author: STEWART, Judge.

text:
    Paul E. PRICE, Appellant, v. Ada Catherine PRICE and Alfred M. Milliner, Appellees.
    Court of Appeals of Kentucky.
    March 6, 1964.

      J. L. Richardson, Jr., Louisville, for appellant.
    Eugene H. Alvey, J. D. Raine, Louisville, for appellee.
   STEWART, Judge.

This is an appeal from a judgment in favor of appellee, Ada Catherine Price, of $3500 against appellant, Paul E. Price, her husband, and dismissing the claim of appellant against appellee, Alfred M. Milliner.

This action grew out of an automobile collision which occurred in Louisville on October 22, 1958, at about 7:25 a. m. Mrs. Price was a passenger in her husband’s car which he was driving east on Algonquin Parkway. He entered the intersection at 16th Street and collided with the car operated by Milliner. The latter had been traveling west on Algonquin Parkway and was making a left turn south at 16th Street and into the path of the Price car.

Appellant sued Milliner for $4154 for property damage and personal injuries. Mrs. Price intervened, seeking to recover for personal injuries from both her husband and Milliner. The case was tried by a jury, which returned a verdict finding appellant solely responsible for the accident, awarding Mrs. Price the- above amount against appellant and denying appellant recovery on his own claim against Milliner.

Three grounds are urged for reversal of the judgment: (a) That appellant under the evidence presented should have been granted a directed verdict; (b) that an instruction dealing with the speed of appellant’s automobile should not have been given; and (c) that the jury should not have been allowed to assess damages on the basis of the permanent injury of Mrs. Price. Each of these contentions will be discussed and disposed of in the order named.

Appellant testified that, as he approached the intersection, he found his lane of traffic blocked by another motorist who was waiting and signaling to turn north onto 16th Street. Approximately 100 feet from the intersection, he pulled from the lane nearest the center line to the lane nearest the curb, continuing unabated his speed of 30 miles per hour. He stated that' the light was green for traffic on Algonquin Parkway, so he proceeded into the intersection. The front of appellant’s car hit the right side of Milliner’s car about the middle of the front fender and the door. Mrs. Price’s version of the mishap is substantially the same as her husband’s.

Milliner testified he was going west on Algonquin Parkway and'had just come under a viaduct in one-lane traffic and was driving up an incline towards the intersection which was at the top of the incline. When the street widened into two-lane traffic, about halfway up the incline, Milliner entered the lane nearest the center line and made an arm signal indicating an intention to make a left turn. He said that, just as he reached the crosswalk at the intersection, the traffic light turned yellow. He eased out into the intersection at five miles per hour or less, made his left turn and was struck by appellant’s vehicle. He stated that when he first saw appellant’s car he had already made his left turn and that he saw the Price car just before the impact. He testified that he saw the traffic light turn red just before the collision.

Robert Downing, a truck driver for the Louisville Linen Service, was an eyewitness to the accident. He testified he was driving his truck west on Algonquin Parkway and had stopped near the intersection in the lane 'nearest the curb, waiting to turn north onto 16th Street. He said that Milliner was in the intersection; that he had started to make his turn when he (Downing) saw appellant’s car; and that the traffic light was green when Milliner passed in front of him, but “almost at the time of the accident the light changed.”

The deposition of Mitchell Russ, who was Downing’s helper and a passenger in Downing’s truck, was read. He stated that Milliner passed the truck at a speed of 10 miles per hour; he did not stop before he made his turn; and he entered the intersection while the traffic light was green. He said the light changed to yellow while he was in the intersection and before the collision. According to Russ, he did not see appellant’s car in the intersection when Milliner started his turn; in fact, he saw appellant’s car only a “split second” before the collision.

Under the facts presented, should a directed verdict have been given for appellant? We believe the trial judge correctly held he was not entitled to such an instruction.

From the testimony it appears a question is posed in this case as to whether the traffic light was green when appellant entered the intersection. He maintains it was green in his favor and that this “go” light gave him the absolute privilege to proceed without slowing down. Assuming, however, the light was in fact green, such a signal is not a command to go ahead at full speed, regardless of other persons or vehicles that may already be in the intersection, but is a qualified invitation to drive carefully in the direction indicated. See Roland v. Murray, Ky., 239 S.W.2d 967, 970.

According to his own testimony, as he approached, he saw another car stopped at the intersection facing the same way he was traveling, signaling for a left turn but not moving. This in itself should have alerted him to the fact that other traffic could already be in the intersection.

Milliner testified he passed into the intersection before appellant and as the traffic light was changing to yellow; he traveled from the point where he entered 16th Street 25 to 30 feet before he reached the place where he was struck; and, at or near the moment of impact, the light was red for traffic on Algonquin Parkway.

Under the facts recited, a jury' could justifiably believe appellant paid little regard to any traffic about to be in, or already in, the intersection before he drove into it, because he did not .decrease his speed. They could also justifiably believe from Milliner’s testimony that appellant entered the intersection on a red light.

Therefore, it is our opinion the verdict of the jury finding appellant solely responsible for the accident "is fully supported by the evidence.

Appellant next argues that two of the instructions given to the jury were preju-dicially erroneous.

“Instruction 1(c)” declared it was the duty of both drivers to operate their •cars at a “rate of speed which was reasonable and proper, having due regard for the traffic and the use of the streets at the time and place.” Appellant argues that this instruction should not have been given because there was ho evidence of -excessive speed and becausb- the speed of •’appellant played no part in the accident.' >'

Milliner takes the position that the instruction is correct. ■ It is his view'.that speed did have an important bearing in producing the event which is the subj ect of this law suit; for, if appellant had been traveling at a slower rate of speed, he may not have struck the Milliner automobile. (By the same token, if Milliner had been going faster, appellant might have missed him.)

In Fono v. Hinton, 313 Ky. 213, 230 S.W. 2d 906, this Court held that under certain ■circumstances it may be negligent to travel within permissible speed limitations. It seems that such circumstances were present here, namely, there ..was congested traffic .and there was a car and a truck signaling for turns at the intersection, with the result that appellant could be considered negligent by a jury in swerving into a new traffic lane .and maintaining his speed into the intersection.

Sparks v. Doe, Ky.; - S.W.2d - — , contains this pertinent statement: “ * * the enumeration of a driver’s basic duties in a single instruction (and the instruction was so phrased in the case at bar) does not emphasize any one of them over the others and does not so invite speculation that we can justifiably find prejudice in the inclusion of .a duty just because it is technically irrelevant.”

We conclude the complaint as to the above instruction is without merit.

“Instruction 5” submitted to the jury the question of the permanent injury of Mrs. Price and it is contended it should not have been given because there was- no certain and definite evidence of this charac-'tér of injury.

Mrs. Price works as a laborer at the Louisville & Nashville railway shops in Louisville, cleaning locomotives. She returned to her job eight months after the accident and has continued in her employment. Her injury from the accident consisted of a fracture of the left hip socket which necessitated putting a pin through the bone. Dr. O. James Hurt, an orthopedic surgeon in Louisville who treated Mrs. Price, testified that X-rays showed some arthritic changes in her left hip joint and that she had some limitation of internal rotation. He stated the arthritic condition was a direct result of the automobile accident and that the changes would perhaps not improve.

Appellant points out that there is no evidence that Mrs. Price has or will suffer permanent impairment from the arthritis. This Court has held that a permanent injury instruction should not be given where there is no certain and definite evidence that the injury may be permanent and where the evidence as to the permanency of the injury is speculative and conjectural. See Black v. Bishop, 306 Ky. 524, 207 S.W.2d 22; H. & S. Theatres Co. v. Hampton, 300 Ky. 677, 190 S.W.2d 39; and Bray-Robinson Clothing Co. v. Higgins, 219 Ky. 293, 293 S.W. 151.

Mrs. Price contends the instruction could not have been prejudicial, for the jury awarded her only $3500, although she proved medical bills of $543.60 and wage losses of $2903.24, a total of $3446.84. In Louisville & N. R. Co. v. Bowman, 208 Ky. 39, 270 S.W. 471, 472, a verdict of $1500 was upheld where an instruction was given authorizing a recovery for permanent injuries on very slight evidence of such condition, for the reason that the amount awarded was no more than reasonable compensation for the injuries received, “without reference to the evidence of their permanency, so that this instruction could not be considered prejudicial.”

We conclude the Bowman case governs the point raised as to the permanent injury instruction.

Wherefore, the judgment is affirmed.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    Jimmie A. WOODFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 6, 1964.
    Tom Garrett, Paducah, for appellant.
    Robert F. Matthews, Atty. Gen,, F. E. Wood, Asst. Atty. Gen.,. Frankfort, for appellee. , •
   MONTGOMERY, Judge.

. Jimmie A. Woodford was convicted of voluntary manslaughter for the death of Mildred Traughber. His punishment was fixed at three years’ confinement in the penitentiary. On appeal he urges that the trial court erred: (1) In requiring the appellant on voir dire to examine the prospective jurors collectively instead of individually ; (2) in permitting the Commonwealth’s attorney to propound improper questions; (3) in failing to instruct on the whole law of the case; and (4) in refusing his counsel the right to discuss the failure to administer a degree of intoxication test.

On November 7, 1962, at approximately 11:15 p. m., two cars driven by appellant and Mildred Traughber, respectively, col-lied at the intersection of 17th and Jefferson Streets in Paducah. Mildred Traughber died from injuries suffered in the collision. Issues involved on the trial were whether appellant was under the influence of intoxicating liquor and whether he had run through a stop sign at the intersection.

After appellant’s counsel had examined individually five prospective jurors on voir dire, the court refused to let him question individually each of the remaining prospective jurors. Thereafter, the questions were asked of the remaining seven prospective jurors and of two replacements collectively.

Appellant relies on the statement of purpose of voir dire made in Sizemore v. Commonwealth, Ky., 306 S.W.2d 832, and upon statements in Apkins v. Commonwealth, 148 Ky. 662, 147 S.W. 376; Olympic Realty Company v. Kamer, 283 Ky. 432, 141 S.W.2d 293; and Alexander v. Jones, Ky., 249 S.W.2d 35, to the effect that the accused through counsel is entitled “to examine the jurors separately upon their voir dire.” See also Criminal Code, Section 213. Such was the old rule.

This case was tried after the adoption of the Criminal Rules of Procedure. RCr 9.38 provides:

“The court may permit the attorney for the Commonwealth and the defendant or his attorney to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the attorney for the Commonwealth and the defendant or his attorney to supplement the examination by such further inquiry as it deems proper. The court may itself submit to the prospective jurors such additional question submitted by the parties or their attorneys as it deems proper.”

This rule quite obviously places the manner of conducting the voir dire examination in the discretion of the trial judge. It is recognized that the trial court, in an effort to expedite the selection of a jury, may “take over” the examination of the prospective jurors on voir dire. In a proper case, this could constitute an abuse of discretion. In the instant case, it has not been shown that there was an abuse of discretion. Webb v. Commonwealth, Ky., 314 S.W.2d 543.

On cross-examination of the appellant, the Commonwealth’s attorney asked the following questions:

“113x Now did anything happen to you between the time you left May-ford and started down Sixth Street and came on down to where this accident occurred?
“A. No.
“114x Well did you — I will ask you whether or not some police officers chased you before this accident?
“BY MR. GARRETT: I object, if the Court please.
“BY THE COURT: Overruled.
“A. Didn’t no police officers chase me.
“115x Didn’t any police officers chase you?
“A. No.
“116x Did any police officers chase you at all that night before this accident?
“A. No.
“117x Are you sure about that?
“A. I am sure about that.
“118x Isn’t it true that a police car did chase you and you outran them just before this accident happened?
“A. No.
“BY MR. GARRETT: I object, if the Court please.
“BY THE COURT: Overruled.
“119x Isn’t that true?
“A.. No, it’s not.
“120x That did not happen?
“A. No, it did not.”

There was no testimony of a police car chase and no further effort to prove any such chase. Similar conduct on the part of a Commonwealth’s attorney was condemned as being unfair in Rowe v. Commonwealth, Ky., 269 S.W.2d 247. The repeated questions concerning a chase by a police car injected a false issue into the case which was highly prejudicial. Such conduct is inexcusable and unbecoming in an officer of the court whose duty is to see that a defendant is dealt with fairly and that his legal rights, as well as those of the Commonwealth’s, are fully protected. Drake v. Commonwealth, 263 Ky. 107, 91 S.W.2d 1009; May v. Commonwealth, Ky., 285 S.W.2d 160; Arthur v. Commonwealth, Ky., 307 S.W.2d 182. After appellant answered in the negative, the continued questioning permitted by the court on the same matter was reversible error.

The questioning of appellant, concerning whether a warrant for assault and battery had been issued was likewise improper. It concerned an incident involving another person at a time and place remote from the matter on trial. Swanger v. Commonwealth, Ky., 255 S.W.2d 38; Acres v. Commonwealth, Ky., 259 S.W.2d 38.

Appellant urges that the whole law of the case was not contained in the instructions. He insists that the court should have defined “wanton indifference” and “reckless conduct.” In Jones v. Commonwealth, 213 Ky. 356, 281 S.W. 164, such failure was held to be error. In Dublin v. Commonwealth, 260 Ky. 412, 86 S.W.2d 136, the holding was contra. Inasmuch as there may be another trial, the better practice is to define the key terms used. Monson v. Commonweatlh, Ky., 294 S.W.2d 78. While such words are commonly used, their legal meaning may not be so well understood.

The degree of intoxication, if any, of appellant was an issue. Counsel for appellant elicited testimony from the officers that no tests were administered to appellant to determine the degree of his intoxication. In his argument appellant’s counsel discussed this proof, but he was prevented from analyzing the evidence and from drawing an inference from the failure to administer such tests. This was an error since counsel in his argument to the jury should have been permitted to “discuss the facts proved, draw reasonable deductions therefrom, and may attack the credibility of witnesses where his remarks are based on facts appearing in the evidence.” Elliott v. Drury’s Adm’x, 309 Ky. 814, 219 S.W.2d 3. The rule was stated thus in Sellards v. Commonwealth, 5 Ky. Law Rep. 329, 12 Ky.Op. 319:

“Where a party has a legal opportunity of strengthening or explaining a fact in the case and fails to avail himself of it, or to show his inability for a valid reason to do so, it is a fair subject for remark or candid argument upon the part of counsel.”

Judgment reversed.


author: WADDILL, Commissioner.

text:
    Harold MOBERLY, Commissioner of Alcoholic Beverage Control Board et al., Appellants, v. Clarence R. JOHNSON et al., Appellees.
    Court of Appeals of Kentucky.
    March 6, 1964.
    Frank M. Dailey, Frankfort, J. Smith Barlow, Jr., Bardstown, for appellants.
    William A. Young, Frankfort, for ap-pellees.
   WADDILL, Commissioner.

This is an appeal from a judgment of the Franklin Circuit Court which reversed the decision of the Alcoholic Beverage Control Board refusing to issue a retail beer license to the appellees for premises located in Nelson County. The crucial question presented on this appeal is whether the facts found by the Board are justified by the evidence.

The premises for which the license is sought are located on the east side of U. S. Highway #62 in the community known as Boston. This unincorporated town has no marshal or local police force, but the highway through it is constantly patrolled by state policemen and, to some extent, by the county sheriff and his deputies. The highway in front of the proposed premises has been designated as a no-passing zone. The shoulder on the west side of the road is narrow and pedestrians ordinarily use the shoulder on the east side of the road. A place known as Dones’ Tavern fronting on U ,S. Highway #62 approximately five hundred feet south of the appellees’ premises is the only place that has been licensed for the sale of malt beverages in the area near Boston. The distance from appellees’' premises to the nearest school is seven-tenths of a mile and the distance between appellees’ premises and the nearest building used for religious purposes, the Apostolic Church, is over three hundred feet. No member or officer of the Apostolic Church protested against the issuance of the license.

Upon the hearing before the Board it was established that the appellees had complied with the statutes and the regulations of the Board which would qualify them for the license. The Board, however, refused to issue one under the authority granted it by KRS-243.450(2), which provides that a license that might otherwise be issued may be refused by a state administrator for any reason which he, in the exercise of his sound discretion, .may deem sufficient.

The basis of the Board’s refusal to issue ;the license was that the proposed beer outlet was in an area that had inadequate -police protection, was undesirable from a ^traffic standpoint, was objectionable in that .children would pass by it in reaching a •school bus-stop and-was unnecessary since the area was adequately served by Dones’ 'Tavern. While some of these reasons are similar to those appearing in the case of Alcoholic Beverage Control Board v. Woosley, Ky., 367 S.W.2d 127, wherein we upheld the Board’s refusal to issue a license, that case is not controlling because there the Board’s findings were supported by substantial evidence. However, in the instant case the evidence does not justify -the findings upon which the Board reached •its conclusion.

The testimony concerning the police protection in the area of the proposed premises cannot reasonably be held to establish inadequacy in view of the fact that the area is continuously patrolled. That the presence of the proposed beer outlet in a rural area will cause a traffic hazard is not only speculative but it assumes that the patrons of this outlet will .disregard the traffic laws. The fact that some children will pass by this outlet is •not of itself a valid reason to reject the .application. While reasonable and proper . distribution of retail beer outlets within .a given area may be a material consideration in protecting the public interest, gen- . eral expressions of opinion, as appear in ■this record, that there is no need for the proposed outlet are not of such a character •as to authorize the Board to deny the issuance of a beer license, particularly when : there is only one outlet in the area.

Under this record we must conclude that the Board acted arbitrarily in refusing to issue the license to the appellees and, consequently, the judgment of the circuit court is correct

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    Jim JONES, Appellant, v. Hubert D. PRESTON, Appellee.
    Court of Appeals of Kentucky.
    March 6, 1964.

      Henry V. Pennington, Gilmer & Pennington, Danville, for appellant.
    James F. Clay, Danville, for appellee.
   CULLEN, Commissioner.

Jim Jones, subcontractor for plastering work on a building remodeling job, brought this action against Hubert D. Preston, the principal contractor, to recover some $2700 on a quantum meruit basis for work done in excess of the estimated amount of work on which Jones had made his bid. The trial court directed a verdict in favor of Preston and entered judgment dismissing the claim. Jones has appealed.

Jones contracted to do the work for $11,-180.35. In bidding, he used an estimate of 2,500 square yards of plastering on metal lathe and 2,000 square yards on masonry.

After Jones had commenced work it became apparent that the amount of plastering to be done over metal lathe (which was considerably more expensive than plastering on masonry) was substantially in excess of the amount estimated. Also, Jones was required to do some patching of old plaster, which he said he had not contemplated in making his bid. Jones discussed the matter with Preston, and according to Jones this is what took place:

“I spoke to him about it while the job was going on and told him there was more metal there than he said there was, and he said he believed there was and told me to go ahead and get it done and he said if he made anything he would divide up with me.”

Jones went ahead and completed the . work. There were 658 more yards of lathe . plastering than estimated, but there were 1625 less yards of masonry plastering than .'estimated. Preston paid Jones the original .contract price, but Jones asserted his claim -for additional payment for the excess lathe plastering (giving credit for the underage on the masonry plastering) and for the. patching work on old plaster.

The evidence is undisputed that Preston lost money on the principal contract.

Jones predicates his right to recover on Preston’s oral statement above quoted, maintaining that it was an express contract for the doing of the extra work but was so-indefinite in its terms relating to the price to be paid as to be unenforceable, wherefore recovery may be had on quantum meruit-However, the cases relied upon to support that proposition all involved situations where the contract imposed a definite obligation to pay for the goods or services and the uncertainty was only as to the amount to be paid. Here, the oral contract on which Jones relies clearly provided that Preston would not pay anything unless he made a profit on the job. There was no. ambiguity or uncertainty concerning the obligation to pay — Preston was not obligated to pay unless he made a profit.

As stated in Simmons v. Atteberry, Ky., 310 S.W.2d 543, there may be an express, contract as to services even though there has been no agreement as to price. Here,, the contract terms were clear as to the condition of payment for the services.

The condition of payment was not unreasonable because Preston had based his bid for the principal contract in substantial part on Jones’ bid to him for the plastering work. For the same reason, and because Preston lost money on the principal contract, there are no equities in favor of Jones such as would furnish the basis for a quantum meruit recovery.

It is our conclusion that the trial court correctly directed a verdict in favor of Preston.

Jones complains because the trial court did not sustain his motion for a summary judgment dismissing a counterclaim asserted by Preston. However, he has no cáuse to complain because the court eventually directed a verdict against the counterclaim.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Earle V. POWELL, Commissioner, et al., Appellants, v. Charlie BAILEY, Appellee.
    Court of Appeals of Kentucky.
    March 6, 1964.
    Paul E. Tierney, Forest Smith, Frankfort, for appellants.
    Hiram Brock, Jr., Piarían,, for appellee.
   DAVIS, Commissioner.

On April 13, 1962, the Appeal Board, Department of Economic Security, Division of Public Assistance, determined that Charlie Bailey was not eligible for public assistance. He appealed to the Harlan Circuit Court, where the decision of the Appeal Board was reversed. This appeal challenges the action of the Harlan Cir-ciiit Court. KRS 205.230.

The question is whether the Harlan Circuit Court erred in reversing the Board’s determination that Bailey had ceased to be eligible for aid to dependent children. Determination of the question requires disposition of two issues: (1) whether the Board’s decision was supported by sufficient probative evidence, and ■ (2) whether Bailey’s eligibility for aid has become res judicata.

Powell v. Bingham, Ky., 350 S.W.2d 150, reiterates our rule that the scope of review by the circuit court in a case of this nature is limited. KRS 205.-230(5) (a) explicitly restricts the circuit court review to determination of whether there was sufficient probative evidence before the Appeal Board to support its decision. Review of the evidence before the Board discloses that competent medical witnesses testified that appellee is capable of returning to gainful employment. One of the doctors expressed the view that appellee should be encouraged to work, although he harbors some, resentment toward those who attempt to 'cause his return to work. Appellee recounted many ailments which he regards as totally disabling. The evidence before the Board was in sharp dispute; the Board was persuaded by the evidence offered by appellants. The evidence is of sufficient probative value to support the Board’s decision. The circuit court went beyond its scope of review when it resolved the conflicting probative evidence contrary to the Board’s conclusion. This was error.

The res judicata phase of the case arose thus: Bailey had previously applied for public assistance under KRS Chapter 205. He appealed to Harlan Circuit Court from the adverse ruling of the Board/ On that appeal the circuit court did, on June 6, 1960, enter an order adjudicating that Bailey was eligible for public assistance because of his physical disability. Pursuant to. that order Bailey received retroactive payments amounting to $1,392 and current payments through December, . 1961, aggregating $1,596. It was recited in the Harlan Circuit Court order of June 6, 1960, that payments to Bailey should continue until further orders of the court.

The issue before the Harlan Circuit Court in the original action was whether the February 2, 1960, order of the Appeal Board was correct. There was no issue as to how long Bailey should receive payments. It is fundamental that the doctrine of res judicata relates only to matters in issue. If a question is not in issue, it is immaterial that it was “passed on” by the court. See Catlin v. Justice, 288 Ky. 270, 156 S.W.2d 107, and 30A Am.Jur., Judgments, § 375, p. 422. Therefore, the recital of the Harlan Circuit Court that Bailey’s payments should continue until further orders of the - court did not refer to any justiciable issue before the court and is not res judicata.

The judgment is reversed for entry of judgment consistent with this opinion.


author: WILLIAMS, Judge.

text:
    LOUISVILLE CEMETERY ASSOCIATION, Inc., Appellant, v. Lillian Carter SHAUNTEE and Clarence Carter, Appellees.
    Court of Appeals of Kentucky.
    March 6, 1964.

      Harry S. McAlpin, Louisville, for appellant.
    Long & Lowery, Jack M. Lowery, Jr.,. Louisville, for appellee.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court which awarded', damages against appellant Louisville Cemetery Association, Inc., for wantonly interfering with the grave of Stephen Carter, an uncle of appellees. The jury awardedl $750 compensatory damages and $1,500' punitive damages. Motion for appeal has-heretofore been sustained by this Court.

The original complaint sought damages-for the desecration of the grave of Robert Carter, a brother of appellees, as well as-for the desecration of the grave of Stephen-Carter. At the conclusion of the proof taken by appellees the trial court sustained^ appellant’s motion for a directed verdict insofar as the claim involved damages to the-grave of Robert Carter. Appellant cannot complain of a decision made pursuant to-its motion.

This action was instituted by-Lillian C. Shauntee and her brother, Clarence Carter, as sole heirs of Stephen and: Robert Carter. On appellees’ motion the Irial court dismissed the claim of Clarence Carter. The cause of action here is a iamily right belonging to the next of kin who are permitted to maintain but one action. North East Coal Company v. Pickelsimer, 253 Ky. 11, 68 S.W.2d 760 (1934). The dismissal of Clarence Carter was prejudicial only to Clarence who, as a member ■of the family, may maintain no further action against appellant. Codell Construction Co. v. Miller, 304 Ky. 708, 202 S.W.2d 394, 172 A.L.R. 546. The question of appellant’s liability to Lillian C. Shauntee for the alleged desecration of the grave of Stephen Carter was properly submitted to the jury.

On fhe appeal there is complaint made of the instructions given by the trial court. No objection was made at the time they were given, nor were alternative instructions -offered. CR 51 specifically provides that no party may assign as error the giving .or the failure to give an instruction unless he objects thereto before the court instructs the jury.

•Stephen Carter died in 1919. The lot in which he was buried was purchased on the grounds of the Louisville Cemetery Association, Inc. Mrs. Shauntee and her family visited the grave with some regularity during the years intervening from 1919 to 1956. Sometime before 1956 a concrete grave stone disappeared. Mrs. Shauntee ■said she visited the site of her uncle’s grave in 1956 but was unable to locate it due to the fact appellant had removed trees and other landmarks nearby and had “leveled 'off” a small hill upon which the grave had "been located. Inquiry of the cemetery .superintendent failed to locate the grave.

In 1959 Mrs. Shauntee took a photographer to the cemetery who requested the superintendent to locate the Stephen Carter .grave. The superintendent indicated the location by a wide sweep of the arm. Con•sequently a broad area was photographed :and the picture was introduced at the trial. 'The photographer heard the superintendent say that some areas of the cemetery were sometimes leveled off and resold when the graves in those areas were not cared for for a number of years.

The cemetery superintendent denied that he had been requested to locate the grave and stated that the grave was still in existence and intact.

Appellant alleges that under North East Coal Company v. Pickelsimer, supra, evidence pertaining to other graves is inadmissible. But in that case the location of the graves was known and there was no possibility that they had been destroyed. Here the broad area described and photographed was the area pointed out by appellant’s superintendent to be the location of the grave of Stephen Carter. The very essence of the claim of Mrs. Shauntee was that the general area had been changed and that a hill had been leveled off, thereby obliterating her uncle’s grave. The admission of proof that a general area had been “leveled” for the purpose of resale was admissible to show wanton conduct on the part of appellant. In R. B. Tyler Co. v. Kinser, Ky., 346 S.W.2d 306 (1961), this Court found no merit in the argument that it was error to admit in evidence photographs of a burial lot because the photographs showed other graves.

The jury argument of counsel for appellee to the effect that appellant was engaged in the practice of leveling off certain areas and reselling them was not prejudicial. There was proof in the record that such was the case, and reference thereto was proper to show wanton interference with the graves in the area, including the grave of Stephen Carter.

We said in R. B. Tyler Co. v. Kinser, supra, that next of kin have a right to recover damages for mental anguish for unwarranted interference with the grave of a deceased person. Although Mrs. Shauntee was only nine years old at the time Stephen Carter died, she was very close to him. He had taken his meals with-her family, paid a great deal of attention to her, taught her to play the piano, etcetera. She testified that, upon discovery of the obliteration of his grave, she suffered mental anguish. The jury believed her, and did not award damages in such amount as to indicate the award was made as the result of passion or prejudice.

Judgment affirmed.


author: PALMORE, Judge.

text:
    Charles W. COTTRELL et al., d.h.a. Cottrell’s Bakery, et al., Appellants, v. MARTIN A. CEDER, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    March 6, 1964.
    C. W. Swinford, Stoll, Keenon & Park, Lexington, for appellants.
    B. L. Kessinger, Jr., Harbison, Kessinger, Lisle & Bush, Lexington, for appellees.
   PALMORE, Judge.

Shortly before 6:00 A.M. on March 17, 1961, while it was yet dark, William Lew.el-lyn, driving a Volkswagen panel truck on the business of his employer, Cottrell’s Bakery, collided with a pickup truck owned by Martin A. Ceder, Inc. (hereinafter called ■Ceder), and parked in front of the home of its employe, Howard Bunton. Lettie Fair, a passenger in the Volkswagen, sued both Lewellyn and Bunton and their respective employers for personal injuries and, pursuant -to a jury verdict, got judgment against Lewellyn and Cottrell for $50,441. In the same judgment a cross-claim by Lewellyn and Cottrell against Bunton and Ceder for contribution was dismissed. In a separate suit tried at the same time but which is not before us, Ceder recovered $775.86 in property damages from Lewellyn and Cottrell, and Cottrell recovered nothing on its counterclaim for damages to the Volkswagen.

The judgment in favor of Lettie Fair was paid and noted of record by an order of satisfaction reciting that it was without ■prejudice to the rights of Lewellyn and Cot-trell on appeal from so much of the judgment as dismissed their cross-claim against Bunton and Ceder for contribution. It is the latter phase of the judgment that is attacked on this appeal. Lewellyn and Cot-trell contend that the verdict absolving Bunton and Ceder of liability to Lettie Fair was induced by erroneous instructions setting out their duties. They seek a new ■trial which, if it be established that Bun-ton and Ceder should have been found liable to Lettie Fair, will entitle them (Lewellyn •and Cottrell) to contribution from Bunton and Ceder even though their respective rights and liabilities toward Lettie Fair have been concluded.

Bunton and Ceder moved to dismiss the appeal on the theory that the judgment clearing them of negligence toward Lettie Fair, bemg final and unappealed, is res judicata against any further litigation of the issue. As between each of the defendant parties on the one side and Lettie Fair on the other, it is; but as between the two sets of defendants it is preserved by this appeal. Hence we have overruled the motion to dismiss.

The accident occurred on the Harrods-burg Road near the south city limits of Lexington. Though state-maintained (cf. KRS 177.020) as part of U. S. Highway 68, the highway itself was within the corporate boundaries of the city, whereas the territory on each side, including the houses fronting thereon, had not been annexed and was outside the city. The area was suburban residential in character and Bunton’s home was one of many houses lining the west side of the road, which at the point in question was a 4-lane highway divided by a median strip. The westerly or southbound pavement was 26.2 feet wide and for a distance of 500 feet or more approaching from the north was straight.

At the time and place of the accident there were no obstructions on the highway except for Bunton’s truck, which was 77 inches wide and was parked facing southward next to the west margin of the pavement. The night was dry and clear and visibility was good. The Volkswagen driven by Lewellyn was 67.9 inches wide. Lewellyn claimed that the Bunton truck was parked at an angle. However, the court instructed the jury under a city ordinance that it was Bunton’s duty to park parallel and with his right rear wheel within 12 inches of the curb, and the question with which we are now concerned is not how his truck was parked on the right-of-way, but whether its presence violated KRS 189.450(1), KRS 189.030, or § 18-129 of the Lexington city ordinances and, if so, whether any of such violations was sufficiently related to the accident to entail civil liability therefor.

With regard to the statutory provisions, it was held in Duff v. Lykins, Ky., 306 S.W.2d 252 (1957), “that a motorist properly may park his vehicle without lights on a city street unless the city has by ordinance (or lawful regulation thereunder) prohibited such parking.” Appellants seek to avoid this precedent on the theory that the annexation of the highway right-of-way by the city was “nominal and for the purpose of policing only,” that Harrods-burg Road was in reality a main highway and not a city street. Turning the same proposition the other way, however, it is equally a technicality that the surrounding, built-up residential area had not been annexed and therefore was not part of the “city.” We are not persuaded by the argument that because the city had not adopted parking regulations for the specific area in question it must have regarded it as within the exclusive hegemony of the state. The concrete fact is that the road was in the city, and the legal effect- of that fact cannot be made to depend on the state of mind of the city’s traffic engineer. Duff v. Lykins applies. Hence the court properly declined to instruct on KRS 189.03Q and 189.450.

The city ordinance prohibiting truck: parking for longer than an hour at a time in residential areas also is inapplicable to this case. We do not construe the ordinance as intended to prevent accidents. Its manifest objective is esthetic and for the benefit of the inhabitants of, rather than the travelers in,- residential areas of the community. The fact that the parked! truck may have been in violation of it was; no more than coincidental to the accident.. Therefore, since (1) Lewellyn and Cottrell were not within the class of persons whom the ordinance was intended to protect and! (2) the harm that occurred was not withini the scope of what the ordinance was intended to prevent, there was no basis for am instruction on liability by reason of the-violation. Cf. Prosser on Torts (2d ed.) § 34, p. 152 et seq.; 38 Am.Jur. 834 (Negligence, § 163). See also discussion in Ross v. Jones, Ky., 316 S.W.2d 845 (1958).

We find it unnecessary to discuss the questions of proximate cause and Lewel-lyn’s negligence as a possible unforeseeable supervening cause of the accident.

The judgment is affirmed.

      . A partnership, the members of which are collectively referred to in this opinion as Cottrell.

      . Under the particular circumstances we construe the term “right of appeal” used in this order as having the broader connotation “rights on appeal.”

        . No question is raised as to the possible effect of the judgment in the separate property damage suit.

      . “No person shall stop a vehicle, leave it standing or cause it to stop or to be left standing upon the main traveled portion of a highway; provided however, that this section shall not be construed to prevent parking off the main traveled portion of a highway or street in a city or suburban area where such parking is otherwise permitted,” etc.

      . Requiring, in substance, that vehicles on a highway at night be illuminated.

      . “It shall be unlawful for any person to park a truck in any residential section for longer than one hour, except when loading or unloading.”

      .See, however, the distinction properly drawn by Prosser at p. 156. Conceding; that the presence of the parked truck was a proximate cause of the accident,, the dispositive point is that its being there in violation of the ordinance did not constitute negligence toward the injured party, because it was not within the intendment of the ordinance to make it so. Perhaps it could be said that although the physical circumstance may have been a proximate cause, the law violation, as such, was not.


author: MOREMEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. S. B. KELLEY et al., Appellees.
    Court of Appeals of Kentucky.
    March 6, 1964.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., H. C. Smith, Lexington, for appellant.
    C. Gibson Downing, I. Jay Miller, Lexington, for appellees.
   MOREMEN, Judge.

This is an action by the Commonwealth of Kentucky to condemn a tract of land in Fayette County. After judgment in the county court both parties appealed to the circuit court where it was held that the Commonwealth had not perfected its appeal because it had failed to join as a party appellee, John E. Kelley, who was an indispensable party.

The property sought to be condemned had been devised to S. B. Kelley for life with remainder in fee simple to his issue and in default of issue to the then existing heirs at law of the testator as determined at the time of the death of S. B. Kelley. At the commencement of this action John E. Kelley was the only child of S. B. Kelley. Both parties agreed that John E. Kelley was an indispensable party to the action. He was made a party in the county court.

The right of appeal is granted by subsection (1) of KRS 177.087, which reads in part:

“Within thirty days from the date of a judgment authorizing the petitioner to take possession of the land or material, an appeal may be taken to the circuit court by either or both parties by filing with the clerk of the circuit court a certified copy of the judgment, a statement of the parties to the appeal, and any exceptions the appellant has to the award made by the commissioners.”

It must be remarked that the foregoing statute requires “a statement of the parties to the appeal.”

The Commonwealth filed in the circuit court the judgment of the Fayette County Court and a statement of appeal wherein it was said that “the parties to this appeal are as above captioned.” John E. Kelley was not named in the caption. According to the court’s judgment and findings of fact appellant (Commonwealth) delivered to the clerk of the Fayette Circuit Court-“form summonses prepared by appellant for signature of the Clerk for the parties appellees, which summonses included a summon herein in the name of John E. Kelley.”

Under the foregoing state of facts, the circuit court was of opinion that J. E. Kelley, an indispensable party, was not before the court and dismissed the appeal.

In White v. Commonwealth, Ky., 287 S.W.2d 625, the landowners failed to file a statement of the parties to the appeal. It was held that the right of appeal is purely statutory and one who seeks to avail himself of it must comply with the conditions set forth by the General Assembly and when á party fails so to do the court should dismiss the appeal. It was indicated in the opinion, however, that a statement of the parties to the appeal was necessary in order that the circuit court clerk might know against whom to issue summons when the appeal was filed with him. Because of this statement in that opinion, it is argued here that if the parties had been summoned in the White case, dismissal of' the appeal would not have been permitted. The Commonwealth takes the position that the controlling factor is whether summons has been issued and that the requirement of the statute that all of the parties be designated is not a controlling condition precedent to the appeal.

In Commonwealth ex rel. Curlin v. Taylor, Ky., 279 S.W.2d 813, a condemnation proceeding instituted by the Commonwealth, a judgment was entered in the county court. On the same day the Commonwealth filed in the circuit court a statement of appeal, exceptions to the award and a certified copy of the judgment entered in the county court. The appellees were not summoned to appear until about ninety-five days after the appeal was filed. The circuit court sustained a motion to dismiss on the ground that it was without jurisdiction to hear the appeal because it had not been perfected within thirty days. This Court reversed, holding that the Commonwealth had taken the necessary steps to perfect the appeal and that the circuit court had jurisdiction of the case although summons was not issued within the thirty day period. It was pointed out that if the appellees had mude a timely motion under CR 72.04, perhaps the circuit court could .have properly dismissed the appeal.

We think the trial court properly dismissed the appeal in the instant case because the issuance of the summons did not cure the failure to file a statement of the parties to the appeal as required by KRS 177.087.

Appellant relies upon Big Sandy Ry. Co. v. Dils, 120 Ky. 563, 87 S.W. 310 (1905) where an imperfect transcript was filed which did not contain a correct statement of the parties to the appeal. After thirty days had expired, the court allowed appellant to file a full statement of the parties to the appeal and a full transcript of the orders of the county court. This Court held that the circuit court properly permitted appellant to file a full statement of the parties. However, in many cases since that time — and particularly in cases where the statement of appeal provides in its body that the parties to the appeal are as named in the caption, and the caption names but one party and attempts to include other parties with the expression “et al” — this Court has held that the only parties to the appeal are those specifically named. See: Hargis v. W. T. Congleton Co., 252 Ky. 192, 194, 66 S.W.2d 98 (1934); Bard v. Board of Drainage Commissioners, 274 Ky. 491, 118 S.W.2d 1013 (1938); Kramer v. Kramer, 280 Ky. 189, 132 S.W.2d 955 (1939); Land v. Salem Bank, 279 Ky. 449, 130 S.W.2d 818 (1939); Louisville & N. R. Co. v. Caudill, 302 Ky. 255, 194 S.W.2d 508. (In this case an attempt is made to distinguish it from the facts in the Big Sandy Ry. Co. v. Dils, 120 Ky. 563, 87 S.W. 310).

After a review of our later cases in connection with the Dils case we find we are unable to reconcile it with the cases which have followed. Therefore, so much of the opinion in the case of Big Sandy Ry. Co. v. Dils which deals with the question concerning proper appeal, is overruled.

The appellant also argues that the error was clerical in nature and was corrected by appellant’s tender of an amended statement of appeal after the time for taking the appeal had elapsed. We cannot agree. The complete failure to name a party amounts to more than a clerical error. It is not necessary, in some cases, to make all parties to the action in the county court parties to an appeal — hence the duty upon the appellant to point out those with whom he wishes to litigate is not too onerous. The converse is also true. One of several co-defendants in a highway condemnation proceeding may appeal without joining all of his co-defendants as parties to the appeal. Riley v. Commonwealth Department of Highways, Ky., 375 S.W.2d 245 (1963).

Judgment affirmed.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. FRANK FEHR BREWING COMPANY, a Corporation, et al., Appellees.
    Court of Appeals of Kentucky.
    March 6, 1964.

      John B. Breckinridge, Atty. Gen., William A. Larrikin, Jr., Asst. Atty. Gen., Raymond F. Bossmeyer, Charles Dant Kearns, Louisville, for appellant.
    William G. Hume, Brown & Eldred, Joseph Kaplan, E. P. Sawyer, Louisville, William S. Riley, Frankfort, for appellees.
   PALMORE, Judge.

The Commonwealth appeals from a judgment entered on a jury verdict awarding $37,000 to the Frank Fehr Brewing Company as compensation for the taking of certain property fronting on the south side of Jefferson Street between Preston and Jackson Streets in the City of Louisville.

Each side used two expert valuation witnesses. For the Commonwealth, I. Sidney Jenkins and J. Edward McDonogh gave respective estimates of $24,050 and $15,675 as the difference in market value of the whole property before and the remaining property after the taking. The estimates for Fehr were, respectively, $40,600 by Harold Rosen and $57,500 by Bruce Hoblitzell, Jr-

The first contention is that the court erred to appellant’s prejudice in permitting Bruce Hoblitzell, Jr., to testify for Fehr.

Pursuant to interrogatories served before the trial the parties had furnished to each other the names of the witnesses they intended to use and, by agreement, had taken discovery depositions on Friday, June 7, 1963. One of Fehr’s listed witnesses, Elbert Samuel, did not appear for the depositions and did not testify at the trial. Another, M. C. Harvin, did give his deposition, but on Saturday, June 8, 1963, counsel for Fehr telephoned appellant’s counsel and said he was going to use Hoblitzell instead of Harvin. Counsel for appellant demurred, because the trial was set for Monday, June 10, which left him no time for taking Hoblitzell’s deposition. At the calling of the case on Monday morning the matter was brought to the attention of the trial court, which declined to rule that Hoblitzell would not be permitted to testify. Appellant thereupon proceeded to trial without moving for a continuance or for sufficient time in which to examine the new witness.

“Where a party may be required to reveal the names and addresses of witnesses, his failure to do so may result in the exclusion of their testimony, or, conceivably, in deferring its reception until the objecting party can interview the witness and verify his story.” 17 Am.Jur. 68 (Discovery and Inspection, § 64). See also annotation at 27 A.L.R.2d 737; Grauman, “Deposition and Discovery,” 47 Ky.L.J. 175, 182 et seq.; and discussion in Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, 860 (1963).

It is not suggested that appellant’s interrogatory was falsely answered or that counsel for Fehr acted in bad faith. The object of discovery is to eliminate surprise, not to ring curfew on the search for new evidence to perfect one’s case. If a witness (or a better witness) is discovered on the eve of trial, unless there is some reason why a continuance or delay would be an abuse to the opposing party (or, possibly, upon the court) the most that could fairly be required is that he be given a reasonable time in which to examine the witness and make such additional preparation as may be required by the information elicited from him. There being nothing in this record to indicate that a continuance or delay would have been disadvantageous to appellant, or could not have been timely asked and given, it is our opinion that the failure to ask for it constituted a waiver.

The only other contention on appeal is that the award of $37,000 was excessive. To arrive at such a conclusion would require us, in effect, to say that the testimony of Rosen and Hoblitzell, both eminently qualified valuation experts, did not have enough probative value to support the verdict, which we cannot do. Nor do we find the award so gross as to come within Commonwealth, Dept. of Highways v. Rankin, Ky., 346 S.W.2d 714 (1960), and Commonwealth, Dept. of Highways v. Conatser, Ky., 347 S.W.2d 515 (1961).

Appellee’s brief having raised the question of whether it is entitled to 10% damages on $18,300, the amount of its recovery remaining unpaid pending the appeal, we hold that it is. KRS 21.130; CR 81A.

The judgment is affirmed.

      . In the colloquy among court and counsel following Hoblitzell’s testimony, which colloquy is the principal source of information in this record concerning the circumstances in question, counsel for Fehr advised the court (and counsel for appellant does not deny) that during the telephone conversation on Saturday he said, “if you feel that your rights in this case will be prejudiced by surprise I will not resist or make an objection to your motion for a continuance.”

      . The Commonwealth having taken possession upon payment of $1S,700, the amount of the commissioners’ award in county court. KRS 177.0SG(2) (c).


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ed FISTER et al., Appellees.
    Court of Appeals of Kentucky.
    March 6, 1964.
    John B. Breckinridge, Atty. Gen., Wm. A. Lamkjn, Jr., James B. Stewart, Dept, of Highways, Frankfort, for appellant.
    Robert M. Odear, C. Gibson Downing, Jr., Gladney Harville, Stoll, Keenon & Park, Lexington, for appellees.
   DAVIS, Commissioner.

Appellees have requested amendment of our mandate issued pursuant to the opinion reported in Ky., 373 S.W.2d 720. The mandate imposed on the appellees the court costs incident to the appeal. Appel-lees contend that imposition of costs on the landowner in condemnation cases contravenes §§ 13 and 242 of the Kentucky Constitution. Our view is to the contrary.

Section 13 of our Constitution guarantees that “just compensation” shall be “previously made” for property taken for public use. That section does not have specific reference to the judicial procedures to be employed in the exercise of the power of eminent domain.

Section 242 of the Constitution assures the property owner a “jury determination” of the amount of damages due from the condemning authority, “according to the course of the common law.” The condemnation procedure before us is pursuant to KRS 177.087(1). That statute ¿fiords the property owner a common law jury trial in circuit court on the question of just compensation; it imposes liability for court costs on the condemnor for the costs of the circuit court action. The Constitution' does not relate to appeals to this court in such cases.

KRS 177.087(3) permits appeals to this court “as in other cases.” That section omits reference to court costs. The expression “as in other cases” is significant. Unless otherwise directed by the court, costs on appeals “in other cases” are assessed against the unsuccessful party. RCA 1.400. It is so in this case.

It is generally conceded that the right of appeal is not an incident of “due process” as that term is constitutionally applied. Cf. 12 Am.Jur., Constitutional Law, § 638, pp. 327 et seq., and 16A C.J.S. Constitutional Law § 569(4), p. 579.

Barker v. Lannert, 310 Ky. 843, 222 S. W.2d 659, does not control the case at bar. The “appeal” discussed there was to the circuit court from an award of the county court commissioners.

The motion of appellees is overruled.


author: HAMILTON, Justice.

text:
    Truman P. KIRK, Relator, v. Tom GORDON et al., Respondents.
    No. A-10008.
    Supreme Court of Texas.
    March 4, 1964.
    Truman P. Kirk, Harris Toler, Abilene, for relator.
    Tom Gordon, Tom Todd, James E. Robinson, Abilene, for respondents.
    Lavern Harris, Kerrville, amicus curiae.
   HAMILTON, Justice.

This is an original petition for writ of mandamus brought by relator Truman P. Kirk seeking to compel Tom Gordon as Chairman of the Taylor County Democratic Executive Committee and the Taylor County Democratic Executive Committee to omit the name of respondent Tom Todd from the official ballot as a candidate for the Democratic nomination for State Representative for the 84th District, Place Njo. 1.

Relator is a duly qualified Democratic candidate for said office. Respondent Tom Todd is presently District Attorney of the 104th Judicial District, whose present term expires on December 31, 1964.

Relator maintains that Todd is ineligible to be elected to the Legislature at the November general election because he is now, as District Attorney, holding a lucrative office under this state to which he was elected for a term which does not expire until December 31, 1964. Otherwise it is admitted that respondent is eligible. Relator says that Todd is ineligible because the term of the office as a member of the House of Representatives to which he seeks to he elected shall be two years from the date of election, which necessarily will be before his present term of office as District Attorney expires on December 31, 1964. Relator further says that respondent, being ineligible to hold the office of State Representative, should not have his name placed upon the primary ballot.

We hold that the relator is correct in his contention and that the respondent Tom Todd is not eligible to be elected to the House of Representatives at the next general election in November, and for that reason should not have his name placed upon the Democratic primary ballot as a candidate for State Representative, and the mandamus requested will issue.

We have been compelled to reach this conclusion by the plain and unambiguous applicable provisions of the Constitution and the Texas Election Code. We quote the applicable provisions below:

Article III, Section 19, Constitution of Texas, Vernon’s Ann.St.:

“No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.”

Article III, Section 4, Constitution of Texas:

“The members of the House of Representatives shall be chosen by the qualified electors, and their term of office shall be two years from the day of their election.”

Article 1.05, Texas Election Code, V.A. T.S.:

“No person shall be eligible to be a candidate for, or to be elected or appointed to, any public office in this state unless he shall be eligible to hold - such office under the Constitution and laws of this state * * *. No ineligible candidate shall ever have his name placed upon the ballot at any primary, general or special election; and no ineligible candidate shall ever be voted upon nor have votes counted for him at any such primary, general or special election. * * * ”

Article 1.06, Texas Election Code:

“ * * * and the name of no ineligible person, under the Constitution and laws of this State shall be certified by any party, committee, or any authority authorized to have the names of candidates placed upon the primary ballots at any primary election in this State; * *

We reject respondent’s contention that this court does not have jurisdiction of this matter because of Article III, Section 8 of the Constitution, which provides as. follows:

“Each House shall be the judge of the qualifications and election of its. own members; but contested elections-shall be determined in such manner as shall be provided by law.”

We think this question was foreclosed' by this court’s opinion in the case of Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570, at page 575. We quote:

“It is true that Article III, Section 8,. of the Constitution provides that each house of the Legislature shall be the judge of the qualifications and election of its own members, but this does not prohibit the Legislature from enacting reasonable regulations to prevent those disqualified by law from placing their names on the ballot. The Legislature has the right to adopt all regulations reasonably necessary to avoid the futility of electing one who is not eligible to hold the office.”

The regulations to which the court referred are substantially the same as are now ■contained in Articles 1.0S and 1.06 of the 'Texas Election Code. It is elementary that if these mandatory regulations are valid, .-as this court has so held, the courts have jurisdiction to enforce them.

We also reject respondent’s contention that said articles of the Election Code- are not applicable to him because Article III, Sections 19 and 4 of the Constitution of Texas do not make him ineligible to be •elected to the Legislature next November. His argument is that the term of the office to which he seeks election does not overlap with his term of office as district attorney because the term of office for representative ■does not begin until the Legislature convenes in January of 1965. He says that, "because Article III, Section 8 provides that the House of Representatives shall be the Judge of the qualifications and election of its ■own members, a member is not elected to the House of Representatives until he lias qualified and been seated. While Section 8 of Article III of the Constitution -provides that the House of Representatives is the judge of the qualifications and election of its members, it does not provide that -the House elects its membership. That prerogative is given exclusively to the qualified -electors by Section 4 of Article III of the 'Constitution. When the qualified electors 'have cast their ballots and their votes have '.been canvassed, the election process is at an ■end and the term of office for the one re•ceiving the highest number of votes begins, ■regardless of when he qualifies or whether ‘he ever qualifies. The Constitution plainly ■says that the term of office of members of •the House of Representatives shall be two .years from the date of their election. We .are not at liberty to say that that means two years from the date the Legislature, to which the member is elected, convenes.

The fact that the district attorney 'has filed with us a copy of his resignation to become effective next November 1, which is '.before the general election, does not alter the situation. It is the fact that the term -of office of district attorney to which he was elected conflicts with the term of office of members of the House of Representatives which controls.

Writ of mandamus will issue to Tom Gordon as County Chairman of the Taylor County Democratic Executive Committee and the Taylor County Democratic Executive Committee directing each of them to omit the name of Tom Todd from the primary ballot as a candidate for State Representative, 84th District, Place No. 1.

On account of the emergency, due to the near approach of the time for printing the ballots for the May primary, the parties hereto will be denied the right to file a motion for rehearing.


author: NORVELL, Justice.

text:
    HOWSLEY & JACOBS et al., Petitioners, v. Mrs. W. S. KENDALL et al., Respondents.
    No. A-9528.
    Supreme Court of Texas.
    Feb. 26, 1964.
    Motions for Rehearing Denied April 1, 1964.

      Strasburger, Price, Kelton, Miller & Martin, Dallas, McMahon, Smart, Sprain,. Wilson & Camp, Abilene, for petitioners.
    Scarborough, Black, Tarpley & Scar-borough, Abilene, for respondents.
   NORVELL, Justice.

Writ of error was granted in this case-because we were of the tentative opiniom that the closing argument of respondents’ counsel to the jury constituted reversible-error. After submission of the case upom briefs and oral argument, we adhere to our-tentative opinion. The judgments of the-District Court and the Court of Civil Appeals are reversed and the cause remanded; to the District Court for another trial.

In the District Court, Mrs. W. S. Kendall and W. S. Kendall, Jr., as beneficiaries, under the wrongful death statute, Article-4671, Vernon’s Ann.Tex.Stats., and as the-legal representatives of W. S. Kendall, re-covered judgment against the defendants, described in the judgment as “Andrew-Howsley and Charles E. Jacobs, individually and as members of the partnership of Howsley & Jacobs.” The Court of Civil’ Appeals affirmed. 364 S.W.2d 836.

W. S. Kendall was severely burned in: an explosion and fire which took place in the basement of the Andrew Howsley resi--dence on the afternoon of March 7, 1961. As a result of these burns, Kendall died; shortly after midnight on March 10th in a. hospital located in Albany, Texas. The liability of Andrew Howsley and Charles E. Jacobs is predicated upon the theory that Robert Myers was their employee and that, the explosion was caused by Myers’ negligence. Kendall and Myers were the only persons present at the Howsley residence-immediately prior to the explosion. Sharply conflicting versions of the events which, occurred at that time were placed before the jury and the case may be properly described as a close one upon the facts.

The deceased, W. S. Kendall, was an electrician with a place of business in Cisco, Texas. Andrew Howsley is the father-in-law of Charles Jacobs and at the time of Kendall’s death he and Jacobs were partners primarily engaged in the oil business. Robert Myers, a young man 24 years of age, was employed by Howsley & Jacobs to clean up oil lease locations of the partnership. He also worked around the houses of both Howsley and Jacobs, took care of their yards and rendered such other services as might be required by either of the partners.

The deceased, W. S. Kendall, was employed to remove two air compressors from the basement of the Howsley residence in Albany and take them to his shop in Cisco for inspection and repair. Howsley instructed Myers to be present when Kendall arrived and help him remove the compressors from the basement and load them ■onto Kendall’s pickup truck. On the afternoon of March 7, 1961, Kendall and Myers removed the compressors from the Howsley basement. Then they noticed that some lubricating oil had spilled or leaked on the floor. Gasoline was poured upon the floor in an effort to remove the oil. Fumes from the gasoline came in contact with the flame •of the pilot light on a water heater located in the basement, with the result that an explosion and fire took place.

Myers testified to matters which, if credited, would absolve him from culpability. The respondents’ account was that Myers had carelessly used gasoline in cleaning the floor near the burning pilot light and had failed to warn Kendall of this circumstance. This version was pieced together from the testimony of witnesses who related to the jury what Kendall had told them before his death. In the main, these statements were received under an exception to the hearsay rule as being a part of the res gestae.

Robert Myers testified that he helped Kendall get the compressors out of the basement and load them on the truck; that in this process some oil was spilled upon the floor of the basement; that he and Kendall used some rags to wipe up the oil to start with; that Kendall decided that the dry rags would not clean up the oil satisfactorily; that Kendall said, “We will have to clean up this oil off the floor or Mrs. How-sley will get us”; that Kendall asked him if he had any “gas” and he (Myers) told Kendall that he could get some that he used in the lawn mower; that Kendall said that would be “okey” so he got some gasoline in a red two-gallon can and Kendall said, “We will put some on these rags and clean it up, wipe the oil off the floor”; that he, (Myers) “did exactly what he told me to do”; that Mr. Kendall said that the “gasoline wasn’t cutting the oil so he (Kendall) poured a little on the floor; that then “the fumes were getting kinda bad in there and (he) told (Kendall) that (he) would go upstairs and get some water and wash some of it out”; that “the fumes were getting so bad (he, Myers) couldn’t stay down there, so (he) started upstairs and the thing blowed up”; that he was at the top of the stairs when the explosion occurred; that the explosion was immediately followed by a fire; that he got a garden hose and shot water down on Mr. Kendall who was at the foot of the stairs; that he then went down the stairs so as to get a step or two closer to Mr. Kendall and caught his hand and pulled him out of the basement; that Mr. Kendall was on fire when he pulled him out; that he shot some water on him and used his hands to beat out the fire.

The respondents’ (plaintiffs’) version of the facts and circumstances immediately before the explosion and fire came primarily from the testimony of the witnesses W. S. Kendall, Jr. and the widow, Mrs. W. S. Kendall. In certain minor particulars they were corroborated by other witnesses. All of respondents’ evidence as to the events leading up to the explosion and fire consisted of statements attributed to Mr. Ken■dall and related to the witnesses in the Albany hospital.

W. S. Kendall, Jr. came to the hospital shortly after his father arrived,- — about ■4:30 in the afternoon. He found that his father was suffering severe pain but was conscious. He testified that his father told him that some oil had been spilled on the floor out of the compressors and he had wiped it up with a rag; that Robert Myers had gone in there with some gasoline to clean the floor and that he didn’t realize what he had used until he went back down there to see if he had left any tools and the whole place was afire.

Mrs. Kendall testified that she arrived at the hospital around 5 :00 o’clock and went to her husband’s hospital room where she found that “he had been burned all over from the top of his head to his feet and his face was black and he was bandaged all over”; that she remained at the hospital until her husband died; that during this time Mr. Kendall’s “consciousness came and went.” She testified that her husband told her that “he had taken the compressors out and put them in the pickup and while he was doing that, that Robert had put gasoline on the floor to clean it up and when he went back that he didn’t know that any gasoline was there and he was afire before he knew what happened.”

We thus have a case in which one version was related by Robert Myers, the only living witness to the events which took place immediately prior to the explosion. He appeared in court and withstood a rigorous cross-examination. The opposing version was placed before the jury under an exception to the hearsay rule and consisted of statements by witnesses of what Kendall had told them. If emotion be laid aside it could perhaps be reasonably expected that the first-hand account of events might carry the greater weight. The credibility of the witness Robert Myers thus became a critical consideration in the case and this circumstance must be borne in mind when considering the probable results flowing from the final argument which was made to the jury by respondents’ counsel.

We need not discuss the matter of improper argument at great length. We are fully cognizant of the fact that a trial before a jury in Texas is an adversary proceeding. Perhaps the lawyer who, in the heat of advocacy, has never made a remark that would call for a reversal of a judgment has not tried many closely contested cases. However, it is not the attitude, purpose, or motive of counsel that is of controlling importance. The important considerations are what was said and how in all probability such statements were understood by the jury.

In respondents’ concluding remarks to the jury, the theory that the witness, Robert Myers, wasn’t the actual person giving the testimony but that “somebody was testifying through his lips” runs like a leitmotif through the argument. The suggestion that it was not Myers “that was testifying, but he was following somebody else’s instructions” was made repeatedly.

Near the beginning of the argument it was said that:

“All right, when you go to consider the evidence remember- another thing and that is this, that we can’t bring Mr. Kendall in here to tell us about how this happened. We can’t bring him in here to give his story because his lips have been closed. His lips are sealed. We have to get the statements that he made. It’s going to be the statements that he made against the statements of Robert Myers. That’s what you are going to have to decide this case on. * * * And let me tell you that when you heard the testimony of Robert Myers you knew the truth. * * * “You knew the truth but you knew it wasn’t coming from the testimony of Robert Myers, because Robert Myers wasn’t testifying. Somebody was testifying through the lips of Robert Myers. * * * “What did the colored boy tell you? He said: ‘Mr. Howsley instructed me to follow the instructions of Mr. Kendall.’ Does that sound like him testifying? No, that’s impossible. It’s impossible because, ladies and gentleman, it is going to be for you to decide whether the man lying there on his death bed, a man that the evidence shows he knew and realized that he was about to meet his maker, a man that was about to come face to face with his Master, would he be more apt to be telling the truth than a colored boy who had been under the coaching of this battery of lawyers, when he got on there to give words that were not his words.”

It was suggested in the oral argument that these statements had reference to the use of leading questions in adducing the testimony of Robert Myers, but upon examination of the statement of facts we find that only one objection was made to the use of a leading question during the course of direct examination and that this objection did not relate to Myers’ recital of the occurrences which took place immediately before the explosion.

There is a suggestion in the argument before the trial jury that there was something incongruous in Robert Myers’ choice of words in giving his testimony. There was evidence that Mr. Howsley had “instructed” him in the matter of aiding Mr. Kendall, but it is wholly tenuous to connect this circumstance with Myers’ account of the events relating directly to the explosion. The testimony of Robert Myers on direct examination relating to the events which took place from the time of the spilling of oil on the basement floor to the time he and Mr. Kendall were taken to the hospital occupies five pages of the Question and Answer Statement of Facts. No objections were made to any of this testimony and we find no question that could be seriously objected to on the ground that it was leading.

When we recur to the question of how this argument was probably finder stood by the jury, it seems inescapable, regardless-, of how counsel may have intended it or whatever may have been his recollection of' the record at the time of the argument, that the jury understood it to be a charge that Mr. Howsley or the “battery of lawyers”' who had coached Robert Myers were speaking through Myers’ lips, or in other words,, had told him what to say and how to tes--tify. Such an argument when based upom evidence is, of course, permissible-.. When,, however, it has no support in the evidence-it is highly prejudicial.

In the present case, we find no evidence that Mr. Howsley or his- lawyers- toldl Robert Myers how to testify as. to the-events that preceded the explosion; or that anyone was “speaking through- his- lips”" while he was on the stand.

It is our opinion that from the-time the charge was made that someone-else was testifying through the lips of.' Robert Myers, coupled with the statement-as to a “battery of lawyers,” the petitioners” case was irretrievably prejudiced'. An assertion of facts having no evidentiary basis; were placed before the jury and' these asserted facts were in turn made the Basis of' an inflammatory appeal. No Instruction of' the trial judge could have removed the-prejudicial effects of the argument and' hence no objection was necessary- to preserve the error. Southern Pacific Company v. Hubbard, 156 Tex. 525, 297 S.W.2d 120 (1956); Southwestern Greyhound Lines v. Dickson, 149 Tex. 599, 236 S.W.2d 115 (1951); See also, Texas Employers’ Ins. Ass’n v. Haywood, 153 Tex. 242, 266 S.W.2d 86 (1954); Wade v. Texas Employers’ Ins. Ass’n., 150 Tex. 557, 244 S.W.2d 197 (1951). Compare, Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d. 451 (1949); Willis v. McNeill, 57 Tex. 465 (1882).

As for the other matters raised im the application for writ of error, w.e. are of.' the opinion that they were decided, correctly,by the Court of Civil Appeals with, one exception. In the absence of some additional predicate to that disclosed by the present record, Mrs. Kendall’s statement that Mrs. Howsley said that “Robert shouldn’t have done that”, evidently referring to his supposed use of gasoline in cleaning the basement floor, should not be received in evidence as an admission. Mrs. Howsley was not at home at the time of the explosion; her purported statement was conclusory in nature and appears to have been a chance remark made in a conversation at the hospital where Kendall and Myers were taken after the tragic events above detailed.

What is said in this opinion and in the opinion of the Court of Civil Appeals will serve as an ample guide for the district court upon a re-trial of this case.

Andrew Howsley filed an application for writ of error in this case in addition to that filed on behalf of Howsley & Jacobs, a partnership composed of Andrew Howsley and Charles E. Jacobs. It is stated in the application that Andrew How-sley, in his individual capacity, i. e., not as a member of the partnership of Howsley & Jacobs, carried a personal liability policy with an insurance carrier which is different from the company carrying liability insurance for the firm of Howsley & Jacobs. He complains of the form of the judgment rendered because it fails to set out that such judgment is “predicated only upon the vicarious liability imposed upon him by the liability of the partnership.” It doesn’t make any difference insofar as the respondents and Howsley are concerned whether liability is, or (in view of our reversal) may be predicated upon the proposition that Robert Myers was the employee of the firm in which Howsley was a partner, or was the employee of Howsley alone. How-sley’s liability in either event would be such as to render him personally accountable for the damages sustained by Kendall’s widow and son. There was no error in the form of the judgment rendered by the trial court in the particular complained of. The positions of the two insurance companies with reference to the assertion of liability against their insured may present an interesting legal question, but that problem is not in this case. The matter of insurance, if any, and how and with whom it is carried, is wholly immaterial to this litigation.

An order of reversal and remand will be entered as above indicated.


text:
    The STATE of Texas et al., Relators, v. Bill LOGUE, Judge, 19th District Court, Respondent.
    No. A-9900.
    Supreme Court of Texas.
    March 11, 1964.

      Waggoner Carr, Atty. Gen., Austin, Norman v. Suarez, Asst. Atty. Gen., for relators.
    John W. Fulbright, Waco, for respondent.
   HAMILTON, Justice.

The State of Texas, the Public Safety Commission of Texas, of which Commission C. T. McLaughlin, W. E. Dyche, Jr., and Jake Jacobsen are the Commissioners, and Homer Garrison, Jr., Director of the Texas Department of Public Safety, as re-lators seek a writ of mandamus to compel the Honorable Bill Logue, Judge of the District Court for the 19th Judicial District of McLennan County, Texas, to dissolve the temporary injunction granted by him on December 6, 1963, in Cause No. 49,138 pending on the docket of the District Court of McLennan County, Texas, and a writ of prohibition directed to Bill Logue as Judge to prohibit him from entering any order adjudging or attempting to adjudge any of the relators in contempt of said District Court by reason of such temporary injunction or any alleged disobedience thereof.

H. V. Williamson and Young Bros., Inc., brought suit in the 19th District Court for injunctive relief against the Department: of Public Safety and Homer Garrison, Jr., Director of said Department. The plaintiffs alleged that Young Bros., Inc., is in the business of manufacturing asphalt pavement materials and, as a necessary incident thereto, has occasion to transport and haul said asphalt materials to various construction sites in the Central Texas area; that H. V. Williamson is the owner of a truck used in the transporting of materials used in conjunction with the construction of asphalt highways and at the present time has his truck under lease to Young Bros., Inc., for the transportation of such materials; that the Department of Public Safety has notified plaintiffs that on November S, 1963, it intends to initiate action against plaintiffs for the transportation of such materials in violation of Senate Bill 4S1, Acts 58th Legislature, Chapter 502, page 1316, amending Article 911b, Vernon’s Civil Statutes; that there are presently in existence leases between H. V. Williamson and Young Bros., Inc., under which motor vehicles have been leased to Young Bros, for the transportation of asphalt paving materials to construction sites in the Central Texas area for use by various contractors and governmental agencies and subdivisions; that there are contracts with said contractors and governmental agencies and subdivisions under the terms of which Young Bros., Inc., is required and obligated to furnish and transport the paving materials to the construction sites.

The plaintiffs further alleged that Art. 9lib as amended in 1963 is unconstitutional in that it deprives plaintiffs of property rights without due process of law, is an unlawful and unwarranted interference with the right to contract, is an unlawful and un■warranted interference with the free enterprise system of business operation, and is vague and ambiguous with respect to the ■persons to whom it is to apply and is impossible of fair application; that because of the contracts between Young Bros., Inc., and the contractors and governmental agencies and subdivisions, and because of the leases between Young Bros., Inc., and the individual truck owners, immediate and irreparable injury, loss and damage will result to plaintiffs unless the defendants are restrained; and that there is no adequate remedy at law.

The Texas Department of Public Safety filed a plea in abatement and to the jurisdiction on the grounds that such was a suit against the State without first obtaining permission of the Legislature and that plaintiffs were seeking to enjoin criminal proceedings for which they had an adequate remedy at law by raising any defenses in such criminal proceeding, since no injury to vested property rights was involved.

The District Court granted the temporary injunction, thereby enjoining the Department of Public Safety and Homer Garrison, Jr., as Director, from enforcing or attempting to enforce the provisions of 911b as amended by the 58th Legislature and from taking any other action which would in any way interfere with or impair the longstanding business relations and agreements between Young Bros., Inc., and individual truck operators with reference to the transportation of asphalt paving materials.

The applicable 1963 amendment to Art. 911b, Sec. 1, provides as follows:

“(j) The term transporting property for compensation or hire shall include the furnishing during the same period of time of equipment and drivers to persons, firms, copartnerships, associations or joint-stock associations other than common carriers, contract carriers, or specialized motor carriers for use in their carrier operations, whether the equipment and drivers are furnished by the same or separate person, firm, co-partnership, association or joint-stock association, and their lessees, receivers or trustees appointed by any court whatsoever owning, controlling, managing, operating or causing to be operated any motor-propelled vehicle.”

If the operation involved in this case falls within this statutory definition, the operation of the truck would fall within the Motor Carrier Act (Art. 911b), thereby necessitating the obtaining of a permit for the truck used in such operations. If the truck is operated without such a permit, there is a violation of the provisions of the act, a misdemeanor under Art. 1690b, Vernon’s Penal Code. Hence, what the injunction effectuates is the enjoining of the enforcement of the criminal law.

The general rule is that equity will not enjoin enforcement of the criminal law. Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294 (1932); City of Austin v. Austin City Cemetery Ass’n, 87 Tex. 330, 28 S.W. 528 (1894). However, there is an exception to the effect that when the criminal statute is unconstitutional, or otherwise void, and enforcement thereunder involves an invasion of property rights which will result in an irreparable injury thereto, equity will intervene to protect those property rights by enjoining enforcement of such void law. Ex parte Sterling, supra; Crouch v. Craik, Tex., 369 S.W.2d 311 (1963). If either one of the requirements of equitable relief in this type of situation —void law and irreparable injury to property rights — is lacking, the courts of equity have no jurisdiction to entertain such suit. Because of the dual system of courts in this State — civil and criminal — this court will not pass on constitutionality of a criminal statute unless the requirement of irreparable injury of property rights is involved. See Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217, 219 (1943).

The species of property right entitled to protection of equity is sometimes difficult to define. Some cases speak of property-rights in general, while other cases make reference to protection of vested property rights from irreparable injury. Ex parte Sterling, supra.

The rule that equity will not enjoin criminal proceedings unless such law is unconstitutional’or void and will result in irreparable injury to property rights is merely a restatement of the more general principles of equity. As stated in 30 C.J.S. Equity § 20:

“As a broad general rule, equity may be stated to have jurisdiction in cases of rights recognized and protected by the municipal jurisprudence where adequate legal remedies cannot be had; and, conversely, equity will not take jurisdiction where there is an adequate remedy at law, unless special jurisdiction has been conferred by statute.”

One of the reasons that the courts of equity arose in England was the inadequacy of legal remedies. It is the adequacy of the remedy at law that marks off the limitations as well as the jurisdiction of equitable relief. If there is an adequate remedy at law by setting up the defense of unconstitutionality of the statute in question . in a criminal proceeding, then the trial court had no jurisdiction to enjoin such criminal proceedings and relators are entitled to have writs of mandamus and prohibition issue. However, if by the very enforcement of the criminal law, the plaintiffs in the trial court will suffer irreparable injury to their property rights, then, if such statute is void, the trial court was justified in enjoining such enforcement.

The question to be resolved is whether plaintiffs in the trial court had such a property right in their operations that would be irreparably damaged by rela-tors proceeding to enforce the provisions of the statutes in question. Unless respondents Williamson and Young Bros., Inc., had such a property right, this court will not undertake to write on the constitutional question. We hold that they did not have such a property right threatened with irreparable injury entitling them to the equitable relief of injunction.

Several instances of the courts enjoining the enforcement of criminal ordinances or statutes are found in City of Austin v. Austin City Cemetery Association, 87 Tex. 330, 28 S.W. 528 (1894); Neal v. BoogScott, 247 S.W. 689 (Tex.Civ.App.1923, no writ history); Bielecki v. City of Port Arthur, 12 S.W.2d 976 (Tex.Com.App., 1929); Adams v. Antonio, 88 S.W.2d 503 (Tex.Civ.App. 1935, error ref.).

City of Austin v. Austin City Cemetery Association was rested on the premise that unless the courts of equity took cognizance of the cemetery’s rights, there would be no way to ever test the constitutionality of the ordinance. The ordinance in that case prohibited the use of property in a certain area for burial purposes and made it a crime for a cemetery association as well as individuals to cause a dead body to be so buried except in certain localities. Ini an opinion written by Chief Justice Gaines, the Supreme Court stated:

“ * * * A criminal prosecution is. unpleasant to all people who have due respect for the law, and almost necessarily involves inconvenience and expense. As long as the ordinance remains undisturbed, it acts in terrorem,, and practically accomplishes a prohibition against the burial of the dead within the limits of the city of Austin, save in the excepted localities. Under these conditions, who would venture to bury, or be concerned in burying, a dead body in appellee’s ground, or who-would purchase a lot in its cemetery? Suppose a city, not having the power under its charter to do so, should pass an ordinance prohibiting the sale of butchers’ meat in a certain locality, and suppose it should also prohibit any one from selling meat to be there sold, or from buying in the prohibited place. The ordinance would be void; but could any one say that the business of a market man in the locality might not be effectually destroyed by it? Under such circumstances, we are of opinion that he should have the right to proceed against the corporation to enjoin its enforcement. If a penalty was denounced against no one but the market man who should sell, it would seem that his remedy would be to proceed with his business, and defeat any prosecution that should be brought against him for the infraction of the void ordinance. But to deny a remedy in a court of equity in the case first supposed, or in the present case, analogous to it, would be, we think, to disregard the fundamental principle upon which such courts are established.”

There was no adequate remedy for the cemetery association in that situation for its business could be destroyed by the very existence of the ordinance without the association being able to contest the ordinance in a defense to a criminal prosecution.

In Neal v. Boog-Scott, an injunction was granted to restrain the dipping of cattle and the assessing of criminal penalties for refusing under the Tick Eradication Act. It was alleged that the dip was poisonous and would injure the cattle. Against a demurrer, the court upheld the pleadings because the enforcement of the statute would do irreparable harm to him by impairing his cattle for which he would get'no compensation.

Bielecki v. City of Port Arthur involved a statute declaring dance halls within 150 feet of a private residence to be a nuisance per se and provided for summary destruction if the nuisance continued to exist after arrest of the owner of such dance hall. Hence, injunction was granted to prevent such occurrence, the court having also held the ordinance to be invalid.

In Adams v. Antonio, an ordinance provided that it was illegal to operate gaming tables. An owner of pinball machines was arrested for operation of such machines. The court held that the owner, while not entitled to enjoin arrest and prosecution, was entitled to enjoin destruction of his machines and the taking of money therefrom by police officers who gave such money to charity.

The facts of this case do not fall within the principles of the above cases. Respondents will have ample opportunity to test the constitutionality of the 1963 amendment to Article 911b by setting such up as a defense in a criminal prosecution thereunder. Respondents are in no way threatened with irreparable injury to any property right which they may have.

In Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294, operators of trucks brought suit to enjoin law enforcement agencies from enforcing a statute limiting the weight of trucks used on the highways because the operators could not earn enough profits to justify such operations if limited to such weight limitations. The trial court granted the injunction. The enjoined law enforcement agencies ignored the injunction and were found in contempt and arrested. The Supreme Court, in an original habeas corpus proceeding, ordered the prisoners discharged on the ground that the injunction issued by the trial court was void. In making such holding, the court stated:

“We are further of the opinion that the petition upon which the injunction was issued shows upon its face that no vested property right of the complainants would be affected by the enforcement of this act. The complainants in the proceeding in which the injunctions were issued are not making, in common with the general public, the ordinary use of the highways, but an extraordinary one for the purpose of carrying on a business for profit. That they have no vested right to so use such highways is beyond question. Public highways and streets are constructed and maintained at the public expense. No person, therefore, can insist that he has, or may acquire, a vested right to use such streets and highways in carrying on a commercial business. * * * ”

Keeping in mind that the requirement of property rights being affected is related to adequacy of remedy at law (by setting up the unconstitutionality of the statute in a defense to criminal proceedings), what property rights do respondents Young Bros, and H. W. Williamson seek to protect?

The rights asserted by respondent Young Bros, is its business of manufacturing, selling and delivering to the job site highway paving materials. Enforcement of Section l(j) of Article 911b against Williamson in the operation of his truck will not cause irreparable injury to the business of Young Bros., although its method of shipment may be changed. Young Bros, can still ship its products over the highways by any certificated carrier licensed by the Texas Railroad Commission, by using trucks and equipment which it owns or by using vehicles which it leases, so long as the driver is one of its regular employees and not furnished by some other party. The fact that Young Bros, has entered into leases with Williamson which might be affected if the statute is upheld does not entitle Young Bros, to injunctive relief, for, as said in Sproles v. Binford, 286 U.S. 374, 390, 52 S.Ct. 581, 586, 76 L.Ed. 1167: “Contracts which relate to the use of the highways must be deemed to have been made in contemplation of the regulatory authority of the state.” Young Bros, can still allow Williamson to transport the paving materials, and if criminal proceedings are initiated, there will be ample opportunity to question the validity of the statute.

Respondent Williamson is the owner of the truck in question and asserts his rights in the use of his truck. Williamson will be able to test the constitutionality of Article 911b by proceeding to use his truck in the desired manner and defending against any criminal proceeding brought against him for such use of his truck. There is nothing in the law which will result in any irreparable injury to his truck or his business. The mere fact that Williamson’s, use of his truck will be interfered with by an arrest and prosecution for failure to have a permit from the Railroad Commission will not entitle Williamson to an injunction.

“ * * * [T]he threatened injury to property rights must be one which naturally and necessarily follows the threatened enforcement of the law, and not a loss arising merely from the arrest and prosecution of the party threatened.” State ex rel. Munro v. Superior Court, 35 Wash.2d 217, 212 P.2d 493, 496 (1949).

There being no threat of irreparable injury such that respondents would have no. adequate remedy at law, the writ of mandamus and prohibition is granted, but will actually issue only in the event of the failure of the respondent, Judge Logue, to take action in accordance with this opinion.