author: PRESLAR, Justice.

text:
    Agnes Bell WADE, joined by her husband, Elmer C. Wade, Appellants, v. STATE NATIONAL BANK, Independent Executor and Trustee of the Estate of Nellye Bell Coles, Deceased, and Nellye Bell Sherrod, Appellees.
    No. 5610.
    Court of Civil Appeals of Texas. El Paso.
    May 13, 1964.
    Rehearing Denied June 3, 1964.

      Guinn & Guinn, A. L. Carlton, Al Truex, El Paso, for appellants.
    Scott, Hulse, Marshall & Feuille, James S. Moore, J. F. Plulse, El Paso, for appel-lees.
   PRESLAR, Justice.

This is an appeal by the plaintiff from a judgment granting the defendant’s motion for summary judgment, and is brought on the single point that the trial court erred in granting such motion. We are of the opinion that the judgment should be affirmed.

Plaintiff sought damages in the amount of one million dollars against the State National Bank of El Paso, Independent Executor and Trustee of the Estate of Nellye Bell Coles, Deceased, and Nellye Bell Sher-rod. The suit is one for fraud based on the failure of the late Nellye Bell Coles to-leave all of her property by will to the plaintiff (appellant) pursuant to an agreement. Plaintiff alleged that her father, Frank M. Bell, who died in 1914, left a considerable estate which should have gone to her, but which was appropriated by Nellye Bell Coles, who also concealed the whereabouts and death of her father until 1934. Plaintiff produced a letter which she testified she received from Nellye Bell Coles in that year telling her that Mrs. Coles had put her father “away”, and that she and her husband had forged papers and done other things, described at some length, in appropriating his estate to the extent that “we”' own everything now. Plaintiff further alleges that in July of 1951 she approached Nellye Bell Coles and threatened to ascertain what had happened to her father and her father’s estate, and that to avoid this, and in payment for past wrongs, Nellye Bell Coles agreed to leave everything, by will, to plaintiff, and that thereafter she executed and delivered to plaintiff two holographic wills dated July 6, 1951 and’ July 10, 1951, by which all her property, real and personal, was left to plaintiff. Thereafter, by codicil dated July 31, 1951,, Nellye Bell Coles revoked any prior holographic wills, and republished a will dated June 28, 1948. In a will contest involving the holographic wills of July 6 and 10, 1951, and the 1948 will and codicil, this court upheld the validity of the 1948 will as republished by the codicil of July 31, 1951. See Wade v. Sherrod, Tex.Civ.App., 342 S.W.2d 17, writ refused, N.R.E., in which both holographic instruments and the codicil are set out fully.

It is plaintiff-appellant’s contention that the execution of the codicil was a violation of her agreement with Mrs. Coles on which she had relied to her detriment, and that •same amounted to fraud. She seeks not specific performance, but damages for the fraud, the difference between what she received and what she would have received hut for such fraud.

As indicated, we are of the opinion that the trial court properly granted summary judgment for the defendants, for there were only questions of law involved, and the law is with the defendants. In that connection, appellant complains of the legal conclusions in the appellees’ motion for summary judgment, and the fact that it is unsworn. She is correct that the affidavits relied on by one moving for summary judgment to establish facts cannot be in the form of legal conclusions, but the very purpose of the summary judgment rule (166-A, Texas Rules of Civil Procedure), makes it necessary for the movant to state the legal basis of his position. As stated by our Supreme Court in Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557:

“The record of a summary judgment proceedings then consists of the pleading whose office it is to outline the claims and defenses of the respective parties, the depositions and admissions on file and affidavits submitted either in support of or opposing the motion.” (Emphasis ours.)

There is no requirement that the motion be a sworn pleading. While the rule providing for summary judgment has> been characterized as a harsh one which should never be used to deprive a litigant of his day in court, it is also an invaluable procedure for disposing of untenable claims or defenses which would otherwise require many days in court.

In the case at bar, we think it is apparent that the alleged contract or agreement between appellant and Nellye Bell Coles was without consideration and that appellant could not have relied on it to her detriment. There was nothing to be gained by Nellye Bell Coles by entering into such an agreement, and there was no detriment to the appellant, for the statute of limitations had long since run on any claim appellant might have had against Nellye Bell Coles in 1951. At that time appellant had known since 1934, some seventeen years, of the alleged wrong-doings in depriving her of her father’s estate. If we assume this is not sufficient reason for the trial court to grant the summary judgment, we are further of the opinion that such judgment was correct for the reason that the Statute of Frauds, Article 3995, disposes of appellant’s claim as a matter of law. Article 3995 of the Revised Civil Statutes of the State of Texas provides, in part:

“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:
“1. To charge any executor or administrator upon any promise to answer any debt or damage due from his testator or intestate, out of his own estate; or,
«2 * * *
3 * * *
“4. Upon any contract for the sale of real estate * * *.
“5. Upon any agreement which is not to he performed within the space of one year from the making thereof * * *”

Appellees plead the statute, as a defense and, by proper procedure, called upon appellant to produce the writings relied on, whereupon it was stipulated that the instruments so produced were the three instruments above referred to — the letter of 1934 and the two holographic wills. None of such instruments contain any agreement for Nellye Bell Coles to leave her property to the appellant, so that the record before the court was that the alleged agreement was oral. Real property was a part of the estate to be left, and it is well established that a contract to devise real estate must conform to the statute of frauds. Henderson v. Davis, Tex.Civ.App., 191 S.W. 358; Hauser v. Zook, Tex.Civ.App., 278 S.W. 518; Barrow v. Webb, Tex.Civ.App., 208 S.W.2d 157; Johnson v. Black, Tex.Civ.App., 197 S.W.2d 523 (n. r. e.); Harrell v. Walsh, Tex.Civ.App., 249 S.W.2d 927 (n. r. e.). Also, where the contract involves both real and personal property, it is not divisible and enforceable as to either. Mueller v. Banks, Tex.Civ.App., 300 S.W.2d 762, n. r. e. Thus, as a matter of law, the contract relied on by appellant is unenforceable. We fail to see how there could be any recovery for fraud involving the breach of an unenforceable contract. To hold otherwise would be to create an anomoly, and allow one to do indirectly what he could not by law do directly.

The judgment of the trial court is affirmed.

CLAYTON, J., not sitting.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    J. WALTER WRIGHT LUMBER COMPANY, Appellant, v. RED BIRD TIMBER CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    March 13, 1964.
    As Modified on Denial of Rehearing June 12, 1964.
    James S. Greene, Jr., William R. Forester, Harlan, Denver Adams, Hyden, for appellant.
    A. E. Cornett, Hyden, for appellee.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Leslie Circuit Court construing the provisions of a contract and deed.

By a contract of sale followed by a deed of conveyance executed in 1953, the Ford Motor Company sold to J. Walter Wright Lumber Company all the trees in excess of 16 inches in diameter standing on three tracts of land in Clay and Leslie Counties. Red Bird Timber Corporation acquired the rights and title of Ford Motor Company. The boundary of land consisted of approximately 8,000 acres and the timber thereon aggregated approximately 30 million board feet.

Both the contract and deed contain the following provisions:

“(5) That the Grantee shall, if necessary, have a maximum time for seven (7) years from and after June 30, 1953, in which to cut and remove said timber, but with the further understanding that in the event some circumstance entirely beyond control of said Grantee, and which might materially interfere with its operations hereunder should come to obtain it may, and upon proper showing to said Grantor of said circumstance or circumstances, have an additional time of one (1) year for the cutting and removal of said timber, but no further.
“(6) That notwithstanding the maximum time limit for the cutting and removal of said timber as immediately hereinbefore set out, it is hereby mutually agreed and understood that this sale and purchase contemplates the cutting and removal of said timber at as early a date as possible, and said Grantee hereby pledges to lend its full cooperation to that end. Also, it is further agreed and stipulated that when the timber embraced by this conveyance standing on any particular tract or branch watershed area has been cut and removed, all timber harvesting rights herein granted to such particular tract or watershed area shall thereupon automatically terminate.”

The appellant, J. Walter Wright Lumber Company, entered into a logging contract with third persons granting them the right and privilege of felling, sawing into log lengths, and delivering to appellant’s sawmills all the timber standing on the boundary in question. Two sawmills were erected for the purpose of sawing the timber cut from the boundary. From 1953 to 1960 sawmills were operated on an average of about nine months out of each year.

On January 27, 1957, there was an unusually high flood on the river and its tributaries within this boundary of land. Extensive damage was done to the county roads and two bridges in the area. During the winter and spring of 1959-60, there was severe weather and unusually heavy snow. In July 1959 one of appellant’s sawmills was destroyed by fire, and 60 days were required to rebuild.

Appellant had closed its sawmills on December 1, 1956, and did not reopen them until March 30, 1957. The high water heretofore mentioned occurred during that intervening period. Its sawmills were not in operation from December 24, 1959 until April 16, 1960, and it was during that intervening period that the severe weather occurred.

During the last five years of the contract period appellant did little if any logging during the winter months. During this time there were other sawmills operating in the general area with little loss of time, including the bad weather months of 1959-60 and the high water year of 1957.

In December 1955, appellant purchased another boundary of timber containing about four million board feet. Personnel were removed from this boundary to the new site, which was logged within the time provided for in the contract and deed under consideration.

At the end of the seven-year term set out in the contract and deed there remained 250 acres to be logged, consisting of approximately one and one-half million board feet.

The above is a résumé of the facts as found by the Leslie Circuit Court.

Appellant attempted to show that both parties realized conditions would have to be favorable to remove all the timber from this boundary within seven years. Appellant had requested a period of ten years. It now claims that as a compromise between the ten years requested and the seven years demanded it was agreed that the initial term would be seven years, with an extention of time of one year, in the event circumstances entirely beyond appellant’s control might materially interfere with its operation. It maintains that in light of testimony concerning preliminary negotiations, the language of the contract and deed entitled it to the additional time, and that no right to grant or deny the additional time was reserved in the grantor.

But by the express terms of the contract and deed the maximum time for cutting and removing the timber was seven years and appellant agreed to lend its full cooperation to the end of completing the job as soon as possible. The clear provisions of the contract and deed leave no doubt that the one year extension would be granted only in conformance to the strict reservations in the contract and deed. Parol evidence will not operate to vary or contradict an unambiguous written contract. See Blevins v. Riedling, 289 Ky. 335, 158 S.W.2d 646.

Appellant’s failure to diligently pursue its business was the principal cause of the failure to cut and remove the timber within the time allotted. Appellant was not operating its sawmills at the time of the flood in 1957, and did not commence operations until long after the roads were cleared and the bridges repaired. The same is true of the severe winter weather which occurred in 1959-60. There is some testimony to the effect that appellant’s loggers worked during the winter months, but at the same time some of these men were receiving unemployment compensation checks. The sawmill which burned in 1959 was rebuilt in 60 days. Other loggers and mills worked during the winter months which appellant apparently did not do. Personnel were removed from this area to another area during the time the contract and deed were in force.

Had appellant pursued its business as was contemplated by the contract and deed, it could have cut and removed the timber within the time allotted. The quoted provisions of the contract and deed clearly reflect the intent of the parties that the timber should be removed as quickly as possible. Even though it might be said that one would not anticipate such a severe flood, such severe weather, or that a sawmill would burn, nevertheless the happening of those circumstances was not the primary reason appellant failed to cut and remove the timber within the prescribed time.

Appellant acquired title only to such timber as was cut and removed during the seven-year period. See Ream v. Fugate, 265 Ky. 463, 97 S.W.2d 11. The conditions which existed during that period did not materially affect appellant in its operations, and appellant did not use the diligence required by the contract and deed in removal of .the timber.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    W. R. FREELAND, Appellant, v. Danny G. TODD, Appellee.
    Court of Appeals of Kentucky.
    March 20, 1964.
    As Modified on Denial of Rehearing June 5, 1964.

      Robert G. Hunt, King, Deep & Brana-man, Henderson, for appellant.
    Leonard T. Mitchell, Mitchell & Withers, Henderson, for appellee.
   CULLEN, Commissioner.

W. R. Freeland sued Danny Todd for damages arising out of a collision between the Freeland and Todd automobiles at a street intersection in the city of Henderson. The trial court instructed the jury that Freeland was negligent as a matter of law but submitted the issue of liability under a last clear chance instruction. The jury found in favor of Todd and judgment was entered dismissing the claim. Free-land has appealed, asserting as his first contention that the court erred in ruling that he was negligent as a matter of law.

Todd was going east on Powell Street. Freeland was going north on Meadow Street. Powell Street was the superior thoroughfare, there being stop signs on Meadow Street at the intersection. Some of the evidence was that Freeland stopped at the stop sign; other evidence was that he approached the intersection very slowly but did not stop. In any event, he entered the intersection in the path of the Todd car, which struck the Freeland car in the side and knocked it across the intersection to the northeast corner.

Freeland was unable, on the trial, to remember any of the circumstances of the collision.

All of the testimony, except that of the witness Sawyer, was that the position and speed of the Todd car, at the time Freeland entered the intersection, were such that the Todd car constituted an “immediate hazard” to Freeland within the meaning of KRS 189.340(4). Sawyer testified that he had been going west on Powell Street and had turned left to go south on Meadow Street. When he completed his turn the Freeland car was some 20 feet south of the intersection. Sawyer continued some 200 feet down Meadow Street and then heard the sound of the collision. He said that he “thought” he looked down Powell Street before turning; that “as far as I know” there were no vehicles coming from the west; and that he “didn’t see” any car coming down Powell Street.

Appellant Freeland contends that Sawyer’s testimony was sufficient to raise a jury question of whether the Todd car was approaching so closely to the intersection, when Freeland entered it, as to constitute an immediate hazard to Freeland. We think the contention is not sustainable. In the first place, Sawyer did not say that the Todd car was not in view — he said only that he did not see any car in taking the look that he thought he took. In the second place, and more significant, is the fact that after Sawyer had taken his look, he entered and turned through the intersection and continued 200 feet down Meadow Street, at a slow rate of speed, before he heard the sound of the collision. In the time it took him to do this, the Todd car (assuming it was not visible before) could have come into full view within hazardous proximity to the intersection. (The Todd car was going 40 m. p. h. and there was a clear view down Powell Street for two blocks or 1,000 feet.)

Sawyer’s testimony does not constitute probative evidence that the Todd car was not in such position as to constitute an immediate hazard at the time Freeland entered the intersection. Since all of the other testimony shows that it was in such a position, the trial court properly ruled that Freeland was negligent as a matter of law.

Appellant argues that the giving by the trial court of a last clear chance instruction negatives the idea that the plaintiff was contributorily negligent as a matter of law, because if Todd was sufficiently far from the intersection to have a clear chance to avoid the collision, then he could not be said as a matter of law to have been so close as to constitute an “immediate hazard.” The answer to this argument is that the court should not have given a last clear chance instruction. Desgrosiellier v. Vaughn, Ky., 320 S.W.2d 304; Smith v. Crenshaw, Ky., 344 S.W.2d 393; Seamon v. Bolton, Ky., 351 S.W.2d 51. However, the giving of the instruction could not have been prejudicial to the plaintiff; it got him to the jury when there should have been a directed verdict against him.

The appellant makes these contentions in respect to the factor of speed: (1) The court should have instructed generally on the defendant’s duties concerning rate of speed; (2) the last clear chance instruction should have included a statement of the defendant’s duties concerning rate of speed; and (3) the court erred in refusing to admit testimony that the defendant had violated the speed limit in a school zone some three or four blocks back from the place of the accident. The simple answer to all these contentions is that when the plaintiff was found to be contributorily negligent as a matter of law, any antecedent negligence of the defendant was eliminated from consideration, and had there been a proper issue of last clear chance that issue would have involved only the question of whether the defendant exercised ordinary care in the use of the means at his command to avoid striking the plaintiff after the latter was in the position of peril from his own negligence; it would not involve any questions of violation of specific duties concerning speed, lookout, etc.

A final contention of the appellant’s is that the court erred in sustaining an objection to a certain question asked a witness, on the ground that it was leading. The witness was a policeman who had arrived on the scene after the accident happened. The question was: “Who was standing over him [the injured plaintiff, lying on the pavement], if there was anyone?” We are inclined to the view that the question was not improperly leading, but since the particular point involved was of such minor significance, and since counsel could have rephrased his question, the sustaining of the objection to the question could not be considered prejudicial.

The judgment is affirmed.

PALMORE, J., not sitting.


author: MOREMEN, Judge.

text:
    Wallace HURT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.

      George Street Boone, Elkton, John O. Hardin, Hopkinsville, for appellant.
    Robert F. Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, Wallace Hurt, age fifty-five was found guilty under KRS 435.105 of indulging in immoral and indecent practices with the body of Shirley Poe, a child under the age of fifteen years. He was sentenced to one year’s confinement in the penitentiary-

Hurt lived with wife on an eighty-five acre farm on the Blue and Gray State Park Road in Todd County. The home of Ewell Poe was located on the same road about eleven hundred feet from Hurt’s farm. The neighbors were well acquainted. The Poe family consisted of Ewell and Rosa Poe, the parents, and nine children. The children often used the Hurt farm as a playground. They had built small houses on the grounds and were constantly passing back and forth between the farms. The family often ate with the Hurts at their home.

Shirley Poe testified that her brothers and sisters had planted some carrots on Hurt’s farm and that about noon one day in June she crossed the farm on the way to visit the patch. She stated that she was intercepted by Hurt who asked her, “Could he do something”? Then he grabbed her, took her to the ground where he lowered to the ankles the bluejeans and undergarment she was wearing and placed his hand on .her genitals and breast. She scratched Thirn and he turned her loose. She raised no hue or cry and did not mention the incident to her parents.

In December of the same year, the Poes were visited by Ewell Poe’s niece, Dorothy Price, and her husband, John Price. A short time later, Rosa Poe, the mother, questioned Shirley who then, for the first time, related that Hurt had molested her. Ewell Poe arrived home about five p. m. with John Price. About two hours later, Mrs. Poe made a telephone call to Mrs. Hurt, stated that something bad had happened and asked if she and Mr. Hurt would come over. The Hurts were accustomed to being called by the Poes in an emergency and they rushed over immediately by car. Mr. Hurt entered the house first and when he crossed the threshold, Price hit him and he fell back against the door. Poe then held him while Price administered a severe beating to him. Hurt stated that not a word had been said and he did not know what it was all about. After he fell to the floor, they made the accusations. Poe stood over him with a poker in his hand and said he would kill him. While he was on his hands and knees, Shirley Poe was brought in to confront him. Shirley said only: “Mr. Wallace, you know it’s so.” Hurt at no time admitted or denied the charge. He said, “I had no alternative. Either way I said it, it would have been death.” The only word said in the house by Hurt was, “Call the law.”

On this appeal, appellant urges many grounds for reversal. The arguments overlap in several instances, so in this discussion we will combine some of them.

Appellant insists that the defendant in a criminal proceeding cannot be compelled to give evidence against himself. We agree — Kentucky Constitution, §.11— but appellant has failed to demonstrate when the defendant in this case was so coerced. The argument that appellant was forced to incriminate himself seems to be based upon the incidents which occurred at the Poe house, when Hurt responded to their summons and was severely beaten after his arrival. He certainly did not incriminate himself on that occasion because he was mute and gave no evidence against himself. In any event, the evidence of this incident was introduced without objection and the witnesses who testified were subjected to severe cross-examination. In addition, appellant voluntarily took the stand in his own defense and freely delineated the facts of the occurrence.

It is next argued that a confession is not admissible against a defendant when obtained by hope or fear, sweating or threats, or by physical violence upon his person. We again agree. But from this premise is drawn the conclusion that no part of the testimony of' any witness for the commonwealth concerning the events which took place at the Poe residence should have been admitted in evidence. In the first place no confession was obtained at the Poe residence. The reason why appellant may not rely upon the introduction of said testimony was given in the paragraph next above. We are not, however, specifically holding that such testimony was incompetent.

The next averred error is based upon the statement that a commonwealth’s attorney is not permitted to comment on a defendant’s refusal to admit or deny a charge and a defendant’s failure to testify does not create any presumption against him. We think the answer to this is self-evident. Appellant took the stand and testified. In addition, the argument by the commonwealth’s attorney was not reported. No affidavit was filed concerning this point. Later in this opinion we will discuss other points concerning the arguments of the commonwealth’s attorney.

It is next charged that the judge used an improper method to discharge the thirteenth juror. It is stated in a verified motion for a new trial, and in appellant’s brief, that the court failed to comply with RCr 9.32. This rule provides that if the membership of the jury consists of more than the number required by law after it has been instructed by the court, the clerk in open court shall place the name of each juror on a separate piece of paper, fold it so as to conceal the name and put it in a box provided for that purpose. The clerk after mixing the names shall draw from the box sufficient names (one or two, as the case may be) to reduce the jury to the number required by law. In the instant case the court selected the juror to be discarded as follows: The name of each of the thirteen jurors was written on the back of an old campaign card. The names were turned over and held by the judge as if he were holding a deck of cards in both hands. The judge instructed the clerk to draw one card, which he did, and the juror named on 'the card was dismissed. This practice did not follow the simple procedure set out in the rales. It is not necessary, however, for us to pass on whether this action was prejudicial because it was not shown that appellant objected to this method of procedure.

In a number of instances appellant complained that incompetent evidence was introduced, but objections to that evidence were not properly preserved. There is one instance which we believe requires comment. Dorothy Price reported that at the time of the incident at the Poe house she said: “What would you think if a man bothered a seven year old child” ?

“OBJECTION by Hon. John O. Hardin Sr. Attorney for Defendant: ‘Judge, we move to exclude that.’
“Hon. Thomas A. Noe, Jr., Judge: ‘This is the trial’—
“Hon. John O. Hardin, Sr., Attorney for Defendant: T think maybe you had better talk to this witness before we proceed any further, Don’t you think so?’
“Hon. James C. Lyne, Attorney for the Commonwealth: T think she will control her emotions.’
“Witness: T am sorry, I was just repeating what was said.’
'‘Hon. Thomas A. Noe, Jr., Judge: ‘Please confine your evidence to this case.’ ”

This particular subject was not pursued.

It is argued, in connection with this statement of Mrs. Price that it was an attempt to adduce evidence of a distinct and separate crime. We cannot view it in that light. The matter was not pursued and there was no attempt to identify the person or the occasion; in fact, the question seems to ring of the rhetorical. We think the objection was waived after the court instructed the witness to confine her evidence to this case and the subject was dropped.

The witness was questioned about other subjects. At the end of her testimony appellant moved for a mistrial “due to the fact that Mrs. Price brought in some testimony about a seven year old child in connection with this indictment.” We believe this statement, at most, should have required only an admonition which was not specifically requested, but was in effect given. We cannot find substance for a belief that it was of sufficient importance to warrant the discharge of the jury.

It is contended that the commonwealth’s attorney used improper and inflammatory arguments in presenting the case to the jury. The final argument to the jury was not reported. The motion for a new trial — and that motion was verified by the appellant — sets out a number of statements purportedly made by the commonwealth’s attorney which appellant found to be objectionable. However, it is not stated in the grounds for a new trial that appellant objected to any of these statements at the time they were made. The propriety of the statements, therefore, was not presented to the trial court for determination and is not properly before us on appeal.

Finally it is argued that the court should have directed a verdict for the appellant because the story of the ,_hild was uncorroborated and vague in most details and had been elicited many months after the supposed date of the offense, at the suggestion of her parents and others. In Carrier v. Commonwealth, Ky., 356 S.W.2d 752, this was said:

“Since the time of Lord Hale, who admonished, ‘it must be remembered that this is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent,’ the courts have been disturbed by a situation where a word may be substituted for definite proof of an act. The various states have found different solutions: in some states, by statute, the testimony of the prosecutrix must be corroborated; in some jurisdictions no corroboration is necessary. See 44 Am.Jur., Rape, § 106. In still other jurisdictions, which include this one, the uncorroborated testimony of the prosecutrix may be sufficient to sustain a conviction of rape if the proof is clear and convincing and the surrounding circumstances are such as to indicate the probable guilt of the accused or, at least, to corroborate indirectly her testimony. However, if the story of the prosecutrix is intrinsically improbable or her actions before and after the time of the alleged offense are such as indicate (when considered in the light of ordinary rules of behavior) that the related event did not happen — then the uncorroborated testimony is not sufficient.”

Here we are faced with a question of whether our notion concerning the actual happening can be substituted for that of the trial court and the jury. Under the circumstances we cannot say the story of the prosecutrix is intrinsically improbable or that her behavior afterwards was such as would indicate that the event did not happen. She testified that she had said nothing about it because Poc had threatened to kill her if she did. It was the terrible responsibility of the jury who had the opportunity to observe the behavior of these parties to decide whether she was telling the truth in this case. We do not believe that the delay in reporting the incident was conclusive.

Judgment affirmed.


author: MILLIKEN, Chief Justice.

text:
    Kenneth Wayne ETHERTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.
    Kenneth Wayne Etherton, pro se.
    Robert F. Matthews, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellee.
   MILLIKEN, Chief Justice.

The appellant, Kenneth Wayne Etherton, serving a life sentence under the Habitual Criminal Act, made an RCr 11.42 motion in the court of his conviction to vacate the judgment. Counsel who had represented him in his trial was appointed and did represent him at the hearing on his motion, and the relief sought was denied. This is an appeal from the ruling denying the relief sought by his motion to vacate the judgment of conviction.

The issue raised pertains to the construction placed upon KRS 203.340 which requires prompt notice to be given to the Commissioner of Mental Health in cases where an indictment is returned under the Habitual Criminal Act so that a Department psychiatrist may examine the defendant “to determine his mental condition and the existence of any mental disease or defect which would affect his criminal responsibility * * * ” when the Department can spare a psychiatrist from his regular duties. A Department psychiatrist examined the prisoner about eighteen months after the indictment, but before his final trial, and found him of sufficient understanding of right and wrong to stand trial. The contention raised here is that the psychiatric examination given did not determine his mental condition at the time of the commission of the offense — that it did not determine

•whether he suffered any mental disease or defect which would affect his criminal responsibility” at the time of the commission of the crime.

The statute, KRS 203.340, has been construed as not requiring such an examination as being a condition precedent to subjecting the accused to trial, and failure to hold such an examination does not void the conviction. Mercer v. Commonwealth (1961), Ky., 346 S.W.2d 761. In Harrod v. Commonwealth (1950), 311 Ky. 810, 226 S.W.2d 4, the purpose of the statute was found to be to determine whether such an accused should be sent to one of the State’s penal institutions or to one of its mental hospitals, and we expressly declared, “It is manifest that the prisoner acquires no right to such an examination under the statute itself.”

We adhere to that construction of the •statute, and the judgment is affirmed.


author: CLAY, Commissioner.

text:
    Edward Anthony WAGNER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.
    Edward Anthony Wagner, Jr., pro se.
    Robert F. Matthews, Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

This is a proceeding under RCr 11.42. Appellant moved to vacate a judgment of conviction entered in 1961 on the ground that at the time of committing the offense charged and at the time of trial he was insane. The trial court denied the motion.

In 1961 appellant was convicted of an offense under KRS 435.110 and given a five year prison sentence. This judgment was appealed and affirmed in Wagner v. Commonwealth, Ky., 355 S.W.2d 151. Appellant was represented by counsel at the trial and on the appeal.

Neither before nor during the trial was any question raised concerning the sanity of appellant. In the present proceeding he called to the attention of the trial court two judgments of the Jefferson Circuit Court, entered in 1944 and 1946, declaring appellant to be a person of unsound mind. It is his contention that by virtue of these judgments, the court, under section 156 of the Criminal Code (now RCr 8.06), is required to vacate the former judgment and try the question of his sanity. It is apparently his position that the prior adjudications of insanity conclusively constitute “reasonable grounds” upon which the court must now hold a sanity hearing under RCr 8.06.

Although appellant complains of the procedure in the present proceeding (the Commonwealth did not answer appellant’s motion as permitted by RCr 11.42), the trial court did hear appellant’s motion and made specific findings, Among other things, it found there was nothing in the testimony or actions of appellant during the original trial (he testified in his own behalf) that would indicate in any way that he was of unsound mind. It was shown that appellant had been employed in reputable business establishments for years before his trial and that he had held responsible positions. The only evidence of insanity at the time of the commission of the offense or at the time of the trial was the two judgments of 1944 and 1946. This evidence was not only not conclusive (Murrell v. Commonwealth, 291 Ky. 65, 163 S.W.2d 1), but in view of the length of time which had elapsed, it did not even raise a presumption of insanity. See Davidson v. Commonwealth, 171 Ky. 488, 188 S.W. 631; Commonwealth v. Strickland, Ky., 375 S.W.2d 701. In the latter case it was held that an insanity adjudication shortly before a trial would not itself constitute evidence to support the vacation of a conviction.

Appellant contends the trial court acted arbitrarily in refusing to consider the insanity judgments, which are public records. This is a misapprehension. The records were considered but their evidenti-ary value was so slight that, without other evidence of insanity at the time of trial, they did not furnish “reasonable grounds to believe” appellant insane. The trial court’s finding that there was “no evidence” to indicate appellant was insane must be construed in this light.

From both a legal and practical standpoint, the insanity adjudications of many years ago do not in themselves constitute substantial evidence that appellant was insane at the time of his trial in 1961. At least they were not of sufficient evidenti-ary value to compel the trial court to grant the relief requested. Without other evidence the appellant simply failed to make an adequate showing. We cannot say the trial court in the exercise of its sound judicial discretion committed error. See Robinson v. Commonwealth, Ky., 243 S.W.2d 673.

The judgment is affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF MILITARY AFFAIRS, Appellant, v. G. E. KINDER, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.

      John B. Breckinridge, Atty. Gen., Robert L. Montague, Asst. Atty. Gen., for appellant.
    J. W. Jordan, Barbourville, for appellee.
   MOREMEN, Judge.

Appellant, Commonwealth of Kentucky, Department of Military Affairs, filed a complaint to quiet title to a tract of property situated in Barbourville. This property had been deeded by the City to the Commonwealth. The deed contains these calls, running from a corner of Granville Kinder, the adjoining owner: “thence N 49 degrees 43' W along Kinder line 213 feet to a post; thence N 48 degrees E along fence line 210 feet to a Concrete Monument of the Flood Wall R/W.” Kinder’s deed does not have a similar call, so far as we have been able to determine from the record before us. It is the location of this boundary line that is the cause of the controversy.

Appellee counter-claimed, described the deed under which he held title and further pled that the lot he owned had been under fence, cultivation and use by himself and predecessors in title for a period of over forty years. The pleading is not in the best form but we believe it sufficient to apprise the plaintiff of the issue.

At the trial the Commonwealth introduced A. V. Seay, a surveyor, who testified that from the Commonwealth’s deed he was able to tell where Kinder’s property line lay and that there was no over-lap of the property owned by the Commonwealth and Mr. Kinder. He testified that he did not see a fence along this line. He did, however, testify that since there was no natural line, he consulted with Mr. Kinder about the location of the division line. Mr. Kinder produced his deed and said, “This is all I own.” Mr. Seay prepared a map which is filed as an exhibit, but the disputed strip is not marked. J. W. Newland, who was superintendent of construction in the building of the National Guard Armory on a portion of the State’s land, testified that his blueprints called for the utilization of a portion of the land which abuts on appellee’s property and that they cleared out this portion which contained bush and other undergrowth. They cleared the strip with bulldozers in order that it might later be blacktopped. He further testified:

“Q. Now, you say there wasn’t any fence at all, metal fence or wire fence or anything? A, No, sir, I don’t remember one.
“Q. No posts or anything? A. I don’t remember.
“Q. Nothing of that kind there? A. Not that I recall.
“Q. There was some indication there had been a fence? A. Might have been. There were trees which might have been. Seems as if somebody had put in agriculture, corn or a garden spot north of that brush.
“Q. Well, that is where the dispute is about, isn’t it Mr. Newland? A. I really don’t know.

Appellee’s claim to the disputed strip of land was based upon the assertion that for many years the division line between the properties had been marked by a stout fence. Appellee testified that he had purchased this property in 1943, and had lived on it for about ten years after that date and that a fence line ran from Manchester Avenue to the floodwall. The posts were either locust or chestnut to which were stranded four or five barbed wires. He also testified that bushes and trees had grown up around the fence and that when the State began construction of the armory, it had torn down the fence and had taken possession of a twenty foot strip of his land.

K. W. Jordan, Knox County Surveyor, testified that he had tried to establish the disputed corner as established by the deeds, but had failed because some of the land had been taken when the street was widened and when the floodwall right-of-way had been obtained. He could not state definitely where the boundary lines were although he did find a wire fence which had been pushed down.

Steve Brock, who had rented Kinder’s property for six or seven years, testified that it was well-fenced when he had cultivated the land. He stated that he saw the fence there a short time before the State •started construction.

John Shorter testified that he had known this property for about thirty years and that he had worked on it. He was acquainted with the fence which separated Kinder’s property from the adjoining property, and estimated that the fence had been there for about twenty-five or thirty years.

Jess Hammons, who had known the property in question for thirty-five years, stated that the fence between the two tracts of land had been there for thirty-five years and until the State removed it. He knew that the fence line had been claimed to be the property line for thirty-five years and that Kinder’s land had been farmed and cultivated up to the fence every year.

Affidavits by Aaron Cupp, Elmer Tread-way and Jess Fisher all verified the foregoing statements. Fisher testified that he had cultivated the land adjoining the Kinder property, now owned by the State, up to the fence of G. E. Kinder.

We are of opinion that the court was correct in adjudging the fence, which was destroyed by appellant during the construction, to be a well-known and long-recognized dividing line between the properties and that appellee and his predecessors in title had been in actual possession and control of the property to the fence line for about forty years. The possession was adverse, notorious and hostile. See: Mudwilder v. Claxton, Ky., 301 S.W.2d 3.

It is argued that the judgment should “be reversed because it fails to give the parties sufficient guides to actually establish the boundary in dispute.” The judgment reads:

“It is therefore ordered and adjudged by the court that the division and boundary line between plaintiff’s and defendant’s property as set out in the complaint is hereby located and established where the old fence was standing and existing at the time it was destroyed by the plaintiff.”

Appellee’s evidence was certain as to the location of the fence. Appellant’s witnesses denied the existence of the fence at the time they examined the property, but everyone knew the location of the line where appellee claimed the fence stood. It seems to us that it will require little ingenuity to follow the old fence row.

Judgment affirmed.


text:
    Leslie “Jack” COX et al., Appellants, v. Everett MALONE et al., Appellees.
    Court of Appeals of Kentucky.
    May 29, 1964.
    Fred Faulkner, Jr., Campbellsville, for appellants.
    Charles M. Summers, Clyde Williams, Jr., Campbellsville, for appellees.
   CULLEN, Commissioner.

Leslie Cox and wife, owners of a tract of farm land, brought action against their neighbors to the east, the Malones, to quiet title to a disputed area of land and to recover damages for timber cut by the Ma-lones. At the close of all the evidence the court directed a verdict for the defendants and entered judgment dismissing the action. The Coxes have appealed.

The Coxes based their claim on adverse possession under color of title. Admittedly they had not exerted acts of physical possession of the area in dispute, a tract of hilly woodland, but they relied on the rule that where one is in possession of land claiming title by deed and the deed describes the boundaries with sufficient certainty so that they can be run by a surveyor, the possession extends constructively to the boundaries described in the deed. See United States Trust Co. v. Frakes, 282 Ky. 683, 139 S.W.2d 759. So the issues in the case were whether the description in the deed under which the Coxes claimed title described the boundary with sufficient certainty so that it could be surveyed, and if so, where was the boundary physically located' on the ground. (There was no issue as to the period of possession by the Coxes.)

A surveyor employed by the Coxes surveyed the eastern boundary lines of the Cox deed. The second call of the deed ran from a walnut stump on the bank of a creek. The surveyor testified that a walnut stump was pointed out to him by Leslie Cox as being the one described in the deed ; that the Malones were present at the time and did not contend that the designation was incorrect. Leslie Cox testified that the Malones agreed that the stump he pointed out was a corner boundary monument. Attached to the stump was one end of a wire fence, which ran in a northwest direction for some 300 feet, ending at a road. The surveyor testified that the second call of the deed, as surveyed by him, ran exactly with the fence line.

The surveyor testified that he surveyed out the eastern boundary of the Cox deed and as so surveyed the area in dispute was embraced in the Cox deed. On cross-examination it was brought out that at one point the surveyor had trouble running the line and he resorted for aid to an older deed. However, the point at which the difficulty arose was not identified m the testimony, nor was it made clear just what the trouble was. (It appears that perhaps the Cox deed had an “E” where there should have been a “W” in one call.)

The appellees argue that the evidence concerning the difficulty encountered by the surveyor shows that the description in the Cox deed did not describe the boundary with such certainty that it could be surveyed, and therefore an essential requirement of the rule of constructive adverse possession was not met. However, it is our opinion that the evidence concerning the surveyor’s difficulty was not so positive and clear as to require the conclusion that the description could not be surveyed in the disputed area.

The appellees maintain that it was not sufficient that a survey be made of the eastern boundary only; that the appellants should have been required to prove that the entire boundary could be surveyed. The appellees argue that their proof showed that the entire boundary could not be surveyed, because an engineer testified that in attempting to plat the Cox land by office instruments the description would not close. In our opinion it was sufficient that the eastern boundary, where the disputed area lay, could be surveyed by use of one or more natural objects described in the deed.

Aside from raising the question of the difficulty encountered by the appellants’ surveyor, the appellees did not undertake to prove that if the walnut stump used by the surveyor as a starting point was the right one, the line would not run where the surveyor located it. They did testify that the stump used by the surveyor was not a walnut, but a hickory, and they sought to prove that even if it was a walnut it was too young to have been the one referred to in the deed. But this evidence merely created an issue of fact and did not destroy the probative value of the appellants’ evidence.

The appellees undertook to show that an old fence on, the hillside marked' the true boundary, but this was disputed by the appellants’ testimony.

In their brief the appelles say that their evidence “was of equal authority, weight, and persuasion as that of appellants.” We agree. But in order to support a directed verdict the appellees’ evidence would have to be so strong as to completely overcome the appellants’ evidence. That it was not. The trial court erred in directing a verdict.

The judgment is reversed with directions to grant a new trial.


author: SCOTT REED, Special Commissioner.

text:
    MARIO’S PIZZERIA, INC., Appellant, v. FEDERAL SIGN AND SIGNAL CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.

      James Levin, Ben Hanish, Hanish & Hanish, Louisville, for appellant.
    William M. Harvin, Cambrón, Harvin, Robinson, Louisville, for appellee.
   SCOTT REED, Special Commissioner.

This is an action seeking relief because of an alleged fraudulent inducement to enter into a lease. The trial court granted a summary judgment in favor of the defendant and dismissed the claim. This appeal is from that judgment.

Three business men in Louisville decided to enter the restaurant business. They formed a small corporation and after the transaction which gave rise to the suit two of the men concerned sold out to the third man, named Burwell, who now owns substantially all of the stock of the corporation. Burwell was president of the restaurant corporation at the time the transaction complained of took place.

The salient facts appear to be as follows: The new restaurant venture needed an electric sign to place in front of the business. Two of the incorporators had had previous dealings with the appellee, sign corporation, which was in the business of leasing, maintaining and selling electric signs. Burwell, the president of the corporation, although he wanted the business to acquire the electric sign, desired that the restaurant business have the right to purchase the sign outright. He discussed this with his business associates.

A salesman from the sign company conferred on one occasion with the three associates in the restaurant business. This salesman presented a written contract for execution by the restaurant corporation to acquire the sign. Burwell, the president of the restaurant corporation, read the agreement and discovered that it was a lease agreement by the terms of which the appellee retained title to the sign at all times and had a right to remove the sign in case of default in payments required and at the end of the term of the lease. The term of the lease was three years. Burwell protested this agreement stating that he wanted his corporation to have the right to buy the sign. He withdrew from the room where he and the salesman for the sign company were discussing the transaction and conferred with his two associates in business. They assured him this was the way that they had been buying a sign from appellee. He returned to the room where the salesman had the contract of lease and signed the lease contract as president of the restaurant corporation. One of his business associates executed it as secretary of the restaurant corporation.

Burwell claims that the reason for his action was that the salesman for the sign company orally promised him that at the end of the lease period the restaurant corporation could by the payment of $1.00 acquire title to and ownership of the sign.

Near the end of the lease period Burwell, who now owned substantially all of the stock of the restaurant corporation, tendered $1.00 to the appellee and requested that it transfer to him title to and ownership of the sign. The appellee refused to do so but offered to enter into another lease and maintenance agreement with Burwell’s restaurant corporation.

Burwell then caused this action to be brought in the Jefferson Circuit Court in the name of the appellant restaurant corporation alleging that he and his corporation had been fraudulently induced to enter into the written lease contract by reason of the oral representation of the ap-pellee’s salesman and that appellee should be compelled to convey the sign to the restaurant corporation or pay damages. The appellee filed a motion for summary judgment which relied upon the discovery deposition of Burwell, the president of the restaurant corporation. The trial court sustained the motion for summary judgment and entered judgment dismissing the complaint. The restaurant corporation appeals this judgment.

The evidence shows that Burwell admitted that he read the contract which he signed for and on behalf of the appellant restaurant corporation; that before he executed it he protested its terms; that he relied partly on the assurances of his business associates and partly upon the alleged oral promise of the salesman; he, nevertheless, executed the lease agreement.

The salesman denied making the oral promise. There was evidence in discovery depositions that the appellee did have alternative deals by which a sign could be acquired. One was a pure lease maintenance agreement, which was the case here, and another was an arrangement whereby at the end of the lease agreement the lessee by the payment of $1.00 could acquire title to the sign. It was further established that the election as to which type of transaction was to be entered into had to be made by the lessee at the beginning of the transaction primarily because of tax considerations. There was no substantial difference in what the lessee would be required to pay under either of the alternatives.

At the outset it must be admitted that there was an issue of fact made by the discovery depositions which the trial court considered. That issue of fact was whether or not appellee’s salesman orally promised appellant’s president that appellant could acquire title to and ownership of the sign at the end of the lease period by the payment of $1.00. The question is, however, whether or not this was an issue of a material fact.

On motion for summary judgment the court should take the view most favorable to the party against whom the motion is directed giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence and resolving all doubts as to the existence of a genuine issue against the moving party. See Mitchell v. Jones, Ky., 283 S.W.2d 716.

Appellant relies chiefly upon the cases of Bryant v. Troutman, Ky., 287 S.W.2d 918; Sanders, Inc. v. Chesmotel Lodge, Ky., 300 S.W.2d 239; City of Elizabethtown v. Caswell, Ky., 261 S.W.2d 424; and Dunn v. Tate, Ky., 268 S.W.2d 925. These cases are all dissimilar from the instant case in the following two important particulars :

(1) They did not involve promise of future conduct or of some undertaking to be done in the future but rather involved representations as to existing facts.

(2) They did not involve a situation where the complaining party read the terms of an agreement, protested those terms as not being in conformity to his understanding, but nevertheless assumed the risk of enforceability of an oral promise of a salesman as to a future event. We do not deem them applicable to the situation presented by the instant case.

Appellant contends first that there was a genuine issue as to a matter of fact to warrant submitting this case for a jury decision. Appellant’s second contention is that oral fraudulent and false representations preceding the signing of a contract are not merged into the written agreement. We agree with both of these statements as correct propositions of law but we do not believe that they apply to the instant case.

In the case of Dunn v. Tate, Ky., 268 S.W.2d 925, we find the following statement:

“Tate recognizes the general rule that false and fraudulent representations made by a vendor to induce the purchaser to enter into the contract are not merged in the contract, and that proof of such representations is not barred by the parol evidence rule. Adams v. Fada Realty Co., 305 Ky. 195, 202 S.W.2d 439. However, he calls attention to another rule, which is that oral agreements or representations cannot be proved or relied upon if they contradict a positive provision of the written contract. Dreyer-Whitehead & Goedecke, Inc. v. Land, 309 Ky. 113, 216 S.W.2d 413; Hopkinsville Motor Co. v. Massie, 228 Ky. 569, 15 S.W.2d 423.
“Tate contends that the phrase ‘just as the residence is constructed,’ in the portion of the contract quoted above, constitutes a positive and express agreement that the Dunns were to take the house ‘as is,’ with no warranty as to condition. We think that the phrase, taken in its context, rather means that the Dunns were to be entitled to all fixtures and appurtenances attached to the house as of the time of sale. At the very least, the phrase is ambiguous, and we are not willing to apply the rule laid down in the cases relied upon by Tate except in situations where the written contract is clear and unambiguous concerning the point on which parol evidence is sought to be introduced.”

In the instant case the lease contract is clear and unambiguous concerning the point on which parol evidence is sought to be introduced.

Paragraph 4 (a) of the lease contract which appellant’s president executed after having full knowledge of its terms and after having protested it according to his own statement, contains the following provision which was printed in italics and states as follows:

“It is understood and agreed by the parties hereto that Sign in its entirety is and shall at all times be and remain the personal property of Lessor and upon any termination of this Lease or renewal thereof, Lessor may remove same without making any demand upon Lessee therefor.”

There is no contention made by appellant that the written lease contract was to be amended or changed before its signature nor is there any contention that a written amendment was to be delivered at any particular time but merely the statement of appellant’s president that after he was on full notice of the entire contents of the agreement the appellee’s salesman orally promised him that a time three years in the future appellee would convey title to the sign for the payment of $1.00 in spite of the provisions of the written agree1ment.

23 Am.Jur., Fraud and Deceit, Sec. 38, p. 799, states the rule as follows:

“It is a general rule that fraud cannot be predicated upon statements which are promissory in their nature when made and which relate to future actions or conduct, upon mere failure to perform a promise — nonperformance of a contractual obligation — or upon failure to fulfill an agreement to do something at a future time or to make good subsequent conditions which have been assured. Such nonperformance alone has frequently been held not even to constitute evidence of fraud.”

In 24 Am.Jur., Fraud and Deceit, Sec. 267, at page 107, we find the following statement which we believe should be applicable to the instant case:

“ * * * But since fraud cannot be predicated merely upon nonperformance of a promise, and the parol evidence rule cannot be defeated by simply claiming that the promises made were fraudulent if they are not such as the law recognizes as fraudulent, the mere nonperformance of a parol promise does not render evidence of the promise admissible as against the interdiction of the parol evidence rule. To hold otherwise would amount virtually to an abrogation of such rule. Furthermore, a case for the admission of parol evidence does not appear on a showing merely that one of the parties to a written contract understood erroneously that certain representations of the other party would be binding even though they were not incorporated in the contract as prepared.”

See also Annotations at 51 A.L.R. 46 and 125 A.L.R. 879.

Upon the foregoing, it is our conclusion that there was no genuine issue as to a material fact to be tried. The undisputed facts reveal:

A. That the instant case is one whereby appellant sought to rely upon an oral representation which contradicted a positive provision of a written contract, and where the written contract was clear and unambiguous concerning the point on which parol evidence was sought to be introduced.

B. The oral representation consisted of a promise by a salesman as to future conduct on the part of his company directly contradicting the unambiguous terms of a written agreement.

C. The complaining party had read the written agreement, had protested its terms and was thoroughly familiar with its contents but nevertheless executed it.

Summary judgment is proper when it is manifest that a party against whom the judgment is sought could not strengthen his case at trial and the moving party would be entitled ultimately and inevitably to a directed verdict. See Adkins v. Greyhound Corp., Ky., 357 S.W.2d 860. This is the situation presented by the record in the instant case.

Our disposition of this appeal makes it unnecessary for us to discuss the various other contentions advanced by appellee in support of the judgment.

We are of the opinion that the judgment of the trial court was correct and we therefore recommend that the judgment appealed from be affirmed.

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


author: PALMORE, Judge.

text:
    Calvin L. PARTIN, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.
    O. Grant Bruton, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, for appellant
    Louis N. Garlove, Morris & Garlove, Louisville, for appellee.
   PALMORE, Judge.

Appellant, Col. C. L. Partin, had a policy of automobile liability insurance with appel-lee, United Services Automobile Association, hereinafter called the company. Following an accident which occurred on October 10, 1958, he was sued for damages and the company refused to defend him, contending that the policy had been can-celled and was not in force at the time of the accident. Col. Partin paid off the claims against him and then brought this suit against the company for the amounts so paid and for expenses necessarily incurred by him in that connection.

The facts are essentially undisputed. The appeal is from a summary judgment for the company. It is our conclusion that a summary judgment should have been entered in favor of the appellant.

The company caters to members of the military service. During 1958 Col. Partin, an army officer, was stationed in Louisville but was making periodic trips to his farm near Bardwell, Kentucky, to which he planned to retire early in 1959. He had authorized the company to renew his automobile insurance from year to year. Pursuant to this authorization, in July of 1958 the company issued him a renewal policy for the year June 17, 1958, to June 17, 1959, covering the Ford automobile that later figured in the collision of October 10, 1958.

Being a little tardy in remitting the premium, and the company having notified him that the policy would be cancelled unless the premium was received by September 17, 1958, on September 5, 1958, Col. Partin wrote the company as follows:

“I enclose my check in the amount of $38.36 to pay the annual premium on my Ford Station Wagon in continuance of, the policy now recorded in your files.
“I apologize for the neglct [sic] and oversight in caring for this matter. The reason is that the car has not been operated since 1 Jan 58 and I am not sure when it will be again.
“Please note the change in my address from:
“c/o Hq. Ky. Mil. Dist., Nichols and Manslick, Louisville, 15, Ky.
“To: Bardwell, Ky.”

By a form letter dated September 15, 1958, the company acknowledged receipt of the premium and advised that the policy remained in force without lapse. Then, on September 17, 1958, it sent Col. Partin a “USAUTOGRAM” as follows:

“We note from your letter dated 5 Sept 1958, that you are not operating your 1950 Ford. If you desire to have the policy cancelled, we will do so at your request, and issue a new policy postmarked time any later date you advise us to do so. Provided you are still eligible for insurance.”

The critical document in the controversy is Col. Partin’s responsive letter sent from Bardwell on September 30, 1958, which contained the following (emphasis ours) :

“The car has not been operated since 1 January 58. It is likely that I will have to put it into operation sometime in November.
"If it is possible and permissible to start my policy effective 1 November 58 I would appreciate it, but, under no circumstance to [sic] I wish to compromise my standing with United Services.
“This late reply is due to the fact that my permanent address in your files is the one to which I will retire in the spring and which I visit now only about every two weeks.”

Under date of October 3, 1958, the company sent Col. Partin the following form letter:

“We acknowledge your instructions to cancel all insurance under policy # 17 31 85-3 covering your 1950 Ford. The coverage was cancelled at 12:01 A.M., Sept. 6, 1958. Credit due you for this transaction is being calculated.”

On the same date the company issued to Col. Partin a binder advising that his car was being insured for one year effective November 1, 1958, and setting forth the coverage, which was the same as that provided under the previous policy.

The foregoing communications were addressed to Col. Partin at Bardwell, but as he was then in Louisville they did not reach him until October 13, 1958, three days after the accident.

The policy contained a provision entitling the company to cancel it by mailing written notice specifying an effective date of cancellation not less than ten days thereafter. However, the designated effective date of the purported cancellation in this instance was less than ten days after the mailing of the notice, and it is not contended that this provision applied.

The apparent basis of the judgment for the company was that the policy was cancel-led at the request of the insured, as authorized by the following provision:

“This policy may be cancelled by the insured named in Item 1 of the declarations by surrender thereof to the Company or by mailing to the Company written notice stating when thereafter the cancellation shall be effective * * Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender or unearned premium is not a condition of cancellation.”

This case has been ably briefed, and there is little or no real difference between the parties with respect to the basic principles of law involved. The only question is whether, in view of the information given him by the company’s USAUTOGRAM of September 17, 1958, suggesting a cancellation and renewal, Col. Partin’s letter of September 30, 1958, can reasonably be construed as a request that the old policy be cancelled without further notice and a new one issued as of November 1, 1958. That, of course, is what the company actually and in good faith took it to mean. Nevertheless, had the exchange of correspondence been carefully considered by its representatives, we think they could not justifiably have reached such a conclusion.

The substance of Col. Partin’s contention, as he testified in a discovery deposition, is that the purpose of his letter was to ascertain whether November 1 could be substituted for June 17 as the effective date of his insurance coverage, and that he did not intend merely “to suspend premiums for a very short period of time.”

“A cancellation provision not infrequently found in liability insurance policies is to the effect that the policy may be cancelled by the insured by mailing to the insurer written notice stating 'when thereafter such cancellation shall be effective.’ Generally speaking, a notice, in order to comply with such cancellation provision must under all circumstances contain a definite date on which this cancellation shall become effective.” 29 Am.Jur. 751 (Insurance, § 402); Suennen v. Evrard, 254 Wis. 565, 36 N.W.2d 685, 8 A.L.R.2d 200 (1949). The company would avoid this principle on the theory that Col. Partin’s letter was tantamount to an immediate cancellation, or at least a request therefor. However, an equally applicable principle is that a notice of or request for cancellation must be unequivocal. General Accident Fire & Life Assur. Corporation v. Lee, 165 Ky. 710, 178 S.W. 1025 (1915).

The words, "If it is possible and permissible to start my policy effective 1 November 58,” in Col. Partm s letter of September 30, 1958, refute the interpretation that he was acceding to the USAUTO-GRAM suggestion that the policy be cancel-led and a new one issued. Having been expressly so advised, he already knew that could be done, and thus could not have been doubtful as to whether a cancellation and renewal was “possible and permissible.” Hence it is obvious that he had something else in mind. Certainly there was no indication on his part that the policy was to be cancelled as of a current or recent date, and without such an indication there was neither an effective cancellation by him under the terms of the contract nor any basis on which it could be found that there was ever a meeting of the minds between the parties to the effect that the policy would be cancelled as of the time stated in the company’s notice of October 3, 1958.

The cause is reversed with directions that a summary judgment be entered in favor of appellant.


author: DAVIS, Commissioner.

text:
    Richard H. THOMAS, Appellant, v. Stella THOMAS, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.

      Joseph J. Leary, Marion Rider, Frankfort, R. Howard Smith, Newport, for appellant.
    Morris Weintraub, Odis W. Bertelsman, Newport, for appellee.
   DAVIS, Commissioner.

This appeal involves postdivorce litigation concerning the property rights claims of the husband and wife. We shall refer to appellant as husband, and to the appellee as wife.

The Campbell Circuit Court rendered judgment directing the husband to deliver to the wife one-half of the preferred and common stock in Dependable Loan Service, Inc. (hereinafter referred to as Dependable), plus one-half of the dividends paid on the stock, with 6% interest, from the times of payment. The judgment recites that the value of the common and preferred stock and the dividends awarded to the wife is $50,000. By the judgment it was provided further that should it develop that the value of the stock when delivered to the wife had fallen below $50,000, the husband should pay the wife a sum sufficient to supply the deficiency.

These litigants were married in 1935, when neither of them had any estate, although both were then employed. The wife ceased her employment, about eighteen months after their marriage, but resumed work during the war while the husband was in service. Upon the husband’s discharge from service the wife again resumed her role as housewife. They had no children.

The parties separated in April, 1949. No divorce action was instituted until July, 1954, when the husband sought divorce in the Campbell Circuit Court, alleging that the parties had lived apart without cohabitation for five years next before the suit. KRS 403.020(1) (b). The divorce complaint alleged, and it is admitted in the record by both parties, that the wife was then a resident of Ohio; her specific street address was stated correctly in the complaint. Warning order was issued, and a warning order attorney was duly appointed, who notified the wife of the nature of the action. The wife consulted Hon. Morris Weintraub, an attorney in Newport, but she did not enter her appearance or otherwise “appear” in the divorce action.

There were conferences between Mr. Weintraub and Hon. R. Howard Smith, the husband’s attorney, and negotiations were had looking toward a property settlement. No settlement was reached. There is sharp dispute between attorneys Smith and Weintraub as to whether they had agreed that no step would be taken in the divorce action except upon appropriate notice to the other.

For some reason not shown in the record, the divorce action lay dormant from 1954 until 1960. However, in February, 1960, the husband’s attorney, Smith, moved the Campbell Circuit Court for trial of the divorce case, and undertook service of notice of such motion by serving copy thereof upon the warning order attorney and by leaving a copy with the Campbell Circuit Clerk. Of course, the service of notice upon the warning order attorney was a nullity; leaving a copy with the circuit clerk was likewise unauthorized, since it is clear that the husband then knew the exact address of the wife in Ohio. CR 5.02. Hence, there can be no question of estoppel.

Mr. Smith did relate to the trial judge that he had had some conferences with Mr. Weintraub, but assumed that Mr. Wein-traub no longer represented the wife. Thereupon the trial court heard the divorce action, and awarded an absolute divorce to the husband. In the divorce judgment it was provided that each of the parties should restore to the other any property which either had obtained from the other during or in consideration of marriage, not otherwise disposed of at the time the suit was: filed. KRS 403.065. The divorce judgment made no other reference to any property rights of the litigants.

Slightly more than sixty days after the entry of the divorce judgment the husband mailed the wife a copy of the decree. Thereupon she reported the matter to Mr. Weintraub. He expressed shock. Shortly thereafter the wife filed in the divorce action, upon due notice, her “Petition for Restoration of Property.” By it the wife asserted that the husband had in possession 620 shares of common stock and 25 shares of preferred stock of Dependable. The petition alleged that the husband obtained the stock from the wife “in consideration of, by reason of and during the marriage which existed” between the parties, and before the judgment of divorce. The petition also charged that the husband had “collected and converted to his own use” all of the dividends paid on said stock, and that the wife was entitled to an accounting for the dividends. By its prayer, the petition sought the court’s order requiring the husband to transfer the stock to the wife, plus an accounting for all dividends on the stock.

The record is extensive and contains much that has no place in an orderly court procedure. However, in summary, the contention of the wife is that she and the husband had planned together the project of establishment of a self-owned finance company business. The husband was engaged in that type work, but was subject to contract prohibiting his entering a competitive employment for a time. Because of this contractual inhibition of the husband’s open participation in the new business, one-half of the stock of the newly formed Dependable was placed in the name of A. B. Cook, Trustee. The other half of the stock was issued to a cofounder of the company, Puttman, except that one share was issued to Mrs. Puttman.

The original capital of Dependable was $20,000. Puttman supplied one-half; the other half was supplied as the proceeds of a $10,000 loan obtained on a note signed by the husband, the wife, and the father of the husband. This note was ultimately discharged, in the main, from proceeds of an account in a Thrift Club. There is evidence that the wife made some personal contributions to the Thrift Club account. Appellant insists that her contribution was only $800; her assertions are quite to the contrary. We do not reach the intricate accounting questions involved in solution of that problem for reasons now explained.

It is our view of the record that the wife has not established a partnership, nor a quasi partnership which would entitle her to half of the Dependable stock. Neither do we think the evidence warrants a finding that the Dependable stock was "obtained” from the wife by the husband during marriage, and in consideration of marriage. Here the wife did not participate in the operation and development of the business at all. It is true that she did contribute some of her individual funds to the Thrift Club account, and she did cosign the $10,000 note whereby the original capital was obtained. Cases of this nature turn primarily on the individual facts in each, so that precedents generally are not conclusive. The parties have cited and we have considered Rayborn v. Rayborn, Ky., 329 S.W.2d 576; Kivett v. Kivett, Ky., 312 S.W.2d 884; King v. King, 214 Ky. 171, 283 S.W. 73; Pearson v. Pearson, Ky., 350 S.W.2d 141; Stubblefield v. Stubblefield, Ky., 327 S.W.2d 24; Patterson v. Patterson, Ky., 266 S.W.2d 91; Wells v. Wells, Ky., 293 S.W.2d 718; Johnson v. Johnson, Ky., 255 S.W.2d 610; Fain v. Minge, 241 Ky. 131, 43 S.W.2d 504; Wilcox v. Wilcox, Ky., 266 S.W.2d 96; Gentry v. Gentry, Ky., 318 S.W.2d 870; Ritchie v. Ritchie, 311 Ky. 569, 224 S.W.2d 648; Whitney v. Penick, 281 Ky. 474, 136 S.W.2d 570; Power’s Adm’r v. Wiley, 241 Ky. 645, 44 S.W.2d 591; Harlan Fuel Co. v. Wiggington, 203 Ky. 546, 262 S.W. 957; Simpson v. Simpson, 145 Ky. 45, 139 S.W. 1100; Walter v. Moore, 198 Ky. 744, 249 S.W. 1041; Sandusky v. Sandusky, 166 Ky. 472, 179 S.W. 415; Tutt v. Tutt, 304 Ky. 480, 200 S.W.2d 924; Fearington v. Fearington, 306 Ky. 220, 206 S.W.2d 927; Moore v. Moore, 307 Ky. 552, 211 S.W.2d 852; Bohannon v. Bohan-non, Ky., 249 S.W.2d 544; Ball v. Ball, Ky., 317 S.W.2d 870; Eckhoff v. Eckhoff, Ky., 247 S.W.2d 374; and Phillips v. Phillips, 307 Ky. 217, 210 S.W.2d 756. It would unduly extend this opinion to undertake a discussion of each of the cited decisions. However, we are not persuaded that any of them completely rules the instant case.

During a portion of the oft heated discussions between counsel, the following occurred before the introduction of evidence:

Mr. Bertelsman: “ * * * we will ask for periodic payments of alimony, in addition to her getting her 620 shares of stock, or whatever that has amounted to. This should be considered a proceeding for the payment of alimony.”
Mr. Smith: “Let’s keep it that way.”

Counsel appear to have “kept it that way.” Throughout the record each side presented evidence touching on the relative fault of the husband and wife as contributing to the divorce. Much evidence was heard relating to the mutual efforts of these parties, and their counsel, looking toward property settlement. The income tax returns of the parties were sought, although they were not available for all years. The net worth of the husband was explored. The trial court found as fact that the value of the Dependable stock held by the husband “is in excess of $150,000.” Yet, the lower court found the wife is entitled to have stock of the value of $50,000. The trial court’s findings of fact and conclusions of law appear to be based on his holding that the wife is entitled to one-half of the Dependable stock. This determination was rested on a finding by the chancellor that there was an agreement between the husband and wife that each would own one-half of Dependable’s stock. We feel that this finding is not sufficiently supported by the record. Manifestly, the $50,000 evaluation of the wife’s share is inconsistent with a finding that she is entitled to one-half of stock valued at $150,000. We hold that the findings of the lower court are clearly erroneous. CR 52.01.

We are mindful of the statement in Hughes v. Hughes, 211 Ky. 799, 278 S.W. 121, to the effect that there may be no claim for alimony after an absolute divorce. It must be remembered that the Hughes case reflected the then prevalent attitude that “fault” on the part of the wife was an absolute bar to alimony in her behalf. The Illinois judgment found “fault” in the wife, and this was held to be res judicata of the question under the full faith and credit clause of the United States Constitution. The fundamental soundness of the ruling that a wife’s claim for alimony can be barred in an action in which she is before the court only by constructive service is questionable. Nevertheless, we need not reconsider it here, since subsequent decisions of this court clearly show that we have departed from the “fault” theory as a determinative absolute in divorce actions. Heustis v. Heustis, Ky., 346 S.W.2d 778; Coleman v. Coleman, Ky., 269 S.W.2d 730.

Moreover, we have decisions permitting alimony adjudication, even after divorce, in circumstances comparable to those in the case at bar. See Davis v. Davis, Ky., 303 S.W.2d 256; Reynierson v. Reynierson, Ky., 303 S.W.2d 252; Taylor v. Taylor, Ky., 242 S.W.2d 747; and Cooper v. Cooper, Ky., 314 Ky. 413, 234 S.W.2d 658. It is quite clear in this record that there were numerous discussions between the husband and wife, as well as between their attorneys, wherein the matter of property settlement was discussed. It is not disputed that the husband had made overtures of lump sum settlement of property matters. In his opening remarks to the court in the divorce suit, Mr. Smith related that he had had communication with Mr. Weintraub, but expressed the thought that Mr. Weintraub had abandoned the case. Very shortly after the wife was informed of the entry of the divorce judgment she filed her petition for relief. In light of Mr. Smith’s disclosure to the trial court, we do not hold that actual fraud was practiced on the wife or her attorney, but it may not be doubted that there was a misunderstanding of such magnitude as to make it inequitable (even if it be legally possible) to foreclose the wife’s rights to litigate the property questions.

The wife placed a specific label on her petition — calling it a “Petition for Restoration of Property.” However, the prayer of that pleading concluded: “ * * * and petitioner prays for all proper and equitable relief to which she may be entitled.” As noted, when the wife’s attorney stated that this proceeding should be regarded as one for alimony the husband’s attorney retorted, “Let’s keep it that way.” We do.

It is fundamental that once equity has assumed jurisdiction for one purpose it will retain it for all purposes connected with the principal controversy. Swaim v. Martin, 302 Ky. 381, 194 S.W.2d 855; 30 C.J.S. Equity § 67, p. 414. In Swaim we observed that this is especially true where there is a general prayer for all equitable relief. CR 54.03 directs that every final judgment shall grant the relief to which the successful party is entitled, even if the party has not demanded such relief in his pleadings. In Clay, CR 54.03, Author’s Comment 3, it is noted that it is no longer necessary that the party shall have demanded “all proper and general relief.”

CR 15.02 provides that the trial of issues not raised by the pleadings, when done by the express or implied consent of the parties, shall be treated in all respects as if raised by the pleadings. From what we have said it is clear that these litigants did, expressly, treat the issue of alimony as raised, and they addressed proof looking toward adjudication of that issue.

There is not sufficient evidence in this record, however, to permit this Court to make an informed determination of the amount of alimony. It is our judgment that the trial court shall permit the parties to adduce proof as to the actual net worth of the husband, the financial circumstances of the wife, the factors contributing to their divorce, and fix alimony, if any, in an equitable amount. KRS 403.060(1). See Goldstein v. Goldstein, Ky., 377 S.W.2d 52, wherein the undesirability of splitting closely held corporate stock is discussed.

The judgment is reversed for proceedings consistent with this opinion.


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    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roger F. LANTER et al., Appellees.
    Court of Appeals of Kentucky.
    May 29, 1964.
    Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., John J. Blackburn, Covington, Bernard B. Davis, Davis & Saunders, Shelbyville, for appellant.
    Ottis Lanter, Williamstown, for appellees.
   PALMORE, Judge.

This land condemnation case has been tried before three juries. The first awarded $24,418, the second $24,200 and the third $24,375. A judgment on the second verdict was reversed by this court for error in the rejection of certain evidence. See Commonwealth, Dept. of Highways v. Lanter, Ky., 364 S.W.2d 652 (1963).

The only issue raised on this appeal is whether the verdict was so excessive as to indicate that the jury acted under the influence of passion and prejudice and in disregard of the evidence.

The testimony of the landowners’ witnesses suggests that to some extent they may have duplicated damages in the process of separately estimating the value of the property fronting along Kentucky Highway 36 and then assigning “damage” to the remainder of the tract. Ordinarily, of course, the higher value of highway frontage includes the loss or prospective loss in value that will result to the remainder by its severance from the frontage. Cf. Commonwealth, Dept. of Highways v. Finley, Ky., 371 S.W.2d 854, 856 (1963). It is possible also that in calculating the diminution in value of the frontage lots remaining after the taking, the witnesses may have included loss resulting from the re-routing of highway 36. Devaluation of property resulting from the re-routing of a public highway is not compensable. Department of Highways v. Jackson, Ky., 302 S.W.2d 373, 375 (1957); Commonwealth Dept. of Highways v. Raybourn, Ky., 359 S.W.2d 611 (1962).

But the question before us is not whether the estimates were in all respects accurate, but whether on the whole they were of sufficient probative value to support the verdict. Witnesses for the Commonwealth assessed the damage at $7,310 and $12,231, respectively. Witnesses for the owners fixed it at various amounts from $38,564 to $40,065, and they were thoroughly cross-examined as to the methods by which they arrived at these figures. All of them were highly competent to give valuation testimony. Even conceding the existence of a certain degree of fallacy in some of their evidence, on the narrow question of probative value we think it was amply sufficient to support the verdict of $24,375.

That the owners had the property assessed at only $4,970, supposedly reflecting an actual value of $15,530, is more suggestive of inadequate valuation by the assessor’s office than it is of the value of the property. The Commonwealth’s witnesses themselves appraised the property at $30,310 and $36,876. In the light of all the evidence in the case the assessment figure was of insignificant weight. Commonwealth Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, 478 (1963).

The judgment is affirmed.


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    LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellant, v. Robert TURNER et al., Appellees.
    Court of Appeals of Kentucky.
    May 29, 1964.

      Denney & Landrum, Lexington, James M. Terry, Louisville, Ollie J. Cockrell, Jackson, Marvin D. Jones, Eugene W. Herde, Louisville, for appellant.
    J. Douglas Graham, Campion, for appel-lees.
   DAVIS, Commissioner.

In April, 1960, a fire damaged timber on appellees’ Breathitt County farm abutting appellant’s railroad tracks. Appellees obtained a $5,000 verdict against the railroad, based on their claim that the company was negligent in the operation of its train and in failing to keep its right of way free of combustible materials. KRS 277.220(2).

The railroad seeks reversal on three grounds: (1) There was not sufficient evidence to warrant submission of the case to the jury, hence a directed verdict for the railroad should have been given; (2) the instructions were erroneous, and (3) the verdict is excessive.

We’ have concluded that there is merit in the first contention of appellant, and do not reach the other questions presented.

The appellees presented several witnesses who said that they saw appellant’s diesel locomotive and freight train pass appellees’ farm, and that virtually simultaneously they observed a fire along the right of way. However, no witness testified to seeing any spark or other inflammable matter coming from the locomotive or any other part of the train. No witness asserted that the locomotive, or any other portion of the train, was defective. There was no showing of any abnormal or improper operation of the train. In fact, no witness was able to offer any evidence as to the cause of the fire.

The railroad offered evidence that various fires in the same locality had been observed before the train had passed. Other evidence cast doubt whether the fire had actually started on the right of way, or at a point substantially distant from it. There was conflict in evidence as to the direction of the wind — whether toward or from the right of way.

Appellees’ claim must find foundation in some negligence of the railroad company proximately causing the claimed damage. Our decisions reflect that we have recognized the practical difficulty of presenting direct proof of negligence in this type case. Realistically, we have approved admission of evidence that on other occasions, reasonably proximate in time and circumstance, locomotives have emitted sparks. Louisville & N. R. Co. v. Brewer, 170 Ky. 505, 186 S.W. 166; Ohio & Kentucky Ry. Co. v. Whitt, 180 Ky. 418, 202 S.W. 899; L. & N. R. Co. v. Home Ins. Co., 146 Ky. 281, 142 S.W. 398; Louisville & N. R. Co. v. Bean, 273 Ky. 454, 116 S.W.2d 989; Akers v. Illinois Cent. R. Co., 207 Ky. 379, 269 S.W. 311. But all of our cases recognize the fundamental that the claimant must make a prima facie showing of defective equipment or improper operation; the mere fact of a fire, even though produced by sparks from an engine, is not in itself sufficient to create a presumption of negligence. Clemons v. Dawkins Log & Mill Co., 266 Ky. 157, 98 S.W.2d 472.

Our cases relating to claims for fire damage by reason of train operations have to do with steam locomotives. The instant case involves a diesel engine. The evidence shows that the railroad company has not used vigilance in ridding its right of way of weeds and other vegetation since the advent of the diesel locomotives. It explains this on the ground that the diesel is virtually free of fire setting potential. There is evidence that soot, sulphur or fire has been observed to come from diesel engines, but the witness who said so also added he had never known of a fire set by a diesel. Another witness stated that a diesel exhausts carbon particles, but that he had never known one to ignite a fire No witness asserted that the diesel engine on the train in this case emitted any inflammable material at any time. Clearly there was not sufficient evidence to warrant submission of any issue to the jury as to the negligent equipment or operation of the train.

Appellee contends that the railroad’s admitted ’failure to remove combustible materials from its right of way is sufficient to impose liability in view of KRS 277.220 (2). That statute provides:

“(2) Each railroad company shall keep its right of way clear and free from weeds, high grass and decayed timber that is likely to take and communicate fire from passing trains to abutting or adjacent property.”

We considered the same contention in relation to the statute in Mobile & O. R. Co. v. Mathis, 188 Ky. 47, 220 S.W. 1068. There we said that the statute is not directed against weeds, high grass and decayed timber in general, but only against combustible materials likely to take and communicate fires from passing trains to abutting property. The purpose of the statute is to prevent fires by passing trains; it does not impose liability for the railroad’s permitting accumulation of combustible material on its right of way unless it also appears that the material was ignited by a passing train. We noted in Cincinnati, N. O. & T. P. Ry. Co. v. Snow, 284 Ky. 58, 143 S.W.2d 863, that the instant statute is sufficient to impose liability on the railroad, even though its engine was equipped with proper spark arresters, if the railroad left combustible material on its right of way and “same was set afire by its engines.”

We are mindful of the sound principle that circumstantial evidence may be sufficient to support a verdict in cases of railroad fires. See Withers v. Ill. C. Ry. Co., 306 Ky. 487, 207 S.W.2d 33, and cases discussed therein. As observed in Withers, testimony in cases of this type is so widely variant that no one decision, nor any particular excerpt, may be selected as controlling. We do not here undertake a detailed comparison of the evidence in the case at bar with the several factual situations in prior decisions. It suffices to say that the varying circumstances which were held sufficient to develop a jury issue in other cases are not present in the case before us. Indeed, the only circumstance pointing toward the train as the ignition point of the fire is the evidence that a substantial fire was seen along the railroad right of way nearly simultaneously with the train’s passage. Manifestly, this is no slight circumstance — yet, standing alone, unaided by any evidence of improper operation or defective equipment — unbolstered by any showing of emission of sparks or other incendiary material — that circumstance cannot rise to the level necessary to make a jury issue.

This is particularly true because other hypotheses of the fire’s origin are in the record; for example, there is evidence that other fires were in the area, from unexplained sources; there is a showing that at least two persons were walking along the track just at the site of the fire in question; that each smoked cigarettes; that they did not know whether they had been smoking at the time or not, but they had had to make haste to avoid being struck by the accused train.

Some significance may be ascribed to the fact that in his opening statement to the jury, counsel for appellees stated their proof would show that one of the men

(evidently of the train crew) tossed something out of the train and set the leaves on fire. Yet, there was no such showing, nor any apparent effort to elicit any such evidence. In his closing argument the same counsel did not advert to that theory, but suggested that since one witness had said that a diesel will throw out soot and fire, the diesel here had gone “through there throwing out soot and fire and setting the whole country on fire up there.” The difficulty is that there was no showing that the diesel was throwing out soot or fire — nor that it ever had. The same witness who had referred to seeing some inflammable material emitted by a diesel also said that he had never known one to start a fire. If counsel’s argument had had factual support, the case would be one for the jury. The unsupported statement of counsel, however, is not evidence.

Appellant having moved for a directed verdict and for judgment n. o. v., we are authorized to direct the entry of judgment for the appellant. Coca Cola Bottling Works v. Bingham, Ky., 277 S.W.2d 468; Ingram v. Galliher, Ky., 309 S.W.2d 763; Hoskins v. Hoskins, Ky., 316 S.W.2d 368.

The judgment is reversed with direction to enter judgment for appellant pursuant to-its motion for judgment n. o. v.