author: CHAPMAN, Justice.

text:
    Mabel E. BRUNSON, Appellant, v. Stanton W. BRUNSON, Executor, et al., Appellees.
    No. 7287.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 21, 1963.
    Rehearing Denied Nov. 25, 1963.
    Brock, Wright, Waters & Galey, Lubbock, 'for appellant.

      James F. Moore, and Albert Smith, Lubbock, for appellees.
   CHAPMAN, Justice.

The question of whether a husband and wife may enter into a joint tenancy agreement with right of survivorship with respect to community property funds deposited in time deposit accounts in two Lubbock banks where the husband departed this life on May 13, 1961, constitutes the subject matter of this suit.

The joint accounts in question of W. W. Brunson, and his wife, Mabel E. Brunson, are dated respectively on September 19, 1957, and April 7, 1958 signed by both and each contains the following language:

“We, the undersigned joint depositors, hereby agree each with the other and with the First National Bank, Lubbock, Texas, that all monies, now or at any time deposited by us or either of us, with said bank to the credit of this account, are and shall be so deposited by us and received by it upon the following terms and conditions of repayment, namely: that the amount thereof shall be paid by said bank to us, or either of us, or to the survivor of us, or the executors, administrators or assigns of such survivor, or upon the written order of any such person so entitled to payment; and without reference to the original ownership of the monies deposited.”

The joint tenancy with right of survivor-ship agreements with the two banks, signed by W. W. Brunson and Mabel E. Brun-son, contained the following language:

“The undersigned agree that all deposits in this account or any part thereof or any interest or dividends thereon may be paid to anyone of the undersigned, whether the other or others be living or not, on the receipt of acquitance of any of the undersigned, intending hereby to create a joint tenancy with the right of sur-vivorship.”

There is not any question in the record but that the funds constituting the time deposits were community property and there is not anything in the records showing a partition agreement whereby any property was mutually exchanged between the parties, or a judgment by a proper court authorizing a division of community funds in accordance with Article 4624a, Vernon’s Ann.Tex.Civ.St.

The case originated in the form of a suit by Mrs. Mabel E. Brunson for a Declaratory Judgment against Stanton W. Brunson (son of W. W. Brunson, deceased, by another marriage), individually and as Independent Executor of the Estate of W. W. Brunson, Deceased, and others, asking that the court declare that she owned as her separate property the bank accounts above named by virtue of the above described joint tenancies with rights of survivorship. Motions for Summary Judgment were filed by all parties. Appellant, Mabel E. Brunson’s motion was overruled and appellee’s motion granted awarding Stanton W. Brunson in his capacity as Independent Executor of the Estate of W. W. Brunson, Deceased, one-half of the monies here involved together with one-half of the accrued interest thereon to the date of delivery. It is from such judgment that Mrs. Mabel E. Brunson has perfected her appeal.

Under the authority of Ricks v. Smith, 159 Tex. 280, 318 S.W.2d 439, as the rule then existed by virtue of that opinion, we believe the agreements here involved would have been legal, proper and enforceable. That case had a strong dissent written by Justice Walker and joined in by two other justices. The case was announced on November 5, 1958.

On January 25, 1961, the Supreme Court in Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, specifically overruled Ricks v. Smith, supra. In doing so they held that corporate stock purchased with community funds and issued in the names of husband and wife as joint tenants with right of survivorship constituted community property. Justice Norvell, one of the majority in Ricks v. Smith, supra, wrote a strong dissenting opinion in Hilley v. Hilley, supra, in which he was joined by two other justices. Justice Steakley, being a comparatively new member of the court at that time, was not sitting, so the Hilley case had five justices in the majority with three constituting the dissent.

Since the Hilley opinion was announced, the United States Supreme Court has held that United States Government Bonds jointly owned and with right of survivor-ship pass to the survivor under the supremacy clause of the Federal Constitution, which resulted in invalidating any state law which, in effect, prohibited a married couple from taking advantage of the survivorship incidents of United States Savings Bonds merely because they constituted community property.. However, the opinion in quoting from and citing the Hil-ley case held: “ ‘It is clear that Federal regulations do not override our local laws in matters of purely private ownership where the interests of the United States are not involved.’ ” The instant case being one involving purely private ownership is not affected by the United States Suprem'e Court decision in Free v. Bland, supra.

A few months after the announcement of the Hilley case the Legislature of Texas amended Section 46 of the Probate Code, Vernon’s Texas Civil Statutes, by adding the following clause:

“It is specifically provided that any husband and his wife may, by written agreement, create a joint estate out of their community property, with rights of survivorship.”

This amendment did not go into effect until May 15, 1961, two days after the death of W. W. Brunson, as stated in the first paragraph hereof.

Since the property of a person dying testate or intestate vests immediately in the devisees or legatees , any change in the rule precluding survivorship in a joint tenancy agreement involving community funds, or property purchased with community funds, as announced in Hilley, was not affected by the 1961 amendment unless it could be said that the statute could be made to operate retroactively. Generally it could not be made to so operate in a case with facts such as ours because to do so it would take away vested rights even if it does change the rule announced in Hilley. The specific question as to whether the statute as amended is constitutional and compatible with the Texas Community property system is not passed on here because it is unnecessary to pass on it directly in this case. That is a question for the courts to pass on when it is raised directly.

There is no clear legislative intent shown in the 1961 amendment to Section 46 of the Probate Code to cause it to operate retroactively. To the contrary it specifically states that it would not apply to pending legislation.

But it is urged by appellant that the general rule to the effect that a statute should not be construed to operate retroactively unless the legislative intent is clear that it should do so has no application to curative acts, and appellant contends that the 1961 amendment to Section 46 is a curative act. If it is a curative act it is to “cure” a judicial decree, that announced in Hilley, and we do not believe the rule urged would apply to a situation such as we have here.

It is further urged that the failure of the trial court to uphold the joint tenancy with right of survivorship constituted an impairment of appellant’s contract. The question has been raised for the first time on appeal. It was not raised in the trial court so far as we can find in either appellant’s petition, motion for summary judgment, or other pleadings or affidavits. The trial court having not had an opportunity to pass on the question, we believe it is too late to raise it in this court. It has been textually stated that: “A reviewing court ordinarily will decline to consider questions not raised in the trial court. * * *” 4 T.J.2d Appeal and Error, Section 746, Page 242, and cases there cited.

This case does not come within the holding of Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, because there are no facts appearing in affidavits or other summary judgment “evidence” upon motion for summary judgment which would justify an amendment to the pleadings so as to show an impairment of contract. A contract is not impaired which is not legally enforceable. The rule in effect at the time the bank accounts came into being that gave rise to this controversy was Reed v. Reed, Tex.Civ.App., 283 S.W.2d 311. Until the holding in that case and Hilley are overruled by the Supreme Court, we are still bound by them. Whatever the Supreme Court may hold in regard to the 1961 amendment to Section 46 of the Probate Code it would not apply to our case because W. W. Brunson died two days before it went into effect.

We realize the Supreme Court has been sharply divided with firm convictions both ways on the principal question involved in this case. As an intermediate court, we feel that we are obligated to follow the majority in their last pronouncement of that court. Accordingly, the judgment of the trial court is affirmed.

      . Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180.

      . Section 37, Texas Probate Code, V.T.C.S.

      .Constitution of Texas, Article 1, Section 16, Vernon’s Texas Constitution; McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles H. MEYER, Petitioner, v. The STATE of Texas ex rel. M. L. LEFLER, Jr., et al., Respondents.
    No. 6673.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 3, 1963.
    Rehearing Denied Oct. 30, 1963.

      Gilbert T. Adams, Beaumont, for petitioner.
    W. G. Walley, Jr., W. C. Lindsey, Dist. Atty., Beaumont, for respondents.
   PER CURIAM.

This is a petition for writ of mandamus. An action to remove the Sheriff of Jefferson County was based upon Art. 5977 and related articles, T.R.C.S. The jury did not answer some of the questions submitted, and a mistrial was declared. This action was brought to compel the trial judge to enter judgment for the sheriff upon the issues which were answered.

The petition in the trial court alleged 19 causes as grounds for removal, all of which were denied by the sheriff.

The 19 grounds for removal were submitted separately for answers by the jury, as well as the paragraph containing a general finding either for the State or the Relator. The jury answered 13 of the causes for removal in favor of relator but were unable to agree upon the answers to the other six causes. In addition, the general finding was completed so that it read, “Wet the Jury, find for Charles H. Meyer”. Relator made motion in the trial court for judgment upon this verdict and the State made motion for mistrial because of failure of the jury to answer the six causes inquired about. The court overruled relator’s motion and granted mistrial in the following language:

“It is therefore ORDERED, ADJUDGED and DECREED by the Court that the defendant’s said motion in its entirety and in each respect be and it is hereby overruled to which action of the Court the defendant excepts.
“It further appearing to the Court that in the opinion of the Court a mistrial should be declared.
“It is therefore ORDERED, ADJUDGED and DECREED by the Court that a mistrial be and is hereby declared in this cause and said cause is to be set down for trial in regular order at such time as the Court and parties can arrange therefor.
“RENDERED on this the 19th day of April, A.D., 1963, and entered on this the 30th day of April, A.D., 1963.
“s/ Wilmer B. Hunt “Presiding Judge”

In the case of Johnson v. Court of Civil Appeals, Tex., 350 S.W.2d 330, a condemnation suit was being tried before a jury. After the verdict was returned and before a judgment was entered, the trial court granted a new trial. Mandamus was granted by the Court of Civil Appeals ordering the trial court to enter a judgment on the jury verdict. The Supreme Court held as follows:

“There are only two instances where any appellate court of this state has ever directed the trial judge to set aside its order granting motion for new trial. These instances are:
“(1) When the trial court’s order was wholly void as where it was not entered in the term in which the trial was had; and
“(2) Where the trial court has granted a new trial specifying in the written order the sole ground that the jury’s answers to special issues were conflicting.
“Neither of the two situations exists here. The motion for new trial was granted during termtime, and the trial court did not specify on what grounds he was granting the motion for new trial.”

The last paragraph is true of the situation existing in the case at bar. That is, the motion for mistrial was granted during termtime, and the order did not specify the grounds. We see no legal distinction in the application of the rule of the Johnson case, supra, between a mistrial and a new trial. Article 1824, V.A.T.S., gives a Court of Civil Appeals authority to compel a trial court to proceed to trial and judgment. As it was said in the Johnson Case, supra, since the motion for new trial was granted by the trial court, it was not required by the rules to render judgment in the cause, and the Court of Civil Appeals is without authority to so order.

Further, we have concluded the granting of the mistrial involved a matter of judicial discretion. The trial court had to determine first that the unanswered issues were material, and then whether or not there was evidence to support such issues. This determination necessarily involved judicial discretion. Chancey v. New Amsterdam Cas. Co., Tex.Civ.App., 336 S.W.2d 763. The determination by the court having been based upon reasoning involving judicial discretion, no mandamus could lie. Gulf, C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296; and Cortimeglia v. Davis, 116 Tex. 412, 292 S.W. 875.

The matter of the form of submission of this case to the jury is not directly before us. However, in view of a new trial in this case, and in an attempt to assist trial courts in this and other removal cases, we express our opinion as to the charge. It is noted that the first line following the number of the Article, 5978, is the title “General Issue submitted”. However, nothing in the body of the article makes any further mention of a general issue. The article next reads, “In these cases, the judge shall not submit special issues to the jury, * * *” but then gives specific instructions as to how the charge should be framed. This article continues and concludes as follows:

“ * * * but shall, under a proper charge applicable to the facts of the case, instruct the jury to find from the evidence whether the cause or causes of removal set forth in the petition are true in point of fact or not; and, when there are more than one distinct cause of removal alleged, the jury shall by their verdict say which cause they find sustained by the evidence before them, and which are not sustained. R.S. 1879.”

We think the title to this article is misleading — “General Issue submitted”. Rule 277, T.R.C.P., provides for submission of a case to a jury either upon special issues or a general charge. The term “general issue” has been construed in the past by this court in Shell Petroleum Corp. v. Liberty Gravel & Sand Co., Tex.Civ.App., 128 S.W.2d 471, to be synonymous with “general denial”. Using that interpretation would give this title no meaning. This court held in Drake v. Yawn, Tex.Civ.App., 248 S.W. 726, that a headline is no part of an article in considering its construction. There is nothing in the body of the statute providing for the submission of the general finding as submitted by the charge in our case. We are of the opinion that the charge in such a removal proceeding should require the jury to find whether each specific cause alleged in the petition is true in point of fact, and a finding on each of these causes would satisfy the requirements of this Article, 5978. It was not the intention of the legislature to place the burden on the defendant in these cases to prove the charges untrue; therefore, the charge should be clearly drawn so as to place the burden of proof from a preponderance of the evidence upon the State.

Mandamus denied.


author: DAVIS, Justice.

text:
    Levoy MUSICK, Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION, Appellee.
    No. 7526.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 22, 1963.
    Rehearing Denied Nov. 19, 1963.
    C. C. Devine, Houston, for appellant.
    Liddell, Austin, Dawson & Sapp, W. Robert Brown, L. M. Lesh, Houston, for appellee.
   DAVIS, Justice.

A summary judgment. Appellee sued appellant on a time sales contract and mortgage as the result of the purchase of a 1962 Pontiac Station Wagon from Frizzel Pontiac, Inc., of Houston, Texas. The original total time price of the contract and mortgage was $5,703.80. The time (Deferred) balance was $4,771.80. Appellee alleged that there was $4,374.15 still due on the contract and mortgage. There was attached to the priginal petition as Exhibit A a copy of the contract and mortgage, no credits being shown of any payments having been made. The appellant filed special exceptions, wherein he alleged that the appel-lee did not take into consideration the legal obligation Frizzel Pontiac, Inc., owed to the defendant on the “Dealer’s Warranty”. Appellant further alleged an expressed or implied warranty by way of special exceptions. Then he answered by a general denial. At the close of the Answer he inserted the following: “Cross-Action . . . To-Follow”. Appellee then filed a motion for summary judgment, wherein it set out that the appellee had filed a general denial. The motion was not sworn to, nor was a copy of the contract and mortgage attached. Appellant answered the motion for summary judgment, wherein he set up the “New Car Warranty”, and alleged that the automobile was defective in its motor, electrical system and transmission. The answer was verified.

In the contract the seller reserves title to the station wagon. There are several other reservations in the “Provisions” attached to the contract and mortgage that were made a part of the same. The “provisions” of the contract and mortgage contain the following warranty:

“8. No warranties, express or implied, and no representations, promises or statements have been made by seller unless endorsed hereon in writing, except that, if the property covered by this contract is a new motor vehicle, seller hereby adopts the warranty against defective materials of workmanship as set forth in manufacturer’s current warramty applying to such new motor vehicle.” (Emphasis added.)

The trial court granted the summary judgment. Appellant has perfected his appeal and brings forward two points of error whereby he set up the trial court committed error in granting the summary judgment because fact issues were raised, and is contrary to the law and the Rules of Civil Procedure.

There was no evidence actually plead by the appellee, and no evidence actually offered that would prove its cause of action. The trial court granted a judgment for $4,022.80, plus 6% interest from August 6, 1962, until paid. Pie did not render judgment for an attorneys’ fee. No credits being shown on the contract and mortgage, the contract and mortgage containing a warranty applying to new motor vehicles, and the contract and mortgage having been assigned and delivered to the appellee, the general denial and the sworn denial to the motion for summary judgment setting up the warranty, created issues of fact. See the dissenting opinion of Chief Justice Calvert of the Texas Supreme Court in Southwestern Fire & Casualty Co. v. Larue at 367 S.W.2d 164, 37a T.J. p. 292, Chapter 11, Conditions, Representations and Warranties.

There is in this case a sworn denial in addition to the general denial. Such was not the case in Southwestern Fire & Casualty Co. v. Larue, Tex., 367 S.W.2d 162. Our Summary Judgment Rules are harsh indeed, and they must be construed carefully.

The points of error are sustained. The judgment of the trial court is reversed and the cause is remanded.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky ex rel. DIVISION OF UNEMPLOYMENT INSURANCE, Appellant, v. Harry B. GOHEEN, doing business as Goheen Electric Company, Appellee.
    Court of Appeals of Kentucky.
    Nov. 29, 1963.
    Paul E. Tierney, Clarence E. Powell, Forest Smith, Frankfort, for appellant.
    E. Gaines Davis, Jr., and Smith, Reed & Leary, Frankfort, for appellee.
   STEWART, Judge.

Appellee, Harry B. Goheen, d/b/a Go-heen Electric Company, was and is an electrical contractor having his principal office in Huntington, West Virginia. In April, 1956, appellee was awarded a sub-contract to do electric work on a building being constructed in Floyd County. The work was completed in August, 1957.

Appellee employed all the labor used through the union hiring hall in Huntington. Some of these employees were residents of West Virginia and some were residents of Kentucky. All of these workers, regardless of residence, were paid for travel to and from Huntington. All wages paid by appellee to all of his employees, regardless of the residence of the employee or the location of the work performed, were reported to the West Virginia Department of Economic Security for the purpose of assessment of contributions for unemployment compensation.

Appellant brought this action, averring appellee owes contributions to the Unemployment Insurance Fund on all wages he paid his employees (except certain “key” employees) for services performed by them on the Floyd County project, amounting to' $1312.44, plus additional penalties. The trial court found all the employees in question were West Virginia employees within the meaning of KRS Chapter 341, and their work under the conditions mentioned was temporary or transitory in nature. He also ruled that, as residence is not a condition of eligibility for unemployment insurance payments, such benefits were available to ap-pellee’s employees in West Virginia. Further, it was determined that, by reporting to the West Virginia Department of Economic Security, appellee had done all that could reasonably be expected and that to require him to report the same wages in Kentucky could result in double taxation.

It was stipulated the only other work done by appellee in Kentucky was in 1949, at which time he made unemployment compensation contributions to appellant on wages paid in connection therewith. Appel-lee failed to file the application for termination of coverage, required by KRS 341.250, when he completed that contract and left the state. All parties agreed that appellee was a subject employer in Kentucky and was obligated to make contributions, if the wages he paid were advanced for “covered employment.”

The provisions of KRS 341.050, which we believe are determinative of the question raised, read in part:

“(1) As used in this chapter, unless the context clearly requires otherwise and subject to other provisions of this section, ‘covered employment’ means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied in which the relationship of the individual performing such service and the employing unit for which such services are rendered is, as to those services, the legal relationship of employer and employe.
“(2) ‘Covered employment’ includes a worker’s entire service performed within or both within and without this state if: (a) The service is localized in this state; * *
* * * * * *
“(4) Service shall be deemed to be localized within a state if'
“(a) The service is performed entirely within such state; * *

Appellee has not furnished us with a brief and, since appellant has filed its brief in time, we are electing to dispose of this case in accordance with provisions (1) and (2) of RCA 1.260(c), which are: “ * * * (1) [ajccept the appellant’s statement of the facts and issues as correct; or (2) reverse the judgment if appellant’s brief reasonably appears to sustain such action; * *

Appellant argues that the statute makes the location of employment the chief criterion of coverage. It asserts work is “localized” in Kentucky when it is performed within this state and, when so localized, it is “covered employment” under the law of this state.

In 48 Am.Jur., Social Security, Unemployment Insurance, etc., sec. 15, pocket part, p. 51, it is stated:

“ * * * As summarized, the tests prescribed in the uniform provision of this kind appearing in many of the Unemployment Compensation Acts have been, in essence — first, the place where work is ‘localized’'; second, the situs of ‘base of operation’; third, the situs of ‘place from which such service is directed or controlled’; and fourth, the situs of employees ‘residence.’ Under statutes of this character, there is agreement that the tests are to be applied consecutively, in the indicated order of preference, beginning with the test of ‘localization’ of the work.”

An annotation in 9 A.L.R.2d p. 647-648, explains the same tests and states they are to be used consecutively and preferentially, as outlined above.

Kentucky, and an overwhelming majority of the states, have enacted the uniform statute, of which the foregoing is a portion, for the treatment of multistate workers. The interpretation of this statute is discussed in 49 Columbia Law Review, p. 993-1000, in an article entitled “Unemployment Compensation for Multistate Workers.” The author says (p. 993-994):

“A worker is within the scope of a state’s unemployment insurance statute only if his services constitute ‘employment’ as defined therein. State legislatures have, therefore, attempted to simplify administration of benefits to multistate workers by adopting a uniform definition- of employment.’ Grounded on the premise .that one, and only one, state should be responsible for coverage, the definition is designed to select for responsibility that state in which the individual is most likely to becomé unemployed and seek work.”

It appears the agreed facts in this case present an employing unit which meets all of the conditions. of the Unemployment Compensation Act necessary .to require it to pay in Kentucky the tax levied. By simply reading the pertinent portion of KRS 341.-050j quoted above, it is clear the chief criterion of -coverage is the location of the employment. Where, as here, all the work is performed within this state it is undoubtedly “localized” in this state and constitutes “covered- employment” ¡under the law of this state’. ■ The location of the employer’s place of'business is not material in determining: whether the' services performed for him are covered by the Act because, if the services rendered by:an employee are localized in-the'state, there is no need for considering this-factor or, indeed, the other criteria for coverage hereinbefore mentioned.

• The trial court concluded that to require appellee" to report the employee’s earnings to Kentucky, after having already reported them to West Virginia,' could result in double taxation. Such a result was reached in Re Mallia, 299 N.Y. 232, 86 N.E.2d 577, 9 A.L.R.2d 636. The .court in that case pointed out that payments had been made to New Jersey under an administrative ruling when in fact, according to the New York court’s holding, such payments should have been made to New York. In deciding that the employer must make payments in full in New York, even though payments were made in New Jersey, based upon the services of the employee-there, the New York court said (86 N.E.2d 582, 9 A.L.R.2d 645) : “To depart from the manifest purpose of the law in this case, in order to resolve a conflict between- administrative construction of the uniform provisions in New York and New-* Jersey; would, not promote uniformity of application by all of the States which have similar statutes.” The case at bar is one where the employer proceeded at his own risk in making payments, if in fact he did so, under an administrative ruling.

Wherefore, the judgment is reversed with directions to enter a new one in conformity with this opinion.


author: CLAY, Commissioner.

text:
    UNITED FUEL GAS COMPANY, a Corporation, Appellant, v. J. U. THACKER et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 29, 1963.

      Hobson & Stephens, Baird & Hays, Pike-ville, C. E. Goodwin, H. Raymond Andrews, Jr., Charleston, W. Va., for appellant.
    L. D. May, Pikeville, for appellees.
   CLAY, Commissioner.

.Appellees, the plaintiffs below, recovered an $81,000 judgment against the appellant defendant for personal injuries and property damage resulting .from the alleged negligence of defendant in the construction of a gas pipeline. Defendant’s only contention on appeal is that it was entitled to a directed verdict.

There is little dispute about, the facts. Defendant owned a 6 inch natural-gas pipeline which crossed plaintiffs’ property. When plaintiffs began construction of a building thereon they requested defendant to move its pipeline. This the defendant did, with both parties sharing the cost.

The work was begun and completed in the summer of 1957. The pipe was laid several feet below the ground floor level,, traversed the front of the building- (between it and a highway), turned at a corner thereof, and ran along its side. Near the building, in front, á shelf of rock was encountered. The pipe was laid on this rock, and about two feet beyond its edge a miter joint was made. From thence it angled down-, ward and around the corner of the building.

When defendant had finished its work of relaying the pipe, for several feet beyond the joint a portion of it projected in the air without any support. Thereafter plaintiffs made a fill of loose dirt over it between the building and the highway. Defendant knew plaintiffs intended to máke this filll.

- ■ A-bout a year later the fill settled and the basement wall bowed inward. Plaintiffs reinforced the wall and added additional earth to level the fill. About that time plaintiffs also built a concrete slab porch which apparently extended over the pipe where the joint had been welded. Two years later, in September 1960, the earth in the fill shifted, the pipe broke at the joint and a fire resulted which caused plaintiffs’ damages.

The actual cause of this break appears obvious, and the expert witnesses for both plaintiffs and defendant substantially agree about it. The weight of the fill (including the porch) combined with the shifting of the earth to exert downward and torsional pressure on the pipe where it extended beyond the joint and made an L turn around the'corner of the building. The fulcrum of the lever was the edge of the solid rock, and the weld at the joint could not stand the strain.

There was no evidence of a defect in the pipe or in the weld, or in the directional method of laying it. The only evidence of negligence was the failure of defendant to provide adequate support under and for several feet beyond the welded joint. As we have noted, defendant left the pipe partially suspended in mid-air at that point and the only support it subsequently acquired was the loose earth which settled under it when plaintiffs made the fill.

Defendant cites some weary principles of law to the effect that negligence will not be presumed, and wher.e evidence is as equally consistent with the existence of negligence as, with non-negligence, the plaintiff has failed to make a case. See Johnson v. Mobile & O. R. Co., 178 Ky. 108, 198 S.W. 538; McAtee v. Holland Furnace Co., Ky., 252 S.W.2d 427. These principles are not helpful. In both of the cases cited the speculative question was what agency, act or condition was the actual cause of the accident, as distinguished from the question of whether negligence played a part in the chain of causation. (Confusion may often be avoided by limiting the concept of cause to the interaction of natural forces. In this sense, negligence does not cause accidents. Negligence creates the conditions out of which they arise.) Here the actual cause of the breaking of the pipe was established.

Our problem involves the first link in the chain of causation. The basic issue is whether defendant negligently created the condition that ultimately resulted in the accident. More specifically, it is whether a jury could draw a reasonable inference of negligence from the fact that the defendant failed when it laid the new pipeline to provide adequate support beyond the rock ledge. See Taylor-Green Gas Co. v. Newcomb, 302 Ky. 564, 195 S.W.2d 307. That inadequate support in certain situations may be the result of negligence seems clear. As stated in Willis-Thornton Oil and Gas, Vol. 3, section 1173 (page 1591):

“The improper laying of a gas line, such as hot' properly supporting it in loose and shifting soil, is an act of negligence, and if for that reason it breaks and an explosion caused by leakage inflicts'injury to one not contributorily negligent, liability attaches. In laying pipe lines the company is chargeable with notice of the tendency of the soil to sink or subside leaving the pipes without proper support.”

Further refining the issue, the question is whether defendant could reasonably foresee that the failure to provide adequate support would result in the development of a hazardous condition when a deep fill was made over the pipe. It is evident defendant knew plaintiffs would make a substantial fill, and could anticipate that part of it would inevitably extend over the pipe at the corner of the building where it made an L turn. Also a normal settling and even shifting of the loose earth could be expected. While defendant was not aware that plaintiffs intended to build a concrete porch which would extend over the pipeline, it does not appeal the addition of this porch was either an unusual event or constituted such a material change of condition as to have caused the break independently of the other factors involved.

Mullins v. United Carbon Co., 282 Ky. 111, 137 S.W.2d 1089, is pertinent here. Defendant laid a 3 inch gas pipeline on the surface of a roadway. When the plaintiff ran over it in his automobile a coupling broke and he suffered injury from the escaping gas. It was held that the jury could properly find the defendant negligent in creating the dangerous condition which it could reasonably anticipate would cause an injury of the kind sustained.

Even more directly in point is McWilliams v. Kentucky Heating Co., 166 Ky. 26, 179 S.W. 24, L.R.A.1916A, 1224. There the defendant had laid an 8 inch gas pipe in the ditch along a country road at an average depth of one or two feet. Many years later the pipe was punctured by spikes on a steamroller, causing injury to the operator thereof. It was held the defendant had a duty to anticipate operations on the road of the kind which caused the accident, and even to anticipate changing conditions brought about by the use of modern road building equipment.

In the light of the last two cited cases, we cannot say as a matter of law that the injurious event which occurred in this case could not have reasonably been foreseen by defendant as a natural and probable consequence of the failure to solidly secure this pipe at a point where it would be subjected to a severe strain. Therefore, the issue of negligence was one for the jury to determine.

Defendant further contends the acts of the plaintiffs constituted the immediate and proximate cause of the breaking of the pipe. Our earlier discussion effectively answers this argument, and it was very carefully considered in the McWilliams case (166 Ky. 26, 179 S.W. 24, L.R.A.1916A, 1224). As indicated by the cases cited- in defendant’s brief, an intervening cause which would insulate from liability the person creating a condition must be independent and unrelated to the original act. Here the plaintiffs’ acts were complementary to and interrelated with the condition created by the defendant which ultimately developed into a hazardous situation. We take the following quotation from defendant’s brief:

“If the defendant’s active force has come to rest, but in a dangerous position, creating a new or increasing an existing risk of loss, and the foreseen danger comes to pass, operating harmfully on the condition created by defendant and causing the risked loss, we say that the injury thereby created is a proximate consequence of the defendant’s act. * *

“The Proximate Consequences of An Act”, 33 Harv.L.Rev. 633, 650.

Since the acts of the plaintiffs are exactly what we have heretofore said the defendant may reasonably have foreseen, they formed a natural link in the chain of causation rather than an independent force.

It is finally Contended- for defendant that the plaintiffs were contributorily negligent. It is true the plaintiffs were aware of the condition of the pipeline before they made the fill over it. One of the plaintiffs had had some experience in gas well operations and perhaps he could have appreciated the danger of the unsupported pipeline. On the other hand, he' may have ha'd a right to assume defendant’s experts had left the pipe in a safe condition to withstand the pressures of a fill. We cannot sayas a matter of law that he was contributorily negligent, and the issue was properly submitted to the jury.

By cross-appeal plaintiffs contend the trial judge improperly deducted from the property damage item approximately $6,000 because a portion of plaintiffs’ destroyed building was on the state’s right of way. It is not clear how this question was injected into the case and it is very scantily briefed by plaintiffs. (Defendant failed to reply to this contention.)

Admittedly plaintiffs built this building. They had prima facie title to it. If part of it encroached upon the Commonwealth’s right of way, the Commonwealth may have had a cause of action against the plaintiffs. A court of equity could possibly give the latter one of several kinds of relief. Or the Commonwealth could acquiesce in this encroachment (as apparently it had done). However, that controversy, if any, is between the plaintiffs and the Commonwealth. The defendant has no interest in it and is in no position to assert rights on behalf of the Commonwealth. The plaintiffs’ ostensible ownership of this building entitled them to full recovery for its destruction. We believe the trial court erred in deducting this item of damages.

The judgment is affirmed on appeal and reversed on the cross-appeal, with directions to modify the judgment' consistent -with this opinion.


text:
    Mattie K. BAKER, Appellant, v. Charles B. REESE et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 29, 1963.
    Charles C. Smith, Roy W. House, Manchester, for appellant.
    Ray C. Lewis, London, for appellees.
   CLAY, Commissioner.

This is a boundary dispute between the appellant and appellees. The parties stipulated that the “William Reese line” was the common line between their properties and that the correct location of this line was the matter in controversy. The trial judge first entered a judgment in accordance with the stipulation, fixing this boundary. He subsequently set that judgment aside and entered the judgment appealed from, which ■did not make any attempt to locate the “'William Reese line” but fixed another boundary to which appellees had claimed adverse possession. (The judgment also fixed other boundaries of appellees’ property which were in no way involved in this litigation.)

Although appellant was allowed part of the property in dispute by the second judgment, which she would not have had under the first judgment, she is dissatisfied. Ap-pellees are likewise dissatisfied, although they did not cross-appeal.

Under the stipulation the beginning point of the “William Reese line” was agreed upon. Appellant’s surveyors located the line by taking a directional call north 2 degrees .10 minutes east. Appellees’ surveyor, following a marked line and a terminal call at a spotted oak tree, ran the line north 7 degrees 30 minutes east. Whichever one of these boundaries constituted the correct “William Reese line”, it was stipulated that appellant owned the land east of the line and appellees owned the land west of it.

Appellees introduced proof showing adverse possession to a certain portion of the strip in controversy. It was on the basis of this proof that the trial court fixed a boundary line.

The stipulation of the parties limited the issue in this controversy to a determination of the correct location of the “William Reese line”. Such a stipulation is a valid one. 83 C.J.S. Stipulations § 10f (6), page 18. The court is bound thereby •in the absence of some reason to invalidate it. 83 C.J.S. Stipulations § 17, page 37. From another standpoint the stipulation constituted a judicial admission by appellees that they had no title to land lying east of the “William Reese line”.

The judgment fixed a boundary line which had been excluded from consideration of the court by the stipulation and one which was contrary to the judicial admission of appellees. This was obvious error.

The judgment is reversed, with directions to adjudicate the controversy consistent with the stipulation.


author: MELVIN T. STUBBS, Special Commissioner.

text:
    WINN-DIXIE LOUISVILLE, INC., Appellant, v. Lieselotte SMITH, Appellee.
    Court of Appeals of Kentucky.
    Nov. 29, 1963.

      Norman A. Curtis, Louisville, for appellant.
    Louis N. Garlove, Carl J. Bensinger, Louisville, for appellee.
   MELVIN T. STUBBS, Special Commissioner.

This is an appeal from a judgment in favor of Lieselotte Smith in the amount of $5,989. Motions of appellant, Winn-Dixie Louisville, Inc., for a directed verdict were overruled. The appellant contends that appellee was contributorily negligent, as a matter of law, and that the trial court erred in submitting the matter to the jury. Upon this ground appellant asks that this Court reverse the judgment of the lower court and sustain its motion for judgment notwithstanding the verdict.

On April 4, 1959, appellee entered the Winn-Dixie market at Valley Station for the purpose of purchasing fruits, vegetables, and other commodities. Immediately upon entering the market she obtained a metal, merchandise cart of the type generally-provided by such establishments for the convenience of customers. Pushing the cart down the first aisle of the market where, to the right of appellee, were displayed fresh fruits and vegetables, appel-lee selected certain of the fruits and placed them in the cart. She proceeded down the aisleway, pushing the cart to a position where, on her left, were situated two bottle boxes, placed side by side, each measuring 35}4 inches in length and 25-inches in width. These boxes were of plywood construction and were used - as a depository for empty bottles. To the rear of the bottle boxes, and abutting them, was a scale table the approximate height of the bottle boxes, and measuring 23}4 inches in length and 23^ inches in width. Atop this table was a scale used in weighing fruits and vegetables.

Pushing the cart past the rear corner of the bottle boxes, and positioning it so that the left front of the cart was nearest the scale table, appellee moved to the left of the cart and removed therefrom the fruit which she had earlier selected. She handed it to appellant’s employee so that it might be weighed by him. The rear of the scale was nearest the bottle boxes so that appellant’s employee would, in weighing merchandise, face such bottle boxes. Having weighed the fruit, appel-'Tant’s employee handed it back to appel-lee, who turned to place it in the cart. In the process of turning, appellee elevated her foot and stepped into a cardboard box which, according to the testimony, varied in height from 4i/¿ inches to 7 inches. Ap-'pellee testified that such box was 20i/á inches in length and 13 inches in width. She fell to the floor, with her right elbow striking the metal merchandise cart, sustaining personal injuries, the extent of which is not important to this appeal. The cardboard box was situated on the floor to the left of and abutting the scale table and against the end of the bottle boxes. One of the bottle boxes extended almost its entire width from the left rear of the scale table, so that a 90-degree angle was formed by the juxtaposition.

It was testified by William T. Owen, manager of the Winn-Dixie market at the time of the incident, that the cardboard box into which appellee stepped was kept in its position to the left of the scale table so that trash, garbage, or items of fruits and vegetables which might fall to the floor in the area of the scale could be picked up and deposited in this box. .It was the practice of appellant’s employees to pick up this loose produce and place it in the cardboard box. Appellee testified that she did not see the box into which she stepped until after her fall.

Appellant was charged with the duty of exercising ordinary care to have the floor of the store where appellee fell in a reasonably safe condition for its customary use. It might have been anticipated by the appellant that the placing of the cardboard box, which served as a receptacle for trash, in a position to the rear of the bottle boxes and to the- left of the scale upon which merchandise selected hy its customers would be weighed, would pose a threat to the safety of their customers. The appellee was required to have the fruit she had selected weighed by appellant’s employee. The scale was positioned and provided by appellant for that purpose. The jury found that the appellant was negligent in placing the cardboard box in the position it was at the time ap-pellee fell. We concur in this finding. We have many times held that the placing of such obstructions in stores by the owners thereof sufficiently raises the question of negligence to be decided by the jury.

In the case of Young’s Adm’r v. Farmers & Depositors Bank, 267 Ky. 845, 103 S.W.2d 667, we held:

“The duty owing by an owner or person in possession to those who come on the premises by invitation, express or implied, is not to insure his safety, but it is to use ordinary care to have the premises in a reasonably safe condition. He must exercise a protective vigilance to see that his invitees are not led into a trap, or dangerous condition known, or which ought to have been known, to him, but hidden from the other or so concealed that he could not observe it in the exercise of ordinary care for his own safety.”

Counsel for appellant urges this Court to take cognizance of the use of cardboard boxes by grocer-keepers as containers for trash and produce necessary and incident to the duty imposed upon a storekeeper to keep his floors free of debris. We accept this fact relating to the use of cardboard boxes as receptacles for trash, but we reason that it is not their use as such, but rather their placement by the storekeeper in a position where they expose his. customers to danger, that results in his failure to exercise ordinary- care to keep the premises in a reasonably safe condition for his customers. The placement-of the cardbodrd box in its position ■to the left of the scale table and behind the bottle boxes, which extended almost two -feet from the left of the scale table, could be found to' have created a dangerous condition and to constitute negligence on the part of appellant. ‘ It could reasonably have been expected -that customers of Winn-Dixie would walk in this area adjacent to the scale.

Appellant contends that appellee was contributorily negligent, as a matter of law, in failing to see the cardboard box as she walked down the aisle and toward the scale. We cannot agree. .Appellee testified that she did not see the cardboard box until after she fell. We are not convinced that the evidence in this case showed without substantial doubt that appellee could have seen the cardboard box in the position where it was located as she pushed the cart down the aisle of appellant’s store to the position where she removed the produce from the cart and handed it to appellant’s employee. While appellee was required to'exercise ordinary care for her own safety, such did not require her to look directly down at her feet with each step taken. Humbert v. Audubon Country Club, Ky., 313 S.W.2d 405. Appellee had entered appellant’s market as a customer. At thé time she sustained the fall she was in a part of the market where she had a'right to be, and where expected to be, as an invitee. Wall v. F. W. Woolworth Co., 209 Ky. 258, 272 S.W. 730. She had a right to assume that' the floor of the market would be free from obstructions of a dangerous nature. While she was required to exercise ordinary care for her own safety, she was not required to look for danger when there was no reason to apprehend danger.

• Finally, contention is made by appellant that appellee was contributorily negligent, as a matter of law, in that having reached the scale without mishap and having remained there while the produce was being weighed, she stepped backward into the cardboard box. In support of this contention, appellant cites Layman v. Ben Snyder, Inc., Ky., 305 S.W.2d 319, wherein this Court .affirmed the trial court in directing a verdict for defendant. In the Layman case the plaintiff, a customer in defendant’s store, while examining merchandise, stepped backward two or three feet and fell down the stairs. There was no defect in the stairs, or top step, or in the areaway at the head of the stairs. It was pointed out in the Layman case that the stairway was clearly visible and the top portion thereof plainly in view. In the case at bar, the cardboard box into which appellee stepped was, according to her testimony, hidden from her view. The testimony is not clear, and we are not prepared to conclude therefrom, whether, upon being handed the produce which had been weighed by appellant’s employee, the appellee stepped backward or to the side. Under the circumstances, whether the movement executed by appellee, and which preceded her fall, constituted a step backward or a step to the side is of no real significance. In either event, it might be reasonably concluded that such movement on her part • was but a normal part of, and incident to, shopping in our present day supermarkets when one employs the use of ■ a produce cart provided by the 'owner for the convenience of the customer. If, in fact, the action of appellee •'in taking a step backward, or a step to the side, constituted negligence on her part, which we are not prepared to concede, her action in this respect was not such as to warrant a judicial determination that she was contributorily negligent as 'a matter of law.

The question of contributory negligence is ordinarily one for the jury, and it is only when the proof is such that reasonable minds can draw but one conclusion, that is, that plaintiff was negligent, that the question is one of law for the court to decide. Winebarger v. Fee, 305 Ky. 814, 205 S.W.2d 1010.

For the reasons herein given, we conclude that appellee cannot be charged with contributory negligence as a matter of law .on either ground asserted by appellant. The trial court submitted the matter to the jury on both the issues of due care on the part of Winn-Dixie and contributory negligence on the part of Liesclotte Smith. This was proper. The order of the trial court overruling appellant’s motion for judgment notwithstanding the verdict was, likewise, proper.

We recommend that the judgment be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


text:
    Edward T. BREATHITT et al., Appellants, v. WARREN COUNTY ELECTION COMMISSION et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.
    Parker W. Duncan and William E. Al-lender, Bowling Green, for appellants.
    Ray B. White, Paul R. and Joseph R. Huddleston, J. Reid Caudill, Bowling Green, for appellees.
   CLAY, Commissioner.

In this suit (filed prior to the November 5, 1963 election) the Democratic candidates for the office of Governor, Lieutenant Governor, and City Prosecutor of Bowling Green sought an injunction against the Warren County Election Commission and one of its appointees, defendant Lowe. The Chancellor denied the relief requested.

The controversy concerns the alleged illegality of the Commission’s act in appointing Lowe, a registered Democrat, as the Republican judge of the election for a voting place in Warren County. Plaintiffs contend the provisions and requirements of KRS 116.070 were violated.

The Chancellor adjudged that Lowe was qualified as an election officer to represent the Republican Party at this election, and that the Commission was acting within the scope of its authority and in compliance with the applicable statutes when it made the appointment. Without determining the correctness of this ground of the Chancellor’s ruling, we are of the opinion an injunction was properly denied because the plaintiffs failed to allege or prove a right to relief.

Insofar as the plaintiffs are concerned, the apparent controversy is an academic one. They failed to allege or prove that the appointment of defendant Lowe, or the carrying out of his duties as an election officer, will in any way adversely affect or injure them either as candidates or as citizens and taxpayers. While there is an allegation in the complaint that the conduct of defendant Lowe “will serve to intimidate voters and tend to interfere with the free and fair casting of ballots”, this is not only a speculative conclusion without evidenti-ary support, but it does not appear how this anticipated conduct will cause any, much less irreparable, injury to the plaintiffs. Assuming some basis for this charge (which we cannot find in the record), unless the plaintiffs show some damage different in character from that which may be sustained by the public generally, they have not established a right to relief. 28 Am. Jur., Injunctions, section 178 (page 681).

It is axiomatic that an injunction will not lie unless the defendant is doing or threatening an act which will be injurious to the one seeking the injunctive relief. Board of Trustees of Demossville Graded Common School Dist. v. Board of Education, 193 Ky. 502, 236 S.W. 1038. As said by the Supreme Court of the United States in United Fuel Gas Co. v. Railroad Comm., 278 U.S. 300, 310, 49 S.Ct. 150, 152, 73 L. Ed. 390:

“Suitors may not resort to a court of equity to restrain a threatened act merely because it is illegal or transcends constitutional powers. They must show that the act complained of will inflict upon them some irreparable injury.”

To the same effect is Morrow v. City of Louisville, Ky., 249 S.W.2d 721. The fact that public acts or officials are involved does not change the rule. See Hettel v. Furste, 260 Ky. 844, 86 S.W.2d 1018; Little v. Bogie, 300 Ky. 668, 190 S.W.2d 26.

Attention is called to two election cases which exhibit a recognizable injury authorizing injunctive relief. In Farleigh v. Reedy, 165 Ky. 782, 178 S.W. 1077, the plaintiff seeking an injunction was the Republican candidate for office who would be adversely affected by the action of the Board of Election Commissioners in failing to appoint election officers from a list furnished by the Republicans. In Graham v. Treadway, 166 Ky. 768, 179 S.W. 1029, in-junctive relief was granted against precinct election officers to require them to perform their duties when the plaintiff was a candidate for office who claimed that the illegal acts would result in his losing the election.

Under the circumstances of this case, perhaps a Republican candidate may have had just cause to complain that Lowe, a registered Democrat, was appointed to represent Republican interests at the polls. Possible prejudice to the opposing party is not a ground upon which plaintiffs, the Democratic candidates, may claim to have been injuriously affected.

Assuming, without deciding, that the appointment in controversy was unauthorized, since the plaintiffs did not establish any injury resulting therefrom, injunctive relief was properly denied.

As heretofore provided in our Order of November 4, 1963, the judgment is affirmed.


author: BIRD, Judge.

text:
    KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Lewis D. JONES, Respondent.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.

      N. Mitchell Meade, Gen. Counsel,, Kentucky State Bar Assn., Frankfort, for complainant.
    Lewis D. Jones, Bedford, for respondent.
   BIRD, Judge.

This case follows a disciplinary action of the Kentucky State Bar Association wherein it was recommended that the respondent be publicly censured because of his failure to promptly distribute funds paid to him as an attorney for the purpose of distribution. Respondent insists that the recommendation for public censure is too severe and should be modified.

We have examined the record. While the evidence does not warrant a finding of fraud, the evidence is sufficient to disclose carelessness, bad judgment and bad business practice in the commingling of trust funds with his personal funds. His explanation of this serves in mitigation but is hardly sufficient to relieve him of blame and we find it unnecessary to go into the details of that explanation.

We must therefore affirm the recommendation of public censure which we consider executed by the writing and publication of this opinion.


text:
    David L. TRODGLEN, Petitioner, v. Dan M. GRIFFITH, Judge, Daviess Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.
    David L. Trodglen, pro se.
   CLAY, Commissioner.

This is an original proceeding seeking to compel the Judge of the Daviess Circuit Court to send up the record on appeal from a judgment of conviction entered sometime in January, 1963. The petitioner proceeds in forma pauperis.

The petition fails to show the date of the judgment and fails to show that the notice of appeal was filed within the time required by CrR 12.54. Assuming the notice of appeal was timely filed, the period within which the petitioner could file the record on appeal in this Court under CrR 12.58 has long since expired.

There are other deficiencies in the petition and it does not state sufficient facts to show any right to effective relief. A party, even though not represented by counsel, must'comply with applicable procedural rules when proceeding by way of appeal' or by original action in this Court. We' cannot grant relief simply because such party files miscellaneous papers in this Court.

On the record before us we find nothing to justify our issuance of a mandamus order, and the prayer of the petition is denied.


author: MONTGOMERY, Judge.

text:
    Ruby FREEMAN, Administratrix of the Estate of James M. Robbins, et al., Appellants, v. OLIVER M. ELAM, JR. COMPANY, Incorporated, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.
    Howard VanAntwerp, III, Howard Van-Antwerp, Jr., Ashland, for appellants.

      ■ John W. McKenzie, Ashland, for appel-lee.
   MONTGOMERY, Judge.

Ruby Freeman, as the administratrix of the estate of James M. Robbins, deceased, sued Oliver M. Elam, Jr. Company, Incorporated, for the wrongful death of Robbins. He was buried alive in a trench cave-in. The jury returned a verdict for the company. On appeal it is urged that the instructions are erroneous and that certain evidence should have been admitted.

Robbins was killed on October 15, 1959, while working as an employee of the City of Ashland. Appellee had contracted with the City to excavate, trench, and backfill an open ditch approximately 6,000 feet long for the laying of a twelve-inch water main therein. After the ditch was dug, appellee was required to place the iron pipe in eighteen-foot sections in the bottom of the ditch. The employees of the City leveled the bottom of the ditch so that the pipe would lie flat. They also joined the pipe together and sealed'the joints. The trench was supposed to be five feet deep. The dirt from the excavation was piled outside the ditch on the surface of a road which paralleled the ditch.

The cave-in occurred shortly after resumption of work following the lunch hour. During the lunch hour a portion of the east wall had fallen into the bottom of the ditch. It was variously described as a small chunk of dirt and as being a break in the side of the wall four feet long, two and one-half feet from the bottom of the ditch, and extending back ten inches.

Robbins and Hearne, another City employee, were engaged in leveling the dirt. Three other City employees then in the ditch were preparing to lay a section of pipe. For appellee there was testimony that one of its employees observed this break in the ditch wall and warned Robbins and the others of the cave-in danger. This was done ten or fifteen minutes before the cave-in. - The City foreman saw a crack start at the top of the ditch wall and gave warning to the men to run. He said that a portion of the east wall about thiry feet in length and four feet in width, with materials stacked on it, suddenly caved in. Three of the men escaped, but Robbins and Hearne were trapped and covered by the cave-in. There was evidence tending to show that appellee’s employees should have known of the danger from the nature of the 'soil. The ditch had been dug deeper at that point.

No complaint is raised concerning Instruction No. 1 in which the general duties of the appellee are set forth. Instruction No. 2 submitted the issue of "whether Robbins disobeyed a warning of the danger. Instruction No. 3 submitted the, question of whether the danger was so obvious that an ordinarily prudent person would not have worked or remained in the ditch. Instruction No. 4 submitted the issue of whether Robbins exercised ordinary care. Instruction No. 5 defined ordinary care.

Appellants, contend that Instruction No. 2 imposed an absolute duty to leave the ditch and constituted prejudicial error since the jury should have considered whether in the exercise of ordinary care Robbins should or could have left the ditch. There is no merit in this contention for two reasons: First, the instruction is based solely on Robbins’ disobedience of the warning. If Robbins chose to remain in the ditch after having been warned of the danger, there was nothing appellee could do to remove him; hence, no liability. Secondly, the question of whether Robbins acted in the exercise of ordinary care was submitted in Instructions No. 3 and No. 4.

It is urged that Instructions No. 3 and No. 4 are repetitious and improper. This is true. To constitute reversible error, however, the error must be prejudicial. Stein v. Louisville Water Company, Ky., 249 S.W.2d 750; Weaver v. Brooks, Ky., 350 S.W.2d 639. In Trosper Coal Company v. Crawford, 152 Ky. 214, 153 S.W. 211, relied on by appellants, repetitious instructions were held to be improper, but the case was not reversed on that point. The error in repetitious instructions is not considered prejudicial here, especially in view of Instruction No. 5’s defining ordinary care. Wiltshire’s Adm’x v. Kister, 156 Ky. 168, 160 S.W. 743; Trent v. Chesapeake & Ohio Ry. Co., 221 Ky. 622, 299 S.W. 556.

It is next contended that the trial court erroneously refused to permit appellants to prove the identity of the real parties in interest; namely, the deceased’s seven children. The action was prosecuted by the personal representative. The identity of the real parties in interest was not material to the issues. Proof of the identity would have thrown no light on the issues. If admitted it would have had no effect except possible prejudice against the appellee through sympathy for the children. Objection to such testimony was correctly sustained.

Appellants urge that the court erred in not allowing a witness to testify concerning a conversation with appellee’s superintendent about the nature of the soil in the area of the accident. No avowal or offer of proof was made as to what the witness would testify. In such absence, the ruling is not reviewable. East Kentucky Rural Electric Coop. Corp. v. Smith, Ky., 310 S.W.2d 535. See CR 43.10 and Comments, Clay, CR 43.10.

The court refused to admit into evidence two photographs taken by a newspaper photographer. Appellee’s objection to admission was that there had been a substantial change in condition before the pictures were taken and that they did not show the depth of the ditch prior to the cave-in. The photographs showed the head and upper part of Robbins, with the lower part still encased in dirt.

The photographer was permitted to testify to almost all of the conditions disclosed by the photographs. Under the circumstances admission would have served no useful purpose and would have only inflamed the jury. The court ruled correctly.

No merit is found in the contentions that the objections sustained to two questions asked by appellants were erroneous.

Judgment affirmed.


author: MOREMEN, Judge.

text:
    Thomas G. EVANS, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.

      Thomas G. Evans, pro se.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

This is an appeal from a judgment of the Lyon Circuit Court which refused to issue a writ in the nature of mandamus to compel appellee, Luther Thomas, warden of the penitentiary, to release appellant, Thomas G. Evans from confinement.

In 1957 Evans was convicted in the Jefferson Circuit Court of robbery and sentenced to ten years’ confinement in prison. On May 26, 1962, he was paroled. On August 6, 1962, Reuben E. Kirkley, his probation and parole officer, made a written request under subsection (2) of KRS 439.430 for a parole violation warrant. This request was based upon the statement that Evans had been charged with assault and battery on July 9, 1962, that he had been seen coming out of a tavern with a case of beer, that he had caused a disturbance in his apartment, that on July 28, 1962, he had come out of a tavern with two bottles of beer and when city policemen approached he broke the bottles on the sidewalk and ran, that the officers had to use force to arrest him, that an assault and battery warrant was caused to be issued by his wife on another occasion and, further, because the Carrollton police department had strongly recommended that Evans’ parole be cancelled.

Evans was arrested on August 6, 1962, as a result of a telephone call from Kirkley to the Carrollton police and he was held until August 8 when Kirkley arrived with a parole violation warrant and returned Evans to the penitentiary.

KRS 439.440 reads; “Any prisoner returned to prison for violation of his release shall be heard by the board within thirty days on the propriety of his re-release.” Such a hearing was had on August 28, 1962 before the parole board. Evans was returned to the penitentiary.

In the proceedings in the Lyon Circuit Court and here, appellant sought and seeks the issuance of a writ in the nature of mandamus to compel the board to reverse its judgment and again to parole him.

Evans has two grounds upon which he bases his argument. He first complains that his arrest was not in conformity with subsection (1) of KIRS 439.430. There appears to have been some irregularity in this connection. However, appellant does not make it plain why he believes an irregularity in his arrest would have, of itself, atoned for his original crime of robbery so that he would be entitled to an outright release. The question does require, however, some discussion.

Subsection (1) of KRS 439.430 reads in part:

“Any parole, probation or conditional release officer having reason to believe that a parolee or conditional releasee has violated the terms of his release may arrest such person without a warrant or may deputize any other peace officer to do so by giving him a written statement setting forth that the parolee or conditional releasee, in the judgment of the probation, parole or conditional release officer, has violated the conditions of his release. Such written statement delivered with the parolee or conditional releasee by the arresting officer to the official in charge of the station house, jail, workhouse or other place of detention, shall be sufficient warrant for the detention of the parolee or conditional releasee.”

Appellant’s complaint is founded on the fact that on August 6, the Carrollton police had arrested him on the strength of a telephone call from Kirkley and at a time when they had not been deputized by a written statement from the parole officer. However, when Kirkley arrived in Carrollton he had with him the parole violation warrant and it was under this instrument that Evans was returned to prison. The written statement required by the above statute is for the protection of the arresting officer and probably for the purpose of avoiding mistakes which so often occur during telephonic communications. The method used is condemned, but we find no reason that this technical defect should have the effect of vacating the original judgment of conviction.

Evans is being held prisoner under the judgment which convicted him of robbery. He has not served his sentence nor is he eligible to be finally discharged from prison. Upon his rearrest he was accorded a hearing although it appears that he may have been held for two days by the Carrollton police without proper authority. This in itself would not warrant the issuance of mandamus to compel the board to release him.

The appellant’s second ground upon which he urges the issuance of mandamus is based upon his allegations that the various charges against him were untrue and, further, because the criminal offenses were dismissed by the court in which they were pending. He consistently denies that he has been guilty of misconduct. In his brief, he states:

“Appellant states he was given a (So Called Hearing) before the State Parole Board after his return to prison. This is not an actual Hearing (within the meaning of Hearing), it is only a date set for sentencing of Parole Violators as the chairman of the Parole Board signs the P. V. Warrant originally and at the So Called Hearing acts in the capacity of the accuser, prosecutor, and judge. Mr. Walter Ferguson stated at the hearing the Appellant may be telling the truth but he has to accept the Parole Officer’s Report as the truth.”

From the foregoing it is plain that appellant did receive a hearing before the board even though the board elected to accept the parole officer’s report and recommendation that he be returned to prison. This was clearly within the power of the board in the exercise of its sound discretion. It is true that mandamus may issue to compel the exercise of discretionary duty, but not to compel the exercise of such duty in any particular manner. Kaufman v. Humphrey, Ky., 329 S.W.2d 575. The parole board when holding hearings under KRS 439.440 is acting as a quasi-judicial body and it is the general rule that mandamus will not lie to control the exercise of such a sound discretion. Combs v. State Board of Education, 249 Ky. 320, 60 S.W. 2d 957. We believe the allegations of appellant- in his petition for a writ of mandamus in The Lyon Circuit Court were insufficient and the court properly sustained the motion to dismiss.

Judgment affirmed.


author: PALMORE, Judge. STEWART, Judge

text:
    BLACK MOTOR COMPANY, a corporation, Petitioner, v. Edward G. HILL, Judge, Harlan Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.
    Francis D. Burke, Francis M. Burke, Pikeville, for petitioner.
    James S. Greene, Jr., Harlan, for respondent.
   PALMORE, Judge.

The petitioner, Black Motor Company (hereinafter called Black), brings this original action to compel the judge of the Harlan Circuit Court to enter an order directing the release of certain funds to it.

Following receipt of our affirming mandate in Albert v. Black Motor Company, Ky., 357 S.W.2d 714 (1962), the respondent entered an order on motion of Greene and Sutton, attorneys for Black (the successful litigant through a derivative action by certain of its stockholders) allowing them a fee equal to 40% of all sums actually recovered. Meanwhile Albert, the unsuccessful party, apparently had sought to conceal his tangible assets and otherwise avoid the consequences of the lawsuit, and a second suit had been brought against him and members of his family to set aside various transfers of property. The second suit resulted in a settlement under which Albert paid $50,000 and turned some stocks over to Black and further agreed to pay $75,000 into court 90 days thereafter. In connection with this settlement the attorneys say they agreed with Black to reduce their fee to the equivalent of 331/3%.

The $75,000 was paid on schedule. All court costs having been satisfied theretofore, the clerk drew a check in the full amount payable jointly to Black and the attorneys and delivered it to Greene and Sutton. In the meantime Black, being dissatis-ficd with the fee arrangement, employed other counsel and made a motion to set aside the original order allowing the 40% fee. The respondent was of the opinion that the order was final, but decided to treat the motion to set aside as if made under CR 60.02 and entered an order calling for the taking of evidence to determine the existence or non-existence of grounds essential to a re-opening under that rule.

Alleging that $37,896.88 of the $75,000 represented by the check in the hands of Greene and Sutton is not in dispute (a portion of the fee already had been paid out of the first $50,000 received from Albert), Black moved the respondent to direct a return of the check to the clerk and an immediate disbursement of $37,896.88 to Black. The motion was overruled and Black filed its petition in this court for original relief in the nature of mandamus. CR 81; RCA 1.420.

The gist of Black’s claim of entitlement to extraordinary relief is that it will be deprived of the use of its money (or interest) while it is litigating the matter of the fee and thus has no adequate remedy at law.

We find the response and brief filed in behalf of Judge Hill somewhat disquieting in their reliance on technical grounds instead of some reasonable justification for declining to let Black have that portion of its money over and above the amount claimed by Greene and Sutton.

In Kaufman v. Humphrey, Ky., 329 S.W. 2d 575 (1959), the money sought to be released was not beyond the ambit of the controversy. In this case there is no denial that it is. In Curtis v. Bradley, Ky., 333 S.W.2d 944 (1960), the response gave bona fide reasons why it was not advisable or convenient for the court to allow a partial distribution. Here the response offers no explanation at all. The fact that the order allowing the fee was entered in one suit and the money was paid into court pursuant to a judgment in another is of no substantial significance, as the same attorneys and same client were involved and the second suit was brought for the purpose of following up and enforcing the judgment in the first. Nor is it a complete answer to plead the discretionary" power of the trial court; no discretion is beyond abuse. Nevertheless, we are not persuaded that the injury, though it may be irreparable, is so great as to justify the extraordinary relief demanded. An intangible yet influential consideration in this respect is the fundamental policy of an appellate court to leave hands off the trial court except in the rarest of exigencies.

On the principles set forth in Ison v. Bradley, Ky., 333 S.W.2d 784 (1960), we are of the opinion that the relief should not be granted. Moreover, in view of the current status in the trial court of proceedings to re-open the order fixing the counsel fee we cannot say the respondent clearly exceeded the bounds of reason in maintaining the status quo of the $75,000 during the relatively brief period that should be required to hear and resolve the CR 60.02 motion and the fee question. When that is done, appropriate motions regarding the $75,000 can be made or renewed, and there is no reason for us to anticipate at this time that the circuit court will not make a fair and reasonable disposition of the matter pending appeal by whichever of the parties may be aggrieved.

Mandamus is denied.

STEWART, Judge

(dissenting).

I dissent from the majority opinion because the evidence introduced shows beyond dispute that petitioner is entitled to be paid immediately $37,896.88, the amount involved in the proceeding. The majority opinion concedes the circuit judge has advanced no “reasonable justification for declining to let” petitioner have this sum of money it is asking us to direct the trial court to distribute.

The majority opinion states that, although the refusal to pay over the $37,896.88 may result in an irreparable loss, the injury thereby occasioned will not be so great “as to justify the extraordinary relief demanded.”

How can this Court say the injury inflicted by the denial of the right by petitioner to have the $37,896.88 in hand at once will not be great? How much damage must a litigant suffer before this Court will act to give him relief ? The loss of interest on the sum each day, computed at 6% per annum, would aggregate $6.22. This amount would provide an average family with its daily minimum requirements. We pass up any discussion about the need of a going business concern to have the whole sum available for any financial necessity or investment advantage that might arise.

Furthermore, it is uncertain when this case will be disposed of by the trial court. Truly this is an instance where, for no reason that the record before us indicates, petitioner may be refused, for an indefinite period of time, the right to be vested with property to which he is entitled.

I would grant a writ of mandamus.


text:
    Christian H. MEYERS, Appellant, v. Lellia R. MEYERS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.
    William E. Nichols, Alvin B. Trigg, Lexington, for appellant.
    J. Owen Reynolds, Robert Hays, Lexington, for appellee.
   CLAY, Commissioner.

This suit was brought by appellee to sell a city lot of which she was a joint owner. Appellant denied her title on the ground the inclusion of her name in the deed was a mistake. The Chancellor found for appel-lee.

The parties, though not married, had lived together for many years as husband and wife. In 1949 appellant acquired the lot in controversy, furnishing the entire consideration therefor. A joint survivor-ship deed was made to him and appellee (the latter being therein designated “his wife”). In 1960 the parties severed their relationship and subsequently appellee asserted her claim.

The issue on appeal is whether there was substantial evidence to support the Chancellor’s finding that there was no mistake in the execution of the deed. (Appellant contends he was not required to make such a case as would entitle him to reformation, hut it seems obvious that unless the terms of the deed are altered appellee has a perfectly valid record title.) The only evidence of mistake is appellant’s testimony that he did not realize the legal effect of the deed, and he did not intend appellee to have an interest in the property. Opposed to this self-serving testimony is abundant evidence rebutting it.

The grantor made no mistake. Appel-lee’s name was given to him by appellant for the purpose of being put in the deed. Appellant was ■ aware that her name appeared therein as a grantee. It was a natural thing for him to do since the parties lived together as husband and wife and apparently shared their incomes and other properties. In addition, shortly after the acquisition of the property in controversy, appellant bought an adjoining lot and a similar deed was executed. When this other lot was later sold, appellant knew it was necessary for appellee to join with him in executing the conveyance. This surely put him on notice that being named as a grantee in a deed gave her some title or interest in the property. Finally, with full knowledge of the terms of the deed and its apparent legal effect, for longer than 10 years appellant made no attempt to rectify what he now claims was a mistake.

While under certain circumstances a deed may be reformed because of a mistake as to its .legal effect (Collier’s Guardian v. Collier, 229 Ky. 746, 17 S.W.2d 1028), and it may be reformed for a unilateral mistake where property is conveyed as a gift (Twyford v. Huffaker, Ky., 324 S.W.2d 403), it is always necessary that the mistake be established by full, clear and decisive evidence. Nichols v. Nichols, 182 Ky. 18, 205 S.W. 953. This appellant failed to do.

Appellant cites the Nichols case as a leading one and apparently relies on the principle of law therein followed. The facts are similar to those before us and that decision is directly contrary to his position. The determination of the Chancellor that appellant had failed to establish a mistake justifying reformation of the deed was amply supported by the evidence and we find no error in the judgment.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. T. F. ROUNDTREE, Appellee.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Phillip K. Wicker, Somerset (Dept, of Highways), for appellant.
    James A. Inman, Whitley City, Joe S. Feather, Williamsburg, for appellee.
   PALMORE, Judge.

This action was brought by the Commonwealth to enjoin the appellee, Roundtree, from obstructing the drainage of surface waters onto his property from a catch basin on U. S. Highway 27 in Whitley City. Roundtree counterclaimed for damages and injunctive relief against the continued maintenance of such drainage. The trial court denied relief to the Commonwealth, awarded Roundtree $600 in damages pursuant to a jury verdict, and enjoined the Commonwealth from further maintaining the catch basin. The Commonwealth appeals.

The Roundtree lot fronts on the east side and several feet below the level of the highway, which at that point runs downhill, north to south. Apparently there is a dip or swag in the grade of the road as it passes Roundtree, and during WPA days some 25 years ago a catch basin was constructed in the right-of-way next to the sidewalk on the east side. It emptied into a 15-inch concrete pipe leading under the sidewalk and through a stone retaining wall bordering the adjacent property now owned by Roundtree. Water received by the catch basin would pass through this pipe, spill four or five feet to the surface of the ground, and drain naturally down a hollow or declivity across the Roundtree premises.

Later on, evidently in the early 1940’s, U. S.27 was resurfaced and the catch basin was covered over with pavement. However, the dip in the grade of the highway was shallow enough that surface waters accumulating there would be contained by the curb formed by the sidewalk and run off down the east edge of the road before reaching a depth sufficient to overflow the sidewalk and enter the Roundtree lot. This was the situation when Roundtree purchased the property in 1949.

In 1961, acting on complaints that the recurrent accumulation of water in the highway following rainfall created a situation hazardous to both vehicular traffic and pedestrians, the highway department cut out the pavement over the catch basin, thus permitting drainage onto Roundtree.

It is agreed by all concerned that the upper owner has a natural easement over the lower property for the drainage of surface water flowing in its natural course and manner. The applicable principles in this respect are fully discussed in Wallace v. Schneider, 310 Ky. 17, 219 S.W.2d 977 (1949). However, there was substantial evidence that some of the waters received and discharged by the controversial catch basin would have been diverted into three or more other natural outlets to the side of the road before it reached Roundtree and would not have drained onto his property but for the slope and bank of the highway surface and the elevation formed by the sidewalk along the east side. Out of an abundance of caution the trial court submitted this factual question to the jury through an instruction (offered by the Commonwealth) under which it was bound to find for the Commonwealth unless some of the water discharged by the catch basin was “in excess of what would normally and naturally flow” over Roundtree’s land and came from an “additional source from which it would not otherwise have flowed.” The issue was settled by the return of a verdict favoring Roundtree.

Since, then, the established fact is that the catch basin tapped sources beyond the scope of the natural drainage easement, the burden was on the Commonwealth to prove by what means it had acquired this additional right. Had the proof shown that the catch basin ever had been in use for a consecutive period of 15 years, the additional servitude would have been created by prescription, but there was no such evidence, nor was there a showing of any grant or other muniment of title. Hence the granting of an injunction to Roundtree and denial of one to the Commonwealth were proper.

The foregoing conclusion makes it unnecessary to determine the applicability of City of Harrodsburg v. Cunningham, 299 Ky. 193, 184 S.W.2d 357 (1945), on the question of abandonment, an additional theory on which the judgment is defended. There are, however, at least two salient distinctions. In that case the easement had been established by prescription, and the basis for holding that prescriptive easements may be lost by non-user might not necessarily apply to the right of surface drainage which is recognized by law as arising out of the nature of things. In that case also, the loss by non-user occurred while the dominant estate was in the ownership of an individual rather than the state. Whether the state could lose an easement by non-user is another question, one we need not now decide.

The Commonwealth’s contention that it was improper for the court in effect to deny it an easement and at the same time award compensation on the reverse condemnation theory overlooks the fact that the recovery represented damages for a temporary user, not a permanent easement. Keck v. Hafley, Ky., 237 S.W.2d 527 (1951), and Kentucky Game and Fish Commission v. Burnette, 290 Ky. 786, 163 S.W.2d 50 (1942), involved permanent takings.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    HAZARD EXPRESS, etc., Appellants, v. COMBS MOTOR FREIGHT, INC., et al., Appellees. HAZARD EXPRESS, etc., et al., Appellants, v. COMBS MOTOR FREIGHT, INC., et al., Appellees.
    File No. F-107-62.
    File No. F-108-62.
    Court of Appeals of Kentucky.
    Nov. 22, 1963.

      Fred F. Bradley, McChesney & Kinker, Frankfort, for appellant.
    Herbert Liebman, George Catlett and,Ben Combs, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CULLEN, Commissioner.

In March 1960, Hazard Express (Tom Johnson d/b/a), which for a number of years has operated a common carrier truck service between Lexington and various points in eastern Kentucky, made application to the Department of Motor Transportation (hereinafter D.M.T.) for an extension of its certificate which would authorize operations between Louisville and the eastern Kentucky points. Combs Motor Freight, Inc. (which held no existing certificates) protested the Hazard Express application and also filed, in April 1960, its own application for a certificate authorizing the same operating authority as held and sought by Hazard Express. D.M.T. denied the application of Hazard Express and granted that of Combs Motor Freight. On appeals to the circuit court judgments were entered upholding the D.M.T. orders. Hazard Express has appealed to this court from both judgments and is joined in the appeal from the judgment upholding the granting of the Combs application by two other carriers who were somewhat nominal protestants of that application.

(In 1957 D.M.T. had granted to Paul Combs, an individual [he is now the principal owner of Combs Motor Freight, Inc.] a certificate substantially identical with that granted in the present proceeding to Combs Motor Freight. A circuit court judgment setting aside that order was affirmed by this court in Combs v. Johnson, Ky., 331 S.W.2d 730. However, the evidence and issues in the instant proceeding are so different that the decision in that case does not have a controlling effect here. Pending the appeals in the former case Combs operated under the certificate. In March 1960 the certificate was revoked by D.M.T. pursuant to the mandate of this court in Combs v. Johnson, supra.)

D.M.T. denied the Hazard Express application on the grounds that (1) Hazard Express was financially unfit; (2) it was otherwise unfit because it had committed serious violations of the statutes and of the regulations of D.M.T. in operations under its existing certificate; (3) it had failed to prove a necessity for additional service between Louisville and all of the designated points in eastern Kentucky; and (4) public convenience and the public interest would not be served by granting the application because Hazard Express had consistently rendered inadequate service under its existing certificate. Hazard Express maintains that none of these findings are supported by the evidence.

Actually there was no real dispute as to the necessity for additional service between Louisville and the eastern Kentucky points because both Hazard Express and Combs Motor Freight submitted proof of the need . for such service. D.M.T. found on the Combs application that there was a necessity for the service, so we think that the ■ finding, on the Hazard Express application, ■ that the applicant had not proved the necessity, should not be accorded any weight by us in determining whether the Hazard Express application properly was denied.

As concerns the finding of financial unfitness, it is our opinion that the evidence of such unfitness was not sufficient, standing alone, to warrant the denial of the application. While there was evidence that Hazard Express had liabilities substantially equal to or exceeding its assets, and had shown a profit in only one year during its period of operation, the facts remain that it had managed to continue in business for 15 years and had sufficient credit to enable the purchase of such new equipment as would be required for the Louisville service. We believe the financial condition of Hazard Express was not alone a sufficient basis for denial of the application, but could be considered as a factor in weighing the overall fitness of the applicant to render the proposed service.

With regard to general fitness, we think the evidence would warrant the conclusion that Hazard Express had engaged in a consistent practice of under-licensing its trucks, by purchasing registration tags from the county clerk for weights much lower than the trucks would normally carry and much lower than the weights for which weight tags were obtained from D.M.T. Also, that Hazard Express frequently had deferred obtaining weight tags for trucks until along in May, when a reduced rate could be obtained, although the same trucks had been licensed with the county clerk in January. Further, that Hazard Express on three recent occasions had been guilty of operating trucks or trailers without proper registration. The evidence created a strong inference that Hazard Express was pursuing a policy of evasion of taxes on its trucks. In our opinion this evidence justified D.M.T. in finding against Hazard Express on the issue of general fitness.

On the matter of public convenience and public interest, there was evidence that on a substantial percentage of shipments from Lexington to eastern Kentucky points delivery was not made until the third, fourth, fifth or sixth day after Hazard Express had received the shipment in Lexington'. We think the evidence warranted the finding that the existing service failed to meet a proper standard of adequacy, so as to indicate the inability or unwillingness of Hazard Express to render in the proposed new operation a quality of service conforming with public convenience and interests.

Considering, cumulatively, the evidence of general unfitness, frail financial status, and inadequate existing service, it is our conclusion that the evidence sustains the order of D.M.T. denying the application of Hazard Express.

We now consider the order granting the application of Combs Motor Freight.

The appellants’ first contention is that “dual operations” contrary to the policy of the motor transportation law would be permitted by the granting of the common carrier certificate to Combs Motor Freight, because Paul Combs individually holds a contract carrier permit for the hauling of merchandise for Belknap Hardware Company from Louisville to eastern Kentucky points. The Interstate Commerce Act does contain a restriction against dual operations as both a contract carrier and a common carrier, unless there is an affirmative showing that such operations will be in the public interest. But the Kentucky motor carrier statutes contain no such restriction. Furthermore, the chief danger from such dual operations — that the holder of the two permits may undercut the competing common carriers by charging reduced rates for contract carriage' — -does not exist in Kentucky because our statute, KRS 281.675, requires contract carriers to charge rates comparable to those of common carriers. So the contention that unlawful dual operations would be permitted is not sustainable.

It is next contended that the evidence does not support the D.M.T. finding that Combs Motor Freight is financially fit. This argument is predicated on the fact that the balance sheet of the new corporation lists equipment at estimated market value instead of at its depreciated book value. It appears that the equipment, when owned by Paul Combs individually, had been depreciated around 80 percent for income tax purposes. We are not aware of any rule that would require the depreciated value to be used exclusively in determining the net worth of the corporation for the purpose of evaluating its fitness to carry on satisfactory operations (as distinguished from income tax purposes). Our views with regard to the financial fitness of Combs Motor Freight are substantially the same as hereinbefore expressed concerning the financial fitness of Hazard Express. Paul Combs, individually, had carried on successful operations for many years as a contract carrier, and for two years as a common carrier. In essence he would be continuing operations under the new corporate structure. His credit was sufficient to obtain adequate financing for the corporation. We 'think there, was a sufficient showing of financial fitness.

An attack is made on the finding of general fitness of Combs Motor Freight, because of evidence that Combs, individually, had not filed annual reports with D.M.T. during the period he operated under the certificate that was granted in 1957 (and revoked pursuant to the mandate of this court in 1960) ; that he had continued for a few days after that certificate was revoked to make deliveries as a common carrier; and on one or two occasions, while holding only a contract carrier permit, he had transported goods not authorized by the permit. We think it is sufficient to say that none of the foregoing conduct evidenced a policy or pattern of evasion of the law. The failure to file reports may be attributed to simple neglect or oversight. The deliveries after the certificate was can-celled can be excused as part of a winding-up operation. The instances of improper carriage were minor. We conclude that the finding of general fitness had sufficient support in the evidence.

It is contended that the evidence does not support the finding that the existing service of Hazard Express, between Lexington and eastern Kentucky, is so inadequate as to warrant granting a certificate to Combs Motor Freight for service of the same territory. In our opinion there was ample proof of inadequacy of the service of Hazard Express. The testimony of around 70 witnesses showed that on a substantial percentage of shipments from Lexington the delivery was made some three to eight days after shipment; that the service was not of dependable regularity; and that the handling of damage claims was unsatisfactory. Some of the testimony was not supported by documentary proof but we do not conceive that unsatisfactory service can be proved only by the introduction of specific freight bills.

Hazard Express argues that the volume of business to the eastern Kentucky points is not sufficient to support two carriers. However, D.M.T. found, and we think justifiably, that advancement of the economy of eastern Kentucky, toward which considerable efforts are being devoted these days, would be assisted by expansion of the motor transportation service, which in turn would provide more carrier revenues. In any event, the possibility that the new carrier will not be able to succeed, or that the existing carrier will be forced out of business, or that both will go broke, we think is not a justification for forever perpetuating an existing condition of substantially inadequate service. Certainly the appellants would not contend that the only other available remedy—revocation of the certificate of Hazard Express—should be invoked.

It is our conclusion that the order granting the certificate to Combs Motor Freight is sustained by the evidence and is valid.

The appellants make two contentions concerning procedure. One is that Combs Motor Freight, not being the holder ■of any existing certificate,' had no standing to protest the application of Hazard Express, and should not have been recognized by D.M.T. as a protestant. The statute, KRS 281.625, provides that notice of an application may be given by D.M.T. to any person who, in the opinion of D.M.T., “may be interested in or affected by the granting of the application”, and that “[a]ny person having interest in the subject matter” may file a protest. It is our opinion that Combs Motor Freight, as a competing applicant for the same certificate sought by Hazard Express, was entitled to be heard as a protestant.

The second contention is that D. M.T. violated its own procedural rules by deciding both applications in the same order, instead of ruling on the Hazard Express application first (it having been filed first). The rules provide only that the hearings on an application shall not be consolidated with hearings on a later application for the same certificate if the later application is filed after the issuance of hearing notices on the first application. There was no violation of that rule.

The judgments are affirmed.