author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Frances Crafton RAMSEY et al., Appellees.
    Court of Appeals of Kentucky.
    March 26, 1965.
    Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Dandridge F. Walton, Madisonville, Reed D. Anderson, Madisonville, for appellant.
    Charles B. West, Walker & West, Henderson, for appellees.
   HILL, Judge.

This is the second appeal of this case. The first appeal was from a $6,569.00 judgment reversed March 8, 1963, for duplication of damages, by unreported opinion.

The second trial resulted in a verdict for $4,650.00 for land taken and $200.00 for temporary easement. Only the Commonwealth appeals from the second judgment.

Two grounds are urged for reversal. They are:

L The portion of appellees’ farm which fronted on highway 41 is not adaptable to residential or commercial purposes and there is no demand for residential or commercial property within the area.
II. $200.00 as the fair rental value of the .11 acre taken as temporary easements, which property is to be used for a period of 100-150 days, is grossly excessive.

To get a picture of the situation we should point out that appellees’ farm consists of 154 acres before the taking. No improvements are taken. The tract sought for the widening of Highway 41 south of Henderson contains 1.77 acres. A temporary easement is sought on .11 of an acre. The land taken is from that part of the farm fronting on Highway 41, a distance of 1103 feet. The depth of the tract taken is 51 feet for 380 feet, 81 feet for a distance of 450 feet and varies from 51 to 81 feet for the remaining 273 feet. Before the taking there was a strip of land joining the highway, ranging in width from 120 to 150 feet, slightly rolling, and from one-half to eight feet below the surface of the highway. Back of this strip the grade breaks sharply to 25 feet or more. The land is seven or eight miles south of Henderson.

Now, to the contention of appellant that the land taken is not adaptable for residential or commercial purposes and there is no demand therefor. This is a material issue of fact in this case. Appellee is entitled to compensation based on the highest and best use of her property. Appellant’s witness, Howard Rogers, testified there was “some demand” for residential purposes and that he gave it some consideration although he stated there was no “great” demand therefor. He also stated that it could possibly be put to that use but not without a large amount of filling.

The witness, Grafton, brother of appel-lee, stated he thought the location of the land and its topography put it in the classification of commercial and residential property. He stated that it would not require more than normal leveling to make it suitable for such purpose.

Appellees’ other witness, Herron, testified positively that on October 26, 1959, there was a demand in the locality of ap-pellees’ property for commercial and residential sites, and that other properties in the immediate vicinity were being used for those purposes. He gave examples of filling station, truck stops, restaurants and other business establishments. He also stated that a part of the land taken was adaptable for commercial or residential uses. He said that about four lots were suitable.

The highest and best use of the land in question, being in sharp dispute, a jury question was presented. Appellees’ witnesses considered the element of adaptability for commercial and residential use in arriving at before value. The jury had a right to and apparently gave more credit to this evidence in arriving at a verdict. We conclude the evidence was competent and sufficient to support the verdict of the jury.

In Bowling Green-Warren County Airport Board, et al. v. Long, et al., Ky., 364 S.W.2d 167 (1962) this court said:

“Since there was testimony that appel-lees’ land in its entirety was adaptable for subdivision purposes and there was a reasonable expectation that in the near future it could have been divided into lots, appellees were entitled to have the probative value of this evidence considered by' the jury.”

Appellant’s next and final ground for reversal complains of the award by the jury of $200.00 for the use of temporary easement. It is said this is excessive. This small amount is not sufficient to warrant discussion, much less a reversal on that ground alone.

The judgment is affirmed.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    CITY OF NICHOLASVILLE, Appellant, v. Ruth SCOTT, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    Rehearing Denied April 23, 1965.
    James F. Clay, Danville, John S. Deer-ing, Nicholasville, for appellant.
    William H. McCann, Brown, Sledd & McCann, Lexington, for appellee.
   STEWART, Judge.

This appeal is from a judgment awarding Ruth Scott damages of $5000 against the City of Nicholasville (herein referred to as “the city”) for personal injuries she suffered in falling on a city sidewalk.

The city claims: (1) It was not negligent in the maintenance of the particular sidewalk; and (2) the injured person failed to exercise proper care to avoid the accident.

Appellee is a practical nurse, 59 years of age, who has resided in Nicholasville for 35 years. On October 13, 1962, she was walking south on the west side of South Second Street in the above city. When approximately 25 feet from a point where South Second Street intersects Maple Avenue, she stumbled on a raised portion of the sidewalk, fell and fractured both elbows of her arms. She testified- “ * * * I struck my right toe against it and down I went. I didn’t know it was there.”

According to appellee’s testimony, the accident occurred about 6:00 o’clock in the morning at a time when visibility was very poor. Rain had been falling and it was misty and foggy. She testified there was a small light on the rear of a church across the street from the point of her fall and a dim light on South Second Street at the far end of the block from Maple Avenue. At least two lights on Maple Avenue were burning, but these did not illuminate as far as South Second Street, she said. She described the scene of the accident as being “not well lighted” and “almost dark” at the time she fell.

Near the site of the accident is a tree stump in the utility strip between the curb and the sidewalk. Through the years its roots have grown under the sidewalk and elevated the edge of the block so that there is a projection above the adjoining one at the joint between these two blocks of pavement. The evidence reveals that this inequality is about one inch high at the edge nearest the stump and that it gradually tapers to level near the other side of the walk. It is undisputed that this difference in elevation has existed for many years.

It is the contention of the city that the defect in the sidewalk where appellee fell amounted to nothing more than- a condition of unevenness in its surface and therefore was not such a hazard as to impress the mind of a reasonably prudent person that the sidewalk was dangerous or unsafe.

The same argument was advanced under a somewhat similar fact situation in City of Louisville v. Verst, 308 Ky. 46, 213 S.W.2d 517. There, in an action for damages against the City of Louisville for injuries received by a woman who fell on a sidewalk, as a result of catching the heel of her shoe in a hole from one-half or three-fourths to one and one-eighth or one and one-half inches deep along a contraction joint, it was held the trial court properly refused to instruct that such defects were too trivial to render a sidewalk unsafe for pedestrians who exercised ordinary care. The case of City of Louisville v. Wheeler, 301 Ky. 222, 191 S.W.2d 386, held likewise where one section of the sidewalk extended one and three-fourths inches above the adjoining one.

It is apparent from the Verst case that a depression or elevation of no more than one-half inch in depth or height in the surface of a sidewalk could be such a serious danger, if one falls and is injured by reason of it, as to charge a city with actionable negligence. The Wheeler case pointed out, too, that this Court has refused to set a limit in respect to a defect in a sidewalk “beyond which the question of negligence would be one for the jury and under which it would be held' as a matter of law that the City was not negligent.” See also City of Cynthiana v. Sersion, 261 Ky. 667, 88 S.W.2d 672.

This Court, speaking on the matter in issue, made this significant statement in City of Louisville v. Haugh, 157 Ky. 643, 163 S.W. 1101, 1102:

“The distinction between a hole in the street which would render a street unsafe and- a hole that would not do so is a thing practically impossible to define. The depth of the hole alone would not control such characterization. Its shape, its size, its location with reference to the street lighting, its location with reference to the conditions and extent of public travel, and many other considerations would enter into the determination of the question of the effect of such hole upon the safety of the street, and would make the inquiry as to whether such hole amounted to a want of ordinary care upon the part of the city peculiarly a question for the jury.”

The city next maintains appellee’s conduct precluded recovery for her injuries as a matter of law. In this connection it argues the law presumes a pedestrian is aware of the general lack of perfection in the level of the sidewalks of every city; and it points out there will necessarily be depressions and elevations, as it is virtually impossible to have the surface of a sidewalk smooth and even. If appellee fell it was because she failed to watch for and observe these conditions and thereby avoid the mishap. Be that as it may, in the case at bar appellee encountered the kind of defect which, we have concluded under the circumstances recited, would raise a question of whether the city used ordinary care when it permitted the sidewalk to remain in the condition described above.

The cases relied upon as sustaining the city’s contention dealt with instances where the pedestrian was precluded from recovering for injuries received in falling over a sidewalk defect when the particular hazard was knovtfn.

It is established in this case that appellee had no knowledge at any time of the defect in the sidewalk which caused her fall. She was tripped on an unfamiliar street at a time when her ability to see was impaired. In City of Louisville v. Verst, supra, it was held that one using a public sidewalk is not required to anticipate that danger may arise from its use but may proceed on the assumption that such a walkway is in a reasonably safe condition.

In the case at bar the questions of the city’s negligence and of appellee’s duty to exercise ordinary care for her own safety were submitted to the jury. The action of the trial court in this respect was proper. The verdict is supported by the evidence.

Wherefore, the judgment is affirmed.


author: CLAY, Commissioner.

text:
    DEPARTMENT OF CONSERVATION et al., Appellants, v. CO-DE COAL COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    As Modified on Rehearing March 26, 1965.

      John B. Breckinridge, Atty. Gen., Ronald M. Sullivan, Asst. Atty. Gen., Frankfort, for appellants.
    Duff Arnett, Hazard, for appellee.
   CLAY, Commissioner.

Appellee is an auger-type coal mining company located in eastern Kentucky. Between 1954 and 1960 the Division of Strip Mining, acting pursuant to KRS 350.060, collected permit and acreage fees from ap-pellee and other auger miners. On May 5, 1961, we held in Commonwealth v. Wombles, Ky., 346 S.W.2d 299, that auger mining was not covered by KRS 350.060.

Subsequently, on November 6, 1961, ap-pellee forwarded a letter to the Division of Strip Mining and Reclamation and demanded a refund of $1,960.00, which amount was claimed to have been paid as permit and acreage fees between 1954 and 1960. On February 9, 1962, this Division informed appellee that, according to an opinion of the Attorney General’s office, demand for refund should be made upon the Department of Revenue. Appellee then demanded a refund from the Department of Revenue. When that Department refused to comply, on April 13,1962, appellee brought an action in the Franklin Circuit Court against the Commonwealth of Kentucky, the Department of Revenue and the Department of Conservation, later bringing in the Commissioner of Finance and the State Treasurer as defendants. By judgment entered on February 15, 1963, appellee recovered $1,247.50, which the court directed the State Treasurer to-pay.

Appellants’ primary contention is that the General Assembly has not consented to an action against the Department of Conservation, the State Treasurer, or the Commissioner of Finance for these improperly collected permit and acreage fees, but rather has set up an exclusive procedure for the refund of “state taxes” under KRS 134.580.

It is generally recognized that the right to a refund of illegally or improperly collected taxes does not derive from the common law, but is a matter of legislative grace. 84 C.J.S., Taxation, § 631, page 1263; Southern Pacific Co. v. Cochise County, 92 Ariz. 395, 377 P.2d 770; State ex rel. Victor Chemical Works v. Gay, Fla., 74 So.2d 560, 46 A.L.R.2d 1340; Asmer v. Livingston, 225 S.C. 241, 82 S.E.2d 465. It follows that if appellee is to be successful in this action, he must bring himself within the terms of a statute authorizing a refund.

KRS 134.580 provides in part as follows;

“(1) When money has been paid into the State Treasury in payment of any state taxes, except ad valorem taxes, whether payment was made voluntarily or involuntarily, the Department of Revenue shall refund or cause to be refunded to the person who paid the tax, or to his heirs, personal representatives or assigns, any overpayment of tax and any payment where no tax was due.- * * *
“(2) * * * The refunds authorized by this section shall be made in the same manner as other claims on the State Treasury are paid. They shall not be charged against any appropriation, but shall be deducted from tax receipts- for the current fiscal year.
“(3) Nothing in this section shall be construed to authorize the department to make or cause to be made any refund except within two years from the date the money was paid into the State Treasury. * *

After a request for a refund had been presented under statutes then effective, a dissatisfied taxpayer could, within IS days of the ruling, petition the Kentucky Tax Commission for a review of the action of the Department as provided in KRS 131.-110 (2). Likewise, he could appeal within 30 days of the decision of the Kentucky Tax Commission to the Franklin Circuit Court under KRS 13L120. Thus, the legislature had outlined the specific method by which a taxpayer could press his claim for a refund of taxes and by which he could obtain judicial review of a refusal to grant the refund. By amicus curiae brief the Department of Revenue questions the procedure as it affects claims for tax refunds from other departments, but in our opinion this is a matter for the legislature, not the courts.

Appellee has attempted to predicate his recovery on KRS 41.120. This provision does not authorize the recovery of a claim, against the state, but, with KRS 41.110, merely outlines the procedure by which a validated claim must be paid out of the treasury. As provided in KRS 134.580(2), this procedure must be followed in paying a refund of taxes, provided of course, the taxpayer has first established his right to such refund.

Since we have decided that KRS 134.580, coupled with KRS 131.110 and 131.120, afforded appellee the only statutory method of securing a refund, we are left with the bare question of whether a taxpayer, who has made no attempt to follow the prescribed procedure for review of a decision of the Department of Revenue, may nevertheless bring an independent action in the Franklin Circuit Court to compel the refund of taxes.

KRS 131.125 provided in clear and unmistakable language that:

“A refusal by the Department of Revenue to refund any tax may he reviewed only in the manner and subject to the conditions as provided in KRS 131.110 and 131.120.” (Emphasis ours)

In- view of this provision, maintenance of an independent action would have been a patent violation of the express language of the statute.

We are aware that in Reeves v. Kentucky Utilities Co., 291 Ky. 226, 163 S.W.2d 482, we permitted a taxpayer to maintain an action for a refund of registration fees even though he failed to appeal from a ruling of the Kentucky Tax Commission as provided in section 4111h-5, Carroll’s Kentucky Statutes, 1939, (the predecessor of KRS 131.-120). But in that decision we said, 163 S.W.2d at pages 484, 485:

“In any event, we are unwilling to restrict the right of litigants to resort to the courts through ordinary methods of procedure, except where it is clear that the Legislature has prescribed other and adequate modes of gaining entrance which are intended to be exclusive;”

In 1946, four years after the decision in Reeves v. Kentucky Utilities Co., 291 Ky. 226, 163 S.W.2d 482, the General Assembly enacted what is now KRS 131.125 which' does expressly provide that a refusal by the Department of Revenue to refund any tax may be reviewed only in the manner-set out by KRS 131.110 and 131.120. Since the procedure for review is clear and adequate and was intended to be exclusive, we are compelled to conclude that it is the only method by which a taxpayer could gain entrance to the courts to obtain review of a refusal to refund taxes. This was an unauthorized suit against the sovereign to which the General Assembly had not granted consent. See Foley Construction Company v. Ward, Ky., 375 S.W.2d 392.

There is another ground which precludes the appellee from maintaining this action. KRS 134.580(3), quoted above, specifically provides that the Department of Revenue is not authorized to make any refund unless it is made within two years from the date the money was paid into the state treasury.

Although both appellee and appellants have referred to this provision as a statute of limitations, we think this provision creates a condition precedent to the statutory right of refund. Since there is no right at common law to recover improperly collected taxes, the legislature may make the very existence of the right of recovery dependent upon the refund’s being made within two years from the date the taxes are paid. In other words, whereas a statute of limitations neither creates nor extinguishes any rights, but merely places a limitation upon the remedy (which can be waived or tolled), a limitation such as the one in question is a condition essential to the existence of the right. Lilly v. O’Brien, 224 Ky. 474, 6 S.W.2d 715; Unemployment Comp. Comm. of Kentucky v. Consolidation Coal Co., 287 Ky. 330, 152 S.W.2d 971. The distinction was tersely stated in the Lilly case where we discussed a similar limitation and said (page 718 of 6 S.W.2d):

“The bringing of the action within the limited time is a condition to the exercise of the right, and, if the condition is not complied with, there is neither right nor remedy.”

For this reason appellee’s argument that the Wombles case (Commonwealth v. Wombles, Ky., 346 S.W.2d 299) in some manner extended the limitation period within which its claim could be asserted is without merit.

Appellee apparently paid its most recent permit and acreage fee on February 1, I960. Assuming, without deciding, that the demand on the Department of Revenue on February 20, 1962, preserved whatever rights it then had, this was more than two years after the fee was paid into the state treasury.

For both of the reasons given, appellee established no right of recovery.

The judgment is reversed.

      . We have given the phrase “state- taxes” in KRS 134.580 a sufficiently broad interpretation to include the permit and acreage (or license) fees in question. Reeves v. Kentucky Utilities Co., 291 Ky. 226, 163 S.W.2d 482.

      . Amended effective July 1.1964.

      . Repealed effective July 1,1964.

      .Repealed effective July 1, 1964,

      . It is not clear from the record when ap-pellee made the last payment.

      . Obviously any claim for fees paid prior to 1960 would be barred.


author: PALMORE, Judge.

text:
    Max M. BROIDA, Appellant, v. Miriam BROIDA et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    As Modified on Rehearing March 26, 1965.

      David L. Gittleman, S. Arnold Lynch, Sales & Lynch, Louisville, for appellant.
    Joseph Davis and Joseph R. Rubin, Louisville, for appellees.
   PALMORE, Judge.

Max and Miriam Broida were married in 1941. She brought this divorce suit against him in 1960. By counterclaim he also sought a divorce. In November of 1961 Chancellor Blakey Helm entered findings of fact, conclusions of law and a judgment granting Miriam a divorce, custody of and $100 per month each for the support of their two infant children (one of whom, a son, has now attained the age of 21), and $300,000 alimony payable one-third in 30 days and the balance in six months. Miriam’s attorneys were allowed a $20,000 fee and expenses in the sum of $3,640. Max moved at once to amend the judgment, and the matter came on before Judge Helm’s successor in office, Hon. Lyndon Schmid. After a deliberate and careful review of the proceedings Judge Schmid entered further findings and conclusions and an amended judgment reducing the alimony to $279,078 and making it payable $100,000 in 60 days, $79,078 one year later, $50,000 in two years, and the remaining $50,000 in three years. The amended judgment cut the $20,000 fee to $18,600 but allowed an additional $1,860 for services rendered after the first judgment. The $3,640 allowance for expenses was left intact.

Both parties appeal. Max claims the alimony is excessive and is payable over too short a time. He contends also that both the fee and expenses allowed her attorneys are unreasonable. The attorneys are made parties on his appeal. Miriam complains that the alimony award is not enough.

At this time Max is about 66 and Miriam is in her fifties. A highly successful business man, he had a substantial net worth when they were married in 1941 and has accumulated a great deal more since then. She had no property at the time of the marriage, has not earned any income, and has no estate of her own.

The value of Max’s estate was calculated as of June 1, 1961. Judge Helm concluded that the amount of alimony should be approximately one-third of the estate accumulated by Max during the marriage. Excluding properties owned in 1941 and still owned, and after making a further deduction of $52,000 for other assets then owned hut since disposed of, Judge Helm found his net worth in 1961 to be $919,136. The only difference in this respect between the first judgment and the amended judgment is that Judge Schmid determined that certain stock given by Max during the pendency of this action to his son by a former marriage should not be counted as part of his estate.

Both parties have submitted lengthy briefs contesting every spike in the railroad. In their zeal not to miss a twig in the forest they overlook the simple truth that the valuation of complex business interests is largely speculative at best, and that the fixing of alimony, especially when it reaches six figures, must be a broad-brush affair anyway. After the perspiration shed on this record by two able and conscientious chancellors we decline the stultification of picking at every hair on the brush.

Most of the smoke and din of battle swirls around the evaluation of Max’s 70% interest in a corporation holding a “sandwich” leasehold of miscellaneous real estate in Honolulu, Hawaii. This leasehold, purchased in 1954 at a price of $210,000, runs until 1991. Until November 15, 1960, the rent payable by the corporation to the owners of the property was $2,500 per month, and the rents received from subtenants in the month immediately preceding that date totalled $5,085. By virtue of escalation clauses in the master lease and most of the subleases (which extend over the same term as the master lease), as of November IS, 1960, the rent payable to the owners under the master lease was increased to $9,~ 375 per month and the rents receivable by the corporation from the subtenants also were increased. In May of 1961 the gross rent collected from the subtenants was $15,*-050. All improvements on the property were constructed by the subtenants, and there is no maintenance expense to the sub-lessor corporation.

As may be seen from the foregoing figures, in November of 1960 the asset for which $210,000 was paid in 1954 was earning $31,020 per annum before administrative expenses and taxes. In 1961 this figure had increased to $68,100. The trial court placed a value of $641,000 on the leasehold, calculated through capitalizing the net income at 91/3%. It is not clear just how the court arrived at the net income figure of $59,805 which was necessary to produce this result, but apparently it represented an adjustment from a figure of $56,-305 given by the company’s accountant. At any rate, both parties make vociferous outcry at the result. Max contends the net income should have been capitalized at something between 12% and 18%, and Miriam claims the rate should have been about 6%. Max argues also that the information obtained from the accountant (by deposition) was privileged and should have been suppressed on his subsequent motion. Miriam, on the other hand, points out (correctly, we believe) that the expenses deducted by the accountant in arriving at the net profit figure include several items that should not have been considered for valuation purposes. T© all of these arguments, both ways, we could add some of our own, but the spirit of the season bids us to refrain from inflicting on the readers of this opinion any more of what the writer has endured already under the dead weight alone of this record and these briefs.

There is, in our opinion, plenty of evidence to support a conclusion that the net income of the Honolulu corporation is at least $50,000 to $60,000 per annum. The allegedly privileged information elicited from the accountant is more helpful than harmful to Max’s case because, if it were excluded, it would be necessary to calculate entirely on the basis of the gross difference between rental figures payable and receivable. Conceding that this income may fluctuate upward and downward by reason of the escalation clauses and other vicissitudes incident to the type of property and tenants involved, it is reasonable to anticipate that it will not fall materially below the present level, and there are several rules of thumb that should have probative weight in determining the value of the master lease. For example, the present value, at 6%, of $1.00 per year payable at the end of each year for 30 years is approximately $13,765. That is, an investor lending his money at 6% interest would have to pay $688,250 for a guaranteed payment of $50,-000 per annum for 30 years. We know, of course, that $50,000 per annum from the Honolulu property is not guaranteed, and we know also that what the corporation nets is not necessarily income to the shareholders, but quite aside from other testimony we have not specifically mentioned, this comparison suggests that a $641,000 valuation of the stock representing corporate ownership of the Honolulu leasehold is not excessive. As we have said, what a willing buyer would pay a willing seller for such an asset involves a great deal of guesswork anyway.

The values of assets other than the stock in the Honolulu company were stipulated. Miriam objects to the trial court’s having confined its alimony formula to the property accumulated during the marriage. She claims she ought to have one-third of the entire estate. We agree that Heustis v. Heustis, Ky., 346 S.W.2d 778 (1961), does no more than suggest a minimum allowance. Certainly Heustis does not mean the wife cannot be allowed the equivalent of one-third of the entire estate, or even more if the chancellor in his reasonable discretion sees fit. But as the size of the estate increases it becomes less important that the award of alimony conform precisely to a formula. It is our opinion that the principal amount awarded in this case was not unreasonable to either party.

But Max complains, with a good deal of reason, that if he is going to be forced to liquidate capital assets in order to pay the alimony the court should consider the income tax consequences (which he introduced evidence to prove) in determining the value of the estate available for division. We concede that when the necessity of such a liquidation (or, for that matter, a transfer of capital assets directly to the wife) is reasonably certain, the tax impact should be considered. Indeed, even in the event of periodic alimony common sense requires that consideration be given to the post-divorce tax positions of the parties, to the end that the payments may be so balanced as to leave a maximum of tax-free dollars to both. There is no need for, and every reason to avoid, making the taxing authorities beneficiaries of the litigation. For this among other reasons we have concluded that it would be unreasonable to require Max to meet the schedule of payments decreed in the final judgment, and that a more just arrangement would be achieved by permitting the fixed obligation to be satisfied over a period of several years.

Section 71 of the Internal Revenue Code provides in effect that when a fixed award of alimony is payable over a period of ten years or less there is no federal income tax incidence. Though it would be- greatly to Max’s advantage to be able to deduct such payments from his taxable income, at the same time Miriam would be required to treat them as taxable income to her. If we knew in advance what the future holds it might be feasible to extend the installments beyond ten years and fix the total at such higher amount as would offset Miriam’s taxes out of what Max would save through being able to deduct the payments. However, he is 66 years of age and not in good health. Tax rates are changing and are subject to further change. Though he may in fact pay the alimony out of current income, it is supposed to represent her share of his capital assets, and it is our purpose to give him, in effecting its transfer, some freedom of choice as compared with what the situation would be under the existing judgment of the circuit court.

Because the alimony award will be payable over a longer period of time we have determined that the total should be rounded to $300,000, and because Miriam has been receiving temporary alimony of $200 per week (less $200 per month allocated for support of the children) we are of the opinion that interest should not begin to run until the date the judgment is amended in conformity with this opinion, at which time the temporary alimony shall cease.

The final judgment in this action was entered on August 10, 1962, and it appears from the record that since that date $25,000 has been paid on the award of permanent alimony, leaving a balance of $275,000, which shall be due and payable as follows: $50,000 on the date the judgment is amended pursuant to the mandate issued on this opinion; $25,000 on or before December 31 of each of the years 1965 to 1971, inclusive, and $50,000 on or before August 9, 1972. The obligation shall bear interest at 4% per annum, with all interest accrued on the unpaid balance being due and payable annually on December 31. Any prepayments on the principal heretofore made, other than the $25,000 we have mentioned, or which Max may elect to make in the future shall be credited to future installments on the inverse order of their due dates. In the event of any default in payment of principal or interest, or any violation of the terms of the final judgment, Miriam may without notice elect to precipitate maturity of the entire unpaid balance of the debt. All of the unpaid portion of the debt shall be protected by such security as the chancellor sees fit to require in the judgment, including injunctive relief against Max’s causing, directly or indirectly, any of the capital assets held by him or by any corporation in which he has a controlling interest to be transferred without approval of the court.

The judgment will further provide that if it should be later determined that the alimony installments are “periodic payments” within the meaning of § 71 of the Internal Revenue Code, Miriam shall be entitled, on application to the court, to an adjustment in the amount of alimony sufficient to cover such income taxes as she is thereby required to pay.

We have current motions and affidavits before us in which it is suggested that Max has transferred some of his assets during the pendency of this proceeding. If that proves to be so, and if he is unable to provide adequate security, the chancellor may adjudge all or a suitable portion of the alimony award to be payable at once and the balance, if any, at such time or times as he deems wise.

The record shows that the chancellor declined to credit the temporary alimony payments against the total award. That was within his discretion, which we do not find to have been exercised unreasonably. Hickey v. Hickey, Ky., 383 S.W.2d 114 (1964).

We do not find the attorney fee to be excessive for the handling of this difficult and acrimonious controversy. We are of the opinion also that the allowance of $3,640 as reimbursement for expenses reasonably incurred was not, under the circumstances of the case, an abuse of discretion.

The cause is affirmed in part and reversed in part with directions that the judgment: be amended in conformity with this opinion.

      . The transfer was made before June 1, 1961, the date as of which all valuations were calculated. Its purpose was to match similar gifts theretofore made to each of the two children born to Max and Miriam.

      . The other 30% is the stock mentioned in the preceding footnote as having been given to the children.

      . Of. KRS 325.440.

      . Under Oft 32.03, objections are not waived unless they are such that they could have been obviated, removed or cured by the adverse party had they been seasonably urged. Max argues that the objection on the ground of privilege could not have been cured or avoided even if it had been raised when the deposition was taken. This is too narrow a view. It would not have been equitable to suppress the deposition, because, after it was taken and before the motion to suppress was made, Miriam agreed to a stipulation that no more valuation testimony would be taken.

      .Am.Jur.2d Desk Book, p. 332 (Document No. 133). Max’s Honolulu banker testified that an average investor in real estate should receive a net return of 6%. At 4%, the present value of $1.00 per year for 30 years is $17,292, or $864,-600 for $50,000 per year.


author: STEWART, Judge. MONTGOMERY, Judge

text:
    Herbert CLARK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 12, 1965.
    Dissenting Opinion March 26, 1965.

      John J. Tribell, William S. Tribell, Mid-dlesboro, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Ass’t Atty. Gen., Frankfort, for ap-pellee.
   STEWART, Judge.

Herbert Clark, charged with transporting alcoholic beverages for sale in local option territory, under KRS 242.260, was found guilty and fined $100 and sentenced to 30 days in jail. See KRS 242.990(1). He appeals.

There must be a reversal of the judgment in this case for the reason shown hereinafter, with the result that another trial will likely be had. Aside from the error assigned upon which our reversal is based, it is urged the indictment should have been dismissed.

In this latter connection appellant strongly insists the alcoholic beverages that were found in a car he was driving, which fact constitutes the basis of his conviction, were obtained through an illegal search and seizure, no law having been violated by him before his car was stopped.

The evidence in this case is very skimpy and, so far as relevant, discloses that two troopers of the Kentucky State Police, Merle Harrison and Dan Davidson, on January 25, 1964, around 6:00 p. m., were on routine duty on U. S. Highway No. 119, traveling from Harlan toward Cumberland. They met a car near Ross Point. Trooper Harrison testified: “I noticed the car seemed to be setting very low in the back, and it was apparent the driver was having some difficulty. I turned and stopped the car at Chappell’s Dairy. As I walked up to the car to get the license, it was noticeable to the eye without strain there was a quantity of alcoholic beverages.” He stated he saw a case and some cans of beer with the name “Slitz” on them “setting visible” on the floor of the car where the back seat had been removed. Thereupon he arrested appellant, searched the car and found a considerable amount of whiskey and other intoxicants in the trunk.

On cross-examination this witness was asked: “And, when you saw this car go by riding kind of low in the rear did some idea formulate in your mind as to what the contents might be?” He answered: “No, sir, not at that time. The car seemed to have a little weave to it.”

Trooper Davidson, called as a witness for the Commonwealth, testified appellant’s reputation was bad for trafficking illegally in alcoholic beverages. Appellant did not testify.

There was no unlawful search under the evidence presented. When the' troopers approached appellant’s car in order to make their investigation, it is undenied the beer in the back part was in plain view. The constitutional guaranty which affords protection from an illegal search does not prohibit a. seizure without a warrant where there is no need of a search; that is, where the outlawed object discovered is visible, open and obvious to anyone who even casually looks about his surroundings. See Hancock v. Commonwealth, Ky., 262 S.W.2d 670, and Wilson v. Commonwealth, Ky., 258 S.W.2d 497.

The incriminating articles connected with the arrest of appellant and detected in his possession could be seized to Be used as evidence against him, Turner v. Commonwealth, 191 Ky. 825, 231 S.W. 519, unless it be shown the troopers had no lawful right to stop him. The latter assumes the detention was illegal per se if there was no offense committed in the presence of the officers.

This contention is obviously untenable in the face of Commonwealth v. Robey, Ky., 337 S.W.2d 34, and Commonwealth v. Mitchell, Ky., 355 S.W.2d 686. The Robey case states there must be a bona fide cause to justify the restraint by an officer of a motorist traveling upon a public highway. This does not mean, as that case points out, a bona fide cause arises only if an offense is perpetrated in the officer’s presence. In this connection the Robey case said at page 36 of 337 S.W.2d: “* * * the rule appears to be well established generally that if officers observe a motorist driving in an erratic manner such as to suggest the possibility that he is drunk they may stop him, and if they discover from mere observation of him after he has stopped that he is drunk the evidence so obtained is admissible in a prosecution for drunken driving $ §|S *

It will be noted that it is sufficient reason to stop a motorist if he is driving in an erratic manner. In the case at bar appellant was observed by the troopers to be “having some difficulty” and his car “seemed to have a little weave to it.” This, we believe, under the authority of the Robey case, was enough irregularity in the way he handled his car to give the officers a bona fide cause to stop him. KRS 189.730(1) provides, so far as applicable here, that any trooper “ * * * may, at any time, upon reasonable cause to believe that a motor vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of such motor vehicle to stop and submit such vehicle to an inspection and such test with reference thereto as may be appropriate.”

Likewise, in the Mitchell case the action of state police officers in setting up a “road block” for motor vehicles for the purpose of requiring drivers to display an operator’s license is not an unlawful arrest or restraint or an illegal search contrary to the Constitution of Kentucky, and hence evidence that the driver who was stopped had no license was admissible in a subsequent prosecution for operating a motor vehicle upon a public highway without an operator’s license.

The Mitchell case also emphasizes the fact, and we believe properly so, that the enjoyment of many personal rights and freedoms is subject to many kinds of restraints under the state police power, including such reasonable conditions as may be determined by the governmental authorities to be essential to the safety, good order and public welfare. See also Commonwealth v. Abell, 275 Ky. 802, 122 S.W.2d 757.

We conclude no ulterior motive or special pretext was shown as a reason for stopping appellant’s car; furthermore, a bona fide cause was established for the stopping. Therefore, the discovery from mere observation of the alcoholic beverages in his automobile made his arrest legal and, in consequence, made the contraband liquor competent evidence to be used in the charge preferred against him.

Other grounds of a strictly procedural nature were complained of as prejudicial errors, but as none of these should recur at another trial we deem it unnecessary to discuss and resolve them.

The judgment of conviction must be reversed, however, because of an error in “Instruction No. 1.” It will be recalled appellant was indicted for transporting alcoholic beverages in local option territory for the purpose of sale. The instruction, as phrased, did not require the jury to believe the transportation was for the purpose of sale in order to find him guilty.

The mere possession of alcoholic beverages in an automobile in local option territory is not a violation of the statutory provision dealing with the transportation of alcoholic beverages in local option territory for the purpose of sale. See Irvin v. Commonwealth, Ky., 317 S.W.2d 178.

Where the charge is “transporting for the purpose of sale,” the words “for the purpose of sale” are the material part of the charge. See Commonwealth v. Polous, 197 Ky. 280, 246 S.W. 799. Obviously the instruction was defective because it failed to contain the “material part” of the offense of which appellant was indicted.

Wherefore, the judgment is reversed for further proceedings consistent with this opinion.

MONTGOMERY, Judge

(dissenting).

I feel that the evidence in this case should have been suppressed because the search was not made incident to a valid arrest. The majority opinion recognizes that the validity of the arrest and search is dependent on the right of the state trooper to stop the car. The trooper admitted that “no apparent violation” of the law had been committed by appellant as he was driving his car on the highway prior to being stopped. The trooper further admitted that he had had no call and was not looking for the car driven by appellant.

The majority opinion depends on Commonwealth v. Robey, Ky., 337 S.W.2d 34, and Commonwealth v. Mitchell, Ky., 355 S.W.2d 686, as justification for upholding the stopping.

The Robey case affords no comfort. There, the driver was legally arrested for a violation of the reckless driving statute and on this basis it is distinguishable. There is no claim in the case at bar that appellant was arrested for reckless driving despite the trooper’s statement that “ * * * the car seemed to have a little weave to it.”1 Further in the Robey case the Court said:

“ * * * While we are not aware of any precedent for holding that evidence obtained as a result of an officer’s merely stopping a person is inadmissible, we feel that due respect for the basic right of liberty (Ky. Const. Sec. 1) should afford some protection against the unjustified or unreasonable stopping of a person by a police officer. Accordingly, it is our view that if an officer stops a motorist without bona fide cause any evidence obtained as a result of the stopping should be considered to have been illegally obtained and therefore inadmissible.”

The Mitchell case affords less solace. It was there held that the action of police officers in setting up a “roadblock” for motor vehicles for the purpose of requiring the driver to display an operator’s license is not an unlawful arrest or restraint or an illegal search contrary to the Constitution. There is not even any contention in the present case that a “roadblock” had been set up.

In the Mitchell case, after approving the “systematic and indiscriminate stopping of all motor traffic on the highway for the good faith purpose of making inspections of drivers’ licenses,” the Court, in effect, condemned the type of conduct indulged in by the trooper here as- follows:

“* * * Our decision may not be regarded as sanctioning the stopping of cars for the ostensible or pretended purpose stated when in reality it is actuated by an ulterior motive not related to the licensing requirement, or is done as a pretext or as a subterfuge for circumventing the constitutional provision against searches of persons and property without a valid warrant. We shall continue to condemn such an act. See 5A, Am.Jur., Automobiles and Highway Traffic, § 134; Cox v. State, 181 Tenn. 344, 181 S.W.2d 338, 154 A.L.R. 809.”

The attempt to justify the stopping by reference to KRS 189.730(1) on the ground that the car had a “little weave” and was therefore “unsafe or not equipped as required by law, or that its equipment Is not in proper adjustment or repair,” falls into the category of pretext or subterfuge condemned in the Mitchell case. The trooper never made any claim that he stopped the car for any such purpose. Clearly it is an afterthought to seek to justify the stopping on the basis of the statute.

Under the circumstances and in the light of these authorities the trooper had no bona fide cause for stopping the car and no probable cause for believing that a misdemeanor was being committed in his presence, which was essential before he was authorized to arrest. He said that there was “no apparent violation.” The conduct of the trooper constituted an unreasonable search and seizure. Kentucky Constitution, Section 10.

The Supreme Court has recently condemned the stopping of a motor vehicle with neither an arrest warrant nor a search warrant. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (decided November 23, 1964). It was held that the defendant’s arrest without warrant for possession of clearing house slips, a felony, by police officers who had a picture of the defendant, knew that he had a record of previous convictions for possession of clearing house slips, and were looking for him, without any showing that the officers had heard or seen anything else to give them ground for belief that the defendant had acted or was then acting unlawfully, violated the Fourth and Fourteenth Amendments and evidence seized from his person during the ensuing search was inadmissible.

Beck was driving his automobile on East 115th Street in Cleveland when he was accosted by police officers who identified themselves and ordered him to pull over to the curb. He was placed under arrest without warrant and then searched. The Supreme Court held that the constitutionality of the search depended on the constitutional validity of the arrest which turned on “whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” It was pointed out that anything less than the probable cause requirement “would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”

The further comments of the Supreme' Court are equally pertinent here:

“ * * * In complete contrast, the record in this case does not contain a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him.
“An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment. * * *
# ¡¡s * * i¡¡ #
“ * * * If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.”

The effect of the majority opinion is to place the law-abiding public who travel the highways at the mercy of all law enforcement officers or persons who may seek to stop them on the highways. How can a woman driving alone at night in a law-abiding manner feel safe when she knows that the majority opinion gives any law enforcement officer the right to stop her? For that matter, what is to prevent one ■who is not a law enforcement officer from doing the same thing if the motorist is compelled to stop? Never in this land of liberty should such police state methods be permitted. Is the next step a similar right of entry into the home? The consequences which may flow from the majority opinion are frightening.

For these reasons I do not think that the state trooper had probable cause for stopping appellant’s car, and the evidence so obtained should be suppressed.

MOREMEN, C. J., and MILLIKEN, J., join in the dissent.


author: HAMILTON, Justice.

text:
    Doris L. BOND, Petitioner, v. OTIS ELEVATOR COMPANY et al., Respondents.
    No. A-9936.
    Supreme Court of Texas.
    March 24, 1965.

      Bailey & Williams, Dallas, for Otis Elevator Co.
    Bonney & Wade and Minor Morgan, Dallas, for Doris L. Bond.
    Strasburger, Price, Kelton, Miller & Martin, Dallas, for Adolphus Tower Building.
   HAMILTON, Justice.

ON MOTION FOR REHEARING

We withdraw our former opinion in this cause and substitute therefor the following opinion:

Petitioner Bond brought this suit for damages against Adolphus Tower Building, herein sometimes called “the Building” and Otis Elevator Company, herein sometimes called Otis, alleging that while riding as a passenger in the Adolphus Tower Building intending to descend to the lobby floor, the automatic elevator descended very rapidly in what was described as a free fall, causing her to be thrown to the floor of the elevator and injuring her foot and ankle. Petitioner neither pleaded nor attempted to prove any specific act of negligence as against either defendant, but relied wholly on the doctrine of res ipsa loquitur. Respondents both denied liability and pleaded contributory negligence and unavoidable accident. The Building alternatively sought judgment over against Otis by way of indemnity, alleging that Otis by written contract with the Building had obligated itself to maintain the elevator in a safe and proper condition, and if there was any negligence involved it was solely that of Otis, which had manufactured and installed the elevator in question and thereafter exclusively maintained it.

The jury found that as petitioner entered the elevator it went into a free fall, throwing petitioner to the floor and injuring her; that at the time and on the occaiion in question the elevator was under the exclusive control of the Adolphus Tower Building; that the Building did not fail to use a high degree of care in the maintenance of the elevator mechanism; that at the time and on the occasion in question the elevator was not under the exclusive control of Otis Elevator Company; that Otis failed to properly inspect and also failed to properly maintain the elevator; that such omission was negligence and a proximate cause of petitioner Bond’s injuries; that the acts and omissions of Otis were the sole proximate cause of petitioner’s injuries; that petitioner was not contributorily negligent; and that petitioner’s damages were $31,-254.00.

On motion of petitioner the trial court entered judgment jointly and severally against Adolphus Tower and Otis Elevator on the verdict for $31,254.00 and notwithstanding the findings that the Adolphus Tower was not negligent and Otis Elevator was not in exclusive control of the elevator in question. The judgment also provided that Adolphus Tower have judgment over against Otis for the full amount. Traders & General Insurance Company, intervenor, was awarded judgment for $3,330.46 against petitioner by way of sub-rogation for monies paid out by it to and for the account of petitioner under a workmen’s compensation policy. From this judgment the Adolphus Tower and Otis Elevator Company appealed to the Court of Civil Appeals. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 373 S.W. 2d 518.

All three parties have filed applications for writs of error in this court, the petitioner Bond requesting that the Court of Civil Appeals’ judgment be reversed and the trial court’s judgment affirmed; petitioners Otis Elevator Company and Adol-phus Tower Building requesting that the Court of Civil Appeals’ judgment be rendered rather than that the cause be remanded. Adolphus Tower alternatively requested it be given judgment over and against Otis. We reverse the judgment of the Court of Civil Appeals.

On the trial petitioner Bond established by her testimony and that of another passenger in the elevator that almost immediately after petitioner entered the elevator on the ninth floor of the Adolphus Tower it descended very rapidly in what they described as a free fall, and when it reached the fifth or sixth floor it stopped suddenly and began to bounce up and down violently; that petitioner pulled the emergency switch and the elevator came to a standstill between floors; that petitioner was thrown to the floor of the elevator, resulting in painful injury to her ankle.

The elevator in which petitioner was riding was one of five previously sold and installed by Otis in the Adolphus Tower Building, which is an office building in the City of Dallas. There was in evidence a contract between Adolphus Tower Building and Otis whereby Otis undertook the exclusive responsibility for the maintenance of the elevators and the mechanism operating them. That part of said contract applicable to this case is as follows:

“OTIS ELEVATOR COMPANY
“TO Adolphus Tower DATED AT Dallas, Texas. Main & Akard October 20, 1955 Dallas, Texas
“We propose to furnish OTIS MAINTENANCE on the following described elevators in your building located at Adolphus Tower, Dallas, Texas.
“Five (5) Otis Electric Passenger Elevators #228176-80
“Under this contract we will maintain the elevator equipment herein described, on the following terms and conditions:
“We will use trained men directly employed and supervised by us. They will be qualified to keep your equipment properly adjusted, and they will use all reasonable care to maintain the elevator equipment in proper and safe operating condition.
“We will regularly and systematically examine, adjust, lubricate as required, and if, in our judgment, conditions warrant, repair or replace:
“MACHINE, MOTOR, GENERATOR AND CONTROLLER PARTS,
including
“Worms, Gears, Thrusts, Bearings, Brake Magnet Coils or Brake Motors, Brake Shoes, Brushes, Windings, Commutators, Rotating Elements, Contacts, Coils, Resistance for Operating and Motor Circuits, Magnet Frames and other mechanical parts — using only genuine Otis Parts for this purpose.
“We also agree:
“To renew guide shoe gibs or guide rollers when in our judgment this is necessary to insure smooth and quiet operation and, except where roller guides are used, to keep the guide rails properly lubricated.
“To renew all wire ropes as often as in our judgment is necessary to maintain an adequate factor of safety; to equalize the tension on all hoisting ropes, and repair or replace conductor cables.
“To furnish Otis Lubricants compounded to our rigid specifications.
“To examine, lubricate, adjust, and if, in our judgment, conditions warrant, repair or replace all accessory equipment furnished and installed by us with exceptions as stated hereinafter.
“To examine periodically all safety devices and governors and make our customary annual safety tests.
« * * *
“It is agreed that we do not assume possession or management of any part of the equipment but such remains yours exclusively as the owner (or lessee) thereof. * * * ”

On the occasion in question J. L. Bostick, who was employed by the Adolphus Tower Building as elevator starter, heard a crashing sound when the elevator stopped between the fifth and sixth floors, at about which time the emergency signal similar to a burglar alarm came on. As per instructions when anything went wrong with the elevators, he immediately called Otis Elevator Company. A Mr. Anderson from Otis arrived within three or four minutes from the time he was called, and within fifty-eight minutes from the time of the fall of the elevator petitioner Bond was released from the elevator.

Neither Otis nor the Building offered any testimony by way of explanation of why the elevator fell, and the record does not otherwise reflect any explanation.

In entering the judgment which the trial court did it is apparent that it must have found: First, that under the fact situation here the doctrine of res ipsa loquitur applies. Second, that the evidence conclusively showed that the elevator was under the joint control of Adolphus Tower and Otis Elevator. Third, that the Adolphus Tower was negligent itself as a matter of law or that the Adolphus Tower was liable for the negligence of Otis Elevator.

We agree with the Court of Civil Appeals that the doctrine of res ipsa loquitur is applicable in this case. The elevator’s going into a free fall and injuring the petitioner was such an accident which does not ordinarily occur without negligence, and is such an accident, that from the mere showing that it happened, negligence of those in control may be inferred.

It appears from the contract between Adolphus and Otis with reference to the maintenance of the elevators -that the mechanism controlling the movement of the elevators is quite complicated and from the very nature of things the facts which would reveal how this “free fall” happened were peculiarly within the knowledge of respondents. If there is any explanation of this unusual occurrence of the elevator going into a “free fall”, then the respondents are in a far better position to come forward with it than is the petitioner.

We think that the evidence conclusively shows that the elevator was under the joint control of Adolphus Tower and Otis Elevator. A mere reading of that part of the contract quoted above shows this. Otis Elevator says that the contract places the exclusive control in Adolphus Tower. It points to the last sentence copied above from the contract wherein the agreement states that Otis did not assume possession or management of the equipment, but such remained in the owner, that is, Adolphus Tower. It is true that the Adolphus Tower retained possession and management of the elevators by that contract, but with the understanding that Otis was to examine, lubricate, adjust and if in its judgment conditions warrant, it was to repair or replace all necessary equipment. In other words, what maintenance was required depended upon the judgment of Otis, not that of Adolphus Tower. It would be difficult to imagine a relationship between two parties with reference to certain equipment where joint control is more conclusively shown. The petitioner pleaded joint control and under this evidence we think the trial court was correct in its necessary holding, in support of its judgment, that both parties were in joint control of the elevator in question.

We know of no case which holds that in order for the doctrine of res ipsa loquitur to apply that the instrumentality causing the injury must be under the exclusive control of a single entity. The Court of Civil Appeals in Cotton v. Henger, 312 S.W.2d 299, Civ.App., affirmed and modified by the Supreme Court, 159 Tex. 139, 316 S.W.2d 719, in dealing with the question quotes from a New Jersey case, Meny v. Carlson, 6 N.J. 82, 77 A.2d 245, 22 A.L.R.2d 1160. There the court said:

“ * * * [t]he word ‘exclusive’ when used to define the nature of the control necessary to invoke the doctrine of res ipsa loquitur does not connote that such control must be several and the defendant singular and never plural. * * * The law does not prohibit the application of the doctrine against two or more defendants where there is joint control.”

In the case of Dement v. Olin-Mathieson Chemical Corporation, 282 F.2d 76 (C.A. 5th), the court held that in order for res ipsa loquitur to be applicable exclusive control need not be limited to a single entity. It says that the whole development of contemporary Texas law is contrary to any such limitation where there is joint control.

In 38 A.L.R.2d 905, at page 906, the annotation states:

“As a general rule, the doctrine of res ipsa loquitur has been applied to multiple defendants where they * * have been in joint control of the instrumentality or agency causing injury, * * * ”

One of the grounds on which the Court of Civil Appeals reversed and remanded this case was that the trial court, having set aside the finding of the jury that the Adolphus Tower was not negligent left the court without a finding of negligence and the court, being without power to substitute his own finding in that respect for that of the jury, his judgment against Adolphus Tower could not stand. The Court of Civil Appeals is no doubt correct, especially if negligence is not established as a matter of law. However, we think that this question becomes immaterial in view of the holding of the Court of Civil Appeals, with which we agree. Said holding is as follows:

“ * * * The Building’s duty, which it owed to all who would reasonably be expected to use the elevators, to maintain the elevators in reasonably safe condition cannot be delegated to an independent contractor so as to relieve the Building of responsibility. Restatement of the Law of Torts, Sec. 425, p. 1145; 15-B Tex.Jur. 711-712, ‘ELEVATORS’, Sec. 10; 21 Tex.Jur. 2d 550, ‘ELEVATORS AND ESCALATORS’, Sec. 9; Otis Elevator Co. v. Cameron, Tex.Civ.App., 205 S.W. 852, err. ref.”

We conclude, then, that even without a finding of negligence against the Building that liability against the Building can be predicated upon the negligence of its independent contractor, Otis Elevator Company.

The liability of Otis rests upon jury findings to special issues 10, 11, 12 and 14. In answer to the issues the jury found: (10) that Otis failed to properly maintain the elevator; (11) that such failure was negligence; (12) that such negligence was a proximate cause of the plaintiff’s injuries; and (14) that the negligence of Otis was a proximate cause of plaintiff’s injuries. Otis’ brief in the Court of Civil Appeals contains points of error attacking the findings on several grounds, including no pleading or proof of any specific act of negligence on the part of Otis and that each of the findings was against the overwhelming weight and preponderance of the evidence, and that the evidence was insufficient to support the findings. The Court of Civil Appeals expressly considered and ruled on all these points and sustained them. See 373 S.W.2d at page 524.

We think the Court of Civil Appeals was in error in holding that because there was no pleading or proof of any specific act of negligence on the part of Otis that the judgment of the trial court could not be sustained. The holding of that court would be correct if a case of res ipsa loquitur was not made out against Otis Elevator. However, in view of our holding that the evidence shows conclusively that Otis was in control of the elevator jointly with Adolphus Tower the reason for its holding falls. In other words, if the doctrine of res ipsa loquitur applies it is not necessary to plead and prove specific acts of negligence in order for the case to go to the jury on the question of negligence generally. As we view this case we conclude that the finding of failure to properly maintain the elevator in question is not specific, but is general.

In the case of Honea v. Coca-Cola Bottling Company, 143 Tex. 272, 183 S.W.2d 968, 160 A.L.R. 1445, the court said:

“Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided (1) the character of the accident and the circumstances attending it lead reasonably to- the belief that, in the absence of negligence, it would not have occurred, and (2) the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer. Washington v. [Missouri] K. & T. Ry. Co., 90 Tex. 314, 38 S.W. 764; Texas & P. Coal Co. v. Kowsikowski, 103 Tex. 173, 125 S.W. 3; Wichita Falls Traction Co. v. Elliott, 125 Tex. 248, 81 S.W.2d 659.”

We think this case comes clearly within the rule of law stated in the above case and the cases it cites. The character of this accident is one that does not ordinarily happen in the absence of negligence. The instrumentality causing the injury is conclusively shown to be under the joint control of Adolphus Tower and Otis Elevator.

The opinion of the Court of Civil Appeals rather clearly indicates that its action on the points was predicated on a belief that the issues were intended to, and did, submit specific acts of negligence, rather than general negligence under the res ipsa loquitur doctrine. It should be said that there was some rational basis for the belief in the pleadings and the court’s charge. But however that may be, we have now held that the listed issues and the jury’s answers furnished a basis for recovery under res ipsa, and, accordingly, that the points asserting lack of pleadings and no evidence should have been overruled. This holding does not dispose of the weight and preponderance and insufficient evidence points, and we have no jurisdiction to rule on those points. Art. V, Sec. 6, Constitution of Texas, Vernon’s Ann.St.; Electric Express & Baggage Co. v. Ablon, 110 Tex. 235, 218 S.W. 1030, 1034.

When a Court of Civil Appeals has before it points of error asserting “no evidence” and “insufficient evidence” to support vital jury findings, and it sustains both, it is the well settled and long established practice of this court, if it disagrees with the “no evidence” ruling, to remand the case to the trial court for retrial. See Barker v. Coastal Builders, 153 Tex. 540, 271 S.W.2d 798, and cases there cited. There is an exception to the rule. When it appears that a Court of Civil Appeals has sustained an “insufficient evidence” point of error upon an erroneous theory, it is the practice of this court, when disagreeing with the “no evidence” ruling, to remand the case to the Court of Civil Appeals for reconsideration of the “insufficient evidence” ruling. Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926; Porter v. Puryear, 153 Tex. 82, 262 S.W.2d 933, 264 S.W.2d 689. This case is clearly within the exception.

In view of the fact that the jury did not find Adolphus Tower negligent in any respect and its liability to the plaintiff is predicated altogether on the negligence of Otis Elevator, the trial court’s judgment was correct in giving Adolphus Tower judgment for the full amount over against Otis Elevator Company by way of indemnity. Kampmann v. Rothwell, 101 Tex. 535, 109 S.W. 1089, 17 L.R.A..N.S., 758; Scott v. Curtis, 195 N.Y. 424, 88 N.E. 794, 40 L.R.A.,N.S., 1147; Waylander-Peterson Co. v. Great Northern Ry. Co., 201 F.2d 408, 37 A.L.R.2d 1399 (8th Circuit); Harper & James, The Law of Torts, Sec. 10.2, p. 723; Prosser on Torts, 3rd Ed., Sec. 48, p. 279; Restatement of the Law of Restitution, Sec. 96, p. 418.

Petitioners Otis Elevator Company and Adolphus Tower Building had points in the Court of Civil Appeals raising the question of excessive damages and requesting a remittitur. We have no jurisdiction over this matter. Horton v. Benson et al., 277 S.W. 1050, (Tex.Comm.App. 1925).

We therefore reverse the judgment of the Court of Civil Appeals and remand the cause to that Court with instructions to pass on points of error asserting that the jury’s findings are against the overwhelming weight and preponderance of the evidence and are not supported by sufficient evidence, and, if they are overruled, to pass upon the question of excessiveness of the damages, and if judgment can then be entered for damages, to affirm the judgment of the trial court except as it may be modified as a result of the excessive damages question. Otherwise the cause should be remanded for a new trial.

Pope, J., not sitting.


author: DICE, Commissioner.

text:
    Francis M. WILHELMI, Appellant, v. The STATE of Texas, Appellee.
    No. 38087.
    Court of Criminal Appeals of Texas.
    April 7, 1965.

      King C. Haynie, Houston (on appeal only by appointment of trial court), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is sodomy; the punishment, fifteen years.

The prosecutrix, fourteen years of age on the date of the alleged offense, whose mother was deceased, lived with appellant, her stepfather. Her half-brother and sister also lived in the home.

She testified that on the 22nd day of May, 1964, the appellant came into the room where she and her sister were in bed. He had been drinking and ordered the sister to leave the room. After she left the room, appellant got in bed with the prosecutrix and proceeded to fondle her breasts and sexual parts and commit an act of sodomy upon her. The prosecutrix testified that appellant first put his hand on her breast, and after she told him to stop he pulled off her panties and used his mouth upon her private sexual parts. She hollered for her little sister, and appellant proceeded to suck her breasts and attempted to put his sexual part into her sexual part but did not succeed in a penetration.

It was stipulated by and between the parties, when the ten-year-old sister of the prosecutrix was called to the witness stand, that she saw appellant get in bed with the prosecutrix on the morning in question and after she left the room at appellant’s request she heard the prosecutrix “cry out to stop and quit it.”

Appellant’s written confession, made to Officer R. D. Davis, was introduced in evidence by the state after a separate hearing was held by the court in the jury’s absence on the question of its admissibility.

In the jury’s absence, appellant testified that he was not warned by Officer Davis before signing the statement and also that the officer threatened him with physical violence. His testimony was denied by Officer Davis and the officer swore positively that he did give appellant the legal warning and that he did not threaten him in any way.

At the conclusion of the hearing and before the confession was admitted in evidence and read to the jury, the court made an independent finding, duly entered of record, that appellant freely and voluntarily made and signed the statement after having been duly and legally warned. In his charge the court also submitted to the jury the question raised by the evidence as to the voluntary nature of the confession and whether appellant was duly and legally warned by the officer to whom it was made.

In his confession appellant related that in the month of April he got in bed with the prosecutrix and fondled her breasts and sexual parts and:

* * * the next time I remember messing with * * * was Friday night, May 22nd. I had been out drinking and I came home after the kids were asleep. Both of the girls were in their bed asleep, and I went and got in bed with them. I woke * * * up, and I sucked her titties, then I put my finger in her pussy. Then I spread her legs out, and I sucked her pussy with my mouth. Then I took my * * * out and got on top of her and tried to * * * her, but I couldn’t get it in. Then I started sucking her pussy again. Then she told me to leave her alone, and I got up and went to my bedroom and went to sleep.”

Testifying as a witness in his own behalf, appellant stated that on the date in question he had been drinking and was so drunk he did not remember anything. He further testified that when he signed the confession the following day he was “still under the weather” and that the language in the confession was that of Officer Davis and not his words.

The jury by their verdict resolved the disputed issues against the appellant, and we find the evidence sufficient to sustain the conviction.

Appellant’s sole claim of error on appeal relates to a certain question propounded to him on cross-examination by state’s counsel.

During appellant’s cross-examination he was asked certain questions, and the following transpired:

“Q. Have you been out on- bond in this case? A. Yes sir.
“Q. And isn’t it true that you were arrested last week for doing the same thing? A. No sir, it is not—
“MR. WHITFIELD: We object to that and ask for a mistrial at this time.
“THE COURT: I sustain the objection and instruct the jury you will not consider that question for any purpose. Your motion for a mistrial is overruled.
“MR. WHITFIELD: Note our exception.”

The record reflects that before the question was asked, the appellant, while being cross-examined with reference to his acts on the occasion in question, testified “I never done anything like this in my life that I can remember.”

While his testimony would have authorized the state to inquire if appellant had committed a similar act the week before, the trial judge correctly sustained his objection to the inquiry as to an arrest and properly instructed the jury not to consider the question for any purpose. Art. 732a, Vernon’s Ann.C.C.P.

We do not agree that the question was so prejudicial that the error could not be cured by the court’s instruction not to consider.

Mounts v. State, 148 Tex.Cr.R. 177, 185 S.W.2d 731, cited by appellant, is not here controlling, because in that case the fact-laden question was, under the record, wholly unauthorized and implied specific acts of misconduct on the part of the accused, whereas in the instant case the only vice in the question propounded to appellant was the inquiry as to his arrest for committing a similar act to the one charged.

The judgment is affirmed.

Opinion approved by the court.