author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Alma W. STOCKER, widow et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 12, 1968.

      Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, D. G. Lynn, Boehl, Stopher, Graves & Deindoerfer, Lexington, Phillip K. Wicker, Somerset, for appellant.
    George T. Ross, John W. Palmore, Richmond, for appellees.
   STEINFELD, Judge.

The Commonwealth condemned 11.75 acres and a temporary easement of the Stocker farm for the construction of a portion of the limited access Interstate Highway 75. In county court the appellees were awarded $24,550.00 and both parties appealed. The circuit court jury found that the owners were entitled to recover $76,-425.00. This appeal is from the judgment entered pursuant to that verdict. We reverse.

The Stockers were the owners of a gently rolling and all-cleared farm containing 197 acres. The principal improvements were a two-story frame residence, a tenant house, a silo, five barns, several small buildings and ponds.

There were 100 feet of frontage on the south side of Tate’s Creek Pike. The northeast boundary was contiguous for approximately 1,500 feet to Baker Heights, a residential development within the city limits of Richmond, Kentucky. From there the farm extended generally westwardly over one mile to Goggins Ferry Road on which it fronted for approximately 1,450 feet.

The Commonwealth took a strip which ran in a north-south direction, was 300 feet wide and approximately 1,500 feet long. This divided the farm so that the tract adjoining Richmond and which fronted on Tate’s Creek Pike then contained 120 acres and the western tract with frontage along-Goggins Ferry Road then had 65.25 acres. No crossing of the new highway was provided. Almost all of the major improvements were on the 120 acre tract. On the part taken were a pond and small barn and on the 65.25 acre portion was a small barn. The evidence is conflicting as to the distance of travel between the remaining tracts. The Stockers say four miles but the Commonwealth claims only 2.75 miles.

Witness for both sides agreed that at least a major part of the farm was suitable for development as a residential subdivision. Com., Dept. of Highways v. Rollyson, Ky., 415 S.W.2d 838 (1967). They stated their opinions concerning values:

For the Commonwealth
Witness Before Taking Value After Taking Value Difference
R. W. Crabtree $122,250 $116,000 $6,250
M. L. Garrison 146,000 136,900 9,100
For the Stockers
Before Taking Value After Taking Value Witness Difference
James W. Stocker $591,000 $385,780 $205,220
Earl Baker 591,240 452,500 138,500
Caperton Burnam 591,000 392,000 199,000
Ballard Luxon III 591,240 444,960 146,280
Frank Congleton 471,000 355,700 114,300
Harry McCord $2,500 to $3,000 $3,500 per acre NO per acre east side, $500 FIGURE to $600 per acre, west side

The jury was instructed and returned its verdict according to the procedure directed in Com., Dept of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963) as follows:

Before Taking Value After Taking Value Difference
Jury $375,000 $298,875 $76,425

Within the verdict was the value of the temporary easement in the amount of $300.00 which is not in dispute.

The Commonwealth claims the verdict of $76,125.00 is palpably excessive and should not stand, that it was for taking not quite ½6 or less than 6% of the farm and represents over 20% of the $375,000.00 before value fixed by the jury. It notes that the only improvements taken were a pond and small barn while the remaining tracts retained the same access to and frontage on the roads that existed before the taking. It says that the 120 acres adjoining the Baker Heights Subdivision were not disturbed, that the least valuable part of the farm was that taken and that which remained on the far side of the new highway was substantially as before.

Although the owners admit that the value of the 120-acre tract was not adversely affected, they counter that a highway without a crossing will cut through the farm and that there will be a great distance of travel to get from one part to the other. They note that practically all of the improvements are on the 120-acre side and virtually none on the 65.25 acre tract. They forcefully argue that their witnesses were knowledgeable with respect to values and that their appraisals were accurate.

Mr. Stocker and other witnesses for the landowners using several sales in the vicinity as “comparables” stated that before the taking all of the land had an average value of $3,000.00 per acre and that after-wards the 120-acre portion on the east side of the new highway retained that same or acquired a greater value, but the land on the west side of that highway “was worth $500.00 an acre”. The “comparable sales” ranged from $1,100.00 per acre to over $6,000.00 per acre. Earl B. Baker, Caperton Burnam and Frank Congleton, qualified experts (Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851 (1963) and Bennett v. Com., Dept. of Highways, Ky., 417 S.W.2d 143 (1967)) said that after the taking the 65.25-acre tract (sometimes referred to as the 67 acre tract) was worth $500.00 an acre, a total of $32,500.00. Ballard Luxon III told the jury that the land on the west side of “the barrier is worth $500.00 an acre, or $33,955.00.”

Courts, including ours, have used various formulas for determining whether an award should be disturbed as excessive or inadequate. It has been said that the record must show that the award was made as a result of bias, passion or prejudice. Com., Dept. of Highways v. Riley, Ky., 414 S.W.2d 885 (1967); Mississippi State Highway Commission v. Strong, Miss., 240 Miss. 756, 129 So.2d 349 (1961). In Riley we said:

“Nevertheless, jury verdicts on disputed questions of fact are not final or unassailable. The verdicts may be reviewed and upset where, as in the present case, the amount at first sight appears excessive and to have been rendered as a result of passion or prejudice.”

Pennsylvania stated that it will not interfere unless the verdict is so excessive or so inadequate that the review of the trial court on motion to grant a new trial is a clear abuse of discretion or is shocking to the sense of justice. Vaughan v. Commonwealth, 407 Pa. 189, 180 A.2d 12 (1962). A Texas court held that the verdict must be so against the great weight and preponderance of the evidence as to be manifestly unjust. Roberts v. State of Texas, Tex.Civ.App., 350 S.W.2d 388 (1961). Jayson v. United States, CCA 5, 294 F.2d 808 (1961) decided that the ruling of the trial court will not be disturbed in the absence of a clear abuse of discretion in considering and passing upon the motion for a new trial. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963) announced “ * * * our power of review is limited under this record to determining whether the testimony of the landowners’ witnesses had sufficient probative value to support the verdict rendered.” Also see Com., Dept. of Highways v. Doolin, Ky., 411 S.W.2d 44 (1967); and Neighborhood Oil Company v. Com., Dept. of Highways, Ky., 418 S.W.2d 424 (1967). We decided in Com., Dept. of Highways v. Dennis, Ky., 409 S.W.2d 292 (1966); Com., Dept. of Highways v. Brumfield, Ky., 418 S.W.2d 231 (1966) and Com., Dept. of Highways v. Osborne, Ky., 417 S.W.2d 530 (1967) that the testimony did not support the award and in Com., Dept. of Highways v. Collins, Ky., 409 S.W.2d 506 (1966) that based upon mathematical computations an award should not stand. In East Kentucky Rural Electric Co-operative Corporation v. Rand, Ky., 357 S.W.2d 890, 891 (1962) we wrote “There being no two cases alike, it is often said that ‘there is no definite yardstick which a court may apply in deciding whether damages are excessive in. a given case.’ East Kentucky Rural Electric Co-op. Corp. v. Erwin, Ky., 1958, 310 S.W.2d 554; Tennessee Gas Transmission Co. v. Teater, Ky., 1952, 252 S.W.2d 674.” We have used expressions that the verdict of the jury may not stand if the amount “shocks our conscience”, or “at first blush” or “at first sight” is so excessive as to appear to have been rendered under passion and prejudice. Com., Dept. of Highways v. Muir, Ky., 412 S.W.2d 231 (1967); Com., Dept. of Highways v. Shirley, Ky., 409 S.W.2d 522 (1966); Com., Dept. of Highways v. Riley, supra; Com., Dept. of Highways v. Blincoe, Ky., 418 S.W.2d 731 (1967); Com., Dept. of Highways v. Hester, Ky., 421 S.W.2d 840 (decided December 15, 1967). Whitesburg, etc. v. Bates, Ky., 412 S.W.2d 225 (1967) said:

“A verdict will not be disturbed as excessive, unless it is given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. CR 59.01. Commonwealth of Ky., Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922; Salt River Rural [Elec.] Co-op. Corp. v. Thurman, Ky., 275 S.W.2d 780; Commonwealth, Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714; Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472, and authorities there cited.”

There has been no uniform standard. See cases cited in Kentucky Digest Volume 8, Eminent Domain, @=*150.

Discussing the problem now before us it was said in Orgel, Valuation under Eminent Domain, Volume 1, Section 130, page 558 that:

“The limits of reasonableness are usually fixed by the estimates of the opposing witnesses, since these estimates are in the nature of admissions by the respective parties. Accordingly, the courts have generally sustained awards falling within the range of the testimony and have reversed those falling outside these limits. But these are not invariable rules, for an award which is within the range of the testimony may nevertheless be unreasonable and an award which is either higher or lower than the opinion estimates may be justified by other evidence in the case.”

From 27 Am.Jur.2d, Section 471, page 397 we quote:

“Ordinarily, a verdict or award in a condemnation case will be sustained if, and only if, it is within the range of the testimony of the amount of the value or damages. If there is any evidence to support a verdict or finding as to damages or compensation, the appellate court will not disturb it, unless it is clearly and palpably, or flagrantly, against the weight of the evidence; or unless it appears that the jury have committed gross and palpable error, or have acted under improper bias, influence, or prejudice, or have mistaken the rules of law stating the measure of damages, or have rendered a verdict so excessive as to shock the enlightened conscience of the court.”

In the work by Nichols on Eminent Domain, Volume 5, Section 17.3, page 112 it is said:

“Even in the face of conflicting evidence the court will generally refuse to set aside the report or verdict if there is evidence to sustain the amount awarded and such amount is not palpably inadequate or excessive.”

The following is quoted from 30 C.J.S. Eminent Domain § 364, page 348:

“The appellate court will not substitute its judgment, opinion, or conclusion for that of the jury, commissioners, or trial court as to the amount of damages to be awarded; and it will not disturb the award because it seems to the appellate court, or because sudh court thinks or is of opinion, that the amount is inadequate, excessive, or extravagant, unless the amount is clearly, manifestly, or obviously excessive or inadequate, * * * or is so excessive or inadequate as to be unconscionable * * * ”.

Lewis, Eminent Domain, Vol. 2, Section 776, page 1377, states the rule as follows:

“In setting aside a report on the question of damages, the court will be governed by the same principles as obtain in the case of the verdicts of juries in common law suits.
Where there is evidence to sustain the verdict and the testimony is conflicting, the court ordinarily will not interfere on this ground alone: ([Louisville & N. R. Co. v. Ingram, Ky.] 14 S.W. 534) and especially is this the case where the commissioners or jury have viewed the premises.
To justify an interference on the ground that the damages are inadequate or excessive the case must be a very clear one and it must appear that the tribunal has proceeded upon erroneous principles, or has been influenced by passion or prejudice, or has disregarded the evidence in the case.”

The jury is the trier of the facts [Proctor v. Com., Dept. of Highways, Ky., 412 S.W.2d 252 (1967)] to determine what is just compensation in the constitutional sense. Sea v. Com., Dept. of Highways, Ky., 418 S.W.2d 766 (1967). It is not our prerogative under the constitutions to sit as an appellate jury or substitute our judgment for that of the jury. United States v. Tampa Bay Garden Apartments, CCA 5, 294 F.2d 598 (1961).

We believe that a more stable and better approach than we have used heretofore should be formulated. The right of the jury (under the law) to decide facts and the authority and duty of the trial court to review the findings of the jury must be recognized and respected. CR 59.01. Upon review, we must first determine whether the trial court erred in accepting or rejecting the verdict. Our next step is to decide whether the verdict is properly supported by substantive evidence of probative value. If the verdict lacks substantial support in the evidence then it must be set aside. Pierson v. Com., Dept. of Highways, Ky., 350 S.W.2d 487 (1961); Com., Dept. of Highways v. Cooper, Ky., 397 S.W.2d 47 (1965); Com., Dept. of Highways v. Allie, Ky., 391 S.W.2d 385 (1965); Com., Dept. of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249 (1964); Nelson v. Iowa State Highway Commission, 253 Iowa 1248, 115 N.W.2d 695 (1962). When the verdict is based upon substantive evidence of probative value it must be upheld even though we might prefer the opposite line of evidence or something in between. An exception would be in the case where the size of the verdict is so palpably excessive as to shock the enlightened conscience of the court, or when it is clear that it was the result of passion or prejudice. CR 52.01.

We recognize the latitude allowed by the statement “to shock the enlightened conscience of the court” for this is a relative term. We must not be shocked by what may appear to us to be an excessive or inadequate award unless the verdict is clearly so exorbitant or so small that obviously an unreasonably large and unjust enrichment, or grossly inadequate compensation, to the condemnee will be the result of sustaining the verdict.

The next contention is that error was committed when the circuit court, upon motion timely made, refused to strike the estimates of Frank Congleton who, the Commonwealth claims, considered income from the farm operation as a principal factor in computing his estimates. We do not consider the testimony of Congleton to be as contended by the Commonwealth. In making his estimates this qualified ex-' pert used various factors, all of which we have approved. The effect of his testimony with respect to anticipated income from the farm was in connection with his appraisal of the land for subdivision purposes and the length of time before which it is reasonably anticipated that its use for a subdivision might occur. He explained that a purchaser would consider how long he would have to hold the land and its productivity. City of Newport, etc. v. Turner Advertising, Inc., Ky., 334 S.W.2d 767 (1960). Also see Com., Dept. of Highways v. Smith, Ky., 358 S.W.2d 487 (1962). Such testimony, as distinguished from net income or the money income which a particular operation had created, is admissible.. Com., Dept. of Highways v. Heath, Ky., 354 S.W.2d 752 (1962); Kentucky Water Service Co. v. Bird, Ky., 239 S.W.2d 66 (1951).

The attorney for the Commonwealth moved to strike the testimony of Congleton but not that he be required to revise his estimates and base them only on the factors which properly could be considered. We announced the correct procedure in Com., Dept. of Highways v. Woolum, Ky., 415 S.W.2d 83 (1967); Com., Dept. of Highways v. Shaw, Ky., 390 S.W.2d 161 (1965) and Com., Dept. of Highways v. Rosenblatt, Ky., 416 S.W.2d 754 (1967). On the motion for new trial the Commonwealth stated that “the court erred in allowing the witness Frank Congle-ton, Jr., to testify as to the value of this farm based upon the income that could be derived from a farming operation pending complete development of the farm for residential or commercial uses * * * For the reasons above stated and since counsel had failed to follow the procedure above referred to, the trial court did not abuse its discretion in refusing to sustain the motion for a new trial on the ground mentioned.

The Commonwealth says that Harry McCord who, over its objection was permitted to testify as to values was not a qualified witness. Since the case must be tried again and Mr. McCord may be called as a witness we think it appropriate that we decide this question. The Commonwealth relies upon Com., Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851 (1963); Com., Dept. of Highways v. Taylor, Ky., 368 S.W.2d 732 (1963) and Com., Dept. of Highways v. Tyree, supra. For eleven years ending in 1965 this witness was in the subdivision and building business in the county in which the farm is located. He had purchased and sold many parcels of real estate and was informed with respect to the sales of a number of properties which he and other witnesses used in fixing values. There is no merit in this contention. See Com., Dept. of Highways v. Tyree, supra, and Com., Dept. of Highways v. Fister, Ky., 373 S.W.2d 720 (1963).

Considering all the proof properly admitted and applying the rules stated, we now seek to determine whether the trial court erred in accepting or rejecting the verdict of the jury. It was contended on the motion for a new trial that it was excessive. The commissioners appointed by the county court awarded $24,550.00 while the verdict of the' jury, $76,425.00, was more than three times that figure. On a previous trial which had to be discontinued because of the illness of a juror, James H. Reynolds testified for the owners. He was not introduced as a witness on the second trial. His testimony is in the record before us on another point which we do not need to decide but we have examined it and found that for nineteen years he had been engaged as a professional real estate appraiser and that he “appraises farms • for Equitable Life Assurance Societies for their loans”. He expressed the opinion that before the taking occurred the “Fair market value for the 197 acres as a whole is $274,000 and that the fair market value immediately after the taking was $226,300, the difference being $47,700.” We are somewhat fortified in our views by the foregoing valuation.

Each of the witnesses for the owners used as comparable sales parcels ranging in size from two to sixty acres. All admitted that they knew of no tract in the area containing 190 acres or more which had ever sold for more than $800.00 per acre. Witnesses Baker and Luxon stated that before the taking the entire tract had an average value of $3,000.00 an acre but that after the taking the 120 acre tract had an average value of $3,500.00 per acre. Witness McCord said that before the taking the land was worth $2,500.00 to $3,000.00 per acre but that after the taking the tract containing 120 acres was worth $3,500.00 per acre. From this testimony we must conclude that the smaller tracts have greater value than the larger tracts. It was admitted throughout that the taking of the land for, and the construction of the non-access highway, brought no enhancement in value to the land.

Another factor which we believe was not given proper consideration' was the time anticipated for the development of all of the 197 acres as subdivision property. A Commonwealth witness expressed the opinion that the demand for the development of the entire tract for a subdivision could not reasonably be anticipated in less than 25 years. No witness refuted that opinion. It is true that the witnesses for the Stockers testified concerning the development of and increase in size in Eastern Kentucky University and told of the residential development in and around the city of Richmond. Each of them bottomed their before taking appraisal on the adaptability and demand for this land in its entirety for residential subdivision purposes. “Our cases have consistently observed the rule that it is appropriate to admit testimony of the adaptability of property for particular uses, even though the property is not then being so used. However, the rule is subject to the qualification that if the land is reasonably adaptable to another use, there must be an expectation or probability in the near future that it can or will be so used.” Com., Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922 (1964); Com., Dept. of Highways v. Siler, Ky., 411 S.W.2d 937 (1967). None of the witnesses were convincing that with respect to the entire tract “there was a reasonable expectation that in the near future it could have been divided into lots”. Bowling Green-Warren County Airport Bd. v. Long, Ky., 364 S.W.2d 167 (1963); Com., Dept. of Highways v. Brumfield, Ky., 418 S.W.2d 231 (1966).

For the reasons expressed and following the formula for examination of the record announced in Com., Dept. of Highways v. Sheffer, Ky., 399 S.W.2d 709 (1965) we conclude that the motion for a new trial should have been sustained since the evidence did not support a verdict of the magnitude of the one rendered. Com., Dept. of Highways v. Bond, Ky., 391 S.W.2d 692 (1965); Com., Dept. of Highways v. Burden, Ky., 388 S.W.2d 577 (1965); Com., Dept. of Highways v. Lovell, Ky., 405 S.W.2d 21 (1966); Commonwealth, for Use and Benefit of University of Ky., v. Coffee, Ky., 409 S.W.2d 166 (1966). We hold that it was an excessive award which we cannot permit to stand. Com., Dept. of Highways v. George, Ky., 387 S.W.2d 580 (1965).

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

WILLIAMS, C. J., and EDWARD P. HILL and MONTGOMERY, JJ., concur.

PALMORE, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    Reison GRAY, Appellant, v. John W. WINGO, Warden, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.

      Reison Gray, pro se.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   STEINFELD, Judge.

Appellant Gray petitioned for a writ of habeas corpus to secure his release from the penitentiary where he is serving a four-year sentence for storehouse breaking. From an order dismissing the petition he appeals. KRS 419.130. We affirm.

The conviction occurred in October 1965 in the Christian Circuit Court after a trial before the court. The right to a jury trial had been waived. Gray did not appeal.

In February 1966, in the same court, Gray filed a petition for post conviction relief. RCr 11.42. He claimed that rights guaranteed to him by the Fourteenth Amendment of the Constitution of the United States and Section One of the Kentucky Constitution were violated. Specifically he asserted that the evidence produced at the hearing was only circumstantial and insufficient to sustain a judgment finding him guilty and that one witness “perjured himself.” The trial court held that the application did not state “grounds sufficient to call for relief under Rule 11.-42.” On June 21, 1966 we affirmed on appeal, without opinion.

Gray sought the aid of the United States District Court by filing there in January 1967 an application for a writ of habeas corpus. He stated that the evidence upon which he was convicted was inadmissible and insufficient, that he was denied a fair and impartial trial, and that “court appointed counsel refused to appeal, or ask for a new trial.” That petition was denied. Gray appealed and on August 22, 1967 the United States Court of Appeals for the Sixth Circuit, in Gray v. Wingo, No. 17,750, rendered an unreported memorandum opinion affirming. It opined that the claims of inadmissible and insufficient evidence and the charge of denial of a fair trial “are insufficient because they are merely conclusions of the petitioner unsupported by any factual definition. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953).”

The Lyon Circuit Court was then petitioned for the habeas corpus writ. Gray charged that he is being held under a void judgment, which is without validity because “he was denied the effective assistance of court appointed counsel, inasmuch as counsel:

1. Erred in waiving a jury over the objections of petitioner.
2. Refused to appeal, or move for a new trial after being requested to do so.
3. Refused to subpoena witnesses for petitioner.
4. Refused to move for a continuance.
5. And refused and neglected to object to the introduction of hearsay evidence.”

The first three sections of RCr 11.42 provide:

“(1) A prisoner in custody under sentence who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court which imposed sentence to vacate, set aside or correct it.
(2) The motion shall be signed or verified by the movant and shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion.
(3) The motion shall state all grounds for holding the sentence invalid of which the movant has knowledge. Final disposition of the motion shall conclude all issues that could reasonably have been presented in the same proceeding.”

Gray alleges no reason why the remedy offered by RCr 11.42 is not adequate. Ayers v. Davis, Ky., 377 S.W.2d 154 (1964). Habeas corpus is an extraordinary remedy which is available only when relief by the usual legal processes is inadequate. Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666 (1944).

All of the “grounds for holding the sentence invalid” contained in the petition now before us could have been stated in the proceedings brought under RCr 11.42 in the Christian Circuit Court in February 1966. In Warner v. Com., Ky., 398 S.W.2d 490 (1966), we said “Sub-section (3) of RCr 11.42 was intended to protect the courts against the abuse and vexation of successive proceedings to vacate the same judgment * * *.” Also see, Kinmon v. Com., Ky., 396 S.W.2d 331 (1965), and Burton v. Tartar, Ky., 385 S.W.2d 168 (1964), certiorari denied 380 U.S. 984, 85 S.Ct. 1354, 14 L.Ed.2d 277. The issues presented here were concluded in that action. RCr 11.42(3). Caudill v. Com., Ky., 408 S.W.2d 182 (1966); Deweese v. Com., Ky., 407 S.W.2d 402 (1966); Tipton v. Com., Ky., 398 S.W.2d 493 (1966); Crochrell v. Warren, Ky., 383 S.W.2d 377 (1964); Baker v. Davis, Ky., 383 S.W.2d 125 (1964); Broadus-Bey v. Diamond, 264 F.2d 242, certiorari denied, 360 U.S. 939, 79 S.Ct. 1463, 3 L.Ed.2d 1550.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    William R. MEREDITH, II, et al., Petitioners, v. Honorable Gilbert M. WILSON, Judge, Mercer Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.

      James F. Clay, Jr., Clay & Clay, Dan-ville, for petitioners.
    Gilbert M. Wilson, Judge, pro se.
   DAVIS, Commissioner.

In this original action the petitioners seek an order directing the respondent, as Judge of the Mercer Circuit Court, to permit petitioners, who are plaintiffs in an action presently pending in the Mercer Circuit Court, to take certain discovery depositions. Other ancillary relief is sought, but we deem that the prime prayer of the present petition relates to the discovery depositions.

It appears that the present petitioners instituted an action in the Boyle Circuit Court, which is also in the 13th Judicial District over which the present respondent presides as circuit judge. KRS 23.040 (13). The action in the Boyle Circuit Court was dismissed for lack of proper venue. The propriety of the order dismissing the action in the Boyle Circuit Court is being tested in an appeal presently pending in this court.

The present petitioners have filed an action in the Mercer Circuit Court in which the parties, plaintiffs and defendant, are identical to those in the action in the Boyle Circuit Court, and the precise relief which was sought in the Boyle County action is sought in the Mercer County action. It appears that the order dismissing the action in the Boyle Circuit Court was entered August 31, 1967, and supplemented on September 8, 1967. The complaint of the present petitioners was filed in the Mercer Circuit Court on October 7, 1967. The defendant in the Mercer County action, without filing a responsive pleading to the merits of the complaint, moved that the time for filing be enlarged until twenty days after the mandate shall have been issued in the pending appeal in the Boyle County action. That motion was sustained, whereupon counsel for the present petitioners served notice for the taking of the discovery depositions of the defendant and another person. The defendant in the Mercer County suit then moved the court to enlarge its previous order, suspending the time for filing answer so as to prohibit the taking of the depositions on discovery and to quash a subpoena duces tecum issued incident to discovery depositions.

The respondent judge entered an order prohibiting the taking of the depositions and substantially suspending any proceedings in the Mercer County litigation until after the disposition of the appeal in the Boyle County case. It was this order which prompted the filing of the present proceedings in this court. After the present petition had been filed, the respondent judge amended the order attacked here so as to permit the present petitioners to take depositions to perpetuate testimony as prescribed by CR 27. Thus, the narrow question presented now is whether the petitioners are entitled to the extraordinary relief of mandamus so as to permit them to take depositions for discovery as prescribed in CR 26. It is our conclusion that in the circumstances of this case the relief sought should be granted.

The right of discovery depositions is an important one vouchsafed by the civil rules. The scope of examination as well as the form of interrogation are substantially different as respects depositions for discovery and depositions for perpetuation of testimony. See Clay, CR 27.-01, Author’s Comment 1, Page 406, specifically pointing out that depositions for perpetuation of testimony may not be used for the purpose of discovery. The petitioners alleged without contradiction that important matters involved in the litigation need to be developed by the sought discovery depositions and that the information and evidence now available may be lost in the event of the death of either of the witnesses sought to be interrogated. As noted in Wiglesworth v. Wright, Ky., 269 S.W.2d 263, we are loath to invoke the extraordinary remedies of prohibition or mandamus in cases of this sort but will do so upon a proper showing. It seems to us that there is no valid basis for denying the right to take the discovery depositions and that failure to grant relief may well subject petitioners to irreparable injury. We see nothing in the record warranting any further relief herein.

It is ordered that the respondent enter an appropriate order permitting the plaintiffs to proceed to take depositions for discovery, as prescribed by CR 26, in the action pending in the Mercer Circuit Court, wherein William R. Meredith, II, Hope Ann Lowe, and Mary Jane Allen are plaintiffs and Guy C. Ingram, Executor of the Estate of W. R. Kyle, is the defendant.

All concur.


author: PALMORE, Judge.

text:
    Geraldine CARR, etc., Appellant, v. William L. WRIGHT and City of Louisville Board of Education, Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.
    Irving I. Friedman, Edwin I. Baer, Louisville, for appellant.
    S.Lloyd Cardwell, John K. Gordinier, Stites, Peabody & Helm, Louisville, for Wright.
    Henry A. Triplett, Louisville, for City of Louisville Board of Education.
   PALMORE, Judge.

The appellant, Geraldine Carr, a junior high school student, brought this action against the Louisville Board of Education and William L. Wright, a teacher, for damages resulting from an assault and battery alleged to have been committed against her by Wright while acting within the scope of his employment. Both defendants pleaded governmental immunity. Each was awarded a summary judgment. Miss Carr appeals.

Wood v. Board of Education of Danville, Ky., 412 S.W.2d 877 (1967) and Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), settle the question of the school board’s immunity. However, the trial court erred in concluding that if, as alleged, Wright was acting within the scope of his authority as a servant of the school board he cannot be held liable.

In J. F. Schneider & Son v. Watt, Ky., 252 S.W.2d 898, 901 (1952), holding that individual members of the Kentucky National Park Commission were not civilly liable for having procured the institution of an abortive condemnation proceeding against the plaintiff, this court relied on “the general rule of law which absolves administrative agents of government of civil liability for their official acts.” But the rule is not absolute. The subject was considered at length in Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 2 A.L.R.3d 814 (1962), and the principle there stated is that a public officer acting within the scope of his authority is not personally liable for his actions unless there is “some element of personal fault * * * such as negligence or deliberate wrongdoing.” Conversely, it follows that he is liable for damages resulting from negligence or deliberate wrongdoing, regardless of whether he was acting within the scope of his authority. Cf. 4 McQuillin, Municipal Corporations § 12.211, at 153 et seq. (3d ed. 1949); Annotation, “Teacher’s civil liability for administering corporal punishment to pupil,” 43 A.L.R.2d 469.

Wright does not contend on this appeal that he is embraced within the cloak of governmental immunity. His argument is that from a legal standpoint he could not have committed an intentional tort without exceeding the scope of his official authority, and that since the complaint and amended complaint say he was acting within the scope of such authority, which is admitted in his ansyver, the allegation of intentional tort is negated and the complaint as amended is fatally defective. We find this approach unsound for two reasons. In the first place, it is not consistent with the rule of liberal construction stated by CR 8.05. In the second place, Spillman v. Beauchamp, Ky., 362 S.W.2d 33, 36, 2 A.L.R.3d 814 (1962), necessarily refutes the premise that a public officer cannot commit an intentional tort within the scope of his authority. Therefore, the question of whether Wright was acting within or beyond his authority is irrelevant.

“A teacher is responsible for the discipline of his school, and for the progress, conduct, and deportment of his pupils. It is his duty to maintain good order and to require of his pupils a faithful performance of their duties. To enable him to discharge such a duty effectually, he must necessarily have the power to enforce prompt obedience to his lawful commands. For this reason, in proper cases, he may inflict corporal punishment on refractory pupils. * * * While teachers are clothed with a discretionary authority with respect to the infliction of corporal punishment on their pupils, the punishment must be reasonable and confined within the bounds of moderation; that is, must not be cruel or excessive, and the teacher must not act wantonly or from malice or passion * * no precise rule can be laid down as to what is excessive or unreasonable punishment. Each case must depend on its own circumstances.” 47 Am.Jur. 428 (Schools, § 175).

Whether Wright actually inflicted any corporal “punishment” or physical restraint upon Miss Carr and, if so, whether it was in excess of what reasonably appeared to be appropriate under the circumstances of the case are disputed factual issues on which she is entitled to a trial.

The judgment in favor of the school board is affirmed. The judgment in favor of the appellee Wright is reversed for further proceedings consistent with this opinion.

All concur.

      . See Happy v. Erwin, Ky., 330 S.W.2d 412 (1959); Chambers v. Ideal Pure Milk Co., Ky., 245 S.W.2d 589, 591 (1952); and Manwaring v. Geisler, 191 Ky. 532, 230 S.W. 918, 18 A.L.R. 192 (1921).

      . This terminology is used to denote a tortious act that is intentional as distinct from mere negligence.


text:
    Shelby “Cotton” EMBRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.
    John D. Miller, Owensboro, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for ap-pellee.
   DAVIS, Commissioner.

Shelby “Cotton” Embry was tried before a jury in the Muhlenberg Quarterly Court on a charge of selling alcoholic beverages in local option territory as denounced by KRS 242.230. The jury returned a verdict in that proceeding as follows: “We find the defendant guilty and fix his punishment at fine of none and thirty days in jail.” The verdict was duly signed by the foreman of the jury.

KRS 242.990(1) provides that the penalty for a violation of KRS 242.230 upon a first conviction shall be fixed at a fine of “ * * * not less than twenty nor more than one hundred dollars and, [imprisonment] in the county jail for not less than thirty nor more than sixty days.” Conceiving that the judgment of the Muhlen-berg Quarterly Court was void because it was based upon a verdict fixing a penalty other than that authorized by the statute, Embry filed his “Petition for Writ of Ha-beas Corpus Ad Subjiciendum” in the Muhl-enberg Circuit Court. After a hearing on that petition, an order was entered by the trial court denying the relief sought and dismissing the petition. The present proceeding is an attempted appeal from the circuit court’s order, and a motion to deny the motion for appeal for procedural defects has been passed to the merits. In treating of appeals in proceedings for ha-beas corpus, KRS 419.130(1) provides in pertinent part:

“Any party to a hearing on a writ may appeal to the Court of Appeals by filing with the clerk of the court, within thirty days after the entry of the judgment, the original record and a transcript of the evidence, together with a notice of appeal, which notice shall be served on the other parties at least two days before the appeal is filed.”

The circuit court’s order was entered March 29, 1967. The appellant filed a notice of appeal in the circuit court on March 29, 1967, but did not file any such notice in this court, and, of course, no copy of any notice in this court was served on “the other parties” as required by KRS 419.130(1). The record on appeal was not filed in this court until May 25, 1967, substantially more than thirty days after the circuit court’s order of March 29, 1967. In these circumstances the motion to deny the attempted appeal must be sustained. See Bragg v. Knauf, Ky., 275 S.W.2d 905, and cases therein cited. Although the provisions of former Criminal Code, Section 429-1, were involved in Bragg, the present KRS 419.130 substantially incorporates the provisions of the former Criminal Code except for the enlargement of the appeal time from ten to thirty days; the precepts announced in Bragg are applicable to the case at bar.

For the reasons stated, the motion for appeal is overruled.

All concur.


author: CULLEN, Commissioner.

text:
    Warren POYNTER and Nora Poynter, his wife, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.

      Carl R. Clontz, Allen & Clontz, Mt. Vernon, for appellants.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellee.
   CULLEN, Commissioner.

Warren Poynter and wife appeal from a judgment in a condemnation case awarding them $5,500 as damages for property taken for interstate highway purposes. The jury found a “before” value of $6,500 and an “after” value of $1,000. The appellants’ witnesses had estimated a net difference in value of around $9,000, whereas the state’s witnesses put the difference at $3,700. The appellants do not argue specifically that the damages are inadequate, but we assume that a feeling of such inadequacy has prompted this appeal upon which four* alleged trial errors are asserted as grounds for a right to a new trial.

The state’s appraisal witnesses cited comparable sales in support of their estimates of the “before” value, and introduced photographs of the allegedly comparable tracts. The appellants objected specifically to the introduction of the photographs of two of the tracts on the ground that there had been no showing that the properties, at the time the photographs were taken in 1966, were in the same condition as when the sales took place (in 1961 and in 1963, respectively). The witnesses then stated that they had “inquired” as to whether there had been any change and had “found” that there had been none. The court then admitted the pictures. The appellants argue that the admission was error since there was no showing by direct evidence that no change had occurred.

Our cases have permitted appraisal witnesses to use hearsay evidence of sale prices when they cite comparable sales in support of their estimates of values. See Stewart v. Commonwealth for Use and Benefit of Department of Highways, Ky., 337 S.W.2d 880. For the same reasons we think hearsay evidence may be used to show the lack of a substantial change of condition of property cited as a comparable, between the time of sale and the time of a view or photograph by the witness. Furthermore, the pictures themselves in the instant case indicated that the conditions shown in the pictures had existed for some time, and it would not be unreasonable to indulge a presumption that there had been no change in the few years that had elapsed between the sales and the taking of the pictures. See 32 C.J.S. Evidence § 715, p. 1012. In these circumstances we think that the opposing party should have the burden of showing that there had been changes, in line with the proposition stated in Stewart v. Commonwealth for Use and Benefit of Department of Highways, Ky., 337 S.W.2d 880, that with reference to citations of comparable sales “it is better to leave the dissimilarities to examination and cross-examination.”

The appellants assert as a second ground of error the trial court’s exclusion of the testimony of one of the appellants’ witnesses that the sale at which the appellants had purchased the entire property in 1960 for only $2,500 was not a “voluntary” sale because the former owner “had difficulty, severe difficulty, with one of his neighbors, he indicated to me that his neighbor * * * had shot at him two times with a high powered rifle, there had also been a stabbing involved, he was wanting to get away.” From the words “he indicated to me” it is clear that this was hearsay evidence. The trial court excluded it on that ground and we think properly so. The fact, as hereinbefore indicated, that hearsay may be used collaterally in connection with comparable sales cited by a witness in support of an estimate of value made by him is no authority or basis for the use of hearsay to prove a specific fact, such as that the former owner of land was having trouble with a neighbor.

The third ground of error relates to the action of the trial court, on its own motion, of sending the jury to view the premises. The construction work was in progress and the terrain had been changed materially. The taking had embraced a substantial portion of the property and the parties were pretty much in agreement that the “after” value was small; the main argument was as to the “before” value. The appellants contend that the construction work had so changed the land that the jury view could not give any real picture of the “before” value but could only impress the jury with a lack of value. In our opinion the view could have been of help in enabling the jury to see the quality of the soil, which was in dispute, to see the neighborhood in which the property was located, and to get an idea of the topography of the property. Sending the jury to view the premises, in the absence of a motion by either party, is a matter of discretion with the trial court. See Commonwealth v. Crutcher, Ky., 240 S.W.2d 605. We find no abuse of discretion here.

Finally, the appellants complain of an allegedly prejudicial statement by the attorney for the Commonwealth in his closing argument. The attorney for the appellants had said in his argument, “you (the jury) are the only thing that stands between him (the property owner) and the Commonwealth of Kentucky taking this property at their price, he’s got no other protection.” The attorney for the Commonwealth countered with this statement:

“When Mr. Clontz told you that you were all that stood between the landowners and the Commonwealth of Kentucky, believe me, you are all that stands between the Commonwealth of Kentucky paying these people just what they ask for their property, you represent the taxpayers of the Commonwealth of Kentucky and this is your tax money * * * ”

In its responsive nature and under the holding in Napier v. Commonwealth, Department of Highways, Ky., 397 S.W.2d 45, we think the argument was not improper.

The judgment is affirmed.

All concur.


author: ARTHUR T. ILER, Special Commissioner.

text:
    Pauline GARRETT, Appellant, v. Wilson YOUNG, Eugene Smith, Hester Smith and Elmon Watts, Appellees.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.

      Joe Hobson, Prestonsburg, for appellant.
    Afton M. Smith, Hindman, for appellee Wilson Young.
    Grayson Johnson, Hindman, for appellees Eugene Smith, Hester Smith and Elmon Watts.
   ARTHUR T. ILER, Special Commissioner.

This is the latest of three actions involving the location of a boundary line between three parcels which formerly comprised the Joe Pigman farm. In April 1950, the farm was partitioned and divided among three of Joe Pigman’s children. Also involved is the use and location of a 15-foot roadway which was created by the partition and division instrument. The roadway leads from State Highway No. 160 and up the Joe Pigman branch of Troublesome Creek to the three parcels. Appellant Pauline Garrett and Hester Smith are children who thereby acquired two parcels. The third parcel, located across the road and creek, was acquired by Ollie Hays, another child of Pigman and a predecessor in interest and title to appellee Wilson Young. Appellee Elmon Watts became a party because he was the bulldozer operator employed to make necessary repairs to said roadway.

On September 15, 1958, appellant Pauline Garrett filed suit in Knott Circuit Court against Ollie Hays, Gus Hays and Ronald Hays Young, predecessors of Wilson Young, to quiet title to land described in that complaint. After issues were joined, the regular judge was disqualified and a special judge was designated to preside at the trial of the case.' This was Civil Action No. 748. He entered judgment dismissing the complaint. Appellant then moved the court to make additional findings of fact and to modify the judgment. The motion was overruled; no appeal was taken.

On November 15, 1963, appellant filed her second suit in the same court wherein she sought to set aside the judgment previously entered upon the ground of “newly discovered evidence.” This was Civil Action No. 1598. The complaint was dismissed because the suit was not filed within one year after entry of the first judgment. An effort was made to appeal but the appeal was dismissed.

On March 20, 1965, this action (No. 1777) was filed by appellee Wilson Young, seeking an injunction against Pauline Garrett, prohibiting her from trespassing upon the property rights of appellee and others, she having been prohibited in previous judgments which permanently established the boundary line between said parties and did permanently establish the 15-foot roadway in issue. The stated purpose of ap-pellee’s action was to prevent appellant from destroying said road, she having, by words and acts, threatened to tear out the road which had been repaired by persons other than this appellee.

Appellant filed an answer and counterclaim against Wilson Young and a third party complaint against appellees Eugene Smith, Hester Smith and Elmon Watts, alleging that the line located by the former judgment is not the correct boundary and that defendants in that action were successful because they “fraudulently concealed from the court and from appellant information which would have resulted in a different judgment,” in that they concealed a map prepared by Thomas S. Combs, which disclosed the true boundary was as testified to by appellant and her witnesses; that defendants knew of said map and that she (appellant) did not know of the map until July 1, 1963.

The basis for the third party complaint was that third party defendants employed their co-appellee Elmon Watts to operate a bulldozer over part of the land owned by her and thereby caused the course of the creek to be changed so as to damage her property in the sum of $7,000.00.

Appellant seeks a reversal by this court of the judgment entered in No. 1777 sustaining appellee Wilson Young’s motion for summary judgment, dismissing her counterclaim against the other appellees. In her brief she relies on two propositions:

First, that the trial court erred in sustaining the motion for summary judgment dismissing her counterclaim;

Second, the court erred in dismissing third party complaint of appellant against Eugene Smith, Hester Smith and Elmon Watts, when said appellees never filed any motion for summary judgment.

As to the first ground stated by appellant, it will be noted that in the present cause she seeks relief through her allegation of fraud. Whereas, in her second effort she sought relief because of newly discovered evidence, to-wit, the Thomas S. Combs map. (Suit filed Nov. 15, 1963.) The trial court’s final ruling that the issue was res judicata was not error. In the one case she applies for relief from the judgment fixing the location of the 15-foot roadway and the rights of the various parties to the use thereof, on the theory that “new evidence has been discovered,” to-wit, a map made by Thomas S. Combs. Having lost that case, she later comes back with a new suit which includes the same land plus an additional tract against substantially the same parties, plus a workman, for the same relief plus damages alleged to result from a trespass on said property. All on the theory of a fraud purportedly practiced upon appellant and the court by abutting landowner appellees, to-wit, their withholding of the said Thomas S. Combs map.

The trial court having adjudged and fixed the location of the roadway, and boundaries dividing it from the abutting property, and having established the rights of the parties to the use thereof by a judgment which had not since been vacated, modified or reversed, said court, in another action brought five years later, was powerless to set aside the former judgment in face of the defense of res judicata, and his ruling on appellee’s motion for summary judgment was not error.

In the case of Hays v. Sturgill, 302 Ky. 31, 193 S.W.2d 648, 164 A.L.R. 868, cited by both appellant and appellee Wilson Young, we said:

“The rule that issues which have been once litigated cannot be the subject matter of later action is not only salutary but necessary in the administration of justice. The subsidiary rule that one may not split up his cause of action and have it tried piecemeal rests upon the same foundation. To permit it would not be just to the adverse party or fair to the courts. * * * ”

And in Combs v. Prestonsburg Water Company, 260 Ky. 169, 84 S.W.2d 15, at page 18, it is stated:

“ * * * and the plea of res judicata applies not only to the points upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

As to the second argument: Appellant takes the position that the court was presumptuous and without authority to sustain the motion for summary judgment purportedly, but never actually, made and that the court was wholly without authority to dismiss appellant’s third party complaint against Eugene Smith, Hester Smith and Elmon Watts, there not having been filed any motion on their behalf for a summary judgment. The record reveals that a notice of motion for summary judgment was duly served on appellant by appellee, Wilson Young. No further motion, as such, was served or filed. It was not error for the court to consider the “Notice” as the “Motion”. CR 7.02(1) provides that the motion may be incorporated in the notice and the record here discloses that was done. At any rate, appellant did not oppose the purported motion in any proper manner before appeal.

However, the situation is different with respect to the third party defendants. They neither served notice nor made a motion for a summary judgment in any form, or a motion to dismiss. They contend on appeal that, when the trial court ruled that the roadway had been established by previous actions and judgments, it had no alternative but to dismiss the third party complaint, as no trespass had been committed against the property of appellant Pauline D. Garrett. According to prior judgments the property in issue was not owned by her.

It is elemental that a cause for damages based on a trespass must fail, in the absence of proof of trespass.

Under the terms of a valid judgment, third party defendants had a right to repair and improve the roadway so that they could use it as a means of access to their property. While the court may have committed error in granting summary judgment for the third party defendants without any motion therefor having been made, the error cannot be considered prejudicial because the third party defendants were certain to prevail ultimately.

The judgment of the lower court is affirmed.

All concur.


text:
    Ed C. PAYNE, Appellant, v. Thomas HALL, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.
    J. W. Jordan, Barbourville, for appellant.
    H. M. Tye, Barbourville, for appellee.
   STEINFELD, Judge.

Sometime between 8:30 p.m. and 9:00 p. m. on May 10, 1964, appellant, Ed C. Payne, was walking along his left side of Kentucky Highway No. 225. He was leading a cow. He claims that he had a rope wrapped around his arm with the other end tied to the neck of the cow. A small boy was following closely behind the cow. Payne saw headlights of an automobile approaching in the direction in which he was walking and headlights of another vehicle approaching from the opposite direction. Realizing that he was in danger because the two vehicles would pass near the point where he was walking, he shouted to the boy “look out” and he and the boy jumped across the shoulder of the road to a place about nine feet and possibly fifteen feet from the pavement. The cow remained on the shoulder between Payne and the paved portion of the road. The vehicle approaching Payne from the rear was traveling at a speed estimated at between 70 to 80 miles per hour. The Hall automobile which was approaching from the front of Payne was going about 40 miles per hour. Appellee, Hall, who was the only defendant below, testified that the car approaching him rounded a curve and was over on its left side which forced the Hall car onto the shoulder. He also claims he was blinded by the headlights of the fast moving vehicle which did not stop and neither it nor the driver have been identified. The Hall car struck the cow, killed it and traveled approximately 20 feet after the collision.

Payne claims that the rope around his arm and which was tied on to the cow’s neck jerked and threw him backwards injuring him severely and that the injuries made necessary an operation and surgical treatment. Hall claims that Payne was not injured.

After hearing the evidence the jury returned a verdict as follows:

“We the jury as a whole find for the defendant, William Thomas Hall, not guilty of negligence. We further recommend that William Thomas Hall be required to pay $150.00 for the loss of the cow.”

No motion for a new trial was made whereupon the court “ordered and adjudged that the complaint herein against the defendant be dismissed, held for naught; that plaintiff take nothing thereby. The plaintiff shall recover his costs herein expended and this cause is now stricken from this court’s docket.” Payne has appealed.

Hall says the award of court costs to Payne was error. Since he did not cross-appeal and made no motion in the lower court to correct the judgment, he cannot complain. CR 59.06. Com., Dept. of Highways v. Williams, Ky., 317 S.W.2d 482 (1958); East Ky. Rural Elec. Co-op. v. Price, Ky., 398 S.W.2d 705 (1966).

Payne contends that the verdict found the defendant not guilty of any negligence but allowed him to recover $150.00 for the death of the cow; also that the judgment did not follow the verdict because it dismissed his complaint but allowed him costs. He charges that the verdict is void because it is inconsistent with the law, and that the judgment is erroneous in that it did not follow the verdict. He relies upon Smith v. Webber, Ky., 282 S.W.2d 346 (1955); Wall v. Van Meter, 311 Ky. 198, 223 S.W.2d 734, 20 A.L.R.2d 272 (1949); Civil Rule 59.01 through Civil Rule 59.06.

The Webber case stands for the proposition that “Where a verdict is materially inconsistent or incongruous it should, as a rule, be set aside and a new trial granted. This is upon the idea that the verdict is contrary to the evidence and the law for which a new trial is authorized by CR 59.-01(6), which is like Sec. 340(6) of the Civil Code of Practice”. We held there that “The trial court should have set aside the verdict and ordered a new trial”. The Van Meter case holds that the jury has the duty of being governed by the instructions whether they are right or wrong and that “a verdict contrary to the instructions is contrary to law”. Both of these cases contemplate that the trial court be given the opportunity to correct the error made by the jury or to grant a new trial.

Hall argues that Payne waived his right to complain because he did not object to the verdict when the jury returned it and he did not file or make a motion for a new trial so that the lower court would have an opportunity to correct the alleged error. Hall relies on Civil Rule 59.01 which provides in part “a new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:

(1) Irregularity in the proceedings of the court, jury or prevailing party, or an order of the court, or abuse of discretion, by which the party was prevented from having a fair trial.
(2) Misconduct of the jury, of the prevailing party, or of his attorney.
* * * ⅜ * *
(8) Errors of law occurring at the trial and objected to by the party under the provisions of these rules.”

He also cites Civil Rule 59.06 which provides “Allegations of error, otherwise properly preserved, in respect to rulings, orders or instructions of the court need not be presented in a motion for a new trial in order to be preserved for appellate review.” He says that this court in the interpretation of these two Civil Rules as applied to cases similar to the present case has held “the function of the Court of Appeals is to review possible errors made by ‘the trial court, and if such court had no opportunity to rule on the question, there is no alleged error before the Court of Appeals to review.” He cites Hutchings v. Louisville Trust Co., Ky., 276 S.W.2d 461 (1954); Collins v. Sparks, Ky., 310 S.W.2d 45 (1958); Com., Dept. of Highways v. Williams, et al., Ky., 317 S.W.2d 482 (1958); East Kentucky Rural Electric Co-op. v. Price, supra; and 7 Kentucky Practice, Clay, page 214.

The trial court was given no opportunity to pass on these contentions, which is a prerequisite here to appellate review. Com., Dept. of Highways v. Taylor County Bank, Ky., 394 S.W.2d 581 (1965). In 7 Kentucky Practice, Clay 215 it is said, “Clearly before a party may request appellate review of such matters under those circumstances, the trial court must be given an opportunity to decide the questions raised.” See Com., Dept. of Highways v. Williams, supra; Adams v. Commonwealth, 285 Ky. 38, 146 S.W.2d 7 (1941); Scobee v. Donahue, 291 Ky. 374, 164 S.W.2d 947 (1942); Little v. Whitehouse, Ky., 384 S.W.2d 503 (1964).

The next contention is that the instructions were erroneous in that “the court gave a sudden emergency instruction which was to the prejudice of the appellant’s legal rights and thereby confused the jury when by law appellee was not entitled to such an instruction.” Whether the instruction should or should not have been given is a matter we cannot consider. CR 51. When the instruction was offered counsel for Payne objected “to the giving of Instruction C because it is undertaking to deal with the duties of the parties to the transaction which have been set out in Instruction A, and this instruction would only tend to confuse the jury, if it is not inconsistent with Instruction A, which is to be given by the Court.”

In Young v. DeBord, Ky., 351 S.W.2d 502 (1961) we said:

“Appellants in the trial court protested the submission of the instructions on a general ground. On this appeal they have changed their approach and now undertake to pinpoint certain alleged errors. Obviously, CR 51 condemns such a practice and, in consequence, we must hold they cannot now be heard on these matters. See the recent case of Chaney v. Slone, Ky., 345 S.W.2d 484, where the principle we have discussed was considered and resolved in conformity with the end result we have reached.”

That rule is applicable here. Also see Cox v. Hardy, Ky., 371 S.W.2d 945 (1963).

The judgment is affirmed.

All concur.


text:
    Rex MASON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    Rehearing Denied Feb. 23, 1968.

      William E. Scent, David R. Reed, Jr., Reed, Scent & Reed, Paducah, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Jr., Asst. Atty. Gen., Frankfort, L. M. Tipton Reed, Mayfield, for appellee.
   STEINFELD, Judge.

Mason was found guilty of manslaughter in the second degree (KRS 435.022(2)) and his punishment was fixed at confinement in the county jail for 12 months. Mason makes no contention that he could not be found guilty of involuntary manslaughter when he committed an assault. He admits that the evidence was sufficient to support a finding that he was guilty of assault and battery, but he contends that it was insufficient to sustain the finding that he was guilty of involuntary manslaughter. We find this contention without merit. We affirm.

Mason, age 52, was a neighbor of Leonard Copien who was 72 years of age. They had been friends for many years. On several occasions Mason’s hogs had escaped and had damaged Coplen’s yard. On September 10, 1966, Mason went to the Copien residence. Following a heated argument Mason assaulted Copien. He was bruised about the left temple and sustained lacerations about the cheek and nose.

Mrs. Copien testified that her husband was on the ground and that Mason was hitting him. She tried to help him but was restrained by another man. After Mason and this other man left, Copien tried to get up but he could not she said, without her help. She led him to a chair on the porch and while she was calling the Sheriff “he was struggling” and “you could have heard him at the back of the house.” She then telephoned the doctor, and “rushed back to (her) husband”. By that time he was dead.

Mr. Copien was in the same chair when the doctor arrived. The doctor testified that “He had been dead only — a short time —exactly how long I don’t know.” An autopsy was performed by this same physician.

There is only one contention made to support Mason’s claim for reversal, and that is “The Commonwealth’s own medical testimony proved that the assault and battery did not cause the decedent’s death * * * an essential element of criminal homicide.”

The interrogation of the physician which is of interest on this issue is as follows:

“A. When I arrived Mr. Copien was sitting in a rocking chair on the front porch and he was dead. He had been dead only a short time — exactly how long I don’t know. He had some bruises on his head in the left temple area and on his right cheek.
Q. Dr. Simpson, did you examine the body at that time ?
A. Yes sir. However, I made a more extensive examination later.
Q. What were your findings based on your examination of Mr. Copien at that time?
A. We did an autopsy on him. Dr. Howard went with me at the time out to the home and he also assisted me at the autopsy. The bruises on the head were external. There was no evidence of any brain damage from the blows or supposed-blows that caused the bruises. There were no blood clots in the skull inside. His heart showed evidence of fatty degeneration of the heart and also of arteriosclerotic heart disease, which is hardening, of the arteries. No further examination was done because there was none needed for this particular thing.
Q. And your findings then show that his death was caused by — ■
A. Now, that’s a hard question to answer. He had a heart condition that could at any time cause death.
Q. Did he die as a result of that heart condition ?
A. As far as I know. There was no evidence that anything else caused it.
Q. Now, the cause of Mr. Coplen’s death was a coronary occlusion, was it not?
A. Yes sir.
Q. And at the point where you found this occlusion what was the size of it?
A. It was no size; it was occluded.
Q. How far from the heart itself?
A. Actually it was in the muscle of the heart but from the beginning of the heart where it enters the heart it was about midway, three or four inches.
Q. Would you state from your examination whether or not the deceased appeared to have been severely beaten or how would you describe his injury?
A. The injuries were as I have described them. Two blows could have done it. However, I don’t know. Of course, you can receive blows without bruising if they are lighter blows.
Q. But you found no internal evidence at all of any damage the deceased sustained from these blows ?
A. That’s correct.
Q. And he died from a coronary occlusion ?
A. Yes.
Q. Caused by arteriosclerosis?
A. Yes.
Q. In treating a condition like you found existed in the deceased would you advise your patient to avoid exertion — extreme exertion or emotional outbreaks or becoming extremely angered?
A. I would think he should.
Q. You said he died of a coronary occlusion ?
A. Yes.
Q. And as the history was revealed to you by someone there had been violence shortly before his death — isn’t that right ?
A. Yes sir.

To support his claim that the Commonwealth has failed to meet the burden necessary to support the judgment, counsel for Mason argues that the crime of involuntary manslaughter requires proof of the killing of another (Middleton v. Commonwealth, 304 Ky. 784, 202 S.W.2d 610 (1947), and he relies on Witt v. Commonwealth, 305 Ky. 31, 202 S.W.2d 612 (1947), White v. Commonwealth, Ky., 360 S.W.2d 198 (1962), Harvey v. Commonwealth, Ky., 318 S.W.2d 868 (1958) and Hubbard v. Commonwealth, 304 Ky. 818, 202 S.W.2d 634 (1947). Witt and Hubbard were distinguished in Flynn v. Commonwealth, Ky., 302 S.W.2d 851 (1957). White dealt with the sufficiency of evidence to show intent to kill. In Harvey the victim “immediately fell, was rushed to the hospital in an ambulance and died within less than an hour after he was shot”. We said “In such circumstances it is not necessary to prove by a physician that the wound inflicted was the cause of death”.

In Payne v. Commonwealth, 289 Ky. 590, 159 S.W.2d 430 (1942) we pointed out that the less than perfunctory examination of the doctor disclosed that he discovered neither marks nor wounds on the body and we said that the medical evidence was “neither persuasive nor conclusive on the jury.” The uncontradicted proof in Payne showed that the deceased was felled by Payne and that his head struck the hard surface of the road. The deceased did not regain consciousness but was carried to a nearby gas station where he died shortly thereafter. We pointed out that 'there were no intervening causes. We announced the rule that satisfactory evidence must establish “the existence of some criminal agency causing the death”, but that “this evidence may be circumstantial”. The test announced is that “There must be established such circumstances as from which the jury may draw a reasonable inference that a crime has been committed.” We held that the facts and circumstances showed that the blow was “the moving cause of * * * death”.

We said in Flynn v. Commonwealth, Ky., 302 S.W.2d 851 (1957) that “ * * * one is criminally liable where he inflicts wounds that cause the death of the victim indirectly or through a chain of natural effects and cause, unchanged by human action, or where violence inflicted by the accused was a clear contributing cause of death although perhaps not the sole cause”. We pointed out that “ * * * there was continuity in connection with the violent blows inflicted by the accused and the death of his victim.”

In the matter now before us there was continuity and connection between the violence inflicted and the death. The appellant did not rebut the very strong circumstantial evidence that the death was caused and brought about by the assault. While the doctor was unable to say that the assault caused and brought about the coronary occlusion we hold that the age of the victim, the surrounding circumstances including his attempts to rise, his struggle to live and his almost immediate death were sufficient proof upon which the jury could and did find that the death was caused and brought about by the acts of the accused. Tucker v. Commonwealth, 303 Ky. 864, 199 S.W.2d 631 (1947).

The judgment is affirmed.

All concur.


text:
    Lawrence HARVEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Rehearing Denied Feb. 23, 1968.

      Richard H. Nash, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Having been convicted and sentenced to imprisonment for three years upon a charge of grand larceny, Lawrence Harvey appeals and contends: (1) that he was entitled to a peremptory instruction of acquittal; (2) that the trial court unduly restricted his right of cross-examination of witnesses; (3) that the court made improper comments in the presence of the jury; and (4) that the instructions and forms of verdicts submitted to the jury were erroneous.

According to the evidence for the Commonwealth, Lawrence Harvey and Benjamin Jack Anderson were seen carrying a television set which they loaded into a “U-Drive-It” truck. Employees of the MidLand Warehouse first noticed this activity when they returned from their lunch period. One of the employees confronted Anderson and inquired whether he had a bill of lading, to which Anderson responded that Harvey had such bill of lading. Before the witness could check this with Harvey, the latter “took off,” first by walking and then by running away. Harvey ran in a large storage warehouse and climbed upon some cartons where he was located shortly thereafter.

Meanwhile, Anderson fled the area by driving away in a pick-up truck (not the U-Drive-It truck). News of this transaction was conveyed to the Jefferson County police. Officer Sohn of that department arrived at the scene quite promptly and located Harvey on top of some cartons. Officer Sohn learned of Anderson’s departure from the scene, and he notified his headquarters of the situation with a request that an effort be made to locate Anderson, who was thought to be in or about a cornfield close by. Pursuant to that request, another officer of the Jefferson County Police Department did locate Anderson who was seated in an automobile parked alongside the National Turnpike. Anderson related to the officer that the car had run out of fuel and his companion had gone to obtain gasoline. The officer noted that the ignition keys of the automobile were missing and Anderson was naked from his waist up. It was shown later that the automobile belonged to appellant Harvey.

A farmer who lived nearby testified that he saw Anderson drive a pick-up truck into his barn lot where he parked it and alighted. This witness noticed Anderson removing his shirt and walking hurriedly away from the area. The same witness saw Anderson later in the automobile and positively identified him at the trial.

Another witness testified that earlier on the morning of the crime, he had rented a truck to appellant Harvey who had used the alias, Charles W. McRay.

Harvey and Anderson were jointly indicted and tried. So far as the record before us discloses, neither of them made a motion for separate trial. Each of them denied complicity in the offense and insisted that the Commonwealth’s witnesses had made a mistake in identification. Harvey admitted that he had been on the premises of the Mid-Land Warehouse Company but maintained that he went there seeking a telephone in order to obtain service for his disabled car. He undertook to explain his flight and unusual position on the cartons by claiming that he was frightened when a group of Mid-Land’s employees chased him with various menacing weapons. Both Harvey and Anderson testified that Anderson had never been upon the Mid-Land Warehouse premises at any time.

The appellant contends that there was a failure of proof touching the question of ownership of the television sets which were the subject of the alleged larceny. At the conclusion of the evidence for the Commonwealth, the appellant made timely motion for peremptory instruction of acquittal based upon that contention. The motion was overruled, although there had been no direct testimony respecting the ownership of the television sets. Thereafter, appellant and Anderson took the witness stand and related their versions of the affair. They disclaimed involvement and clearly disclaimed ownership or right of possession of the television sets. The elements of larceny are accurately stated in Hunt v. Commonwealth, Ky., 338 S.W.2d 912, as follows:

“In the offense of larceny the elements consist of the taking and asportation of property of another by trespass with the felonious intent to permanently deprive the owner of the property.” Id. 338 S.W.2d 914.

Within the framework of that definition, it is obvious that Harvey cannot be heard to say that he owned or had the right to possession of the television sets. In short, Harvey (and Anderson) supplied for the Commonwealth any deficiency which may have existed in the Commonwealth’s evidence respecting the right of possession and ownership of the property. In such circumstances there is no reversible error in the failure of the court to peremptorily instruct for acquittal at the conclusion of the Commonwealth’s evidence. Campbell v. Commonwealth, 244 Ky. 328, 50 S.W.2d 929; Eaves v. Commonwealth, 241 Ky. 140, 43 S.W.2d 528; Shepherd v. Commonwealth, 240 Ky. 261, 42 S.W.2d 311.

Harvey and Anderson were represented by their separately retained attorneys. During the course of the trial, the presiding judge substantially directed that each attorney should confine himself in cross-examination to matters pertaining to his own client. We agree that the right of liberal cross-examination is a very substantial and important safeguard in the proper trial of criminal and civil cases. Without unduly extending this opinion by detailed reference to the rulings complained of, we regard it as sufficient to say that we are unable to find any prejudicial error stemming from the rulings of the trial judge respecting the cross-examination of witnesses. In general, the restriction was directed against repetitive interrogation, and there is nothing to suggest that any available testimony was denied the appellant. Without deciding that any error was committed, we observe that RCr 9.24 would preclude reversal upon the ground asserted.

The next assault upon the judgment is premised upon claimed improper remarks from the bench by the trial judge. Reliance is had upon Merritt v. Commonwealth, Ky., 386 S.W.2d 727, but we find the situation at bar readily distinguishable from that in Merritt. Without cataloguing the criticized comments of the court, we are entirely convinced that there is no merit in the contention advanced in this regard. The trial judge said nothing which could be regarded as reflective of a partial attitude on his part.

The appellant contends that the court should have instructed the jury that it could find either of the defendants guilty or innocent without so finding the other. In the peculiar circumstances of this ease, such an instruction would have been improper. The two men accused were necessarily bound to stand or fall together, and the instructions and forms of verdicts submitted to the jury were appropriate. See Duroff v. Commonwealth, 192 Ky. 31, 232 S.W. 47; Johnson v. Commonwealth, 311 Ky. 182, 223 S.W.2d 741.

The judgment is affirmed.

All concur.


text:
    William Lee TUCKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 26, 1968.
    Grover C. Cox, Owensboro, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

William Lee Tucker appeals from a judgment sentencing him to a two-year term in the penitentiary pursuant to a verdict convicting him of breaking and entering a storehouse with intent to steal, KRS 433.190. His only claim of error is that the admission of a certain item of evidence was improper because the evidence was obtained by an illegal search.

A garage in McLean County was broken into in the middle of the night and several items were stolen. The sheriff was called to the scene and shortly after arriving he noticed a blue 1959 Chevrolet, with three men in it, driving away from the area at a high rate of speed. He drove off in search of that car and after a time came upon a blue 1959 Chevrolet, with three men in it, driving along the highway. When he neared it the car took off at high speed and after a chase of some duration he succeeded in forcing the car to a stop. He went up to the car and stated to the occupants (one of whom was the appellant) that they were under arrest. He then proceeded to search the car and found under the front seat a micrometer, which was introduced in evidence on the trial and was identified as having been stolen from the garage. The appellant objected to the admission of evidence concerning the micrometer on the ground that it had been obtained by an illegal search.

The appellant’s argument rests squarely on the proposition that the appellant and his companions were arrested for speeding, and under Lane v. Commonwealth, Ky., 386 S.W.2d 743, 10 A.L.R.3d 308, the making of an arrest of the operator of a vehicle for “a traffic or other minor violation” does not authorize a general search of the vehicle. The trouble with this argument is that as we view the record the arrest was not for speeding, but for storehouse breaking.

It is true that upon cross-examination the sheriff was asked these questions and gave these answers:

“Q. 50 Now when you approached the car, did you tell these individuals that they were under arrest ?
A. After I got up there, yes. I didn’t tell them when I approached, no.
Q. 51 What did you tell them they were under arrest for, speeding?
A. No, I don’t rightly recall what I told them.”

While the sheriff’s last answer is somewhat ambiguous, it could be interpreted from his use of the word, “No,” as meaning that while he did not remember exactly what he told the men he did not tell them they were under arrest for speeding. No effort was made by either side to clarify or amplify this testimony of the sheriff, and when the defendant took the stand he was not asked about the formalities of the arrest.

An event did occur earlier in the trial, which we think has significance in respect to the arrest. In an examination of the sheriff in chambers, in regard to whether he had advised the defendant of his constitutional rights, the sheriff was asked whether on the night in question he “did arrest William Lee Tucker and charge him with breaking into the Boggess Chevrolet,” and his answer was “That’s right.” It is reasonably clear from this that the arrest was on the breaking and entering charge. And with that in the record we are of the opinion that it was incumbent upon the defendant, if he claimed the arrest was for speeding, at least to thoroughly explore the matter rather than drop it after asking one question of the sheriff and receiving an ambiguous answer.

The testimony of the sheriff, taken as a whole, indicates with reasonable certainty that he looked for and pursued the blue Chevrolet car because he thought the occupants had broken into the garage, and his intent from the beginning was to apprehend them. He did not use a charge of speeding as a subterfuge for stopping and searching the car.

Under all of the circumstances of this case it is our opinion that Lane v. Commonwealth, Ky., 386 S.W.2d 743, 10 A.L.R.3d 308, is not applicable. The appellant does not contend that the search was invalid otherwise than under Lane.

The judgment is affirmed.

All concur.


author: POPE, Justice.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, a Corporation, Petitioner, v. PONSFORD BROTHERS, a Co-partnership, Respondent.
    No. B-297.
    Supreme Court of Texas.
    Jan. 17, 1968.

      Kemp, Smith, White, Duncan & Hammond, William J. Derrick and Tad R. Smith, El Paso, for petitioner.
    Scott, Hulse, Marshall & Feuille, Schuyler B. Marshall and George W. Finger, El Paso, for respondent.
   POPE, Justice.

Ponsford Brothers, a partnership, sued Trinity Universal Insurance Company to recover the funds Ponsford advanced to a subcontractor to enable the subcontractor to complete its contract for the excavation and dirt moving work' incident to the construction of the Sun Bowl Stadium. Pons-ford sued upon a contract it had with Trinity. The trial court, upon the basis of jury findings, rendered judgment for Pons-ford in the sum of $111,792.93 and $7,500.-00 attorney fees, and the court of civil appeals affirmed the judgment. 414 S.W.2d 16. Trinity urges a number of points, but most of them are satisfactorily treated by the opinion of the intermediate court. Decisive of the case will be our discussion of Trinity’s points that the trial court erred in (1) treating the contract between Pons-ford and Trinity as ambiguous, (2) admitting parol evidence of the surrounding circumstances to remove the ambiguity, (3) submitting a question of law to the jury, and (4) allowing attorney fees. We affirm the judgment below except for the allowance of attorney fees.

During 1961, Dallas Building Inc. made a general contract with El Paso County for the construction of the Sun Bowl Stadium. The County on April 5, 1962 declared that firm in default. Trinity was surety for the defaulting contractor upon its performance and payment bonds, and was then faced with the necessity of making prompt arrangements to complete the stadium without further losses. It hurriedly solicited bids from other general contractors. Trinity wanted to retain the original subcontractors and materialmen because they had partially performed, their contracts were for the most part satisfactory, and Trinity wanted to avoid possible claims or suits by them. The defaulting contractor had developed a schedule showing the contract price agreed upon by each of the subcontractors and suppliers, the percentage of their work completed and material supplied, and the balances left in the contracts which were unearned and unpaid. The balances were computed as of March 31, 1962. Trinity supplied each new bidder with copies of the schedule and the plans and specifications for the project. It advised all bidders to submit their bids by April 20, which was only fifteen days after the default by the original contractor. Everyone concerned knew that time was too short for bidders to make a careful estimate of completion costs, so Trinity also advised the bidders that they could condition their bids upon the completion of the work by the existing subcontractors for the sums shown by the March 31 schedule. It was at this point that four new contracts were made.

Ponsford and Trinity entered into the first contract. It is the basis of Ponsford’s suit and recovery against Trinity. Pons-ford submitted its bid on April 20, 1962 agreeing to complete the Sun Bowl Stadium for the sum of $1,224,000.00 based upon a number of conditions including the one in paragraph 5 of its letter bid.

“5. We are to be protected by Trinity Universal Insurance Company for amounts in excess of the balance due on contract (dated March 31, 1962) because of re-negotiations or replacement of existing subcontractors or material suppliers.”

Trinity accepted Ponsford’s bid on April 25 by a letter which both parties signed. By the letter contract, Trinity and Pons-ford agreed upon a number of matters not contained in any of the other documents. Trinity agreed to pay for Ponsford’s performance and payment bonds, to hold Pons-ford harmless as to claims which might be asserted by the original defaulting contractor, to make adjustments of the allowance to which Ponsford might be entitled for materials on hand at the job site, and to pay Ponsford six per cent interest on any funds held by the County by reason of any action of the former defaulting contractor. Paragraph 5 of the letter was similar to paragraph 5 of Ponsford’s bid. It is this paragraph 5 which Ponsford alleged was ambiguous. The paragraph is:

“5. You will attempt to negotiate similar contracts with all of Dallas Building, Inc.’s subcontractors and suppliers. Trinity will reimburse you for any amounts in excess of the balances shown on the schedule prepared by Dallas Building, Inc., dated as of March 31, 1962, resulting from such negotiations.”

The second contract was the new general contract that Ponsford made with El Paso County to complete the Sun Bowl Stadium for the sum of $1,224,000.00. It is not significant in this particular suit.

The third contract was one which Trinity made with Montgomery and Knight on May 7. Montgomery and Knight had the subcontract for the excavation and dirt moving at the time the original general contractor defaulted. Ponsford, as it did with all of the other subcontractors and materialmen, undertook to make a new contract with Montgomery and Knight. Ponsford failed to make a new contract only in the instance of Montgomery and Knight, who proved to be so financially unstable that they could not provide a performance bond. That firm also refused to make a new contract until it received $27,-987.00 which had been retained by the defaulting general contractor. Only $46,-680.00 remained unpaid under the original dirt moving contract and that amount was known to be wholly insufficient to complete the excavation and dirt moving for the Sun Bowl construction. Ponsford reported its inability to contract with Montgomery and Knight, and Trinity then solicited bids from others for the dirt moving. The lowest bid received for completion of the dirt work was $108,000.00. Trinity then resumed negotiations with Montgomery and Knight and made a contract with that firm. The contract provided for partial payment to Montgomery and Knight of the sum retained by the original contractor, and Trinity agreed to pay $60,651.98 instead of $46,-680.00 for that firm’s completion of the dirt work. The letter contract also required Montgomery and Knight to make a new subcontract with Ponsford in these words:

“This will evidence in writing the agreement between Trinity Universal Insurance Company (Trinity) and Montgomery and Knight Co. relative to your completing the grading, excavating and other dirt work on the Sun Bowl Stadium.
“1. You will execute a sub-contract with Ponsford Brothers, which sub-contract will be substantially the same as your original sub-contract with Dallas Building, Inc., dated August 16, 1961, except that the total consideration will be $60,651.98. You will commence work under such sub-contract Tuesday morning, May 8, 1962, and complete same in a good and workmanlike manner in accordance with said sub-contract.”

The fourth contract was the subcontract executed by Ponsford and Montgomery and Knight. It was made on May 8 and consisted of Ponsford’s form subcontract with a copy of the Trinity-Montgomery and Knight letter contract attached. The contract with Ponsford was made after Montgomery and Knight had commenced work pursuant to its contract with Trinity.

Montgomery and Knight were unable to complete the dirt work for the $60,651.98 which Trinity had negotiated. Ponsford and Trinity then agreed that Ponsford would advance the funds necessary to pay Montgomery and Knight’s actual labor and costs while completing the dirt work. No decision was then reached with respect to the responsibility for such costs. Ponsford advanced $111,792.83 above the $60,651.98 which Trinity had negotiated, and then called upon Trinity to reimburse it for those advancements, but Trinity denied any liability.

The jury answered all issues favorably to Ponsford’s several theories of recovery, finding that (1) the parties mutually intended that the defendant, Trinity, would be liable for any overrun of Montgomery and Knight, (2) Ponsford, in good faith, was not able to negotiate a contract with Montgomery and Knight, (3) Ponsford left such negotiations to the defendant, Trinity, (4) Ponsford was used solely for the supervision and coordination of the work and disbursement of funds left in the original contract between the defaulting general contractor and Montgomery and Knight as its subcontractor, (5) the parties mutually intended by the contract between Trinity and Montgomery and Knight and by Ponsford’s new subcontract with Montgomery and Knight, that Trinity would be responsible for any overrun of Montgomery and Knight in excess of the balance left in the original dirt subcontract with the original defaulting contractor, (6) Trinity’s agent induced Ponsford to execute the subcontract by assurances that Ponsford would be reimbursed for all amounts in excess of $46,680.00, (7) Trinity’s agent was acting within the scope of his authority as Trinity’s agent, (8) Ponsford in good faith relied upon Trinity’s assurance. There were other issues not relevant to our disposition of this case.

In our opinion, the answer to the first special issue entitled Ponsford to a judgment, and we express no opinion concerning the legal effect of the other issues. The jury in answer to the first special issue found that Ponsford Brothers, by paragraph 5 of their letter bid on April 20 and Trinity, by paragraph 5 of its letter of acceptance on April 25, “mutually intended that * * * Trinity would be liable for any overrun of Montgomery and Knight * * *. ” The court instructed the jury that they could take into consideration the facts and circumstances surrounding the making of the agreements set out in those documents as well as any acts done mutually by the parties in the performance of the agreements. The jury found against Trinity on its converse issue which asked whether the two paragraphs 5 were “mutually intended by plaintiff, Ponsford, and defendant, Trinity, to mean that Trinity would be obligated to reimburse plaintiff, Ponsford, only for the amount by which any new supplemental contract price exceeded the balance shown on the schedule of March 31, 1962.”

Trinity urges that its contract with Ponsford was unambiguous and meant that it would pay any difference between the balance shown by the March 31 schedule and the $60,651.98 provided in the new contract between Trinity and the dirt mover and later incorporated into a new subcontract by Ponsford. Ponsford alleged that the contract was unambiguous and, alternatively, asserted that it was ambiguous. Ponsford urges that it agreed to attempt to make a new contract with Montgomery and Knight, that it did so and failed, after which it was free to make a new contract with any other firm at a much higher price and with a company that could have made a bond. Ponsford says that Trinity would have been liable under such circumstances for the full cost. Ponsford says that it acceded to Trinity’s desire to take the risk of an unbonded contractor who made a contract that knowingly was too cheap, because of the protective contract under which Trinity agreed that it “would reimburse you (Ponsford) for any amounts in excess of the balances shown on the schedule * * * dated as of March 31, 1962, resulting from such negotiations.” Ponsford says that it understood Trinity’s commitment to mean that Ponsford would be protected for any excess cost “resulting from such negotiations,” and that the default was a result of the negotiations with Montgomery and Knight. We agree with the holdings of the courts below that the meaning of the contract between Ponsford and Trinity was reasonably susceptible to more than one meaning and was ambiguous. Universal C.I.T. Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951); Skelly Oil Co. v. Archer, 163 Tex. 336, 356 S.W.2d 774 (1962).

The trial court properly admitted evidence to remove the ambiguity of the words used in the contract. Skelly Oil Company v. Archer, supra; Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504 (1942); Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391 (1932); Taylor v. McNutt, 58 Tex. 71 (1882); 13 Tex.Jur.2d., Contracts, § 127; 2 McCormick and Ray, Texas Law of Evidence, §§ 1681, 1685. Trinity particularly objected to the trial court’s admission of a letter that its agent sent to Trinity on May 8. Trinity’s agent wrote concerning the understanding he had reached with Ponsford on behalf of Trinity, “under Ponsford’s contract with Trinity, Ponsford is to be reimbursed for all amounts in excess of $46,000.00 for the dirt work * * *. If Montgomery and Knight Co. complete their contract * * * we will have saved approximately $75,000.00 on the dirt work along.” The evidence was properly admitted. It has been held that the practical construction placed upon a contract by the parties themselves constitutes the highest evidence of their intention. Lone Star Gas Co. v. X-Ray Gas Co., supra.

Trinity also objected to the court’s submission of the first special issue on the grounds that it submitted a question of law. The issue inquired whether by Ponsford’s bid and Trinity’s acceptance those parties “mutually intended that defendant, Trinity, would be liable for any overrun of Montgomery and Knight * * * over and above the sum left in the original dirt contract * * A jury may not be called upon to construe the legal effect of an instrument. Knutson v. Ripson, 163 Tex. 312, 354 S.W.2d 575 (1962); Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358 (1944). The jury may, however, resolve an ambiguous intent, and the issue asked about intent as a fact issue. Skelly Oil Co. v. Archer, supra; Ellisor v. Kennedy, 128 S.W.2d 842 (Tex.Civ.App.1939, writ ref.).

We do, however, sustain Trinity’s point that the courts below erred in allowing Ponsford an attorney fee in the sum of $7,500.00. The intermediate court rests its decision upon its conclusion that there was a direct contract between Montgomery and Knight on the one hand and Trinity on the other. That contract and all others are silent, however, about any contractual provision for attorney fees. Art. 2226, Vernon’s Tex.Civ.Statutes is the only legal basis for Ponsford’s claim for attorney fees against Trinity. As applicable here, recovery of attorney fees must be based upon Ponsford’s furnishing labor and materials. Montgomery and Knight furnished the labor and materials, but that firm was paid and did not assert any claim for anything. Ponsford does not contend it furnished the labor and materials. Ponsford supplied the funds to Montgomery and Knight to pay for those items. Ponsford’s action was for reimbursement of funds advanced, and was-not for labor done and materials furnished. An analagous situation was presented in Verschoyle v. Holifield, 132 Tex. 516, 123 S.W.2d 878 (1939). The court held that one who advanced money to a subcontractor to pay for labor and materials was not entitled to the benefit of statutory liens- and bonds given pursuant to a statute that was enacted for the benefit of those who furnish the labor and materials. Article 2226 was enacted for the benefit of one who supplied labor and materials and not for the benefit of one who furnished the funds to pay the supplier.

We affirm that part of the judgments below which awarded Ponsford $111,792.93 for the funds advanced to Montgomery and Knight. We reverse that part of the judgments below which awarded attorney fees to Ponsford, and render judgment denying all attorney fees. Three-fourths of the costs of appeal are adjudged against Trinity and one-fourth of the costs of appeal are adjudged against Ponsford Brothers. Rule 501, Tex.Rules Civ.Proc.