text:
    Morris KELLY, Jr., Appellant, v. Vincent MARINO et al., Appellees.
    Court of Appeals of Kentucky.
    June 15, 1962.
    Strother Kiser, Lexington, for appellant.
    Richard P. Moloney, Jr., Lexington, Robert Hines, Frankfort, for appellees.
   MOREMEN, Judge.

On October 13, 1961, the Alcoholic Beverage Control Board approved the application of Vincent Marino for a retail package liquor license and said license was ordered issued for premises located on Southland Drive in Lexington. Morris Kelly, Jr., filed a statement of appeal under KRS 243.560. He was the only person who did appeal although many had protested at the hearing before the Board.

The case came on to be heard before the Circuit Court and on January 19, 1962, a judgment was entered sustaining the order of the Alcoholic Beverage Control Board.

On the 15th day of February a notice of appeal to the Court of Appeals was filed by the attorney for Morris Kelly, Jr.

On March 7, attorney for appellant moved that the Court strike the name of Morris Kelly, Jr., as party appellant and substitute in lieu thereof as appellant Mrs. Eula Cobb. This motion to substitute was overruled on March 30.

On March 13, appellee Vincent Marino had filed in this Court affidavits, certified copies of the judgment and the notice of appeal which had been filed in behalf of Morris Kelly, Jr., bond for costs and motion to dismiss the appeal on the ground that Kelly, Jr., had no interest in the appeal and did not wish to proceed with it. This affidavit was to the effect that Kelly, Jr., had moved to Seattle, Washington, and that the appeal to the Court of Appeals was not authorized by him. A copy of a letter from Kelly, Jr., was filed in which he stated that the appeal was unauthorized and he had no desire to prosecute the action. No response was made to this motion and on April 24 this Court sustained the motion to dismiss the appeal. On April 25, 1962, a response was filed to appellees’ motion to dismiss.

On May 2, 1962, Morris Kelly, Jr., by counsel moved that this Court set áside and invalidate the order entered on April 24 dismissing the captioned appeal, and further moved that the appeal be reinstated, and filed in support the affidavit of appellant’s attorney and Eula Cobb. In this affidavit the attorney stated, among other things, that he had no knowledge until after the motion had been sustained that appellees had, upon March 13, filed a motion to dismiss the appeal. The affidavit of Mrs. Cobb stated, among other things, that she desired to intervene as appellant and have her name substituted for that of Kelly, Jr.

We have decided to disregard the formalities of the various moves made by counsel and to decide on merit whether Mrs. Cobb should have been permitted to intervene in the Circuit Court or should be allowed to be substituted as appellant in this Court.

After the hearing before the ABC Board, when appellee’s application for a license was granted, Morris Kelly, Jr. appealed under the terms of KRS 243.560, which reads in part:

“Any order of the board refusing, revoking or suspending a license may be appealed from by the applicant or licensee, and any order of the board granting or refusing to revoke or suspend a license may be appealed from by any citizen feeling himself aggrieved.”

There were many protestants at the hearing before the Board but, at the time, Morris Kelly, Jr., was the only person who took advantage of the right to appeal to the Franklin Circuit Court “within ten days after the entry of the order.” As we have said, the Circuit Court sustained the action of the Board. After he had entered a judgment, Mrs. Cobb attempted to intervene under CR 24.01 which reads:

“Upon timely application anyone shall be permitted to intervene in an action (1) when a statute confers an unconditional right to intervene, or (2) when the representation of applicant’s interest by existing parties is or may be inadequate, and the applicant is or may be bound by a judgment in the action, or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.”

Immediately we are presented with the question of whether the motion to intervene was timely. In Monticello Electric Plant Board v. Board of Education, Ky., 310 S.W.2d 272, we held that intervention after judgment may be permitted under some circumstances but the attempted inter-venor has a special burden of justifying apparent lack of timeliness. We find no such justification here. Here the intervenor is represented by the same counsel and the nature of the procedure on appeal (KRS 243.570) is such that the name of the party appealing is of little value. The case was 'tried upon the record made before the jBoard and counsel was the same for both Kelly Jr. and Mrs. Cobb.

Subsection (2) of KRS 243.570 provides that no additional evidence shall ,be introduced in the Franklin Circuit Court except as to fraud or misconduct of some .party engaged in the administration of Chapter 243 and affecting the order appealed from. No such charge has been made here. So the case was tried before the Court on the record made before the Board. It is plain from the record in the Franklin Circuit Court that the representation was adequate, and that the Trial Court was correct in refusing intervention.

The appeal from the Circuit Court to the Court of Appeals must follow procedure under KRS 243.590 and that section is not as broad as the one dealing with an appeal from the Board’s decision where any citizen feeling himself aggrieved may, under KRS 243.560, appeal. Under KRS 243.590 (appeals from the Circuit Court to this Court) any party aggrieved may appeal.

To some extent this case is similar to Bartholomew v. Paniello, Ky., 287 S.W.2d 616, where a municipal alcoholic beverage control administrator denied application for a liquor license. Applicant appealed but the municipal alcoholic control administrator was not made party to it. The parties were applicant and the State Alcoholic Beverage Control Board. The Franklin Circuit Court ordered the license issued. The municipal administrator then appealed to this Court. This Court said:

“Conceding, without deciding, that appellant was an aggrieved ‘person’ under KRS 243.560(2) and could have appealed to the Franklin Circuit Court and conceding, without deciding, that appellant could have intervened and been made a party in the Franklin Circuit Court, he failed to take either of these steps. The term ‘party’ as used in KRS 243.590 and CR 73.02 clearly means a party of record in the proceedings.”

In the case at bar Mrs. Cobb might have been an aggrieved citizen when the order granting the liquor license was entered, but when she failed to manifest her grievance by appeal to the Circuit Court within ten days she lost any right which she had to complain and, since she was not a party to that appeal, she has no right to appeal to this Court or intervene.

Furthermore, no attempt was made to intervene in the Circuit Court until after the time for filing a notice of appeal had expired.

The appeal is dismissed.


source: Caselaw Access Project

author: STANLEY, Commissioner. MONTGOMERY, Judge

license: Public Domain

text:
    Millard SMITH and Offia Carpenter, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 15, 1962.

      Elmer Cunnagin, Sr., McKee, for appellants.
    John B. Breckinridge, Atty. Gen., Ronald M. Sullivan, Asst. Atty. Gen., Frankfort, for appellee.
   STANLEY, Commissioner.

The Judge of the Jackson County Court, sitting as Judge of the Quarterly Court, tried Millard Smith and Offia Carpenter on a warrant charging them with contributing to conditions which caused five children (named Carpenter) to become delinquent or neglected “contrary to KRS 199.320.” They were adjudged guilty and fined $100 each and sentenced to serve sixty days in jail. KRS 199.990(3). The defendants appealed to the Circuit Court. The appeal was dismissed on the ground that the defendants “neither filed their motion for an appeal supported by an affidavit of merits.” The defendants have moved for an appeal to this court from that order. Section 348, Cr.Code of Practice.

Section 362, Cr.Code of Practice, provides for an appeal from the “Juvenile Session of the County Court” to the Circuit Court by filirig the transcript of the record in the office of the circuit court clerk “accompanied by a motion for an appeal, supported by an affidavit of merits, signed by the appellant.” The appellants did not follow that course but appealed in the manner provided for ordinary criminal cases in § 364, Cr.Code of Practice.

Confusion exists in the present statutes relating to child welfare because of numerous amendments without complete and logical correlation. The statute penalizing adults for contributing to the delinquency or neglect of a child continues in a chapter of the statutes relating to child welfare. But the statute relating to “juvenile courts” and the commitment and care of children has been materially revised and re-enacted. It is now Chapter 208, KRS, while several provisions dealing with the same general subject remain as part of Chapter 199.

Wooton v. Commonwealth (1934), 255 Ky. 810, 75 S.W.2d 556, was an appeal from a judgment of a circuit court which dismissed an appeal by a child from a judgment of the county court, sitting in juvenile session, that he was a delinquent. We noted that prior to 1932 there was no provision for an appeal from a judgment of the county court in cases of that character, but that the amendment in that year of § 362 of the Criminal Code of Practice authorizing an appeal from the “juvenile session of the county court to the circuit court” (above summarized) had the effect of depriving a county court of exclusive jurisdiction of delinquent children as theretofore stated in § 331g-3, Ky.Stats., now KRS 199.990(2) (c). We construed the law as amended (really an amendment of § 364) to be that such jurisdiction meant “exclusive original jurisdiction” in the matter of delinquent children, and vested appellate jurisdiction in the circuit courts for a de novo trial. The effect was to render ineffectual Commonwealth v. Youngblut (1914), 159 Ky. 87, 166 S.W. 808, holding that there could be no appeal in juvenile delinquency cases.

In the amendment and revision in 1952 (Ch. 161, Acts of 1952) of the statutes relating to jurisdiction, procedure and judgments of the county courts sitting in juvenile sessions, the law was set up as a separate chapter, and the provisions which related to the mistreatment, employment and care of children by adults were left unchanged. The present KRS 199.320, under which the appellants were convicted, was an amendment enacted in 1954 (Acts, Ch. 193). The amendment, however, only made the statute more definite and stringent.

Chapter 208 of the statutes covers comprehensively the whole subject of “Commitment and Care of Children.” KRS 208.020 declares “The juvenile session of county court of each county shall have exclusive jurisdiction in proceedings concerning any child,” under certain circumstances and with exceptions not material here. In the several revisions, as stated, the law dealing with adults contributing to the delinquency of children is not embraced in this chapter of the statutes. It is now separate and distinct and covered by several sections of Chapter 199 which have no relation to juvenile courts. However, there remains (like a vermiform appendix in the human body) the provision in KRS 199.990(2) (c) that “county courts shall have exclusive jurisdiction of all prosecutions under KRS 199.320.” And that is recognized in KRS 25.010 in defining the jurisdiction of county and quarterly courts. That was originally part of the so-called juvenile court act. The' effect of the amendments and changes in the' statutes is that the term “county court” as' used in KRS 199.990(2) (c) no longer means the juvenile session of the county court.

We come to the distinction, if any, between a “county court” and a “quarterly court.” Both courts are constitutional tribunals and presided over by the county judge. Section 139, Constitution. The organization, terms and procedure of quarterly courts are prescribed by KRS 25.450 et seq. Both courts have the same jurisdiction of prosecutions for criminal offenses. KRS 25.010.

In Steinbergen v. Miller, 29 Ky.Law Rep. 1132, 96 S.W. 1101, a person was arrested on a warrant and tried for a misdemeanor by the county judge and a jury. All the proceedings, including the judgment, were signed as judge of the quarterly court. The action appealed to this court was a suit for false imprisonment based on the ground that the judgment was null and void because jurisdiction of the offense was specifically lodged in the “county judge” as a magistrate and not as presiding judge of the quarterly court. We held that it is wholly immaterial on the trial of misdemeanor cases whether the judge styles himself as “judge of the county court” or “judge of the quarterly court” or simply as county judge, so' long as the one charged with the misdemeanor is tried before the officer holding the commission as county judge. Accordingly, it was held that the prosecution had been conducted in the manner and form that the law directed, and “that the judgment rendered therein on the verdict of the jury was a good and valid judgment, and as binding upon defendants as though the proceedings had been in the name of the county judge alone, without designating either of the courts.”

Hickman County v. Jackson, 153 Ky. 551, 156 S.W. 391, involved fees of a jailer for attending county and quarterly courts and sessions held by the county judge alone. We held that the meaning of the related statutes is that jurisdiction may be exercised by the county judge in criminal cases “sitting either as the quarterly or county court.”

We are of opinion that the appeal in this case to the circuit court, which was in the manner and form prescribed for appeals in the usual misdemeanor cases, was erroneously dismissed on the ground assigned.

Judgment is reversed.

MONTGOMERY, Judge

(dissenting)'.

I respectfully dissent from the majority opinion on the ground that the judgment rendered by the Jackson Quarterly Court is void for lack of jurisdiction. KRS 199.990 (2) (c) places the exclusive jurisdiction of violations of KRS 199.320 in the county court. KRS 25.010, governing the general criminal jurisdiction of county, quarterly, and justice’s courts, excepts KRS 199.990 from the general jurisdiction of those three courts, thus recognizing that the county court has exclusive jurisdiction over violations of KRS 199.320. This is consonant with the thought that the county court should have jurisdiction of matters involving juveniles.

The majority opinion does not give full recognition to this exception. Steinbergen v. Miller, 29 Ky.Law Rep. 1132, 96 S.W. 1101, cited as authority, dealt with a matter within the general criminal jurisdiction of the three courts and was not concerned with the exclusive jurisdiction granted the county court under KRS 199.990(2) (c).

The Jackson County and Quarterly Courts are two entirely separate and different courts, with different meeting times, and with records kept in different offices. The fact that the same person presides over both courts is unimportant. The same person also presides over the Jackson Fiscal Court. For historical differences, see Brown v. Hoblitzell, Ky., 307 S.W.2d 739.

For these reasons, I feel that the Jackson Quarterly Court had no jurisdiction of the offense, and the judgment was void.


author: MONTGOMERY, Judge.

text:
    C. D. CARPENTER et al., Petitioners, v. Honorable Courtney C. WELLS, Judge, Perry Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    June 15, 1962.

      Logan E. Patterson, Pineville, appellant, pro se.
    C. D. Carpenter, Stanton, appellant, pro Se.
    H. B. Noble, Hazard, Grant F. Knuckles, Pineville, for appellee.
   MONTGOMERY, Judge.

C. D. Carpenter and Logan E. Patterson, both attorneys, have petitioned this Court to prohibit the Honorable Courtney -C. Wells, Judge of the Perry Circuit Court, from compelling them to answer certain questions or from punishing them for their continued rfefusals to answer the questions or to make certain disclosures.

On December 12, 1961, H. C. Cantrell and four other former employees of Jewell Ridge Coal Corporation sued Jewell Ridge for various sums alleged to be due them under the National Bituminous Coal Wage Agreement of 1950. They claimed a lien under KRS 376.150 and 376.160 and sought to have it enforced on all of the property of Jewell Ridge to satisfy the payment of their claims.

The depositions of Carpenter and Patterson were taken by counsel for the employees on February 20 and April 12, 1962, respectively. Both depositions were taken by way of discovery, as stated in the response filed herein, and as captioned in the action pending between H. C. Cantrell, et al. v. Jewell Ridge Coal Corporation. Carpenter and Patterson refused to answer certain questions asked. Following hearings the orders complained of were entered.

The depositions show that at that time Carpenter was the president of Kentucky River Coal Corporation, described as a landholding company engaged in leasing various tracts of Eastern Kentucky land for the extraction of coal. Patterson, in his deposition, described his connection with the Blair Fork Coal Company as attorney and nominal vice president. Carpenter testified that on or about August 7, 1961, a coal mine lease in which Kentucky River was the lessor and Jewell Ridge the lessee had been canceled. By the termination agreement, Jewell Ridge retained no rights in the leasehold or the effects and improvements thereon. Subsequently, the same property was re-leased by Kentucky River to Blair Fork. In essence, the questions which petitioners refused to answer were designed to elicit information concerning the terms of the cancellation agreement and of the re-lease agreement, the disposition of the improvements and equipment used by Jewell Ridge, the relation, if any, between Jewell Ridge and Blair Fork, and the organization and identity of the stockholders of Blair Fork.

Neither the petitioners nor Kentucky River and Blair Fork are parties to the Jewell Ridge lawsuit. It is alleged in the petition that none of them has any pecuniary interest in the outcome of the Jewell Ridge action; that neither Carpenter nor Kentucky River has ever owned any stock in Jewell Ridge or Blair Fork and that neither of them has any proprietary interest in either Jewell Ridge or Blair Fork except by reason of the two leases; that neither Patterson nor Blair Fork has ever owned any stock or other proprietary interest in Jewell Ridge; that Jewell Ridge and Blair Fork are entirely separate corporations, without either owning stock in the other and without common stockholders, officers, or directors; and that there exists no contractual or other relationship between the corporations. These allegations are neither admitted nor denied by respondent.

At the hearing concerning Patterson, counsel for Jewell Ridge appeared and offered to file a performance bond with good corporate surety “in order to obviate the inconvenience, expense, and embarrassment of further inquiries allegedly seeking assets of Jewell Ridge.” The bond tendered was regular on its face, but counsel for the employees objected to its being filed and questioned the authority of the agent to sign the bond and the genuineness of the signature. The persistence in seeking the information after refusal of a performance bond on superficial grounds casts some doubt on the sincerity of the inquiry.

Petitioners assert that since September 1961, Blair Fork and the United Mine Workers of America have been jointly involved in charges, investigations, and proceedings before the National Labor Relations Board. They contend that the employees’ counsel, who are the regularly retained counsel for United Mine Workers, are using the deposition takings as a means to gain information to be used in the NLRB proceedings.

It is apparent at once that two extraordinary legal processes are involved: discovery and prohibition.

Depositions may be taken for the purpose of discovery or for use as evidence in an action, or for both purposes. CR 26.01. Unless limited by CR 30.02 or 30.04, the scope of examination permitted in depositions taken is limited to “matter, not privileged, which is relevant to the subject matter involved in the pending action.” CR 26.02. Petitioners contend that the matters inquired about were privileged and were not relevant. The latter contention is dispositive.

In Foremost Promotions v. Pabst Brewing Co., D.C., 15 F.R.D. 128, the rule is stated thus:

“It is the duty of the court to keep the inquiry within reasonable bounds and to restrict questions to those having substantial relevancy to a sensible investigation.”

Relevancy under F.R.Civ.P. 26(b), 28 U.S.C.A. has been defined as relevancy to the subject matter involved rather than as relevancy limited by the precise issues presented by the pleadings. Kaiser-Frazer Corporation v. Otis & Co., D.C., 11 F.R.D. 50; Rose v. Bourne, Inc., D.C., 15 F.R.D. 362. However, where, as here, “there being before the Court nothing but the complaint and answer, the pleadings are the touchstone by which the subject matter of the action is determined.” Bullard v. Universal Millwork Corporation, D.C., 25 F.R.D. 342.

As determined by the pleadings, and as admitted by respondent, the subject matter of the action is the amount of wages owed, if any, by Jewell Ridge to certain employees and the existence of a statutory lien. Nowhere in the record of that action is there any alleged connection with either petitioner or Kentucky River, Blair Fork, or their properties. No allegations of fraud, concealment, or insolvency are made as the bases for proceeding against the properties of Kentucky River or Blair Fork. No property owned by Kentucky River or Blair Fork was described or identified as belonging to Jewell Ridge. The only reference in the complaint to the property of Jewell Ridge is in the prayer wherein a lien is prayed against the property, described in general terms, “used an its mining operation.”

The inquiries made concerned the private affairs of nonparties to the .action and were not relevant to the subject matter of the action. Arlington Glass Co. v. Pittsburgh Plate Glass Co., D.C., 24 F.R.D. 50. Nor can the questions be justified on the ground that they appear to 'be reasonably calculated to lead to the discovery of admissible evidence. North River Barge Line, Inc. v. Grace Line, Inc., D.C., 8 F.R.D. 117. If it be true, as petitioners charge, that the inquiries were made to gain information to be used in a matter pending before the National Labor Relations Board, they would appear to .have been made for a collateral purpose, which has been condemned. Radio Corporation of America v. Solat, D.C., 31 F. Supp. 516. Hence, the same conclusion is reached as in Proctor & Gamble Distributing Co. v. Vasseur, Ky., 275 S.W.2d 941, wherein the Court concluded that the purpose of the inquiry was to learn whether or not Proctor & Gamble Distributing Company was the alter ego or distributing agency of Proctor & Gamble Company. It was pointed out that the information sought might become important if judgment should be obtained and prove to be noncollectible. It was concluded that the questions asked were not relevant and that the lower court erroneously required answers thereto.

Obviously, petitioners as nonparties have no remedy by appeal. There is no adequate remedy other than by prohibition. The supervisory power of this Court under Section 110 of the Kentucky Constitution has been invoked in cases where in addition to the element of great and irreparable injury there is some aspect of injustice. Schaetzley v. Wright, Ky., 271 S.W.2d 885. Injustice was there defined as “something in the nature of usurpation or abuse of power by the lower court, ⅜ * * such as to demand that the Court of Appeals step in to maintain a proper control over the lower court, * *. The object of the supervisory power of the Court of Appeals is to prevent miscarriage of justice.”

The rule in such cases is that if an erroneous order results in a substantial miscarriage of justice, the showing of great and irreparable injury as ordinarily defined is not an absolute necessity. Bender v. Eaton, Ky., 343 S.W.2d 799. The aspect of substantial injustice without an adequate remedy by appeal or otherwise prompts the remedial action under Section 110. The Schaetzley rule was approved in Ison v. Bradley, Ky., 333 S.W.2d 784, cited by respondent, which is not in point since petitioners there were held to have,had adequate remedy by appeal.

Petitioners are faced with punishment for contempt of court for refusing to answer questions which are not relevant to the issues in the action involved. It is considered that the threatened action of the lower court in the absence of an adequate remedy by appeal constitutes a usurpation or abuse of power with the requisite element of great and irreparable injury sufficient to justify the exercise of this Court’s power under Section 110 of the Kentucky Constitution in order to prevent a miscarriage of justice.

Prohibition granted.


author: WADDILL, Commissioner.

text:
    James T. NICHOLSON et al., Appellants, v. Robert Milton SANDERSON, Appellee.
    Court of Appeals of Kentucky.
    June 15, 1962.
    H. M. Tye, Barbourville, for appellants.
    Charles G. Cole, Jr., Earl Cole, Barbour-ville, for appellee.
   WADDILL, Commissioner.

Appellee, Robert Sanderson, obtained a judgment of $3,004.25 against appellants, James Nicholson and his driver, Clarence Ware, as damages resulting from a collision involving their automobiles. Appellants contend the trial court erred: In directing the jury to find in favor of appellee; in excluding certain evidence; and in interfering with the deliberations of the jury.

During the rainy afternoon of August 28, 1959, appellee was driving his station wagon behind a pickup truck on U.S. Highway #25-E when he saw the Nicholson car approaching him from around a bend in the road. Both cars were then traveling approximately 45 miles an hour and were about 300 feet apart. After the Nicholson car had executed the curve it slid across the center line, sideswiped the pickup truck and crashed into appellee’s car. The vehicles were extensively damaged and ap-pellee sustained numerous cuts and bruises.

Appellants contend that appellee was not entitled to a directed verdict because he did nothing to avert the accident. Appellee testified without contradiction that he had less than three seconds in which to act after he saw that the Nicholson car was out of control. We also observe that appellant Ware’s version of the accident substantially confirmed that of appellee. Under these circumstances the contention is unavailing. Consequently, we believe the trial court correctly ruled that Ware’s negligence, in negotiating the curve at a speed of 45 miles an hour during a heavy rain and on a highway he had previously observed to have mud on it, was the sole proximate cause of the accident.

After appellee had established by a qualified witness the difference between the reasonable market value of his car immediately before and after the collision, appellants’ counsel asked this witness to state what he had estimated the cost would be to restore the car to its pre-accident condition. Before an objection was interposed the witness answered the question. Appellee’s counsel then objected, and requested that the jury be admonished not to consider the answer because the claim for damages to the car was not predicated upon the cost of repairing it. The trial court admonished the jury accordingly. While the testimony as to the cost of repairing appellee’s automobile was competent (Pope’s Adm’r. v. Terrill, 308 Ky. 263, 214 S.W.2d 276), the court’s ruling was not prejudicial since it appears that the cost of repairing the automobile was consistent with the reduction in the reasonable market value of the car.

Appellants claim that the trial judge coerced the jury to reach a verdict. This is based on the allegation that he interrupted the deliberation of the jurors to inform them that they should “hurry up with that verdict.” While the conduct of the trial judge is subject to criticism, we are unable to say that it resulted in coercion, particularly since there is no showing as to the length of time the jury considered the case after these remarks were made. Abbott v. Commonwealth, Ky., 352 S.W.2d 552. We find no merit in the contention that the trial judge abused his discretion in explaining a form he had prepared for the jury’s use in recording its verdict.

Judgment affirmed.


author: STEWART, Chief Justice.

text:
    COMMONWEALTH of Kentucky ex rel. John B. BRECKINRIDGE, Attorney General, Petitioner, v. Thomas A. NOE, Jr., Judge, Simpson Circuit Court, etc., Respondent. COMMONWEALTH of Kentucky, Appellant, v. Isaac HOLLINGSWORTH, Appellee. Consolidated Cases.
    Court of Appeals of Kentucky.
    June 22, 1962.

      John B. Breckinridge, Atty. Gen., for petitioner.
    No attorney for respondent.
    John B. Breckinridge, Atty. Gen., Joe Nagle, Asst. Atty. Gen., Frankfort, for appellant.
    J. Reid Caudill, Bowling Green, Hugh L. Hollingsworth, Russellville, for appellee.
   STEWART, Chief Justice.

The facts, which are undisputed in the record, disclose that on April 6, 1962, one Isaac Hollingsworth was convicted in the Simpson quarterly court of operating a place of entertainment without a permit in violation of KRS 231.020. He was fined $200 and sentenced to 90 days in jail, the maximum punishment that may be inflicted under this statute. Hollingsworth subsequently appealed to the Simpson Circuit Court. On April 11, 1962, there was filed in circuit court, in connection with this criminal appeal but not as an independent action, a petition for a writ of prohibition, styled “Commonwealth of Kentucky, ap-pellee, versus Isaac Hollingsworth, appellant.”

On the same date, a temporary writ of prohibition issued restraining the judge of the Simpson quarterly court from proceeding against Hollingsworth “by way of a warrant for the operation of a ‘roadhouse’ or ‘place of entertainment’ without a license until such time as a hearing may be had to determine the question of whether or not this writ of prohibition shall become a permanent one until the appeal is finally decided.”

The instant original action seeks to nullify the temporary writ and to prohibit the circuit judge from interfering with the authority of the quarterly court to issue warrants for violations of KRS 231.020. An appeal has been taken from the temporary writ (which is an interlocutory order) granted by the trial judge in the case of Commonwealth versus Hollingsworth. Without objection, the circuit court proceeding and the original action were consolidated.

It is to be noted that the judge of the Simpson quarterly court was not made a party to the petition in circuit court wherein the trial judge by what amounted to an ex parte order prohibited that official from issuing additional warrants against Hollingsworth based upon other violations of the same law. Consequently, as the judge of the Simpson quarterly court was never brought before the Simpson Circuit Court, the latter was never empowered to exercise any jurisdiction over the former in respect to the restraining action taken. However, even if the judge of the quarterly court had been included in the petition, the prohibition proceeding against him would not lie under the facts presented.

Attention is called to the fact that the penalty for a violation of KRS 231.020, as provided by KRS 231.990(1), is a fine of not more than $200 or confinement in jail of not more than 90 days, or both. It is also pointed out that, by the terms of KRS 25.010, a quarterly court’s jurisdiction extends to a fine of $500 and imprisonment in jail for 12 months. Therefore it is apparent the quarterly court judge had clear authority to issue a warrant against Hol-lingsworth and to try and determine the action for a violation of KRS 231.020.

In Potter v. Trivette, 303 Ky. 216, 197 S.W.2d 245, Potter sought in circuit court a writ of prohibition to prevent Trivette, a police judge of Pikeville, from trying him on an illegal parking charge. The opinion, after stating that the police court was fully vested with jurisdiction to try the case, upheld the judgment of the trial court in dismissing Potter’s petition. It made this statement which applies in every particular to the iurisdictional question now before us:

“It is well settled that circuit courts in this Commonwealth have no prohibitive jurisdiction against inferior courts where the inferior court is acting within its jurisdiction, even though such jurisdiction has been or is threatened to be erroneously exercised. If the inferior court is proceeding erroneously within its jurisdiction, and irreparable injury will result to a litigant, with no adequate remedy for relief, then the prohibitive jurisdiction lies in this court (Court of Appeals) under Section 110 of the Constitution.”

Wherefore, the Simpson Circuit Court is prohibited from interfering with the authority of the Simpson quarterly court to issue warrants and try and determine offenses involving violations of KRS 231.-020, and the appeal, being from an interlocutory order, is dismissed.


author: BIRD, Judge.

text:
    Earl WALLACE, Commissioner of the Dept. of Fish & Wildlife Resources, et al., Appellants, v. The CITY OF WILLIAMSTOWN, a Municipal Corp., et al., etc., Appellees.
    Court of Appeals of Kentucky.
    June 22, 1962.

      Raymond R. Vincent, John J. Blackburn, Williamstown, Stoll, Keenon & Park, Lexington, for appellants.
    L. M. Ackman, Williamstown, for ap-pellees.
   BIRD, Judge.

The Kentucky Department of Fish and Wildlife Resources Commission adopted the following regulation to apply solely to a lake owned by the City of Williamstown:

“No person shall use or operate a motor boat which has a motor or engine having a power in excess of six horsepower on the lake located in Grant County, Kentucky, known as the new Williamstown Lake or supplemental Reservoir and which contains approximately 305 acres of water more or less.”

This action was brought to test the validity of the regulation. The trial court held that the Commission had no authority either by general law or contract with the city to so regulate. The Commission has appealed.

Whatever authority the Commission has under the applicable Kentucky Statutes to regulate the use of the impounded water in question has been exercised by means of a contract entered into with the City of Wil-liamstown. We must determine only the effects of that contract, and the statutes are no longer germane to the issue in this case. The portion of the contract upon which the Commission relies reads as follows:

“1. That the Department shall have the right to stock Lake Williamstown with any desirable fish to the advantage of the fisherman and to regulate, in any lawful manner, the taking of fish from Lake Williamstown.
“2. That the Department shall have the right and authority to supervise and regulate in any manner necessary to increase or decrease the fish population in Lake Williamstown in compliance with the laws and regulations of the County or State Department of Health.”

Item 2 does not grant general authority to make regulations even for the purpose of propagating or protecting fish. The authority therein granted pertains only to supervision as it may relate to compliance with laws and regulations embracing questions of health, none of which are involved in this action.

Furthermore, the contract provides as follows:

“5. That nothing in this contract shall impair or qualify any rights, privileges or authority which the City or its legally constituted lessees may already have with regard to the following:
“(a) Operating and maintaining boat docks and to charge fees for the use thereof.”

It is our opinion that the operation of a boat dock, according to common usage of the words, includes the renting of boats together with engines of indiscriminate size, which could reasonably be more than six horsepower. Renting of dock space for privately owned boats is a common function in the operation of a boat dock and could well include boats with engines of more than six horsepower.

It is readily apparent that the regulation of horsepower in engines could quite conceivably amount to the regulation of the dock operation itself and this the Commission has agreed not to do.

Our examination of the record reveals no prejudicial error and the judgment is therefore affirmed.

STEWART, C. J., dissents.


text:
    COMMONWEALTH of Kentucky ex rel. KENTUCKY RAILROAD COMMISSION, etc., Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.
    John B. Breckinridge, Atty. Gen., H. N. McTyeire, Asst. Atty. Gen., Frankfort, Seth T. Boaz, Jr., Asst. Atty. Gen., Mayfield, for appellant.
    Lively M. Wilson, Stites, Peabody & Helm, Louisville, Joseph H. Wright, John W. Freels, and John W. Foster, Chicago, Ill., of counsel, for appellee.
   MONTGOMERY, Judge.

The Railroad Commission appeals from a judgment in which it was directed to approve the application of the Illinois Central Railroad Company to discontinue its agency station at Vine Grove. See KRS 276.370. The Commission had previously ordered the agency continued. The agency station has been closed since December 24, 1960.

The original order of the Commission contained no findings of fact or conclusions of law. In an amended order, the Commission found, inter alia, that for the year 1957 and the first ten months of 1958, respectively, the gross revenue from freight and expense handled through the agency at Vine Grove amounted to $31,669.72 and $19,926.19; the Railroad’s portion was $16,597.98 and $9,370.29; and station expenses amounted to $5,070.42 and $4,551.51; that if the application to discontinue the agency should he granted, the station would be governed by the agency at Fort Knox and the carload shippers would either have to meet the train when it arrived in Vine Grove or go to Fort Knox in order to get the bill of lading signed; that in order for a patron to receive a shipment on a shipper’s order bill of lading, he would be required to post a bond in excess of the value of the shipment; and that the communities of Radcliffe, Flaherty, Rineyville, and Big Spring have been served by the Vine Grove station. The Commission concluded that public convenience and necessity could not be served through the granting of the application.

The circuit court’s findings were that the volume of business handled at Vine Grove had been steadily declining for the past several years; that as a result thereof the Railroad had incurred losses in the operation of its agency station there of $2,861.07 for 1957, of $3,593.53 for 1958, and of $3,-508.86 for 1959; and that under the proposal of the Railroad, Vine Grove would become a prepay station and services would still be provided through the facilities maintained there. The court concluded that the agency station had been and was being maintained at a loss and the income would not improve; that the services and facilities provided would be adequate; that the findings of the Commission were not sufficient to support a denial of the application; and that to require the Railroad to continue its agency station at Vine Grove, under the facts in this record, would be contrary to and in violation of the Railroad’s right under the Fifth and Fourteenth Amendments of the United States Constitution and Sections 2, 13, and 242 of the Kentucky Constitution, and would constitute the taking of the Railroad’s property without due process of law.

Ordinarily, the review of such a judgment “is limited to the narrow question whether there is any substantial evidence, or * * * any evidence of substance, to support the finding of the Railroad Commission.” Railroad Commission of Kentucky v. Illinois Cent. R. Co., Ky., 265 S.W. 2d 797; Louisville & Nashville R. Co. v. Commonwealth, Ky., 300 S.W.2d 777. The Commission’s findings concerning revenue, station expense, and carloadings were based on the Railroad’s exhibits. The controlling facts in this case are not in dispute. In such case, the correctness of the Commission’s decision becomes a question of law reviewable by the court. Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262, 130 S.W.2d 756; Joseph W. Greathouse Co. v. Yenowine, 302 Ky. 159, 193 S.W.2d 758; 42 Am.Jur., Public Administrative Law, Section 210, page 622, and Section 214, page 634. This case is unlike Louisville & Nashville R. Co. v. Commonwealth, Ky., 314 S.W.2d 940, where in the absence of findings of fact, the case was remanded to the Commission to make proper findings of fact and conclusions of law.

The Railroad is required to furnish reasonably adequate service and facilities. See KIRS 276.020. The question is: Does the elimination of the agency station in view of the loss sustained in maintaining it constitute a failure to furnish reasonably adequate service and facilities ?

The evidence in support of the application follows. Vine Grove had a population of 2,252 people. It is located on the main tracks of the Railroad’s Kentucky division, 10.4 miles north of Cecilia and 6.4 miles south of Fort Knox. Cecilia and Fort Knox are agency stations. Vine Grove is 8.5 miles by a paved highway from Fort Knox, and there is no toll charge on telephone calls between the two points. In addition to the present service of the Railroad, freight service is also supplied by two truck lines.

The use of the services provided by the agency has been declining steadily over the past several years. For the year 1957, a total of 94 carload shipments and 869 less-than-carload shipments were handled at the agency. For the year 1958, 87 carload shipments and 763 less-than-carload shipments were handled. Business at the agency was such that it required only one or two hours per day of the agent’s time to handle the traffic, make out the necessary reports, and perform his other duties.

The discontinuance of the agency would have little, if any, effect on the service presently provided by the Railroad. The Railroad would continue to transport freight on the same schedule and to use the same trains and other facilities. Less-than-carload shipments would be delivered to the freight depot to which the consignee would have access, or they could be delivered to Fort Knox at the consignee’s request. There would be no difference in the handling of carload traffic, the only change being that it would be necessary for the consignor or consignee to call the agency at Fort Knox instead of the agency at Vine Grove.

Service through open and prepay stations such as the Railroad furnished at Vine Grove is provided at West Point, Shively, Pleasure Ridge Park, Meadowlawn, Valley, and other stations of comparable size on this line of the Railroad. The testimony shows that the service is satisfactory and efficient, both from the standpoint of the Railroad and the patrons whom it serves.

The Railroad’s evidence showed losses of $2,861.07 in 1957, $3,593.53 in 1958, and $3,508.86 in 1959. The testimony was to the effect that there was no probability that its losses would decrease in the future but might be expected to continue to increase.

The testimony in opposition to the application was given by the Mayor of Vine Grove, a State Senator, a Chamber of Commerce representative, four businessmen, and a retired businessman. In substance, their objections were to the effect that the loss of the agency station would be an inconvenience and would necessitate traveling over a highway heavily congested with traffic to Fort Knox and obtaining a military pass to enter the military reservation in or-er to handle shipments through Fort Knox. The latter objection was questioned.

The evidence concerning the profit or loss of the Vine Grove agency station is uncontradicted. It consists of testimony by the Railroad’s statisticians from reports and exhibits prepared in accordance with Interstate Commerce Commission regulations and recognized as proper. Commonwealth ex rel. Kentucky R. R. Commission v. Illinois Cent. R. Co., Ky., 299 S.W.2d 803. These exhibits formed the bases for findings by the Commission and trial court.

The findings of the Commission as to gross revenue and direct station expense are as shown on the exhibit. The findings are misleading, in that no findings were made concerning other factors in the statement which are necessary to be considered in order to determine the profit or loss sustained at the station. The Commission failed to take into account the proportionate share of general operating expenses, rent, and taxes of the Railroad’s freight system as it properly should have done and considered only the direct station expense. The Commission made no finding as to the portion of the gross revenue properly assignable to Vine Grove or whether there was a profit or loss. There is nothing in the record to show that the Railroad’s formula in determining the loss is incorrect or that there is any better method of accounting. The trial court correctly took into account all of the factors shown by the statements in finding that there were losses in each of the three years shown. Missouri-Pacific R. Co. v. Louisiana Public Service Commission, 238 La. 243, 115 So.2d 337; Northern Pacific R. Co. v. North Dakota, 236 U.S. 585, 35 S.Ct. 429, 59 L.Ed. 735. See also Louisville & Nashville R. Co. v. Com., Ky., 314 S.W.2d 940.

The duty of the Railroad is to furnish reasonably adequate service and facilities. KRS 276.020. Its absolute duty is to transport freight and passengers. The duty to furnish an agency station is incidental to the main purpose of the Railroad. Arizona Corporation Commission v. Southern Pacific Company, 87 Ariz. 310, 350 P.2d 765; State of Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U.S. 510, 32 S. Ct. 535, 56 L.Ed. 863. The application to be relieved of maintaining an agency station involves an incidental duty as contrasted with the absolute duty to furnish transportation.

The maintenance of an agency station primarily involves a question of business policy. The expense of maintaining it may assume a controlling importance. The many factors involved were pointed out in the Arizona case, thus:

“In weighing the public convenience on the one hand, and the expense to the railroad of the maintenance of the service, on the other, to determine the prevailing balance, the Commission should consider the following factors: the financial condition of the entire railroad system, the financial loss, if any, sustained in the maintenance of the agency, the fact of substitute services providing the same essential, although less convenient, service, the volume of business to be affected and the saving in time and expense to the shipper, the character and population of the territory served, and the proximity to other agency stations. The crucial point, however, is that it is unreasonable to require the maintenance of an agency station where the cost of the service is out of proportion to the revenue derived from the portion of the public benefited thereby. Finally, the maintaining of an uneconomic service
resulting m an economic waste cannot be justified or excused by a showing that the service has been in the convenience and necessity of some individual. The convenience and necessity required are those of the public and not of an individual or individuals.” (Citations omitted.)

See also Illinois Cent. R. Co. v. Illinois Commerce Commission, 397 Ill. 323, 74 N.E. 2d 545; State ex rel. Utilities Commission v. Atlantic Coast Line R. Co., 233 N.C. 365, 64 S.E.2d 272; Denton Bros. v. Atchison, T. & S. Ry. Co., 34 N.M. 53, 277 P. 34.

It, therefore, is concluded that the-services and facilities provided are adequate and that the public inconvenience as opposed to the financial loss of the Railroad is not sufficient to justify maintaining the agency station at Vine Grove. It is deemed unnecessary to consider the constitutional questions presented.

Judgment affirmed.


text:
    Elias A. DUNBAR et al., Appellants, v. R. E. WILLIAMS COMPANY, Inc., a Kentucky Corporation, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.

      Robert T. Harrod, Marshall A. Dawson, Versailles, for appellants.
    Charles Wylie, William E. Sloan, Lexington, for appellee.
   MONTGOMERY, Judge.

In a declaratory judgment action, the lower court construed a lease in favor of the lessee, R. E. Williams Company, Incorporated. The lessors, Elias A. and Carolyn Dunbar, appeal.

Appellants contend that the lease began -and ended on specific dates set forth in the lease. Appellee contended, successfully, that the term of ten years began upon the completion of the repairs, alterations, and improvements contemplated in the lease and ended ten years thereafter. The immediate question involved whether the lessee had lost or retained the right to extend the term of the lease for an additional period of years by giving notice of the exercise of the right or option so to do at least six months prior to the expiration of the original ten-year period.

By a lease dated September-, 1950, appellants leased to appellee a two-story building at 127 North Main Street, Versailles. The stipulated repairs, alterations, and improvements to be made included installation of a concrete floor, two toilets, a new ceiling, two overhead gas-fired heaters, fluorescent lighting, two exhaust fans, plastering and painting of the walls, and repair and reconstruction of the building’s front structure and glass.

The pertinent part of the lease follows:

“That Lessors hereby lease to Lessee and Lessee hereby rents from Lessors * * * for a period of ten (10) years from the 1st day of December, 1950, to and including the 30th day of November, 1960, for and upon the following considerations, terms, stipulations, conditions and agreements:
“1. That the beginning of said term is contingent upon the completion of certain. repairs, alterations and improvements to be made by Lessors * * * and that due to priorities of material and delays in securing contractual commitments for the completion of said work, it is understood and agreed that if said work is not completed by the 1st day of December, 1950, then the rental due hereunder shall be abated until the date of completion of said work and said Lessee shall be obligated for the payment of rent only from the said date of completion of said work.

It is agreed that the repairs, etc., were completed on September 1, 1951. Appellee alleged that possession began on that date.

Appellants argue that the time of occupancy of the premises, the time of payment of rent, and the term of the lease may be different and not necessarily concurrent and that the use of the word “abated” indicates that the term had started on December 1, 1950, but the payment of rent had been suspended, pending the period of nonoccupan-cy. Appellee argues that it was intended by the parties that the lessee should enjoy a ten-year term to start on December 1, 1950, and end on November 30, 1960, provided that the term should not begin until the repairs, etc., were completed, which was on September 1, 1951, thus making the term end on August 31, 1961.

If the provisions of the lease are inconsistent and create an ambiguity, thes rule is that the lease shall be construed more favorably to the lessee and more strongly against the lessor. Cheshire v. Wright, 314 Ky. 728, 237 S.W.2d 52; Otting v. Gradsky, 294 Ky. 779, 172 S.W.2d 554, 148 A.L.R. 580; Raff v. Freiberg, 207 Ky. 246, 268 S.W. 1110. When the intention of the parties can be reasonably ascertained from the language used in the lease as a whole, it is the duty of the court to effectuate such intention even though the purpose may have been inarticulately expressed. North Star Company v. Howard, Ky., 341 S.W.2d 251.

The lower court construed the lease to mean that the lessee was to enjoy a term of ten years and that the start of the term was subject to postponement until the completion of the contemplated renovation rendered the premises ready for occupancy, which did not occur until September 1, 1951, thus postponing the expiration of the lease until August 31, 1961. This gave effect to enumerated Paragraph 1 of the lease. The word “abated” would appear to have been unfortunately used but was construed by the lower court to mean that the payment of rent was to be postponed until the building was ready for occupancy. This would appear to be a reasonable construction, giving effect to all alleged inconsistent terms, since the lessee normally would not want to pay rent until the building was ready for occupancy and the lessor would want to be assured of having a tenant ready to occupy the building when renovated. See Cincinnati N. O. & T. P. R. Co. v. Depot Lunch Room, 190 Ky. 121, 226 S.W. 387; Under-hill on Landlord and Tenant, Volume I, Chapter X, Section 240, pages 346-348. The lower court’s construction of the lease is correct.

Judgment affirmed.


author: WILLIAMS, Judge.

text:
    Wilbur B. ROSE, Individually, et al., Appellants, v. Fred RAWLINS, Appellee.
    Court of Appeals of Kentucky.
    June 22, 1962.

      M. C. Redwine, Redwine & Redwine, Winchester, for appellants.
    Frank Gilliam, Lexington, Robert L. Milby, London, for appellees.
   WILLIAMS, Judge.

The appellee, Fred Rawlins, was injured while working at a sawmill which, allegedly, belonged to appellant, Wilbur B. Rose. On April 1, 1959, appellee sued appellant for damages in the Powell Circuit Court. Appellant employed an attorney who filed answer on April 8. The answer denied all allegations of the complaint except the one which alleged that Rose was operating the sawmill and doing business under the name of Rose Lumber Company. Subsequently, the attorney who was representing appellant died, and thereafter the case was handled by his partner. On October 3, 1959, a request for admissions was served r>n the appellant and the cause was set down for trial on October 19, 1959. On the latter date the case was continued and an order entered filing the request for admissions in the record, and it was noted in that order that no answer had been made to the request. The case was reassigned for trial to be held on March 16, 1960. On February 19, 1960, appellee filed motion for judgment. The case was called for trial on March 16, 1960, and both parties announced ready. At this time there still had been no answer made to the request for admissions. However, the trial court permitted appellant to file an amended answer by which he denied ownership of the sawmill. The court then sustained the motion for judgment made by appellee insofar as liability was concerned, and the case was submitted to the jury on the question of damages. After the jury returned its verdict the appellant employed another attorney who filed motion for a new trial. That motion was overruled and judgment entered, from which judgment this appeal is now prosecuted.

The appellant contends that he was not advised of the request for admissions and that it was through neglect of the attorney that no answer was ever made. By affidavit he attempts to show that he did not employ the partner and was not represented by him. We find this rather hard to understand in view of the fact that the attorney did participate in the trial and was permitted by the court to file an amended answer for the appellant.

CR 36.01 provides that a party may serve upon another party a written request for admissions which shall be deemed admitted unless, within a period designated in the request, and not less than 10 days, a denial or objection is served upon the party requesting the admissions. In Sims Motor Transportation Lines v. Foster, Ky., 293 S.W.2d 226, a party tendered answers to a request for admissions on the day of the trial, which was after the time had elapsed for serving them upon the party who had made the request. The trial court refused to allow the answers to be filed, and the facts to which the questions pertained were admitted as true. This Court held that the trial court properly refused to allow the answers to be filed. In Naive v. Jones, Ky., 353 S.W.2d 365, the trial court dismissed with prejudice a claim by a party who failed to timely file answers to interrogatories. It was stated therein:

“The Civil Rules prescribe a practical pattern for the conduct of litigation and the effective administration of justice. To this end reasonable compliance is necessary. The proper application and utilization of those Rules should be left largely to the supervision of the trial judge, and we must respect his exercise of sound judicial discretion in their enforcement.”

Here the request for admissions was never answered, although it had been served for approximately five months. The trial judge in his discretion chose to sustain the motion for judgment of appellee on the ground that the request for admissions not having been answered must be taken as true, which left only the question of damages for the jury to determine. In view of the time which had elapsed, and the complete failure to comply with the Civil Rules, it is our opinion that the trial court did not abuse his discretion.

The attorney who prepared this appeal and is the attorney of record for the appellant here, Honorable Marcus C. Red-wine, deceased, did not represent the appellant in the trial of the case in the circuit court.

The judgment is affirmed.


text:
    Josephine ROSE, Administratrix of Refus Rose, Appellant, v. T. E. VASSEUR, Appellee. Marcus Milford WALKER, Appellant, v. Stanley VINSON, Jr., et al., Appellees. Josephine ROSE, Administratrix of the Estate of Refus Rose, Appellant, v. Stanley VINSON, Jr., Appellee. Consolidated Cases
    Court of Appeals of Kentucky.
    June 22, 1962.
    Francis T. Goheen, Paducah, for appellants.
    L. M. Tipton Reed, Mayfield, Adrian H„ Terrell, James L. Hardy, Paducah, for appellees.
   BIRD, Judge.

This is a second appeal in this case-See Rose v. Vasseur, Ky., 320 S.W.2d 608. The testimony is substantially the same in this case and it was submitted to a jury substantially in accordance with this Court’s, holding on the first appeal. On this appeal, no complaint is made about the instructions. The jury found for the defendants- and the plaintiffs, Rose and Walker, appeal.

The basis for the appeal is stated ⅛ appellants’ brief as follows:

“Rose and Walker appeal because they believe that they were denied a fair and impartial trial as a result of what was said and done by the Circuit Judge during the trial.”

Counsel for appellants undertook to introduce some pictures and counsel for ap~ pellees objected. We quote from the record as to what transpired at that time in the presence of the jury:

“By Mr. Terrell: We object, because the picture doesn’t show the same road.
“By The Court: Well, just leave the pictures out of it. Is that all you want with this man?
“By Mr. Goheen: Judge, we want to show the visibility on that road from various points to various points. Now, it’s true you know it but some of the jurors may not know it. They may not know the extent to which it is visible from the culvert over this Mayfield Creek to the Byron driveway. They may not know there’s not five curves in there.
“By The Court: Well, go ahead and give everything you can think of. Now, I want to try this case.” Emphasis added.

Later, the appellants offered to introduce the testimony of the appellee, Vasseur, taken on the former trial. We quote again from the record as to what transpired at that time in the presence of the jury:

“By The Court: Well, how do you know Vasseur isn’t going to testify this time?
“By Mr. Goheen: It doesn’t matter whether he testifies or not. He’s an adverse witness and I have a right to put his testimony in that was taken at the first trial just as I would his deposition as if on cross-examination.
“By The Court: Well, now wait a minute. What are you doing here? Cross-examination? Are you making this your — •
“By Mr. Goheen: I’m putting on my case.
“By The Court: This is your case? This is your evidence.
“By Mr. Goheen: Yes, sir, I am putting on the evidence of an adverse party.
“By The Court: All right. Go ahead and dig up anything you can think of and put on here. I’ve tried this case two or three times.” Emphasis added.

Later, the appellants offered to introduce the deposition of the appellee, Vinson, taken as on cross-examination. We again quote from the record as to what happened at that time in the presence of the jury:

“By Mr. Terrell: If the court please, we object. Mr. Vinson is in court.
“By Mr. Goheen: I never heard of anybody objecting to the reading of a deposition taken of an adverse party.
“By Mr. Terrell: If the court please, Mr. Vinson is in court.
“By The Court: Yes, I think you are right, but it looks like Mr. Goheen knows all the law in this case. Go ahead and read it.
“By Mr. Goheen: Sir, if you don’t want me to read it, just rule that way and — ■
“By The Court: I’m just going to let you try this case. Now, that’s what you have been doing all the time.
“By Mr. Goheen: Sir, I have a duty to perform to this widow here and—
“By The Court: Yeah, and sometimes a lawyer goes beyond his duty. I have been a lawyer and there’s plenty of cases I never did take, too.” Emphasis added.

Appellants complain that these manifestations of animosity toward their attorney by the judge prejudiced their cases before the jury.

We do not condone any of the judge’s display of annoyance and displeasure before the jury but it is the last of the quoted statements that gives us concern. We have no doubt that the trial judge’s remarks could fairly be construed as an unfavorable comment on the merits of the case before him. In Collins v. Sparks, Ky., 310 S.W.2d 45, we said: “The trial judge should remember that undue importance and great weight may be attached by the members of the jury to any remark made by him in their presence. This is due to the confidence in and esteem for a judge and respect for his position.”

It is our conclusion that these remarks constituted prejudicial error. The judgments are therefore reversed.


text:
    Edith BOTTOM, Appellant, v. Charles Yancy BYBEE et al., Appellees.
    Court of Appeals of Kentucky.
    June 15, 1962.
    Leonard E. Wilson, Jamestown, for appellant.
    Bell, Orr & Reynolds, Charles Reynolds, Bowling Green, Fred Faulkner, Jr., Camp-bellsville, for appellees.
   WILLIAMS, Judge.

Following opening statement to the jury by counsel for appellant, the Green Circuit Court directed a verdict for the ap-pellees. On appeal to this Court appellant designated only certain parts of the record, and did not serve with the designation a concise statement of points on which she intended to rely. Appellees’ motion to dismiss the appeal on the ground a concise statement of points was not served was overruled by this Court. The appellees now argue that the points raised on the appeal are such that, had they been advised of them, they would have filed a counter-designation and brought up other portions of the record. They again insist that the appeal should be dismissed. Upon reconsideration, we agree.

In Knight v. Resolute Insurance Company, Ky., 321 S.W.2d 255, we said:

“Inasmuch as appellant has designated only certain parts of the record in the case for inclusion in the record on appeal, we are dismissing the appeal for failure to serve with the designation a concise statement of points as is required by CR 75.04.”

Taylor v. Warman, Ky., 331 S.W.2d 899; Wallace v. Walters & Keene Motor Company, Ky, 280 S.W.2d 493.

Wherefore, the appeal is dismissed.


author: SMITH, Justice.

text:
    GENELL, INC., Petitioner, v. Rory FLYNN et al., Respondents.
    No. A-8592.
    Supreme Court of Texas.
    June 20, 1962.
    Rehearing Denied July 25, 1962.

      Bailey & Williams, Dallas, for petitioner.
    Woodruff, Hill & Bader, Dallas, for respondents.
   SMITH, Justice.

Charles H. Flynn, individually, and in behalf of his seven year old daughter, Rory Flynn, filed this suit for damages against Genell, Inc., a corporation, and Southern Oak Apartments, Inc., a corporation, alleging injuries sustained by Rory Flynn on June 21, 1959, as the result of the negligence of both corporations. Southern Oak Apartments, Inc. was later dismissed from the suit and the case proceeded to trial as between the named plaintiffs and the defendant, Genell, Inc. For convenience the parties will hereinafter be designated either as plaintiffs, defendant, or by name.

The defendant was the manager and operator of a group of apartments (504 units) in the City of Dallas, known as Park Forest Apartments. Rory Flynn and her parents were living in one of the units of Park Forest Apartments at the time of the alleged accident.

The facts are stated in plaintiffs’ and defendant’s briefs. The pertinent facts are these: Rory Flynn, at the time of the accident, was seven years of age and was a child of above average intelligence. On June 21, 1959, she had been playing in the general area of the apartment where she lived, but sometime that afternoon decided that she would like to go play with a friend, Pamela McCullum, who lived upstairs in a unit apart from that in which Rory Flynn and her parents lived. Pamela was older than Rory. When Rory was informed by Pamela’s mother that her daughter could not play, Rory left the Pamela McCullum apartment unit and returned downstairs by walking down the same stairs, which she had gone up, holding on to the rail and walking fast. When she reached the second from the bottom stair she stopped and leaned over toward the door to push on the door in order to make her exit. She testified that she intended to push on the wooden part of the door but as she leaned over she missed [the wooden part] and her arms went through the glass. The record shows that the injuries she sustained were confined to the arms and were caused by the broken glass. The door Rory was using was the back door to the Pamela McCullum apartment. Rory’s mother testified that she had been through this particular back door a few times and that the door was “awfully” heavy and difficult for her to open. The father, Charles Flynn, had never had occasion to use the door prior to the accident, but, after the injury, he had tested the door and found it was hard to push open. Rory testified to facts showing that she was aware of the fact that the door which she pushed open was difficult to open. She stated that the door would not close entirely and could be pushed open without the necessity of turning the door knob. Rory had used this method before in opening this particular door. In fact, she had been taught by her friend, Pamela, how to open the door in this manner, and she testified: “We just did it because it was easier to open that way.” She testified further that on previous occasions when, she opened the door she had not pushed upon the glass. Rory and her parents testified that they did not know anything about the strength of glass, had made no inquiry about glass, and as laymen could not look at the glass in the door and tell its relative strength.

Carl O’Neal, a structural engineer, testified in regard to single strength glass. He further testified that the door closer in the condition that it was in would not latch the door; it came almost closed but it would not latch; that the door was quite hard to open; that it was more than normally hard to open and he further testified that there was definitely something wrong with the door closer; that a door closer which failed to latch the door is not functioning properly.

The witness, William C. Willis, who designed a replica, which was introduced in evidence, of the door and the stairs leading to it, testified that the landing was twenty-five inches in width, measuring from the nose of the first tread to the door, and the dimensions of the stairs were: “seven and a half inch risers and eleven and a half inch treads”.

The manager of the apartment, Don Carter, testified that all the back doors were about alike and what he would term heavy doors; that it was his duty to replace broken glass or have it done and that on Monday, following the Flynn accident which occurred on Sunday, he inspected the door and found that the glass had been replaced in the door. He further testified that the door closers were placed on the doors in early 1955 when the apartments were constructed; that he had no inspection of the door closers made to see if they were working properly. Carter testified that no complaints were made as to the door closers on any of the doors and that he did not inspect them; that no complaint had been made as to this particular door closer and that he did not know whether this particular door would close or not. Much of Carter’s testimony, both on cross and redirect examination, was in answer to questions pertaining to the type of glass in the doors and the putty holding the glass in place.

The Flynns alleged a number of acts of commission and omission constituting negligence on the part of Genell, Inc., and that each act was a proximate cause of Rory Flynn’s injuries. However, only three of such acts were submitted to the jury for determination. The jury, in answer to the special issues involving the grounds of negligence inquired about, found that (1) Ge-nell, Inc. maintained a glass that was loose in the frame of the door in question, but that such act was not negligence; (2) that Genell, Inc., maintained single strength glass in the door in question and that such act was negligence, but was not a proximate cause of the accident and resulting injuries sustained by Rory Flynn; (3) that Genell, Inc., on the occasion in question, maintained an adjustment on the door closer that made the door in question difficult to open and that such conduct was negligence and a proximate cause of the injuries sustained by Rory Flynn. The jury made these additional findings: (a) that Rory Flynn was not negligent in any manner proximately causing the accident; and (b) that the occurrence in question was not the result of an unavoidable accident.

Based upon the jury finding that the damages involved were proximately caused by Genell, Inc. maintaining a door closer upon the door in question in such a way as to make the door difficult to open, and the jury findings awarding damages to each of the Flynns, the trial court entered judgment for the Flynns. The judgment has been affirmed by the Court of Civil Appeals. 348 S.W.2d 196.

This appeal presents four basic questions, either of which, if sustained, would require a reversal of the judgment of the trial court and the Court of Civil Appeals and the rendition of judgment in favor of Genell, Inc. Briefly stated, the questions are these:

(1) Was there a duty which devolved upon Genell, Inc. to change the condition found by the jury to have existed in its answer to special issue number four or to alter the premises so as to do away with the condition found by the jury to have existed on June 21, 1959?
(2) Was it foreseeable on the part of Genell, Inc. that the damages alleged to have resulted to the Flynns and found by the jury would have occurred as a consequence of its permitting the existence of the condition found by the jury in answer to special issue number four?
(3) Was Rory Flynn guilty of contributory negligence as a matter of law in attempting to open the door as she did; and
(4) Did Rory Flynn assume the risk involved in utilizing the door in the condition it was in as found hy the jury, and did Rory’s conduct in this regard invoke the doctrine of volenti non fit injuria so as to preclude a recovery against Genell, Inc. as a matter of law?

We have concluded that as a matter of law the injury sustained by Rory Flynn as a result of the fact that the adjustment on the door closer made the door in question difficult to open was not foreseeable on the part of Genell, Inc. Therefore, we preter-mit a discussion of the question as to whether Rory Flynn was guilty of contributory negligence as a matter of law, and the question as to whether Rory Flynn as a matter of law assumed the risk involved in utilizing the door in the manner heretofore described.

Rory Flynn occupies the status of an invitee. Genell, Inc., is in the same status as that of a landowner in so far as duty toward an invitee is concerned. In some of the reported cases, it is said that the duty of the landowner to an invitee is to exercise ordinary care to keep the premises in a reasonably safe condition so that the invitee will not be injured. See Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074; Walgreen-Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625, 628, 629; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 615. Where the duty to keep premises in a safe condition is imposed on a person in control of them, this duty may include the duty to inspect the premises to discover dangerous conditions. See R. E. Cox Dry Goods Co. v. Kellog, Tex.Civ.App., 145 S.W.2d 675, wr. ref. (1940); Smith v. Henger, 148 Tex. 465, 226 S.W.2d 425, 20 A.L.R. 853 (1950).

Genell admits that no inspection of the door was made after the building was constructed in 1955, but argues that the Court of Civil Appeals erroneously assumed that there existed on the part of Genell, Inc., a duty to change the adjustment on the door closer. Genell, Inc., contends that the duty to keep the premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, or snares not known to the invitee and would not be observed by him in the exercise of ordinary care, citing such cases as A. C. Burton, Inc. v. Stasny, Tex.Civ.App., 223 S.W.2d 310 (1949), wr. ref.; Crawford et al. v. Givens Brothers, a Corporation, Tex.Civ.App., 318 S.W.2d 123 (1958), wr. ref. n. r. e.; and Marshall v. San Jacinto Building, Inc., Tex.Civ.App. (1938), 67 S. W.2d 372, wr. ref.

Assuming, without deciding, that Genell, Inc., knew or should have known of the condition of the adjustment on the door closer and that Genell, Inc., was under a duty to change such condition, a recovery of damages is not sustainable where there is no evidence that the failure to inspect and change the condition of the door closer was the active cause which produced the injury and that Genell, Inc., could have reasonably anticipated that Rory Flynn was likely to utilize the door, either deliberately or accidentally, by stopping on the second step from the bottom stair and intentionally thrusting her arms and hands forward for the purpose of opening the door by pushing on the wooden surface of the door, and that she would accidentally strike the glass with her hands.

Although injury may result from a person’s act or omission, yet, if the actor could not have reasonably foreseen the resultant injury, or injuries, similar in character, he is not to be held responsible therefor. Liability is grounded in the public policy behind the law of negligence which dictates that every person is responsible for injuries which are the reasonably foreseeable consequence of his acts or omissions. A person is not legally responsible for consequences which cannot be foreseen. Liability for negligence rests primarily on reason to anticipate injury and failure to perform the duty arising on account of such anticipation. See Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, 163 (1896); Uvalde Construction Co. v. Hill, 142 Tex. 19, 175 S.W.2d 247 (1943). It is recognized in this state that anticipation of consequences is a necessary element in determining whether the injury complained of is proximately caused by such act or omission. Actual anticipation, of course, is not in any sense the test, but what one should under the circumstances reasonably anticipate as consequences of his conduct. See City of Dallas v. Maxwell, Tex.Com.App., 248 S.W. 667, 670, (1923) opinion approved by the Supreme Court, 27 A. L.R. 927; East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (1949); Dallas Ry. & Terminal Co. v. Black, 152 Tex. 343, 257 S.W.2d 416 (1953); Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603 (1960).

With the above rules of law in mind, and when the record in the case is considered most favorably to the Flynns, as we must consider it, we are of the opinion and so hold that there is no evidence to support the judgment of the trial court. There is no evidence that Genell, Inc. could have anticipated the admitted and undisputed activity of Rory Flynn in opening the door. Foresight should not be arbitrarily imputed. Genell, Inc., in the light of all the attending circumstances, could not have reasonably foreseen that because it maintained any particular adjustment on the door in question that a person, including a child of the age of Rory Flynn, would have attempted to utilize the door in the manner described by her testimony. In making this holding, we have due regard for the rule that it is not required that this particular act should have been foreseen. All that is required is that the injury be of such general character as might reasonably have been anticipated. Genell, Inc. has properly raised the question that there is no evidence that any act or omission on its part (even assuming negligence) proximately caused the accident and resulting injuries sustained by Rory Flynn. Keeping in mind that the test as to whether a given act may be deemed the proximate cause of an injury, is simply whether in the light of all the attending circumstances the injury was such as ought reasonably to have been anticipated as a consequence of the act, we must sustain Genell’s contention.

The judgments of the District Court and the Court of Civil Appeals are reversed and judgment is rendered for Genell, Inc.

      . Do you find from a preponderance of the evidence that on the occasion in question the defendant Genell, Inc. maintained an adjustment on the door closer that made the door in question difficult to open?


author: HAMILTON, Justice.

text:
    Teresa Losoya LEYVA, joined herein by her husband, Manuel Leyva, Petitioners, v. Luz T. PACHECO, Sr., Respondent.
    No. A-8867.
    Supreme Court of Texas.
    June 27, 1962.
    Rehearing Denied July 25, 1962.

      Guinn & Guinn, Al Truex, El Paso, for petitioners.
    Andress, Lipscomb, Peticolas & Fisk, El Paso, for respondent.
   HAMILTON, Justice.

This suit in the form of trespass to try title was brought by petitioner against respondent to recover title and possession of a four-room house and two lots on which it is located. The respondent entered pleas of not guilty and title by limitation under the three-year statute of limitations. The jury answered ten of twelve special issues favorable to the petitioner, but the trial judge granted respondent’s motion for judgment notwithstanding the verdict. Judgment was entered that the title to and possession of the property be awarded to the respondent Luz T. Pacheco. The Court of Civil Appeals has affirmed the judgment of the trial court. 352 S.W.2d 898.

It is the opinion of this court that the judgments be reversed and that judgment be rendered for petitioner, Teresa Losoya Leyva. There is an abundance of conflicting testimony in this case. However, it is undisputed that in 1944 the two lots in question were conveyed by deed to Antonio Pacheco from Manuel Gallegos. Antonio Pacheco is the father of the petitioner and the respondent. Petitioner sought to establish that the property was the subject of a resulting trust in her favor. She alleged, and witnesses so testified, that she provided the funds for the purchase of the property and that her father was holding it in trust for her. Testimony by the father, Antonio Pacheco, which was submitted through deposition and affidavit, was conflicting.

The respondent argued that petitioner did not contribute the funds to purchase the property and that in 1949 the property was deeded to him by his mother and father. He also asserted title under the three-year statute of limitation. Article 5507, Vernon’s Ann.Tex.Civ.St.

The case was submitted on special issues, and the jury made the following findings of fact:

1. That petitioner paid the $300.00 purchase price for the land.

2. That respondent knew that petitioner paid for the property.

3. That the property was taken in the name of Antonio Pacheco in trust for the use and benefit of petitioner.

4. That petitioner paid $975.00 to a contractor for construction of the house on the property.

5. That respondent knew that petitioner paid for the house.

6. That the signature of Valentina M. Pacheco (mother of petitioner and respondent) on the deed was a forgery.

7. That Antonio Pacheco did not receive any consideration from respondent for the 1949 deed.

8. That Antonio Pacheco did not knowingly sign and deliver the deed to respondent.

9. That petitioner was claiming an interest in the property prior to DecembeJ 4, 1949.

10. That respondent knew petitioner was claiming the property prior to the 1949 deed.

11. That respondent had peaceable and adverse possession through himself or tenants for as long as three years prior to the filing of this suit.

12. That after the 1949 deed Valentina and Antonio Pacheco occupied the premises in controversy with the permission of respondent.

Upon return of the answered special issues the trial court refused petitioner’s motion for judgment on the verdict and granted respondent’s motion for judgment notwithstanding the verdict. It is our opinion that the trial court erred in granting the motion for judgment notwithstanding the verdict. It is elementary that juries are the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. See 27 Tex.Jur. 415, Law and Fact, Sec. 6, Note 19. Also, Rule 301, Texas Rules of Civil Procedure, states:

“The judgment of the court shall conform to the * * * verdict ⅜ * * provided, that upon motion and reasonable notice the court may render judgment non obstante veredic-to if a directed verdict would have been proper, and'provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence. * * * ”

To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict it must be determined that there is no evidence on which the jury could have made the findings relied upon. In acting upon such motion all testimony must be considered in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.

By examining petitioner’s evidence in its most favorable light it is our opinion that the trial court could not give a directed verdict nor overturn a jury verdict on the ground of no evidence to support the findings. Petitioner, her sister, and her father all gave evidence to support the jury’s findings.

Special Issues 1, 3 and 4 adequately support petitioner’s theory of resulting trust. Where a transfer of property is made to one person and the purchase price is paid by another, and the transferee is a natural object of bounty of the person by whom the purchase price is paid, and the latter manifests an intention that the transferee should not have the beneficial interest in the property, a resulting trust arises. Restatement, Trusts, § 443 (1935).

Respondent’s claim of title under the three-year statute of limitation will not stand. At best, disregarding the finding of forgery and lack of proper signature, the deed through which respondent claims title would be deemed a conveyance of trust property by a trustee to one not a bona fide purchaser. The jury found in Special Issues 2 and 5 that respondent was aware that petitioner had paid the purchase price for the house and lots. There was testimony by petitioner, her father and her sister that respondent often admitted that the property belonged to petitioner, and he sought to buy it from her. This would preclude respondent from acquiring the status of innocent purchaser. John v. Battle, 58 Tex. 591.

Article 5507, V.T.C.S., reads as follows :

“Suits to recover real estate, as against a person in peaceable and adverse possession thereof under title or color of title shall be instituted within three years next after the cause of action accrued, and not afterward.” (Emphasis added.)

It is our opinion that a deed from a trustee to a purchaser with knowledge of the trust is not “title” or “color of title” as contemplated in Article 5507.

The word “title” in Article 5507 has been held to include both the legal and equitable title as granted by the sovereign in the original grant, to the extent that the original grant so conveyed them. District Grand Lodge No. 25, etc. v. Logan, 177 S. W.2d 813, wr. ref.; Burnham v. Hardy Oil Co., 108 Tex. 555, 195 S.W. 1139; St. Louis Union Trust Co. v. Harbaugh, 205 S.W. 496 (Tex.Civ.App.), wr. ref. The purported conveyance here from a trustee to one not an innocent purchaser could only convey the legal title, which is not sufficient title to support the three-year statute of limitation. 2 Tex.Jur.2d 281, Adverse Possession § 162.

Article 5508, V.T.C.S., states:

“* * * [B]y ‘color of title’ is meant a consecutive chain of such transfers down to such person in possession, without being regular, as if one or more of the memorials or muni-ments be not registered, or not duly registered, or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty; * *

A conveyance by a trustee to one with knowledge of the trust is wanting in intrinsic fairness and honesty, therefore will not support the three-year statute of limitation under color of title.

The jury findings, supported by evidence, establish a resulting trust in favor of petitioner, and respondent failed to establish title under the three-year statute of limitation. It is therefore ordered that the judgments of the trial court and Court of Civil Appeals be reversed and judgment rendered for petitioner, Teresa Losoya Leyva.


author: WALKER, Justice.

text:
    Robert S. CALVERT et al., Appellants, v. Edward E. McLEMORE, Jr., dba "Big 'D' Jamboree", Appellee.
    No. A-8883.
    Supreme Court of Texas.
    June 27, 1962.
    Will Wilson, Atty. Gen., Austin, J. H. Broadhurst, Asst. Atty. Gen., for appellant.
    Jackson C. Burroughs, Dallas, for appel-lee.
   WALKER, Justice.

This is a direct appeal under the provisions of Article 1738a, Vernon’s Ann.Tex. Civ.Stat. The trial court denied a temporary injunction on the ground that Section 1 of Article 21.02, V.A.T.S. Tax.-Gen., is unconstitutional. This statute purports to levy a tax of one cent on each ten cents or fractional part thereof paid as admission to entertainments such as motion pictures, operas, plays and like amusements ■“held at places other than at a fixed and regularly established motion picture theater”, where the admission charged is in excess of fifty-one cents per person. Section 2 of Article 21.02 deals with admissions to such entertainments when held at a fixed or regularly established motion picture theater, and no tax is imposed thereon unless the amount charged is in excess of $1.05. In either situation the tax is payable by the person who owns or operates the place of amusement. Article 21.01, V.A.T.S. Tax.-Gen.

The tax in question is not a tax upon 'property or upon persons but is imposed on the business of exhibiting motion pictures, operas, plays and other like amusements. It is an occupation tax within the meaning of Article VIII, Section 2, of our Constitution, Vernon’s Ann.St., which provides that all occupation taxes shall he equal and uniform upon the same class of subjects within the limits of the authority levying the tax. See Pullman Palace-Car Co. v. State, 64 Tex. 274, 53 Atn.Rep. 758; H. Rouw Co. v. Texas Citrus Commission, 151 Tex. 182, 247 S. W.2d 231. There can be no doubt as to the power of the Legislature to classify the subjects of occupation taxes and impose varying burdens upon the different groups. It is essential, however, that there be a reasonable basis for the classification. Exemption of persons who are engaged in the same occupation as those who are taxed renders the levy discriminatory and therefore unconstitutional.

“The considerations upon which such classification shall be based are primarily within the discretion of the Legislature. The courts, under the provisions relied on, can only interfere when it is made clearly to appear that an attempted classification has no reasonable basis in the nature of the businesses classified, and that the law operates unequally upon subjects between which there is no real difference to justify the separate treatment of them undertaken by the Legislature. This is the rule in applying both the state and federal Constitutions, and it has been so often stated as to render unnecessary further discussion of it.” Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 481.

The classification established by the Legislature in this instance is based on the place where the entertainment is given. In Davis v. White, Tex.Civ.App., 260 S.W. 138 (wr. ref.), a statute purporting in general terms to levy an occupation tax on all traveling shows hut exempting those that exhibited in regularly established and licensed theaters was held to be violative of the Constitution. After observing that the show was the same whether exhibited in a licensed theater or elsewhere, the court said that the difference seized upon by the Legislature, i. e., the place of exhibition, did not justify the classification.

The Attorney General cites decisions upholding the levy of occupation taxes on peddlers although merchants having established places of business and traveling persons selling at wholesale were not taxed. South v. State, 72 Tex.Cr.R. 381, 162 S.W. 510; In re Butin, 28 Tex.App. 304, 13 S.W. 10. He says that motion pictures, operas and plays exhibited at places other than regularly established motion picture theaters are usually itinerant entertainments which do not pay regular occupation taxes and often escape the payment of any tax whatsoever. This is not, however, the line drawn by the Legislature in Article 21.02. As a matter of fact, respondent regularly exhibits shows of various kinds at a fixed place of business in Dallas, but that place of business is not a motion picture theater.

The statute is plainly a revenue measure. It does not relate in any way to the public safety, morals, convenience or general welfare. Under the provisions of Section 1, anyone who exhibits a motion picture or play at a place other than a fixed and regularly established motion picture theater must pay the tax. Another person who exhibits the same picture or play to a similar audience in an adjoining building of the same construction escapes payment of the taxes merely because he regularly shows motion pictures in that building. The discrimination is too plain to admit of argument, and we agree with the trial court that Section 1 of Article 21.02 is unconstitutional. See H. Rouw Co. v. Texas Citrus Commission, 151 Tex. 182, 247 S.W.2d 231; San Antonio Retail Grocers, Inc. v. Lafferty, 156 Tex. 574, 297 S.W.2d 813.

The judgment of the trial court is affirmed.