author: ARCHER, Chief Justice.

text:
    Chester R. MORRIS, Appellant, v. Arno NOWOTNY, Appellee.
    No. 11358.
    Court of Civil Appeals of Texas. Austin.
    Jan. 26, 1966.
    Rehearing Denied Feb. 2, 1966.
    Chester R. Morris, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. C. Davis, Pat Bailey, Asst. Attys. Gen., Austin, for appellee.
   ARCHER, Chief Justice.

The appellant, Chester R. Morris, on the 8th day of March, 1965 filed this suit seeking damages from the appellee, Arno No-wotny, a former Dean of Student Life at the University of Texas, for allegedly willfully and intentionally testifying falsely and incorrectly on February 27, 1963 in a cause pending in the 98th District Court.

Appellee filed a Motion for Summary Judgment in addition to other pleadings, and appellant filed his reply and also a Motion for a Summary Judgment, to which appellee filed a reply.

A hearing was held upon appellee’s Motion for Summary Judgment and such Motion was granted. The Motion for Summary Judgment of appellant was heard and denied.

This appeal is from the granting of ap-pellee’s Motion and error is assigned to the denial of appellant’s Motion.

The basis for appellee’s Motion for Summary Judgment was that appellant’s pleadings failed to allege a cause of action against appellee upon which a claim for money damages could be predicated, and that such pleadings showed upon their face that any cause of action which appellant might have had against appellee by virtue of his testimony in the 98th District Court of Travis County on February 27, 1963 was barred by limitations.

Appellant brought this suit based entirely on allegations that appellee had willfully and intentionally testified falsely and incorrectly in a court proceeding in which appellant and appellee were parties.

We believe that the case of Morris v. Taylor, Tex.Civ.App., 353 S.W.2d 956, er. ref., n. r. e., cert. denied in U. S. Supreme Court, 371 US. 842, 83 S.Ct. 71, 9 L.Ed.2d 78, is determinative of this instant proceeding, and that the trial court was correct in sustaining appellee’s Motion for Summary Judgment, and there exists no statutory enactment in Texas which authorizes such a cause of action.

There is nothing in the record, other than the unsupported and conclusory allegations in appellant’s pleadings to show or evidence the facts that the testimony of appellee, even if erroneous, was given through malice or bad faith.

There exists no genuine issue as to a material fact.

In Morris v. Taylor, supra, it was held:

“ * * * there was no genuine issue of material fact and no cause of action being properly alleged under the pleadings in favor of appellant for damages for either malicious prosecution caused by appellee or which resulted from alleged false testimony given by appellee in a judicial proceeding, the Trial Court properly granted appellee’s motion for summary judgment against appellant * *

The court did not err in denying appellant’s Motion for Summary Judgment.

Appellant’s Motion alleges that the appel-lee:

“ * * * gave said testimony under oath, knowing the same to be false and defendant intentionally gave incorrect answers to questions propounded to defendant by plaintiff.”

Appellee’s controverting affidavit contained a denial that he had knowingly or intentionally given any incorrect answers to questions propounded to him in the cause on the 27th day of February 1963. Appellee further set forth that he had not examined, in many years, the records he was being questioned about and that if there were any discrepancy between what appellee testified and what was actually in the records such discrepancy was due solely to his lack of memory as to what said records contained rather than that he was knowingly and intentionally giving incorrect answers.

As stated in Morris v. Taylor, supra:

“In a summary judgment proceeding the burden is upon the movant to prove clearly his right to summary judgment as a matter of law. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85. All doubt as to the existence of a genuine issue as to a material fact must be resolved against the movant and the Court accepts as true all evidence of the opposing party which tends to support his contention. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931.”

Since we believe that appellant failed to allege a cause of action for which he can recover money damages, he is not entitled to judgment as a matter of law. It is unnecessary to pass on the question of limitations.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    George W. BLANDIN, Appellant, v. The FIRST-WICHITA NATIONAL BANK OF WICHITA FALLS, Independent Executor of Estate of Vesta Harriett Blandin, Deceased, Appellee.
    No. 16695.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 14, 1966.
    Short & Smith, and Donald E. Short, Wichita Falls, for appellant.
    Prothro & Sellers, and Lee Sellers, Wichita Falls, for appellee.
   RENFRO, Justice.

The First-Wichita National Bank of Wichita Falls, Independent Executor of the Estate of Vesta Harriett Blandin, deceased, and George W. Blandin were joint owners of considerable personal and real property. Upon application of the Bank a receiver was appointed over the property.

Defendant appealed from the order of appointment on four points of error. We have studied the entire record and have found they present no reversible error. The points are not discussed, however, for the reason hereinafter set forth.

The only relief prayed for by plaintiff was for the appointment of a receiver to protect, preserve, save and operate the property, and on final trial a partition of the property.

It has properly been made to appear to us that since the appeal was perfected plaintiff and defendant have settled their differences.

On November 19, 1965, plaintiff executed and delivered to defendant warranty deeds to all of the real property and bills of sale to all of the personal property involved in the receivership. Possession of all property, real and personal, was delivered to defendant. Plaintiff no longer claims any interest in any of the property.

There is no property for the receiver to manage or operate. The record does not show that the receiver ever assumed control over any of the property. In any event it is now in the ownership and possession of defendant with no other person claiming any interest therein.

By necessary implication, if not expressly, the receivership was for all practicable purposes terminated when plaintiff sold all the property involved to the defendant and surrendered possession to him; hence the appeal as to the propriety of the appointment of a receiver has become moot. McMurrey v. McMurrey, 168 S.W.2d 944 (Fort Worth Civ.App., 1943, no writ hist.). There no longer exists a controversy between the parties. An appellate court will not retain jurisdiction to decide a controversy after the parties settle it. James v. Southwestern Inv. Co., 133 S.W.2d 183 (Waco Civ.App., 1939, no writ hist.); 3 Tex.Jur.2d 315, § 51. The existence of an actual controversy is essential to an exercise of appellate jurisdiction; Dowlen v. Amarillo Independent School Dist., 175 S.W.2d 288 (Amarillo Civ.App., 1943, ref. w. m.). Validity of an interlocutory order to which an appeal has been taken will not be passed upon, when the appeal becomes moot, merely to determine a question of cost. Robinson v. State, 87 Tex. 562, 29 S.W. 649 (1895).

The appeal is dismissed.


author: HILL, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Helen M. BURTON et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Reed D. Anderson, Madisonville, for appellant.
    David C. Brodie, Calvin R. Robinson, Owensboro, for appellees.
   HILL, Judge.

This is an appeal from a judgment of $48,000 awarded for 16.48 acres taken from appellees’ 188-acre farm adjacent to the city of Owensboro for use in the construction of the Owensboro Beltline. We are told that the judgment should be reversed because (1) appellees’ witnesses based their opinions upon sales of noncomparable properties, and (2) the trial court made prejudicial remarks in the presence of the jury.

The witnesses on evaluation gave opinions relative to the before and after values as follows:

APPELLEES
Before After Difference
Hardesty $282,000 $224,000 $48,000
Brown 226,000 176,000 50,000
Shelton 315,000 250,000 65,000
Barnes 241,000 192,640 48,340
APPELLANT
Legrand $188,500 $172,000 $16,500
Laswell 199,650 184,818 14,850

Appellant argues that the testimony of its witnesses is entitled to greater weight because appellees’ witnesses relied on sales of smaller tracts, and that smaller tracts ordinarily sell for a greater amount than larger tracts. We cannot say, as a matter of law, that the size of the tract is absolutely determinative. This, we believe, was a matter for the jury. In fact, it seems to us this case is unique in that all witnesses for appellant and for appellees relied on sales they considered and testified were comparable to the subject property, and so listed them with dates, number of acres, amounts of sale price, and the name of the grantees, all of which was for the benefit of the jury. The amount of the verdict was well within the testimony, and we cannot say the amount thereof strikes the mind at first blush as having been arrived at by passion, prejudice, or partiality.

Finally, appellant urges that comments of the trial judge were prejudicial to it. When appellees’ witness Shelton was called, the following occurred:

“Q. 1 Mr. Shelton, I am having a little trouble with my voice. I want you to talk out so that these peopF can hear you.
“A. Yes, Sir.
“Q. 2 Your name is M. C. Shelton?
“A. That is right.
“Q. 3 Mr. Shelton, what is your age?
“THE COURT: Just a minute. Have you been sworn Mr. Shelton?
“MR. SHELTON: No, sir.
“MR. BRODIE (counsel for appellees'): I don’t know whether it will make any difference whether he has been sworn or not.
“THE COURT: I don’t either, but it is customary. (At this point the witness was sworn by the Court.)”

Later, in the course of the trial,.objection was made to the above remarks by the court, and in appellant’s motion to strike those remarks, in which -appellees joined, the court stated: “You are not prejudicing your case. The Court does not consider it prejudiced in either way. Prejudicial is the word I want to use. It is not prejudicial. Let’s go forward.” We conclude these remarks were improper but were not prejudicial to appellant.

It has been the practice in Kentucky from time immemorial to limit the comments of trial judges in the presence of juries. While this rule does not prevail in federal district courts, we offer no comment at this time either in support of or in abrogation of the Kentucky rule. In the face of reality, however, it may be well to quote the following from City of Prestonsburg v. Mellon, 220 Ky. 808, 295 S.W. 1064 (1927):

“When the Great Teacher said: ‘Let your communication be yea, yea; nay, nay; for whatsoever is more than these eometh of evil’ — His remarks must have been directed at a trial judge, for they are peculiarly applicable to the presiding judge in any case.”

It is possible the remarks of the trial judge were interpreted by some or all of the members of the jury as an attestation by the trial judge of the veracity of the witness Shelton. However, the verdict of the jury should not be disturbed on a possibility of error. It is apparent the jury paid little heed to the testimony of Shelton for they fixed the before value of appellees’ farm $74,000 less, the after value $57,000 less, and the difference $17,000 less than Shelton fixed those amounts.

Wherefore the judgment is affirmed.


author: PALMORE, Judge.

text:
    William LaVIGNE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    Thomas P. Bell, Fowler, Rouse, Measle & Bell, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Donald Moloney, Lexington, for appellee.
   PALMORE, Judge.

Appellant was convicted in the Fayette Circuit Court of armed assault with intent to rob and sentenced to life imprisonment. KRS 433.150. At the time of this conviction he was serving a life sentence for a similar crime committed in Kenton County. See LaVigne v. Commonwealth, Ky., 353 S.W.2d 376, 92 A.L.R.2d 988 (1962).

In the instant case appellant’s motion for new trial was overruled and judgment entered on October 9, 1964. His notice of appeal was filed on October 23, 1964. Hence is was not timely. See RCr 12.54. Nevertheless, since the appeal raises a constitutional point which, if sustained, might render the judgment void and the defect un-waivable, it is being entertained for a review directed principally to that question.

The question is whether appellant was denied a speedy trial as guaranteed by § 11 of our constitution and the 6th and 14th amendments of the federal constitution.

The crime was committed in Fayette County on October 29, 1960. On November 18, 1960, while appellant was in custody on the charge for which he was thereafter convicted in Kenton County, he was identified by one of the victims of the Fayette County crime. He was brought to Fayette County on January S, 1961, for examining trial. The Fayette County indictment was returned on January 20, 1961. Subsequent proceedings in the Fayette Circuit Court were as follows:

May 31, 1961 — Cause continued and bench warrant issued.
Dec. 4, 1961 — Cause continued until next term.
May 28,1962 — Cause continued and bench warrant issued.
Sept. 11, 1962— Cause continued and bench warrant issued.
Dec. 18,1962 — Cause continued and bench warrant issued.
March 25,1963 — Cause continued and bench warrant issued.
May 24, 1963 — Cause continued and bench warrant issued.
Aug. 16, 1963 — Cause continued and bench warrant issued.
Dec. 30, 1963 — Cause continued and bench warrant issued.
Jan. 27, 1964 — Appellant filed motion to dismiss for failure to afford him a speedy trial.
Mar. 17, 1964 — Motion to dismiss overruled and trial set for April term.
Apr. 8, 1964 — Motion for continuance by Commonwealth on ground of inability of material witness to appear.
June 17, 1964 — Cause continued.
Sept. 22, 1964 — Defendant ordered brought from prison for trial.
Sept. 23, 1964 — Trial set for Sept. 24,1964.
Sept. 24, 1964 — Arraignment and commencement of trial.
Sept. 26, 1964 — Trial completed.

Meanwhile, following appellant’s examining trial in Fayette County he was returned to Kenton County, where he was indicted on January 18, 1961, tried and convicted on February 16, 1961, and presumably remained in jail until transported to prison following the issuance, in February of 1962, of this court’s mandate affirming the judgment on appeal.

“In the majority of jurisdictions there is a judicially created rule requiring the defendant to demand trial or resist postponement. This ‘demand doctrine’ stresses that the right to speedy trial is not designed as a sword for defendant’s escape, but rather as a shield for his protection. The courts reason that requiring demand will accomplish this purpose since it will lead toward trial on the merits and not to a technical evasion of the charge. A strong minority, however, rejects the ‘demand doctrine’ and requires only a motion to dismiss filed before trial. These courts place the duty of procuring prompt trial upon the state, attributing significance to the fact that only the state is empowered to bring the charge to trial. Forcing defendant to press for speedy trial would, according to this view, enable the state to do nothing until defendant acts, and then, if he acts too late, to claim waiver. * * * A persuasive minority will not apply the waiver principle to a defendant who is imprisoned for another crime in the same jurisdiction, realizing that, practically, he is in no position to either demand trial or resist postponement.” Note, The Right to a Speedy Criminal Trial, 57 Columbia L. Rev. 846, 853, 855 (1957). See also annotation, Waiver or loss of accused’s right to speedy trial, 57 A.L.R.2d 302, 326.

“We adhere to the rule which regards the failure of the accused to demand trial as a waiver of his right to a speedy trial.” Walton v. Bradley, Ky., 386 S.W.2d 457, 458 (1965); Barker v. Commonwealth, Ky., 385 S.W.2d 671, 674 (1964).

“It has been held that the due process clause of the Fourteenth Amendment does not make the speedy trial provision of the Sixth Amendment directly applicable to state action. * * * To establish a violation of the due process clause appellant must prove that the delay precluded a fair determination of the charges against him. * * * Four factors are relevant to a consideration of whether denial of a speedy trial assumes due process proportions: the length of delay, the reason for the delay, the prejudice to defendant, and waiver by the defendant. * * * These factors are to be considered together because they are interrelated. * * * Federal courts, in interpreting the speedy trial provision of the Sixth Amendment, which applies to federal prosecutions, have held that the right is personal to the defendant and is deemed waived unless promptly asserted. * * * Such a rule is based on the almost universal experience that delay in criminal cases is welcomed by defendants as it usually operates in their favor. Obviously, the same considerations are relevant when federal courts are asked to decide if delay in state proceedings constitutes a denial of due process.” United States ex rel. Von Cseh v. Fay, 313 F.2d 620, 623 (2d Cir. 1963).

It was recognized in Barker v. Commonwealth, Ky., 385 S.W.2d 671, 674 (1964), that the same considerations apply also when this court is called upon to decide whether a delay in our own state proceedings constitutes a denial of due process.

Appellant contends that the Fayette County officials whose duty it was to prosecute his case either knew where he was at all times after he was indicted in that county or could have found out with a modicum of effort, whereas on the other hand he was imprisoned, was indigent and ignorant of his rights, and was without counsel. He says that he was prejudiced by the delay because during the interim his wife divorced him and remarried, moved to Detroit and refused to come to this state to testify in his behalf (his defense being an alibi which he alleges she could have corroborated), and because the Commonwealth brought out on cross-examination that his witnesses had consulted old newspapers to refresh their recollection of events at the time the offense took place.

With respect to § 11 of our constitution we re-affirm the position that a speedy trial is a protection to which the accused is entitled to avail himself, but that it is not incumbent on the state to seek him out and ask him if he wants to do so. It is there for the asking; that is all. Hence there was no violation in this case.

On the question of due process we are of the opinion that the possibility of prejudice by reason of the delay is not of sufficient substance to justify a conclusion that appellant was deprived of a fair trial. There is no assurance that the wife would have corroborated the alibi or that, had she done so, her cumulative testimony would have been any more helpful than it was in the Kenton County case. See LaVigne v. Commonwealth, Ky., 353 S.W.2d 376, 92 A.L.R.2d 988 (1962). And the witnesses who researched the newspapers to establish the alibi might just as well have found the same procedure necessary had the trial been held but six months after the crime was committed.

The time that elapsed between the date of the offense and the trial was not of such extraordinary duration that either prejudice or arbitrary treatment could reasonably be presumed.

There being neither proof of prejudice nor sufficient reason to presume it, we find no violation of due process.

RCr 9.02, which provides that all prosecutions shall proceed “when the defendant appears or is brought before the court” unless postponed for cause, is not applicable in this instance because until appellant moved to dismiss on January 27, 1964, he had neither appeared nor been brought under the jurisdiction of the Fay-ette Circuit Court. Cf. Ruip v. Knight, Ky., 38S S.W.2d 170 (1964).

Our review of the record does not disclose any other error or defect of substantial prejudice to appellant’s rights.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Mettle Taylor BARTON and William H. Barton, her husband, Appellees.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    William A. Lamkin, Jr., Asst. Atty. Gen., Robert F. Matthews, Atty. Gen., H. C. Smith, Frankfort, Charles W. Huddleston, Bowling Green, Glenn McDonald, Louisville, for appellant.
    James H. Lucas, Harlin & Orendorf, Bowling Green, for appellees.
   DAVIS, Commissioner.

In this condemnation proceeding the ap-pellees, landowners, recovered judgment of $17,750 pursuant to the jury’s verdict. The Department of Highways appeals, asserting that the verdict is excessive and unsupported by evidence of probative value.

The acquisition of land in this case became necessary incident to the construction of Interstate Highway 65, south of Bowling Green. Also involved is partial reconstruction of Kentucky Highway 242 as it passes in front of the main residence on appellees’ farm.

Prior to the taking the farm contained 163 acres, situated on Kentucky Highway 242. The land taken for permanent right of way contained 9.74 acres; also acquired was a permanent easement of 0.52 acres, making a total of 10.26 acres taken. The course of the right of way for the non-access Interstate Highway results in severance of the original tract, so that after the taking there will be 34.9 acres landlocked on the east side of 1-65. The other severed tract, containing 118 acres and all the improvements, will lie on the west side of 1-65. Appellees will have no access to the 34.9 acres, nor does it abut any public roadway. We need not describe the land and improvements in greater detail, as all of the witnesses substantially agreed as to the value of the entire tract before the taking. It was in the after value that the testimony for appellant and appellees showed substantial variance. We summarize the valuation testimony of the four witnesses:

WITNESSES FOR APPELLANT
Before Value After Value Difference
$69,000 $58,500 $10,500
$70,000 $60,000 $10,000
WITNESSES FOR APPELLEES
Difference Before Value After Value
$73,350 $53,768 cq oo LO^ oC T-H
$68,850 $48,105 to bv o' CM

In its verdict the jury found the before value as $70,000, the after value as $52,250, and the difference as $17,750. These findings were within the range of the evidence as above listed. For appellees it was shown that the reconstruction of Kentucky 242 will cause a fill in front of the residence, ranging from 2½ feet to 8 feet. Appellees claimed that drainage problems will arise by reason of the construction, although their evidence in this respect is not based upon any scientific study. For the appellant an engineer testified that in his judgment the drainage problem would not be different from what it was before the taking. Appellant made no objection to the evidence for appellees touching that point, nor did it undertake to have any of it stricken. As we read the record the matter of possible additional water problem properly could have been a factor in reduction of market value.

The witnesses for each of the parties evinced ample qualifications to testify as valuation experts; they supported their evidence with testimony concerning sales they deemed comparable to the property in question. It was conceded that the landlocked tract contained some of the best land in the entire tract. The appellant recognizes that the after value of the landlocked tract will be reduced by the severance, but contends that it will not be reduced more than one-third of its original value. We are not able to accept that premise. We view the verdict as liberal, but not excessive. It is supported by evidence of probative value. In this state of case we may not upset the judgment based upon the verdict.

The judgment is affirmed.


text:
    Benny DURHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    Fritz Krueger, Somerset, for appellant.
    Robert F. Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Benny Durham seeks to overturn his conviction of store-house breaking and consequent sentence of imprisonment for one year. KRS 433.190. Appellant Durham asserts that (1) he was entitled to a peremptory instruction of acquittal since the only evidence against him was uncorroborated evidence from accomplices, or (2) in any event, the trial court should have submitted to the jury whether certain prosecution witnesses were accomplices.

Appellant was jointly indicted with Ray Howell for breaking into the country store of Elmer Bullock at Eubank, with intent to steal therefrom. On the separate trial of appellant, Howell was a strong witness against him. Howell’s evidence may be thus summarized: Howell and appellant were together at Bea Spaw’s house in Lincoln County on the night of the crime. Also at the Spaw place were Bea Spaw and her husband, Kenneth, Alice Mills (age 17) who had married Howell by trial time, and Helen Walls. Howell and appellant made plans to break into the Bullock store, and Kenneth Spaw assisted them by preparing a map of the area to facilitate their felonious work. The women were in the room when the men were arranging these preliminaries, but they did not participate in the planning, nor did any of them advise or encourage the commission of the crime.

Howell and appellant then proceeded to the Bullock store where Howell broke into the store and stole merchandise, including' pocket knives, cigarettes, luncheon meats, and sundry items. Appellant did not enter the store, but did assist Howell in carrying the loot from the store to the automobile in which they were travelling. The two returned to the Spaw place, unloaded the car of their haul, and all of the group partook of an early morning meal (about 3:00 a. m.) comprised in the main of the stolen food. So far as appears of record, there was no other sharing of the stolen goods except as between Howell and appellant.

The chief prosecutive witnesses were Howell (concededly an accomplice), Alice Mills (Howell), and Helen Walls. Neither of the Spaws testified. The substance of the evidence from Alice Mills and Helen Walls was that they heard the crime plans being discussed by appellant, Howell and Spaw; that Spaw drew a map for Howell and appellant; that they “knew” when appellant and Howell left that their purpose was to rob the Bullock store; that they saw the stolen merchandise when appellant and Howell returned, and that they ate of the stolen food. The other witnesses for the Commonwealth gave evidence confirming the fact that the crime had been committed and explaining the manner of detection and apprehension of the culprits. Their evidence had no corroborative value within the meaning of RCr 9.62, requiring that evidence of an accomplice must be corroborated.

The appellant did not testify, nor did he offer evidence in his behalf. He contented himself by moving for a peremptory on the theory that the Commonwealth’s evidence was solely from uncorroborated accomplices. When that motion failed, appellant objected to the instructions on the basis that the trial court should have instructed the jury that Alice Mills and Helen Walls were accomplices — or have allowed the jury to determine whether they were accomplices. The court did instruct that Howell was an accomplice, and as to him, complied with RCr 9.62.

It is our view that neither Alice Mills nor Helen Walls was an accomplice. The authorities cited by appellant and ap-pellee teach that an accomplice is one who knowingly, voluntarily, and with common intent, unites with the principal in the perpetration of the crime, either by being present and joining in the criminal act, by aiding and abetting in its commission, or, if not present, by advising and encouraging the performance of the act. Clark v. Commonwealth, Ky., 386 S.W.2d 458; Head v. Commonwealth, Ky., 310 S.W.2d 285, and cases there cited.

Tested in light of that definition, it is apparent that the two women were not accomplices. Certainly there was no showing that they, or either of them, united with appellant and Howell in the perpetration of the crime, either by being present at its commission or by advising and encouraging the performance of the act They did know of the crime’s being plotted — but they did not advise or encourage it. It is true that they ate some of the spoils, and in so doing they may have become accessories after the fact (which we do not decide). But even if they did become such accessories, they were not accomplices. See Howard v. Commonwealth, Ky., 395 S.W.2d 355, 358; Perkins v. Commonwealth, Ky., 324 S.W.2d 388; Head v. Commonwealth, Ky., 310 S. W.2d 285. Therefore, the trial court was correct in not submitting to the jury any issue as to whether Alice Mills and Helen Walls were accomplices.

The evidence of the two women furnished abundant corroboration of the accomplice testimony of Howell. Their evidence went far beyond a mere showing that the crime had been committed and the circumstances of its commission. Their evidence specifically tended to connect appellant with the commission of the offense. It was sufficient under RCr 9.62.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Ernest WATKINS, Appellee.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., for appellant.
    H. B. Noble, Hazard, for appellee.
   MILLIKEN, Judge.

This is an appeal by the Commonwealth from an order of the Perry Circuit Court sustaining a motion under RCr 11.42 to vacate appellee’s conviction for murder because he was not given an examining trial, a failure which the trial court concluded was at a critical stage in his prosecution and prejudiced the accused in preparing defense.

The record shows that appellee was indicted for murder on November 22, 1943, counsel was appointed the same date, and the trial was set for December 8, 1943, in the Perry Circuit Court. On December 8, 1943, appellee entered a plea of guilty, a jury was sworn, and he was convicted upon his plea.

Almost twenty-two years later, on July 12, 1965, appellee filed his motion to vacate the judgment on the ground that he had been deprived of a preliminary hearing. On July 19, 1965, counsel was appointed to represent appellee on the motion and a hearing was set for July 30, 1965.

At the hearing appellee testified that when he was brought into the Perry Circuit Court before the county judge for a preliminary hearing in October of 1943, the following occurred: At first he, the county judge, and the turnkey were the only ones in the courtroom. Then eight people entered, cursing appellee and calling him bad names. After a deputy sheriff and a state trooper got these people under control and out of the room, the county judge stated: “Take him back to jail, I ain’t going to allow him no bond anyway, there’s no use in having a hearing.” Appellee was then taken back to jail. This all occurred on approximately October 28, 1943, three days after the murder for which appellee was convicted. Although he had no firm recollection of the matter, the county judge who had presided on October 28, 1943, indicated it was perhaps true that he had committed appellee without an examining trial pending grand jury action. No other witnesses testified.

The trial court sustained the motion to vacate on August 5, 1965, ordered appellee released from the penitentiary under $5,000 bail, and assigned the case for trial under the old indictment on September 21, 1965. (Although it is not shown by the record, we think it fair to state by way of explanation that action under the order has been held in abeyance pending disposition of this appeal. See RCr 11.42(8).) The substance of the reasoning of the trial court is contained in the following portion of its opinion:

“Had there been an examining trial and had he been afforded counsel, he could have learned the substances of some of the testimony which was to be used against him in the forthcoming trial and could have been in position to be better prepared for his defense.
“The Court is therefore of the opinion that at the time the movant appeared in Perry County Court three days after his arrest, was a critical stage of the prosecution against him, and further that the movant was prejudiced in not being afforded an examining trial and in not being afforded counsel at that time.”

Appellee’s conviction stands set aside on the sole basis of the failure of the county court to afford him a preliminary hearing some three days after his arrest. The trial court concluded that the examining trial is a “critical stage” of the proceedings against the accused as that terminology is used in certain opinions of the Supreme Court of the United States. We cannot agree with that conclusion for it appears to us that the law is to the contrary so far as this State is concerned.

In Carson v. Commonwealth (1964), Ky., 382 S.W.2d 85, cert. denied, 380 U.S. 938, 85 S.Ct. 949, 13 L.Ed.2d 825, appellant contended that his conviction and death sentence for murder lacked due process because he had no counsel when brought before the county judge for his examining trial. He relied on the cases of White v. State of Maryland (1963), 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and Hamilton v. State of Alabama (1961), 368 U.S. 52, 7 L.Ed.2d 114, 82 S.Ct. 157. In rejecting that contention, this Court stated as follows, 382 S.W.2d 85, at p. 93:

“In White the accused entered a guilty plea at his preliminary hearing. The trial court permitted evidence of that guilty plea upon the jury trial. In Hamilton it appeared that only at the examining trial could certain defenses be raised. It is true that in each of the cited opinions the Supreme Court wrote that prejudice is not the determinative question. However, in each of those cases definite prejudice to the accused was shown. The basis for both decisions appears to us to be that the particular preliminary hearings were considered to be ‘critical stages’ in the criminal proceeding. The Supreme Court rule, by which all federal and state courts are bound, is that due process requires that an accused have counsel at any critical stage of the criminal proceeding, unless that right is competently waived. If it is found that opportunity for counsel has not been afforded at a critical stage, the matter of prejudice is not involved. The determinative factor is whether the particular activity is at a critical stage.”

This Court reasoned further,, 382 S.W.2d 85, at pp. 94, 95:

“We envision a situation wherein an examining magistrate arbitrarily refuses to permit the defendant to have counsel; then the magistrate discharges the accused from custody upon a finding that no probable cause to hold him had been shown. Thereafter a grand jury returns an indictment accusing the defendant of the crime. Would the failure of the magistrate to furnish counsel at the examining trial preclude prosecution of the defendant? We cannot perceive that it would. By parity of reasoning, it is our conclusion that the alleged failure to furnish counsel to the present appellant at the preliminary hearing is not available as error here. It is our view that the examining trial (in Kentucky) is not such a critical stage of the proceeding as brings it within the purview of Hamilton v. Alabama, supra, or White v. Maryland, supra. Unless it is shown that something prejudicial to the defendant occurred by reason of his lack of counsel at that stage, there has been no infringement of his fundamental rights.”

It appears that the Supreme Court of the United States agrees with the construction placed upon its cases by this Court in the Carson case. In Pointer v. State of Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, the petitioner contended that he was deprived of effective assistance of counsel by the failure to appoint counsel to represent him at the preliminary hearing. While the Supreme Court did not decide the question it stated with respect to it, 380 U.S. at p. 402, 85 S.Ct. at p. 1067, 13 L.Ed.2d at pp. 925, 926:

“In making that argument petitioner relies mainly on White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, in which this Court reversed a conviction based in part upon evidence that the defendant had pleaded guilty to the crime at a preliminary hearing where he was without counsel. Since the preliminary hearing there, as in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, was one in which pleas to the charge could be made, we held in White as in Hamilton that a preliminary proceeding of that nature was so critical a stage in the prosecution that a defendant at that point was entitled to counsel. But the State informs us that at a Texas preliminary hearing sueh as is involved here, pleas of guilty or not guilty are not accepted and that the judge decides only whether the accused should be bound over to the grand jury and if so whether he should be admitted to bail. Because of these significant differences in the procedures of the respective States, we cannot say that the White case is necessarily controlling as to the right to counsel. Whether there might be other circumstances making this Texas preliminary hearing so critical to the defendant as to call for appointment of counsel at that stage we need not decide on this record and that question we reserve.”

In Kentucky the purpose of the preliminary hearing is to determine whether the defendant is to be bound over to the grand jury an'd, if so, whether he should be admitted to bail. It is true as the trial court indicated that on occasion such a proceeding affords an incidental benefit in the opportunity to listen to and cross-examine Commonwealth witnesses. We are unable to perceive how such an incidental benefit can turn a proceeding designed for an entirely independent purpose into a critical stage of the proceedings against the accused. As a matter of fact, if the trial court is correct, our whole system in this respect is wrong. If every accused has an absolute right to a preliminary hearing, then none of our cases where the accused was first arrested under an indictment can stand. Otherwise we are confronted with an equal protection problem.

The best argument against the decision of the trial court is the anomalous position in which the case now stands. So long as the indictment is outstanding there is neither reason nor opportunity for a preliminary hearing. Nothing having occurred at appellee’s trial as a result of the lack of a preliminary hearing, there is nothing to be corrected. In other words, as hypothesized in the Carson case, the holding of the trial court, although not expressly so framed, is an absolute bar to further prosecution.

The crux of the matter is that the preliminary hearing is simply a procedural device to secure the temporary freedom of an accused (if warranted) following arrest and pending indictment. It is not an integral or essential part of the prosecutory process and is thus to be distinguished from such phases of the proceedings as arraignment, trial and judgment. We submit that, in the absence of exceptional circumstances, the nature, purpose, and effect of a preliminary hearing (or the absence thereof) are strictly incidental to a criminal prosecution in Kentucky and do not render it a critical stage of the proceedings against the accused. Criminal Code, Sec. 51, effective at the time, assured an accused of his right to counsel in case an examining hearing was held, and is not pertinent here.

There is another reason why the judgment of the trial court vacating appel-lee’s conviction is erroneous. In rendering its opinion, the trial court overlooked the fact that appellee was convicted in the trial court upon his plea of guilty. “The effect of a plea of guilty is to waive all defenses other than that the indictment charges no offense and to authorize the imposition of the penalty prescribed by law.” Tarrence v. Commonwealth (1954), Ky., 265 S.W.2d 52.

Since there was no examining trial, nothing could have occurred in it to prejudice the constitutional rights of the accused in his trial on the merits. See De Toro v. Peppersack (4th Circuit), 332 F.2d 341, cert. denied, 379 U.S. 909, 85 S.Ct. 198, 13 L.Ed.2d 181; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 923.

The judgment is reversed.


author: MOREMEN, Chief Justice.

text:
    Albert DAVIS, Sr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.

      Louis P. McHenry, Hopkinswille, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   MOREMEN, Chief Justice.

Appellant, Albert Davis, Sr., was convicted of the offense of possessing alcoholic beverages for the purpose of sale in Hopkins County, a dry local option territory.

On October 31, 1964, appellant, his wife, and some friends were sitting in the kitchen of their house. At about ten o’clock at night the chief of police of Madison-ville and a fellow officer came to the door of appellant’s house, opened the door slightly and were invited in by appellant’s wife. Thereafter, a search was made of the house and about 196 half-pints of intoxicants were seized.

The main question in this case involves whether the search was illegal because it was had without a search warrant. The witnesses differ as to just what occurred at the time. The chief, who was corroborated by his fellow officer, testified:

“Q. Did he recognize you? A. O, yes, when I cracked the door, he said ‘Come in, Mr. Collins,’ or ‘Chief’ or whatever it was; he invited us in. I asked Albert if he would have any objection to us searching his house. I said, T don’t have any search warrant,’ and he studied just a minute and said, ‘You know I never have told you you couldn’t search. You go ahead and search.’ And I said, ‘You understand I don’t have a search warrant?’ and he said, T understand. You go ahead and search anywhere you want to.’ ”

Appellant testified as follows:

“Q. You had a conversation with Officer Collins and he asked you were you doing a big business ? A. He said ‘it looks like you are doing a big business.’
“Q. Was there any whiskey on the table? A. Nothing but one bottle of Seven-Up. There were no alcoholic beverages at all on the table.
“Q. What other conversation transpired between you and Officer Collins concerning his searching your house? A. I said, ‘Well, Mr. Collins, if I say no, you are going to search any way.’
“Q. Is that all you said? A. That’s all I said. Then he went into the washroom. I have got a washroom where we do laundry, and he began to search there.”

We have held that a person may consent to a search and thereby waive the constitutional guarantee against unreasonable search and seizure, and that the evidence so obtained is competent provided the consent is voluntarily given and is not the result of coercion. Combs v. Com., Ky., 341 S.W.2d 774.

In the case at bar, since there was a direct conflict in the evidence concerning whether consent had been voluntarily given, the court submitted this question under an instruction which we find to have been proper as to form.

It is argued by appellant that the evidence shows only the submission by him to the apparent authority of an officer and not unqualified consent. That would be true if the testimony given by appellant and his witnesses were the only acceptable evidence; but we interpret the testimony given by the officer to mean that unqualified and uncoerced consent was given. The jury was at liberty to believe either set of witnesses in the circumstances.

In Cline v. Commonwealth, 312 Ky. 645, 229 S.W.2d 435, the facts are similar to those involved here. There the officers entered the apartment of appellant in search of a radio which had been stolen. The chief of police testified that he wanted to examine a radio which he saw in an adjoining room and when he asked permission so to do, appellant answered “all right.” Both appellant and his wife denied that they had made such an answer. The trial court in that case failed to submit to the jury the issue of fact as to whether the accused gave voluntary consent to the search of his home. The case was reversed because of such failure. The opinion quotes with approval the following language from Morris v. Com., 231 Ky. 838, 22 S.W.2d 295:

“Whenever the admissibility of evidence, challenged under a technical rule, depends upon a preliminary and disputed question of fact, the showing made relative to such preliminary fact being such that a reasonable man might find either way and the offered evidence is practically decisive of the ultimate question in the case, the trial judge should admit the offered evidence, and pass the question of its admissibility to the jury by proper instruction.”

This seems to be a deviation from the general rule that the competency, admissibility and sufficiency of evidence are for the court, and the weight, effect and credibility thereof are for the jury. It was pointed out in the Cline case that this procedure has been described in Wig-more on Evidence, 3rd Ed. Vol. 9 § 2250, as an unorthodox practice. After full discussion the Court decided to stand by the procedure. We are unwilling still to discard the rule. It is deeply imbedded in the law of this state that one accused of a crime must be tried by jury and it seems to us that it is proper for the jury to pass upon this decisive question of fact even though it does in a manner determine the admissibility of evidence.

Judgment affirmed.


text:
    Roy JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

Roy Jones was fined $200 and sentenced to 120 days in jail for having in his possession alcoholic beverages for sale in local option territory.

We have considered the points raised on this appeal and find them not persuasive of error in the trial.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Frank REYNOLDS et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Tildón H. McMasters, Elizabethtown, for appellant.
    James T. Hatcher, Hatcher & Lewis, Elizabethtown, for appellees.
   CULLEN, Commissioner.

Shortly before the day set for trial in the circuit court of the issues of damages raised by the appeals of both the Commonwealth and the landowners from a county court highway condemnation judgment it was discovered that by inadvertence the county court judgment had been so worded as to condemn not only the strip of land desired by the Commonwealth for highway right of way, but also an adjoining parcel of 37 acres. On motion of the landowners the circuit court entered an order amending the county court judgment so as to eliminate any reference to the 37-acre parcel. The Commonwealth has appealed from that order (which the circuit court made final in accordance with CR 54.02). Trial of the damage issues was postponed by the circuit court pending this appeal.

The Commonwealth maintains that the error in the county court judgment was a “mistake” within the meaning of CR 60.02, correctable only by motion in the county court made within one year after entry of the judgment. (The error here was not discovered until more than a year after entry of the judgment.) The Commonwealth also maintains that where, as here, no issue was raised in the county court as to the right of condemnation, the circuit court on appeal has no power to pass on any question other than the amount of damages to be awarded.

The Commonwealth does not contend that it ever had any intention in the county court proceedings to condemn the 37-acre parcel. It is agreed by all parties that the error in the judgment resulted from the fact that by inadvertence the surveyor’s description used in the body of the complaint in the county court embraced the 37-acre parcel. (The plans and map attached to the complaint as exhibits showed clearly that only the right of way was sought to be taken.)

We are not convinced that the law is so intransigent or inexorable as not to permit the convenient remedying of a patent, undisputed error such as we have here. Certainly, if the county court still had time within which to correct the error it would seem a completely useless ritual to require that the correction of the admitted error be done there. As concerns the matter of time we think that CR 60.01, which is not subject to time limitations, might well be considered available.

Were other justifications necessary it might be considered that the portion of the county court judgment condemning the 37-acre parcel was void, because it granted relief not prayed for in the complaint taken as a whole, and therefore was subject to collateral attack in the circuit court. Cf. Belcher v. Hunt, Ky., 248 S.W.2d 717.

We think, however, that justifications are not necessary. The order of the circuit court accomplished substantial justice and did not seriously violate any principles of orderly procedure. To reverse it would be to give form precedence over substance.

The order is affirmed.


text:
    EAST KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. Donald PRICE et ux., Appellees.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    John W. Murphy, Jr., Liberty, for appellant.
    David F. McAnelly, Liberty, for appel-lees.
   HILL, Judge.

This is an appeal from a $3,300 judgment in a condemnation case undertaking to obtain an easement 150 feet wide and 4329 feet long containing 14.92 acres out of appellees’ 275-acre farm for the erection and maintenance of an electric power line.

Appellant insists that (1) the verdict is excessive and (2) incompetent evidence for appellees was admitted.

There was no motion and grounds for a new trial' filed on behalf of appellant. Consequently, the question of whether the verdict is excessive has not been properly preserved for appellate review. Cf. Commonwealth, Dept. of Highways v. Williams, Ky., 317 S.W.2d 482 (1958); and CR 59.06.

Appellant next complains of the admission of evidence tending to prove that a part of the easement sought herein is suitable for building purposes. We do not consider this evidence incompetent. Commonwealth, Dept. of Highways v. Treadway, Ky., 346 S.W.2d 296 (1961).

Finally, appellant assails the admission of testimony on behalf of appellees relative to an option given by a former owner of this farm to the Casey County Board of Education for a prospective school building site, to which appellant objected. The price stipulated in the option was $1,226.99 per acre. The option was never exercised. This evidence was manifestly incompetent and prejudicial to appellant. Commonwealth, Department of Highways v. Herndon, Ky., 378 S.W.2d 620 (1964); and Orgrl on Valuation Under Eminent Domain, Vol. 1, Sec. 148, p. 620.

Wherefore the judgment is reversed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Georgia A. CARSON et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant.
    James F. Clay, James F. Clay, Jr., Dan-ville, for appellees.
   HILL, Judge.

This is an appeal from a judgment in a condemnation proceeding instituted pursuant to Section 242 of the Constitution of Kentucky and KRS 177.089 et seq., to acquire the necessary right-of-way for reconstruction and relocation of a portion of Kentucky Highway 78 between Stanford and Hustonville.

For reversal appellant contends (1) the verdict is erroneous because the “after” value fixed in the verdict is not within the limits fixed in the evidence, and (2) that incompetent evidence was admitted.

Appellant seeks to acquire 6.61 acres in fee, .24 of an acre for two permanent easements, and .08 of an acre for a temporary easement out of appellees’ 270-acre farm located seven miles west of Stanford and three miles east of Hustonville. The taking leaves 16 acres to the south of the new highway and 247 acres on the north side. The old road is located south of the 16-acre tract. No structural improvements are taken. Strenuous argument is made for ap-pellees that valuable natural springs were either destroyed or rendered valueless. Three springs were cut off from the main farm by the new highway, one of which was covered by the construction. Appellees operate a dairy, and fresh spring water is of great value.

There are features of the new highway that are of great value to appellees, particularly the improvement in the approach from the new highway to the farm. The approach from the old road meandered uphill about 1200 feet, was 10 feet wide, and was an upgrade of 5 to 12 percent. The new highway has been elevated so that the approach is shorter and not so steep.

The county court commissioners allowed appellees $7,622. The circuit court jury verdict fixed the “before” value at $72,000 and the “after” value at $63,000, for a difference of $9,000. The evidence of all the witnesses on both sides fixed the lowest “after” value at $65,000 and the highest “after” value at. $81,596. The same testimony fixed the highest “before” value at $93,450 and the lowest “before” value at $70,000. Obviously, the “after” value fixed by the jury is $2,000 less than the lowest “after” value appearing in the evidence.

This case was tried after Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963). Under the authority of Sherrod and Pierson v. Commonwealth, Ky., 350 S.W.2d 487 (1961), we are reversing this case for a new trial. See also Commonwealth, Department of Highways v. Cardinal Hill Nursery, Ky., 380 S.W.2d 249 (1964); Commonwealth, Department of Highways v. Wood, Ky., 380 S.W.2d 73 (1964); Commonwealth, Department of Highways v. Wynn, Ky., 396 S.W.2d 798 (1965); and Commonwealth v. Thompson, Ky., 398 S.W.2d 496 (1966).

The second error charged concerns the introduction of evidence of noise from the new highway. We have held such evidence to be competent. Commonwealth v. Elizabethtown Amusements Inc., Ky., 367 S.W.2d 449 (1963); and Commonwealth, Department of Highways v. Curtis, Ky., 385 S.W.2d 48 (1964). There is also complaint of evidence of negotiations between the parties with reference to an underpass desired by appellees, but which appellant refused to construct. It is elementary that such negotiations are not admissible. Harlan Fuel Co. v. Wiggington, 203 Ky. 546, 262 S.W. 957 (1924); Smith v. Blue Ribbon Lines, 312 Ky. 246, 227 S.W. 2d 185 (1950); Whitney v. Penick, 281 Ky. 474, 136 S.W.2d 570 (1940); Elam v. Wool-ery, Ky., 258 S.W.2d 452 (1953); and the recent case of Commonwealth, Department of Highways v. Smith, Ky., 358 S.W.2d 487 (1962).

Wherefore the judgment is reversed with instruction to grant appellant a new trial.


author: JAMES S. SHAW, Special Commissioner.

text:
    Mrs. F. W. MITCHELL, Sr., and F. W. Mitchell, Jr., Appellants, v. Jay FRANKLIN, Appellee.
    Court of Appeals of Kentucky.
    Dec. 3, 1966.
    Rehearing Denied Feb. 25, 1966.

      James F. Clay, Danville, for appellants.
    George R. Silliman, Danville, for ap-pellee.
   JAMES S. SHAW, Special Commissioner.

Jay Franklin, a tenant, sued the Mitchells, mother and son, Boyle County farm owners, for damages resulting from serious physical injuries he received as a result of a fall from a barn being repaired on the Mitchell farm. Upon submission to a jury, a verdict of $6733.35 was rendered and judgment thereafter entered in his favor. The Mitchells appeal, urging a reversal upon the theory that they were entitled to a directed verdict, pursuant to a timely motion made therefor.

There is no great contradiction in the essential facts surrounding this unfortunate accident. The Mitchells, as a part of the farm improvements, had an old tobacco barn in need of repairs, particularly some sliding doors which were dragging. “Stubs” supporting the barn framework had sunk causing these doors to sag. To cure this, Mitchell and Franklin proceeded, with the help of one Jack Davis, to remove the doors.

They took down the boxing, so that the large wooden posts could be jacked up in order to level the stubs on which the posts rested, thus putting the sliding doors back into a functional condition. The sliding doors were attached to a tubetype track mounted on the exterior of the barn. This track was bolted to 2" x 6" planks located inside the barn. There was a 2" x 4" plank that was nailed to the sheeting and which supported the tier rails running inside the barn. In order to jack up the large wooden posts, it was necessary to remove the 2" x 4" and the 2" x 6" planks; and, to do this, Franklin removed the track by taking out the bolts, then removed enough of the boxing to allow him to climb on the framework of the barn in order to finish the job.

Taking a pinch bar and, with one foot on the 2" x 6"s and the other on the tier rail supported by the 2" x. 4"s, he proceeded to take off the boxing until he was about two-thirds of the way across the barn doors. There being insufficient support from the nails remaining in the 2" x 4"s, attaching it to the boxing, the 2" x 4"s gave way, the tier rails, upon which Franklin was partially standing, fell, the 2" x 6"s collapsed, with the result that he was propelled to the ground receiving serious bodily injuries.

The Mitchells contended in the trial court, and reiterate here, (1) That they were under no duty to furnish Franklin additional help, or to furnish a safe place to work; (2) that Franklin was guilty of contributory negligence; and (3) that he assumed the risk of injury in this undertaking.

Franklin rests his case on the opinion of this Court in E. J. O’Brien and Company v. Shelton’s Adm’r., 246 Ky. 537, 55 S.W.2d 352, basing his stand on the evidence of the witness, James Walker, that a safer method to repair the bam was available to the appellants. We believe, and we now hold, that the O’Brien case is not analogous to the one now under discussion. We will therefore attempt to differentiate between it and the one now under scrutiny.

First, E. J. O’Brien and Company, having failed to elect to work under the Workmen’s Compensation Act, were deprived of the defenses of assumed risk and contributory negligence, both of which are available to the Mitchells in this case and both of which are heavily relied on to defeat Franklin’s claim. Secondly, and even more important, the dangerous condition was not created during the progress of the work, but was one that existed before the demolition began in the O’Brien case. In the instant case, no dangerous condition existed until such was set in motion by the servant in removing the supporting nails for the 2" x 4" and 2" x 6" planks. The barn involved here was many years old when purchased by the Mitchells and there is not the slightest bit of evidence that they knew, or could have known, before this accident of any defective condition in the nailing of the plank supports, but, on the contrary, the only inference that can be drawn from the facts by a reasonable mind is that Franklin was the only person who could discover any such condition while he was in the act of removing the nails from the supporting planks.

Where the evidence is such that different inferences may legitimately be drawn therefrom, then contributory negligence and, for that matter, assumption of risk should be submitted to the jury. In the instant case, the evidence is conclusive that the servant’s own negligent act in removing with the pinch bar his supports, the 2" x 4"s and the 2" x 6"s, caused him to fall to the ground with painful injuries. His position in this cause is not unlike that of the person who climbed out to the far end of a tree limb, proceeded to saw off the limb, and was cast to the ground.

The general rule is that an employee or servant shall be denied the right to recover for injuries and damages, where his own neglectful act has been the proximate cause of his injuries. From the evidence here it appears no other reasonable conclusion could be reached than that the injuries were proximately caused by Franklin’s own unfortunate negligent acts.

We are of the opinion that the principles of law controlling in this case are as set out in Ballard & Ballard Co. v. Lee’s Adm’r., 131 Ky. 412, 115 S.W. 732, and Standard Oil Co. of Kentucky v. Watson, 154 Ky. 550, 157 S.W. 929. Quoting from the Standard Oil case this Court held:

“The law does not impose upon a master engaged in the hazardous work of tearing down an old building the duty of inspecting it, so that his workmen may have a safe place to work; and certainly in this case it would be requiring too high a degree of care to say that it was his duty to have known that there was a knot in any particular timber in the old house that was being torn down, or that the knot ran through the timber at such an angle as to make it dangerous to his workmen. If the master may be mulcted in damages for his failure to discover such defects, or if he must, before undertaking such work, or during its progress, go to the expense and trouble of having a minute examination made of all such timbers, it would make the expense of tearing down an old house almost as great as building a new one.
“The cause of this injury was the knot in the beam and the manner in which it ran through it, and we are unable to see from this evidence how the master could, with any ordinary degree of care, have known of the knot, to say nothing of the manner in which it ran through the beam. To require a master to examine every timber in an old house that was being torn down would be most unreasonable, and we do not see how the foreman in this case could have been expected to know that the particular beam in question was defective. Of course, if he knew that it was defective, it was his duty to warn the workman of the defect.”

It should also be considered that there is an exception to the general rule of the master’s liability to his servant with respect to hazardous and unsafe conditions and this exception is stated in 35 Am.Jur., Master and Servant, sec. 187, p. 615, as follows:

“The rule requiring the employer to make safe the place where his employees are at work is said to be subject to an exception where the conditions of the place are constantly changing as the work progresses, as where a building is in the course of being constructed or demolished. * * * ”

This exception is generally recognized throughout the country and Kentucky has long followed this rule, as can be readily seen by reading the Ballard and Standard Oil cases cited above.

Following the reasoning as set out in this opinion to its ultimate conclusion, we believe that no negligent act on the part of the Mitchells could be said to be the cause of Franklin’s injuries and that the unfortunate occurrence resulted undesignedly and unexpectedly as a result of the contributory negligence on the part of Franklin. We are now of the opinion that the lower court is in error, the judgment should be reversed with directions to set same aside and to dismiss Franklin’s complaint.

It is so recommended.

The opinion is approved by the Court and the judgment is reversed and directed to be set aside, and the trial court is further directed to dismiss the complaint.


author: WADDILL, Commissioner.

text:
    Homer BROWN, d/b/a Homer Brown Coal Company, Appellant, v. Robert GREGORY and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.

      Charles G. Cole, Jr., Cole & Cole, Bar-bourville, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Pleaz Wm. Mobley, Manchester, for ap-pellees.
   WADDILL, Commissioner.

This appeal is from a judgment upholding an award of the Workmen’s Compensation Board in favor of appellee, Robert Cregory, against appellant, Homer Brown Coal Company. The only questions presented for our determination are whether the Board made sufficient findings of fact and whether it erred as a matter of law in not apportioning the liability between appellant and the Special Fund pursuant to KRS 342.120.

Gregory sustained an injury to his back by an accident arising out of his employment with appellant during 1962. The Special Fund was made a party to the proceedings before the Board.

The Board, after noting that the Special Fund had been made a party and after reviewing certain medical evidence found that Gregory was totally disabled and awarded him maximum compensation benefits against appellant.

Appellant contends the Board failed to make sufficient findings of fact as required by KRS 342.275, specifically in not finding the amount of disability caused by trauma and the amount which resulted from a pre-existing condition. While the Board was remiss in not making specific affirmative findings of fact, it assessed appellant with full liability. Hence it is implicit in the award that no pre-existing condition, as that term is used in KRS 342.120, contributed to Gregory’s present disability. Department of Highways v. McCoy, 301 Ky. 765, 193 S.W.2d 410.

Appellant next contends the evidence required the Board to find that Gregory had a pre-existing condition which contributed to his disability. The medical witnesses had not examined Gregory before he received his back injury. One physician stated that his examination convinced him that Gregory had a 5% disability before the accident. Two physicians opined that Gregory had a degenerative disc before his accident which contributed 50% to his present disability. Another physician testified Gregory’s condition was due solely to trauma. It is doubtful if a non-disabling degenerative condition which is due to normal aging processes is the type of condition intended to be covered by KRS 342.120. However, we need not determine that question since there is medical evidence to support the Board’s finding that the disability was entirely caused by the 1962 accident. This forecloses the apportionment question. Mullins v. Blanton, Ky., 385 S.W.2d 779; Imperial Elkhorn Coal Co. v. Newsome, Ky., 382 S.W.2d 864. We conclude there is no merit in appellant’s contentions.

The judgment is affirmed.


author: MONTGOMERY, Judge. MILLIKEN, Judge

text:
    Joseph Earl GOETZ, Appellant, v. GREEN RIVER RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Jan. 28, 1966.
    George V. Triplett, David C. Brodie, Owensboro, for appellant.
    Clarence Bartlett, Woodward, Bartlett & McCarroll, Owensboro, for appellee.
   MONTGOMERY, Judge.

Joseph Earl Goetz appeals from a judgment in favor of Green River Rural Electric Cooperative Corporation based on an adverse directed verdict. It is necessary to consider only the question of the negligence of the appellant.

Goetz was injured when a television antenna held by him came in contact with appellee’s high voltage line. It extended alongside and parallel to the property line of appellant’s lot. Appellant said that he had not seen and did not know of the existence and location of appellee’s line. He had recently purchased the property and prior to the date of injury had been on the premises three times, twice when it was dark and once on another occasion when he did not alight from his car.

Appellee’s 7200 volt line was carried by two wires, one above the other, on poles and was 28.2 feet above the ground. At the north end of appellant’s house attached to the eave of the garage there was a tripod television tower which was 34.2 feet in height. The two wires which made up the power line were about six feet below the top of the tower and 6.9 feet from the tower.

The injury occurred on March 28, 1964, near 5 p. m. Appellant had unloaded furniture from a truck into the house and garage that afternoon. As appellant climbed the television tower to install a ten-foot antenna his back was turned toward the power line. When appellant started to insert the antenna in the tower, “A gust of wind come and blew it over on the wire and after that * * * that’s all I remember happening,” he said. He fell onto the garage roof and rolled off onto the ground. The circumstances were such that there seems to be no doubt that the antenna came into contact with the power line and appellant was thus injured.

He seeks to avoid any responsibility for the injury by saying that he had never seen the power line and had no previous knowledge of it. He admitted that there was no obstruction which would have barred his view and that he could have seen the power line if he had looked. Three photographs introduced as exhibits clearly reveal both wires which made up the power line, the television antenna, and its proximity to the power line. The injury occurred in broad daylight. It is hard to understand how anyone approaching the tower for the purpose of affixing an antenna to the top thereof could fail to see the power line. The fact that his back was to the power line as he climbed the tower does not explain why he did not see the line before he started to ascend. It is argued that the evidence showing that appellant rolled down the roof is sufficient to show that he had turned around and was facing the power line and should have seen it.

Appellant was twenty-six years of age and had a general knowledge of electricity and the danger therefrom. He was sufficiently acquainted with electricity to know how to affix an antenna to a television tower.

The duty to exercise ordinary care for one’s own safety is imposed on everyone. The care required to be exercised is measured by the circumstances of the particular case. The greater the hazard the greater the care required. McWilliams v. Kentucky Heating Co., 166 Ky. 26, 179 S.W. 24, L.R.A.1916A, 1224. The Court has had occasion to consider other cases in which the injured party sought to excuse himself from responsibility by saying that he did not see that which caused his injury which should have been seen. The duty to exercise ordinary care for one’s own safety requires that one must use his senses in a way that ordinarily prudent persons would do under similar circumstances. Thus, one will not be heard to say that he did not see or hear an approaching train when the facts make it certain that the train should have been seen or heard. Nashville, C. & St. L. Ry. Co. v. Stagner, 305 Ky. 717, 205 S.W.2d 493; McCarter v. Louisville & N. R. Co., 314 Ky. 697, 236 S.W.2d 933; Louisville & N. R. Co. v. Tomlinson, Ky., 373 S.W.2d 601. One who fails to exercise such care for his own safety is guilty of negligence which bars a right to recovery. Louisville & N. R. Co. v. Fisher, Ky., 357 S.W. 2d 683. Mental abstraction which is not due to any surrounding circumstances does not excuse inattention to a known danger or one that should have been seen. Vaughn v. Jones, Ky., 257 S.W.2d 583; Farris v. Summerour, Ky., 296 S.W.2d 708.

The danger inherent in power lines and electric lines generally needs no elaboration. In Electric Plant Board of City of Russellville v. Dotson, Ky., 304 S.W.2d 779, involving an electric wire, the Court said:'

“In two recent cases dealing with overhead wire, we have said that reasonable care demands that every precaution be taken to avoid contact with an electric wire. Vaught’s Adm’x v. Kentucky Utilities Co., Ky., 296 S.W.2d 459; and Carr v. Kentucky Utilities Co., Ky., 301 S.W.2d 894. * * * ”

See also Kentucky Power Co. v. Gevedon, Ky., 343 S.W.2d 381; Jackson County Rural Electric Coop. Corp. v. Massey, Ky., 346 S.W.2d 484.

In Jones v. Kentucky Utilities Co., Ky., 334 S.W.2d 263, a youth fifteen years of age was held guilty of negligence barring a recovery when he climbed on top of a bridge and came in contact with electric transmission wires located 43 inches above the top level girder and 13 inches from its edge. It was held that the youth was deemed “to be chargeable with an awareness of danger from the close electric wires.” It is concluded, therefore, that appellant’s failure to exercise his senses to ascertain the presence of the power line constitutes such negligence as to bar his right to recovery.

Appellant cites certain alien authorities which are not controlling in view of the domestic authorities. To sustain the proposition that the question of appellant’s contributory negligence was for the jury, he cites a number of cases which may be distinguished on the basis set forth in Kentucky Utilities Co. v. Black’s Adm’x, 244 Ky. 562, 51 S.W.2d 905, one of the cases cited by him. In the later cases of Jones, Gevedon, Massey, Dotson, Vaught, and Carr, recovery by the injured person was held to have been barred by his own' negligence. Dunn v. Jackson Purchase Rural Electric Coop. Corp., Ky., 374 S.W.2d 190, is distinguishable on its facts. Blackwell’s Adm’r v. Union Light, Heat & Power Co., Ky., 265 S.W.2d 462, was also relied on, but see Union Light, Heat & Power Co. v. Blackwell’s Adm’r, Ky., 291 S.W.2d 539, 87 A.L.R.2d 264.

Judgment affirmed.

MOREMEN, C. J., and MILLIKEN, J., dissent.

MILLIKEN, Judge

(dissenting).

I think enough uncertainty can be conjured up here as to what a reasonable man would do in the circumstances of this case as to require submission of the issue to a jury, and that the circumstances in which Goetz acted were not calculated to alert him so forcefully to the dangers at hand as to render his conduct negligent as a matter of law. When we view the evidence in the light most favorable to Goetz, his freedom from contributory fault appears possible — possibly probable — a jury question. Let us view the evidence that way for a moment.

There is no evidence that Goetz actually saw the power line — but let us assume that he is charged with the responsibility for having seen it. What would he have seen? The evidence reflects that the lines are slightly smaller than an ordinary house service electric line; their darkened color, admitted in evidence, readily presented the appearance that the lines were insulated. While it is true that it is not practicable to insulate high voltage lines, it is both practicable and usual that normal service lines are insulated. The simple truth is that Goetz (or the ubiquitous ordinary man exercising the care usual in such circumstance) could very well have believed that these lines were nothing more than telephone lines, telegraph lines, or innocent, insulated house service electric lines. All of which is to point up the fact that these lines presented an innocent, innocuous appearance — not an appearance of deadliness or extreme hazard. I think it is obvious that an ordinarily prudent person will take for granted, uncritically, those surroundings and circumstances which do not present to him an obvious danger. By way of illustration — Goetz would certainly have noticed and acted accordingly if he had seen or heard a tiger on that pole — he may have dismissed a squirrel as inconsequential. I like to believe that I am a reasonable man, and it disturbs me that the majority of my colleagues conclude as a matter of law that reasonable men cannot differ on the legal consequences of a factual situation like this.

It seems to me that the very facts which militate against holding Goetz contribu-torily negligent as a matter of law create an issue for the jury as to the company’s negligence. The company is charged with a very high degree of care because of the dangerous propensities of electricity — particularly high voltage electricity transmitted through uninsulated wires. The company knew — or is clearly charged with knowledge — that the high voltage line was in dangerous proximity to the antenna and it knew, or ought to have foreseen, that an occupant of the Goetz property would have occasions to mount the antenna tower to service the antenna. In other words, there was foreseeability as to the company that this sort of situation would arise. Moreover, the company knew that copper wires do darken and that they do give the appearance of ordinary insulated lines.

Without any thought of a comparative negligence theory, it is, I think, appropriate to examine the relative opportunities of these parties. For the company, it would have required very little to make the danger obvious. A very simple procedure (and quite normal in my observation) would have been to place conspicuous danger or high voltage signs somewhere near normal eye level. Another would have been to shield these wires at their dangerous proximity to the aerial area. More devious means would include the removal of the line to a less dangerous spot or the raising of the line sufficiently above the aerial.

For these and other reasons, I am disappointed that my colleagues have affirmed a directed judgment ignoring all of these factors. In my view, this plaintiff was not nearly so guilty of contributory negligence as was Dunn in the recent case of Dunn v. Jackson Purchase Rural Electric Cooperative Corporation, Ky., 374 S.W.2d 190 (1963), where we reversed a directed judgment for the company because we thought a jury question was presented.

I am pleased that another reasonable man, Chief Justice MOREMEN, joins me in this dissent.


text:
    Hilary R. SKEES, Appellant, v. Ann WHITAKER, Appellee.
    Court of Appeals of Kentucky.
    Dec. 3, 1965.
    Rehearing Denied Feb. 25, 1966.

      William C. Jacobs, Lexington, for appellant.
    Rodman W. Keenon, Gladney Harville, Stoll, Keenon & Park, Lexington, for ap-pellee.
   DAVIS, Commissioner.

The appellant, Hilary R. Skees, sued ap-pellee, Ann Whitaker, seeking recovery for personal injuries and property loss resulting from a collision between the cars operated by appellant and appellee. The jury’s verdict was for appellee; appellant seeks to reverse the adverse judgment on these grounds: (1) It was error for .the trial court to instruct the jury on contributory negligence; (2) in any event, the contributory negligence instruction as given invaded the jury’s province; and (3) the court should have given an instruction on “last clear chance”.

The unusual accident occurred, on a clear August morning, in an off-street parking area on the west side of Tates Creek Pike in Lexington. Appellant had entered the parking area by turning right off the street; his course on the street had been south-wardly. Marked off parking spaces provided for parking perpendicularly to the curb. Appellant had just brought his car to a stop, removed the ignition key, looked back to his left, when he opened the left front door of his car. He had gotten the door open just about six inches when it was struck by the car of appellee, who was undertaking to park her car in the marked off space immediately to the left of the one occupied by appellant’s car. Appellant said that he did not see appellee’s car before the accident. Appellant explained that the force of the collision was upon “the trailing edge of the door” — or the “back lock side of the door”. He characterized the impact as “terrific”. According to the testimony of appellant, immediately after the accident the right front tire of appellee’s car “was totally over in the yellow line alongside my car; I believe it was between my car and the yellow line”.

Appellee stated that she had been proceeding northwardly along Tates Creek Pike, and had had to await clearance of traffic before she could enter the parking area to her left. She saw appellant drive in to the parking space and she undertook to park her car alongside his. She related that she had driven “just about halfway in” the parking space when “the door opened on the other car and I hit it”. Appellee said “we would not have hit if the car door had not opened”.

As noted, it is the contention of appellant that no instruction should have been given relating to the defense of contributory negligence, but we do not agree. It is fundamental that the contributory negligence of a plaintiff constitutes a defense for a defendant charged with negligence. 38 Am.Jur., Negligence, Section 174; Allen v. Dillman, Ky., 249 S.W.2d 23. As observed in the Allen opinion, just cited, “The law contemplates the exercise of ordinary care by every person for his own protection against injury. The person failing to exercise such care, if that failure contributes to the resulting injury as a proximate cause, is guilty of contributory negligence even though there be concurrent actionable negligence on the part of another.” Allen v. Dillman, Ky., 249 S.W.2d 23, 25.

It is apparent, we think, that appellant had a “continuing duty of caution for his own safety” — just as “every person” does. Louisville & N. R. Co. v. Dunn, Ky., 380 S.W.2d 241, 245. That continuing duty certainly included the duty to look to ascertain whether his opening of the left door of his car could be accomplished with safety for himself and any approaching vehicle. When we consider the surrounding circumstances, and the exigencies under which appellant acted, we are impelled to the conclusion that the defense of contributory negligence was available to the appellee. Therefore, there is no merit in appellant’s contention that no contributory negligence instruction should have been given.

Appellant contends that since ap-pellee’s car partially invaded the parking area for appellant’s car, the accident would have happened whether he opened the door or not. We consider this position untenable. In the first place it is entirely speculative whether any accident would have occurred without the opened door. Secondly, it is certain that this accident, and its consequences, could not have taken place without the opened door. There was no place in the trial of this case to speculate as to what might have happened under some other set of circumstances.

Neither do we find basis for reversal in the form of the contributory negligence instruction. We do not consider that the court invaded the province of the jury by reason of the form of the instruction. By its terms, the jury was told that appellant had these duties: “(1) Before opening the door of his automobile to look for other cars and vehicles approaching; * * * (2) Not to open the door of his car if the approaching car of the defendant was so near that to do so would cause immediate danger of collision.”

After stating those duties, the trial court concluded the instruction:

“If the jury believe from the evidence that the plaintiff failed in any one or more of said duties, and that such failure on his part, if any, contributed to or helped to bring about the collision, to such extent that but for such failure, if any, on the part of the plaintiff said collision could not and would not have occurred, then the law is for the defendant, and you shall so find * *

It is plain, we think, that the appellant did have the duties imposed by the instruction; moreover, the jury was clearly advised that it must find that any violation of either of the duties so contributed to the cause of the collision that but for it, the collision would not have occurred. We consider the instruction appropriate in this case, and do not reach the assertion by ap-pellee that appellant failed to preserve his objection to the instruction as required by CR 51.

Finally, appellant asserts that he was entitled to a “last clear- chance” instruction. The circumstances of the accident at bar forbid such an instruction. By evidence from both sides it was made plain that the accident occurred in the twinkling of an eye. If appellee had any chance, which is doubtful, it was neither “clear” nor “last”. It is certain that appellant’s peril, as it related to the opened door of his car, occurred only momentarily before the impact. Under such facts the last clear chance doctrine is inapplicable. Severance v. Sohan, Ky., 347 S.W.2d 498, 501. There is nothing in Hensley v. Braden, 262 Ky. 672, 91 S.W.2d 34, (relied on by appellant), which supports his contention for a last clear chance instruction.

The judgment is affirmed.


author: SMITH, Justice.

text:
    AMERICAN MOTORISTS INSURANCE COMPANY et al., Petitioners, v. Juana A. VILLAGOMEZ, Individually and as next friend of Irene Villagomez and Evangelina Villagomez, Respondents.
    No. A-10904.
    Supreme Court of Texas.
    Jan. 5, 1966.
    Scott, Hulse, Marshall & Feuille, Charles R. Jones, El Paso, for petitioners.
    Guinn & Guinn, Ben A. Endlich, El Paso, for respondents.
   SMITH, Justice.

This is a Workmen’s Compensation suit filed by the widow and dependent children of deceased workman, Adolfo Villagomez. In the trial court summary judgment was granted for petitioners based on a determination that, as a matter of law, the claim for death benefits was not timely filed as required by Article 8307, sec. 4a, Vernon’s Annotated Civil Statutes. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for trial on the merits. 391 S.W.2d 537. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

On April 4, 1955, Adolfo Villagomez suffered an injury when he slipped and fell in the course of his employment. Allegedly at the request of his foreman he continued working for two weeks, after which time he stopped working and sought treatment from a doctor. On July 11, 1955, he filed his claim for compensation with the Industrial Accident Board and on the same day suffered a stroke which resulted in his death on July 17, 1955. On July 18, 1955, his attorney wrote the board, notifying them of the death, and requested the proper forms necessary for filing a claim on behalf of the minor children of the deceased and his surviving wife. This letter was received by the board on July 19, 1955, and on July 28, 1955, the requested forms were mailed. These forms were executed by Mrs. Vil-lagomez for herself and on behalf of the two minor children on October 18, 1955, but were not filed with the board until March 16, 1956, nearly eight months after the date of death.

Respondents do not contend that there was good cause for the late filing, but they do argue, and the Court of Civil Appeals so held, that they had the right to amend and claim greater or different injuries, including death, at any time before the board made its final award and that the claim for death benefits was merely an amendment to the pending claim for compensation filed by Adolfo Villagomez himself. The Court of Civil Appeals did not discuss respondents’ alternative position that the letter of July 18, 1955, constituted a claim for death benefits because it gave notice of the death and of respondents’ intention to seek an award of death benefits and, combined with the papers already on file by Adolfo Vil-lagomez, provided all necessary information regarding the accident. Respondents contend the letter itself was substantial compliance with the statutory requirement that a claim be filed within six months of the date of death. We cannot agree with these contentions for the reasons now to be stated.

Article 8307, sec. 4a, Vernon’s Annotated Civil Statutes, reads as follows:

“Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury or of the first distinct manifestation of an occupational disease; or, in case of death of the employee or in the event of his physical or mental incapacity, within six (6) months after death or the removal of such physical or mental incapacity. For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board.”

The general meaning of this article is that in order to be eligible for compensation benefits, the employee must give notice of injury to his employer or the insurance carrier within thirty days and file his claim for compensation within six months of the date of injury. In the event of death, the claim must be filed within six months of the date of death. The cases cited by the Court of Civil Appeals in support of its holding, Western Casualty Co. v. DeLeon, 148 S.W.2d 446 (Tex.Civ.App.1941, dism. judgm. cor.) and Traders & General Ins. Co. v. Herndon, 95 S.W.2d 540 (Tex.Civ.App.1936, dism.), do recognize the right of an injured employee, once notice of injury and claim for compensation have been timely and properly filed, to amend his claim at any time before the board acts on his original claim, and it has been held that in a suit filed to set aside the award of the board, the claim, so long as it is a claim for general injuries, may be enlarged to include all injuries proximately resulting from the accident. Booth v. Texas Employers’ Ins. Ass’n, 132 Tex. 237, 123 S.W. 2d 322 (1938); Hartford Accident & Indemnity Insurance Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205 (1936). However, it is significant that these cases involved situations where an injury later increased or diminished in severity or scope hut did not result in death. These cases do not support the proposition that the deceased’s survivors may amend the claim for compensation so as to present a death claim after six months from the date of death.

It has long been settled in Texas that where death results from a compensable injury, a new cause of action for death benefits arises and vests in the legal beneficiaries of the decedent. This cause of action is separate and distinct from the cause of action for compensation belonging to the injured employee during his life and which will, upon his death, vest in his legal beneficiaries the right to claim all compensation payments which had accrued at the time of his death but had not been paid. As to this latter cause of action, the legal beneficiaries could be substituted for the deceased workman at any point in the proceedings before the board or a court so as to prosecute the claim which was pending there at the time of the workman’s death. Swain v. Standard Accident Ins. Co., 130 Tex. 277, 109 S.W2d 750 (1937); Texas Employers’ Ins. Ass’n v. Phillips, 130 Tex. 182, 107 S.W.2d 991 (1937); Traders & General Ins. Co. v. Baldwin, 125 Tex. 577, 84 S.W.2d 439 (1935); Federal Surety Co. v. Pitts, 119 Tex. 330, 29 S.W.2d 1046 (1930); Garrett v. Texas Employers’ Ins. Ass’n, 226 S.W.2d 663 (Tex. Civ.App.1949, wr. ref.); Texas Indemnity Ins. Co. v. Henson, 172 S.W.2d 113 (Tex.Civ.App.1943, wr. ref.) ; Maryland Casual ty Co. v. Stevens, 55 S.W.2d 149 (Tex.Civ.App.1932, wr. ref.).

As was said in the Stevens case, supra, p. 151:

“The Workmen’s Compensation Law, in no uncertain terms, creates a cause of action for compensation insurance in favor of the legal beneficiaries of a deceased employee for the death of the employee. That cause of action, for all practical purposes, is separate and distinct from the cause of action for compensation which the same statute just as certainly creates in favor of the injured employee. * * * These causes of action consist largely of common elements. They are each dependent upon the existence of the same accident, the same resulting injury, sustained in the course of employment. The only practical difference is that the employee’s individual cause of action covers the full extent of the injury except his death, and the cause of action of the beneficiaries is for the death only. Notwithstanding the near approach to identity of these two causes of action, they are so distinct that the employee can, by no act or deed, release or affect the cause of action belonging to the legal beneficiaries.” [Emphasis added.]

This language was quoted with approval by this Court in the Baldwin case, supra, and the obvious intent is that no action can be taken by the employee during the period between the injury and the resulting death that would influence in any way, either positively or negatively, the rights of his beneficiaries to collect benefits by reason of his death. The conclusion is inescapable, and we so hold, that the timely filing of the claim for compensation by Adolfo Villa-gomez cannot extend the time for filing a claim for death benefits by his legal beneficiaries beyond the six months from the date of death required by the statute.

Respondents further contend that the letter received by the Industrial Accident Board on July 19, 1955, together with the other papers on file regarding the original injury itself, constitute sufficient notice of death and claim for death benefits to satisfy the statute. It is worthy of note that the original claim for compensation only reported a hand and arm injury, whereas the death claim is based on an alleged head injury. Although the letter advised the board of the death of Adolfo Villagomez, it was not sufficient to constitute a claim in that it failed to relate the cause or circumstances of death and did not purport on its face to be a claim per se. The letter was merely a request for the proper forms and was insufficient to confer jurisdiction on the board. Booth v. Texas Employers’ Ins. Ass’n, supra; Pruitte v. Ocean Accident & Guarantee Corp., 40 S.W.2d 254 (Tex.Civ.App.1931), reversed on other grounds, 58 S.W.2d 41 (Tex.Com.App.1933).

In view of our holding herein it is unnecessary to pass on petitioners’ additional points of error. The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.