author: WERLEIN, Justice.

text:
    Geneva FIELDS, d/b/a Fields Funeral Home, Appellant, v. UNIVERSAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellee.
    No. 15059.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Aug. 31, 1967.
    Rehearing Denied Sept. 21, 1967.
    Dent & Cashin, Herschel B. Cashin, Galveston, for appellant.
    Dibrell, Dibrell & Greer, G. William Rider, Galveston, for appellee.
   WERLEIN, Justice.

This suit was brought by appellee, Universal Life and Accident Insurance Company, in the County Court at Law No. 1 of Dallas County, Texas, against appellant, Fields Funeral Home, and Willie Taylor, and transferred on a plea of privilege to the County Court at Law of Galveston County. The suit was brought by appellee to cancel and rescind and declare null and void ab initio and of no force and effect, that certain life insurance policy issued May 22, 1961, on the life of Emma Taylor. Appellee prayed that it be released and discharged from any liability whatsoever under such policy because of alleged fraudulent representations made by the insured with respect to being in good health and free from the effects of any illness. At the conclusion of the evidence, on ap-pellee’s motion, the trial court withdrew the case from the jury and rendered judgment for appellee, from which judgment appellant, Fields Funeral Home, assignee of Willie Taylor, beneficiary under said policy, has appealed.

Appellant asserts that the trial court lacked jurisdiction over the suit because appellee’s petition put in issue a liability exceeding the court’s jurisdictional limit, since appellee’s liability included not only the $500.00 face value of the policy, but also the entire liability of the insurer both on the policy and under Article 3.62 of the Insurance Code of the State of Texas, V.A.T.S., which provides in effect that where a loss occurs and the life insurance company fails to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of the policy in addition to the amount of the loss, 12% damages on the amount of such loss together with reasonable attorney’s fees for the prosecution and collection of such loss; and which further provides that the court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy.

In the instant case appellee did not plead nor prove that such liability would not exceed the jurisdictional amount of the county court at law. Appellant did not file a cross-action in the case, and there is no pleading or evidence to the effect that appellee’s entire liability would not exceed the sum of $1,000.00. Appellant filed no cross-action to recover the face value of the policy plus statutory penalty and reasonable attorney’s fees, but did file a plea to the jurisdiction of the trial court on the ground that the liability of appellee placed in controversy in the suit was in excess of the jurisdictional amount of the county court at law, and in such plea it alleged that the reasonable fees for services of appellant’s counsel through the trial and all possible appellate steps was in excess of $500.00, and that appellee was seeking to avoid a potential liability in excess of $1,000.00, and hence the trial court lacked jurisdiction of appellee’s cause of action.

Our Supreme Court, in Great American Reserve Insurance Co. v. Britton, 1966, 406 S.W.2d 901, said:

“However, when the insurer files suit to cancel the policy before suit for the policy proceeds is filed, we hold that the entire liability of the insurer, both on the policy and under the statute, is put in issue, and the right of the insurer to require demand as a prerequisite to liability for attorney fees is waived.”

In the recent case of Richardson v. First National Life Insurance Company, 419 S.W.2d 836 our Supreme Court made the following statement:

“The general rule is that the allegations of the plaintiff’s petition must state facts which affirmatively show the jurisdiction of the court in which the action is brought. Brown v. Peters, 127 Tex. 300, 94 S.W.2d 129 (1936); Smith v. Horton, 92 Tex. 21, 46 S.W. 627 (1898); T. & N. O. R. R. Co. v. Farrington (Tex.Com.App.1905), 40 Tex.Civ.App. 205, 88 S.W. 889.”

The county court at law is a court of limited jurisdiction, having concurrent jurisdiction with the district court when the matter in controversy shall exceed $500.00, and not exceed $1,000.00, exclusive of interest. Appellee’s petition fails to state facts affirmatively showing that such court had jurisdiction of appellee’s cause of action. There is nothing in the record to show that the liability of appellee did not exceed the jurisdictional amount of the court, and there is no pleading or proof to such effect. Appellant’s plea to the jurisdiction clearly asserts that appellee’s liability and hence the amount in controversy does exceed the jurisdictional amount of the court.

We are of the opinion that the trial court erred in overruling appellant’s plea to the jurisdiction, and that appellee’s cause of action should have been dismissed for lack of jurisdiction of the County Court at Law.

In view of our holding, it is not necessary to discuss appellant’s other points of error.

The judgment of the Trial Court is reversed and the cause is remanded with instructions to dismiss appellee’s cause of action for want of jurisdiction.


source: Caselaw Access Project

author: CADENA, Justice.

license: Public Domain

text:
    David B. ROCHELLE, Jr., et ux., Appellants, v. Robert I. CARR, d/b/a Robert I. Carr & Son, Appellee.
    No. 14610.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 6, 1967.
    P. Otis Hibler, San Antonio, for appellant.

      W. Pat Camp, Tinsman & Cunningham, San Antonio, for appellee.
   CADENA, Justice.

Plaintiffs, David B. Rochelle, Jr., and wife, Peggy, appeal from the granting of summary judgment in favor of defendant, Robert I. Carr, in a case in which plaintiffs sought to recover damages resulting from defendant’s trespass upon plaintiffs’ land.

Plaintiffs alleged that, on January 31, 1966, they entered into a written contract with Fritz W. Duelm whereby Duelm agreed to sell the land in question to plaintiffs, and that sometime thereafter, probably in March, 1966, but before the execution of the deed by Duelm conveying the land to plaintiffs, defendant instructed one of his employees to go upon the land in question and cut a live oak tree there situated. Attached as an exhibit to defendant’s motion for summary judgment was a copy of an agreement, signed by plaintiffs and Duelm on May 4, 1966, by which the parties released each other from all obligations which might have arisen as the result of the execution of the contract of sale. The agreement recited that such contract “shall be terminated as to all parties thereto and of no force and effect as if said contract had never been executed by the parties thereto.”

We assume that, had the contract of sale been fully performed by the delivery of a deed to plaintiffs, they would be entitled to recover damages resulting from defendant’s wrongful invasion during the interim between the execution of the contract and the delivery of the deed from Duelm to plaintiffs. See Texas & P. R. Co. v. Bullard, 127 S.W. 1152 (Tex.Civ.App., no writ). Plaintiffs contend that a purchaser under an ex-ecutory contract of sale is entitled to recover for such trespass even though, subsequent to the injury to the land, the contract of sale was, by mutual agreement of vendor and purchaser, abandoned and never consummated.

The result reached in Bullard is based on the rule that upon the execution of an enforceable contract for the sale of land, the equitable title passes to the purchaser. This theory, generally referred to as the doctrine of equitable conversion, first saw the light of day in language, probably dicta, of the Chancellor in Paine v. Meller, 6 Ves. Jr. 349, 31 Eng.Rep. 1088 (1801), as a justification for imposing upon the purchaser the risk of loss occurring between the date of the contract of sale and the delivery of the deed to the purchaser. See Cribbet, Principles of the Law of Property, 137, 141 (1962). The doctrine is based upon a fiction masquerading as the hoary maxim, “Equity regards as done that which ought to be done.” The results flowing from a mechanical application of the doctrine are probably as astounding to the layman as the formalistic reasoning by which they are reached is intriguing to the legal theorist. While we admire the mathematical neatness underlying the various applications of the doctrine, we decline to journey further into the land of make believe where such odyssey is not necessary in order to give effect to the supposed intent of the parties to the contract of sale. We cannot impute to a vendor and purchaser an intention that, in case of injury to the premises during the temporal gap between the making of the contract and the delivery of the deed, the purchaser should be entitled to recover damages from the wrongdoer even though the contract, by mutual consent of the vendor and purchaser, is abandoned.

In any event, plaintiffs failed to plead any items of recoverable actual damages. In cases of trespassory damage to trees, the measure of damages is the diminution in the value of the land or, under some circumstances, the value of the trees destroyed or removed. Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932 (1956). Plaintiffs do not seek recovery of damages measured by either of these standards. Their allegations of damage consist of the following: (1) They had paid $100.00 earnest money to the vendor, Duelm, and as a result of the damage to the tree, they decided to abandon the use of the land as a site for their home. We assume that such allegations are intended to express the fact that plaintiffs forfeited the earnest money deposit. (2) Plaintiffs had become indebted to an architect for preparing plans for a home “designed around the live oak tree,” and, because of the damage to the tree, plaintiffs had no choice “but to decide against building their home on said lot.”

It is true that the courts have gone to great lengths in holding trespassers liable for the consequences of their acts. Thus, the trespasser is liable for any visible and tangible damage upon the property itself, although such damage is not the result of any wrong beyond the trespass itself and could not have been reasonably anticipated at the time of the wrongful invasion. Prosser, Law of Torts, 67 (3rd ed., 1964). The same liability has been extended to the person of the owner and to the members of his household. Wardrop v. City of Manhattan Beach, 160 Cal.App.2d 779, 326 P.2d IS (1958). But this does not mean that the trespasser is liable for everything that follows as a result of his trespass. While damages recoverable for trespass are not limited to the foreseeable consequences alone which are recoverable in contract, nor to the natural and probable consequences alone which are recoverable in negligence cases, there must be a limit to the liability of even an intentional trespasser.

We hold that the damages for which plaintiffs seek recovery are too remote to support the imposition of liability therefor upon defendant. See Clark v. Gay, 112 Ga. 777, 38 S.E. 81 (1901), where plaintiff was denied recovery for the loss of the sale value of a house allegedly resulting from the fact that a murder had been committed therein; and Mawson v. Vess Beverage Company, 173 S.W.2d 606 (Mo.App., 1943), where recovery was denied for injuries suffered by a child while attempting to remove a sign tacked on a wall by a trespasser.

Since plaintiffs did not allege any items of recoverable actual damages, their petition cannot form the basis for the recovery of exemplary damages. 17 Tex.Jur.2d, Damages, § 177, p. 243.

The judgment of the trial court is affirmed.


author: CHADICK, Chief Justice.

text:
    Joseph COOK et ux., Appellants, v. OHIO CASUALTY INSURANCE COMPANY, Appellee.
    No. 7847.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 29, 1967.

      Emmett Colvin, Jr., Henry J. Novak, Jr., Clifford S. Dillard, F. T. Gauen, Jr., Dallas, for appellants.
    J. Mike Joplin, Strasburger, Price, Kel-ton, Martin & Unis, Dallas, for appellee.
   CHADICK, Chief Justice.

This is a breach of contract action. On the motion of the defendant, Ohio Casualty Insurance Company, the trial court entered summary judgment that plaintiffs Joseph Cook and wife Capitola Cook and inter-venors H. M. Wigley and wife, Bernice Wigley, take nothing by their suits. The judgment of the trial court is affirmed.

The brief of appellants Joseph and Capitola Cook contains a statement of the nature of the case that appellee Ohio Casualty Insurance Company agrees is substantially correct. Such statement is adopted for the purposes of this appeal and, with reference to pages of the record deleted, is next set out:

“Appellant Joseph Cook and wife, Capitola Cook, filed suit in the 116th Judicial District Court against the Ap-pellee herein, Ohio Casualty Insurance Company, alleging as a cause of action a breach of contract by Appellee for its refusal to defend a lawsuit under the terms of an insurance policy issued by Appellee to Appellant Cook and wife, and seeking to recover the amount of the judgment rendered against them in said lawsuit, Two Thousand Nine Hundred Fifty Dollars ($2,950.00), plus interest on such amount of six per cent (6%), and attorney’s fees of Five Hundred Dollars ($500.00). Appellee denied generally the allegations of Appellant’s Original Petition. Thereafter, H. M. Wigley and wife, Bernice Wigley, Plaintiffs in the lawsuit against Appellant Cook and wife, and holders of the unsatisfied judgment for Two Thousand Nine Hundred Fifty Dollars ($2,950.00) plus six per cent (6%) interest, intervened and prayed for priority to the extent of their judgment against Appellant Cook and wife of any funds recovered by said Appellant in the instant lawsuit.
“The facts, which were stipulated reflect that demand was made on Appellee to defend the Wigley suit and that Appellee refused.
“Appellee filed a Motion for Summary Judgment, supported by affidavit. The affidavit, sworn to by a member of Appellee’s Claims Department, alleged that such claims agent was told by Capitola Cook that she and her husband lived with her mother and shared expenses ; that at the time of the accident, she was driving her mother’s 1953 Studebaker; that she had her mother’s permission to drive the Studebaker ; and that her husband had the 1957 Ford.
“The Motion in support of the allegation therein that no material issue of fact in controversy existed, set forth portions of Policy No. 270-86-91, issued to Appellant Cook and wife, which reflected that Appellee would not be liable to pay for damages which Mr. and Mrs. Cook became legally obligated to pay if such damages were incurred when one or the other of them were driving an automobile owned by a relative who was a resident of the same household.
“Mr. and Mrs. Cook filed no motion and/or affidavit controverting Appellee’s Motion for Summary Judgment.
“The trial court sustained the motion for Summary Judgment, and entered judgment thereon.”

Regardless of the merit of the claim, an insurer has the duty to defend the insured in a suit on a claim the insurer, if the claimant prevails, is obligated by the insurance contract to pay on behalf of the insured, when, as in this case, the liability insurance policy contains a provision giving the insurer exclusive control of the defense of all such suits against the insured. See 50 A.L.R.2d Anno.: Liability Insurer— Duty to Defend, § 1. The parties recognize the foregoing as an accurate general statement of law. The appellants rely for reversal in this appeal, however, on a correlated proposition that the insurance company’s duty to defend is determined by reference only to the insurance policy and the claimant’s petition, that is, in this case, the petition of H. M. and Bernice Wigley as plaintiffs in the case referred to in the quotation from appellee’s brief, wherein Joseph and Capitola Cook are defendants. The appellant insurance company defends on the theory that it did not refuse to defend the Wigleys’ suit because such suit was based on a groundless, false, or fraudulent claim, but because the insurance contract between it and the Cooks excluded from coverage any liability Mrs. Cook incurred while driving her mother’s automobile.

The fact that Mrs. Capitola Cook was driving her mother’s automobile at the time of the collision with the Wigley vehicle appears by stipulation on file and in the affidavit attached to the insurance company’s motion for summary judgment. The lawsuit referred to herein styled Wigley v. Cook was filed in the same district court where the case under review was pending, but neither the petition in Wigley v. Cook nor a certified copy of it was at-, tached to the motion for summary judgment. The trial court could not take judicial notice of it in the summary judgment proceeding. Gardner v. Martin, 345 S.W.2d 274 (Texas 1961). The instrument was not before the trial court by virtue of any authorized procedure, although it was filed as a part of the record in this court in a supplementry transcript requested by counsel for all parties. Ohio Casualty Insurance Company asserts that the affidavit filed with its motion for summary judgment and the stipulations on file must be considered, and when considered, the Wigley claim is conclusively shown to be excluded from the coverage of the insurance contract. The issue before this court narrows to a question of whether or not the facts shown by the mentioned affidavit and stipulations may be considered in determining the insurer’s duty to defend.

In the recent case of Heyden Newport Chemical Corporation v. Southern General Insurance Company, 387 S.W.2d 22 (Texas 1965), the Supreme Court says: “We think that in determining the duty of a liability insurance company to defend a lawsuit the allegations of the complainant should be considered in the light of the policy provisions without reference to the truth or falsity of such allegations and without reference to what the parties know or believe the true facts to be, or without reference to a legal determination thereof.” In Maryland Casualty Company v. Moritz, 138 S.W.2d 1095 (Tex.Civ.App.-Austin 1940, writ ref’d), it is said: “* * * in testing the liability of the insurer to defend, the proof is not material. Liability depends upon the allegations of the plaintiff’s petition.” In disposing of that case, the court said: “The only issue before us is whether the allegations above quoted, if taken as true, were sufficient to state a cause of action against Moritz coming within the terms of the policy. If so, it was the duty of appellant, under its policy, to defend the suit.” But the opinion in the more recent case of International Service Insurance Company v. Boll, 392 S.W.2d 158 (Tex.Civ.App.-Houston 1965, writ ref’d, n, r. e.) exhibits a situation in which the duty to defend is not determined exclusively from the allegations of the claimant’s petition (in a cross-action).

The appraisal here made of the Boll case and its nature is based upon recitations in the Court of Civil Appeals’ opinion that the claimant’s (cross-plaintiff) pleadings alleged that Bastiaan Boll’s vehicle was operated by Bastiaan Boll’s son at the time of a collision, but did not state the son’s name. An exclusion endorsement relied on by the insurer excluded from the coverage of the policy any claim arising as a result of the operation of the vehicle by Roy Hamilton Boll, but did not describe or identify Roy Hamilton Boll as the son or only son of Bastiaan Boll. The parties stipulated the crucial fact that Roy Hamilton Boll was the only son of Bastiaan Boll. The fact that Roy Hamilton Boll was the only son of Bastiaan Boll was necessarily considered in determining the duty of the insurer to defend, and the source of this information was a stipulation on file, not an allegation in the claimant’s petition. The opinion, referring to Bastiaan Boll, says: “ * * * the claim arose out of an accident when his automobile was being driven by his son. He knew he had only one son, and he knew the terms of the endorsement relied on by the company.” The basis for the court’s stated conclusion was in the stipulation, as no allegation of such fact was in the claimant’s petition. In Heyden and Moritz the position of the insurer was that the claim asserted against the insured was groundless. In Boll the insurer’s position was that the policy excluded from its coverage any liability incurred by Bastiaan Boll resulting from his son, Roy Hamilton Boll, operating the insured vehicle.

Unless the Boll case is misapprehended or the writ action by the Supreme Court is based on something not disclosed in the Civil Appeals’ Court opinion, it is evident that the Supreme Court regarded Heyden as distinguishable from Boll, and countenanced in the latter a consideration by the trial court of facts ascertained from a source other than the claimant’s petition when the trial judge determined the insurer’s duty. These two decisions suggest that the Supreme Court draws a distinction between cases in which the merit of the claim is the issue and those where the coverage of the insurance policy is in question. In the first instance the allegation of the petition controls, and in the second the known or ascertainable facts are to be allowed to prevail. It is recognized that the character of writ action in Boll deprives it of value as a precedent, yet the question for decision in the case under review so nearly resembles that decided in Boll that this court is persuaded that its decision should be in harmony with Boll. The judgment of the trial court is affirmed.


author: HUGHES, Associate Justice.

text:
    GREAT AMERICAN RESERVE INSURANCE COMPANY, Appellant, v. Mrs. Homer L. FRY, Appellee.
    No. 11529.
    Court of Civil Appeals of Texas. Austin.
    Sept. 20, 1967.
    Rehearing Denied Oct. 4, 1967.
    Brundidge, Fountain, Elliott & Churchill, L. E. Elliott, Ralph D. Churchill, Dallas, for appellant.
    Sneed & Vine, J. P. Darrouzet, Austin, for appellee.
   HUGHES, Associate Justice.

This suit was by Mrs. Homer L. Fry, ap-pellee, to recover the proceeds of a group life insurance policy issued by Great American Reserve Insurance Company, appellant, under the provisions of Art. 5421m, Sec. 16 (B), Vernon’s Tex.Civ.St.Ann., insofar as is pertained to and covered her deceased husband, Homer L. Fry.

Summary judgment for the amount sued for was rendered for appellee, except as to attorney’s fees, the claim for which was severed.

The facts are undisputed. They are :

In 1962, the Legislature enacted Art. 5421m, 16(B) authorizing group life insurance coverage cancelling the indebtedness of purchasers of land under the Veteran’s Land Program (Art. 5421m, V.T.C.S.).

We copy the relevant portions of this Article :

“Sec. 16(B). The Board may enter into a master contract or agreement with one or more life insurance companies authorized to do business in Texas to provide group life insurance coverage can-celling upon death the indebtedness due the Board of persons purchasing land under the Texas Veterans Land Program. Such contract shall not prohibit cancellation by the insurer of the entire contract upon reasonable notice to the Board but shall prohibit cancellation of individual coverage except as hereinafter expressly authorized. The master contract or agreement shall provide, in addition to those provisions of Article 3.50 of the Insurance Code of the State of Texas, that the life insurance coverage will be offered by the writing insurance company or companies to all such persons without a physical examination and that no such person shall be denied coverage because he is disabled at the time of application for such coverage. The policy contract shall express and control the contractual relationship between all parties thereto and shall be approved by the State Board of Insurance in accordance with the provisions of the Insurance Code of Texas, as amended. It shall not be mandatory that any person purchasing land under the Texas Veterans Land Program accept the offer of such coverage, and refusal by such person to accept the offer of such coverage shall not be a ground for the Board to decline to enter into a contract of sale and purchase with any such person. Such coverage shall be terminated as to any person of the group upon: (1) the satisfaction of the indebtedness due the Board; or (2) upon the Board’s approval of a transfer of interest in the land being purchased from the Board; or (3) upon failure to make timely payment of the premium to be paid for such coverage ; such master contract may provide that coverage will terminate upon the person purchasing land under the Texas Veterans Land Program attaining the age of sixty-five (65) years.”

The program for group life insurance as authorized by the above article commenced on November 1, 1963, and pursuant to such statute appellant issued its Master Policy No. 686. This policy contained these provisions :

“SECTION 1. DEFINITIONS

a. ‘ELIGIBLE PERSON’ shall mean any person or persons, and his or their successors or assigns, who are buying land from the Veterans’ Land Board under contract of sale and purchase, whether such land has been sold under Section 12, Section 16, or Section 19 (a) of the Texas Veterans’ Land Act, Article 5421m, V.T.C.S., who has not attained the age of 65 on the date on which he would otherwise be eligible. * * *
SECTION 3. TERMINATION OF INSURANCE
The insurance on any INSURED PERSON shall continue in force until the earliest of the following dates: * * *
d. the next PREMIUM DUE DATE following his or her 65th birthday. * *
SECTION 9. MISSTATEMENT OF AGE
If a premium is paid on a PERSON over age 65, the Insurance Company shall have no liability on account of such over-age PERSON and all premiums paid for such over-age PERSON shall be refunded. * * *
SECTION 14. PREMIUM RATE, ADJUSTMENT OF PREMIUM RATE, AND COLLECTED PREMIUM * *
c. ALL PREMIUMS shall be collected by the Veterans’ Land Board and shall be paid by all INSURED PERSONS to the Veterans’ Land Board at its offices in the General Land Office in Austin, Travis County, Texas.
The Veterans’ Land Board shall retain three percent (3%) of all premiums collected for administrative services and shall pay the balance to the Insurance Company at its Home Office in Dallas, Texas within forty-five (45) days after its date of receipt by the Veterans’ Land Board. Such balance shall be known as the COLLECTED PREMIUM.
Administrative services shall include the issuance and mailing of information about the insurance to new ELIGIBLE MEMBERS, issuance and mailing of certificate of insurance, issuance and mailing of premium notices, and collection of PREMIUMS. Information forms and certificate forms shall be furnished by the Insurance Company at its expense.”

On May 1, 1963, appellant issued Certificate No. 3839, to Homer L. Fry, the “insured person,” the initial coverage being for $5,834.77. We quote from this Certificate:

“An Insured Person shall mean any person buying land from the Veterans’ Land Board of the State of Texas under Contract of Sale and Purchase, whether such land has been sold under Section 12, Section 16, or Section 19(a) of the Texas Yeterans’ Land Act, Article 5421m, V T.C.S., who has not attained the age of 65 at the date hereof, and who has accepted insurance in accordance with the terms of the Group Policy issued to the Veterans’ Land Board of the State of Texas. * * *
The insurance on any Insured Person shall continue in force until the earliest of the following dates: * * * (d) the next Premium Due Date' following his or her 65th birthday.”

Sometime prior to January 3, 1963, the Veterans’ Land Board sent out brochures and a “group waiver card” to all purchasers of land under the Veterans’ Land Program. On January 3, 1963, the General Land Office received the “group waiver card” signed by Homer L. Fry indicating that he was not interested in the insurance program. Homer L. Fry did not make any application for insurance under this program; nor did he ever receive the original or a copy of the said Master Policy No. 686. On March 30, 1963, appellant agreed in writing to extend the program sixty (60) days from May 1, 1963, and Jerry Sadler, Commissioner of General Land Office, pursuant thereto, sent out a notice to all land purchasers. In April, 1963, Homer L. Fry began payment of the premium on said insurance. He paid his premiums from May of 1963 through October 1, 1965; each premium was a semi-annual premium paid in advance; the same were applied through the premium due date of 11/1/65. Homer L. Fry died on December 21, 1965. Appellee is his widow, and is the sole beneficiary under his probated will.

Homer L. Fry was born January 18, 1894.

Appellant had no knowledge of the age of Mr. Fry, nor that premiums were being paid by him until January 14, 1966, on which date it notified the Land Board that credit was due for these premiums and that they should be refunded.

Art. 3.50, Sec. 2, Texas Insurance Code, Vol. 14, V.T.C.S., referred to in Art. 5421m, 16 (B), supra, provides that á group life insurance must contain the following provision or one just as or more favorable to the policyholder:

“A provision that the validity of the policy shall not be contested, except for nonpayment of premiums, after it has been in force for two (2) years from its date of issue;”

By force of Art. 5421m, 16 (B) this provision of Art. 3.50, supra, is incorporated in Art. 5421m 16 (B) and in policies issued thereunder.

The principal question presented is whether under the facts, the incontestable clause prevents appellant from defending this suit on the ground that Mr. Fry was uninsurable because of age when he commenced payment of premiums and when the Master Policy and Certificate No. 3839 were issued.

It is our opinion that neither the policy nor the certificate ever became effective as to Mr. Fry, and that the incontestable clause never became operative.

The policy and certificate exclude coverage of persons over 65 years of age even though they are otherwise eligible under the law.

Appellee does not question this statement, but predicates her right to recover under the incontestable clause.

There is a distinction between contesting the validity of an insurance contract and contesting its coverage, meaning or application.

Here, appellant is not contesting the validity of the Master Policy issued by it. Rather, it is insisting upon observance of its terms and upon compliance with the statute under which it was issued. This is not a contest of the policy within the meaning of the incontestable clause. The following authorities support this conclusion. Mainer v. American Hospital and Life Ins. Co., 371 S.W.2d 717, Tex.Civ.App. Austin, writ ref. n.r.e., Guardian Life Ins. Co. of Texas v. Galoostian, 155 S.W.2d 396, Tex.Civ.App., Eastland, writ dism. w.o.m.; Southwestern Life Ins. Co. v. Houston, 121 S.W.2d 619, Tex.Civ.App. Fort Worth, writ ref.; Texas Prudential Ins. Co. v. Wiley, 80 S.W.2d 1024, Tex.Civ.App. Beaumont, writ dismissed.

Appellee cites numerous Texas cases which she concedes are persuasive only, not being directly in point. We have considered the holdings in these cases and do not find them sufficiently persuasive to cause us not to follow the principles and decisions noticed above.

Appellee cites Ford v. United Life and Accident Insurance Company, 107 N.H. 114, 218 A.2d 67, and McDaniel v. Insurance Company of Oregon, 243 Or. 1, 410 P.2d 814, as being in point.

In Ford the group creditor insurance policy involved provided that to be eligible the debt insured must be payable before the debtor became 70 years of age. The policy was issued on the mistaken belief that the debtor was 45 rather than 46 years of age. The last installment of the debt actually was scheduled to be paid after the debtor became 70, although not so intended. The Court permitted reformation of the policy to schedule the debt payments based on the true age of the debtor and so as to mature before he reached age 70.

In McDaniel the group creditor insurance policy provided that debtors to be eligible must be of certain age and in “good health,” and that the “validity of the policy or of any life insurance claimed hereunder shall not be contestable.” Although the debtor was not in good health when the policy was issued, the Court held, in the absence of fraud, it was enforceable.

These cases are, of course, not in point on the facts. Our decision involves a statute and a policy written and issued under authority of the statute. It is distinctive in this respect and cannot be controlled by decisions not involving similar statutes.

It is our opinion that the provisions as to age appearing in the policy and certificate are clearly authorized by the statute under which they were approved and issued. If, because of the incontestable clause, they are not to be enforced, the statute which authorized them becomes a dead letter and an open invitation to fraud.

Appellee seeks to reform the insurance contract as to its age provisions so as to make it conform to the statute under which it was issued. We overrule this request on the ground that the provisions of the policy as to age were written in accordance with the statute.

The judgment of the trial court is reversed and judgment is here rendered for appellant.


author: CLEMENS, Commissioner. PER CURIAM. PER CURIAM.

text:
    ROL MILLER & SONS, INC., a Corporation, Plaintiff-Appellant, v. SCHULTZ PRODUCTS COMPANY, d/b/a the Schultz Company, Defendant-Respondent.
    No. 32594.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.
    Rehearing Denied Sept. 13, 1967.

      R. Richard Straub and Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for appellant.
    Norman Zaltsman, Clayton, for respondent.
   CLEMENS, Commissioner.

The plaintiff corporation got a $5,148.14 verdict and judgment against the defendant corporation for sales commissions and merchandising work. The trial court granted defendant’s motion for new trial on the ground it had admitted testimony contrary to the best evidence rule. The plaintiff appeals.

The briefs bring up two related questions : Where copies of plaintiff’s letters to defendant were identified and erroneously admitted in evidence, but were not read or shown to the jury, was the error prejudicial? And where copies of plaintiff’s bills to defendant were compiled from plaintiff’s original records that were not before the court, was it error to admit the bills in evidence and let them be read to the jury?

Plaintiff’s petition had two counts. By Count I plaintiff claimed that defendant manufacturer had hired plaintiff to sell defendant’s detergents on a commission basis, and that plaintiff had earned $907.75 more than defendant had paid. By Count II plaintiff claimed that the defendant’s detergents had been improperly packaged, that defendant promised to pay plaintiff the reasonable value of its work in repackaging the products, and that the reasonable value was $3,754.75. Defendant answered each count by a general denial.

Since the only issues on this appeal concern the admission of plaintiff’s documentary evidence, a brief statement of the evidence will suffice as a basis for our rulings.

The defendant had recently begun to make household detergents, but had no sales force. The plaintiff was a sales broker, selling manufacturers’ products primarily to chain grocery stores. Plaintiff and defendant orally entered into a working arrangement whereby plaintiff became defendant’s sales representative — plaintiff to be paid a percentage commission on sales. This arrangement started in May of 1962 and lasted until August of 1964, when it was terminated by agreement. Plaintiff’s president, Rolland Miller, testified from original records that the amount of commission earned but unpaid was $907.75, the amount sought by plaintiff’s Count I.

In support of Count II plaintiff showed that in mid-1963 retailers began complaining to plaintiff about defective packaging of defendant’s products: bottles were not full, liquid detergents were of poor quality, and packages of solid detergents broke upon the shelves. Plaintiff told defendant of the complaints and they discussed a solution. At the defendant’s request — and upon its promise to pay plaintiff’s expenses estimated at $3 to $4 per man-hour plus automobile expenses — plaintiff’s employees refilled and replaced bottles, and taped, refilled and relabeled boxes. This work continued for several months at many stores and plaintiff claimed its expense was $3,-754.75, the amount sought by plaintiff’s Count II.

After the verdict and judgment for plaintiff for the full amount of each count, including interest, the trial court granted defendant’s after-trial motion “upon grounds No. 5, that the Court erred in allowing secondary evidence to be admitted by plaintiff without first requiring plaintiff to support the introduction of secondary evidence by showing that the primary evidence was not available.”

This referred to plaintiff’s exhibits 3, 4, 10, 12, 13, 14 and IS — copies of letters plaintiff claimed to have written defendant. (Bills were attached to letter exhibits 10, 12 and 14, and we will deal separately with these bills, designating them later as 10A, 12A and 14A.) The letters concerned the termination of the parties’ commission arrangement, the amount of sales commissions claimed, and the extent and cost of plaintiff’s work on defective merchandise. Plaintiff’s president, Rolland Miller, merely identified each exhibit as a copy of a letter he had written; he did not disclose the contents. There was no evidence about mailing the letters. (As to the necessary foundation for introducing copies of letters, see Miller v. John Hancock Mut. Life Ins. Co., Mo.App., 155 S.W.2d 324 [10-17].)

At the close of plaintiff’s case the letters were received in evidence over the defendant’s objections that no foundation had been laid for introducing secondary evidence. Each objection was overruled. Although the letters were “received in evidence,” none was read or shown to the jury.

The parties have briefed and argued several points about the court’s admitting the letter copies: the need to demand production of the originals; whether a carbon copy is a “duplicate original”; the need for foundation evidence of mailing; whether some of the letters were admittedly received; and whether the letters concerned collateral matters. We need not resolve these issues since we have decided that any error in admitting these copies into evidence was harmless to the defendant. This, because none of the letters was read or shown to the jury nor were the contents otherwise disclosed. It is a basic judicial principle that a trial court should grant a new trial for an error only when that error harmed the complaining party. This being so, it logically follows that a new trial should be granted for erroneously admitting evidence only when that evidence has harmed the party who claims error. McDonald v. Heinemann, Mo.App., 141 S.W.2d 177 [5-7], and Kirst v. Clarkson Construction Co., Mo.App., 395 S.W.2d 487 [24-26]. Here the defendant was not harmed, because the contents of the letters reached neither the eyes nor ears of the jury. This principle has been applied to similar cases; see Robison v. Chicago Great Western R. Co., Mo.App., 66 S.W.2d 180 [16], and Gieske v. Redemeyer, Mo.App., 224 S.W. 92 [8].

This ruling disposes of the defendant’s complaint about the letters. As said, we deal separately with exhibits 10A, 12A and 14A — the bills attached to letter exhibits 10, 12 and 14.

Exhibit 10A concerned Count I. It was an itemized bill for plaintiff’s $907.-75 commission account. In separate columns the bill showed the date, customers’ names, defendant’s invoice numbers, and the amounts of sales and commissions. When plaintiff’s president identified this bill he read to the jury the total amount of commissions, $907.75. This, over defendant’s objection that the bill was not an original record. It was not, but an adequate foundation had been laid: the witness identified exhibit 11 as a group of carbon copies of the defendant’s own invoices for each sale on which plaintiff claimed a commission; he also identified exhibit 2, plaintiff’s original ledger sheets kept under his supervision contemporaneously with the original transactions. The use of a summary is proper under those circumstances. State ex rel. Sullivan County v. Maryland Casualty Co., 334 Mo. 259, 66 S.W.2d 537 [4,5], and Bolling Company v. Barrington Company, Mo.App., 398 S.W.2d 28 [6]. The court did not err in permitting plaintiff’s president to testify from exhibit 10A.

We hold that the trial court did not commit prejudicial error in admitting the exhibits discussed. So, it was error to grant a new trial on ground No. 5 concerning copies of original documents, and plaintiff is entitled to its $907.75 judgment plus interest on Count I.

This conclusion disposes of the only point raised by the plaintiff-appellant. But it does not dispose of the appeal, because the defendant-respondent defends the grant of a new trial on another ground— one not assigned by the trial court but one that was raised in respondent’s after-trial motion. This a respondent may do. Kirst v. Clarkson Construction Co., supra, at 395 S.W.2d 1. c. 490 [3],

In its after-trial motion, and here, the defendant contends the trial court should have granted a new trial on the further ground that it “erred in allowing Plaintiff to testify from summaries as to the amount allegedly owed Plaintiff by Defendant without first requiring Plaintiff to bring into the Court for examination and cross-examination by Defendant the original books of record from which the said summaries were allegedly taken.” This claimed error concerns exhibits 12A and 14A, the copies of plaintiff’s bills by which plaintiff sought to prove Count II for its work on defendant’s defective merchandise.

As said, plaintiff had pleaded — and defendant had denied — that this work was done at defendant’s request and that defendant had agreed to pay plaintiff the reasonable value of the work. So, both the quantity of work and its value were in dispute. Plaintiff tried to prove both facts by introducing copies of two bills it had sent the defendant, exhibits 12A and 14A. Mr. Miller read to the jury the amount of each bill, $1,250 and $2,504.25, over defendant’s repeated objections that the bills were mere compilations: secondary evidence with no primary evidence to support them.

We summarize Mr. Rolland Miller’s testimony about these exhibits: He prepared the $1,250 bill, exhibit 12A, for work done on defective merchandise before June 1, 1963. He said nothing about either the hours of work or rate of pay, nor was the $1,250 amount otherwise explained. He also prepared the $2,504.25 bill, exhibit 14A, for work from June 1963 to February 1964. Mr. Miller said only that he had made up exhibit 14A from the daily work reports each of his salesmen regularly turned in to his office. Thus, to make its case on Count II plaintiff relied entirely on exhibits 12A and 14A. These bills were no more than copies of self-serving declarations of what Mr. Miller had previously said out of court about the quantity and value of the claimed work. The bills were therefore inadmissible, and the court erred in admitting them and permitting witness Miller to read from them. Weller v. Weaver, 231 Mo.App. 400, 100 S.W.2d 594 [10]; Miller v. John Hancock Mut. Life Ins. Co., supra, at 155 S.W.2d 1. c. 327 [8]; Associates Discount Corp. v. Renderer, Mo.App., 199 S.W.2d 56 [1-2],

Not all errors are prejudicial, but these were. It is often held that incompetent evidence is prejudicial unless shown to be harmless. Oftentimes it is considered harmless when it is merely cumulative; but not so when the incompetent evidence is used by the prevailing party to prove a material point not otherwise established. That is just what we see here. Aside from exhibits 12A and 14A, there was no other substantial evidence of either the quantity or reasonable value of the work alleged in Count II. So the error was prejudicial. Schears v. Missouri Pacific R. Co., Mo. (banc), 355 S.W.2d 314 [2]; and compare Fountain v. Wabash R. Co., 114 Mo.App. 683, 90 S.W. 395. For this reason there must be a new trial on Count II. We have ruled, however, that there was no error pertaining to Count I for brokerage commission. Accordingly, the order granting defendant a new trial will be reversed as to Count I and affirmed as to Count II. The cause will be remanded with instructions that plaintiff’s $980.37 verdict on Count I shall be held in abeyance, as of February 7, 1966, pending disposition of Count II.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the order granting defendant a new trial is reversed as to Count I and affirmed as to Count II; and it is ordered that the cause be remanded with instructions that plaintiff’s $980.37 verdict on Count I shall be held in abeyance, as of February 7, 1966, pending disposition of Count II.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Plaintiff’s motion for rehearing, or to amend so as to remand with instructions that the new trial of Count II be limited to the amount plaintiff is entitled to recover, is considered and denied; and on the Court’s own motion it is ordered that our Per Curiam order of July 18, 1967, be and same hereby is amended by adding the following sentence: “The new trial on Count II of plaintiff’s petition shall be limited to the issue of the amount plaintiff is entitled to recover.”


author: CULLEN, Commissioner. PALMORE, Judge. OSBORNE, Judge.

text:
    John PARKS, Appellant, v. Rhea Mynatt PARKS, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    Donald D. Harkins, Begley & Harkins, Danville, for appellant.
    No counsel 'for appellee.
   CULLEN, Commissioner.

In this action John Parks sought annulment of his marriage to Rhea Mynatt Parks. The relief was denied and John has appealed.

Our statute, KRS 402.030, authorizes a court having equity jurisdiction to “declare void any marriage obtained by * * * fraud.” John alleged fraud in that Rhea falsely represented to him that she was pregnant. His undisputed testimony was that as a college student he became a boarder in the home of Rhea’s mother; at Rhea’s invitation he spent a weekend with her at Myrtle Beach, where they commenced having sexual relations on a basis of mutual desire; thereafter for a period of almost a year they engaged in sexual intercourse at frequent intervals at Rhea’s home; she then asserted she was pregnant and threatened him with expulsion from college and with punitive civil and criminal action if he would not marry her. John married her and after they had lived together for only a week he discovered that she was not pregnant and she then admitted that she never had any reasonable cause to believe she was pregnant, that she had represented she was pregnant for the sole purpose of inducing John to marry her. John thereupon left Rhea.

As shown by the annotation in 15 A.L.R. 2d at pages 726 to 728, and by the text in 4 Am.Jur.2d, Annulment of Marriage, sec. 41, pp. 467, 468, a number of states have held that a false representation of pregnancy upon which the husband was induced to marry is not a ground for annulment. The circuit court in the instant case adopted that view. The reasoning of the cases taking that view seems to involve a mixture of two concepts, one being that since premarital sexual intercourse is illegal the man who engages in it, being in pari delicto, may not complain to the courts of any misconduct of the woman growing out of it, and the other being that any single man who engages in sexual intercourse with a single woman owes a social obligation to marry her.

We are not convinced that the reasoning of those cases is sound. Since the claimed social obligation to marry arising from mutually voluntary sexual intercourse is nowhere considered a basis for any affirmative legal relief, we do not see how or why it should furnish a justification for fraud. As concerns the pari de-licto theory we do not believe that the pari delicto doctrine contemplates that the fact that two persons have engaged in an illegal act will forever preclude each from obtaining any equitable relief from fraud of the other simply because the fraud was made possible by reason of the illegal act. The courts should weigh the substance of the right asserted by the plaintiff against the transgression claimed to foreclose it. 27 Am.Jur.2d, Equity, sec. 141, p. 677.

The Supreme Court of Wisconsin has approved the granting of annulment in circumstances such as here presented. See Masters v. Masters, 13 Wis.2d 332, 108 N.W.2d 674. In accord is New York. See, Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63, 63 L.R.A. 92. We concur in the following reasoning of the Wisconsin Court in the Masters case (108 N.W.2d at 677, 678):

“The argument that the parties stand in pari delicto was advanced by the defendant wife in Winner v. Winner, supra, and was rejected by this court. With respect to such contention the opinion pointed out that such intercourse constituted a mere misdemeanor. We are of the opinion that the punishment inflicted by denying an annulment in cases of this kind is out of all proportion to the offense committed. In so holding, we do not condone in the least the plaintiff’s infraction of the moral code. Furthermore, by refusing an annulment the plaintiff would not be punished for the illicit intercourse, but rather for his laudable conduct in seeking to rectify a wrong he believed would result unless he did marry the defendant. There may be aggravated situations in which the doctrine of in pari delicto ought to be applied, such as was present in Gondouin v. Gondouin, 1910, 14 Cal.App. 285, 111 P. 756, in which the man induced the woman to submit to intercourse by his promise to marry her. This is not such a case.
“Whether to apply the doctrine of in pari delicto poses a question of public policy. The lone justification which we can perceive for here invoking such doctrine is that it might act as a future deterrent to unmarried persons engaging in illicit intercourse. If the thought of the unpleasant consequences, which are likely to befall the male participant should pregnancy result, or the fear of a criminal prosecution for fornication, are insufficient to deter him, we doubt very much that the example which would be afforded by denying an annulment in the instant fact situation would be any more effective. On the other hand, to deny an annulment would reward the defendant for a palpable fraud and punish the plaintiff for being victimized thereby in an effort on his part to right a wrong, which he was induced by the fraud to think would result if he did not marry the defendant. When the competing policy factors are so weighed, the scales of justice tip in but one direction. Therefore, we refuse here to apply the principle of in pari delicto.”

The pleadings and proof in this case show a clear case of fraud, accompanied with some coercion. It is our opinion that in these circumstances the plaintiff is entitled to an annulment.

The judgment is reversed with directions for the entry of judgment in conformity with this opinion.

All concur except OSBORNE, J., who dissents.

CONCURRING OPINION

PALMORE, Judge.

I agree with the viewpoint expressed in the dissenting opinion to the extent that a false claim of pregnancy should not be grounds for an annulment if it was made honestly. As I understand this case, however, the evidence demands a finding that the appellee’s claim of pregnancy was fraudulent — that is, known by her to be untrue at the time she made it. On that basis I concur in the majority opinion.

DISSENTING OPINION

OSBORNE, Judge.

I see no fraud here. Appellant and ap-pellee were having sexual intercourse on a regular and frequent basis. Appellee thought she was pregnant and went to a doctor who confirmed her fears. She then confronted appellant with this fact and he agreed to marry her. After the parties were married they lived together for some time as man and wife in another state prior to appellant leaving and returning to his home in Kentucky. It was while they were living together as man and wife that it was discovered that appellee was not pregnant.

The only question before this court is: Is a false claim of pregnancy sufficient grounds for the annulment of a marriage? The majority rule is that it is not. See Nelson, Divorce and Annulment, 31.40, wherein the rule is stated to be:

“Misrepresentations with respect to the existing pregnancy of a woman who has had premarital intercourse with her husband fall into two categories: (1) That she was pregnant as a result of such intercourse though in fact she was not pregnant, and (2) that she was pregnant as the result of intercourse with her husband though in fact she was pregnant by another man.
“Generally, where the parties have had illicit intercourse, their marriage will not be annulled because the woman falsely represented that she was pregnant, and thereby induced or persuaded the man to marry her. Clearly, ground for annulment is not established where she falsely claimed to be pregnant three or four days after their first act of intercourse and threatened to commit suicide unless he married her. Nor will the marriage be annulled where he continued to cohabit with her after discovering that she was not pregnant.”

Madden states the rule as follows:

“If the man is induced to marry the woman by her false representation that she is pregnant by him, when in fact she is not pregnant at all, the fraud is not ground for annulment.” Madden, Persons and Domestic Relations, page 15.

Most states refuse annulment even where the wife is pregnant by another man if the husband has had premarital relations with her. See 4 Am.Jur.2d 467, § 39.

“A man cannot have a marriage annulled because his wife is pregnant by him at the time of the marriage, and an annulment will be denied to the husband where he marries without knowledge of his wife’s pregnancy if prior to the marriage he had sexual relations with her. But where the wife is pregnant at the time of the marriage by one other than the husband, some courts hold this to constitute matrimonial incapacity so as to justify the annulment of the marriage but others have taken a contrary position. Some statutes expressly make prenuptial pregnancy by a third person a ground for divorce or annulment of a marriage, but if the husband knew of the prenuptial pregnancy it is no ground for annulment.”

This rule is also stated in Corpus Juris Secundum:

“Where a man marries in reliance on the false representation of the woman that she is pregnant by him, he may not have the marriage set aside. A fraudulent concealment of pregnancy by another man may invalidate the marriage, although in a number of jurisdictions this relief will not be granted where complainant had previously had illicit relations with the woman.” 55 C.J.S. Marriage § 34, p. 873.

It is regretable that this court should see fit to further weaken the institution of marriage in a time when it needs all the support and strength that can be mustered upon its behalf. The majority opinion purports to follow an established rule of law when there is no rule. The Wisconsin case, Masters v. Masters, 13 Wis.2d 332, 108 N.W.2d 676, constitutes a departure from the rule. The Di Lorenzo case cited in the majority opinion from New York was not in point. There the girl represented a child as being the plaintiff’s. After the marriage she admitted it was the offspring of another couple. This is not a case of a false pregnancy. The New York rule may be found in Donovan v. Donovan, 147 Misc. 134, 263 N.Y.S. 336, and Garfinkel v. Garfinkel, 9 A.D.2d 98, 191 N.Y.S.2d 574. The court in the Donovan case in commenting upon the Di Lorenzo case had this to say:

“When the plaintiff was accused, as he alleges, of being the father of an unborn child, if he was innocent he was called upon by every dictate of self-respect to deny the charge, and, if guilty, he should not be relieved from the subsequent solemn contract of marriage because the prospective mother did not give birth to a child.
“The foregoing is written with the case of Di Lorenzo v. Di Lorenzo, 174 N.Y. 467, 67 N.E. 63, 63 L.R.A. 92, 95 Am.St. Rep. 609 before me. The facts in the Di Lorenzo Case are so different from the facts in the case before me as to have no application to the instant case. In the Di Lorenzo Case the defendant fraudulently, during the plaintiff’s absence from the state, procured a child, representing to the plaintiff that the child was his, while in fact she had not given birth to any child.
“To allow an annulment upon the facts in the instant case would open up a new field for people inclined to throw off the relation and responsibility of a sacred contract upon which the basis of our society rests.”

The rule is well settled and for all practical purposes unanimous that a false claim of pregnancy will not support an action for annulment if the parties have in fact been engaging in premarital sexual intercourse. It is clearly stated in 15 A.L.R.2d 726, § 12 as follows:

“The courts are in general agreement that there may be no annulment where the parties have had sexual intercourse and the man marries the woman upon her representation that she is pregnant, even though it later appears that the representation was false, the general feeling being that the plaintiff has created his own dilemma and has no right to expect the courts to extricate him from it. Alabama, Mobley v. Mobley (1943) 245 Ala. 90, 16 So.2d 5. California, Gondouin v. Gondouin (1910) 14 Cal.App. 285, 111 P. 756. Florida, Brandt v. Brandt (1936) 123 Fla. 680, 167 So. 524. Massachusetts, Levy v. Levy (1941) 309 Mass. 230, 34 N.E.2d 650. New Jersey, Rhoades v. Rhoades (1950) 7 N.J.Super. 595, 72 A.2d 412. New York, Tait v. Tait (1893) 3 Misc. 218, 23 N.Y.S. 597; Donovan v. Donovan, supra, and Di Lorenzo v. Di Lorenzo, supra.”

For the foregoing reasons, I respectfully dissent.


author: CLAY, Commissioner.

text:
    Hubert ADAMS, Appellant, v. Raymond CRANDALL, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    Hobson L. James, Elizabethtown, for appellant.
    David Waterman, Allan Weiss, Louisville, Faurest & Collier, Elizabethtown, for appellee.
   CLAY, Commissioner.

Appellee plaintiff recovered a judgment for personal injuries sustained when he was knocked down and injured by appellant defendant’s cow. The basic issue on appeal is whether defendant was entitled to a directed verdict on the ground that plaintiff assumed the risk or was contributorily negligent.

Plaintiff and defendant were farmers and it appears the latter was the more experienced in the care and treatment of animals. One afternoon defendant discovered that one of his cows had a broken horn. With the help of his tenant he put the cow in a stall and it was planned to treat the horn with a spray bomb. The cow had passively entered the stall but when defendant and his tenant undertook to place a rope around her neck she became excited, agitated and unruly. During these maneuvers the cow swung her head and knocked the tenant into a trough. The unavailing attempts to administer to the cow took about forty-five minutes.

Defendant then sought the assistance of his neighbor, the plaintiff. The latter testified defendant assured him they had had no trouble getting the cow in the stall, and learning of the nature of the injury, it was his opinion that it would not cause pain nor would it make the cow skittish or nervous.

When plaintiff stepped into the stall the cow whirled upon him, knocking him down and causing his injuries. It is significant that he had not touched the cow or begun the process of treatment.

The basis of plaintiff’s claim is that defendant negligently failed to warn him that the cow had become agitated and unruly by reason of the acts of defendant and his tenant in trying to rope and confine her. Plaintiff was familiar with this particular cow and as far as he knew she was a gentle, docile animal.

Defendant states as one of the grounds of appeal that he was not negligent, but this argument is not pressed in the brief. A jury issue was presented and properly submitted on this point. See Brooks v. Brooks, 21 Ky.Law Rep. 940, 53 S.W. 645. Defendant’s real argument is that plaintiff was contributorily negligent in ignoring the potential danger and assuming the risk.

Attention is called to our recent case of Parker v. Redden, Ky., wherein the doctrine of assumption of risk was abolished. We decided that cases which involve what may in fact constitute an assumption of a known risk may be more practically resolved on the issue of contributory negligence. We observe that in the present case the trial court properly submitted that issue to the jury, if the facts justified such submission. The question is whether or not the plaintiff exercised ordinary care for his own safety, the apparent risk involved being one of the significant circumstances.

Defendant would have us declare as a matter of law that plaintiff was contribu-torily negligent. The facts of this case do not justify such a holding. Reasonable minds could differ on the question of whether the plaintiff, with no reason to anticipate that the cow was in an unruly mood by reason of defendant’s abortive attempts to rope and treat her, was exercising ordinary care when he stepped into the stall. While certain animals have vicious propensities, we cannot say as a matter of law that plaintiff failed to exercise reasonable care in approaching an apparently docile cow. As far as he knew there was no serious risk involved. A jury could properly find he was exercising due care for his own safety under the circumstances.

The principles applied in Gatliff Coal Co. v. Wright, 157 Ky. 682, 163 S.W. 1110, are applicable here.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Charles C. BLINCOE et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.

      Robert F. Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., Dept, of Highways, Louis J. Amato, Catlett & Amato, Frankfort, for appellant.
    W. R. Gentry, Jr., Bardstown, for ap-pellees.
   STEINFELD, Judge.

The Commonwealth of Kentucky, through its Department of Highways, instituted condemnation proceedings to acquire a part of the land owned by Charles C. Blincoe and his wife. It was needed for the construction of the Blue Grass Parkway, (Central Kentucky Turnpike). From an award of $18,050.00 the Commonwealth appeals. We affirm.

The Blincoes owned a 484-acre farm on the Bardstown-Springfield Road in Nelson County, approximately 1½ miles from Bardstown. The improvements consisted of a modern nine room brick house, two tenant houses, five stock barns, corn cribs, tool sheds, garages and various other outbuildings. It had a 4.25-acre tobacco base, a 46-acre wheat base and a 100-acre corn base. When the taking occurred 368 acres were in crop land.

The Commonwealth took 18.69 acres in fee simple for the Parkway and a permanent easement on .03-acre for a drainage ditch. Approximately 7 acres along the highway were included in the area taken. Before the taking the owners had frontage on the highway of 1,320 feet, but afterwards there remained only 670 feet along the road. The Parkway is a limited-access thoroughfare with each side permanently fenced.

Two constantly flowing springs which supplied water for cattle were taken but no structures were located on the area acquired. 6.98-acres of the remainder were landlocked. The taking required the rearranging of 200 rods of fencing.

The jury found that the value of the farm before the taking was $150,000, that the “after value” was $132,000. and that the easement was worth $50.00. The Commonwealth claims that the three witnesses for the owners based their estimates of value on irrelevant factors and “on incomplete evidence of comparable sales, and incompetent evidence relating to a demand for rural homesites in the area,” therefore, on proper motion their testimony should have been stricken. It also contends that the verdict is excessive.

One witness for the condemnor said the farm was worth $145,200. before a part was taken, and $136,500. thereafter. The other stated that the former value was $181,500. and the latter was $172,500. The witnesses for the condemnees testified to values as follows:

The before value reported in the verdict of the jury was below the amount fixed by one of the witnesses for the Commonwealth and the after value not substantially above the amount fixed by another of its witnesses. The values the jury fixed were within the range of the evidence presented. Com., Dept. of Highways v. Cooper, Ky., 397 S.W.2d 47 (1965); Com., Dept. of Highways v. Reed, Ky., 414 S.W.2d 904 (1967). We find nothing to indicate that the jury acted under the influence of passion or prejudice, or in disregard of the evidence. Com., Dept. of Highways v. Shields, Ky., 411 S.W.2d 476 (1967); Com., Dept. of Highways v. Muir, Ky., 412 S.W.2d 231 (1967); Com., Dept. of Highways v. Brown, Ky., 415 S.W.2d 825 (1967). Certainly the amount does not “shock the judicial conscience as excessive”, therefore, it will not be vacated on that claim. East Kentucky Rural Electric Co-op Corp., v. Smith, Ky., 310 S.W.2d 535 (1958); Com., Dept. of Highways v. Darch, Ky., 390 S.W.2d 649 (1965).

The Commonwealth relies for reversal on the refusal of the trial court to strike estimates of value made by the three witnesses for the owners. When each of these witnesses had completed testifying, the attorney for the Commonwealth moved to strike the testimony of that witness on the claim that he had based his appraisals on irrelevant factors and “on incomplete evidence of comparable sales.” Even though the motions were not made in the form approved in Com., Dept. of Highways v. Shaw, Ky., 390 S.W.2d 161 (1965) and Com., Dept. of Highways v. Woolum, Ky., 415 S.W.2d 83 (1967) the court considered the motions and properly overruled each of them. Com., Dept. of Highways v. Rollyson, Ky., 415 S.W.2d 838 (1967); Com., Dept. of Highways v. Siler, Ky., 411 S.W.2d 937 (1967).

The Commonwealth contends that the witnesses should not have considered that the frontage along the Bardstown-Springfield Road was suitable for building lots, and that they should not have been permitted to consider that this part of the farm had a much greater value per acre than the remainder. The evidence showed that there was a gas line serving the area and that it was 1J4 miles from city water. Every witness told that there was a great demand for such lots. In fixing the “before taking value” of the farm as a whole they took into consideration the value of the road frontage. This was proper. Com., Dept. of Highways v. Caudill, Ky., 388 S.W.2d 376 (1965); Com., Dept. of Highways v. Priest, Ky., 387 S.W.2d 302 (1965) ; Com., Dept. of Highways v. Ramsey, Ky., 388 S.W.2d 610 (1965).

Lastly, reversal is sought on the contention that the owners’ witnesses based their values on sales which were not com-parables and that they did not produce evidence of any sale that was comparable. Mr. Blincoe, whose qualification to testify as to values was not challenged, and the two licensed and experienced real estate dealers he presented, told what they considered to be sales of comparable property consummated within a reasonable time. It was proper for the jury to hear and consider this information. Com., Dept. of Highways v. Brown, Ky., 415 S.W.2d 825 (1967); Bennett v. Com., Dept. of Highways, Ky., 417 S.W.2d 143 (1967). They rightly used factors they considered necessary in fixing the proper value (Com., Dept. of Highways v. Oliver, Ky., 415 S.W.2d 847) and they stated what they considered to be comparables. While it was proper for them to- explain the basis for the values they fixed, it was not essential that they use comparables. There is no merit in this claim of error. Com., Dept. of Highways v. Citizens Ice and Fuel Co., Ky., 365 S.W.2d 113 (1963); Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963); Com., Dept. of Highways v. Elizabethtown Amusements, Inc., Ky., 367 S.W.2d 449 (1963); West Ky. Coal Co. v. Commonwealth, Ky., 368 S.W.2d 738 (1963); Com., Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851 (1963); Com., Dept. of Highways v. Fister, Ky., 373 S.W.2d 720 (1963); Com., Dept. of Highways v. Harvey, Ky., 396 S.W.2d 311 (1965); Com., Dept. of Highways v. Woolum, Ky., 415 S.W.2d 83 (1967).

The judgment is affirmed.

All concur.


author: WALLIS DOWNING, Special Commissioner.

text:
    L. W. WILSON et al., Appellants, v. CLEARVIEW WATER COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    James F. Clay, Clay & Clay, Danville, for appellants.
    Wesley Gilmer, Jr., Danville, for appel-lees.
   WALLIS DOWNING, Special Commissioner.

The appellants are L. W. Wilson, Freeda Wilson, his wife, Jerry S. Daugherty, Jr., and Alma Daugherty, his wife, and are the owners and developers of a residential subdivision formerly outside the city limits of Danville, Kentucky, and as such, they contracted with the appellees for the installation of a water main to serve the subdivision at an expense of $1300.00. The appellants’ check bears the notation on its face, “Contract on water line and taps in Wilson Daugherty Heights.” The appellees are Clearview Water Company, Inc., J. Paul Benedict, Mildred Benedict, his wife, and Charles Onstott. The appellees own, control, operate and manage a facility for the distribution and furnishing of water to and for the public for compensation.

When the City of Danville annexed the subdivision, the appellees contracted with it to sell their water distribution system.

The appellants instituted a suit against appellees praying for a judgment quieting the title in and to the water line, equipment and servitudes or quasi-easements in the subdivision, or in the alternative, for a judgment against the appellees in the sum of $2500.00.

There was no agreement between the subdivision owners and the water company other than the payment and that water pipes and facilities would be installed and water would be available for the use in the subdivision. There was no requirement nor agreement entitling the appellants to reimbursement upon a sale of this water company by the appellees. The appellees extended the water line on Baughman Avenue outside of the subdivision 900 feet, and on Spare Minute Avenue, a dedicated street of the subdivision, an additional distance of 870 feet at an expense of $6258.00. Appellants received that for which they had bargained, and waived their rights under Public Service Commission Rule XII, 3, and settled all claims. The Rule provides:

“An applicant desiring an extension to a proposed real estate subdivision may be required to pay the entire cost of the extension. Each year for a period of not less than 10 years the utility shall refund to the applicant who paid for the extension a sum equivalent to the cost of 50 feet of the extension installed for each additional customer connected during the year but in no case shall the total amount refunded exceed the amount paid to the utility. After the end of the refund period from the completion of the extension, no refund will be required to be made.”

Appellants purchased additional equipment and contracted with others for additional installation of jars, meter hookups, laterals, and lids at an expense of $475.94. The trial court decided that the title to the additional equipment is quieted in appellants against any claim of appellees, and there is no cross appeal.

Both parties in their briefs rely upon the case of Kreamer v. Harmon, Ky., 336 S. W.2d 561, which provides:

“This case involves the ownership of a system of water mains in a subdivision, and the contest is between the developers of the subdivision and the owners of the various lots. * * *
“The judgment correctly decided that the sub-division developers had not parted with their ownership of the water mains and were therefore entitled to sell them to the City of Danville and receive the proceeds.”

The issues in the cases are not identical. The right, title, and interest in the water system are not involved in this litigation.

Litigation may be avoided by making a contract and stating its terms. Even equity cannot enforce as a contract a non-agreement. No distortion of words can hide the fact that when the court admits the parties “fail to agree” then the contract it enforces is one it makes for the parties. Walker v. Keith, Ky., 382 S.W.2d 198, 202.

The appellants may not claim ownership of the lines for which there is no contractual basis. The title is in the Clear-view Water Company to the water distribution system, and it is quieted against any claim of appellants, except to the extent of $475.94.

Appellants maintain that they must prevail under the theory that the owner of land is the owner of improvements constructed thereon by a paid contractor. Reliance is had upon Louisville Garage Corp. v. City of Louisville, 303 Ky. 553, 198 S.W.2d 40. This contention is without merit since the record discloses that the water lines were installed in dedicated public streets, not the private property of the appellants.

The judgment is based on the pleadings, appellants’ admissions, appellants’ deposition and the record, and affidavits of both parties.

Both parties submitted motions for a summary judgment, stating that there is no genuine issue of any material fact and each making a claim for a summary judgment as a matter of law. A summary judgment was proper. CR 56.03.

The judgment is affirmed.

All concur.


text:
    James L. BOYD et al., Appellants, v. PHILLIPS PETROLEUM COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 16, 1966.
    As Modified on Denial of Rehearing April 28, 1967.
    Charles A. Williams, Paducah, for appellants.
    T. W. Threlkeld, Waller, Threlkeld & Whitlow, Paducah, for appellee.
   J. M. WOLFINBARGER, Special Commissioner.

On June 13, 1958, the appellants James L. Boyd and his wife, Katie Jo Boyd, executed a lease on a tract of land in Ballard County in favor of appellee Phillips Petroleum Company, and it appears that on the same date a regular long form lease and what is known as a short form contract or lease was entered into, the latter being designated as “S. S. Lease.” It is not clear just why both were executed unless that was just a custom of the appellee in the operation of its business. The short form reads as follows:

The part of the lease noted as paragraph 3 of the main contract is the only part of the contract involved in the contention of the parties hereto and it reads as follows:

“3. To have and to hold the above demised and leased premises, and all rights, privileges and appurtenances thereunto belonging unto second party for a period of 20 years beginning 1st day of September, 1958 and for successive periods of one year thereafter unless and until terminated by first party upon notice in writing given at least ten (10) days before the expiration of any one year period; provided that the second party may terminate this lease at any time by giving first party ten days written notice of decision to so terminate.”

The sole contention between the parties is a different construction placed upon paragraph 3, as above written. The appellant contends that it was the intention of both parties at the time the contract was entered into, that the lease was a lease for twenty years which could not be revoked by either party for a period of twenty years and termination clause was not and could not be effective until the expiration of the 20 year period, after which either party could terminate the lease by giving the other party a written notice for ten days of the party’s intention.

The contention of the appellee, Phillips Petroleum Company, is that the part of paragraph 3, which reads as follows, “Provided that the second party may terminate this lease at any time, by giving first party ten days written notice of decision to so terminate,” gives the appellee a right to terminate the lease at any time from the date of the lease by giving the ten days’ notice. From these two contentions, it could be said that the writing itself could be ambiguous and it would become necessary for a proper construction to be placed on it by the court.

In placing a construction on this lease, we must first consider all the surrounding circumstances as well as the wording of the contract, including the kind of business of the parties and the matter of which construction would be more reasonable and equitable to all parties concerned and it must be remembered that the proof shows that the contract was prepared by the appellee and where one of the parties prepares the contract, the construction of this contract must be construed more strongly against the party who prepared it than the other party who had no part in the preparation.

We think this contract is clearly a lease for twenty (20) years for an agreed consideration, and it would be hard to imagine the appellant entering into a twenty-year contract which is clearly set out, and borrow the sum of $12,000 to build on the property leased and give the lessee, (appellee) a right to cancel that lease as soon as it was executed upon giving ten days’ notice. There can be no reasonable doubt that at the time of the execution of this lease contract, it was intended by both parties that it was a twenty-year lease without a right of either party to terminate it for that length of time and that the termination clause was meant to apply to this lease after the expiration of the twenty years, and that termination clause was to apply to both the lessor and the lessee alike.

This conclusion, we think, is abundantly supported by the case of Aetna Oil Company v. Robertson, Ky., 258 S.W.2d 464.

Therefore, the judgment of the Ballard Circuit Court, granting a summary judgment on motion of the defendant is hereby reversed and the case is remanded to that court for further action not inconsistent with this opinion.


author: MONTGOMERY, Judge.

text:
    John Astor COLLINS, Appellant, v. Nell T. COLLINS, Appellee.
    Court of Appeals of Kentucky.
    Sept. 22, 1967.
    George D. Dorroh, Lexington for appellant.
    William H. McCann, Brown, Sledd & McCann, Lexington, for appellee.
   MONTGOMERY, Judge.

Is the appellant liable for the support of his minor child until that child reaches her twenty-first birthday, where the appellant entered into a contract, at a time when the age of majority was twenty-one years, providing that he would support his child until she attained the age of majority, and further where the intent of the appellant and appellee at the time they entered into said contract was that appellant would support said child and make the payments to the appellee until said child’s twenty-first birthday? The answer is “Yes.”

John Astor Collins and Nell T. Collins were divorced on January 5, 1962. Prior to the entry of judgment the parties agreed in writing, among other things, as follows:

“As maintenance for the support of said infant children, the husband shall pay to the wife the sum of One Hundred Twelve and 5%oo ($112.50) dollars per month, for each child until said child shall attain the age of majority, subject to the further orders of this court.”

This provision was incorporated in the judgment.

The father appeals from an order directing that he continue to make payment of $112.50 per month for Sharon Ann Collins, his daughter, until she becomes twenty-one years of age. He made the payments to his son until the son reached twenty-one years of age. The delinquent payments exceed $4,000.

The father contends that the enactment of KRS 2.015, effective January 1, 1965, relieved him of further payments after Sharon Ann became eighteen years of age, the new statutory age of majority.

A similar contention was answered adversely in Wilcox v. Wilcox, Ky., 406 S.W.2d 152, on similar facts.

The key fact in that case and in this case is that the parties contracted for the payment of child support until the child reached the age of majority at a time when the age of majority was twenty-one years of age. Such was the age contemplated by the contractors in each instance, and the subsequent enactment of the statute did not serve to change the terms of the contract, as was more fully discussed in the Wilcox case. Correspondence leading to the execution of the agreement here shows that appellant understood that he was to continue payments until the child reached the age of twenty-one years. The enactment of the statute made no change in this contract.

Young v. Young, Ky., 413 S.W.2d 887, involved the same statute as it applied to child support payments where there was no such provision in a contract or judgment. It is distinguishable on this basis.

Judgment affirmed.

All concur.


author: HILL, Judge.

text:
    R. J. FANELLI, Herbert C. Howard, and Joe T. Moore, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 3, 1967.
    As Modified on Denial or Rehearing Oct. 20, 1967.

      Daniel B. Boone, William S. Bowman, S. J. Stallings, R. D. McAfee, Richard D. Remmers, Louisville, for appellants.
    Edwin A. Schroering, Jr., Louisville, Robert Matthews, Atty. Gen., Lloyd R. Cress, Robert D. Preston, Asst. Attys. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellants were tried jointly under six indictments, two against each appellant. The two indictments against Herbert C. Howard, an attorney, contained nine counts each; one indictment was drawn under KRS 61.190, providing a penalty for “(a)ny public officer who shall receive, directly or indirectly, any interest, profits or perquisites arising from the use or loan of public funds in his hands, or to be raised through his agency,” and the other for accepting a bribe in violation of KRS 432.350(2). Appellants Fanelli and Moore were both charged in two indictments containing ten counts each under the two statutes referred to above.

The jury trial resulted in the conviction of the three appellants on all counts. Appellant Howard was assessed fines of $900 on each count under one of the indictments, making a total of $9,000, and given ten years in prison under the other indictment, one-half of which was ordered to run concurrently with the other half. Appellants Fa-nelli and Moore were fined $10,000 each and given ten years’ imprisonment in the penitentiary.

The indictments did not charge a conspiracy, but the evidence showed each appellant accepted checks for the following identical amounts, to the penny, on the dates indicated opposite them:

$ 416.67 May 15, 1961
583.33 May 23, 1961
150.00 June 23, 1961
166.66 July 18, 1961
175.83 July 20, 1961
200.00 July 22, 1961
233.33 July 28, 1961
300.00 August 5, 1961
3000.00 September 21, 1961
3000.00 December 8, 1961

At the time of the acceptance of the above amounts, appellants composed the three-member Commission of the Middle-town Water District.

Three separate briefs and a reply brief have been filed on behalf of appellants. Appellee has filed one brief in which it attempts to answer the numerous questions raised in appellants’ briefs. We shall take up the questions presented in the order in which they are answered in appellee’s brief.

Appellant Fanelli first argues that an admonition given by the court, with reference to the limited purpose for which the jury could consider the numerous checks introduced in evidence, was insufficient and its effectiveness destroyed by the concluding comment of the trial judge. Appellant Howard contends that the trial judge made numerous prejudicial comments during the trial that deprived him of a fair trial.

Approximately thirty canceled checks payable to appellants were introduced, to which objection was made by the appellants whose names did not appear on the particular check being introduced. The trial judge gave the following admonition:

“By the Court: Ladies and Gentlemen * * * if Mr. Fanelli’s names appears on a check it is not evidence for or against Mr. Moore or Mr. Howard, and neither if Mr. Moore’s name appears on a check and endorsed by him, it is not evidence either for or against Mr. Howard or Mr. Fanelli. I don’t think this is really necessary but insofar as repeated objections by counsel which I was overruling for the time being, I think it is my duty to clear up that problem.”

It is concluded the admonition was sufficient. Furthermore, there was no objection to the admonition or motion to set aside the swearing of the jury and continue the case. We do not think the reference to objections was sufficient to faze the fair-minded intelligence which we must assume the jury possessed.

Four pages of appellant Howard’s brief are devoted to the proposition that the trial court made other improper and prejudicial comments during the trial. Numerous instances are quoted, which we will not set out herein but simply say that they amount to the expression of some impatience on the part of the court. It is to be noted that the attorneys and their objections were numerous and perhaps persistent. It may at times be difficult under such circumstances for a trial judge to maintain patience and tolerance, but it is highly desirable that he do so, both to uphold the dignity of the court and to avoid the possibility jurors may be influenced by his comments. We repeat our observations in the preceding paragraph that there was no prejudice to appellants’ substantial rights. RCr 9.26.

Appellants all join in questioning the propriety of the ruling of the trial court overruling their separate motions for separate trials. For many years the right to separate trial was absolute under the old Criminal Code Rules (section 237), but under RCr 9.16 the trial court is now given a discretion in ruling upon request for separate trials. See Smith v. Commonwealth Ky., 375 S.W.2d 819 (1964). The right to separate trial was not a common law right or one safeguarded by our Constitution. Koonze v. Commonwealth, Ky., 378 S.W.2d 804 (1964).

In Hoskins v. Commonwealth, Ky., 374 S.W.2d 839 (1964), this court stated the prevailing rule that the mere fact that evidence competent as to one defendant but incompetent as to the other may be introduced is not alone sufficient to establish such prejudice as to require the granting of separate trial. See also Underwood v. Commonwealth, Ky., 390 S.W.2d 635 (1965).

We find no evidence of antagonistic defenses tending to show an abuse of discretion by the trial court in overruling the motions for separate trials.

Appellants claim a violation of KRS 421.225 and section 11 of the Constitution was committed by the commonwealth’s attorney when he made the following remarks : “And, Ladies and Gentlemen of the jury, these facts (tracing the funds alleged to have been received by appellants) are uncontradicted. Herbert Howard, R. J. Fanelli, Joe T. Moore, uncontradicted of record.” And at another point in the cross-examination of appellants’ secretary: “She’s not the best evidence. You know who is the best evidence is.”

It was held in Schweizer v. State of Tennessee, Tenn., 399 S.W.2d 743 (1966) that: “Argument by Counsel for the State to the fact that the evidence of the State is uncontradicted is not improper as drawing the attention of the jury to the failure of the defendant to testify.” See also Anderson v. Commonwealth, Ky., 353 S.W.2d 381 (1961) certiorari denied 369 U.S. 829, 82 S.Ct. 847, 1 L.Ed.2d 795, certiorari granted 371 U.S. 886, 83 S.Ct. 192, 9 L.Ed. 2d 120.

We cannot say that it is reasonably probable that the remarks of the commonwealth’s attorney were calculated to call the attention of the jury to the defendants’ failure to testify.

Only appellants Howard and Moore contend the evidence was insufficient to support the verdict.

There was evidence that appellants were the only members, of the Middletown Water Commission; that they received and endorsed the checks from Sanson, the contractor on Commission projects; that appellants did not charge any inspection fee on projects awarded to Sanson, but did charge eight percent on projects awarded to other contractors; that contracts awarded to Sanson received more prompt consideration than those of other contractors; that Sanson’s projects received better water service than other projects; that some of Sanson’s bids were missing from the minute book; that appellants received the amounts listed above; and that each defendant received from Sanson an amount equal to the amount received by every other commissioner. This last circumstantial evidence is the most potent and significant of all. Certainly it cannot be said that Sanson made any difference among the appellants; he treated them all alike.

We wonder what answer the computer would give to the question of the probability of three persons claiming to have rendered different services to a concern each receiving nine or ten checks bearing identical dates and amounts to the copper?

Appellant Howard alone maintains that error was committed by the trial court’s refusal to discharge the jury because of alleged prejudicial news articles appearing in the local newspapers.

The record indicates three articles from a newspaper were filed with the evidence of McAfee, but they do not appear in the record on appeal. Furthermore, the trial judge gave this admonition to the jury:

“Ladies and Gentlemen of the jury, you are now advised and admonished by the court, that any news items that you may have read in the newspapers regarding this case that you are now sitting in as a juror, you will disregard. You will disregard anything or any item appearing in any newspaper article that you have read since you have been jurors in this case, or even before you became jurors in this case, if you have read any articles or newspaper items concerning this case.”

We find no error in connection with this question.

Only appellant Howard questions the trial court’s “curtailment” of appellants’ right to cross-examine the witness Mrs. Bobby Jean Roberts. From a reading of the record, it is readily apparent the alleged “curtailment” involved merely a fair effort on the part of the trial court to have an orderly presentation of the evidence as outlined in RCr 9.42.

Appellant Fanelli asserts the Commonwealth did not meet the burden of proof required when it introduced the numerous checks, made payable to persons with names identical to those of the appellants, without proving by a handwriting expert or persons familiar with the signatures of appellants that the signatures of the drawer and the payee on the checks were genuine. This was unnecessary under KRS 422.120 and the case of Herd v. Herd, 293 Ky. 258, 168 S.W.2d 762 (1943). In Sullivan v. Commonwealth, 222 Ky. 771, 2 S.W. 2d 666, the identity of the name is prima facie evidence of the identity of the person. See also Marcum v. Commonwealth, Ky., 411 S.W.2d 461 (1967) decided February 10, 1967, and Foster v. Commonwealth, Ky., 415 S.W.2d 373 (1966) decided October 28, 1966. Anyway there was abundant evidence to identify appellants as the payees of the checks.

Appellant Howard assails KRS 61.190 on the ground it is too vague and uncertain to be enforceable. This court found no fault with this statute in A. & W. Equipment Co. v. Carroll, Ky., 377 S.W.2d 895 (1964), although the question of its enforceability was not specifically raised. Furthermore, on a previous appeal of this case in Commonwealth v. Howard, Ky., 379 S.W.2d 475, this court said: “KRS 61.190 and 432.350(2) have for their purpose the protection of public monies and as such should be construed with that worthy purpose in mind. * * * The trial court was in error in dismissing the two indictments.”

We find no fault with this statute, which has weathered time and attack since 1893.

Objection is made to the testimony of Cecil Davenport, assistant county attorney, relative to the statutes governing water districts. It is said questions of law must be resolved and explained by the court. We find no inconsistency in the explanation of the statute by this witness and that given by the court in its rulings and instructions. We do not mean to countenance this sort of practice, but in this particular setting we are unable to observe any evidence prejudicial to the rights of appellants.

Numerous objections are made to the instructions, but only appellant Moore’s objection that the crime was not “defined” and appellant Howard’s objection to the failure of the court to give an instruction providing that if the funds were paid Howard for “legal services performed,” he should be acquitted are properly preserved for appellate review. Other objections were not properly preserved at the time the instructions were given or in the motion and grounds for a new trial.

The instructions described the acts substantially in the language of the two statutes. There was sufficient definition of the offense. See Wharton’s Criminal Law and Procedure, Volume 5, section 2098, page 266.

Howard’s complaint of the failure to instruct the jury to acquit in the event it believed the funds were received by him as “legal service” is without merit for the reason he, Howard, made no such affirmative defense. He did not testify. He did not introduce or prove by any witness that he was the legal representative of Sanson. Also the court instructed the jury to find Howard guilty in the event he received the money “in his capacity” as commissioner of the water district, along with a reasonable doubt instruction. The instructions thus covered the whole law of the case. See Hancock v. Commonwealth, Ky., 262 S.W. 2d 670 (1953) and Reynolds v. Commonwealth, Ky., 257 S.W.2d 514 (1953).

Appellant Howard argues that the evidence was insufficient to convict under KRS 432.350(2). We have heretofore discussed the sufficiency of the evidence to convict under KRS 61.190. The same evidence was sufficient to convict under KRS 432.350(2).

Appellant Howard finally states “the lower court erred in treating each count of each indictment as a separate offense, instead of treating each count as a part of one single offense.” He goes on to state:

“With respect to KRS 61.190, it is clear that it is only one offense to receive many ‘profits or perquisites.’ The statute does not create a separate offense for each profit or each perquisite. * * * The same reasoning may be applied to the instructions concerning KRS 432.350 (2). The word ‘bribe’ means the total amount of money received for each act of commission or omission. According to the evidence below, there were only three construction contracts between the Middletown Water District and Mr. San-son. Even if the proof had supported a bribe, there could not have been more than one bribe (or many portions of one bribe) for each job awarded to Mr. San-son.”

The argument rests on the premise that there could only have been one basic “deal” between the appellants and Sanson, under which he was to pay a “kick-back” a rebate in a fixed sum or percentage simply in return for being awarded the contracts. We think that the fact that the checks were in varied amounts and were paid over a period of some six months, and the fact that San-son’s work was subject to periodic inspections and that he had to meet certain requirements at various stages of the work in order to receive progress payments, warranted conclusions to be drawn that there were as many as nine separate bribes and nine separate instances of receiving profits or perquisites from the use of public funds.

The judgment is affirmed as to all three appellants.

All concur.