author: PALMORE, Chief Justice. MONTGOMERY, Judge

text:
    The COMMERCIAL TRAVELERS MUTUAL ACCIDENT ASSOCIATION, Appellant, v. Virginia M. WITTE, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    As Modified on Denial of Rehearing Sept. 23, 1966.
    O’Hara & Ruberg, Covington, for appellant.
    Bassmann, Kaufmann, Root & Jolly, Newport, for appellee.
   PALMORE, Chief Justice.

On August 26, 1953, the appellant, a cooperative membership insurance association domiciled in New York, issued to James E. Witte a certificate insuring him in the amount of $10,000 against loss of life “caused directly, exclusively, independently of disease, bodily infirmity or any other cause, by accidental bodily injuries resulting solely from and caused solely by external and accidental violence.” The appellee, Virginia M. Witte, his wife, was named the beneficiary. On November 13, 1958, while the policy was still in force, Witte died as the result of a wound in his leg inflicted by a kitchen knife during a domestic altercation with his wife.

Mrs. Witte was indicted in the Campbell Circuit Court for the felony of voluntary manslaughter. She was tried during the latter part of April, 1959, and found guilty of involuntary manslaughter, a misdemean- or, for which she was sentenced to 9 months in the county jail and fined $500. At the time in question the crime of involuntary manslaughter, when committed with a deadly instrument or weapon, was defined as an unintentional killing through careless use of the weapon. See Sizemore v. Commonwealth, Ky., 347 S.W.2d 77, 79 (1961); Stanley’s Instructions to Juries, §§ 874, 883.

Her claim as beneficiary under the policy having been rejected, Mrs. Witte brought this action against the insurance company and was awarded judgment for $10,000. The company appeals.

There are two basic questions, (1) whether Mrs. Witte’s claim is defeated by her failure to file a proof of loss with the company within 90 days after her husband’s death, as required by the terms of the policy and, if not (2) whether Witte’s death was “accidental” within the meaning of the policy. The trial court determined both of these issues adversely to the company.

After a requirement of immediate notice in the event of death, the policy contains the following provisions relating to proof of loss:

“6. The Association upon receipt of such notice will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this certificate as to proof of loss upon submitting within the time fixed in the certificate for filing proof of loss written proof covering the occurrence, character and extent of the loss for which claim is made.
“7. Affirmative proof of loss must be furnished to the Association at its said office, in case of claim for loss of time from disability, within ninety days after the termination of the period for which the Association is liable, and in case of claim for any other loss, within ninety days after the date of such loss.”

Mrs. Witte was unaware of the policy’s existence until some time after her husband’s death. It was produced by Witte’s brother, who had been appointed as personal representative of the decedent’s estate. He delivered it to his attorney, Hon. Harry Luedeke, who then wrote a letter to the company under date of December 12, 1958, notifying it that Witte had met with an accidental death on November 13, 1958, and that he represented the estate, and requesting the necessary papers for filing a claim for the policy benefits.

The company answered Mr. Luedeke by a letter dated December 17, 1958, enclosing proof of loss forms and advising him that it had not received timely notice and, moreover, that “the named beneficiary is ‘Virginia M. Witte, wife’ and not the Estate.” It did not, however, send any proof of loss forms to Mrs. Witte, but employed the Pinkerton detective service to investigate the circumstances of Witte’s death. Beginning on December 27, 1958, a Pinkerton detective spent about nine days “on and off” in the investigation. He did not interview Mrs. Witte, as she was not at home when he called there. Mr. Luedeke never did advise Mrs. Witte that he had the proof of loss forms, nor did he send or give them to her, because he assumed the insurance company, knowing she was the beneficiary, had itself sent her a set of the forms (as, indeed, the policy said it would do).

Mrs. Witte testified that she first became aware of the policy in mid-January of 1959 when it was shown to her by Mr. Luedeke at his office, to which she had gone with Hon. William T. Hopkins, an attorney she had engaged to defend her in the criminal proceeding. She was also being represented in that connection by Hon. Malcolm Rhoads, one of Mr. Luedeke’s partners. Though she learned on this occasion that she was named as the beneficiary, the policy was not turned over to her, and there is nothing in the transcript to suggest that she read it or was made aware of the proof of loss requirement. At this point we continue the narration with an excerpt from Mrs. Witte’s testimony under cross-examination :

Q — “Was it retained by Mr. Luedeke ?”
A — “It was.”
Q — “In your behalf?”
A — “That’s right.”
Q — “He was representing you to make a claim?”
A — “He was representing the estate.”
Q — “But this policy names you as the beneficiary. Did you consent for him to handle this policy on your behalf?”
A — “Not at that time.”
Q — “You knew he had it?”
A — “He had it, as well as other insurance policies and papers.”
Q — “Did he advise you he was making claim on this policy on your behalf?”
A — “Not at that time.”
Q — “Was it your intention to leave it with him so that he might make a claim in your behalf?”
A — “I engaged Mr. Luedeke in April to attend to this affair.”
Q — “In January, were you aware of this policy?”
A — “Yes.”
Q — “And you left this policy with him to process on your behalf?”
A — “That’s right.”

Though counsel for the company treats this last answer as meaning Mrs. Witte left the policy with Mr. Luedeke “to process in her behalf” at the mid-January meeting, it seems clear to us that it refers back to her previous statement that she did so in April. The fair import of this and other testimony is that she was never represented by any attorney for any purpose other than her defense against the manslaughter charge until some time after the trial on April 21 and 22, 1959. Mr. Luedeke said it was late April or early May, and his office records show that Mrs. Witte signed a receipt for the policy on April 29, 1959.

During the time the Pinkerton detective was investigating the case he went to see Messrs. Luedeke and Rhoads in an effort to secure authorizations to see certain records, but Mr. Rhoads, who was representing her in the criminal case, would not permit it. So after Mrs. Witte employed Mr. Luedeke at the end of April following the criminal trial the first thing he did was to write the detective on May 11, 1959, enclosing signed copies of a consent form to see the records. This letter was forwarded to the insurance company, which returned the forms to Mr. Luedeke by a letter of May 25, 1959, advising him that the time for filing proof of loss had expired. There followed an exchange of correspondence in which by letters of May 27 and 29, 1959, the attorney submitted proof of loss and reminded the company that the detective had acquired the pertinent details of the case during his investigation; the company by letter of June 2, 1959, reiterated its position, returned the papers and said .they were not properly filled out anyway; the attorney on July 3, 1959, resubmitted the papers; and on July 8, 1959, the company rejected them again. This suit followed.

It was stipulated in the trial court that the rights of the parties under this insur-anee policy are governed by the law of New York. § 164, Subsection 3(A) (7) of the Insurance Law of New York, McKinney’s Consol.Laws, c. 28, as enacted in 1951, required the 90-day proof of loss clause in accident and sickness insurance policies to include this further sentence:

“Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as is reasonably possible and in no event, except in the absence of legal capacity, later than one year from the time proof is otherwise required.”

Mrs. Witte contends that this sentence rather than the strict 90-day requirement applies. The company says it does not, by virtue of a saving provision in the 1951 act (c. 630, Sec. 7, Acts of 1951) as follows :

“This act shall take effect July 1, 1951. A policy, rider or endorsement form, which could have been lawfully used or delivered or issued for delivery to any person in this State immediately before the effective date of this act may be used or delivered or issued for delivery to any such person during five years after the effective date of this act without being subject to the provisions of subsections two or three of section one hundred sixty-four.”

It is not necessary, however, that we decide the question of whether Mrs. Witte’s proof of loss was timely submitted, because it is our conclusion that under the circumstances of the case the requirement should be considered as having been waived by the company.

“The purpose of a provision for notice and proof of loss is to allow the insurer to form an intelligent estimate of its rights and liabilities, to afford it an opportunity for investigation, and to prevent fraud and imposition upon it.” 29A Am.Jur. 490 (Insurance, § 1374) ; Couch on Insurance (2d), § 49.373 (Vol. 14, p. IS); O’Reilly v. Guardian Mutual Life Ins. Co., 60 N.Y. 169, 19 Am.Rep. 151 (1875).

Though it was physically possible for Mrs. Witte to submit proofs of loss before the criminal trial, no prudent insurance company would have approved and paid her claim without awaiting its outcome. Had it been determined that she killed her husband intentionally her claim as beneficiary of the policy would have been barred, and Witte’s estate would have been entitled to the proceeds. The only importance to the company of having the facts at an early date was to make a timely investigation possible. This the company had done already, before Mrs. Witte knew even that the policy existed. That circumstance has no legal significance from the standpoint of the company’s not being prej - udiced by the delay, because it is settled that an insurer need not be prejudiced in order to rely on its contractual requirements as to notice and proof of loss. But it is significant, we think, from the standpoint of waiver. Though clause 6 of the standard provisions of the policy is so worded that the company’s neglect or failure to furnish proof of loss forms to the beneficiary after receipt of a preliminary notice of accidental death would not in itself excuse the claimant from submitting some type of proof anyway, it is our view that the company’s deliberate failure to send the necessary forms to Mrs. Witte, coupled with its promptly causing an independent investigation to be made on its behalf, did amount to an implied waiver of the requirement or, if not technically a waiver, an estoppel. Cf. Fidelity & Guar. Ins. Underwriters, Inc., v. Gregory, Ky., 387 S.W.2d 287 (1965). In fact, there appears to be some authority that an investigation alone, quite aside from a failure to furnish proof of loss forms, may be sufficient to constitute a waiver. Couch on Insurance (2d), § 49,872 (Vol. 14, p. 305). Certainly after the company had fully advised itself of the circumstances of Witte’s death there was no purpose whatever to be served by the filing' of proofs of loss. Hence we concur in the trial court’s conclusion that the claim is not defeated by Mrs. Witte’s failure to submit timely proof of loss.

On the day of Witte’s death he and Mrs. Witte were quarreling. He left the house and she tried to lock him out. He found the kitchen door unlocked, and they struggled as she sought to close the door which he was trying to enter. During this encounter he received a cut or stab wound in the thigh, from which he bled to death before sufficient aid to save his life could be procured.

The company contends that if Mrs. Witte committed manslaughter she cannot recover on the policy and that if she did not, then Witte was the aggressor, in which event his death was not accidental within the meaning of the policy. Cf. Prudential Life Ins. Co. v. Overby’s Adm’x, 251 Ky. 750, 65 S.W.2d 1006 (1933).

Pursuant to stipulation the evidence in this proceding relating to the circumstances of the death was confined to a transcript of the testimony at the criminal trial. Mrs. Witte professed not to have seen the knife until after Witte said he was bleeding. Though she denied having it herself, she said that she did not see it in Witte’s hand either. The jury in the criminal trial obviously decided that she had it but that the cutting resulted from carelessness and not an intent to kill. Under the same evidence it was not unreasonable for the chancellor to draw the same conclusion.

Metropolitan Life Ins. Co. v. McDavid, 39 F.Supp. 228 (E.D. Mich. 1941), the case on which the company relies as authority for the proposition that Mrs. Witte cannot recover if she committed manslaughter in the death of her husband, is not applicable, because it was a case of intentional manslaughter. Indeed, the opinion in that case (at 39 F.Supp. 232) expressly emphasized the distinction as follows:

“No cases have been found which hold that a person is barred from receiving the benefits * * * unless he killed and intended to kill the person from whom he was to receive the benefits. In other words, as far as the law has ever gone is to prevent the recovery of benefits which would not have become due and payable except for the intentional taking of the life of the benefactor.
“Now, in the same way, there are many decisions which hold that a beneficiary guilty of manslaughter is not barred from recovery in cases which are called manslaughter cases. These * * * are all cases in which there was no intent on the part of the killer to take the life of the benefactor.”

We do not find any authority, nor has any been referred to our attention, suggesting that the policy of law forbidding one who had intentionally killed another to collect the insurance on his life applies to an unintentional homicide, even though it may have been unlawful by reason of negligence or gross negligence.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

I cannot agree with the majority opinion. It is wrong because the New York law governs by policy provision and by agreement of counsel. The majority opinion does not cite any applicable New York case, while the rule upholding the ninety-day proof of loss requirement has been upheld in many cases.

In MacKay v. Metropolitan Life Insurance Company, 281 N.Y. 42, 22 N.E.2d 154, it was held that the proof of loss required by the policy provisions must be given within the ninety-day limit and therefore recovery should be refused. In Maryland Casualty Company v. Massey, 6 CCA, 38 F.2d 724, 71 A.L.R. 1428, proof of loss filed one day late was held to be too late and recovery was denied. Both of these cases were cited with approval in a 1965 case, Bland v. Trevvett, 23 A.D.2d 534, 256 N.Y.S.2d 644, in which the failure to comply with the ninety-day provision as to proof of loss was held to bar recovery. See also Whiteside v. North American Insurance Company, 200 N.Y. 320, 93 N.E. 948, 35 L.R.A.(N.S.) 696; Wachtel v. Equitable Life Assurance Society, 266 N.Y. 345, 194 N.E. 850; and Foulis v. Commercial Travelers Mutual Accident Association, 37 Misc.2d 743, 236 N.Y.S.2d 82.

The Bland v. Trevvett case involved the identical policy provision since the action was against Trevvett as treasurer of appellant. There, proof of loss was furnished five and one-half months late. The claimant sought to excuse her delay because of her “inability to secure a statement from a passenger in the automobile at the time of the accident who had been hospitalized by reason of serious injuries.” She also urged that the insurer “was estopped to deny that the proof of loss was timely furnished for she had cooperated fully with an agent of appellant shortly after the accident and had given him full details and a copy of her attorney’s file.” Recovery was denied. It was held that the “reasonably possible” provision was not a part of the policy and did not apply, citing three of the cases above cited. The court said: “Neither the doctrine of estoppel nor the public policy of liberal construction can be invoked in support of respondent’s position. The failure to comply with the policy and the statute controlling it require a dismissal of the complaint.”

James Witte died November 13, 1958. Soon thereafter appellee was charged with and subsequently indicted for voluntary manslaughter by reason of Witte’s death. Her brother-in-law engaged Harry Luedeke and Malcolm Rhoads, partners in the same law firm, to represent the estate and appel-lee, respectively. On December 12, 1958, Luedeke gave appellant notification of Wit-te’s death. In the letter he used the pronoun “We,” referring to his firm, including Rhoads. On December 17, 1958, his firm received proofs of loss. Luedeke testified that he advised appellee in December 1958 that the firm had the policy and that she was the beneficiary. He also said that his firm was not asked by appellee to collect on the policy until April or May 1959. Willaim Sorgs testified that Luedeke told him in December 1958 that he represented appellee. Appellee admitted that she became aware of the policy and that she was the named beneficiary at a meeting on January 15, 1959, with Luedeke, Rhoads, and another attorney named Hopkins, who had been employed to assist in representing her on the criminal charge.

Inasmuch as evidence that she was the beneficiary of a $10,000 insurance policy on the life of the man whom she was charged with killing would have been evidence of a motive and would have been condemning, it is fair to assume that the insurance policy and its beneficiary provision were thoroughly discussed at this meeting.

The further significance of this is that there was a serious question whether appel-lee could have collected as beneficiary under the policy if she had been convicted of the felony. Soon after the trial was over on April 22, 1959, and appellee had been freed of the felony charge, the proof of loss was processed at her direction by Luedeke and filed with appellant. This accounts for the delay for which appellant should not be charged and which is not justified under the New York law. Bland v. Trevvett, 23 A.D.2d 534, 256 N.Y.S.2d 644; Allstate Insurance Company v. Manger, 30 Misc.2d 326, 213 N.Y.S.2d 901.

The majority opinion seeks to justify in part its holding of waiver of the filing of proof of loss with appellant by indicating that the insurance company made its own investigation by means of a private detective and thus rendered the filing of such proof of loss unnecessary. Such a position is absurd on its face to suggest that an insurance company waives the right to have a claimant submit a proof of loss because of the insurer’s investigation of the claim.

For these reasons I think that the appellant should win because of appellee’s failure to file proof of loss within ninety days of the death of James Witte, because appellee was fully cognizant of her rights as beneficiary under the policy by reason of notice and advice of her own counsel well within the ninety-day period, and because appellant did not waive its right to the proof of loss, all of which should bar recovery by her.

HILL, J., joins in dissent.

      . By subsequent amendment of KRS 435.-022 (c. 90, Acts of 1962) the crimes of voluntary and involuntary manslaughter were redefined and reclassified.

      . The company no longer contends it did not receive timely notice of Witte’s death. See, however, Trieger v. Commercial Travelers Mut. Acc. Ass’n, 122 Misc. 159, 202 N.Y.S. 410 (1923); Couch on Insurance (2d), § 49.14 (Vol. 13, p. 643).

      . § 143 of the New York Insurance Law provides that if a policy is in violation of the statutory requirements it shall be enforceable as if it had conformed.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    Nancy THORNBERRY et al., Appellants, v. Mary Jo TIMMONS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 25, 1966.
    Rehearing Denied Oct. 7, 1966.
    W. H. Dysard, Dysard, Johnson & Welch, William B. Arthur, Ashland, Joseph J. Baronzzi, Lisbon, Ohio, for appellants.
    C. B. Creech,’ Ashland, for appellee.
   CULLEN, Commissioner.

Appellee Mary Jo Timmons, whose mother died in 1948, was adopted in 1950 by a great aunt. In 1963 her maternal grandfather died intestate, leaving as his descendants several children and grandchildren in addition to Mary Jo. In this action for a declaration of rights the circuit court entered judgment declaring that Mary Jo was not barred by the adoption from inheriting a share of her grandfather’s estate. The other descendants of the grandfather have appealed.

The judgment herein was entered in April 1964. In December 1965 this Court handed down its opinion in Arciero v. Hager, Ky., 397 S.W.2d 50, holding in substance that under the 1956 amendment to the Kentucky adoption statutes, KRS 199.520, an adopted person, even though adopted before 1956, cannot inherit from a blood relative who dies after 1956. This holding requires that the judgment in the instant case be reversed.

The contention was made by Mary Jo in the circuit court that the adoption judgment was void. The circuit court did not pass upon that question. To expedite termination of this controversy we shall pass upon it.

The contention is in part based upon evidence intended to show a lack of jurisdiction of the person in the adoption proceedings, and in part upon silence of the adoption record with respect to the taking of various procedural steps and the making of substantive determinations claimed to be jurisdictional. Under the holding in Burchell v. Hammons, Ky., 289 S.W.2d 737, the latter ground is not valid because a judgment cannot be collaterally attacked for mere failure of the record to affirmatively show the jurisdictional facts. The Burchell case further holds that in a collateral attack upon a judgment, extrinsic evidence designed to show lack of jurisdiction of the person, if admissible at all, will not be given effect unless it is of a clear and convincing nature. The evidence in the instant case, that the person who was served and who participated in the adoption proceedings as Mary Jo’s father was not in fact her father, is not clear or convincing — in fact, none of Mary Jo’s testimony is convincing. Accordingly the first ground of collateral attack is not sustainable.

The judgment is reversed with directions to enter judgment declaring that appellee is not entitled to inherit a share in her grandfather’s estate.


author: HILL, Judge.

text:
    Alberta WILCOX (now Alberta Sullivan), Movant, v. Garland WILCOX, Respondent.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Rehearing Denied Oct. 7, 1966.

      Hatcher & Lewis, Elizabethtown, for appellant.
    James N. Scudder, John L. Arnett, Fau-rest & Collier, Elizabethtown, for appellee.
   HILL, Judge.

The facts in the case at bar are not in dispute. On November 14, 1951, a divorce action was instituted between Alberta Wilcox (now Alberta Sullivan) and Garland Wilcox, and judgment was entered on November 24, 1951. The custody and control of their infant child, Brenda Sue Wilcox, was awarded to the wife, and the husband, Garland Wilcox, was ordered and directed by the court to pay child-maintenance payments until the child reached the age of majority or became self-supporting. This order was made pursuant to a contract of the parties settling their rights and obligations and was approved and made a part of the judgment.

At the time this action was instituted, the child had reached the age of eighteen and was a full-time college student and was not self-supporting.

In 1951 when the agreement was made between the parties and approved by the court, the age of majority was twenty-one. However, the age of majority was changed by the legislature effective January 1, 1965, and reduced to eighteen. The applicable statute, KRS 2.015, provides:

“Persons of the age of eighteen years are of the age of majority for all purposes in this Commonwealth except for the purchase of alcoholic beverages and for purposes of care and treatment of handicapped children, for which twenty-one years is the age of majority.”

The husband moved the court that he be relieved of further payments after the child had reached the age of eighteen. The court found that the support payments per previous order of the Hardin Circuit Court were $40 a month and that the amount in controversy was $1440 (36 months). The court further found as a matter of law that the age of majority was reduced from twenty-one to eighteen years by the legislature and that there was no obligation of support on the husband after the child’s eighteenth birthday unless the child was still in high school in which event it was the court’s policy to continue maintenance payments through high school graduation.

We cannot agree with the finding of the court that there was no obligation of support on the husband after the child’s eighteenth birthday. At the time the parties entered into the contract, the age of majority was twenty-one and not eighteen. In construing a contract, the intention of the parties governs. Parrish v. Newbury, Ky., 279 S.W.2d 229 (1955). Furthermore, in construing a contract, we must seek out the intention of the parties and ascertain how they meant the agreement to operate at the time they entered into it. Jones v. Linkes, Ky., 267 S.W.2d 936 (1954). In Whitaker v. Louisville Transit Co., Ky., 274 S.W.2d 391, 394 (1954), this Court stated: “It is a familiar principle of constitutional law that constitutional and statutory provisions in effect at the time a contract is made become a part of the contract.” Therefore, since the age of majority was twenty-one when the parties entered into the contract, the father is not relieved of his obligation of support to the child until she reaches her twenty-first birthday or becomes self-supporting.

The judgment is reversed for proceedings consistent with this opinion.


author: DAVIS, Commissioner.

text:
    Coy JONES and wife, Violet M. Jones, Appellants, v. Dr. Dale FURNELL, Appellee.
    Court of Appeals of Kentucky.
    April 29, 1966.

    Rehearing Denied Oct. 7, 1966.
    Farland Robbins, Mayfield, for appellants.
    Francis T. Goheen, Goheen, Schultz, Shelbourne & Yaffe, Paducah, for appellee.
   DAVIS, Commissioner.

In this malpractice action appellant Coy Jones sought damages against appellee Dr. Dale Furnell, and appellant Violet M. Jones, wife of Coy Jones, sought damages for loss of consortium. The trial court dismissed the action as to both appellants on the ground that the claims were barred by the one-year statute of limitation. KRS 413.-140(1) (e). As respects the claim of the wife, the trial court ruled that no recovery could be had by her on her claim for loss of consortium anyway.

The appellants contend that (1) the contract statute of limitation (five years) is applicable because of appellee’s warranty to effect a cure, achieve a specific result or use a particular medical procedure; (2) a tendered amended complaint was erroneously rejected; (3) Kentucky should change the existing rule and allow a wife to recover for loss of consortium, and (4) the facts at bar warrant the wife’s recovering for loss of consortium even under existing Kentucky decisions.

Since this proceeding was disposed of upon the pleadings, we will treat as true the factual allegations made by appellants. In summary, appellants alleged that early in 1962 Coy Jones consulted Dr. Furnell with regard to a constant pain suffered by Jones. The doctor advised Jones that he could clip a nerve in Jones’ back and relieve the pain; that the procedure was a minor one and would not cause Jones to lose more than three or four days from work. Jones averred that the doctor did not inform him that it would be necessary to cut any sections from any ribs. On February 8, 1962, appellee performed an operative procedure upon Coy Jones, and while Jones was anesthetized the doctor removed two sections from appellant’s 8th and 9th ribs and clipped the wrong nerve by careless mistake. Since the wrong nerve had been cut, the pain to Jones continued unabated, so appellee “ * * * apologized for and reported to the plaintiff (Jones) that he cut the wrong ribs and nerves (sic) and that in order to cut the nerve intended it would be necessary to perform another operation * * Accordingly, another operation was performed on February 10, 1962, during which two sections were removed from the 6th and 7th ribs and more nerves clipped. It is alleged that in the course of both operations the appellee cut a total of four nerves instead of one, and that the pain which Jones had suffered was in no way alleviated by the operations.

Appellants specifically pleaded that ap-pellee by “special contract” agreed with Coy Jones that appellee would “ * * * clip plaintiff’s 7th intercostal nerve * ⅜ ⅜” ⅛-t that appellee failed, in the February 8th operation, to clip that nerve, but clipped other nerves and cut out rib sections. The complaint, as amended, asserts that the appellee “ * * * represented that he could and would relieve by such operations * * * ” the pain theretofore suffered by Coy Jones, but the pain has not been relieved.

The present action was not filed until February 23, 1963, more than a year after the second operation. Appellants concede that KRS 413.140(1) (e) is a bar to a malpractice action premised upon negligence alone, but insist that the five year limitation period is applicable here because of the alleged special contract. KRS 413.-120(1). Heavy reliance is placed upon Noel v. Proud, 189 Kan. 6, 367 P.2d 61, and other authorities of like import. The question at hand is the subject of an exhaustive annotation. 80 A.L.R.2d 320, et seq. It is not a novel one in this jurisdiction. See Roush v. Wolfe, 243 Ky. 180, 47 S.W.2d 1021; Howard v. Middlesborough Hospital, 242 Ky. 602, 47 S.W.2d 77; Guess v. Linton, 236 Ky. 87, 32 S.W.2d 718; Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276; Carr v. Texas Eastern Transmission Corporation, Ky., 344 S.W.2d 619. While we respect the views of sister jurisdictions to the contrary, we remain convinced of the soundness of the rule as enunciated in our just cited decisions. The rule is declared in 80 A.L.R.2d, pp. 326-327:

“The weight of authority is to the effect that ordinarily a malpractice action is subject to the time limitations provided in statutes for actions in tort or malpractice, irrespective of any allegations or evidence tending to show a contract for treatment.”

It is significant, we think, that KRS 413.140(1) (e) in fixing a limitation period of one year uses this language:

“An action against a physician or surgeon for negligence or malpractice.”

It seems apparent that the Legislature did not regard “negligence” and “malpractice” as synonymous. When a physician or surgeon engages to perform professional services for a patient the law imposes upon him the duty to use reasonable skill and care for the safety and well-being of the patient. Incorporated in this legal responsibility is the physician’s liability for want of the requisite knowledge and skill as well as for the doctor’s negligence. See 41 Am.Jur., Physicians and Surgeons, Sec. 79, p. 198. In our view, it becomes academic whether the gravamen of the cause of action stems from negligence or contract, express or implied— in final analysis the claim for damages is based upon “malpractice.” We are persuaded to the view expressed in the dissenting opinion by Price, J., Noel v. Proud, 189 Kan. 6, 367 P.2d 61, 67, in which it is written:

“In my opinion—looking through form to substance—such allegations amount to nothing more than that the physician either did not know what he was talking about or else was guilty of giving bad medical advice—when he made such statement—and therefore was guilty of negligence amounting to malpractice. Despite the allegations as to ‘agreements, promises and warranties,’ it seems to me —looking at this matter from a practical and realistic standpoint—that the real contention in this case is that the patient was the victim of ‘bad medical advice’—thus rendering the physician guilty of malpractice—in which event the two-year statute of limitations would apply.”

We conclude that the trial court properly held that the present action was barred by the one-year statute of limitation. KRS 413.140(1) (e).

After the trial court had dismissed the action as to both appellants, appellants tendered a second amended complaint but the court refused to allow it to be filed. The gist of the proffered pleading was that the appellee had become a resident of Illinois less than a year after the operations had been done, and that by virtue of certain Illinois statutes and decisions the Illinois laws became applicable to the case at bar. Assuming, without deciding, that the “multiple place of arising” concept would be brought into play by the change of residence to Illinois, we are yet unable to discern how that could affect this action brought in the Kentucky forum. In Seat v. Eastern Greyhound Lines, Inc., Ky., 389 S.W.2d 908, this court held that KRS 413.320 will not serve to enlarge the limitation period for an action filed in Kentucky, but will effect a curtailment of the limitation period if the period applicable in the foreign state is less than ours. But that is beside the point anyway, because this action arose in Kentucky and was prosecuted here. We are completely unable to fathom any basis for resort to conflict of laws principles in this case. Therefore, insofar as the tendered amended complaint sought to interject the Illinois law into the proceedings, it was not a proper pleading and the circuit court correctly refused its being filed.

The appellant, Violet M. Jones, invites us to reconsider the rule denying a wife the right to recover for loss of consortium in actions based on negligence. What we have said about this action’s being barred by the one-year statute of limitation is applicable to the claim of the wife. The court is not disposed to depart from the views so recently expressed in Baird v. Cincinnati, New Orleans & Texas Pacific R. Co., Ky., 368 S.W.2d 172, as respects the consortium claim. Even if it should be decided (which we do not) that the action of the appellee in removing rib sections and clipping nerves other than the intended one amounted to an assault, and thereby gave rise to an action for loss of consortium, the one-year statute for malpractice still controls.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    James L. WELLS et al., Appellants, v. Lucia R. WELLS, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1966.
    Rehearing Denied Oct. 7, 1966.
    William A. Young, Johnson & Burton, Frankfort, for appellants.
    E. Gaines Davis, Jr., Smith, Reed, Yessin & Davis, Frankfort, for appellee.
   MONTGOMERY, Judge.

The custody of Henry Paul Wells, a small boy, is involved on this appeal. The fundamental question is what is best for him. The anticipated unhappiness of disappointed litigants must be ignored. Lewis v. Lewis, Ky., 343 S.W.2d 146. The contest is between the paternal grandparents, appellants, and the mother, appellee. The Chancellor awarded custody to the mother.

In arriving at a decision the Chancellor considered so-called confidential reports received from the Catholic Service, Steuben-ville, Ohio, Kentucky Department of Child Welfare and Ohio Department of Public Welfare. These reports are not in the record. Appellants’ motion in the lower court to make them a part of the record was overruled. A similar motion by appellants in this court was also overruled.

The problem of this court in reviewing the correctness of the Chancellor’s decision is that it cannot be determined whether the decision was based on the testimony by depositions which are properly a part of the record or on the confidential reports which are not in the record, or on both. Normally, matters not a part of the record will not be considered on appeal. Spitzelberger v. South Covington & C. St. Ry. Co., 189 Ky. 493, 225 S.W. 237; Stuber v. Snyder’s Committee, 261 Ky. 338, 87 S.W. 2d 614; Curry v. Farmers Livestock Market, Ky., 343 S.W.2d 134. In the latter case an ordinance was not considered because it was not in the record. By parity of reasoning this appeal could be considered without regard to the effect of the confidential child welfare reports. In view of the paramount question of the child’s welfare and the injustice that could result, the rule is peculiarly inapplicable here.

Nor is this the case where evidence has been received in the lower court and has been omitted from the record on appeal. In such cases there is a presumption that the omitted evidence supports the decision. Penn v. Penn, Ky., 267 S.W.2d 80; Reid v. Reid, Ky., 300 S.W.2d 225. The matter cannot be affirmed on the basis that it is not shown that the Chancellor’s discretion has been abused. Renfro v. Renfro, Ky., 291 S.W.2d 46.

The content of the reports or their evi-dentiary form, if any, is not disclosed. It is not known if the reports had the protection of an oath. Apparently there was no cross-examination. In such reports there may be inadmissible hearsay testimony, condemned in R. H. Kyle Furniture Co. v. Russell Dry Goods Co., Ky., 340 S.W.2d 220, 85 A.L.R.2d 428. The competency and materiality of the content of the reports are matters of conjecture. Such reports may be satisfactory as sources of information for the guidance of the Department of Child Welfare, but it is doubtful if they meet the standards required of testimony in court by which orderly process courts are able to determine the truth.

In York v. York, Ky., 280 S.W.2d 553, a divorce action, the court held that where a child has been determined to be a qualified witness his testimony should be given in the presence of the parties or their counsel if it is to be made a basis of the court’s decision. See also Schwartz v. Schwartz, Ky., 382 S.W.2d 851. Of course, such action contemplates that the testimony is given under oath. Individual or extra-judicial knowledge on the part of the judge, not the subject of judicial notice, cannot form the basis for findings of fact or the decision of a case. Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666; Wyatt v. Webb, Ky., 317 S.W.2d 883.

For these reasons it is doubtful if the confidential reports would have been admissible as evidence in this case. In such posture of the case the Chancellor may have decided the question of custody on matter not in evidence and outside the record which cannot be reviewed by this court. This is reversible error.

Judgment reversed with direction to determine the question of custody without regard to the confidential reports unless the content of such reports can be produced in proper evidentiary form with the usual safeguards and made admissible in evidence.


author: NORVELL, Justice.

text:
    Jimmy Ray WILLIAMS, Petitioner, v. CIMARRON INSURANCE CO., Inc., Respondent.
    No. A-11406.
    Supreme Court of Texas.
    July 20, 1966.
    Rehearing Denied Oct. 5, 1966.
    Peery, Wilson & Jameson, Norman Whit-low, with above firm, Wichita Falls, W. James Kronzer, Houston, for petitioner.
    L. W. Anderson, Dallas, for respondent.
   NORVELL, Justice.

This is an action to recover medical, hospital and funeral expenses under the medical payments provision of an automobile insurance policy issued by Cimarron Insurance Co., Inc. The facts are stipulated and the controlling question is whether the stock car racer here involved is comprehended by the definition of “automobile” contained in coverage C of the policy. The trial court held that it was not and rendered judgment that plaintiff, Jimmy Ray Williams, take nothing against the insurance company. The Court of Civil Appeals at Amarillo affirmed. 400 S.W.2d 805. In our opinion the judgment of the Court of Civil Appeals was correct.

The Stipulated Facts

On July 4, 1964, Jimmy Ray Williams, his wife and their minor son, James Richard Williams, were spectators at a race track located on private property at an amusement park near Craterville, Oklahoma, when one of the stock car racers careened through the fence and struck all the members of the Williams family. Mr. and Mrs. Williams sustained serious personal injuries and James Richard was killed. The racer which struck them was a stripped-down 1947 Ford sedan with a 1954 Mercury motor owned by Carl Osborn and Robert R. Riddle. The vehicle had been originally manufactured by the Ford Motor Company, but it had been modified by Robert R. Riddle about a year prior to the accident and converted into a stock car racer and after modification, the vehicle had no tail lights, headlights or window glass. A screen wire served as a species of windshield. In front the car had a safety bar and two angle irons coming to a point about two and one-half (2½) feet in front of the radiator, but it had no fenders, bumpers or horn. It was equipped with heavy-duty tie rods and spindles and oversized tires. The speedometer cable was not connected and it was either towed or carried on a trailer to and from the race track. The vehicle was not licensed by the State of Oklahoma or any other state for operation upon the public roads and highways.

The Policy Provisions

The pertinent provisions of the policy are as follows: (The italicized portions of the policy provisions form the basis of the dispute in this case.)

"Coverage C-Automobile Medical Paymen~t.r: To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services: * * *
“Division 2. To or for each insured who sustains bodily injury, sickness or disease, caused by accident, while in or upon, or while entering into or alighting from, or through being struck by, an automobile. * * *
“IV. Automobile Defined
[Ujnder division 2 of coverage C, the word ‘automobile’ means a land motor vehicle or trailer not operated on rails or crawler-treads, but does not mean: (1) a farm type tractor or other equipment designed for use principally off public roads, except while actually upon public roads, or (2) a land motor vehicle or trailer while located for use as a residence or premises and not as a vehicle.”

Opinion

The stock car racer which figured in the tragedy giving rise to this lawsuit is undoubtedly a land motor vehicle not operated on rails or crawler treads. It was an automobile within the usual meaning of the term, but the controlling question is whether such racer comes within the policy clause which states that the term “automobile” does not mean “(a) a farm type tractor or other equipment designe'd for use principally off public roads, except while actually upon public roads. * * * ”

Upon the date of the accident, the racer was a vehicle designed for use principally off public roads. It was so equipped or under-equipped that it could neither be licensed nor lawfully used upon the public highways. The plaintiff (petitioner) urges here that the words “other equipment” must be construed as meaning something similar to a “farm type tractor” under the rule of ejusdem generis or noscitur a sociis. It is argued that the stock racer being a land motor vehicle and not being a piece of equipment similar to a farm type tractor, one who sustains bodily injury by being struck by such racer may recover under the Automobile Medical Payments clause of the policy. As further supporting this construction, it is said that a farm type tractor or equipment similar thereto may upon occasion be lawfully driven upon the public roads while the racer could not, because it lacks the basic equipment necessary to qualify it for public road use. Article 6701d, §§ 108-139a, Vernon’s Ann.Tex. Stats. It is said that, “Unless it can be argued. * * * that the insurer intended to cover operations upon a public road in violation of law, then it is abundantly clear that what the policy provisions exclude is that type of ‘other equipment’ that can be operated upon the roadway on limited occasions.”

The petitioner cites the case of Smith v. Stewart, 21 A.D.2d 551, 251 N.Y.S.2d 342 (1964) in support of his position. The pertinent policy provision defined automobile as being “a land motor vehicle, trailer or semi-trailer”, but further provided that “the term ‘automobile’ does not include any crawler or farm-type tractor, farm implement and, if not subject to motor vehicle registration, any equipment which is designed for use principally off public roads.” The vehicle involved was a 1941 Chevrolet coupe which had its doors, headlights, fenders and hood removed; its rear seating compartment cut away and a homemade stake body substituted therefor. The Supreme Court of New York held that:

“The vehicle involved aptly fits the policy’s definition of an automobile. Coverage is not provided while the vehicle is being operated or used away from the insured’s premises. That such was its role when the anterior accident occurred is conceded. * * * An unambiguous policy provision confines the use of such a vehicle to the premises of the insured or ‘to the ways immediately adjoining’ if he is to have coverage for its negligent operation. Nor can we adopt the rationale urged by appellant that the vehicle was a ‘farm implement’ and thus saved from the operation of the exclusion clause of the policy.”

Petitioner urges that the secondary holding (relating to farm implement) is directly contrary to the position of the intermediate Court in the instant case and argues that:

“Patently the subject vehicle was ‘designed for use * * * off public roads’, notwithstanding its use thereon at the time of the occurrence. If there was a disconnected purpose involved in the definitional terms in Smith v. Stewart, such as is contended by Respondent, a contrary result would have been indicated. Rather clearly the Plaintiff and the Court interpreted the italicized language as modifying and describing only farm type equipment.”

We are unable to agree with petitioner’s argument. To us, the restrictive proviso designates two distinct classifications. It plainly states that the word automobile does not mean “a farm type tractor or other equipment designed for use principally off public roads”. The phrase “designed for use principally off public roads” does not convey the notion that something similar to a farm type tractor was intended by the contracting parties. The Court of Civil Appeals cited and quoted at some length from Beagle v. Automobile Club Insurance Co., Ohio Com.Pl., 176 N.E.2d 542 (1960). This is a decision of the Court of Common Pleas of Ohio and is the nearest case upon the facts that has come to our attention. While its value as a precedent is persuasive only, we are of the opinion that the decision of the Ohio Court correctly construed the restrictive clause which is now before us in this case. We need not repeat the discussion of Beagle which is contained in the opinion of the Court of Civil Appeals other than to quote the following excerpt:

“ [I] f the exception was just the words ‘a farm type tractor or other equipment’ there would be some substance to this claim, but the language is not general but specifies that such equipment be designed for use principally off pub-lie roads. That, in effect is true also of farm tractors — they are designed for use principally on the farm and not on the highways. The Court feels this exception is not ambiguous and means just what it says. This auto racer was designed principally for use off the public road, and therefore is not an automobile within the meaning of the definition in the policy.”

The judgment, of the Court of Civil Appeals affirming the judgment of the trial court is affirmed.

      . See generally, Davis v. National Casualty Co., 142 Tex. 29, 175 S.W.2d 957 (1943) [oil derrick pulled on rollers by caterpillar tractor]; Pennell v. United Insurance Co., 150 Tex. 541, 243 S.W.2d 572 (1951) [jeep]; Mutual Benefit Health & Accident Ass’n v. Hudman, 385 S.W.2d 509 (Tex.Civ.App.1965, rev’d on other gnds 398 S.W.2d 110 [Tex.Sup.1965]) [pickup truck]; Combined American Insurance Company v. Ganzer, 350 S.W.2d 211 (Tex.Civ.App.1961, no writ hist.) [truck mounted crane]. Cf. Annotations: 12 A.L.R.2d 598, “Vehicle” within meaning of insurance coverage or exceptions; 38 A.L.R.2d 867, What is an “automobile” or a “car” within coverage of accident policy; 74 A.L.R.2d 1264, What is an “automobile” or a “car” within coverage of automobile liability policy.

      . Cf. Lang v. General Insurance Company of America, 268 Minn. 36, 127 N.W.2d 541 (1964), Beeler v. Pennsylvania Threshermen & Farm Insurance Company, 48 Tenn.App. 370, 346 S.W.2d 457 (1960).


author: SMITH, Justice. POPE, Justice.

text:
    Lee DYKES et al., Petitioners, v. CITY OF HOUSTON, Texas. Respondent.
    No. A-11250.
    Supreme Court of Texas.
    July 20, 1966.
    Rehearing Denied Oct. 5, 1966.

      Theodore R. Kirchheimer and Ed S. Atkinson, Houston, for petitioners.
    John Wildenthal, Jr., City Atty., Houston, Homer T. Bouldin, Asst. City Atty., for respondent.
   SMITH, Justice.

In this suit, Lee Dykes and Robinwood Lodge, Inc., sought a mandatory injunction against the City of Houston, Texas, commanding it to remove a barricade erected by the City on and across Buckingham Drive, a street located within the boundaries of the City of Houston. E. P. Dee and a number of other resident citizens of the City intervened alleging that they were interested in the subject matter of the suit. These intervenors aligned' themselves with the City. However, no further reference will be made to the intervenors since they did not appeal from an adverse judgment rendered by the trial court. For convenience, Mr. Dykes and Robinwood Lodge, Inc., will hereinafter be referred to as plaintiffs and the defendant as the City. Trial was to a jury. At the close of the evidence and after all parties had rested, the trial court withdrew the cause from the jury and rendered judgment that a “mandatory injunction issue commanding the City of Houston to remove the barricade erected by the City of Houston on Buckingham Drive between Kennilworth Drive and Katy Road and that plaintiffs have such writs as are necessary to enforce said judgment.”

The City superseded the trial court’s judgment and timely filed its notice of appeal from the judgment to the Court of Civil Appeals for the First Supreme Judicial District of Texas, sitting at Houston, Texas. 'This Court, in the exercise of its authority to equalize the dockets of the several Courts of Civil Appeals of the Supreme Judicial Districts of Texas, transferred the cause to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas, sitting at Texarkana, Texas. That Court reversed the judgment of the trial court and rendered judgment that the plaintiffs “take nothing by their suit.” 399 S.W.2d 825. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Buckingham Drive is within what is known as Bayou Woods, Section 3, a residential subdivision situated within the City of Houston, and is one of the streets dedicated for public use in said subdivision, as shown by the Map and Deed Records of Harris County. It is undisputed that the City of Houston properly annexed the Bayou Woods subdivision into the City in 1949 and that the portion of Buckingham Drive involved herein was at all times unimproved, having never been opened by the City. The record reveals that as early as 1947, and at all times subsequent thereto, the part of Buckingham Drive here involved was heavily wooded to such an extent that automobiles could not get through the trees and underbrush. The plaintiff, Dykes, testified that it was his desire that the City, through its Council, open the land and improve it for street purposes in accordance with its dedicated purpose. He went before the Council a number of times requesting such action by the City; hearings were held and witnesses were heard, but the City, within its discretion, refused to open the street. Dykes, having failed in his appeal to the City, then hired a bulldozer and began clearing the land of trees and underbrush and grading it himself. Thereafter, on August 5, 1962, the City erected a wooden barricade deemed necessary to prevent traffic from proceeding into this area while under the impression that it was a continuation of the paved street itself and safe for travel. This barricade was burned by Mr. Dykes. The City then erected a metal barricade which Mr. Dykes, on May 22, 1964, attempted to dismantle with a blowtorch. He was restrained by the police from accomplishing his purpose on this occasion.

The City recognizes that it did not, before erecting a barricade, comply with the provisions of Article 4646a, Vernon’s Annotated Texas Civil Statutes, which requires that where the rights of abutting owners are involved, the City must, before

vacating, abandoning, or closing a street, obtain a release or condemn the property to be effected. The City recognizes that it has the duty to maintain all streets within the City and keep them open and free of obstruction, and that a city, under normal circumstances, can close a street only in the public interest. However, under the circumstances of this case, the City contends that it was not trying to close Buckingham Drive by erecting the barricade because in fact this portion of Buckingham Drive had never been opened; instead, the City contends that the undisputed facts show that Mr. Dykes, in violation of State law and a valid City ordinance, created a dangerous condition by attempting to open Buckingham Drive without the knowledge or consent of the City. The City contends that, in consequence of Mr. Dykes’ illegal action, the erection of the barricade was necessary to secure adequate protection for the traveling public.

Plaintiffs bring forward the argument that the City cannot barricade a dedicated street, even though it has never been officially opened, thereby depriving abutting landowners of their property right in the dedicated street and precluding full use of the street as a means of access to abutting property, without first complying with the provisions of Article 4646a, supra.

At the trial one witness testified that he was familiar with this area of Buckingham Drive; that he has owned property in the area since 1947; that the area was heavily wooded with “thick undergrowth”; that the dedicated street was “filled with undergrowth and saplings”; that in 1947 there was no roadway “through there at all”; that it was impossible for an automobile to “go through that area”; that from 1947 and “up until Mr. Dykes took a bulldozer through that area” (1962), it was impossible for an automobile “to go through.” The witness testified, without objection, that Mr, Dykes created a hazardous condition in that he did some excavating on the dedicated street; some of the trees were cut, and some of the undergrowth was cut away while some was left standing. A paved street ended where this work by Lee Dykes commenced. The witness testified that Dykes left the dedicated street in such condition that it was dangerous for use by the traveling public. The witness was shown a picture which had been taken of the area after Dykes had personally attempted to open the street. The witness was then asked:

“Q. And, in other words, this would be where the unsuspecting public would go if it weren’t for the barricade, and would just hit this part right in here?
“A. That’s true.
“Q. Which would make it dangerous? “A. Yes.
“Q. All right. Of course you and I know this exists, but if, as I say, a stranger to the neighborhood would come along, well, it might look just something like this to them and they might not realize that the pavement ended there, is that correct?
“A. Yes, ma’am.”

In answer to a question as to the condition of the area after “Mr. Dykes ran the bulldozer through it,” the witness said:

“It would appear to an oncoming motorist that there would be an opening, because prior to this incident of bulldozing the area there was an impenetrable screen of tall trees and underbrush and saplings which screened off Katy. It was not possible to see Cameron Iron works or any of the traffic on that road. Now with the underbrush gone, sir, it would appear that the street is open though it is not, * * * and the barricade is necessary for the unsuspecting public.”

It is well settled that “if one owning land, exhibit a map of it, on which a street is defined, though not as yet opened, and building lots be sold by him, with reference to a front or rear on that street, this operates as an immediate dedication of the street; and the purchasers of lots have a right to have the street thrown open forever.” Oswald v. Grenet, 22 Tex. 94, 100 (1858). “[T]he individual purchasers thereunder acquire an easement in the land designated as an alley or street, and such alley or street becomes charged with the servitude incident to such easement. Such purchasers have, by virtue of the easement thus acquired, the right to have such street or alley kept open, whether the public has or not accepted the dedication by some acts of user.” Wolf v. Brass, 72 Tex. 133, 12 S.W. 159, 160 (1888); Spencer v. Levy, 173 S.W. 550 (Tex.Civ.App. 1915, wr. ref). The right acquired by the purchaser is a private easement over those areas set aside and designated as public ways, and this right attaches immediately upon his purchase of the property. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.Sup. 1962); Dallas Cotton Mills v. Industrial Co., 296 S.W. 503 (Tex.Com.App.1927); City of Corsicana v. Zorn, 97 Tex. 317, 322, 78 S.W. 924 (1904); Eidelbach v. Davis, 99 S.W.2d 1067, 1072 (Tex.Civ.App. 1936, err. dism.); 28 C.J.S. Easements § 39. Therefore, when the plaintiffs purchased their lots with reference to the subdivision plat, they immediately acquired private rights of easement over the streets shown on such plat as abutting their land whether or not such streets were ever accepted or opened by the City, as representative of the public. See 2 Thompson, Real Property, § 494, p. 71. We have held that these, rights exist even though the City closes the public street. Dallas Cotton Mills v. Industrial Co., supra. However, in the Dallas case, we were not called upon to balance the city’s police power with the private easement rights because the city there expressed its acquiescence in the continued exercise of such rights.

While the plaintiffs do have easement rights, those rights are subject to reasonable regulation. Under the provisions of Section 16, of Article 1175, the Legislature has granted to home-rule cities the “exclusive dominion, control, and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards, and public grounds of such city * * *.” Under Section 17 of said Article, a city has the power “[t]o open, extend, straighten, widen any public street, alley, avenue or boulevard * * *.” and Section 18 grants the power to vacate and close streets when such action is in the best interest of the public. This last power is restricted by Article 4646a, supra, which allows abutting owners to enjoin such action if they have not released any claim for damages they might have or have not been paid compensation through a condemnation proceeding. Therefore, it may be seen that a city has the general power to regulate the use of the streets within its territory and the general duty to protect the public from hazards therein and to promote the public convenience. Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945 (1949). A city has broad discretion to enact ordinances for such purposes, and so long as such ordinances are not unreasonable and arbitrary, and are not violative of the Constitution and the laws of this State, they will be held valid. Town of Ascarate v. Villalobos, supra; Houston & T.C.Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 70 L.R.A. 850 (1905). The rule was quoted with approval by this Court in the case of Halsell v. Ferguson, 109 Tex. 144, 202 S.W. 317, 321 (1918):

“ ‘Since the very foundation of the police power is control of private interest for the public welfare, a statute or ordinance is not rendered unconstitutional by the mere fact that private rights of person or property are subject to restraint or that loss will result to individuals from its enforcement.’ ”

In the present case we are presented with a conflict between a private interest and the public welfare, insofar as plaintiff Dykes has attempted to acomplish, by self-help, that which he had been unable to accomplish before the City Council. The opening of a street, with its commensurate demands upon the City for maintenance and supervision, is within the discretion of a home rule city, such as Houston. An individual, even if he is an abutting landowner, does not have the right to determine when a street will be opened by the public; such right is vested solely in the governing body of the City. Without question, it is clear that here the City of Houston has only an easement for street purposes in the land involved, and the abutting owners, such as the plaintiffs, own the fee simple title to the center of 'the street; it is, nevertheless, settled that the rights and title of abutting owners are subject to the valid police power of the City of Houston. See Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, 478 (1934); City of San Antonio v. Pigeonhole Parking of Texas, Inc., 158 Tex. 318, 311 S.W.2d 218, 73 A.L.R.2d 640 (1958). The power to open dedicated streets which have never been opened was held to be vested in the City by this Court in the early case of Gilder v. City of Brenham, 67 Tex. 345, 3 S.W. 309 (1887). The general rule was stated in 1 Elliott, Roads and Streets, 4th Edition, Sec. 129, p. 151:

“An owner who makes a plan on which spaces are left indicating the dedication of roads or streets, and sells lots with reference to the plat, can not recall his dedication, for he leaves the streets to be opened by the proper local authorities at such time as the public interest may require, and of this the local authorities are the judges. It is for them to determine when the public interests demand that the ways as laid out on the plat shall be taken in charge and improved for public use, * * *."

After the City Council refused to act with regard to opening, closing, or abandoning this portion of Buckingham Drive, Mr. Dykes was apparently convinced that he had no alternative except to resort to opening the street himself, and, therefore, took such action without the knowledge or consent of the City or its officers. We do not share this conviction. Equity furnishes a remedy to the landowner which may achieve an harmonious balance between the authority of the City over its streets and the landowner’s right to a full and beneficial use of the private easement.

The 1958 Code of Ordinances of the City of Houston contains an ordinance, which we view as a reasonable and necessary restraint upon private rights in order to apprise the City of improvements and construction of potential public concern of which it would otherwise be unaware. The ordinance reads:

“Sec. 36-2 Consent of council required.
“It shall not be lawful for any person to lay out, survey, grade, construct, or run any road or railway, or make any other public improvement within, through or over any street, or public or private grounds in any portion of the city, or build, erect, or construct across Buffalo Bayou any bridge without the consent of the city council first had and obtained. Each day that such unlawful work progresses, or such unlawful structure remains, shall be held to be a separate offense. (Code 1942, S 2002.)”

Violation of this ordinance, and conviction thereof, carries with it a penalty. The remedy of the plaintiffs in the situation with which they are confronted is to seek the consent of the City Council to improve and open the easement in a reasonable manner so as to obtain the benefit of their property right while protecting the members of the public who would inevitably use such an open way. If the City arbitrarily or unreasonably refuses to grant such consent, then proceedings for writ of mandamus may be brought to compel such consent. While many of our decisions declare, without qualification or exception, that mandamus will not issue to compel the performance of an act which involves an exercise of discretion or judgment, this rule is not without limitation, and the writ may issue in a proper case to correct a clear abuse of discretion. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956); City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308 (1955); Stakes v. Rogers, 139 Tex. 650, 165 S.W.2d 81 (1942); City of San Antonio v. Zogheib, 129 Tex. 141, 101 S.W.2d 539 (1937). This is especially so where there is no adequate remedy at law.

As we view the evidence in this record, it is conclusively established that the area of Houston in which the Bayou Woods subdivision is located is a thoroughly developed suburban area, more or less thickly populated, which has been an integral part of the City for a number of years, as opposed to an area which has been annexed to the City relatively recently, the streets of which are not in wide use or great demand by reason of population or development. Furthermore, as discussed earlier in this opinion, it is well settled that the plaintiffs have a property right in and to the portion of Buckingham Drive in dispute; this right is entitled to consideration by the City. If the City wants the street closed, it may take such action under Article 4646a, supra. It has not chosen to do so. We do not have the question before us as to whether this would constitute a “taking” of property so as to require compensation. While Dykes, as a matter of common law, had the right to improve the street, he must do so, as pointed out above, in compliance with the City’s ordinances. If the City refuses his requests to personally improve the easement, his remedy will be to preserve his rights in a proper legal forum rather than by “self-help”; if Dykes persists in improving the street without a permit, the City’s remedy is by injunction.

Meanwhile, however, the City’s proof is that citizens may be injured by falling or driving into holes or other hazards created by Dykes. It will be assumed that the City may erect temporary signs or local barriers to warn and protect the public from injury. As stated in 2 Elliott, Roads and Streets, 4th Edition, Section 801, pp. 1027-29:

“The responsibility of the authorities for the condition of a highway begins when they have actually opened it for public use * * * and where it is not opened for public use, and the public are properly notified of that fact by barriers, or other means, there is no liability on the part of the corporation to a traveler injured on the road * * *. Whenever the authorities throw a highway open for travel, or invite or induce travel thereon by any other means, the duty to keep it in repair arises, and they will be liable, in a proper case, for failing to perform that duty. This is also true, as a rule, where a city tacitly permits a thoroughfare to be used as a public street, although it was not originally laid out or established under city authority.”

The reasonableness and necessity of the erection of signs or barricades by the City are not before us. Suffice it to say that any device erected must be for the purpose of protecting people from injury and may not be erected for the purpose of preventing the plaintiffs from at least walking in and along the easement.

We have therefore concluded that the plaintiffs have easements and are entitled to make reasonable use of those easements. The City has completely barred this use by the erection of the permanent, metal barricade. The trial court correctly held that this barricade must be removed.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court commanding the City to remove the permanent barricade is affirmed. However, this judgment is without prejudice to the right of the City to erect any local barriers, signs, or other devices which are reasonably necessary to protect the public from danger and which do not interfere with plaintiffs’ use of their private easements.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

CONCURRING OPINION

POPE, Justice.

Lee Dykes and Robinwood Lodge, Inc., sought a mandatory injunction for the removal by the City of Houston of a permanent barricade which some of its employees erected across Buckingham Drive. Dykes and Robinwood are owners of lots which abut upon Buckingwood Drive and they purchased their property with relation to a platted subdivision in Harris County. After the recording of the plat and the dedication of the streets,’ City of Houston annexed the subdivision.

The majority opinion confuses peculiar rights in private easements with the general public’s rights in closing and opening streets. Dykes and Robinwood have rights as purchasers of the lots with reference to the plat which are not shared by the public at large. Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.Sup.1962); City of Corsicana v. Zorn, 97 Tex. 317, 322, 78 S.W. 924 (1904); Dallas Cotton Mills v. Industrial Co., 296 S.W. 503 (Tex.Comm.App.1927); 23 Am.Jur.2d Dedication § 59.65. The general rule is summarized in 26 C.J.S. Dedication § 52:

"* * * * * *
“Purchasers of property with reference to a plat showing part of the platted property as dedicated to streets and other public uses are entitled to rely on the dedication, and are entitled to the benefits thereof, even though it may still be incomplete as to the general public, unless the easement has been surrendered in some legally recognized manner. While both the public and the purchasers are affected by the dedication, their rights are not always the same. The rights in dedicated streets acquired by a purchaser are private contract rights, and are not affected by the failure of the municipality to act on the dedication. The purchasers are entitled to the free use of all such streets and alleys necessary to the complete enjoyment of the lots purchased by them, and where the streets have not been accepted by the municipality, may do whatever is necessary to put them in condition for use. * * * ”

The Court’s opinion implies that once the present barricade is removed, other barricades may legally be erected which limit Dykes’ and Robinwood’s use of their easement to a footpath. This question is not before the Court and is obiter dictum. We should not now hold, either expressly or by implication, that the City can legally barricade the easement to the extent of limiting its use to a footpath. Ordinarily one who buys property abutting on a platted and dedicated street has a legal right to make such use of his private easement as is reasonably necessary to its full enjoyment. 21 Tex.Jur.2d 165 Easements, § 37. In this day of almost universal travel by automobile, it would seem that vehicular use of the easement would be reasonably necessary to its full enjoyment.

I do not say that Dykes and Robinwood have a legal right to make further improvements without obtaining a permit as required by Section 36-a of the 1958 Code of Ordinances of the City of Houston, nor express an opinion whether such permit should be issued voluntarily or by judicial action.

The City of Houston did not act by force of any resolution or ordinance. It was without power to deprive Dykes and Robin-wood of their rights in their private easement to use the street, and the judgment of the trial court should be affirmed.

CALVERT, C. J., and WALKER, J., join in this opinion.

      . Where the trial court withdraws a case from the jury and renders judgment there can be no implied findings of fact, under Rule 296, Texas Rules of Civil Procedure, in favor of the judgment.

      . “Art. 1646a. Prohibiting injunction against closing streets
      “No injunction shall be granted to stay or prevent the vacating, abandonment or closing, by the City Council or governing body of any incorporated city of this State, of any street or alley in any such incorporated city of this State, except the suit of the owner or lessee of real property actually abutting on that part of such street or alley actually vacated, abandoned or closed, and then only in the event that the damages of said owner or lessee shall not have been released or shall not have been ascertained and paid in a condemnation suit by such city. a

        “Sec. 2. Provided that any person, who under existing laws has the right to enjoin a city from vacating, abandoning or closing any street or alley of such city and whose right to such injunction is denied by this Act, shall have the right to an action for damages for any injury that he may sustain by reason of the vacating, abandoning or closing of any street or alley by such city.”


author: NORVELL, Justice. GRIFFIN, Justice.

text:
    George W. BROWN, Jr., Petitioner, v. JEFFERSON COUNTY, Texas, et al., Respondents.
    No. A-11256.
    Supreme Court of Texas.
    July 13, 1966.
    Rehearing Denied Oct. 5, 1966.
    Baker, Botts, Shepherd & Coates, William C. Harvin, with above firm, Houston, for petitioner.
    W. C. Lindsey, Jr., Dist. Atty., Keith, Mehaffy & Weber, Beaumont, for respondents.
   NORVELL, Justice.

We granted writ of error in this case primarily for the purpose of settling a point of dissent which arose in the Beaumont Court of Civil Appeals over the proper construction of this Court’s holding in Texas & New Orleans R. R. v. Galveston County, 141 Tex. 34, 169 S.W.2d 713 (1943). In considering the validity of a “hold and save” clause in a contract executed by Jefferson County, the majority of the Court of Civil Appeals construed our 1943 holding narrowly and affirmed the validity of the agreement. The dissenting Justice stated that he was unable to accept the construction placed by the majority upon the holding in the Galveston case. In his opinion, the “hold and save” clause was illegal.

We are in general agreement with the majority and affirm the judgment of the Court of Civil Appeals.

Statement of the Case

The opinion of the Court of Civil Appeals, 397 S.W.2d 241, contains a detailed statement of the history of the events and transactions which gave rise to this litigation. Accordingly, we set forth a summary taken from such opinion and refer to the same for a more detailed account of such occurrences.

The United States Congress in 1962 authorized and approved the Sabine-Neches Waterway Project. In an effort to better the navigability of the Waterway and make passage of persons and vehicles over the same more convenient, the project plans provided for the construction of a fixed span bridge over the Waterway some 138 feet above water level at mean low tide. This proposed new bridge was to replace a thirty-five year old bascule-type bridge which was deemed inadequate and a hazard to modern navigation. The Congress directed that the project be carried out in accordance with the plans and recommendations contained in House Document No. 553.

Jefferson County is the sponsoring local interest of the project and as such was required to agree to a “hold and save” clause in its contract with the Federal authorities by said House Document No. 553. One resolution adopting a contract was passed in 1963, but as this agreement was thought to be defective it was repealed and a substitute agreement and resolution of the Commissioners’ Court was adopted on July 16, 1965. This is the resolution which is presently under attack. Among other provisions the agreement and resolution contained the following:

“Whereas, the United States of America has undertaken or is about to undertake the replacement of the Pleasure Island Bridge at Port Arthur as a part of the improvement of the Sabine-Nech-es Waterway, as authorized by the River and Harbor Act of 1962, House Document No. 553, 87th Congress, Second Session,
“Whereas, said Act requires that prior to construction, local interests agree to provide certain specified items of local cooperation, * * *
“Now therefore, in consideration of the premises, be it ordered by the Commissioners Court of Jefferson County, Texas, that the said Jefferson County, does hereby agree to:
“a. Hold and save the United States free from damages that may result from construction of the project. During each year while there is any liability by reason of the agreement contained in this subsection of this resolution, including the calendar year 1965, the Commissioners’ Court of said County shall compute and ascertain the rate and amount of ad valorem tax, based on the latest approved tax rolls of said County, with full allowances being made for tax delinquencies and costs of tax collection, which will be sufficeint to raise and produce the money required to pay any sums which may be or become due during any such year, in no instance to be less than two (2%) per cent of such obligation, together with all interest thereon, because of the obligation herein assumed. Said rate and amount of ad valorem tax is hereby ordered to be levied and is hereby levied against all taxable property in said County for each year while any liability exists by reason of the obligation undertaken by this subsection of this resolution, and said ad valorem tax shall be assessed and collected each such year until all of the obligations herein incurred shall have been discharged and all liability hereunder discharged.”

Opinion

Article 11, § 7 of the Texas Constitution, Vernon’s Ann.St., provides, in part, that:

“[N]o debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent (2%) as a sinking fund; * *

In Texas & New Orleans R. R. v. Galveston County, 141 Tex. 34, 169 S.W.2d 713 (1943), it was held upon authority of McNeal v. City of Waco, 89 Tex. 83, 33 S.W. 322 (1895) and Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525 (1938), that an indemnity agreement was a “debt” within the meaning of Article 11, § 7 of the Constitution. In this proceeding, Jefferson County does not request a re-examination of this holding of the Galveston County case, but insists that the 1965 order of its Commissioners Court complies with the requirements therein set forth. On the other hand, Brown suing as a taxpayer contends that an indemnity agreement is uncertain in amount and cannot be funded and is thus proscribed by said Article 11, § 7.

In the Galveston County case it appears that three railway companies and an interurban company made a contract for the construction of a causeway and a drawbridge to connect Galveston Island with the mainland. Part of the causeway was to be occupied by a public road and the County was to pay a portion of the construction costs. The railway and interurban companies were to have a 999 year lease on that portion of the causeway to be occupied by them. A drawbridge was located near the middle of the causeway which could be lifted to permit the passage of sea going vessels. The agreement between the parties provided that the drawbridge was to be maintained, operated and repaired by the railway companies but the costs were to be prorated between the railway companies, the interurban company and the County. The contract then contained the highly unusual provision that the employees of the railway companies engaged in operating the drawbridge should be deemed and treated as joint employees of the parties to the agreement, and that “neither the railway companies nor the interurban company shall be liable for any injury to person or damage to property which shall occur in connection with the use or attempted use of the drawbridge, or in the draw space, when the draw-bridge may be open, when the person injured or the property damaged shall be in the course of travel or transportation over the county road, and the county will indemnify and save harmless each of the other parties hereto from any such liability.”

The holding in the Galveston County case that the contract there involved constituted a “debt” within the constitutional meaning settled the case for, admittedly, there was no provision in the contract which could be remotely construed as an attempt to comply with the provisions of Article 11, § 7 of the Constitution. It should be noted, however, that this Court in holding that the County’s indemnity obligation under the contract constituted a “debt” within the constitutional meaning employed a construction of the term which gives to it a much broader meaning than that of being an obligation presently due and performable.

Jefferson County’s position here is that as its amended resolution, above set out in part, contains provisions for levying and collecting a tax to pay the interest upon and create a sinking fund for the retirement of the “debt” created by the resolution, it has complied with the holding of the Galveston County case.

Petitioner on the other hand asserts that the obligation assumed or “debt” created by the “hold and save” clause of the resolution is invalid because it is uncertain and unlimited in amount and cannot be funded. This position was accepted by the dissenting Justice on the Court of Civil Appeals.

We are in substantial agreement with the maj ority of the intermediate court. The Galveston case is to be restricted to its essential holdings, namely, that an indemnity agreement is a “debt” within the constitutional sense, and that, as a corollary thereto, provision must be made for the payment of any interest that may accrue thereon and for the retirement of the obligation. This was done in the Jefferson County resolution. There is language in the opinion of this Court in the Galveston County case which is highly critical of the uncertain and admittedly improvident contract made by Galveston County which sought to saddle the County for almost a millenium with an uncertain liability which could arise out of the operation of a bridge over which the County had no effective control. The opinion should not, however, be construed as condemning any and all indemnity contracts which a county might enter into in carrying out its legitimate functions. In this case, it appears that under the agreement between Jefferson County and the United States government, the County is to assume all obligations of ownership, operation and maintenance of the completed replacement bridge. This is a legitimate county function. The federal government under the Act of Congress is to pay three-fourths of the cost of the bridge, but in accordance with established federal policy evidenced by House Document No. 553, the sponsoring local interest (Jefferson County) is required to “hold and save the United States free from damage that may result from construction of the project.” This “hold and save” clause is common to inumerable agreements between local sponsoring interests and the federal government relating to improvements of rivers and harbors and we see no valid legal objection to a county’s executing such an agreement with the federal authorities as a sponsoring local interest. The bridge when completed will be part of the county’s road system and under its control. The concept of an uncertain indemnity liability as a “debt” under the usual meaning of the term is somewhat unrealistic. Some liability in the future may arise from the construction of the bridge. Likewise, some liability may arise from the operation of the bridge after it has been turned over to county control. A presently unforeseen occurrence of the future may require extensive repairs to the bridge and the necessary expenditures therefor might exceed the available funds for current expenses during a particular year and thus require a funding of the sum necessary to repair the structure and the voting of a bond issue. The question of whether such funding or the funding of an obligation to indemnify for damages from the construction of the bridge, exceeds the permissible tax rate may arise in the future, but it is not presently before us. See, Article 8, § 9, Constitution of Texas.

Article 11, § 7 of the Texas Constitution does not require that a definite tax rate be set for each year the “debt” is to be outstanding. Tax rates vary with assessed valuations, governmental needs and the like and are set on a year to year basis. All the constitutional provision requires is that a “sufficient” tax be levied. Bassett v. City of El Paso, 88 Tex. 168, 30 S.W. 893, 895 (1895); Mitchell County v. City National Bank, 91 Tex. 361, 43 S.W. 880 (1898); City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 818 (1923). Until some liability ascertainable in amount arises, no money would need be collected from the county’s tax resources. In fact, as indicated in Arroyo Colorado Navigation District v. Kipp, 261 S.W.2d 189 (Tex.Civ.App.1953, no wr. hist.), no presently payable obligation can arise against a county or other local sponsoring interest under a “hold and save” clause which is a provision for indemnity, until liability against the United States has first been fixed and established. See generally 42 C.J.S. Indemnity § 14c, p. 589; 27 Am.Jur. 471, Indemnity, § 24.

In essence it is petitioner’s argument that, “Article XI, Section 7, requires that obligations incurred be funded by a tax ‘sufficient’ to pay the interest and provide a sinking fund for the obligation incurred. The obligation being unlimited, and the taxing power being limited, the County simply cannot validly meet the constitutional requirements of funding, and thus cannot validly incur this unlimited obligation.” In essence the argument is that because there is a possibility that an obligation due the United States may arise in the future under the “hold and save” clause of the contract which may be beyond the ability of the County to pay because of the constitutional restrictions of its taxing power, the agreement must be held invalid.

In reply to this argument, Jefferson County maintains that presumptively the resolution adopted by its Commissioners’ Court is valid, and that the mere showing of the possibility that the discharge of a contractual obligation may prove to be beyond the tax resources of the County is an insufficient basis for declaring the contract void when adopted. We are cited to an A.L.R. annotation which states that;

“According to most of the authorities in taxpayers’ actions attacking the validity of an obligation incurred or proposed to be incurred by a public body, on the ground that such obligation is one in excess of the lawful debt limitation, the plaintiff taxpayers have the burden of proving that the debt limitation is or would be violated by the obligation in question.” 16 A.L.R.2d 515. See also, Tullos v. Church, 171 S.W. 803 (Tex.Civ.App., 1914, no wr. hist).

We are in agreement with the County’s position. The “hold and save” agreement herein involved will not necessarily result in the assertion of a claim against the County. If a claim be asserted, it may be one that could be settled from the current revenues of a particular year, or it may be one which may be funded and paid off without violating any constitutional debt limit or taxing restrictions applicable to counties. If such obligation may be so discharged, the County has bound itself to do so. It has, if necessary, bound itself to levy a “sufficient tax”. There remains only the possibility that an obligation may arise under the indemnity contract which the County could not fund and discharge because of the taxing restrictions contained in Article 8, § 9 of the Constitution. Necessarily, the agreement to levy a “sufficient tax” from year to year is subject to constitutionally imposed restrictions upon the taxing power and when the levy of a “sufficient tax” for any particular year would exceed the tax limit, no county could be forced to levy a tax in excess of the constitutional limit. The outside possibility that this latter situation might arise will not operate to invalidate the “hold and save” agreement. There is always a possibility that a municipal taxing organization will incur obligations that may exceed its permissible taxing power in future years. See, 11 U.S.C.A. §§ 401-404, Articles 1024a and 1024b, Vernon's Ann.Tex.Stats. Cf. United States v. Bekins, 304 U.S. 27, 58 S.Ct. 811, 82 L.Ed. 1137 (1937), Getz v. Edinburg Consolidated Independent School District, 101 F.2d 734 (5th Cir. 1939), Ex parte York County Natural Gas Authority, 238 F.Supp. 964 (Western District, South Carolina, 1965). However, legitimate county contracts should not be declared void upon possibilities. When the order or resolution creating the obligation complies with the provisions of Article 11, § 7 of the Constitution, it should be stricken down only when it is made to appear that the limited tax resources of the municipality are insufficient at such time to discharge the obligation. Cf. City of Vernon v. Montgomery, 265 S.W. 188 (Tex.Civ.App. 1924, wr. ref.), Anderson v. Parsley, 37 S.W.2d 358, l. c. 366 (Tex.Civ.App. 1931, wr. ref.), Tullos v. Church, 171 S.W. 803 (Tex.Civ.App. 1914, no writ).

The judgment of the Court of Civil Appeals is affirmed.

GRIFFIN and GREENHILL, JJ., dissenting.

DISSENTING OPINION

GRIFFIN, Justice.

I cannot agree with the majority opinion herein.

To my mind this case is controlled by the case of Texas & New Orleans R. R. Co. v. Galveston County, 141 Tex. 34, 169 S.W.2d 713 (1943). The attempted distinctions between this case and the Galveston County case are neither logical nor valid.

I would hold the order in question illegal and void and violative of the Constitution as set out in the dissenting opinion in the Court of Civil Appeals.

GREENHILL, J., joins in this dissent.

      . “Jefferson County does hereby agree to: a. Hold and save the United States free from damages that may result from construction of the project.”

      . The opinion of the Court of Civil Appeals is reported in 397 S.W.2d 241 under the style of All Persons Interested in or Affected by the Issuance of the Securities, etc. v. Jefferson County, Texas. The appeal was from a judgment in a consolidated cause, — one being a proceeding brought by Jefferson County under the provisions of Article 717m, Vernon’s Ann.Tex.Stats. to validate a bond issue designated as “Jefferson County Bridge Bonds, Series 1965”, the other being a taxpayer’s suit brought by George W. Brown, Jr. seeking a declaratory judgment that the “hold and save” clause in the Jefferson County’s contract with the Federal authorities is void, for in-junctive relief, etc. The points contained in Brown’s application for writ of error restrict his attack to the “hold and save” clause. The members of the Court of Civil Appeals were agreed that the Jefferson County Bridge Bonds, Series 1965, are valid securities and such holding is not attacked by the application for writ of error.

      .River and Harbor Act of 1962, 76 Stat. 1173, 1175.

      . Article 8, § 9 of the Constitution provides in part that:
      “[N]o county, city or town shall levy more than twenty-five (25) cents for city or county purposes, and not exceeding fifteen (15) cents for roads and bridges, and not exceeding fifteen (15) cents to pay jurors, on the one hundred dollars valuation, except for the payment of debts incurred prior to the adoption of the Amendment September 25, 1883; and for the erection of public buildings, streets, sewers, waterworks and other permanent improvements, not to exceed twenty-five (25) cents on the one hundred dollars valuation, in any one year, and except as is in this Constitution otherwise provided; provided, however, that the Commissioners Court in any county may re-allocate the foregoing county taxes by changing the rates provided for any of the foregoing purposes by either increasing or decreasing the same, but in no event shall the total of said foregoing county taxes exceed eighty (80) cents on the one hundred dollars valuation, in any one year; * * * and the Legislature may also authorize an additional annual ad valorem tax to be levied and collected for the further maintenance of the public roads; provided, that a majority of the qualified property tax paying voters of the county voting at an election to be held for that purpose shall vote such tax, not to exceed fifteen (15) cents on the one hundred dollars, valuation of the property subject to taxation in such county. * * * ”