author: STONE, Presiding Judge.

text:
    H. H. STEPHENS, Plaintiff-Appellant, v. GREAT SOUTHERN SAVINGS & LOAN ASSOCIATION, a corporation, Defendant-Respondent.
    No. 8607.
    Springfield Court of Appeals. Missouri.
    Nov. 7, 1967.

      John B. Newberry, Springfield, for plaintiff-appellant.
    Miller, Fairman, Sanford, Carr & Lowther, Gerald H. Lowther, James K. Prewitt, Henry W. Westbrooke, Jr., Springfield, for defendant-respondent.
   STONE, Presiding Judge.

In this jury-tried action at law, plaintiff H. H. Stephens sought judgment on the theory that he was a third-party beneficiary of an unconsummated loan agreement between defendant Great Southern Savings & Loan Association, the promisor, and Mc-Gilco, Inc., the promisee; and, from the adverse judgment entered upon the unanimous jury verdict for defendant, plaintiff has perfected this appeal.

In Count II of his amended petition upon which the case was tried, plaintiff averred that defendant entered into “an oral agreement with McGilco ... to secure the payment to plaintiff of the amount of $12,564.72 agreed to be paid to plaintiff by McGilco” for paving portions of certain streets in Park Crest Village Second Addition, a subdivision southwest of Springfield in Greene County, Missouri. (All emphasis herein is ours.) In the course of trial, the sum sought by plaintiff was reduced to $11,200, the amount Great Southern allegedly agreed to loan McGilco, although plaintiff testified that the total cost of the paving project was $12,566.70, including “an additional $600 extra on excavation that was to have been done by McLaggan,” McGilco’s president. In any event, the amount in dispute is within our monetary jurisdiction. V.A.M.S. § 477.040.

The points here relied on are that the trial court erred (1) in refusing (so it is asserted) in one instance to allow plaintiff’s counsel to cross-examine Russell Cather, Great Southern’s president, who was called as a witness for plaintiff, and (2) in giving defendant’s instruction 3. Defendant, who stood on its motion for a directed verdict at the close of plaintiff’s case and offered no evidence, denies that the trial court erred in either particular relied on by plaintiff but insists initially that plaintiff did not present a submissible case. That should be our first inquiry because alleged trial errors usually become immaterial where plaintiff fails to make a submissible case. Osborn v. McBride, Mo., 400 S.W.2d 185, 188(1); Branstetter v. Gerdeman, 364 Mo. 1230, 1240, 274 S.W.2d 240, 247(9); Hoock v. S. S. Kresge Co., Mo. (banc), 230 S.W.2d 758, 761.

There was no testimony by McLaggan; and plaintiff’s case consisted of his own testimony, that of president Cather, and certain portions of the deposition of Clyde E. Burton, Great Southern’s secretary. This evidence, together with the documentary exhibits offered by defendant and received in evidence without objection at the outset of the trial, disclosed the following state of facts. McLaggan talked with Cather and Burton in July 1964, “offered eight lots [in Park Crest Village Second Addition] as collateral,” and “arranged for a loan [of $11,200] for the specific purpose of paving.” A note in the principal sum of $11,200 dated July 16, 1964 (hereinafter referred to as the $11,-200 Great Southern note), and a deed of trust of even date securing payment of that note and covering the eight lots “offered” by McLaggan, were executed on behalf of McGilco and were delivered to Great Southern. At the same time, Mc-Gilco as “Contractor” and “Owner,” Great Southern as “Mortgagee,” and Standard Title Insurance Company acting by its agent, Escrow Facilities, Inc., as “Es-crowee,” executed and entered into an escrow agreement. By this agreement, Mc-Gilco covenanted, inter alia, “to construct . . . the complete improvements contemplated . . . for the sum of $10,-506.25 and to pay all claims for materials and labor used therein.” Great Southern covenanted, inter alia, “to lend to Owner [McGilco] $11,200 and accept therefor a note or notes secured by a deed of trust or mortgage on the above described property and other security that Mortgagee may require, and to pay as requested by Escrowee, the full proceeds thereof to the Escrowee for the account of the Owner . . . .” .Standard Title covenanted, inter alia, “to make an examination of the title of said property and report the condition thereof to Mortgagee, showing defects and liens against said property to be eliminated or removed by the Owner . . . .”

The title examination disclosed two prior unreleased deeds of trust, to wit, (a) one filed for record on May 17, 1963, which secured payment of a note in the principal sum of $29,100 executed by McGilco et al., and which covered, together with other realty, four of the eight lots described in the deed of trust securing payment of the $11,200 Great Southern note, and (b) the other filed for record on April 2, 1964, which secured payment of a note in the principal sum of $50,000 executed by Mc-Gilco and which covered twenty-eight lots including the other four of the eight lots described in the deed of trust securing payment of the $11,200 Great Southern note. The uncontradicted evidence adduced as a part of plaintiff’s case was that neither of the aforesaid prior liens on the eight lots was “eliminated or removed by the Owner [McGilco]”; that consequently the Es-crowee (Standard Title) never requested the Mortgagee (Great Southern) to disburse, and the Mortgagee never disbursed, any sum on the $11,200 Great Southern note; and that accordingly the contemplated $11,200 loan by Great Southern to Mc-Gilco was never consummated.

When McGilco sought the $11,200 loan “to cover paving” in Park Crest Village Second Addition, president Cather did not then know “who was going to do the job.” Whether secretary Burton had such knowledge at that time is not clear, since no date was designated in the only inquiry as to whether he “knew Mr. Stephens was doing the paving out there”; but, in our view of the case, Burton’s knowledge of this fact (if so) when the $11,200 Great Southern note, the deed of trust securing payment of that note, and the escrow agreement were executed, would neither require nor permit a conclusion different from that hereinafter announced.

Before beginning the paving job, plaintiff had an agreement (whether oral or written we are not informed) “with Mc-Gilco, Incorporated” or “with John Mc-Laggan under the name of McGilco.” But he admittedly had no prior contact with Great Southern and, before entering upon the paving job, neither inquired nor knew from what source McGilco or McLaggan proposed to obtain funds with which to pay him. When, after completion of the paving, plaintiff first talked with a representative of Great Southern, namely, secretary Burton, he (plaintiff) was told that “Mr. Mc-Laggan had not made arrangements for payment.” To the inquiry, “did he [Burton] tell you whether or not Great Southern would pay for the paving,” plaintiff frankly responded, “that wasn’t brought up, because I had no bill against Great Southern.”

It has long been settled in this jurisdiction that “when one person, for a valuable consideration, engages with another by simple contract to do some act for the benefit of a third, the latter, who would enjoy the benefit, may maintain an action for the breach of such engagement.” But this general rule is subject to various qualifications and limitations. 17A C.J.S. Contracts § 519(4)a, p. 961. So “ ‘[i]t is not every promise . . . made by one to another from the performance of which a benefit may ensue to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited.” And the intent necessary to establish the status of a third-party beneficiary is “not so much a desire or purpose to confer a benefit on the third person, or to advance his interests or promote his welfare, but rather an intent that the promisor assume a direct obligation to him.” 17A C.J.S. Contracts § 519(4)c, 1.c. 975.

Beneficiaries of contracts to which they are not parties have been divided into three classes, namely, donee beneficiaries, creditor beneficiaries, and incidental beneficiaries. Generally speaking, those in the first two classes have enforceable rights against the promisor, but those in the third class do not. One distinguished writer defines an incidental beneficiary as “a person who is neither the promisee of a contract nor the party to whom performance is to be rendered [but who] will derive a benefit from its performance.” 2 Willis-ton on Contracts (3rd Ed.), § 402, p. 1088. To the same effect, see the definition in 17 Am.Jur.2d Contracts § 307, l.c. 733, note 19. Other eminent authorities have regarded the term “incidental beneficiaries” as “a sort of omnium gatherum . . . not very clearly descriptive” [4 Corbin on Contracts, § 779C, l.c. 41] and have defined it in negative fashion, i. e., all those who are not donee beneficiaries and creditor beneficiaries within the meaning of those terms. 4 Corbin on Contracts, § 779C, l.c. 41; 1 Restatement, Contracts, § 133, subsec. (1) (c), l.c. 152. Our courts apparently have not formulated or adopted a precise definition of the term “incidental beneficiaries,” and we need not do so here. For the purposes of our discussion, suffice it to say that it is uniformly recognized that the general rule permitting recovery by a third-party beneficiary is not so far extended as to give a third person, who would be only incidentally, indirectly or collaterally benefited by a contract, the right to recover upon it.

Hypothetical illustrations in the treatises and holding? in cases arising out of more or less analogous factual situations are helpful and persuasive in resolving the determinative issue in the instant case as to whether or not plaintiff was an incidental beneficiary of the loan agreement between promisor Great Southern and promisee McGilco. Relevant and representative illustrations are: “9. B promises A for sufficient consideration to pay whatever debts A may incur in a certain undertaking. A incurs in the undertaking debts to C, D and E. If, on a fair interpretation of B’s promise, the amount of the debts is. to be paid by B to C, D and E, they are creditor beneficiaries; if the money is to be paid to A in order that he may be provided with money to pay C, D and E, they are at most incidental beneficiaries.” 1 Restatement, Contracts, § 133, l.c. 155, Illustration 9. See Seargeant v. Commerce

Loan and Inv. Co., 77 Ariz. 299, 270 P.2d 1086, 1090. “Where A owes money to a creditor C, or to several creditors, and B promises A to supply him with the money necessary to pay such debts, no creditor can maintain suit against B on this promise.” 4 Corbin on Contracts, § 779D, p. 43. See also the illustration in 17 Am.Jur.2d Contracts § 307, l.c. 733, note 19. With these illustrations before us, examination of numerous cases, some of which are listed marginally, leaves us in no doubt but that instant plaintiff was an incidental beneficiary of the loan agreement between Great Southern and McGilco. Of course, consummation of that agreement might have redounded incidentally to plaintiff’s benefit. However, the same reasonably could be said of any executory contract whereby a debtor expects to receive money with which to pay his creditors, and the fact that plaintiff might have benefited from a loan to McGilco conferred upon him no right of action against defendant Great Southern.

For yet another reason plaintiff could not recover on the undisputed facts of the case at bar. The principal sum of the $11,200 Great Southern note was to be disbursed in accordance with the terms and provisions of the escrow agreement executed by McGilco, Great Southern, and Standard Title acting by its agent, Escrow Facilities, Inc., to wit, “as requested by Es-crowee [Standard Title],” and no such request was made. This, for the obvious and compelling reason that title examination of the eight lots “offered” by McGilco’s president as “collateral” for the loan disclosed two prior unreleased deeds of trust constituting liens thereon, neither of which was “eliminated or removed by the Owner [McGilco]” and one of which was foreclosed prior to trial, thus rendering Mc-Gilco’s performance of the loan agreement impossible. To recognize plaintiff’s claimed right of recovery in these circumstances would compel payment by Great Southern in contravention of its agreement with Mc-Gilco, not in accordance therewith. The law should not and does not impose such liability. Second Nat. Bank of St. Louis v. Grand Lodge of Free & Accepted Masons, 98 U.S. 123, 25 L.Ed. 75; Utah-Idaho Live Stock Loan Co. v. Blackfoot City Bank, D.C.Idaho, 290 F. 588, 591-592. One suing on a contract allegedly made for his benefit as a third-party beneficiary must accept the contract as it was made by the parties thereto; and he is in no better position than, and his rights are no greater than those of, the contracting party through whom he claims, in this instance promisee McGilco.

On the undisputed facts, plaintiff was not entitled to recover and defendant Great Southern’s motion for a directed verdict should have been sustained. Accordingly, the judgment for defendant is affirmed.

HOGAN and TITUS, JJ., concur.

      . Bank of Missouri v. Benoist, 10 Mo. 519, 524; Crone v. Stinde, 156 Mo. 262, 266, 55 S.W. 863, 56 S.W. 907. See Crow v. Kaupp, Mo., 50 S.W.2d 995, 997 (2); Handlan-Buck Co. v. State Highway Com’n of Missouri, Mo., 315 S.W. 2d 219, 222(3); McCoy v. St. Joseph Belt Ry. Co., 229 Mo.App. 506, 514, 77 S.W.2d 175, 180(2).

      . Howsmon v. Trenton Water Co., 119 Mo. 304, 308, 24 S.W. 784, 785, 23 L.R.A. 146; Porter v. Woods, 138 Mo. 539, 554, 39 S.W. 794, 798; Gate City Nat. Bank v. Chick, 170 Mo.App. 343, 350, 156 S.W. 743, 745-746; Uhrich v. Globe Surety Co. of Kansas City, 191 Mo.App. 111, 115, 166 S.W. 845, 846. See Farris v. Pitts, 221 Mo.App. 1204, 1206, 300 S.W. 840, 841.

      . 1 Restatement, Contracts, § 133, p. 151; Id., § 147, p. 176; 4 Corbin on Contracts, § 774, p. 6; Id., § 779C, p. 40; 17A C.J.S. Contracts § 519(4) b, p. 964.

      . Howsmon v. Trenton Water Co., supra, 119 Mo. at 308, 24 S.W. at 785; State v. St. Louis & S. F. Ry. Co., 125 Mo. 596, 617, 28 S.W. 1074, 1078; Porter v. Woods, supra, 138 Mo. at 554, 39 S.W. at 798; Gate City Nat. Bank v. Chick, supra, 170 Mo.App. at 351, 156 S.W. at 746; Uhrich v. Globe Surety Co. of Kansas City, supra, 191 Mo.App. at 115, 166 S.W. at 846; Kansas City Life Ins. Co. v. Rainey, 353 Mo. 477, 485, 182 S.W.2d 624, 628(6), 155 A.L.R. 168; Black & White Cabs of St. Louis, Inc. v. Smith, Mo.App., 370 S.W.2d 669, 674 (2); 17 Am.Jur.2d Contracts § 307, p. 732.

      . Seargeant v. Commerce Loan & Inv. Co., 77 Ariz. 299, 270 P.2d 1086(3, 4); Apex Siding & Roofing Co. v. First Federal Savings & Loan Ass’n, of Shawnee, Okl., 301 P.2d 352, 354-355(1, 2); Hawkins v. Mattes, 171 Okl. 186, 41 P.2d 880, 889-894(10, 11); Grand Prairie Gravel Co. v. Trinity Portland Cement Co., 5 Cir., 295 F. 140; Public Water Supply Dist. No. 6 of Jackson County, Mo. v. United States, D.C.Mo., 66 F. Supp. 66, 71(6); Utah-Idaho Live Stock Loan Co. v. Blackfoot City Bank, D.C. Idaho, 290 F. 588(2) ; Burton v. Larkin, 36 Kan. 246, 13 P. 398, 399(2), 400(5); Tomaso, Feitner & Lane, Inc. v. Brown, 4 N.Y.2d 391, 175 N.Y.S.2d 73, 151 N.E. 2d 221; Avery v. Sielcken-Schwarz, 5 N.J.Super. 195, 68 A.2d 635, 637(1, 2).

      . Carpenter v. Reliance Realty Co., 103 Mo.App. 480, 502, 77 S.W. 1004, 1011; Washburn v. Interstate Investment Co., 26 Or. 436, 36 P. 533, 38 P. 620, 621; Burton v. Larkin, supra, 13 P. at 400.

      . Allen v. Globe-Democrat Publishing Co., Mo., 368 S.W.2d 460, 463; Nick v. Travelers Ins. Co., 238 Mo.App. 1181, 1200, 185 S.W.2d 326, 336(4), affirmed 354 Mo. 376, 189 S.W.2d 532; Noles v. Terminal R.R. Ass’n of St. Louis, Mo.App., 154 S.W.2d 606, 609(2); Kingsland v. Missouri State Life Ins. Co., 228 Mo.App. 198, 202, 66 S.W.2d 959, 961(6); In re Connecticut Co., 2 Cir., 95 F.2d 311, 315(5); Utah-Idaho Live Stock Loan Co. v. Blackfoot City Bank, supra, 290 F. at 591-592; 17A C.J.S. Contracts § 519(4), subsec. h(b), p. 989.


source: Caselaw Access Project

author: SCOTT REED, Special Commissioner.

license: Public Domain

text:
    Walter GULLETT, Appellant, v. James McCORMICK, Appellee.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.

      Eldon L. Webb, John W. McKenzie, Ash-land, for appellant.
    P. H. Vincent, Ashland, for. appellee.
   SCOTT REED, Special Commissioner.

In this personal injury action the trial court granted a summary judgment in favor of the defendant, and the plaintiff appeals.

Plaintiff was injured while riding on a truck driven by the defendant who was engaged in hauling baled hay from a field to a barn. Plaintiff and defendant were neighbors, and plaintiff was apparently requested by defendant to assist him in loading and transporting the hay.

On the day in question defendant, plaintiff, and some boys loaded the truck with the bales of hay on two occasions, and on each occasion plaintiff rode in the back of the truck on top of the hay. These trips were successfully negotiated without incident.

On the third load, according to plaintiff, he and the others stacked more bales of hay on the back of the truck, at the direction of the defendant, than they had previously stacked; and plaintiff, an adult, and some of the boys who were engaged in the work rode on top of the bales of hay as they had done on previous occasions. The bales were not tied.

Plaintiff’s son, together with the son of the defendant, rode in the cab of the truck with the defendant. The truck, after being loaded for the third time, was driven from the field toward a paved road. Just before the front of the truck reached the paved road, the loaded hay on which plaintiff was riding fell from the truck carrying the plaintiff with it, and the plaintiff sustained personal injuries as a result of the fall.

The trial court ordered that the case be set for pretrial conference and directed that the parties have present at the pretrial conference the principal witness that each would rely on as to liability. It also directed that some person with authority to settle the case be present if settlement could be reached.

The record shows that at this pretrial conference plaintiff and defendant testified, and their testimony was transcribed. This testimony is the source of the statement of facts recited herein up to this point.

At the conclusion of the pretrial conference, the court directed the parties to file briefs on the issue of liability. The defendant instead of filing such brief moved for summary judgment. Plaintiff, in response to this motion, filed the affidavit of his son who was riding in the cab of the truck at the time of the accident. This affidavit recites that on the occasion of the accident, the defendant slowed the truck to cross a drain in the field and the truck engine quit; that the witness and the defendant worked on the truck a few minutes and got it started; that defendant then drove the truck from the field toward the blacktop road and just before the front end of the truck reached the blacktop road, the truck engine “started choking down or dying and Mr. McCormick clutched the truck and accelerated the engine causing the truck to jerk or lurch foreward (sic) ; that when this happened Mr. McCormick said ‘I’ll bet I threw that load off,’ which he had; Mr. McCormick drove the truck all the way on the blacktop road before he stopped.”

The trial court entered an order reciting that in its opinion it was probably negligence to haul hay on a truck without tying the hay, and that it was likewise negligence for the plaintiff to ride on top of a truckload of hay knowing the same was not tied. The trial court further recited that if the defendant was guilty of negligence, it was equally clear that plaintiff was guilty of contributory negligence; this order further recited that in the opinion of the trial court, the action of the defendant in clutching the truck and accelerating the engine caused a slight jerk or speed up of the truck but was a usual and proper method of driving a truck and did not constitute negligence on the part of the defendant. The trial court concluded that a directed verdict in favor of the defendant was inevitable on a trial of the action.

There appears to be complaint raised in plaintiff’s brief on this appeal concerning the procedure adopted by the trial court at the pretrial conference. The record shows that plaintiff made no objection to this procedure consisting of requiring the parties to produce witnesses to testify and requiring the presence of persons authorized to discuss settlement of the case. In view of the failure of plaintiff to object, we are not authorized to consider any error in this respect as reversible. Little v. Whitehouse, Ky., 384 S.W.2d 503, and Loew, Adm’x of Cundiff, deceased, v. Allen, Adm’r of Allen, deceased, Ky., 419 S.W.2d 734 (decided October 6, 1967).

If we were authorized to consider the matter, while we cannot say it would be prejudicial in all instances, we feel compelled to say that in many given instances, such procedure at a pretrial conference might well constitute reversible error.

The function of a pretrial conference under CR 16 is not to compel litigants to try their cases any more than it is the function of a motion for summary judgment under CR 56 to compel such trial.

The pretrial conference is a useful procedural device important in many cases to accomplish the refinement of issues, the elimination of nonessential proof, and to expedite the actual trial of the action.

The problem of the extent to which a trial court in conducting a pretrial conference may encourage settlement of an action is a delicate one which has been the subject of much discussion, many articles, and divergent views.

In view of the fact that we are not authorized in the instant case to consider the alleged error as a cause for reversal, it should suffice here to say that generally we do not approve the attendance of witnesses and the taking of testimony at a pretrial conference, nor do we believe that the pretrial conference should be used as a device to compel settlement of actions or give overemphasis to the matter of settlement. For an excellent discussion and evaluation of the pretrial conference as a procedural device under our present system of notice pleading accompanied by discovery procedure, see Rosenberg, The Pretrial Conference and Effective Justice, (Columbia University Press, 1964).

For purposes of disposition of this appeal, there is a single issue for decision, which is, should summary judgment have been granted in this case?

The proper scope of the remedy of summary judgment in negligence cases has been a subject of frequent consideration by this court. Upon defendant’s motion for summary judgment, if a prima facie showing of nonliability is made, the plaintiff in a negligence case must show in some way that there will be evidence upon the trial to create a genuine issue of fact; it is also true that caution should be exercised in granting summary judgment in negligence cases because determination of the issues of fact of negligence and contributory negligence depends upon the application of the standard of care of an ordinarily prudent man, which changes as the facts and circumstances of the individual case affect the degree of care to be applied. Payne v. B-Line Cab Co., Ky., 282 S.W.2d 342, and Morton v. Allen Construction Co., Ky., 416 S.W.2d 733.

In determining whether or not a genuine issue of material fact exists, all doubts must be resolved against the movant for summary judgment. Spencer et al. v. Leone et al., Ky., 420 S.W.2d 685 (decided September 26, 1967).

In the recent case of Roberts, Adm’r of the estate of William Roberts, v. Davis et al., Ky., 422 S.W.2d 890 (decided October 6, 1967), a situation somewhat analogous to the case at bar was presented, although distinctions exist. In the Roberts case, a seventeen-year-old boy undertook to ride on top of baled hay in the back of a truck. There was evidence that the driver’s parents owned the truck. The defendant was engaged in hauling this baled hay and in loading it. There was evidence that the defendant tied the bales of hay and knew that the boy was riding on top of the load. While the defendant was operating the truck, the hay fell carrying the boy with it, and as a result of the injuries received, the boy was killed. The trial court dismissed an action for wrongful death filed on behalf of the deceased minor by means of summary judgment. This court reversed that determination and held that- the absence of an explanation as to what caused the hay to fall created a rebuttable inference of negligence on the part of the defendant.

The court further held that the question of the contributory negligence of the decedent minor was for determination by the trier of fact, applying to the deceased minor the standard of care of a seventeen-year-old boy under such circumstances as set forth in the opinion in that case. This opinion further pointed out that the doctrine of assumption of risk had been abolished in this jurisdiction and that the doctrine of last clear chance did not apply under the facts presented.

In the instant case the plaintiff is an adult, and he actively assisted in loading the hay which was not tied. We might, therefore, have difficulty in concluding that the situation here presented was one which, in common human experience and in the ordinary course of events, does not happen in the absence of negligence thus permitting us to say that the fact of the occurrence itself constituted sufficient circumstantial evidence of negligence as to make an inference of negligence possible. But, there is evidence in this case which was not present in the Roberts case in that there is evidence here that the defendant, in the operation of the vehicle, knowing the hay was not tied and knowing the plaintif f was riding on top of it, clutched the truck and accelerated the engine causing the truck to jerk or lurch forward.

We conclude that certainly, as a matter of applying the proper test under a motion for summary judgment, this evidence could cause reasonable men to infer that the defendant failed to exercise ordinary care in his manipulation and operation of the vehicle under these circumstances. Therefore, we conclude that insofar as the trial court’s action was based upon the proposition that the defendant was not negligent is concerned, it is erroneous. We feel there is sufficient doubt here presented to warrant a trial on the merits as to this genuine issue of a material fact.

Even though in error on that point, the trial court’s disposition of the matter yet could be held correct if the showing on the motion for summary judgment demonstrated conclusively that plaintiff was contributorily negligent as a matter of law. Morton v. Allen Construction Co., Ky., 416 S.W.2d 733.

The reasonableness of the plaintiff’s conduct on the occasion in question is to be determined by application of the standard of care of the ordinarily prudent person under like or similar circumstances. It is a different standard from that imposed upon the plaintiff in the Roberts case, who was a seventeen-year-old boy.

Our research discloses an annotation in 44 ALR2d 238, in which cases from other jurisdictions concerning the issue presented are collected. Our review of the cases collected therein convinces us that it 'is generally held under factual situations very closely similar to those presented by the instant case, that the plaintiff’s contributory negligence is one to be determined by the trier of fact, and not to be disposed of by declaring it contributory negligence as a matter of law.

The prevailing view that the question of contributory negligence of the plaintiff is to be considered one of fact rather than of law appears to be particularly applicable in this instance where the question arises on motion for summary judgment. We must remember that if there is sufficient doubt about the matter, such doubt must be resolved against the movant. It may well be that the conduct of the plaintiff contributed to furnishing a situation or condition of danger, but it is also true that the alleged act of negligence of the defendant occurred at a time after the plaintiff had committed himself and the alleged act of negligence by the defendant was in the manipulation and operation of the vehicle. If it is believed by the trier of fact that the defendant committed such act of negligence, then such conduct on the part of the defendant increased the plaintiff’s danger or created a new danger and constituted an unforeseen and unanticipated act so far as the plaintiff was concerned,, and under this state of facts the plaintiff would not be barred from recovery. Hence, the least we may say is that there is sufficient doubt about the matter so that the doubt must be resolved against the movant for summary judgment. " Nepstad v. Randall, S.D., 152 N.W.2d 383.

We do not speculate as to the ultimate question of liability or nonliability, nor do-we even say that a situation might not develop upon a trial of the action in which a directed verdict in favor of one party or the other might not be proper. We confine ourselves to the issue presented and hold that summary judgment under the facts presented by this record was erroneous.

The judgment is reversed for further proceedings consistent with this opinion.

All concur.


author: OSBORNE, Judge.

text:
    Ronald M. LITTMAN (formerly known as Ronald Rosenfeld), Appellant, v. The OWENSBORO NATIONAL BANK, Trustee under the Will of Silas Rosenfeld, Deceased, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.

      Woodward, Bartlett & McCarroll, Owensboro, Baron, Stern & Liberman, St. Louis, Mo., for appellant.
    Sandidge, Holbrook, Craig & Hager, Owensboro, Kupfer & Levine, New York City, Hal A. Hamilton, St. Louis, Mo., Paxton & Seasongood, Cincinnati, Ohio, for Helen Brown Oberdorfer.
    Fine, Hatfield, Sparrenberger & Fine, Evansville, Ind., Wilson & Wilson, Owens-boro, for Old Nat. Bank in Evansville, Ind., etc., Bessie G. Brown, and Helen Brown Michelson.
    King, Deep, Branaman & Hunt, Henderson, for Edwin Hirsch Mann.
    R. Allen Wilson (Guardian Ad Litem), Owensboro, for Carol Jane Conway, etc., and all unknown issue and all unborn issue of Adeline Rosenfeld Conway.
   OSBORNE, Judge.

This action involves the disposition of a portion of the corpus of a trust created by the will of Silas Rosenfeld, a resident of Daviess County, Kentucky, who died on January 4, 1954, survived by his wife, Blanche Brown Rosenfeld, who in turn died on February 20, 1955. The trust came into being at the death of the testator’s wife at which time the corpus was directed to be divided into nine equal shares and distributed as follows: The entire income to widow so long as she lived. ' Upon the death of the widow the fund is to terminate and the principal remaining divided into nine equal parts and paid over as follows:

“(i) One part thereof to my brother, Adolph H. Rosenfeld, 924 West End Avenue, New York, New York, to be held in trust for them and the survivor under the provisions of paragraph c-4 hereof;
“(ii) One part thereof to my nephew, Millard Brown and his wife, Dorothy Brown, Box 413, Newburgh, Indiana, to be held in trust for them and the survivor under the provisions of paragraph (c-5) hereof;
“(iii) One part thereof to my niece, Mrs. Elizabeth Rosenfeld Auer, 39 Ridge-more Drive, Clayton Missouri;
“(iv) One part thereof to Ronald Ros-enfeld, son of my deceased nephew, Arthur Rosenfeld, Jr., whose address is 8056 Watkins Drive, Clayton, Missouri, to be held for him in trust under the provisions of paragraph (c-6) hereof;
“(y) One part thereof to my niece, Adelin Carol Rosenfeld, whose present address is 924 West End Avenue, New York, New York, to be held for her in trust under the following provisions:
“The aforesaid share devised to my said niece, Adelin Carol Rosenfeld, shall be held in trust for her by The Owensboro National Bank, as Trustee, the net income therefrom to be paid her for life at such times, not less than quarterly, as in the discretion of the Trustee seems advisable. At the death of said Adelin Carol Rosenfeld said share and all unexpended income therefrom shall be paid over and delivered to her surviving issue. Should said Adelin Carol Rosenfeld die without issue surviving then such share and all unexpended income therefrom shall pass to and be distributed equally among the other devisees and legatees referred to in subparagraphs (i) through (ix) of paragraph (c-3) herein, share and share alike.
“(vi) One part thereof to my niece, Helen Brown Oberdorfer, 772 Auburn Avenue, Buffalo, New York;
“(vii) One part thereof to my nephew, Alvin R. Brown, 1200 Parkside Drive, Evansville, Indiana.
“(viii) One part thereof to Maurice R. Mann, Apartment 525 Hotel Winde-mere East, Chicago 37, Illinois, to be held for him in trust under the provisions of paragraph (c-7) hereof.
“(ix) One part thereof to my nephew, Edwin Hirsch Mann, 5111 Ellis Avenue, Chicago, Illinois.”

Paragraph (c-7) of testator’s will reads as follows:

“(c-7) The share devised and bequeathed to my nephew, Maurice R. Mann, under subparagraph (viii) of paragraph (c-3) hereof shall be held in trust for him by The Owensboro National Bank, Owensboro, Kentucky, as Trustee, the net income therefrom to be paid to or for the benefit of the said Maurice R. Mann at such time, not less than quarterly, as in the discretion of the Trustee seems advisable, for and during the life of the said Maurice R. Mann and at his death to his issue surviving and if none, then the same shall be distributed equally among the other legatees and devisees named in subpar-agraph (i) through (ix) of paragraph (c-3).”

The litigation herein has been brought about because of the death of Maurice R. Mann without issue. The trustee under the will instituted this declaratory judgment proceeding to determine to whom and in what amounts it was to pay the corpus of the Maurice R. Mann trust. The trial court determined that the corpus should be divided among the people named in the eight other subparagraphs in the same proportions and under the same provisions as therein set out. Ronald Littman (Rosen-feld) one of those who is to receive a ⅛ share in trust for life under the judgment prosecutes this appeal. He contends that the clause “the same shall be distributed equally among the other legatees and dev-isees named in subparagraph (i) through (ix) of paragraph (c-3) * * * ” means that this property is to be given outright and in fee. Other parties claim that this clause refers to all individuals other than Maurice R. Mann named in subparagraph (c-3) some ten persons.

In answering these contentions, the trial court said:

“(15) It was the intention of the testator, Silas Rosenfeld, as expressed in Item 7 (c-3) of his will, to establish nine family units to provide for his side of the family and the side of the family of his wife, Blanche Brown Rosenfeld. He meant for each of these shares to be treated as a unit. It was his clear intention that the takers of some of these units or shares should take their shares outright and in fee simple, while those taking other units or shares would enjoy their shares only for their lives. Maurice R. Mann was an incompetent person for whom the testator intended to make provision during the lifetime of the said incompetent. It was the intention of the testator that upon the death of Maurice R. Mann without issue the trustee should distribute all of the Maurice R. Mann trust assets to the persons named in, and upon the same limitations and trusts as are contained in subparagraphs (i) through (ix), excluding (viii), of paragraph (c-3) of Item 7 of the testator’s will. Those beneficiaries who took their initial shares under paragraph (c-3) in fee take their shares of the gift over of the Maurice R. Mann assets in fee, and those persons who took their shares in the initial gifts under (c-3) for life, with limitations over, take their shares of the Maurice R. Mann trust assets for life with the same limitations over as were applicable to the initial gifts in (c-3), as modified by the codicils.
“It was the intention of the testator, Silas Rosenfeld, as expressed in Item 7(c-7) of his will, to incorporate to the extent applicable the provisions of Item 7 (c-3) of his will as a basis for the distribution of assets held for the payment of income to Maurice R. Mann for his life at the death of Maurice R. Mann without issue. The testator intended by Item 7(c-7) and its reference to Item 7 (c-3) that at the death of Maurice R. Mann, the assets held for payment of income to him for his life would be divided into eight shares, each equal in size to the others regardless of the number of persons who enjoy or will enjoy each share, and that these eight equal shares would be paid over in the manner provided by Item 7(c-3), as modified by the codicils, with the exception only that subparagraph (viii) would not be applicable.”

In interpreting a will the primary rule long followed in this jurisdiction is that the intent of the testator as it appears from the entire instrument will be given effect. This rule sometimes referred to as the “polar star” rule is now well established. See Cassidy v. Vannatta’s Executor, Ky., 242 S.W.2d 619; Cuddy v. McIntyre, 312 Ky. 606, 229 S.W.2d 315; Reeves v. Harris, 312 Ky. 277, 227 S.W.2d 198, and Hanks v. McDanell, 307 Ky. 243, 210 S.W.2d 784, 17 A.L.R.2d 1. We are in agreement with the chancellor. A reading of the entire will demonstrates conclusively that it was the intention of Silas Rosenfeld to establish nine separate family units. The portion of some of the units to be held in trust for life; the portion of others to be given outright; and the portion given to Maurice R. Mann was to be held in trust for life. Maurice Mann’s trust was to terminate upon his death without issue and the corpus to be distributed among other persons specified in subparagraphs (i) through (ix) with the same limitations and in the same proportions as therein specified.

There are many other issues presented by the various parties to this litigation. However, we believe our interpretation of the instrument as above stated resolves all issues. We further believe this disposition is well supported by Holland v. Holland’s Executor and Trustee, 238 Ky. 841, 38 S.W.2d 967, where under a similar division of an estate the share of the life tenant was divided into the same parts and under the same conditions as the original estate, those taking in joint tenancy under the original will taking their share of the remainder under like provision.

The judgment is affirmed.

All concur.


author: EDWARD P. HILL, Judge.

text:
    Laura JENNINGS, Appellant, v. Victor JENNINGS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    J. C. McKnight, Sr., McKnight & Pryor, Georgetown, for appellant.
    Todd, Smith & Compton, Georgetown, for appellee.
   EDWARD P. HILL, Judge.

This is an appeal from a judgment granting to appellee an absolute divorce and custody of the two teen-age children of the parties.

At the instance of the daughter of the parties, the chancellor, subsequent to the judgment, awarded her custody to appellant.

The judgment appealed from is affirmed for failure of the appellant to comply with RCA 1.200(a), which requires briefs to be “in printed form only,” unless relief from compliance is granted pursuant to RCA 1.200(e). Cf. Snell v. Commonwealth, Ky., 420 S.W.2d 127 (decided October 27, 1967). Nevertheless, we have carefully considered the custody question and do not find the judgment clearly erroneous. In fact, we concur in the conclusions reached by the chancellor.

The appeal is dismissed.

All concur.


author: WADDILL, Commissioner.

text:
    ALTIZER COAL COMPANY, Inc., Appellant, v. Grayson CLEVINGER et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.

      Fred B. Redwine, Sanders & Redwine, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Kelsey E. Friend, Friend & Mullins, Pike-ville, Stuart E. Alexander, Louisville, Paul D. Rehm, Versailles, Martin Glazer, Thomas R. Emerson, Dept, of Labor, Frankfort, for appellees.
   WADDILL, Commissioner.

On this appeal the only ground relied on for reversal is that the Workmen’s Compensation Board erred in refusing to hold the Special Fund liable for payment of a portion of the award obtained by appellee, Grayson Clevinger, against appellant, Altizer Coal Company, his employer. We affirm the judgment of the circuit court upholding the award and absolving the Special Fund from liability.

While Clevinger was working in the underground coal mine of his employer he was crushed by a slate fall. He sustained serious injuries to his back, hips and legs.

Appellant concedes that Clevinger is totally disabled and is entitled to an appropriate award under the Workmen’s Compensation Act. However, it is argued that the Board should apportion the disability under KRS 342.005(2) so as to cause the Special Fund to make a contribution to the payment of the award. This argument is based upon the fact that when Clevinger was a child he had contracted poliomyelitis and that this disease resulted in his right leg being 1(4 inches shorter and somewhat smaller than his left leg.

While a physician testified this condition caused Clevinger to have a functional disability of 12(4 per cent, the Board found as a fact that prior to the injuries he had received in the slate fall Clevinger had no occupational disability. The Board further found that the cause of his present occupational disability was the slate fall.

Under these findings, which are amply supported by the evidence, the Board was justified in concluding that the award should not be apportioned. KRS 342.005 (3). It is apparent to us that appellant’s argument is predicated upon the erroneous assumption that a preexisting condition automatically necessitates an apportionment of the award. Inland Steel Co. v. Mosby, Ky., 375 S.W.2d 268; cf. Estep Coal Co. v. Ward, 421 S.W.2d 367.

We conclude that the circuit court correctly upheld the award of the Board.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    Garner D. WILLEY, d/b/a Willey Engineering Company, Appellant, v. TERRY & WRIGHT OF KENTUCKY, INC., and Globe Indemnity Company, Appellees. GLOBE INDEMNITY COMPANY, Appellant, v. TERRY & WRIGHT OF KENTUCKY, INC., Appellee.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    Morris B. Borowitz, Louisville, for appellant Garner D. Willey d/b/a Willey Engineering Co.
    John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for appellee, Terry & Wright of Kentucky, Inc.
    Armer H. Mahan, Davis & Mahan, Louisville, for appellant-appellee, Globe Indemnity Co.
   CULLEN, Commissioner.

Terry & Wright of Kentucky, Inc., which was the principal contractor on a sewer construction project, recovered a judgment for $9,124.21 against Garner D. Willey, d/b/a Willey Engineering Company, who was a subcontractor on the project, and against Globe Indemnity Company, which was surety on Willey’s performance bond. Willey and Globe Indemnity Company have appealed.

A motion to dismiss the appeals, which was passed to the merits, hereby is overruled. Since we are affirming the judgment we find it unnecessary to discuss the grounds of the motion. A motion for an oral argument also is hereby overruled.

Terry & Wright had a contract for a large sewer construction project. They subcontracted part of the work, on an area basis, to Willey, and part to Anchor Construction Company. The subcontract between Terry & Wright and Willey provided that Terry & Wright would pay for all labor and materials used by Willey, but would be given credit for the amounts so paid against the compensation payable to Willey, which was to be 89 percent of the principal contract price for the portion of the work allocated to Willey. In this regard the subcontract contained the following provisions (which furnish the crux of the controversy in this action):

“All material and labor for which FIRST PARTY takes credit hereunder, on amounts due SECOND PARTY, shall have the prior written approval of SECOND PARTY. The signature of Mr. Willey, or a representative of him, on the payroll and delivery tickets shall constitute approval in writing.”

It turned out that the amount of compensation payable to Willey came to only $25,189.39, whereas the amount claimed to have been expended by Terry & Wright for labor and materials was $34,313.60, thus leaving a net loss of $9,124.21 on the subcontracted work. The amount of this loss is what Terry & Wright sued for and recovered.

Of the amount of $34,313.60 for which Terry & Wright claimed credit, $7,740.36 was for items which had not been approved in writing by Willey. It was and is Wil-ley’s contention that he cannot be charged for those items, wherefore he should be held liable only for $2,149.78 (the balance after subtracting $7,740.36 from $9,124.21). He argues that under the plain, clear terms of the subcontract his written approval was necessary for each item sought to be charged against him.

Proof was heard by a commissioner. It showed that during the nine-month period of the work Terry & Wright submitted to Willey weekly statements of payrolls and monthly statements of materials used on Willey’s portion of the project, the statements being itemized in detail and accompanied with copies of invoices. Willey at no time during this period raised any objection to any item or to the method of submitting statements. The proof indicated that a number of the invoices for materials on which Willey had not endorsed his written approval were invoices that the supplier had charged and sent directly to Willey and which he had brought to Terry & Wright for payment. Other unapproved invoices were for materials that had been purchased for another part of the project but which in the exigencies of the work were used in Willey’s area.

The commissioner found that under the practical construction the parties themselves had placed upon their contract a strict compliance with the clauses relating to written approval was not intended, and the submission of the weekly and monthly detailed statements was substantial compliance. The chancellor adopted the commissioner’s findings, and held that since Willey during the course of the work had raised no question as to the correctness of the charges contained in the statements furnished him, the charges must be considered to have been properly made.

In our opinion the chancellor reached the right result. We think that the parties by their course of dealing abrogated the written approval clause. It makes no difference what name we apply to the theory on which we reach this conclusion, whether it be contemporaneous construction, waiver, estoppel, novation, or what have you. The theory simply is that by their course of dealing the parties showed that they did not intend the written approval clause to be strictly observed.

The situation we have here is comparable, we think, to that in which a building or construction contract has provided that no alterations or extras will be paid for without written order. Under such contracts the courts have held the owner liable for alterations or extras made without his written order, where he orally agreed to or acquiesced in them. See 13 Am.Jur., 2d, Building and Construction Contracts, sec. 24, pp. 26, 27; Annotation, 66 A.L.R. 649; Illinois C. R. Co. v. Manion, 113 Ky. 7, 67 S.W. 40.

Authority for our position also is found in Trapp v. Conley, Ky., 89 S.W.2d 514, and Jones v. Linkes, Ky., 267 S.W.2d 936, in each of which cases the court held that a contract would be enforced in accordance with the practical construction placed upon it by the parties.

The judgments are affirmed.

All concur.


author: MILLIKEN, Judge.

text:
    AMALGAMATED LABOR LIFE INSURANCE COMPANY, Appellant, v. Jim ROWE, Administrator of the Estate of William C. Rowe, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    Fred B. Redwine, Sanders & Redwine, Pikeville, for appellant.
    V. R. Bentley, Pikeville, for appellee.
   MILLIKEN, Judge.

This action was instituted in Pike Circuit Court by the appellee, Jim Rowe, administrator of the estate of William C. Rowe, against the appellant, Amalgamated Labor Life Insurance Company, to recover $8,-500.00 alleged to be due the appellee on a life insurance policy issued by the appellant on the life of the deceased, William C. Rowe. The trial court ruled that the company should pay the sum of $8,500.00 to the administrator-appellee. It is from this judgment that the Insurance Company has appealed to this court.

The deceased, William C. Rowe, a 23 year old man, was employed at a coal mine by an intervening complainant, Amos Bart-ley. In lieu of Workmen’s Compensation Insurance, Bartley contracted with the appellant, Insurance Company, for an accident insurance policy on the life of his employee, William C. Rowe, and in the contract made himself the beneficiary. At the time of the insured’s death, he was not employed by Bartley, and had not been so employed for three of four weeks. He was killed some five or six miles from the Bartley mine by a cause foreign to the Bartley Mining operation. This appeal is a contest between the plaintiff, Jim Rowe, administrator, and the Amalgamated Life Insurance Company, which asserts that the whole insurance contract was void because Bartley, the insured’s employer at the time of the execution of the contract of insurance, allegedly had no insurable interest in the life or body of William C. Rowe. Bartley, the employer, abandoned his claim to the benefits of the policy.

It is conceded by both parties, the administrator and the insurance company, that it is declared in this state by statute that one who has no insurable interest in the life of another cannot be the beneficiary of a policy issued on the life of such other person and that such an insurance contract is void from its inception. KRS 304.650 (1). The question which must be decided is whether the employer had an insurable interest, a question we will discuss hereafter.

Section 9, Part X of the policy declares: "Indemnity for loss of life will be payable in accordance with the beneficiary designation and the provisions respecting such payment which may be prescribed herein and effective at the time of payment. If no such designation or provision is then effective, such indemnity shall be payable to the estate of the insured * *

The trial court found that the employer had taken out the policy in lieu of workmen’s compensation which law prescribes that an employer who does not operate under the Act will be denied the defenses of (1) the contributory negligence of the employee, (2) that the injury was caused by the negligence of a fellow servant of the injured employee, and (3) that the employee had assumed the risk of the Injury. KRS 342.410. Thus, the employer, here, who was not operating under the Workmen’s, Compensation Act, ran a considerable risk of being financially responsible to the employee if he were injured during the employment. In other words, this employer ran a risk of financial loss and it was this risk which he was attempting to insure against, and which accounts for the fact that he made himself the beneficiary of the policy. We think this circumstance, this added risk of loss, as compared to employers protected by the Workmen’s Compensation Act, is enough to afford the employer here an insurable interest in his employee, 29 Am.Jur. Insurance, Section 488, where somewhat similar, peculiar interests in employees and officers are recognized as insurable interests. After all, workmen’s compensation protection is usually a matter of insurance for the smaller employers.

We conclude, therefore, that this policy was issued when the employer had an insurable interest in the insured, and that is the time when the validity of the policy in this respect is determined, “the cessation of the interest prior to the death of the insured, in the absence of a provision in the contract or a statute to the contrary” being held immaterial. 29 Am.Jur. Insurance, Section 475.

We construe Section 9, Part X, of the policy as covering the very situation which arose here — where the insured had ceased to be an employee, yet the policy was no violation of the statute, KRS 304.650(1), because we find that the employer had an insurable interest at the time the policy was issued and the benefits thereunder were payable to the estate of the deceased by Section 9, Part X, of the policy. We do not pass on whether the employer would have been entitled to the benefits of the policy, because that question is not before us.

The judgment is affirmed.

All concur.


author: PALMORE, Judge.

text:
    Lawrence ARNOLD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    Joe E. Caylor, Charles C. Adams, Adams & Adams, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Lawrence Arnold was tried, convicted and given a $100 fine and 60 days in jail on an indictment for illegal possession of intoxicating liquor in dry territory for purpose of sale. KRS 242.230(1), 242.990(1). His grounds for reversal on this appeal are (1) that he was denied due process because the judge who tried the case had prepared the affidavit for- and issued the search warrant through which the principal evidence for the prosecution was obtained, and (2) that the search was illegal.

It is unnecessary to consider at length the second of these points, because at no time before or during the course of the trial did the appellant raise any question as to the propriety of the search. There was neither a motion to suppress nor an objection to the testimony describing the search and consequent discovery of the incriminating evidence. Hence any deficiencies in the affidavit, warrant and the manner in which the warrant was executed were waived. Knight v. Commonwealth, Ky., 405 S.W.2d 685 (1966).

The first witness for the Commonwealth was a state trooper who had made the affidavit on which the search warrant was issued. The affidavit was displayed to him and he was asked if he had signed it. At this point the record shows the following objection:

“Comes counsel for the defendant and objects to the affidavit being written by the Circuit Judge in his handwriting and signed by the Circuit Judge and the warrant being written by the Circuit Judge and signed by the Circuit Judge and to the Circuit Judge then trying the case, after taking this personal interest in the apprehension of the defendant. Said objection is overruled by the Court to which ruling of the Court the defendant by counsel excepts.”

Subsequently and without further motion or objection the affidavit and search warrant were introduced as exhibits. The warrant and the jurat at the foot of the affidavit were signed by the circuit judge, and it appears that he also filled out the handwritten portions of both instruments, the remainder of each being in printed form.

KRS 23.230 provides the method and ground on which a judge may be sworn off the bench. The ground is that he will not afford the affiant a fair and impartial trial. The objection in this case did not include any assertion by the appellant or by his counsel, under oath or otherwise, that the trial judge would not or could not conduct a fair and impartial trial. In fact, we cannot tell whether the objection was directed at the search warrant or the judge, since it was not accompanied or followed by a motion disclosing what sort of relief was desired. Ordinarily, a trial court cannot be held in error for having failed to do something it was not asked to do.

Had the appellant moved to disqualify the judge upon the ground that because he had prepared the affidavit and issued the search warrant leading to appellant’s prosecution he could not and would not afford the appellant a fair trial, we would be in a position to adjudicate the question of whether these activities by a judge are sufficiently demonstrative of bias to prevent his trying the case. At it is, we do not reach the question.

The judgment is affirmed.

All concur.


author: DAVIS, Commissioner.

text:
    ESTEP COAL COMPANY, Appellant, v. Oscar WARD et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    Jack T. Page, Pikeville, for appellant.
    Kelsey E. Friend, Pikeville, Lewis Nich-olls, Greenup, Robert Matthews, Atty. Gen., Frankfort, for appellees.
   DAVIS, Commissioner.

The sole contention made in this workmen’s compensation proceeding is the appellant-employer’s claim that the award for total permanent disability should be apportioned so that one-half of the award would be paid by the employer and the other half by the Special Fund. The Board and the circuit court rejected the claim of the employer.

On November 11, 1964, Oscar Ward sustained injuries in a slate fall while working as a coal miner for the appellant, Estep Coal Company. An agreement for compensation providing for payment of maximum benefits for forty weeks was made between Ward and his employer and approved by the Board. Subsequent developments reflected that Ward’s disability from the injury he sustained on November 11, 1964, will continue permanently, or at least beyond any presently ascertainable date. Ward’s motion to reopen the agreed compensation award was sustained, and it is not questioned that the evidence warranted that reopening.

Sometime after the injury of November 11, 1964, distinct manifestations of silicosis in Ward’s body occurred. A separate claim for compensation based on the silicosis was filed and consolidated with the original proceeding. Medical evidence was heard to the effect that Ward is totally and permanently disabled as a result of the physical injuries he sustained on November 11, 1964, and that he is also totally and permanently disabled by reason of silicosis. The award of the Board provided that the appellant-employer should pay compensation at the maximum rate for the period beginning November 11, 1964, and continuing for 425 weeks. The award also provided recovery of compensation against the Special Fund for total disability resulting from silicosis at the maximum rate for the same period of 425 weeks beginning November 11, 1964, the award against the Special Fund to be credited with all compensation paid or payable by the employer. The Special Fund does not challenge the propriety of the award against it. The net effect of the Board’s award is to impose complete liability upon the employer for permanent disability so long as the disability is attributable to the injury sustained on November 11, 1964. In the event the injury-disability ceases before the expiration of 425 weeks, then the Special Fund must pay compensation for such total disability as then persists from silicosis until the combination of payments shall have been made for 425 weeks.

In its opinion the Board pointed out that the date of the actual disability from silicosis may not be determined with any degree of precision inasmuch as Ward worked until disabled by injury on November 11, 1964. The Board determined that it had not been “conclusively proven” that Ward’s silicosis resulted from exposure during his last employment; hence, any compensation based upon the silicosis must be awarded wholly against the Special Fund pursuant to KRS 342.316 (13) (a).

The thesis of appellant’s position is thus presented in its brief:

“Appellant does not claim that the Workmen’s Compensation law contains any express language that requires apportionment here. It is equally true that the Workmen’s Compensation law does not contain any express language that places liability for payment of all of the benefits upon the employer and relieves the Special Fund of liability for benefits to the extent that the employer is paying benefits under the award against it.”

We are not persuaded of the soundness of appellant’s position. It is patent that the employer is solely responsible for the disability attributable solely to the accident of November 11, 1964. We are unable to perceive any basis in statute or logic which would impel the result urged by the appellant. As noted in Osborne Mining Corp. v. Blackburn, Ky., 397 S.W.2d 144:

“It is conceivable that a claimant may have a combination of injuries or an injury and occupational disease, any one of which would entitle him to maximum benefits, but no injury or occupational disease or combination thereof simultaneously causing disability will entitle him to more than the maximum benefits under KRS 342.095, because he has just the one total and permanent disability resulting.” Id. 397 S.W.2d 145.

Here, as in Osborne, the plaintiff has one total and permanent disability. The disability for which the employer is liable is that which flows from the accident and which would have flowed from the accident quite apart from the occupational disease feature of the case. We are unable to discern any statutory intent to impose liability on the Special Fund and diminish the responsibility of the employer by the fortuitous circumstance of the silicotic condition present in this case.

The judgment is affirmed.

All concur.


text:
    T. C. DECKER et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    John G. Prather, Lawrence S. Hail, Somerset, for appellants.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Phillip J. Wicker, Dept, of Highways, Somerset, for appellee.
   DAVIS, Commissioner.

T. C. Decker and Nora Decker appeal from a judgment in a condemnation proceeding in which they were awarded $3,600. They complain: (1) that the court erred in striking the testimony of a witness offered by them; (2) in admitting improper photographs into the evidence; (3) in permitting improper cross-examination of a witness presented in their behalf; and (4) that the verdict is inadequate.

Before the taking, the tract involved contained nearly twenty-five acres fronting for about 2,600 feet along U. S. Highway 27 and was situated about two miles south of Somerset. The parcel was an irregularly shaped one having most of its frontage along U. S. Highway 27, which forms the west boundary of the tract. A jutting part of the tract extends to former U. S. 27 where a frontage along that existing roadway extends for 230 feet.

The acquisition in this case is for a right-of-way embracing 1.64 acres to lead from existing U. S. Highway 27 to the Somerset Community College which is located just east of old U. S. 27. The new construction will be for a nonaccess highway and will effect another parceling of appellants’ land, which was already somewhat parceled by even a third roadway referred to as the old Monticello Pike.

The landowners offered evidence fixing the before value of the property as ranging between $52,000 and $70,900, with after values starting at $36,400 and extending to $51,100. According to the figures presented by the witnesses for the landowners, the difference in the before and after values was from $13,915 to $19,800.

Two witnesses testified for the appellee, Department of Highways, each of whom fixed the before value at $25,000 and the after value at $21,720, with a resulting difference of $3,280. The jury found the before value to be $26,000 and the after value as $22,400, resulting in its verdict of $3,600.

Upon motion of the Department, the trial judge struck the testimony of witness Simpson who had testified as to values for the appellants. An examination of the1 testimony of this witness reveals that he formulated his after value by appraising the strip of land taken and adding to that figure the damages he regarded as resulting to the remainder; then he deducted the sum of those two figures from the amount he had determined as the before value and came up with his after value. This method of computation was condemned in Com., Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, and has been condemned in a host of cases following the Sherrod case. In Com., Dept. of Highways v. Mann, Ky., 387 S.W.2d 848, we held that evidence of values computed as was done by witness Simpson in this case should have been stricken upon the timely motion of the Department. There is nothing in our ruling in Com., Dept. of Highways v. Shaw, Ky., 390 S.W. 2d 161, which militates against the rule followed in Mann and other decisions discussed in the Shaw and Mann opinions. The evidence of the witness Simpson was not susceptible to the revision discussed in the Shaw case or in Com., Dept. of Highways v. Mayes, Ky., 388 S.W.2d 125. It is our view that the trial court correctly struck the evidence of the witness Simpson. It is of some significance to note that the witness Simpson testified to the lowest difference between before and after values insofar as evidence offered by the appellants is concerned.

During the course of the trial, the witnesses made reference to sale of property called the “Vaught property” as a comparable sale for purposes of the trial. Four photographs of portions of the Vaught tract were introduced by the Department. Objection to the admission of these pictures was made by the appellants on the basis that a change in grade and improvements of the Vaught tract had occurred after the compared sale and before the photographs were taken. The existence of these changes was made abundantly clear to the jury, and the trial judge specifically admonished the jury not to regard the improvements on the Vaught land. We are unable to perceive any error respecting the admission of these pictures. There are many cases approving the admission of photographs, including Com., Dept. of Highways v. Williams, Ky., 317 S.W.2d 482; Com., Dept. of Highways v. Arnett, Ky., 390 S.W.2d 187. We think the rationale of Stewart v. Com. for Use and Benefit of Dept. of Highways, Ky., 337 S.W.2d 880, rules this case on the point under discussion. In Stewart it was recognized that a degree of dissimilarity between allegedly comparable sales and the land in question must be expected. There we said:

“Therefore, where the properties are reasonably similar, and a qualified expert states his opinion that they are sufficiently comparable for appraisal purposes, it is better to leave the dissimilarities to examination and cross-examination than to exclude the testimony altogether.” Id. 337 S.W.2d at 884.

In our view the jury was fully informed so as to enable it to sift out any dissimilarities reflected in the photographs of the Vaught property insofar as changes had occurred after the sale of the Vaught property.

Witness Wesley testified for the appellants and ascribed significantly high value to the appellants’ land by reason of its frontage along existing U. S. Highway 27. Upon cross-examination the trial court permitted counsel for the Department to bring out that witness Wesley had testified concerning a nearby tract of land located on the same highway on an earlier occasion. The brunt of the testimony of the witness in the earlier trial was to the effect that no enhancement resulted because of the property’s location on the very same highway. It is true that the appraisal in the earlier case had been made as of 1958, but the testimony of the witness had been given in 1961. CR 43.07 furnishes appropriate basis for the cross-examination in this case. The Department was entitled to show that the witness had previously opined that location on U. S. 27 did not enhance property situated comparably to the property of the appellants in face of his testimony in the present case to the contrary. The fact that the evidence on the present trial was given at a later date is of no significance here. The witness was entitled to explain or otherwise elaborate on any conditions which had caused him to adjust or modify his thinking, but the Department was entitled to have the jury know of the witness’ earlier point of view as affecting the probative value of his testimony.

The appellants contend that the verdict is inadequate within the purview of CR 59.01 (4) in that it appears to have been given under the influence of passion or prejudice or in disregard of the evidence or instructions. Countering this contention, the Department points out that the verdict is within the range of the evidence and that appellants had listed for taxation the entire tract, along with an additional sixty acres not affected by this proceeding, for the sum of $3,480. There was a showing that the average assessment of land in Pulaski County at that time was 24.3% of its fair market value. By projection of that ratio, the entire eighty-five acres was valued at $13,920 for tax purposes. There was no showing as to what portion of the evaluation was attributable to the twenty-five acres in the tract under consideration. Since the sixty acres also fronted on U. S. Highway 27, it is reasonable to assume that a substantial portion of the tax value was assignable to the sixty acres. Moreover, numerous comparable sales were shown in evidence by the Department, and they support the verdict of the jury. No untoward incident occurred at the trial which was calculated to inflame the jury in favor of the Department against the local landowners. We are unable to find any basis for concluding that the verdict is inadequate.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Noble WHITE et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 24, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Ben D. Smith, Somerset, for appellant.
    C. B. Upton, Williamsburg, for appellees.
   MILLIKEN, Judge.

This appeal involves a highway right of way condemnation action brought in Whitley County by the Department of Highways to acquire right of way for construction to a section of I-7S near Williams-burg.

Appellee Noble White’s property consisted of a tract of about eight acres of level land on the west side of U. S. 25 about two miles south of Williamsburg in a neighborhood of small farms and low to modest cost dwellings. The tract was improved with a twelve unit motel, about twenty years old, and a combination dwelling and restaurant. The motel units were of wood frame construction with brick fronts and contained all the modern conveniences. Behind the motel units were four utility houses for water heaters, a shed, 24 x 8 feet, a well house, 6x6 feet, a chicken house, 6x8 feet, and a garden. The rear of the tract was woodland.

The Commonwealth condemned 4.72 acres which included the motel and all the improvements. The land taken was a strip of approximately 400 feet running north to south through the heart of the property for its entire length. There were two parcels remaining, one on the west which was woodland and contained 2.4 acres, and one on the east which contained .78 acres and had frontage on U. S. 25 west. The Highway Department excepted to the valuation placed on the property by the commissioners in the county court, but on the trial in the circuit court the jury returned a verdict of $62,000.00, just $400.00 less than the valuation placed on the property by the commissioners.

The first point argued on appeal by the Highway Department is that the verdict was palpably excessive and not supported by evidence of probative value.

At the trial, the Department produced three qualified real estate appraisers who valued the loss at about $30,000.00. These witnesses based their findings on comparable sales of motels in the general area plus local sales of unimproved tracts of land analogous in size and location to ap-pellee White’s land. All three witnesses were Highway Department employees acquainted with property values in the area.

The witnesses for the appellee included Noble White himself, the president of the Farmers National Bank in Williamsburg, a local realtor, and a part-time realtor. All these men had lived in Whitley County or Williamsburg for most of their lives and stated they were thoroughly familiar with local land values. For the most part, these appraisers for White relied only on their experience in real estate in arriving at their estimates. They gave, with one exception, no comparable sales or other factors as a basis for their opinions, but relied largely on their knowledge of values in the community. The only comparable sale given by them was the Pleasant View Motel sale which occurred in 1954 with a sale price of $50,000.00. This motel was situated only four miles from Williams-burg, but was generally conceded to be better structurally than Noble White’s motel besides containing more units and a bigger restaurant. The Department considered this sale to be too far back in time to be meaningful and only introduced comparable sales occurring during or after 1960. All appraisals mentioned in this case were made in the Summer and early Fall of 1963; the trial was in October of 1965 and the judgment entered November 22, 1965.

We have no trouble with the qualifications of the witnesses for both sides; they were qualified. There was little difference of opinion between the litigants as to the after-value of the property, the Department’s highest after-value being $3,000.00 and the landowner’s highest after-value being $2,600.00. It was in estimates of the before-value where the difference of opinion arose, two of the Department’s witnesses placing it at $30,000.00 and one estimating it at $34,000.00, while three of the landowner’s witnesses placed it at $65,000.00 and the landowner himself assessed it at $76,000.00.

It was brought out in cross-examination of the landowner that he had bought the property in 1952 for $18,400 and that he had modernized it to such an extent that he estimated the cost of the improvements (if the labor of his father, brother and himself were considered) would amount to $56,000.00, and that was one reason why he placed a before-value of $76,000.00 on his property. He had installed central heating and modern plumbing and sewage system, had combined the separate units and had run a brick wall over 229 feet in length across the front of them in line with his restaurant, which transformed it into a motel rather than the unconnected units it formerly was. The photographs introduced in evidence indicate that the property was well maintained, and afforded modern accommodations for the traveling public.

We do not find here the injection of improper factors into the evidence for the consideration of the jury, but rather an out-and-out difference of opinion between the qualified appraisers for the litigants as to what the motel of six double units and six single units together with the restaurant and outbuildings and land taken was worth, at the time of the taking. The appraisers for the landowner visited each and every room in the motel, observed its condition, and expressed their opinions thereafter on the basis of their observations and established knowledge of property values in the community, sedulously refusing on cross-examination to break down their appraisals on a unit by unit basis, declaring that that was not the method they had used in appraising it. They also testified to the steady increase in property values in the area and said they had not considered replacement cost in making their appraisals. We think there was adequate evidence to support the jury’s verdict.

The Department contends that counsel for the landowners made improper statements and asked improper questions which prejudiced the jury. He may have fudged a bit in the heat of combat, but if he did the court expunged its effect by a number of admonitions. Much of the complained of interrogation was on cross-examination where counsel has a rather wide latitude in testing the accuracy of opponent’s witnesses and, in this particular case, in testing witnesses who had testified to comparable sales. There are so many factors involved in determining comparability such as the construction and condition of the improvements on the land sold, its location, the time of sale, and economic conditions at the time compared to conditions at the time of taking, that a Scotch judge might rule them out as not comparable where an Irishman would let them in. At best and at most the testimony here as to comparables was some slight guide to the jury in reaching its verdict; it could not be determinative, for there was other evidence to consider. The Department did not move the court to discharge the jury, but even if it had we do not believe its motion would have been granted, for the trial court, it appears to us, vigilantly controlled the progress of the trial by his admonitions and comments. Commonwealth of Kentucky, Department of Highways v. Hess, Ky., 420 S.W.2d 660, decided October 20, 1967, involving trial of a condemnation action in this same trial court.

Two days after the trial one of the jurors bought a portion of the remaining land on the back of the property for $350.00, an act to which the Department ascribes an evil portent. The juror swore that he had been looking for a small parcel of land for a small home and did not know that this parcel was available until he discovered it at the trial. White, the landowner, had refused an offer of $200.00 for it from another individual prior to the trial, had asked $350.00 for it then, and sold it to the juror for his asking price after the trial. We think the trial judge correctly refused to grant a new trial because of this occurrence.

The judgment is affirmed.

All concur.


author: BELCHER, Judge. DICE, Judge. MORRISON, Judge.

text:
    Milton O’NEAL, Appellant, v. The STATE of Texas, Appellee.
    No. 40414.
    Court of Criminal Appeals of Texas.
    June 21, 1967.
    Rehearing Denied Oct. 4, 1967.
    Second Rehearing Denied Nov. 8, 1967.

      Jones, Blakeslee, Minton, Burton & Fitzgerald, by Roy Q. Minton, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The offense is enticing a male child under the age of fourteen (14) years to enter a house for the purpose of proposing an act which constitutes the offense of sodomy as denounced by Article 535b, Vernon’s Ann. P.C.; the punishment is 10 years.

The complainant, J. E. C., testified that he was 11 years old in July 1964, when he first met appellant at the house of a school mate, that appellant took his friend and him water skiing and that later in that month he met appellant at a park where they were playing football and after the game appellant asked him and two of his friends to come to his house and spend the night. He stated that he alone went, that he and appellant first attended a movie and from there went to appellant’s home where they both undressed down to their underwear and watched television. He stated that after a time appellant pulled off his underwear and pulled the complainant’s underwear down to his knees, put complainant’s hand on “his dick and told me to jack him off and then he started jacking me off.” Complainant stated that he did not masturbate appellant, but that appellant “rolled me over and he got on top of me,” put his penis between complainant’s thighs and “started moving up and down,” and thereafter asked him, “Do you want to suck to make it really feel good?” and when complainant answered in the negative, appellant desisted, saying, “I guess I rushed you a little too much.” Complainant spent the remainder of the night and the next day in appellant’s company and made no complaint to anyone about the incident until the police interrogated him in February 1966.

H. F., one of the complainant’s 15-year-old friends, testified- that on the night in question he and some other boys went to appellant’s home and that he climbed a tree in order to see if anyone was awake and saw appellant and complainant lying on a bed in a partially lit room, that complainant’s underwear was down to his knees and appellant’s head was near complainant’s mid-section and appellant had one hand on his own private parts.

The appellant did not testify or offer any evidence on the trial of guilt or innocence.

The record reveals that the appellant’s application to take the oral depositions of the complaining party and two peace officers was granted by the trial judge on March 21, 1966, and that the trial began on May 9, 1966.

Over appellant’s strenuous objection, the prosecution was permitted to present testimony from two other boys showing that appellant had at other times and while alone with them committed similar acts upon them. The court charged the jury that such evidence was admitted for the purpose of showing identity, intent, motive, malice and common plan or scheme, if it did.

Appellant relies upon the general rule that evidence of extraneous offenses is not admissible for the reason that an accused is entitled to be tried only for the offense alleged in the indictment unless such offenses come within the exceptions to the general rule; and he further contends that none of the exceptions are applicable to the evidence in this case.

The indictment, omitting the formal parts, alleges that the appellant on or about July 20, 1965, “did then and there unlawfully with lascivious intent entice, allure, persuade and invite J. E. C., a male child under fourteen (14) years of age, to enter a house for the purpose of proposing an act which constitutes the offense of sodomy.”

Art. 535b, Section 1, V.A.P.C., reads:

“It shall be unlawful for any person with lascivious intent to entice, allure, persuade, or invite, or attempt to entice, allure, persuade or invite, any child under fourteen (14) years of age to enter any vehicle, room, house, office or other place for the purpose of proposing to such child the performance of an act of sexual intercourse or an act which constitutes the offense of sodomy * *

Art. 21.05, Vernon’s Ann.C.C.P., provides :

“Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment; *

The meaning of the word “lascivious” as defined in the opinion in Slusser v. State, 155 Tex.Cr.R. 160, 232 S.W.2d 727, a sodomy case, is deemed applicable in the instant case. There this court said:

“The words ‘lewd’ and ‘lascivious’ are not defined in the statutes and must therefore be given their ordinary meaning to be arrived at in part by a determination of the legislative intent in the use of the words in the particular statute.
“As so determined, the term ‘lewd or lascivious manner’ means in a vulgar manner inciting sexual desire or appetite, and connotes lust, indecency and sexual indulgence. The words ‘lewd’ and ‘lascivious’ are similar in meaning and signify that form of immorality which has relation to sexual impurity. See Vol. 24, Words and Phrases, Perm. Ed., P. 257; Swearingen v. U. S., 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765.”

At the close of the state’s case in chief, the appellant presented his motion requesting the court to instruct the jury to find him not guilty for the following reasons:

“In a case of this nature if the evidence shows that the complaining witness is an accomplice, or if the evidence has raised that he is an accomplice, then it becomes necessary to have his testimony corroborated ;
“The evidence is clear in this case without going into it that the witness continued to do this when other people had been present and it was not necessary for him to do so without his consenting, and under the decisions in this State, he would therefore be an accomplice witness, whether in fact a principal in the crime or not, and the necessity of corroboration arises;
“Now, as to the corroborating testimony which the State has offered in the way of H. F., his testimony clearly shows only the opportunity for this to have happened. He has testified that he observed the defendant and the complaining witness in such a position that he certainly assumed that something of this nature could have been happening, or perhaps a reasonable person would so assume;
“The law in this case is clear that the showing of an opportunity to commit the offense is insufficient to corroborate accomplice testimony;
“Therefore, we move for an instructed verdict of not guilty, Your Honor, on the grounds that the State’s primary testimony was made by an accomplice witness, and that the attempt at corroborating such testimony failed in that it showed only the opportunity to have committed the offense.”

To the action of the court in refusing his motion for an instructed verdict of not guilty, the appellant excepted.

In accordance with the principles of law pertaining to the testimony of the complaining witness and his corroboration, the court charged the jury upon the law applicable to accomplice testimony and its corroboration :

“An accomplice, as the word is here used, means any one connected with the crime charged, either as principal, accomplice, or accessory. It includes all persons who are connected with the crime charged by unlawful act or omission on their part, transpiring either before, at the time of, or after the commission of the offense, if any, and whether or not they were present and participated in the commission of the crime.
“A conviction cannot be had upon the testimony of an accomplice unless the jury first believe that the accomplice’s evidence is true and that it shows the defendant is guilty of the offense charged against him, 'and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission.
“If you find from the evidence that the witness, J_E_C_, was an accomplice, or you have a reasonable doubt thereof, as that term has been defined to you in the foregoing instructions, then you are instructed that if you find beyond a reasonable doubt that an offense was committed, you cannot find the defendant, Milton O’Neal, guilty upon the testimony of J_E_ C_unless you first believe the testimony of the said J_ E_ C_ is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in this case, outside the evidence of said J_ E_ C_, tending to connect the defendant with the commission of the offense charged in the indictment and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.”

In considering the credibility of an accomplice witness this court in Cast v. State, 164 Tex.Cr.R. 3, 296 S.W.2d 269, said:

"An accomplice witness is a discredited witness because his testimony alone cannot furnish the basis for a conviction.”

It is insisted that the issue of lascivious intent had been clearly proved before the offer of testimony pertaining to extraneous offenses; that once the act was proved to have been committed, the appropriate and necessary intent will be presumed if the appellant does not raise some defensive theory.

The appellant moved for an instructed verdict of not guilty at the close of the state’s case in chief, on the grounds that the state’s primary testimony was given by an accomplice witness, and that the attempt at corroborating such testimony failed in that it showed only the opportunity to have committed the offense.

It is evident that there was dispute as to whether the testimony of the complaining witness and the boy who climbed a tree and looked through the window constituted proof clear and certain that appellant with lascivious intent enticed the 11-year-old complainant to enter his house for the purpose of proposing to such child an act which constitutes the offense of sodomy.

The other grounds urged as error pertain to the proof of extraneous offenses.

The state introduced the testimony of three boys, two of whom were 11 years of age and the other, age 10, at the time here in question; The complainant, age 11 on July 20, 1964 (the date of the act relied on by the state), testified that about that date he was invited by the appellant to spend the night at his home; that during the night the appellant handled his private parts and placed his penis between his legs and began moving up and down. The other boy, age 11, testified that in July, 1964, he was invited by the appellant to spend the night at his house, and that during the night the appellant committed an act of oral sodomy upon him while they were in bed; that the appellant fondled his privates two or three times before his birthday on July 9, 1964, and two or three times later that summer. The 10-year-old boy testified that in the fall of 1964, he went with the appellant to his home, and while on the bed the appellant placed his penis between his legs and began moving back and forth. The appellant was nude and the complainant’s underwear was down to his knees during the act about July 20; and the appellant and the other two boys were nude during the acts between them. The boys disrobed at the insistence of the appellant.

During the cross-examination of the 11-year-old boy (not the complainant) pertaining to the appellant’s actions with him, the boy testified in part as follows:

“Q You ultimately did tell your mother and your father about it, didn’t you?
“A After a little while.
“Q Now, S-, your mother and your father are intelligent, understanding people, are they not?
“A Yes, sir.
"Q And when you did talk to your mother, she explained to you it was possible that Milton (appellant) had a problem in this direction?
“A Yes, sir.”

The testimony of the three boys reveals that all of the described unnatural acts except one took place in the bed in one and the same house, that of the appellant, where each had been taken by him. The boys’ testimony leads to the conclusion that the appellant followed a common pattern, that is, the acts described have common features in both their preparation and in their commission. The evidence indicates methods and types of unnatural sexual acts, all being of a similar nature to the offense on trial and recent in point of time, all logically and reasonably tending to show the accused’s intent and purpose, the condition of his mind, the unnatural attitude of the accused toward the victim of his lust, and the probability he would commit the act charged.

The evidence warrants the conclusion that the appellant followed a common pattern of similar acts and conduct, amounting to a common scheme or plan in committing the particular acts shown by the evidence. The appellant pursued the same method, in the same place, with similar acts committed upon three boys, ages 10 and 11.

The offense alleged in the indictment as denounced in the statute consists of an act combined with a particular intent, that is, a lascivious intent, and it is as necessary to prove the intent as to prove the act, and the particular intent must be found by the jury, as a fact, beyond a reasonable doubt, before a conviction can be sustained.

From all the facts and circumstances in evidence in this case, it is concluded that the evidence of the unnatural sexual acts by the appellant with boys other than the complainant, at the appellant’s own house, under like circumstances and conditions, was evidence which was admissible to show common plan or scheme, the lascivious intent of the accused, and his purpose or motive, which are exceptions to the general rule.

Also, as a ground for reversal, it is contended in appellant’s brief that it was error to instruct the jury that they could consider the extraneous offenses for the purpose of showing malice.

In considering the nature of the testimony in light of the record, it appears that the inclusion of malice (which was not an issue) among five other named elements was not reasonably calculated to injure the rights of the appellant.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DICE, Judge.

We have again reviewed the record in light of appellant’s motion for rehearing, and remain convinced that the evidence of extraneous offenses was admissible under the exceptions stated to the general rule.

In his motion, appellant complains of our failure to pass upon his point of error # 5, wherein he urged as error the court’s refusal to give his requested charge on punishment.

The court, in his charge, instructed the jury that if they assessed punishment for not more than ten years and found that appellant had never been convicted of a felony in this state or any other state they could in their discretion recommend probation and so state in their verdict.

Appellant’s requested charge, which the court refused, would have instructed the jury that if probation were granted by the jury, the court, if he found appellant eligible, would give him a probated sentence upon the conditions as set out in Sec. 6 of Art. 42.12, subd. B, V.A.C.C.P.

Such requested charge to the jury that if they recommended probation the court would give appellant a probated sentence upon the conditions set out in Sec. 6 of Art. 42.12, subd. B, supra, was incorrect, in view of that provision in Sec. 3a of Art. 42.12, subd. B, supra, which reads

“If probation is granted by the jury the court may impose only those conditions which are set forth in Section 6 hereof.”

Under this provision of the statute, the conditions of probation which the court may impose when probation is recommended by the jury are limited to, but do not necessarily include, all those enumerated in Sec. 6 of the statute.

While it would have been proper for the court to have instructed the jury that if they recommended probation, the court, in granting probation, could impose only the conditions — but not necessarily all— set forth in Sec. 6 of the statute, we are unable to agree that such failure was harmful to appellant and that it calls for a reversal of the conviction.

The motion for rehearing is overruled.

DISSENTING ■ OPINION

MORRISON, Judge.

Upon original submission, Judge Onion joined me in a concurring opinion. At the conclusion of argument for rehearing, we both agreed that the theory upon which we concurred originally was erroneous. We now withdraw such concurring opinion and face the issue squarely again. The only logical conclusion which we have been able to reach is that there is no different quantum of proof in a case where the charge is enticing for immoral purposes and a case of indecent exposure which follows such illegal enticement. They are both criminal cases, and the quantum is the same. Once that conclusion is reached, the solution of this case is simple.

As stated in the majority’s original opinion :

“The prosecution was permitted to present testimony from two other boys showing that appellant had at other times and while alone with them committed similar acts upon them.”

Extraneous offenses are not admissible in indecent exposure cases because of the rule stated in Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836, and here restated:

“The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.”

None of the exceptions to the general rule stated above exists in this case, and certainly not the exception relied upon in the original opinion of the majority. It is abundantly clear from this record that at no time during the trial did appellant take issue with any State’s witness as to the truthfulness of his testimony. He offered no evidence in his own behalf nor did he vigorously cross examine the State’s witnesses. The motion for instructed verdict was made in the absence of the jury; therefore, no fact issue was raised before the jury as to J. E. C.’s being an accomplice. The court’s charge could not create an issue not raised by the facts.

Without a question of J. E. C.’s being an accomplice, his uncontradicted testimony as to the occurrence of the alleged acts would support a finding of the necessary intent and motive and would preclude the introduction of extraneous offenses for that purpose.

There is no question of appellant’s identity and malice does not appear in cases of this nature.

The majority in its original opinion states:

“The evidence indicates methods and types of unnatural sexual acts, all being of a similar nature to the offense on trial and recent in point of time, all logically and reasonably tending to show the accused’s intent and purpose, the condition of his mind, the unnatural attitude of the accused toward the victim of his lust, and the probability he would commit the act charged.
The evidence warrants the conclusion that the appellant followed a common pattern of similar acts and conduct, amounting to a common scheme or plan in committing the particular acts shown by the evidence. The appellant pursued the same method, in the same place, with similar acts committed upon three boys ages 10 and 11.”

However, the defendant in no way denied the alleged acts of misconduct, as by offering a defense such as alibi. As stated in Smith v. State, Tex.Cr.App., 409 S.W.2d 409:

“ * * * proof of prior and subsequent acts are admissible if they explain and lend credence to the testimony concerning the conduct of the parties on the occasion charged in the indictment, which would not otherwise appear plausible where there was a denial of the act through testimony offered by appellant as to an alibi.”

See also Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612.

Having re-analyzed the case in light of appellant’s motion for rehearing, and his argument in support thereof, Judge Onion joins me in dissenting to the overruling of appellant’s motion for rehearing.