:

“If the plaintiff (Susan Turnipseed) had died before Mrs. Neblett, she would have received at least as much as $10,000 from the plaintiff’s estate. She therefore had the benefit of what might be termed the ‘risk’ from 1892 until 1897. If Mrs. Neblett had taken out a policy of insurance on her aunt’s life for $10,000, it would have cost her a large sum of money, if any company would have taken such a risk, as she was then very old and infirm. Yet Mrs. Neblett received the benefit, during that time, of what was equivalent to a policy for that amount, or even more. It will not do to say that she received no benefit, as the plaintiff did not die, any more than it would lie in the mouth of a man who paid his premium of insurance with a note to say there was a failure of consideration, as he did not die, or his property was not burned. * * * ”

In Brown v. Webster, 90 Neb. 591, 134 N.W. 185, 37 L.R.A., N.S., 1196 (1916), the Supreme Court of Nebraska, also upheld an oral agreement to make a will in a suit by a surviving widow against her deceased husband’s estate. The force of this decision, however, is largely destroyed by the subsequent decision of the Nebraska court in Kimmel v. Roberts, 179 Neb. 8, 136 N.W.2d 208 (1965), in which it was said:

“Such a discussion of the evidentiary factors was outside the issue before the court (in Brown v. Webster) and constitutes pure dicta. Nevertheless, the obiter dictum contained in the opinion lacks the force of an adjudication. Notwithstanding this fact, the opinion is relied upon from time to time to sustain oral contracts embraced within the statute of frauds which are not in compliance with the law of this state as declared by the cases cited in disposing of the present litigation. As a clarification of the applicable rules relating to the enforcibility of oral contracts embraced within the statute of frauds, we disavow and reject the statements in the opinion which are in conflict with the rules announced in the present opinion.”

The Austin Court of Civil Appeals, in Larrabee v. Porter, 166 S.W. 395 (1914, writ denied), referred to and discussed Brown v. Webster, but the situation in Larrabee was similar to that of Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267 (1961), in that the plaintiffs were seeking to enforce an oral agreement to make mutual wills entered into between Mr. and Mrs. G. W. Larrabee. Mutual wills were made, and Mrs. Larrabee died without revoking her will. Thereafter, Mr. Larrabee remarried and made a subsequent and conflicting will. The court said:

“We conclude that since the will was contractual as well as testamentary, under all the facts of this case that the husband was estopped and precluded from disregarding the same, and therefore his attempted revocation was illegal and void.”

The Supreme Court of Washington, in Fischer v. Soames (In re Fischer’s Estate), 196 Wash. 41, 81 P.2d 836 (1938), enforced a parol agreement to make mutual wills at the suit of the survivor against the estate of his deceased wife. The greater part of the opinion is taken up with a discussion of the sufficiency of the evidence to support a finding that an oral agreement to make mutual wills had been made. The discussion of the statute of frauds is extremely brief and contains no citation of supporting authorities. The court simply said:

“As to the effect of the statute of frauds, we need only state what has already been suggested by the remarks of the trial court; there was full and adequate performance of the contract by the respondent, sufficient to take it without the restrictions of the statute. Moreover, there was, initially, full and adequate performance by Mrs. Fischer herself, and she could not thereafter recede from the contract, even if she had desired to do so.”

In re Fischer’s Estate should be considered in the light of In re Edwall’s Estate, 75 Wash. 391, 134 P. 1041 (1913), McClanahan v. McClanahan, 77 Wash. 138, 137 P. 479, Ann.Cas.1915A, 461 (1913), and Allen v. Dillard, 15 Wash.2d 35, 129 P.2d 813 (1942), as these cases clearly indicate that something more than the mere execution of a will in pursuance of an oral agreement is required to take the case out of the statute on the theory of total or partial performance.

We regard the case of Stump v. Harold, 125 W.Va. 254, 23 S.E.2d 656 (1942), as being clearly distinguishable from the situation now before us. In the Stump case, property actually passed to Mrs. Stump through the medium of two deeds which along with mutual wills executed by Dr. and Mrs. Stump were part of a single transaction. Here again is a case presenting a situation closely analogous to that of Kirk v. Beard, supra, in that as a result of the arrangement, property passed to Mrs. Stump and hence she was bound by the contract she had made, and her destruction of the contractually supported will could not operate to destroy the rights of Dr. Stump under his agreement with her.

The majority of the American decisions seem to support a rule contrary to that stated in Turnipseed v. Sirrine and cases of similar import.

In Gould v. Mansfield, 103 Mass. 408, 4 Am.Rep. 573 (1869), the plaintiff sued to compel Nancy Gould’s executors to deliver the testatrix’s estate to the plaintiff on the theory that she and Nancy Gould had entered into an oral agreement under which each agreed to make a will leaving all her real and personal estate to the other. The plaintiff alleged both she and Nancy Gould had made such wills but thereafter Nancy changed her will and died leaving her property to others. The statute of frauds was set up as a defense and partial performance relied upon to defeat such defense. The Supreme Judicial Court of Massachusetts said:

“There has been no part performance which amounts to anything. The plaintiff says she made a will devising her property to Nancy. But such an instrument was ambulatory, and might have been revoked by various acts, or by implication of law from subsequent changes in the condition or circumstances of the testator. Gen.Sts., ch. 92, § 11. The plaintiff’s property is still, as it has always been, in her own hands, and subject to her own control.”

In Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010 (1952), the Supreme Court of Wyoming considered a similar situation to that present in Gould v. Mansfield. The plaintiff, Canada, sued Ihmsen, the administrator with will annexed of the estate of Mrs. Wiseman M. Hill, deceased, and Samuel W. Scott. He alleged that he and Mrs. Hill owned adjoining lots in Laramie, Wyoming, and entered into an oral agreement under which each agreed to make a will, leaving at death, the property so owned by them respectively to the other; that such wills were executed, and thereafter Mrs. Hill, without notice to him, revoked such will and devised her property to Samuel W. Scott. Canada sought enforcement of the oral contract. The trial court found that the oral agreement had been made but denied plaintiff’s requested relief because of the statute of frauds. The Supreme Court affirmed. That court pointed out that there were some decisions holding that a contract such as that alleged by Canada could not be enforced except that the parties were related to each other, but did not base its decision upon this circumstance. The court among other holdings decided that the statute of frauds precluded a recovery for plaintiff. It was pointed out that most of the cases cited by plaintiff were cases “where one of the parties making a mutual will died, leaving his will in force and effect, and where the survivor who received the benefits under the will of the party deceased attempted to revoke his will to the detriment of third parties who were benefitted under both wills.”, i. e. a Kirk v. Beard situation. The court placed considerable emphasis upon the circumstance that Canada survived Mrs. Hill and that the only performance claimed under the oral agreement was the execution of mutual wills. The court said:

“A similar situation is disclosed in the case of Gould v. Mansfield, supra [103 Mass. 408, 4 Am.Rep. 573,] in which the court said merely: ‘There has been no part performance which amounts to anything.’
“A like situation, too, was disclosed in the case of Hale v. Hale, supra, [90 Va. 728, 19 S.E. 739] supra, and the court said: ‘The equitable doctrine of part performance is also invoked; but as to this, we may say, as was said in a similar case in Massachusetts, that “there has been no part performance which amounts to anything.” ’ ”

The court then quoted from the opinions in In re Edwall, 75 Wash. 391, 134 P. 1041 (1913), and Gooding v. Brown, 35 Hun. 148 (N.Y.Sup.Ct.1885), as supporting its decision on the point. McClanahan v. McClanahan, 77 Wash. 138, 137 P. 479, Ann. Cas.1915A, 461 (1913), is also cited, and the apparently contrary cases of Brown v. Webster, 90 Neb. 591, 134 N.W. 185, 37 L.R.A., N.S. 1196 (1912), and Woods v. Dunn, 81 Or. 457, 159 P. 1158 (1916), are discussed.

The opinion in the Canada case contains a rather detailed consideration of the authorities on the point decided between 1869 (Gould v. Mansfield) and 1925, and we need not further dwell upon the cases discussed in that opinion.

In 1966, the Supreme Court of Wisconsin considered the case of In re Rogers’ Estate (Chandler v. Estate of Harry A. Rogers), 30 Wis.2d 284, 140 N.W.2d 273. The facts in the case were stipulated. Annie Rogers died in 1961 and devised her one-half interest in two parcels of land to her husband, Harry A. Rogers. In 1962, Rogers and Bertha Chandler, the owner of the remaining one-half interest (his wife’s sister), orally agreed that they would execute mutual wills each devising his or her interest in the lots to the other. Such wills were executed but no mention of an agreement was made therein. Rogers after-wards changed his will and left the property to a third person. Bertha Chandler sued on the oral agreement but recovery was denied by the trial court. In affirming on the ground that a sufficient perform-anee to remove the bar of the statute of frauds, had not been shown the court said:

“An oral contract to devise real estate falls within the statute of frauds, sec. 240.08, Stats., and is void unless appellant’s execution and nonrevocation of a will in accordance with the agreement constitutes sufficient part performance so as to remove the case from the purview of the statute. Although this is a question of first impression in Wisconsin, the all but unanimous rule in other jurisdictions is that the mere fact that the plaintiff has made a will which is not revoked at the time of the death of the other party does not amount to part performance. (See generally, 49 Am.Jur. Statute of Frauds, p. 820, sec. 522 ; 97 C.J.S. Wills § 1367f(3), p. 313; Sparks, Contracts to Make Wills, p. 47; Maloney v. Maloney (1935), 258 Ky. 567, 80 S.W.2d 611; Busque v. Marcou (1952), 147 Me. 289, 86 A.2d 873, 30 A.L.R.2d 1411; Gould v. Mansfield (1869), 103 Mass. 408, 4 Am.Rep. 573; Rookstool v. Neaf (Mo.1964), 377 S.W.2d 402; First National Bank of Nevada v. Friednash (1956), 72 Nev. 237, 302 P.2d 281; In re Wheeler’s Estate (1937), 164 Misc. 441, 299 N.Y.S. 945; Hagen v. Schluchter (N.D.1964), 126 N.W.2d 899; Hale v. Hale (1894), 90 Va. 728, 19 S.E. 739; In re Edwall’s Estate (1913), 75 Wash. 391, 134 P. 1041; McClanahan v. McClanahan (1913), 77 Wash. 138, 137 P. 479; Ganada v. Ihmsen (1925), 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010.) As the Massachusetts Supreme Judicial Court said nearly 100 years ago: ‘There has been no part performance which amounts to anything.’ The theory underlying the part performance rule is that equity will not permit the statute, which was designed to prevent fraud, from being used as an instrument of fraud, and acts relied on as a part performance ‘must be such as change the plaintiff’s position and would result in a fraud, injustice, or hardship upon him, if the contract were not executed or enforced.’ Appellant in the present case has not changed her position in any way, acted to her detriment, suffered any loss or injury, been placed in a situation from which she could not retreat without prejudice to her rights existing at the time of the agreement, nor been defrauded by relying on the oral agreement. The most that has happened is that her expectations have been smashed. This is not ‘part performance which amounts to anything’ and elevates their agreement beyond the statute.”

Respondent argues that Mr. Meyer’s action in executing the 1962 will without notice caused his wife to suffer emotional distress when she gained knowledge of the revoking will upon the death of her husband. She had executed a will and codicil prior to 1944 in which she had left the bulk of her property to her relatives and had recited that she was not leaving anything to her husband’s relatives as they had been well provided for by the estate of Joseph F. Meyer, Sr., her husband’s father. It may be inferred that she wanted none of her property to go to her husband’s brothers. After Mr. Meyer’s death, Mrs. Meyer held some conversations with a lawyer but perhaps because of illness and emotional factors, she never managed to execute a new will. However, she evidently knew that if her husband predeceased her, she would have to execute a new will unless she wished the statute of descent and distribution to control as her 1944 will contained no bequest or devise over in case Mr. Meyer were not living at the time of her death.

The petitioners point out that the 1944 will was not changed until 1962 when both Mr. and Mrs. Meyer were advanced in years; that a goodly portion of Mrs. Meyer’s property had been given to her by her husband and he may have deemed that one-third of his property would be ample for her continued support and that his brothers should have the remaining two-thirds.

However one may regard the merits of these “equity” arguments urged by the contending parties, the premises advanced do not supply a sound foundation upon which to base a conclusion or rule of law suitable for the devolution of property. Emotional consequences attendant upon the breach of a contract will obviously vary from person to person, depending upon numerous factors, such as natural disposition, condition of health and the like. Then there is the circumstance that the recollection of witnesses as to past conversations with deceased persons regarding testamentary intentions may be most unreliable. Generally, there is no way by which such testimony may be contradicted for as the usual thing such conversations do not take place in the presence of third persons, and hidden motives of witnesses are often difficult to bring to light. It is not asserted that those making affidavits in support of respondent’s motion for summary judgment were prompted by improper motives, but this opinion is not being written alone for this particular case, and in discussing the action of some jurisdictions in providing that a contract to make a will must be in writing, an important evidentiary factor is mentioned in 1 Bowe-Parker: Page on Wills, § 10.10:

“Written evidence is more necessary in contracts of this sort than in the classes of contracts covered by the ordinary provisions of the statute of frauds. An unscrupulous claimant, who can secure perjured evidence, can set up and prove an oral contract. The death of the prom-isor makes it impossible to contradict the testimony to the effect that he made such promise; and the fact that the transaction never happened makes it all the harder to disprove it if the guilty parties have been careful to make their story fit the possibilities of time and place. In spite of the fact that it also operates to the detriment of an ignorant or confiding promisee, legislation of this sort should be adopted generally.”

While Texas and many other states have not adopted a statute which proscribes all agreements to make wills which are not in writing, yet the tendency has not been to weaken or emasculate the statute of frauds by recognizing numerous exceptions relating to performance of an oral agreement. In this case, we have the making of a will and the non-revocation thereof by Mrs. Meyer and nothing more. This is generally considered insufficient and the performance exception restricted to the situations similar to that disclosed in Kirk v. Beard. For example, in Hagen v. Schluchter, 126 N.W.2d 899 (N.D.1964), the court said:

“In this case it is also urged that an oral contract has been established and that the record shows sufficient performance to remove the oral contract from the operation of the statute of frauds. In the case of O’Connor v. Immele, 77 N.D. 346, 43 N.W.2d 649, we held that where the survivor of the makers of reciprocal wills, pursuant to an oral irrevocable contract, presents the will of the deceased maker for probate and accepts the benefits thereof, there is a sufficient performance of the oral contract to remove it from the operation of the statute of frauds.
“In the instant case, however, as has been heretofore pointed out, Adolph left no estate which could pass by his will. Elizabeth, upon Adolph’s death, succeeded to his interest in all of the property held by them in joint tenancy by virtue of the instruments creating the joint tenancies. In effect Adolph’s will became a nullity. It was not filed or offered for probate and Elizabeth received no benefits from it. There is therefore not a performance here which meets the standard set in O’Connor v. Immele, supra. It is contended, however, that a lesser performance is sufficient and that the execution of the wills alone will suffice.
“Corpus Juris Secundum states the rule as follows:
“ ‘An oral agreement for the making of mutual wills is not enforceable in equity where nothing more has been done or has occurred than the execution of wills, particularly where they do not refer to each other or to the agreement, since there is not such part performance as to take the agreement out of the statute of frauds.’ 97 C.J.S. Wills § 1367, p. 313.”

Similarly, in American Jurisprudence, it is said:

“In most of the cases which deal with mutual or reciprocal wills and hold that the statute of frauds has been satisfied, it appears that one of the parties to the contract dies, leaving his will in effect, and that the surviving party accepts the benefit under the will of the decedent.” 49 Am.Jur. 820, Statute of Frauds, § 522.

Language practically identical with the above is found in Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010 (1925), followed by the citation of some thirteen decided cases including Larrabee v. Porter, 166 S.W. 395 (Tex.Civ.App.1914, writ denied), and Moore v. Moore, 198 S.W. 659 (Tex.Civ.App.1917, writ denied).

The public policy of this state, as declared in the leading case of Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216 (1921), is in accord with the above and it was clearly stated that, “[T]o warrant equity’s ‘breaking through the statute’ to enforce such a parol contract, the case must be such that the nonenforcement of the contract — or the enforcement of the statute — would, itself, plainly amount to a fraud.” As heretofore pointed out and demonstrated by the Hooks v. Bridgewater opinion, the mere breach of a contract does not amount to the species of fraud which will justify the disregarding of the statute. In this court’s opinion, written by Chief Justice Phillips, it was said:

“Regardless of the disposition of other courts to engraft other exceptions upon a plain and salutary statute which had its origin in the prolific frauds and perjuries with which parol contracts concerning lands abounded, this court has always refused to further relax the statute. We think the wisdom of its course has been justified.
“Equity has no concern in such cases except to prevent the perpetration of a fraud. That is the only ground that can justify its interference. Otherwise, the exercise of its jurisdiction for the practical annullment of the statute would be but bare usurpation. It is not to remedy a possible loss to the purchaser that it may intervene. It is the operation of a plain and valid statute that is to be relieved against. For this reason eminent judges have doubted whether under any circumstances courts of equity had originally the power to enforce such parol agreements in open disregard of the statute, and have questioned the wisdom of departing from its certain rule however plausible the pretext. The statute is valid; it is imperative; it is emphatic. Its simple requirement that contracts for the transfer of lands be in writing, imposes no hardship. The effect of its relaxation in what seemed to the courts hard cases has produced abuses almost as great as would have its rigorous enforcement, in the substitution of a doubtful state of the law for a rule that was plain and certain and easily capable of observance. * *

For the reasons above stated, the judgments of the courts below are reversed and judgment here rendered granting petitioners’ motion for summary judgment, Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958), and decreeing that respondent take nothing.

      . All article references are to Yernon’s Ann.Tex.Civ.Stats. Article 3995, subd. 4, reads as follows:
      “No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized: * * *

      “4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year; ♦ *

      . It is argued that as this court in Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267 (1961), cited certain out of state cases which tend to support respondent’s position, we are committed to the proposition that the execution of a mutual will in accordance with an oral contract is a sufficient performance to remove the case from the bar of the statute of frauds. These cases were cited because it was believed that they, to a more or less degree, supported the holding made by the court in Kirk v. Beard and not to declare the law as to factual situations not then presently before the court. The bindingness of a prior decision under the rule of stare decisis cannot be determined apart from a consideration of the facts of the case, or perhaps stated more accurately, the facts which the deciding judges deemed important.

      . That part of the statute of frauds relating to the sale of lands was not involved in the case as Mrs. Neblett owned no real estate at the time of her death. The applicable section of the South Carolina statute of frauds provided:
      “No contract for the sale of any goods, wares, and merchandise for the price of fifty dollars or upwards shall be allowed to be good except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or so that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”
      There is a possible and perhaps valid distinction pointed out by later decisions which may be drawn between the Turnip-seed decision and cases apparently holding contrary thereto, such distinction being based upon a difference in the wording of the various sections of the statute of frauds as adopted by the several states. In Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010 (1925), the court in discussing the Turnipseed case said, “In the South Carolina case no real estate was involved, and it is not, accordingly, in point.” See also, Hoff v. Armbruster, 125 Colo. 198, 242 P.2d 604 (1952), Wellington v. Apthorp, 145 Mass. 69, 13 N.E. 10 (1887), and Note, Joint or Mutual Wills, 61 Harv. L.Rev. 675, l. c. 680.

      . It does not appear that this rationale has been followed in subsequent cases making holdings similar to Turnipseed. It is mentioned in a case note appearing in 61 Harv.L.Rev. 675, l. c. 681.

      . See, footnote 2, supra. What was said there with reference to the citations in Kirk v. Beard is likewise applicable to those appearing in Larrabee v. Porter.

      . These cases are cited in a footnote in accordance with the style employed by Mr. Justice Wilkie, the author of the opinion. The opinion also discusses Brown v. Webster, Woods v. Dunn and Turnipseed v. Sirrine.

      . This argument has some bearing upon a suggested distinction between the present case and Brown v. Webster in which some emphasis is placed upon the fact that the capital base from which Brown operated to eventually secure considerable property was $20,000.00 inherited by Mrs. Brown from her mother, compared with some $1,000.00 worth of property owned by Mr. Brown at the time of the inception of the marriage relationship.

      . Mr. Justice McOown, concurring in Kimmel v. Roberts, 179 Neb. 8, 136 N.W.2d 208 (1965), said:
      “It is strange indeed that we place so many technical requirements and formalities about the execution of a will and its amendment or revocation and yet, in certain circumstances, permit mere oral statements to be somehow wrapped in a contractual package which will supplant and override the will itself. * * *
      “Insofar as the statute of frauds is concerned, it would seem preferable to adopt a rule that the execution of a will, and leaving it unrevoked until death, is not of itself sufficient to take an alleged irrevocable oral agreement for reciprocal wills between husband and wife out of the operation of the statute, unless the will on its face specifically refers to the oral contract.”

      . In Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624, l. c. 628, this court said:
      “A wrong was done Melton by Robertson’s breach of the contract. This occurs whenever a contract coming under the statute is breached. Melton suffered a possible loss, in that he might have been able to sell his land during the two months in which he was relying upon Robertson to consummate the contract as modified. Such possibility of loss is present in every case of breach of a parol contract for the sale of real estate. The statute cannot be disregarded for the prevention of mere wrongs or to remedy possible losses. Hooks v. Bridgewater, 111 Tex. 122, 127, 128, 229 S.W. 1114, 15 A.L.R. 216.”