author: HUGHES, Justice.

text:
    Owen W. SHERRILL, Appellant, v. Henry PHILLIPS, Appellee.
    No. 11422.
    Court of Civil Appeals of Texas. Austin.
    July 20, 1966.
    Rehearing Denied Aug. 24, 1966.

      McClain & Stump, W. K. McClain, Georgetown, for appellant.
    E. M. Grimes, Taylor, for appellee.
   HUGHES, Justice.

This suit is by Henry Phillips, appellee, against Owen W. Sherrill, appellant, to recover on a broker’s contract relating to the sale of certain realty in the State of Arkansas.

Trial was to a jury on whose verdict judgment was rendered against appellant for the sum of $9,687.30.

Owen W. Sherrill and Grace White Het-rick, have been licensed real estate brokers and Henry Phillips has been a licensed real estate salesman, under Mrs. Hetrick, in Texas during all the times relevant to this suit. Mr. Sherrill, during such time, was also a licensed real estate broker in Arkansas. Neither appellee nor Mrs. Hetrick were licensed realtors in Arkansas.

Any interest which Grace White Hetrick may have in this suit has been assigned to appellee.

In October 1959 appellee received a letter from H. L. Arrington, Vice President and General Manager of Elk Roofing Manufacturing Company, Inc. of Stephens, Arkansas, in which was stated: “Should our factory be sold for the $2,000,000.00 as discussed, you will receive 1% of that sales price.”

Within a few days following receipt of this letter, Mr. and Mrs. Hetrick and ap-pellee called upon Mr. Sherrill and a written contract was then executed by the parties hereto and by Mrs. Hetrick on behalf of her realty company. We copy portions of this contract, Mr. Sherrill being designated, “First Party” and the others “Second Parties

“WHEREAS, Second Parties Have as a client a certain business man of San Antonio, Bexar County, Texas, who desires to purchase for himself or for businesses in which he has an interest a certain manufacturing concern located in the State of Arkansas engaged in the manu-factoring of certain building materials; and
WHEREAS, Second Parties desire the assistance of First Party in the negotiation and completion of the aforementioned transaction and First Party is willing and able to render such assistance;
NOW, THEREFORE, in consideration of the mutual promises of the parties hereto it is agreed by and among them that First Party shall aid and assist in the negotiation and completion of the above designated transaction (it being contemplated that the names of the prospective seller and purchaser will be disclosed to First Party upon the execution of this agreement) to the best of his ability and that any and all commissions and compensation paid to the parties hereto arising out of and in connection with such transaction shall be divided as follows: Forty five per cent (45%) of the gross commissions or compensation shall be paid to First Party and fifty five per cent (55%) of the gross commissions or compensation shall be paid to Second Parties, * *

Following execution of this contract, Second Parties revealed to First Party the name of the business to be sold, Elk, and the'name of the prospective buyer, Morris D. Jaffe, as previously they had agreed to do. Sale to Jaffe was never consummated.

Appellee pleaded and the jury found that. on or about April 6, 1960, the parties and Mrs. Hetrick made an oral agreement in substance as follows: (1) that appellant and his associates would seek a purchaser for the Elk Company, other than Jaffe (2) appellee and his associates agreed that they would not attempt to sell Elk to anyone other than Jaffe, except through appellant, and that the sale to anyone other than Jaffe would be considered a sale to a customer of appellant, and on any sale, except to Jaffe, the commission earned would be divided two thirds to appellant and one third to appellee and associates (3) that the Jaffe contract was to remain in effect in the event of a sale to him.

After the making of this agreement no attempt was made by appellee and his associates to sell Elk to anyone other than Jaffe.

On April 7, 1960, appellant wrote ap-pellee as follows:

“GEORGETOWN, TEXAS
April 7, 1960
Mr. Henry Philips
2811 Salado
Austin, Texas
Re: Elk Mfg. Co., Stephens, Ark.
Dear Henry:
Confirming our telephone conversation of last evening — where in you have been the Finder and furnished the above company with request — we work towards a sale. This advises you, in the event I am successful in perfecting a sale and collecting a commission there for, in event I sell above to a customer of mine, I agree to pay you one-third of my fee.
However, in event of a sale to Joffe of San Antonio we have other prior agreement not effecting the above.
Yours very truly
/s/ Owen W. Sherrill”

The Elk property was sold in 1960 for $1,500,000.00, the jury finding that it was sold to one of appellant’s customers. This finding was based, in part, upon the testimony of the President of Elk that Mr. Sherrill came to see him in 1960, one year after appellee came to see him regarding the sale of Elk, about selling Elk and the sale originated with him, and that he, Mr. Sherrill “was the man that negotiated the sale with me.”

Between August 4, 1960, and January 2, 1962, appellant received $22,500.00 in commissions as a result of the sale of Elk.

On August 8, 1960, appellant wrote to appellee as follows:

“GEORGETOWN, TEXAS
April 8, 1960
Mr. Henry Philips
2811 Salado Street
Austin, Texas
Dear Henry:
I hold for you a finder’s fee of $2500.00 for your immediate letter of acceptance and signed approval.
Please return copy signed and check will be mailed to you at once.
Understand the seller paid no brokerage. Nathan did his best with the buyer and I sincerely hope you are appreciative. I am sorry Henry you never could get San Antonio man into action.
Best wishes.
Sincerely,
/s/ Owen
/t/ Owen W. S/errill
I will accept $2500.00 finder’s fee and will thank you to send check at once.
/t/ Henry Philips
This is my instructions from Nathan for your immediate acceptance or retunr his check at once.
/t/ Owen
OWS :JW
cc: Nathan Witkind”

This offer was refused by appellee and this suit followed.

Appellants’ first point is that the agreement between him and appellee and associates is not supported by a consideration.

We quote from appellant’s brief excerpts to show the basis for this contention and his concept of the question presented:

“Phillips was under a general duty to the public not to sell property in Arkansas, and so his promise not to do so cannot serve as consideration under the rules of the Restatement of Contracts. * *
Phillips did not have any enforceable rights against Elk for the reason that he, Phillips, the salesman and Hetrick, the broker, did not have a license to sell real estate in Arkansas. * * * It is true that a promise to forbear can be sufficient consideration to support a return promise, but it must be a promise to forbear doing something that Phillips has a legal right to do. A promise to forbear something that Phillips or Hetrick had no legal right to do is not valuable consideration. It is admitted by appellee that he did not have a license to sell real estate in Arkansas and that Grace White Hetrick, the broker and assignor of Phillips had no such license in Arkansas. Any attempt upon the part of Phillips or Hetrick to sell the land in Arkansas would be subject to fines and imprisonment in the State of Arkansas, and any contract for a commission on the sale of Arkansas property would have been unenforceable against the Seller Elk Roofing Manufacturing Company. Thus we have a case based upon an oral contract, the sole consideration for which is the promise of the appellee Phillips not to attempt to sell real estate located in Arkansas. The ap-pellee Phillips refrained from doing something which he had no right to do in any event. Can this be consideration for a return promise ?
A search of the authorities reveals that the uniform rule is that a promise to forbear doing something that the party has no right to do is not sufficient consideration to support a return promise. * * In our case Phillips had no right to sell Arkansas property, and he knew this at all times material to this case. Therefore, Phillips was promising not to do something that he knew he had no right to do. * * * It may be argued by ap-pellee that even though Phillips did not have an Arkansas license, he might have nonetheless attempted to sell the property. As a matter of the law of consideration, the court should not consider what he might have done improperly; in order to constitute a valuable consideration for a return promise, the forbearance must be of a right which the plaintiff legally had.”

Many of the statutes of Arkansas are cited to the effect that it would be unlawful for anyone to engage in the business of selling real estate in Arkansas without obtaining a license in accordance with its laws.

We are in complete disagreement with appellant in his view of the applicable law.

The contract between the parties was made in Texas, in accordance with the laws of Texas, it was performable in Texas, and was a valid contract, enforceable in the Courts of this State.

It was not contemplated by the parties to the contract that appellee and his associates were to do anything in the State of Arkansas. In fact, they agreed not to do anything to effect a sale of this property on their own to anyone anywhere, except to Jaffe who lived in Texas.

Even though the agreement be construed as binding appellee and associates not to try to sell this property in Arkansas and to such extent the contract be held nudum pac-tum because they were then prohibited by law from attempting to sell it in Arkansas, their agreement not to attempt to sell the property elsewhere in their own right and where not prohibited by law would constitute a valid and valuable consideration supporting the contract.

There is no law of which we are aware to the effect that a real estate broker in Texas cannot act as broker in Texas in selling or offering for sale to a Texan property located in Arkansas. The restraint not to offer this property for sale in Texas was, in our opinion, a legal detriment to appellee and a sufficient consideration to support the promise of appellant to divide his commission with appellee and associates.

We cite in support of the above conclusions the following authorities: Warren v. White, 143 Tex. 407, 185 S.W.2d 718, Grace v. Orkin Exterminating Company, 255 S.W.2d 279, Tex.Civ.App., writ ref., n. r. e., Richland Development Company, Inc. v. Staples, 295 F.2d 122 (5th Circuit) and 12 Am.Jur.2d, Brokers, Sec. 37, p. 799.

In Richland the suit was by a real estate agent against two Alabama corporations for the recovery of a commission agreed to in a valid Missouri brokerage contract covering the sale of land in Alabama, the agent although licensed in Missouri was not licensed in Alabama, and the Court affirmed judgment for the agent for his commission, even though the agent performed some acts in Alabama in furtherance of the sale.

There is no contention here that the contract in suit is invalid under the laws of Texas or that appellee and associates performed any act under it in the State of Arkansas.

We overrule appellant’s first point.

Appellant’s second point is that the court erred in admitting evidence of four sales made by him which were in no way connected with this controversy. This evidence is in the form of a reprint from the Williamson County Sun of July 13, 1959, the objectionable portion of which we quote:

“From his early days as a Realtor, Mr. Sherrill has promoted the idea of Realtor cooperation, and he is quick to give credit to the cooperation of other Realtors for much of his success. The 22 story Shell Building in Houston for 4½ million dollars, the five block Federal Center in Fort Worth for 5½ million (these two in cooperation with Sherrill’s New York Realtor-attorney associate, Nathan Witkind), a $350,000 Texas loan to a bank’s client in another state, and the 2½ million dollar Hilton Inn above are recent examples of Sherrill’s cooperative transactions, all crossing state lines, and with similar deals in negotiations.”

Regarding this clipping, Mrs. Hetrick and appellee gave similar testimony. Appellee testified:

“Q Mr. Phillips, I present to you Plaintiff’s Exhibit No. 7.
Q Have you ever seen this instrument before ?
A I have.
Q What does it purport to be, Mr. Phillips?
A A reprint from the Williamson County Sun, Georgetown, Texas, July 13, 1959.
Q Where did you first see this instrument, Mr. Phillips ?
A Mr. Owen Sherrill gave it to me in his home.
Q Did he discuss any men that are mentioned in this instrument to you at that time?
A He mentioned one Nathan Witkind in New York, an associate of his, who worked with him in putting over those million-dollar deals that’s shown in that article.
Q State what was done by you, if anything, regarding whether or not you read this instrument before you contracted with Mr., before or at the time you contracted with Mr. Sher-rill.
A The article and publication was given to me by Mr. Sherrill to prove his ability to merchandise the project I brought to him, namely the Elk Roofing Manufacturing Company in Stephens, Arkansas.”

Appellant’s objections to this evidence, brought forward, are that it was irrelevant and inflammatory.

It is our opinion that appellant adopted this article as his own under the circumstances shown and that he used it as an inducement to procure the contract in suit. We believe that it was admissible under the rule permitting admission of all negotiations and communications relating to the alleged contract that formed a part of the transaction and that tend to establish or negative the making of such contract where this question is, as here, issuable. 13 Tex.Jur.2d, Contracts, Sec. 391, p. 669. We quote from the testimony of appellant:

“Q All right, now, then. I will ask you again. Did you ever hear of any agreement between you and Henry Phillips, that Henry Phillips and his company, the Excelsior, would refrain from attempting to sell Elk property to anyone other than Jaffe, except through Sherrill? Did you ever hear of any agreement like that?
A No, sir.
Q Never any such agreement that you know of?
A There wasn’t, no.”

The jury answered that a contract containing this provision was made.

We overrule point two.

The third point is that the trial court erred in allowing recovery of 6% interest on the commission found to be due from the dates on which such commission was received by appellant. The commission was paid in installments.

The recovery of 6% interest as damages as indicated was within the pleadings of appellee.

We hold that the judgment was not erroneous in this respect. “Interest” is an element of damages suffered by the loss of the use of money. 17 Tex.Jur.2d, Damages, Sec. 24, p. 104. This point is overruled.

Lastly, appellant complains of the refusal of the trial court to permit him to prove the bad reputation of appellee for truth and veracity.

The witness by whom appellant sought to establish the bad reputation of appellee for truth and veracity was Lloyd-Leffingwell, a deputy sheriff in Travis County. This witness testified on bill of exceptions that he had heard about appel-lee’s conviction for forgery and receiving a suspended sentence therefor, his five arrests for swindling with worthless checks and that appellee had received a suspended sentence in the Federal Court. This latter conviction was for sending libelous matter through the mails. The witness then testified that appellee’s general reputation for truth and veracity in the community where he resided was “bad.”

On cross examination, Mr. Leffingwell testified:

“Q You have never discussed his reputation for truth and veracity, now, in the community in which he lives, with any people out there?
A No, sir. My knowledge of his is first-hand knowledge.”

All of the above testimony was excluded from consideration by the jury.

The court did not err in excluding this testimony. A witness must know the general reputation of a person in the community where he lives in order to testify to it. He cannot base his knowledge solely on facts known to him personally, or on his own personal beliefs.

It is also the rule that the trial judge’s determination of the qualification of a character witness is usually final. See on these matters Secs. 52 and 53, Tex.Jur.2d, Vol. 61, p. 593-596.

We overrule point four.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.

      . By the phrase “in their own right” is meant the right of appellee to sell Elk under the original listing from Elk’s Vice President unrestricted by the contract between the parties (including Mrs. Hetrick) to this suit.

      . Testimony similar to the content of the Sun reprint was elicited by appellant from appellee, as follows:
      “Q Now, after you discussed these matters on the night of April 6th, what did you all do? What did you and Mr. and Mrs. Hetrick do?
      A You mean what did we discuss?
      Q Yes.
      A Mr. Sherrill said, I can sell this property I feel sure through a customer of mine, or through some of my associates I have sold to, including the Nathan Witkind interest he had in New York in which he had outlined that he sold twenty-seven telephone exchanges, he sold all of these buildings, Shell Building and millions of dollars worth of buildings, in the East, and he felt like that he could sell it if we would give him exclusive and sole right, which we did.”


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    COMMERCIAL TRAVELERS LIFE & ACCIDENT INSURANCE CO., Appellant, v. Roy L. BRUCE, Appellee.
    No. 180.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 27, 1966.
    First Motion for Rehearing Denied June 16, 1966.
    Second Motion for Rehearing Denied Aug. 11, 1966.
    Harless, Bailey & Youngblood, by Fred Harless and Bruce Youngblood, Dallas, for appellant.
    Frederic Johnson, Sinton, for appellee.
   OPINION

SHARPE, Justice.

This is an appeal from a judgment rendered after jury trial in favor of Roy L. Bruce, appellee, plaintiff below, against Commercial Travelers Life and Accident Insurance Co., appellant, defendant below. The suit is on an insurance policy providing indemnities for loss of time due to disability and hospital confinement. The jury found in answer to special issues numbered as indicated that (1) plaintiff had loss of time due to sickness after January 7, 1964; (2) that during such loss of time plaintiff had total disability; (3) that he was totally disabled from January 7, 1964, to March 24, 1964, a period of 77 days; (4) that his loss or disability was not caused or contributed to by a hernia; (S) unanswered (to be discussed hereinafter); and (6) that $500.00 was a reasonable plaintiff’s attorney fee. The trial court rendered judgment for $960.00 benefits, penalties in the amount of 12%, or $115.20, and attorney’s fees of $500.00, aggregating $1575.20.

Appellant urges six points of error in substance as follows: By point one, that the trial court should have rendered judgment for appellant because the evidence conclusively established that the loss and disability claimed by appellee was caused by or contributed to by hernia, either directly or indirectly, such loss and disability being excluded by the terms of the policy sued upon; by points two and three, that the evidence was factually insufficient to prove that the loss and disability was not caused by or contributed to by hernia, directly or indirectly, and to support the answer to special issue 4; by point four, that the trial court erred in failing to include the words “either directly or indirectly” in special issue 4, since said wording is a part of the exclusion rider in the policy; by points five and six, that the evidence is legally and factually insufficient to support the answer to special issue six on the question of attorney’s fees.

In reply to appellant’s first three points, appellee contends by counterpoint one that his disability arose from a sickness covered by the policy and such disability was not caused by or contributed to, directly or indirectly, by hernia. The insurance policy sued upon is dated December 8, 1960. It provides for indemnities in the amounts specified therein, including benefits for loss of time beginning with the first day of continuous total confining disability at the rate of $300.00 per month, with an additional $300.00 per month indemnity for time confined in the hospital. Attached to and made a part of the policy is an exclusion rider reading as follows:

“It is hereby agreed and understood that in consideration of the issuance of the above described policy, the insured agrees to waive any claim for indemnity provided by the policy on account of any loss or disability hereafter sustained which shall be caused by or contributed to by hernia, either directly or indirectly; and, the insured further agrees that this rider shall continue to be and remain a part of said policy as long as it shall be maintained in force and effect, any provisions to the contrary notwithstanding.”

Appellant expressly pleaded the policy exclusion above-mentioned and appellee had the burden of establishing the non-application of it. Rule 94, Texas Rules of Civil Procedure; Shaver v. National Title & Abstract Co., 361 S.W.2d 867 (Tex.1962). Ap-pellee concedes that he had such burden but says it was discharged by evidence legally and factually sufficient to support the jury findings which established that he was totally disabled, the period of time for which disabled, and that such disability was neither contributed to nor caused by a hernia.

The evidence consists of the testimony of appellee, his admissions pursuant to requests under Rule 169, T.R.C.P., and the hospital records. Appellee had his first day of disability and loss of time on January 7, 1964, when he was admitted to the hospital where he remained until January 16, 1964, a period of ten days. He was readmitted to the hospital from January 22, 1964, to January 25, 1964, a period of four days. He was again admitted to the hospital on January 28, 1964, where he remained until February 1,1964, a period of five days. The total hospital confinement was, therefore, nineteen days. On April 24, 1964, ap-pellee returned to partial work and thus terminated the period for which he could claim benefits under the policy. The record shows that on January 8, 1964, three operations were performed on appellee, one for hernia, one for hemorrhoids and one for a nodule in the right epididymis. The two subsequent readmissions to the hospital were for hemorrhage resulting from reopening of the incision made during the hemorrhoid operation. Appellee testified that he entered the hospital originally in order to have the hemorrhoids removed; that prior thereto he had the hernia for more than a year; that it was no worse than it had been for a long time; that it did not particularly bother him; and that he would not have entered the hospital if his sole complaint had been the hernia. Appellant countered this evidence by offering the hospital records showing the three operations in the order above-mentioned and, particularly, the hernia as the number one reason for admission, along with other references and notations concerning it.

The evidence is legally and factually sufficient to support the jury findings that plaintiff had loss of time and total disability for seventy-seven days during the period from January 7 to March 24, 1964, due to sickness within the meaning of the policy. There is no question that loss of time and disability resulting from the hemorrhoids and the operation and treatment thereof as well as for the nodule were covered by the policy. The question is not whether appel-lee had a hernia or an operation thereon. Instead, the issue is whether appellee would have suffered the loss of time and disability on account of the covered sickness regardless of the hernia and the treatment thereof. If so, he is entitled to recover. If not, i. e., if the hernia contributed to cause appellee's loss and disability, then, to the extent that it so contributed, he is not entitled to recover.

There is no serious fact question concerning appellee’s second and third hospital confinements. The evidence supports the view that they were due to the hemorrhoid condition and operation. With reference to ap-pellee’s first hospital confinement the evidence is sufficient, legally and factually to support a finding that appellee went to the hospital primarily for treatment of the hemorrhoid condition and the repair of the hernia was incidental; further, that appellee would not have gone into the hospital on account of the hernia condition alone; and, further, the hemorrhoid and nodule conditions were sufficient to cause the loss of time and disability without reference to the hernia. In addition to the jury findings hereinbefore mentioned, the trial court also submitted special issue 5 which was to be answered only if in answer to special issue 4 the jury found that appellee’s loss or disability had been caused or contributed to by a hernia. Special issue 5 reads as follows : “How many months or days do you find from a preponderance of the evidence that plaintiff’s total disability and loss of time, if any, was caused or contributed to by hernia?” Since the jury answered special issue 4 to the effect that appellee’s loss or disability was not caused or contributed to by a hernia, special issue 5 was not answered. It thus appears that the jury believed and so found that the sickness which caused appellee’s loss of time as well as his disability for seventy-seven days was due to the hemorrhoids and the nodule, conditions covered by the policy, rather than to the hernia and the operation upon it.

In the case of American Casualty & Life Co. v. Butler, 215 S.W.2d 392 (Tex.Civ.App., 1948, wr.ref.n.r.e.), the court held in substance that if the disability suffered by the claimant was caused by a disease covered by the policy which was sufficient to cause such disability without regard to contributing factors, and that but for the covered disease the excluded disease would not have resulted in the disability, then the excluded disease would not have caused or contributed to the disability within the meaning of the exclusionary provision. The rule therein announced is applicable here.

The evidence herein did not conclusively establish that the loss and disability claimed by appellee was caused or contributed to by hernia, either directly or indirectly, and the trial court did not err in refusing to render judgment for appellant on that basis. On the other hand, the evidence was legally and factually sufficient to authorize the jury to find, as it did in answer to special issue 4, that appellee’s loss and disability was not so caused or contributed to. Appellant’s points one, two and three are overruled.

By its point four appellant contends that the trial court erred in failing to include the words “either directly or indirectly” in special issue 4. That issue reads as follows: “Do you find from a preponderance of the evidence that plaintiff’s loss or disability, if any, was not caused or contributed to by a hernia?” To which the jury answered “It was not”. Appellant’s objection to the issue was, in part, “that the words ‘either directly or indirectly’ should be added to and included in said special issue for the reason that said wording is part of the exclusion in the insurance policy contract sued on by the plaintiff.” Appellant’s entire argument under this point is that ‘Since said wording constituted an important part of the contract between the parties, it should have been included in said issue as such wording has elements of inquiry going to an ultimate fact and issue and particularly in view of the theory upon which Plaintiff tried his case. Texas Rules of Civil Procedure, Rule 279.” There was no evidence herein of any indirect relation between the hernia and appellee’s loss or disability. The hernia either directly caused or contributed to plaintiff’s loss or disability or it did not. There was no evidence that the hernia caused or aggravated either the hemorrhoids or the nodule so that the jury could find that it caused or contributed to the loss or disability of appellee. The words “directly or indirectly” were not essential to a correct submission of the ultimate issue, particularly in view of the use of the words “caused or contributed”. Error is not presented by appellant’s point four and it is overruled.

By its points five and six appellant contends that the evidence is legally and factually insufficient to support the jury answer to special issue 6, fixing the amount of $500.00 as a reasonable fee for appellee’s attorney. The thrust of the argument here is that there is no testimony in the record as to what services were performed by the attorney for appellee, and the questions propounded to the only witness, an attorney who testified concerning the matter, were hypothetical in nature. The record reflects that appellee’s witness on this issue was the district attorney for the 36th Judicial District of Texas, who also practiced civil law. He testified that he was familiar with the fees charged by attorneys in the area where the case was tried. He was advised in the questions asked of him as to the nature of the claim, the amount thereof and that a jury trial was involved; that an original petition had been filed as well as a request for admissions; that there were no special hearings or depositions, and as to the time spent in investigation and preparation for trial. The witness testified that a minimum fee for filing a petition was $250.00 and that additional services and time would authorize a fee of at least $500.00. Although there was no separate testimony as to the amount of time spent in investigation and preparation for trial, the pleadings, the request for admissions and answers were part of the record and before the jury. It was obvious that the case was being tried on a contested basis before the jury and it had the opportunity to observe the time and efforts on the part of counsel for appellee during the course of the actual trial. The testimony of the witness, by way of opinion, as to the minimum fee for filing the suit coupled with the facts known to the jury which were also related to the witness, was sufficient, legally and factually, to support the finding of the jury that $500.00 was a reasonable fee. No claim of excessiveness is made by appellant. Appellant’s points five and six are overruled.

The judgment of the trial court is affirmed.

OPINION ON MOTION FOR REHEARING

As a part of its motion for rehearing appellant makes request for additional findings of fact, as follows:

1. The hernia operation was performed with the knowledge and consent of the appellee.
2. No physicians testified and the ap-pellee offered no medical evidence.
3. There was no medical evidence as to the relative necessity of any of the several operations.
4. There was no medical evidence as to the relative gravity or complexity of any of the several surgical operations performed upon appellee.
5. There was no medical evidence as to the relative disabling-nature of any of the several operations.
6. There was no medical evidence that there was not an indirect relation between the hernia and the appellee’s loss or disability.
7. There was no medical evidence that the hernia did not cause or aggravate the hemorrhoids or the nodule.
8.There was no medical evidence that the hernia did not contribute, either directly or indirectly, to the subsequent hospital admissions for hemorrhaging.

Request No. 1 is granted. Request No. 2 is substantially correct, but is qualified to the extent shown by the discussion under requests 3-8. The latter requests actually call for conclusions of law. They involve the contention that there was “no medical evidence” concerning the subjects mentioned and will be treated as “no evidence” points. Requests 3-8 have been considered in relation to appellant’s point one of its original brief which asserts that the trial court should have rendered judgment for appellant because the evidence conclusively established that the loss and disability claimed by appellee was caused by or contributed to by hernia, either directly or indirectly.

Appellant’s requests 3-8 are denied. Hospital records covering appellee’s three admissions during the period from January 7, 1964 to February 1, 1964 were offered by appellant and received in evidence without objection and upon stipulation that they were true and correct. Among other things, such records included reports and opinions of doctors who operated upon and treated appellee as well as nurses and laboratory records. The records, reports and opinions contained therein coupled with the testimony of appellee constituted legally sufficient evidence authorizing the jury to believe that appellee’s disability and loss of time were caused by the hemorrhoids and nodule conditions aside from the hernia.

We adhere to the conclusions expressed in our original opinion and appellant’s motion for rehearing is overruled.


author: DENTON, Chief Justice.

text:
    FORT WORTH LLOYDS, Appellant, v. J. P. HALE et ux., Appellees.
    No. 7630.
    Court of Civil Appeals of Texas. Amarillo.
    June 27, 1966.
    Rehearing Denied July 25, 1966.

      Crenshaw, Dupree & Milam Lubbock, for appellant.
    Saleh & Saleh, Lamesa, for appellees.
   DENTON, Chief Justice.

This is a suit by J. P. Hale and wife Beulah Hale to recover against Fort Worth Lloyds for the loss of merchandise and fixtures under the provisions of two fire insurance policies. The trial court, with a jury, entered judgment for the plaintiff below and the defendant insurance carrier has perfected this appeal.

Appellees were the owners of a variety store in O’Donnell, Texas. It is undisputed the two fire insurance policies issued by appellant were in full force and effect on February 2, 1964, the date of the fire; that the two policies provided combined coverage of losses not to exceed $31,000.00; that appellees’ fixtures and stock of merchandise were totally destroyed by the fire; that the insurance company was timely and properly notified of the loss; that appellant’s agent investigated and inspected the premises after the fire; and that appellant failed and refused to pay appellees any sum under the policies. The principal dispute between the parties is the value of the destroyed merchandise and fixtures. In response to the only special issue submitted, the jury found the actual cash value of the merchandise and fixtures in the building at the time of the fire was $31,000.00. The trial court entered judgment for appellees in accordance with this finding.

Appellant’s first three points of error complain of the admission into evidence of appellees’ four income tax returns for the years 1961 through 1964; and testimony that such returns were checked, examined, and audited by the Internal Revenue Service. Appellees offered the income tax returns into evidence for the purposes of showing the value of the inventory of merchandise at the end of the four calendar years. The burden was upon the assured to prove the value of the merchandise at the time of the loss. Ap-pellees’ tax returns, properly identified, reflected appellees’ gross profit realized from the variety store. Cost of the goods sold, which would be the value of the merchandise lost by the fire, was determined by figuring the costs of the merchandise. To determine this amount, the beginning and closing inventory values were used. The income tax returns introduced into evidence reflected these inventories. The fire occurred some thirty-three days after the end of 1963, appellees’ fiscal year. Appellees’ accountant projected the inventory from December 31, 1963 to February 2, 1964 to determine an inventory at the time of the fire.

As a general rule, income tax returns are not wholly privileged documents, but are subject to discovery to the extent of relevancy and materiality which must be shown. Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434. Maresca v. Marks (Sup.Crt.) 362 S.W.2d 299. Martin v. Jenkins, Tex.Civ.App., 381 S.W.2d 115 (Ref. N.R.E.). The inventories shown in the income tax returns were a relevant and material element of proof to establish the value of the lost merchandise. The fact the tax returns were offered by appellees themselves, in our opinion, does not take their admissibility out of the scope of the general rule that tax returns are subject to discovery. Appellant urges there is a great difference between a determination as to whether an instrument or information is subject to discovery, and a determination as to whether an instrument or information is admissible in evidence in a trial of the case. We think the difference is more imaginary than real. We are not to be understood to be holding the tax returns here are admissible under the discovery rule. We do hold they are admissible, when offered by the taxpayer himself, to prove a relevant and material issue in the case. Appellant further urges that statements by Mrs. Hale and their accountant that the tax returns had been “checked”, “examined”, “audited” by the Internal Revenue Service were improper and prejudicial. Objections to the testimony that the tax returns were “audited” or “approved” by the Federal Government were sustained by the trial court. Mrs. Hale and the accountant, who prepared the returns, were permitted to testify the returns were checked and examined by the Internal Revenue Service from their own personal knowledge.

In support of its position appellant relies principally upon Cloud v. Zellers, 158 Tex. 253, 309 S.W.2d 806 and Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210. The Cloud case was a suit for personal injuries sustained when plaintiff’s automobile overturned as it entered a detour road constructed by the defendant. The Supreme Court held it was error to admit evidence that warning signs and flares maintained by the defendant met with the approval of the State Highway Department, and pleadings and direct testimony by the Highway Department’s District Engineer concerning its approval of the signs and flares. However, the Supreme Court held this was not a reversible error in view of adequate evidence to support findings of contributory negligence on the part of the plaintiff. The court concluded the admission of erroneous evidence was not calculated and probably did not cause the jury to give the answers it did on the issues which support the judgment entered. The Cloud case does not give support to appellant’s contention. There were no pleadings nor direct evidence that the inventory values found in appellees’ tax returns were approved, checked or examined by the Internal Revenue Service. The returns were examined and audited. There was additional evidence in the present case to support the jury finding as to value. “Inventory books” reflecting a sight inventory of the merchandise taken about December 31, 1963 was introduced into evidence. The accountant also determined the inventory value by the accounting methods previously mentioned. The results of these three methods of determining the inventories were substantially the same.

The Pittman case is not in point. That case, also a personal injury case, involved the question of whether a truck involved in the collision crossed the center line of the highway at the scene of the collision. The court there held the admission of testimony that most similar trucks which the witness had observed approaching the collision scene went across the center line, was reversible error. The court rejected the harmless error rule on the grounds it was a vital issue in the case, and the evidence introduced by both parties on the issue was fairly balanced. The evidence of the value of the merchandise was a vital question in this case, but the evidence of values placed on the merchandise by appellant’s witnesses was not sufficiently persuasive to make Rule 434, Texas Rules of Civil Procedure, inapplicable here. We conclude, as did the court in the Cloud case, that the admission of appellees’ income tax returns and the testimony pertaining thereto, under this record, was not reasonably calculated to and probably did not cause the rendition of an improper judgment.

The appellant next contends the trial court erred in refusing to submit the requested special issues inquiring if ap-pellees concealed from appellant a portion of their inventory records; and if so, was such concealment a material part of the records to establish the actual cash value of the merchandise lost. This contention is based on the fact only three of the four “Inventory books” were placed at the disposal of appellant’s agent prior to the trial. Mrs. Hale’s deposition was taken on August 3, 1965, ten days before the trial began. She was asked “Where are these figures, these inventory sheets, these schedules of inventory;”. She answered “We have just part of them”, and that the “rest of them * * * were destroyed in the fire”. No specific reference was made to the “inventory books”. It is conceded three of the inventory books were turned over to appellant’s representative prior to the trial along with their bank statements, cancelled checks and income tax returns, which were introduced into evidence in the trial. She testified the fourth inventory book was found when the debris from the fire was cleared, and that some of the inventory sheets were destroyed by the fire. This book was turned over to appellant’s agent during the trial and he had it in his possession during a 14-day recess called during the trial. There is no evidence to show when the fourth book was found, but that prior to the trial it had been turned over to appellees’ attorney. If it can be said concealment was an affirmative defense it was not pleaded. Rule 279, T.R. C.P. In our opinion the evidence does not raise the issue of concealment. The trial court properly refused to submit the requested issues. Alvey v. Goforth, Tex.Civ.App., 263 S.W.2d 313; refused on other grounds 153 Tex. 449, 271 S.W.2d 404.

Appellant next contends there is no evidence and insufficient evidence to support the jury finding that the actual cash value of the merchandise and fixtures at the time of the fire was $31,000.00. In reviewing these points of error, we must examine the record in accordance with the well-settled rules set out in In re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660. In passing upon the law question of no evidence, we must consider only the evidence favorable to the issue and disregard all evidence to the contrary. As previously stated, appellee attempted to prove the value of the merchandise by several means: inventories shown in four consecutive income tax returns filed prior to the fire; inventory books taken by sight count; and bank statements and deposits showing cost of merchandise. These instruments and documents were properly identified and authenticated. The wholesale value of the inventory taken from their inventory books was determined by taking 70% of the retail value, which represented the mark-up or sales price above the cost of the goods. The wholesale value was shown in all three methods used and each figure amounted to within a few hundred dollars of each other. The physical count of merchandise as of December 31, 1963 showed a retail price of $49,685.77. The wholesale or cost price was obtained by dividing that amount by 170, representing the 70% mark-up, which amounted to $29,226.96. The accountant, by his accounting methods determined the December, 1963 inventory to be $28,789.50 and his projected inventory on the date of the fire was $27,780.22. None of these inventory figures included the value of the store fixtures. Some of these fixtures, which were totally destroyed, were purchased in 1959 for $15,000.00. These fixtures appeared on the depreciation schedule of the 1963 tax return at a depreciated value as of December 31, 1963 of $4,199.49. We therefore conclude there was probative evidence to support the jury finding.

In reviewing all of the evidence, there was testimony from two witnesses produced by the appellant that the value of the merchandise was considerably less than that shown by appellees. Mr. Roberts, an expert witness, made an inspection for insurance purposes of appellees’ store in November, 1963. He testified the value of merchandise and fixtures at that time would not exceed $12,000.00. He did not count the merchandise nor inspect the records of ap-pellees nor make drawings or pictures of the store. In fact he testified his inspection required approximately fifteen minutes. Mr. Crews, an officer and representative of appellant company, inspected the fire and examined various records of appellees. From this inspection and investigation the value of the lost merchandise and fixtures he estimated the value to be $20,000.00. When all the evidence is considered, we are of the opinion the jury finding is not contrary to the great weight and preponderance of the evidence.

Appellant contends it was error in awarding interest on the judgment from June 24, 1964. Their position is there was no evidence appellee made a proof of loss or the date when it was made. In response to Requests for Admission, appellant admitted it was “timely and properly notified” of appellees’ loss by fire which occurred on or about February 2, 1964; and that it made an extensive investigation of the fire. Thus it is conceded proof of loss or notice of the loss was made, but there is no evidence when such notice was given. However, appellant filed its original answer on June 24, 1964 and expressly denied liability on the insurance policy. Interest begins to run from the date the loss should have been paid. Where the insuror denies liability, and the assured establishes the insurer's liability, interest will begin from the date of the denial of liability. Crutch-field v. St. Paul Fire & Marine Insurance Co., Tex.Civ.App., 306 S.W.2d 948. Alamo Casualty Co. v. Laird, Tex.Civ.App., 229 S.W.2d 214 (Ref. N.R.E.) St. Paul Fire & Marine Insurance Co. v. Westmoreland, Tex.Civ.App., 77 S.W.2d 265, affirmed 130 Tex. 65, 105 S.W.2d 203. The trial court correctly awarded interest from June 24, 1964, the date appellant denied liability.

Appellant complains of the language of the special issue submitted and its accompanying instruction. The jury was asked to determine “the actual cash value” of the merchandise and equipment at the time of the fire. The instruction defined “actual cash value” as “the actual cash value of the property at the time of the loss by fire, with proper deduction for depreciation, and which in no event shall exceed what it would cost to repair or replace the same with material of like kind and quality”. Appellant says the court did not properly place the burden upon appellees to prove the actual cash value by preponderance of the evidence; and complains of the court’s failure to instruct the jury the actual cash value referred to wholesale prices and replacement costs and not to retail prices. We overrule appellant’s contention. It is noted the special issue was prefaced with the phrase, “what do you find from a preponderance of the evidence”. This form of special issue properly placed the burden of proof upon appellee. Fidelity & Guaranty Fire Corporation v. Ormand, Tex.Civ.App., 62 S.W.2d 675 (Writ Dis.). Seinsheimer v. Burkhart, Tex.Civ.App., 93 S.W.2d 1231, affirmed 132 Tex. 336, 122 S.W.2d 1063. Imperial Underwriters v. Dillard, Tex.Civ.App., 146 S.W.2d 1105 (Writ Ref.). The court’s instruction was given in almost the exact language of the policy and was proper. Fidelity & Guaranty Fire Corporation v. Ormand (Supra) ; Crombie & Company v. Employers Fire Insurance Co. of Boston, Tex.Civ.App., 250 S.W.2d 472 Ref. N.R.E.). All evidence presented pertaining to the value of the merchandise was on a wholesale or cost basis. No retail prices were used except when those prices were divided by 170 to determine the cost price by taking into account the store’s 70% mark-up. There could be no confusion in this regard in the minds of the jury.

Lastly, appellant claims error when the trial court permitted appellees’’ attorney, over its objection, to question appellant’s representative in regard to premiums charged on the insurance policies sued upon here and a comparison to those rates charged upon policies cancelled by another insurance company. Copies of portions of the cancelled policies containing the rates, were introduced into evidence by appellant, and those rates along with the rates of the policies sued upon were in evidence. This testimony was not material, but we cannot say its admission was prejudicial to appellant and does not reflect reversible error.

All points of error are overruled and the judgment of the trial court is affirmed.


text:
    Morin M. SCOTT, Appellant, v. F. T. BEAVER et al., Appellees.
    No. 11420.
    Court of Civil Appeals of Texas. Austin.
    July 6, 1966.
    Rehearing Denied Aug. 24, 1966.
    Meyers, Shannon & Armstrong, James R. Meyers, Austin, for appellant.
    Blanks, Thigpin, Logan, Steib & Lewis, John D. Logan, S. Ancial'Middlebrook, San Angelo, for appellees.
   HUGHES, Justice.

This is a venue case in which F. T. Beaver and Celina Beaver, appellees, sued Morin M. Scott on a promissory note executed by Mr. Scott, such note being payable, in installments, in Tom Green County, the county of suit.

Appellant pleaded his privilege to be sued in Travis County, the county of his residence. This plea was overruled, and this appeal followed.

Appellant has one point of error which is that appellees having failed to allege an obligation binding on him venue in Tom Green County was improperly laid under Sub. 5, Art. 1995, Vernon’s Ann.Tex.Civ.St.

The note declared upon was for the principal sum of $445,000.00, however, it contained this provision:

“The maker’s personal liability hereunder is limited to the sum of One Hundred Eight Thousand Dollars ($108,000.-00) being the payment due under the terms hereof from October 15, 1964, to and including September 15, 1967.”

Appellees pleaded in their Original Petition that appellant had paid $33,000.00 on the note, principal and interest, but had failed and refused to make further payments thereon, and that they, as provided in the note, accelerated payment of the installments and declared the entire balance on the note due and payable, and that payment by appellant was refused.

Appellees also made this allegation

“Plaintiffs would further show that said note was partially secured by a mortgage and deed of trust on certain real estate in Tom Green County, Texas and by a chattel mortgage on certain personal property in said County. Said deed of trust and mortgage have been duly foreclosed and the property sold for $175,000.-00, for which amount defendant is entitled to be credited on his said note.”

Appellees prayed for judgment in the sum of $301,802.84, inclusive of 10% attorney’s fees, and for interest on such sum from October 7, 1965.

Appellant’s plea of privilege was formal. Appellees’ controverting affidavit alleged venue under Sub. #5, Art. 1995, by reason of the execution of the note payable in Tom Green County, as above described. They incorporated, by reference, the allegations made in their original petition and averred their verity.

It is the view of appellant that appellees have failed to allege or prove that appellant is liable on the note in suit or that by reason thereof that he is under any obligation to pay appellant any sum of money in Tom Green County, or elsewhere. Appellees dispute this contention.

It is our opinion that this is a matter which goes to the merits of the controversy and is one irrelevant to the issue of venue, and is also a matter upon which we should not comment at this juncture.

A question very similar to the one here presented was before this Court in Knight v. Puett, Tex.Civ.App., 277 S.W.2d 172, n. w. h., where we held, Chief Justice Archer writing, that validity of the obligation sued upon was not a proper inquiry in a venue proceeding under Sub. 5, Art. 1995. An obligation which is invalid is, of course, no obligation. This is precisely appellant’s contention here, that no obligation had been pled or proved against him.

It is not essential, under Sub. 5, that the existence of a cause of action be established. Petroleum Producers Company v. Steffens, 139 Tex. 257, 162 S.W.2d 698.

Sub. 5, Art. 1995, provides, in part, that if a person has contracted to perform an- obligation" in a particular county “suit upon or by reason of such obligation,” may be brought in the county of performance. ■

The note executed by appellant purports to bind him to pay money in Tom Green County. This suit is upon and by reason of such purported obligation, and Tom Green County has venue of it. Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810 and the many cases cited in McDonald, Texas Civil Practice, Vol. 1, Sec. 4.11.1.

Appellant relies upon our opinion in Kendrick v. Mackey, Tex.Civ.App., 204 S.W.2d 394. Suit there was to recover on a contract to drill an oil well. Plaintiff sought to sustain venue in the county of suit under the written contract. The contention was made that the written contract had been superseded by a verbal contract, and we sustained this contention, however, as to the written contract we held that it did not stipulate where the payments under it were to be made. This case could not be in point here.

The judgment of the trial court is affirmed.

Affirmed.


text:
    COLEMAN FURNITURE CORPORATION, Appellant, v. Della Burk LIEURANCE, Appellee.
    No. 7632.
    Court of Civil Appeals of Texas. Amarillo.
    July 5, 1966.
    Rehearing Denied Aug. 8, 1966.
    Lumpkin, Watson & Smith, Amarillo, for appellant.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellee.
   DENTON, Chief Justice.

This suit, filed by appellant Coleman Furniture Corporation, seeks recovery from Della Burk Lieurance individually for furniture sold by the plaintiff. The suit alleges two counts: that the defendant below individually guaranteed in writing the payment for merchandise sold to Amarillo Furniture Company, Inc.; and that Coleman sold the merchandise to Mrs. Lieurance through her alter ego, American Furniture, Inc., relying on her individual credit based on her false and fraudulent representations to Coleman who relied on such representations. On January 7, 1964 Coleman was granted a summary judgment against Amarillo Furniture Company for this same merchandise. A non-suit was taken against Mrs. Lieurance. The present suit was filed approximately a year later. The trial court instructed a verdict for Mrs. Lieurance and Coleman Furniture appeals.

Amarillo Furniture Company, Inc. was incorporated in 1952. Mrs. Lieurance, the president, acted as its general manager. She did most of the hiring and firing of the employees and ordered most of the merchandise. The Coleman company had done business with Amarillo Furniture since 1944 and had sold the company thousands of dollars worth of furniture during that period. The two invoices sued upon here were dated December 10, 1962 for $3612.40 and March 5, 1963 for $1157.65. The basic question is whether or not Mrs. Lieurance is personally liable for the indebtedness.

On an appeal from a judgment on an instructed verdict the appellate court must review the evidence in the light most favorable to the plaintiff, disregarding all conflicts and indulging every intendment reasonably deducible from the evidence in favor of the losing party. 4 Tex.Jur.2d, Appeal and Error — Civil, Section 835, page 384 and the authorities cited therein.

We will first consider appellant’s asserted cause of action of an alleged guaranty by Mrs. Lieurance to be personally responsible for the payments for the merchandise. It is uncontradicted the merchandise was charged and billed to Amarillo Furniture Company and none had been charged or billed to Mrs. Lieurance individually. On January 25, 1962 Mrs. Lieurance wrote Mr. Gunn of the Coleman Company, the following letter:

“I received your letter concerning my credit with your company.
“I ordered this furniture in good faith. Nor did I buy any other. I need this furniture. I will take care of it. I will make a special effort — now, tell me what you want me to do.
“Thank you for all past considerations.
Sincerely,
Della Burk Lieurance”
A letter of June 1, 1963 also addressed to Mr. Gunn reads as follows:
“I am sorry to be slow — but am having a tough time getting money in as fast as I should. I will send some this month and —will take care of the balance.
“Thank you.
Sincerely,
Della Burk Lieurance”

A guaranty is an undertaking by one person to be answerable for the payment of some debt or the performance of some contract or duty by another person, who himself remains liable. Wood v. Canfield Paper Company, 117 Tex. 399, 5 S.W.2d 748.

Business relations between the parties hereto had existed since 1944. Mr. Gunn, Coleman’s secretary and assistant treasurer, testified by deposition. His duties included approval of credit of purchases on open account. He testified: “I approved the credit on this particular order based on my previous experiences with Amarillo Furniture Company and Della Burk Lieurance. Having done business with Mrs. Lieurance for a number of years, and having met her on several occasions and discussed her financial affairs, I was of the opinion Mrs. Lieurance owned Amarillo Furniture Company and that she herself in previous years had assured me that she might at times be slow in paying her bills, but I actually had no worry concerning her account.” He stated that Mrs. Lieurance’s letter dated January 25, 1962 caused his company “to believe that the sale of goods to Amarillo Furniture Company on an open account would be paid personally” by Mrs. Lieurance. He further stated: “After reading the letter from Della Burk Lieurance of June 1, 1963, I felt confident that she would personally see that I suffered no loss on her account”. Mr. Gunn “thought she (Mrs. Lieurance) was the sole owner of this business because she indicated to me in previous conversations that she was the sole owner”. His testimony was that if he had not felt she was the sole owner of the business, “I would have never shipped merchandise on open account”.

Both letters quoted here and referred to by Mr. Gunn were signed by Della Burk Lieurance as an individual. Her full name was printed directly below the company name on the letterhead. Throughout both letters she repeatedly used the pronoun “I”. Such phrases as: “I ordered the furniture”; “I will take care of it”; “I will make a special effort”; “I am sorry to be slow”; “I will send some, this month and — will take care of the balance” dominate both letters. They obviously denote personal participation in the transactions between the parties.

As in any other undertaking, a contract of guaranty may be made unilateral or bilateral. A unilateral guaranty creates a duty on only one party, the guarantor, as where an offer of guaranty for payment for goods sought to be purchased by the principal obligor is made subject to acceptance by the seller by the delivery of the goods. 27 Tex.Jur.2d, Guaranty, Section 18, page 292. Although consideration is essential to the enforcement of a cóntract of guaranty, it has been held the actual delivery of goods in return for a promise of guaranty of payment is itself sufficient consideration. Richardson v. Sanger Brothers (Tex.Civ.App.), 283 S.W. 249; Gieb v. Goebel Brewing Company (Tex.Civ.App.), 176 S.W.2d 975; (Error Ref. W. O. M.).

When the evidence is viewed in the light most favorable to the appellant, we have reached the conclusion that the evidence mentioned, together with the reasonable inferences therefrom, raised fact issues as to a guaranty of payment by Mrs. Lieurance; as well as alleged representations by her and reliances thereon by appellant as to her individual credit. We are of the opinion there was some evidence of probative value to support appellant’s allegations, and such issues should have been submitted to the jury.

The judgment of the trial court is reversed and the cause is remanded.


author: WADDILL, Commissioner.

text:
    Mitchell HOOD, Appellant, v. COLDWAY CARRIERS, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 15, 1965.
    Rehearing Denied Sept. 16, 1966.
    Rudy Yessin, Frankfort, J. D. Raine, Louisville, for appellant.
    Hugo Taustine, Edward M. Post, Taus-tine, Post & Berman, Louisville, for ap-pellees.
   WADDILL, Commissioner.

Elmer Geiger brought this action against appellant, Mitchell Hood, to enforce a $6500 judgment which he had obtained against Hood in the state of Pennsylvania. By answer Hood denied that Pennsylvania court had obtained personal jurisdiction of him. He also filed third-party complaints against appellees, Coldway Carriers, Inc., and American Fidelity Casualty Company (hereinafter Coldway Carriers, Inc. will be referred to as Coldway and American Fidelity Casualty Company will be called American) seeking indemnity under a policy of insurance issued to Coldway by American and alleging that American could not deny its liability because it had defended the Pennsylvania suit.

The record in the Pennsylvania suit was made an exhibit in the instant action and shows that service of process was obtained on Hood. He then withdrew his defense to Geiger’s complaint and judgment was entered for Geiger against Hood. American and Coldway moved for summary judgment on the ground that American’s policy did not cover Hood. This motion was sustained, judgment was entered and Hood appeals. Only this latter judgment is before us.

On June 13, 1956, Hood, as the owner of certain tractors and trailers, entered into an agreement with Coldway to lease them to Coldway to be used in the fulfillment of Coldway’s hauling contract with Pillsbury Mills, Inc., in Downingtown, Pennsylvania. Under the leasing agreement Hood was to furnish drivers for these tractors. On December 4,1956, one of the leased vehicles, while operated in Pennsylvania by an. employee of Hood, injured Geiger. At that time Coldway was insured under the policy issued by American. When Geiger sued Hood, attorneys for American appeared and defended the suit for Hood.

American admits that the vehicle involved in this accident was covered under its policy with Coldway but contends that Hood, the owner of the leased vehicle, was not covered by its insurance policy under the following provision:

“ * * * in no event does this policy cover the owner, lessor or driver of the hired vehicle or vehicles.”

The dispositive question is whether American is precluded from asserting that Hood was not covered by the policy since it had defended the suit against him without first securing a reservation of rights. (Inasmuch as Hood pleaded reasons why an alleged reservation of rights, which American relied upon in the subject action, is of no legal effect, American concedes that in reviewing the correctness of the summary judgment we must assume it does not constitute a defense to the instant action).

As a general rule when an insurer undertakes to defend an insured with knowledge that the policy does not make it liable for any loss, the insurer is estopped to deny liability. American Casualty Company of Reading, Pennsylvania v. Shely, 314 Ky. 80, 234 S.W.2d 303; 7 Am.Jur.2d, Section 171, page 503. American points out that estoppel is premised on prejudice. It is argued that Hood could not have been prejudiced since in his deposition he denied that he had any actual knowledge of the suit filed against him in Pennsylvania. American reasons that since Hood didn’t know of the suit he wouldn’t have defended it; therefore, he was not prejudiced by their representing him in Pennsylvania and the doctrine of estoppel could not be invoked. However, in the Shely case (supra) we held:

“ * * * The loss of a right to control and manage one’s own case is itself a prejudice.”

Moreover, when American defended the Pennsylvania suit it knew the circumstances that gave rise to the accident as well as the provision of its policy upon which it could have denied liability. Hence we conclude that, having defended the suit against Hood without obtaining a reservation of its rights, American will not be permitted to deny liability for the judgment against Hood either under the doctrine of estoppel or waiver. American Casualty Company of Reading, Pennsylvania v. Shely (supra); Bates v. Grain Dealers National Mutual Fire Ins. Co., Ky., 283 S.W.2d 3.

American also contends that while a defense of forfeiture may be lost by application of the doctrine of estoppel or waiver, it may not be invoked to extend coverage in the instant case to the owner of a leased vehicle.

This Court has previously held that the defense of non-coverage may be lost by the insurance carrier under facts similar to those appearing here. American Casualty Company of Reading Pennsylvania v. Shely (supra). See also 7A Appleman Insurance Law & Practice, Section 4692; 38 A.L.R. 2d Anno. 1148. We have decided to adhere to the principle of law set forth in the Shely case.

We conclude that the defense of non-coverage was lost by American unless preserved by the alleged reservation of rights. Accordingly it was error to enter a summary judgment.

The judgment is reversed and the case is remanded to the trial court with directions to overrule the motion for summary judgment.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Garrett S. CLAYPOOL et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Rehearing Denied Sept. 16, 1966.

      Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Deddo G. Lynn, Lexington, for appellant.
    Rufus Lisle, Harbison, Kessinger, Lisle & Bush, Lexington, for appellees.
   PALMORE, Judge.

The appellees, Garrett S. Claypool and wife, owned a 52.38-acre horse farm fronting on the east side of Russell Cave Road just north of Lexington in Fayette County. On January 14, 1963, the appellant highway department condemned the corporeal title to 11.63 acres of it for the construction of 1-64 and 1-75, a controlled access thoroughfare, and a .68-acre permanent easement along the front of the property for the widening of Russell Cave Road. The highway department appeals from an award of $75,567 (plus $35 for a temporary easement about which there is no dispute).

The 11.63-acre taking consisted of a swath running from the northwest corner to the southeast corner of the farm, leaving a triangular tract to the south and a more or less triangular tract to the north, which for the sake of clarity we shall call the south tract and the north tract. The south tract continues to front on the Russell Cave Road and runs back to a point. The westerly point of the north tract has been cut off from Russell Cave Road, and this remainder portion is left with one means of access, the “stubbed-in” street of a residential subdivision adjoining the east or rear boundary of the farm. The streets of the subdivision are accessible from U.S. 27, or the Paris Pike, which is some distance farther east.

The serious questions in the case arise out of the trial court’s disposition of certain motions to strike testimony. Specifically, the state complains that the court committed prejudicial error in striking its witness Harper’s testimony as to “after” value and in declining to strike the “after” value testimony of the landowner Claypool and his witnesses Jefferson and Palumbo. We shall discuss these in reverse order.

The landowner and his valuation witnesses gave to the north and south tracts a lesser per acre value after the taking than before because of their smaller size and irregular configuration, rendering them less adaptable to economical subdivision development. Each of them assigned a still lesser value to the north tract because it no longer had access to Russell Cave Road, and it was on this ground that the state in each instance moved to strike the after-value testimony.

There is much force in the argument that loss or impairment of access to a particular highway is difficult if not impossible to separate from other factors resulting in diminished value of a remainder tract in the instance of a partial taking. Nevertheless, the value imparted to private property by a public highway has been put there at public expense, and this court has committed itself to the principle that what the public has given the public can, within reason, take away. Cf. Commonwealth, Dept. of Highways v. Denny, Ky., 385 S.W.2d 776 (1964) ; Commonwealth, Dept. of Highways v. Prewitt, Ky., 390 S.W.2d 898 (1965). It is our conclusion, therefore, that the testimony should have been stricken subject to an opportunity on the part of counsel for the landowners to elicit from the witnesses revised estimates based on the hypothesis of what the value would have been if the property still had direct access to the Russell Cave Road. Cf. Commonwealth, Dept. of Highways v. Mayes, Ky., 388 S.W.2d 125, 127 (1965).

In this connection, it is our further observation that instead of resting at ease on his overruled motions to strike, counsel for the state should have pursued the subject with the witnesses (by way of avowal, if necessary) to the point of establishing the amount of difference attributed by them to the erroneous factor — that is, what would have been the market value of the north tract if a direct access to Russell Cave Road had been provided? This procedure would have made it easier to determine whether the errors were prejudicial. As it is, we are able nevertheless to say there actually was prejudice because the differences per acre in after values assigned by the witnesses in question to the north and south tracts, based largely if not solely on the access factor, were quite substantial.

The witness Harper, appearing for the state, said that in his opinion the property had a market value of $157,140 before the taking and $101,875 afterward, for a difference of $55,265. The ruling of which complaint is made came about as follows (on cross-examination):

Q — “Now in getting this after-value you gave one example which you said was in May, a sale in May of 1963. How did you happen to have that sale when you were making this appraisal back in ’62?”
A — “Well, I was making my after-value appraisal in arriving at this sale. Now there is a difference in before-value and after-value, but I am trying to determine in my after-value what it is worth after, nor before.”
Q — “After what? Immediately after the taking?”
A — “After the road is completed according to the plans.”
MR. LISLE: “I move that his testimony be excluded as to after-value.” ■
THE COURT: “I will have to sustain the objection on that. His testimony as to the after-value is excluded from the jury’s consideration.”
MR. LISLE: “That’s all.”
(There was a conference at the bench, out of the hearing of the jury.)
Redirect Examination by Mr. Lynn:
Q — “Mr. Harper, when did you make your appraisal of this property after the taking ?”
A — “At the same time that I made the appraisal of before-value.”
Q — “As of what date, Mr. Harper?”
A — “As of January of 1963.”
Q — “Have you changed that opinion since the original appraisal?”
A — “No sir.”
MR. SMITH: “The Commonwealth objects to the ruling of the court striking the after-value of the witness Charles Harper for the reason that the attorney for the Commonwealth asked permission of the court to re-examine this witness with regard to the date upon which he made his appraisal of the after-value of the property and whether or not the sales he has examined since the taking of the right of way affected in any way his opinion arrived at when his appraisal was made.”

From a strictly literal standpoint, the answer given by Harper just prior to the motion to strike does connote that he was attempting to evaluate the property as of a time immediately subsequent to completion of the project as distinguished from the date of the taking, and the additional questioning by counsel for the state accomplished very little in the way of clarification or correction. It is our feeling that counsel on both sides were somewhat remiss in the latter respect. The striking of vital testimony is an extreme measure. It ought never to occur if things can be put back on an even keel through an appropriate admonition and further questioning of the witness. The motion to strike device has been ridden to death in the horde of condemnation appeals this court has entertained in recent years. Almost uniformly the condemnor has been the offender, but in this case we have a new twist, in that the state finds itself on the wrong end of its favorite sword.

Though it is not the responsibility of a lawyer to practice his adversary’s case, we think that when he develops an apparent flaw or fallacy in a witness’s testimony on cross-examination he should explore it fully and fairly, that there may be neither mistake, misapprehension nor misunderstanding. For example, in this particular instance we cannot tell for sure what Harper meant. It would have been a simple matter for either of the lawyers (or the judge) to ask him to forget about the time of completion of the project and state specifically what in his opinion the property was worth immediately after the taking. Our guess is that he would have given the same figure, and there would have been no. problem. Or, had he proved actually to be off course, he could have corrected his estimate and the jury could have been admonished not to consider the incorrect one.

We have made the foregoing comments because this case happens to present a convenient opportunity to dispel a persistent misconception as to the proper use of motions to strike testimony, particularly in condemnation cases. It is unnecessary to decide the question of error, because it should not recur in another trial of the case. However, one further phase of the problem requires comment. It arises from the state’s contention that Harper’s testimony was proper anyway, in that the correct measure of damages was the difference in market value before the taking and after completion of the project.

In at least two highway condemnation cases, Commonwealth, Dept. of Highways v. Baldwin, 312 Ky. 782, 229 S.W.2d 744, 746 (1950), and Commonwealth, Dept. of Highways v. Wood, Ky., 380 S.W.2d 73, 74 (1964), this court has remarked that the measure of damages is the difference between the fair market value of the property before it was generally known that the highway would be constructed and its fair market value just after its completion. It would appear from the supporting authorities cited in those two opinions that the measure of damages as thus stated grew out of cases in which property was damaged by the creation of a condition, or the building of a structure, and not purely and simply by a partial taking. For example, in Watson v. Chesapeake & O. Ry. Co., 238 Ky. 31, 36 S.W.2d 641 (1931), the damage resulted from a change in grade and number of railroad tracks situated in a public alley. Likewise in Hutcherson v. Louisville & N. R. Co., 247 Ky. 317, 57 S.W.2d 12 (1933), it resulted from the relocation and reconstruction of railroad tracks on Broadway in Frankfort. And in City of Ashland v. Queen, 254 Ky. 329, 71 S.W.2d 650 (1934), it was caused by the construction of a viaduct on the public right-of-way. In that type of case it is appropriate to measure the damages after the work has been done; indeed, since there is no taking there can be no damage until that time. However, it is not appropriate in condemnation cases, and to the extent that Commonwealth, Dept. of Highways v. Baldwin, 312 Ky. 782, 229 S.W.2d 744, 746 (1950), and Commonwealth, Dept. of Highways v. Wood, Ky., 380 S.W.2d 73, 74 (1964), indicate otherwise they are overruled.

The correct measure of damages for a partial taking in a land condemnation case is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the remaining property immediately after the taking. Cf. Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302, 306 (1965). In determining the value after the taking the witnesses and the jury may, of course, take into consideration, in the same manner as would a willing buyer and a willing seller, the probable completion of the improvement project as planned. That is the only respect in which the condition or situation in which the property will be after completion of the project is relevant to its value immediately after the taking.

The state makes a further argument that the witness Palumbo’s testimony was devoid of probative weight and should have been stricken because instead of fixing definite figures he estimated the after-value of the south tract within a range of $1500 to $2000 per acre and the north tract within a range of $500 to $1500. We do not agree.

The evidence as a whole was amply sufficient to sustain the amount of the award against the contention that it was excessive.

The judgment is reversed with directions for a new trial.


author: HILL, Judge. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. W. T. JEWELL et al., Appellees.
    Court of Appeals of Kentucky.
    March 25, 1966.
    Rehearing Denied Sept. 16, 1966.

      Robert Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Tildón McMasters, Dept, of Highways, Elizabethtown, for appellant.
    Chas. R. Richardson, Richardson & Goodman, Munfordville, for appellees.
   HILL, Judge.

No part of appellees’ 90-acre farm is taken by the construction of highway 1-65 through Hart County, but their only access road, a gravel and dirt public passway, has been permanently obstructed by the building of 1-65 without an overpass or underpass. The judgment entered on the verdict amounts to $6,500. The county court commissioners awarded $2,000.

For reversal appellant charges that (1) the trial court committed error in overruling its motion that the jury be sent to view the farm, (2) evidence without probative value was admitted, (3) the trial court committed prejudicial error in refusing to allow appellant to show by the landowner on cross-examination the amount paid for the farm twelve years before the trial, and (4) the amount of the verdict was excessive.

Before discussing the legal questions, it may be well to note that appellees’ farm has no buildings; about half of it is in timber; it is assigned a one-half acre tobacco base; there is testimony that there are about 1,500 cedar posts, five inches through, available for cutting; and that a twenty-acre tract is cleared cropland.

The two witnesses for appellant fixed the difference between before and after values of the farm at $1,000 and $775, while two witnesses for appellees fixed the difference at $8,500 and $8,000.

First to the question of the action of the trial court overruling appellant’s motion that the jury view the farm. KRS 177.087 makes it mandatory that the jury be allowed to view the premises on motion of either party. Commonwealth, Department of Highways v. Farra, Ky., 338 S.W.2d 696. Even so, there may be unusual or extreme circumstances, such as in the present case, in which the court may have discretion.

It was contended by appellees in resistance to the appellant’s motion for the jury to view the land that the route necessary for the jury to take to see the farm was rough and inaccessible and that some of the jurors including one woman were physically unable to make the journey of two miles or more over fences and rough terrain. Appellant countered with the suggestion that the permanent fence along 1-65 should have been cut and the jury allowed to “pass over Jordan,” thence through the woods and rough roads to the farm. Under the difficult circumstances, we think the trial judge had a discretion and did not abuse it in overruling appellant’s motion notwithstanding the use of the word “shall” in connection with the statutory right of either litigant to have the jury view the land affected by condemnation.

It is next stated in appellant’s brief that “Rev. Jewell’s after value of zero, and Judge Cottrell’s and Mr. Reynold’s after value of $1000 are so incredible and contrary to common knowledge as to be without evidentiary value.”

It is interesting to note that appellant’s brief also listed the after value of the two Commonwealth witnesses at $1,700 and $1,475. So there isn’t a great deal of difference between the evidence of ap-pellees and that for appellant on the after value except for that of the Reverend Mr. Jewell. We must conclude his evidence was without probative value. In fact, his evidence was incredible and absurd. It is common knowledge that ninety acres of land located anywhere in Kentucky has some value. Moreover, if the farm contains the timber testified to by appellees, they have a right under KRS 381.580 to acquire a passway over other land. (Incidentally, from the evidence it is only 4,000 feet from the east boundary of appellees’ farm to another road, the Wabash-Upton Road, a much better one than that destroyed by appellant according to the affidavits filed in resistance to motion to have the jury view the premises.) We think the evidence of Judge Cottrell and Mr. Reynolds had some evidentiary value, and it fell the lot of the jury to weigh it against the appellant’s evidence. The testimony of the Reverend Mr. Jewell on after value should have been stricken. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963).

The third argument of appellant maintains that the trial court erred in refusing to allow appellant to prove by ap-pellee Rev. W. T. Jewell what he paid for the farm twelve years before. There was no avowal or request that the witness be allowed to answer in the absence of the jury as CR 43.10 plainly outlines. The procedure outlined by CR 43.10 had been required by opinions of this court long before the adoption of the present civil rules of procedure. Cf. Globe Indemnity Co. v. Daviess, 251 Ky. 442, 65 S.W.2d 456; Robertson v. Commonwealth, 269 Ky. 317, 107 S.W.2d 292; East Kentucky Rural Electric Coop. Corp. v. Smith, Ky., 310 S.W.2d 535. Also by many later cases including the most recent one of Commonwealth, Department of Highways v. Cottrell, Ky., 400 S.W.2d 228 (1966).

Finally, it is suggested the amount of the verdict was excessive, and we agree it was.

We do not have the benefit of the assessed valuation of the farm; nor do we have the benefit of its last sale price, even though it was twelve years before the trial of this case. The fact remains, though, that not an inch of appellees’ property has been taken. No fences, if there were any on the land, have been disturbed. It is only 4,000 feet to the Wabash-Upton Road, and an easement fifteen feet wide would require only 60,000 square feet, or a little over one acre, the cost of which would not be very great. We consider $6,500 for the easement taken to be palpably excessive. Cf. Ballard v. King, Ky., 373 S.W.2d 591 (1963).

The judgment is reversed for a new trial.

MOREMEN, C. J., and MONTGOMERY, J., dissent.

MONTGOMERY, Judge

(dissenting).

I cannot agree with the part of the majority opinion that holds that it is within the trial judge’s discretion whether the jury should be permitted to view the property. KRS 177.087, in mandatory language, says that the “jury, on the application of either party, shall be sent by the court, * * * to view the land and material.”

“Shall” as used in statutes is usually indicative that the requirement is mandatory. Skaggs v. Fyffe, 266 Ky. 337, 98 S.W.2d 884. This court has repeatedly held that “shall” as used in KRS 177.087 is mandatory. Commonwealth, Department of Highways v. Farra, Ky., 338 S.W.2d 696; Commonwealth, Department of Highways v. Houchins, Ky., 380 S.W.2d 95; Commonwealth, Department of Highways v. Hackworth, Ky., 383 S.W.2d 372. When a mandatory statute, as KRS 177.087 has been so construed, is invoked, courts have no discretion in its administration except to enforce it as written. Campbell v. Little, 251 Ky. 812, 66 S.W.2d 67. “Courts” include trial and appellate courts. The majority opinion is in error in holding that the trial court had a discretion in the matter in the absence of a showing of destruction or such change in the property as would render viewing futile. Here, there was no change in the property. The failure to send the jury to view the property was prejudicial in view of this court’s conclusion that the verdict was excessive.

This destructive step removes another precedent which has been a guide in the construction of laws and legal documents. If this part of the opinion is permitted to stand, by what precedent may a lawyer determine whether language is mandatory or permissive? Instead of destroying precedents it seems that their preservation as a means of protecting the stability of the law should be guarded. There is so much destruction of precedent now that the stability of the law is in danger.

For this reason I respectfully dissent in part from the majority opinion.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Owen ROBERTS et al., Appellees.
    Court of Appeals of Kentucky.
    June 10, 1966.
    Rehearing Denied Sept. 19, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Sp. Asst. Atty. Gen., C. E. Skidmore, Frankfort, for appellant.
    Calvin Ray Robinson, David C. Brodie, Owensboro, for appellees Roberts.
    B. C. Green, Green & Connor, Owens-boro, for appellee, Owensboro Federal Savings & Loan Ass’n.
   CLAY, Commissioner.

Plaintiff appellees brought this suit to quiet their title to a 20-foot strip of land adjoining the right of way on U. S. 60 in Daviess County. On motion for summary judgment the circuit court found for the plaintiffs and adjudged that the Commonwealth’s interest in this strip had been a temporary easement, which interest had reverted to the plaintiffs by reason of nonuser.

In 19,26 plaintiffs’ predecessor in title had conveyed to the Commonwealth by “General Warranty Deed” what purported to be title to two strips of land running through the grantor’s property. The first strip was 60 feet in width and was described general-1ly by metes and bounds. After fixing the width at 60 feet, the deed contained the words “except as hereinafter stipulated”.

Later in the deed appears the following:

“It is further agreed that due to the height of fill or depth of cut, widths additional to the above minimum widths are hereby granted as follows: Between Sta 5541/21 and Sta 5559/62, 20 feet on west side of road.”

Near the end of the deed is the provision :

“It is further agreed that, in the event said tract of land ceases to be used as a public highway, ownership of the property shall revert to the party of the first part”.

It is the contention of plaintiffs, upheld by the trial court, that the conveyance of the 20-foot strip created only a temporary easement and that it was extinguished by the passage of time. We can find nothing whatever in the deed which differentiates between the rights conveyed to the Commonwealth in the 60-foot strip and the 20-foot strip.

It is contended that the reference to the “fill” and “cut” indicates the 20-foot strip was needed only for some temporary purpose, but there seems no justification for such surmise. (This area may have been needed permanently for a fill or cut.) It is also said that the Highway Department maps in Frankfort show that the words “for borrow” were written in the area marking the 20-foot strip. A borrow pit may be either temporary or permanent. It is said that the reversion clause above quoted (which refers to '“said tract of land”) relates only to the 20-foot strip and denotes its temporary character. This clause cannot be construed as relating only to the 20-foot strip. Obviously it relates to the 60-foot strip as' well. The interest held by the Conjmonwealth in both reverts under the same condition.

As we have said, there is simply nothing in the deed which characterizes the grant of the 20-foot strip as a temporary easement. If that was the intention of the parties, certainly it would have been so described. Also some terminating time or condition (short of ultimate reversion) would have been specified. Neither appears in the deed.

The apparent justification for making separate references to the 60-foot strip and the 20-foot strip was that the additional 20 feet were needed only on one side of the road and did not extend the entire length of the easement.

In our opinion the trial court erroneously construed the deed as granting a temporary easement in the strip in controversy.

Additional issues of nonuser, abandonment and estoppel have been raised in the pleadings and the briefs. In view of the trial court’s finding, it was unnecessary to resolve these issues, and we will not undertake to decide their legal sufficiency. To the extent material questions of fact must be resolved, if any, these issues should be tried, with the trial court permitting such further pleadings as may be necessary and proper. The cross-claim of Owensboro Federal Savings and Loan Association should also be adjudicated.

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


author: CULLEN, Commissioner.

text:
    Erin Robert RUSSELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    April 29,1966.
    Rehearing Denied Sept. 16, 1966.

      John W. Beard, Bratcher, Rummage, Beard & Flaherty, Owensboro, for appellant.
    Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Under a two-count indictment, Erin Robert Russell was found guilty of operating a game of chance and of selling liquor without a license, third offense. He was fined $500 and sentenced to one year in the penitentiary on the gaming charge, and was sentenced to three years in the penitentiary on the liquor charge. Russell previously had received two five-year sentences on other charges, and the judgment in the instant case directed that all of the sentences be served consecutively. Appealing from the judgment, Russell asserts eight alleged errors. We find no merit in any of the grounds of error and we shall state our opinion in summary form.

1.

The court did not err in overruling Russell’s motion for a change of venue. The motion was not filed until the morning of the trial, and no previous notice of the motion was given. Two previous trial dates had been set and on both occasions there had been a continuance. There was no claim that the alleged prejudicial conditions in the county were of recent origin or of recent discovery, so as to supply an excuse for Russell’s not having earlier made the motion and not having given reasonable notice as required by KRS 452.220. Under these circumstances the trial court properly overruled the motion. See Shelton v. Commonwealth, 280 Ky. 733, 134 S.W.2d 653.

2.

The trial court properly overruled Russell’s motion to dismiss the indictment, which motion was based on the alleged fact that the grand jury did not have sufficient evidence before it upon which to base an indictment. Under RCr 5.10 this is not a ground for quashing an indictment.

3.

The trial court properly refused to grant a continuance on account of the claimed unavailability of Russell’s wife as a witness, and properly refused to allow Russell’s affidavit to be read as the deposition of his wife. The interrogation of the wife’s doctor disclosed that the wife was physically able to be present and give testimony in open court, but that the experience might cause her to become emotionally upset. Russell had ample knowledge of the alleged condition for a substantial period of time before the trial date, so he could have arranged to have his wife’s deposition taken. The court was justified in its ruling on either of two grounds—that due diligence had not been used to obtain the evidence or that the witness was capable of giving testimony in open court and therefore was not excusably absent.

4.

The evidence for the Commonwealth was that the alleged sale of liquor and the operation of the game of chance were simultaneous—that the person to whom the liquor was sold also bought a chance on a punch board. We think the offenses properly were charged in the same indictment under the provision of RCr 6.18 authorizing such to be done “if the offenses are of the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan.” Being properly joined in the indictment they properly were tried together, in the absence of a showing of special prejudice. RCr 9.12, 9.16.

S, 6 and 7.

As a matter of law there was no entrapment of the defendant. The testimony of the police officer was competent and it was acceptable and sufficient to support the convictions. The defendant was not entitled to an instruction on entrapment.

The mere fact that the police officer went to the home of the defendant (who was a “two-time loser” as a bootlegger) with the specific intent to secure evidence of unlawful sale of liquor, that he requested the defendant to sell him some liquor, and that he misrepresented his identity, does not establish a case of entrapment. See Helton v. Commonwealth, Ky., 307 S.W.2d 209 ; 21 Am.Jur.2d, Criminal Law, Sec. 145, p. 215.

8.

The complaint that the penalties are so severe as to indicate prejudice is without merit. The penalty for the gaming offense was the minimum and the penalty for the liquor offense was well below the maximum of five years.

The trial court had free discretion whether to make the various sentences run consecutively. Surely one who commits multiple offenses cannot complain if he is subjected to separate punishment for each offense.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Herman KNIGHT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 24, 1966.
    Rehearing Denied Sept. 16, 1966.
    Leland H. Logan, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

Herman Knight appeals from a conviction of illegal possession of alcoholic beverages for the purpose of sale in local option territory. He was fined $20 and sentenced to serve thirty days’ confinement in jail. On this appeal he attacks the search warrant and claims that he was entitled to be confronted by a witness against him. This case had been appealed to the circuit court from the quarterly court.

Jimmy Brown, a deputy sheriff, made an affidavit on which the search warrant was issued. He executed the warrant by going to the premises of appellant in company with a state trooper and one other person. As a result thereof he found fifteen cans of “very cold” Falls City beer, part of which was being carried by appellant’s teen-age son and an elderly person as they ran from the rear of the Knight house toward some woods. Appellant was in the house. He claimed that the beer had been purchased for his personal use. This issue was submitted under instruction to the jury.

Appellant undertakes to argue that there was confusion in two warrants issued against him, one for illegal possession for purpose of sale and the other for sale to David Gunn. The record clearly shows that the possession warrant is the one with which we are concerned.

It is also argued that the affidavit and search warrant were invalid because they were based on information given by Jimmy Brown concerning a sale by appellant to David Gunn some twenty-six days prior thereto. A reading of the transcript shows that Jimmy Brown was permitted to testify concerning the search warrant’s issuance, the search and seizure, and the arrest without objection being made. His testimony on direct examination in this respect extends from page 2 to page 6 of the transcript through thirty-nine questions before any objection was made, and that objection was to the form of the question asked concerning appellant’s reputation as a bootlegger. The affidavit and search warrant were introduced into evidence without objection.

It was only after a motion for a mistrial for failure to read the warrant to the jury had been made that any objection was made to the affidavit and search warrant which had already been introduced. No contention is now made concerning the failure to read the warrant which was subsequently read. Inasmuch as the record from the quarterly court filed on appeal shows the charge to be “unlawful possession of alcoholic beverages in dry territory,” the error, if any, is harmless. RCr 9.24. In the same category is the contention made concerning the variance in the dates on the complaint.

The failure to object timely to the testimony of the searching officer concerning the search and the introduction of the affidavit and search warrant is considered a waiver. Under RCr 9.22 it is required that an objection be made in timely manner, and if the court requests, the ground of the objection should be stated, unless there was no opportunity to object. There is no showing of lack of such opportunity. The affidavit and search warrant were properly admitted in the absence of timely objection.

Appellant claims a violation of his constitutional right to be confronted by a witness because David Gunn, who had made an affidavit in which he claimed to have bought beer from appellant, was not introduced as a witness. A reading of the testimony discloses that Gunn’s name is not mentioned therein. The record does not reveal that he was ever subpoenaed or called as a witness. There is no merit in such contention.

Judgment affirmed.