author: WILLIAMS, Chief Justice.

text:
    Harvey ROBINSON, Jr., Appellant, v. Velma B. CULL, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1967.

      J. Walter Clements, Louisville, for appellant.
    James B. Lenihan, Hargadon, Hargadon, Lenihan & Harbolt, Louisville, for appellee.
   WILLIAMS, Chief Justice.

Appellee Velma B. Cull was injured when the automobile she was driving was struck by an automobile driven by appellant Harvey Robinson, Jr. A jury in the Jefferson Circuit Court awarded a verdict in the amount of $5,000 in favor of appellee. This appeal results.

The accident happened on Price Lane near the point where it is intersected by a private drive leading to the Fraternal Order of Police Lodge. In this area Price Lane is a two-lane level paved road. About 100 feet east a gradual decline begins and continues for about 500 feet. Two lights affixed to utility poles light the graveled Police Lodge parking area and provide some light on Price Lane approaching the point where the accident occurred.

Appellee testified she stopped on her way out of the Police Lodge driveway at the edge of Price Lane. She first looked to her right, then to her left, then back to her right again, and saw no traffic approaching from either direction. She then drove across the center of Price Lane and turned left, heading west at a speed of about 20 miles per hour. At that point she was struck by appellant’s automobile. Ap-pellee’s teen-age daughter and a girl friend were passengers. They substantiated the testimony of appellee in its entirety.

Appellant testified he was driving west on Price Lane at a speed of about 30 miles per hour, with his lights on high beam. He saw appellee’s automobile pulling into his traffic lane when he was about 25 or 30 feet from the intersection. He immediately applied his brakes and left about 10 feet of skid marks but was unable to avoid the collision.

There was testimony that appellant was intoxicated .when questioned by police officers after the accident. He denied he was drunk but admitted he drank three beers between 12:00 and 12:30 A.M., when he started home. One police officer testified he turned appellant’s engine off immediately after the accident and another said he later turned off appellant’s lights.

KRS 189.330(7) provides:

“The driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right of way to all vehicles approaching on the highway.”

Appellant argues that appellee simply failed to yield the right of way as required by statute, and a violation of the statute is negligence per se as a matter of law. He says she either looked, saw, and failed to yield, or did not look at all, either of which is negligence. And he says her claim that she did not see him demonstrates only that she did not look. Couch v. Hensley, Ky., 305 S.W.2d 765 (1957); Seamon v. Bolton, Ky., 351 S.W.2d 51 (1961).

Appellee, of course, counters by pointing out she looked carefully in each direction but saw neither automobile nor lights. The testimony is conflicting concerning just how much illumination the parking area lights provided on Price Lane.

The trial court instructed the jury on the duties of both parties, including a contributory negligence instruction relative to appellee. There was evidence before the jury sufficient to sustain a finding that appellant was negligent for driving an automobile while intoxicated and for driving at night with no lights. And it could have found appellee guilty of negligence for failing to see appellant’s automobile approaching. Under the circumstances we believe the trial court properly instructed the jury, and the verdict in favor of ap-pellee was proper.

The duty to look implies the duty to see what is obvious unless there is some excuse for not seeing it. In Farris v. Summerour, Ky., 296 S.W.2d 708 (1956), we quoted from 60 C.J.S. Motor Vehicles § 353(b), p. 841, as follows:

“* * * However it is only where the approaching danger is plainly visible that one cannot be heard to say that he looked without having had notice of the danger, and the mere fact that a driver might have seen the other vehicle moving into the intersection in time to have avoided the accident does not necessarily bar recovery.”

Here the appellee and both of her passengers looked, but the automobile of appellant was not visible. The jury was justified in believing that had the lights been on they could have and would have seen it.

The trial court gave a punitive damage instruction as well as a compensatory damage instruction. The jury did not award punitive damages. The verdict explicitly provided the award was for compensatory damages. It has been consistently held that giving an instruction on punitive damages is harmless when the award is compensatory only. St. Bernard Mining Co. v. Ashby, 164 Ky. 416, 175 S.W. 626 (1915); Combs v. Stewart, 301 Ky. 50, 190 S.W.2d 861 (1945).

The jury awarded appellee a total of $5,000. Her medical bills, loss of earnings, and damage to the automobile amounted to $2,293.32. She suffered injury to her neck and back which was very painful and had continued sporadically over a long period of time. There was medical testimony that she would continue to require treatment in the future. Considering the months of pain and suffering appellee has been subjected to, along with the prospect of more in the future, the verdict does not appear excessive.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: EDWARD P. HILL, Judge.

license: Public Domain

text:
    Charles AUGUSTUS, Petitioner, v. Honorable Faust Y. SIMPSON, Judge, Union Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    May 12, 1967.
    Charles Augustus, pro se.
    Faust Y. Simpson, Judge, Union Circuit Court, Morganfield, for respondent.
   EDWARD P. HILL, Judge.

Petitioner, a prisoner in Eddyville state prison under a four-year term imposed in McCracken Circuit Court, stands indicted on two counts of storehouse breaking in Union Circuit Court. He filed this original action in this court in which he charges that he had made motion in the Union Circuit Court for a trial on the indictment therein pending and that said motion was overruled.

Respondent filed response herein in which he observed that he “was of the opinion that it would be difficult for the petitioner to present a defense while incarcerated at the Kentucky State Penitentiary. However, if the petitioner desires a trial and can arrange to be present at said trial the respondent will be glad to arrange for a trial date on the charges referred to.”

It is concluded petitioner is entitled to a speedy trial of the charges contained in the indictment now pending in the Union Circuit Court. The respondent is directed to assign the pending charges against petitioner for trial as soon as reasonably possible.

WILLIAMS, C. J., and MILLIKEN, PALMORE and STEINFELD, JJ., concur.


author: PALMORE, Judge.

text:
    Walter Leo HAYES, Petitioner, v. Hon. Frank A. ROPKE, Judge, Jefferson Circuit Court, Louisville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    May 19, 1967.

      Walter Leo Hayes, pro se.
   PALMORE, Judge.

Walter L. Hayes, a prisoner serving a life sentence in the state penitentiary at Eddyville, alleges that there is pending in the Jefferson Circuit Court an indictment returned some four years ago charging him with the felony of burglary, by reason of which a detainer has been lodged in his record; that he has filed in the Jefferson Circuit Court a motion for a speedy trial; and that the respondent judge of that court has failed to act on the motion. He asks for an order directing respondent “to issue some kind of decision, and grant this petitioner a speedy and impartial trial.”

The only response is to the effect the motion already has been overruled. This, however, does not satisfy petitioner’s demand for a prompt trial, to which he is entitled under § 11 of the Constitution of Kentucky. The case is governed by our decision in Hoskins v. Wright, Ky., 367 S.W.2d 838 (1963), in which it was held that mandamus is available to enforce the right of a prisoner in this state to prompt trial of a felony charge pending against him by virtue of an indictment returned in the courts of this state. See also Augustus v. Simpson, Ky., 416 S.W.2d 349 (decided May 12, 1967).

Respondent is directed to assign the pending burglary charge or charges against petitioner for trial at as early a date as reasonably possible.

WILLIAMS, C. J., and HILL, MILLI-KEN and STEINFELD, JJ., concur.


author: STEINFELD, Judge.

text:
    BLUE DIAMOND COAL COMPANY, Appellant, v. William C. TERRY and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    June 16, 1967.

      Richard D. Cooper, Reeves, Barret, Cooper & Ward, Hazard, for appellant.
    Eugene Goss, Harlan, for appellees.
   STEINFELD, Judge.

This is an appeal from the judgment of the Perry Circuit Court which affirmed an award of the Workmen’s Compensation Board in favor of William C. Terry.

Terry was employed by the Blue Diamond Coal Company from the 12th day of August, 1946, until May 15, 1961. He had been employed by others in coal mines from 1921 to 1941 and outside the coal industry from 1941 to 1946. He ceased his employment with Blue Diamond Coal Company on May 15, 1961, giving as his reason the fact that he could climb but few steps without being required to stop to rest. He said he wasn’t able to continue working on the inside of the mine. While testifying before the Board he admitted that he had heard of other people becoming afflicted with silicosis or rock dust from working in mines and he knew at the time that he ceased his employment that he was having lung trouble. While in the hospital in February 1960, Terry’s occupational disease of pneumoconiosis was first diagnosed. Subsequently, he was admitted to the hospital on 23 different times from the date on which he terminated his employment up to the date of hearing before the Board. He was treated by Dr. Henry Evans who testified that he did not know whether or not he advised Terry of the nature of the illness.

A hospital record dated February 15, 1963, showed that Terry was then suffering from pneumoconiosis. An x-ray examination made on June 10, 1964, revealed evidence of emphysema, pulmonary fibrosis and pneumoconiosis. Terry contends and the Workmen’s Compensation Board found that he was not aware that he had silicosis before August 30, 1965, when his attorney so advised him.

Terry filed his application for adjustment of claim with the Workmen’s Compensation Board on August 30, 1965, in which he alleged that he became affected by the occupational disease on the 15th day of May, 1961. After hearing evidence the Board awarded Terry $36.00 per week for the period of 425 weeks commencing on the 15th day of May, 1961. In its findings of fact it stated that Terry first learned of the occupational disease on the 30th day of August, 1965, and that he gave notice to his employer on the 15th day of September, 1965, that he was suffering from silicosis.

It is contended that Terry had failed to give notice of disability within the time required by KRS 342.316(2) which provided “ * * * that notice of claim shall be given to the employer as soon as practicable after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he had contracted such disease, or a diagnosis of such disease is first communicated to him, whichever shall first occur” and that the claim is barred by the limitation of KRS 342.316(3). The employer appealed to the Perry Circuit Court. It affirmed the Board, hence this appeal.

The employer urges that Terry was informed and knew or should have known of the occupational disease in June 1964. It bases this contention on testimony of Dr. Ivey who was asked and answered as follows :

“Q. What was your diagnosis of those X-ray examinations?
A. There was evidence of emphysema, pulmonary fibrosis and pneu-moconiosis.
Q. When you made this diagnosis of him on June 10, 1964, did you relate this to Mr. Terry?
A. Yes sir.
Q. Did you tell Mr. Terry at the time that he had pneumoconiosis ?
A. Yes sir. Well, let’s say I don’t remember the specific date on which I told him, I made him aware of the changes.
Q. This was in the year 1964 that you told him that ?
A. Yes sir.
* * * * * *
Q. Do you know what date it was when you told the plaintiff that he had pneumoconiosis ?
A. No sir, I don’t know the specific date.
Q. Could you estimate when it was?
A. In June of ’64.
***** *
Q. Was he in the hospital at that time when you told him that?
A. Yes sir.
Q. Do you recall the specific occasion when that was ?
A. Well roughly, I mean I remember in general, for example, I remember the : — uh—just the general circumstances. Of course — now this has been almost two years ago, but I remember the occasions when I would talk with Mr. Terry and when I treated him and I remember when he had this convulsive seizure. I didn’t see him Dr. Callis saw him and admitted him and then I saw him. I remember Dr. Callis telling me about him and I remember he almost died during this convulsive seizure, it was very nearly fatal. In fact his wife thought he had died. And I remember, in general, the rooms he occupied when he was in the hospital. But as far as pinpointing the date, I can’t.
Q. You have no vivid recollection then of the occasion when you told him that?
A. No, I have a vague recollection.
Q. Do you know who was present at that time?
A. No sir, I don’t.
Q. Doctor would you relate exactly the words that you used when you advised him of that?
A. Well, if I can’t remember the specific date I am sure I can’t remember the exact words, but I — we are all creatures of habit and I know approximately what I told him, but there is — uh—this —uh—this would be the way that I would explain the situation to him. Mr. Terry had asked me on occasions what was wrong with him, what his trouble was, as many patients do. And it is our practice to try to make them as fully aware of the situation as possible. We feel the patient should know what is wrong with them. And — uh—to the best of my knowledge, what I. told him was that he had emphysema and scarring of his lungs with some pneumoconiosis.”

Terry testified that the physicians who treated him never informed him that he had silicosis. He stated that no doctor, including Dr. Ivey, ever told him that he “had lung trouble which was related in any way to work in the coal mines”. He told the Board that he did not know the meaning of the word pneumoconiosis and even if Dr. Ivey used that word he did not know what he was talking about.

The employer cites Brock v. International Harvester Company, Ky., 374 S.W.2d 507 and Good v. Russell Fork Coal Company, Ky., 387 S.W.2d 842. In Brock we held that the claim was filed in time. Good v. Russell, supra, affirmed the finding by the Board that the employee knew he had silicosis but failed to assert his rights within the statutory limitation.

We said in Peabody Coal Company v. Harp, Ky., 351 S.W.2d 170, that notice under KRS 342.316(2) was * * * not required to be given until these conditions concur: (1) The employee has a disability from an occupational disease which impairs his capacity to perform his work, and (2) the employee knows or should know by the exercise of reasonable care and diligence that he is suffering from the disease.” The rule was reaffirmed in Tunstall v. Blue Diamond Coal Company et al., Ky., 359 S.W.2d 614.

Bartley v. Bartley, Ky., 274 S.W.2d 48, held that statutes regarding giving of notice “ * * * should be liberally construed in favor of the employee to effectuate the beneficient purposes of the Compensation Act.”

It was for the Board and not the court to determine whether Terry knew, or should have known that he had contracted an occupational disease. Lowery v. Blue Diamond Coal Company et al., Ky., 354 S.W.2d 499. It is our opinion that the Board had sufficient evidence before it to support its conclusion that Terry did not know he had an occupational disease. Having so decided the notice to the company complied with the provisions of the statutes in question. Lewallen et al. v. Peabody Coal Company, Ky., 306 S.W.2d 262; Peabody Coal Company v. Harp, supra.

The judgment is affirmed.

WILLIAMS, C. J., and HILL, MILLI-KEN, OSBORNE, and PALMORE, JJ., concur.


author: OSBORNE, Judge.

text:
    Hugh Marshall LONG, Appellant, v. Shirley Rice LONG, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1967.
    James F. Clay, Clay & Clay, Danville, for appellant.
    A. Jack May, Danville, for appellee.
   OSBORNE, Judge.

This is an appeal from a judgment of the Boyle Circuit Court which granted the appellee Shirley Rice Long an absolute divorce, awarded her the custody of three infant children with $50.00 per week for the maintenance of the children, all household furnishings and $5,000 lump-sum alimony. The only question upon this appeal is the propriety of the alimony award.

Appellant contends that the lump-sum award of $5,000 is an amount in excess of 75% of his estate and is excessive. The appellant is a plumbing and roofing contractor and the evidence concerning his annual income discloses that he earned $7,000 in 1963, $11,000 in 1964, and $13,500 in 1965. However, he testified at the trial that since 1965 his income had decreased and he was now earning $100 — $110 per week.

Appellant owns two houses and lots in Boyle County; one was built in 1958 at a cost of between $8,000 and $9,000 at that time. The other was purchased in 1962 at a cost of $16,500. There is presently a mortgage against both of these in the aggregate amount of either $18,500 or $19,000; the proof not being specific. The trial court’s findings relative to the appellant’s condition are as follows:

“The Court further finds that the defendant owns real estate consisting of two houses in Boyle County and that the combined worth of said two houses according to defendant’s testimony is $25,500.00. The Court finds that there is an $18,500 or $19,000 mortgage indebtedness against both pieces of realty, leaving an equity to defendant of $6500.00 or $7,000.00. It appears that defendant is gainfully employed and either had a gross earning of $13,500 during 1965, as he stated in response to a question from his attorney, or around $13,000 net earning as he stated on cross examination. Defendant has his income tax forms at his home but did not produce them. Since defendant admits a net income of $11,000 in 1964 and $13,000 in 1965, it would appear that the court might well find that the defendant is gainfully employed and earns in excess of $10,000.00 per year.”

We are of the opinion that the award of $5,000 by the trial court was justified. The size of the husband’s estate is not the sole factor in determining the amount of alimony. Willoughby v. Willoughby, Ky., 294 S.W.2d 550; Jones v. Jones, Ky., 382 S.W.2d 842. We have many times held alimony and the method of its payment are matters within the sound discretion of the trial judge and if this discretion is not abused the award must be upheld. The rule was most recently set out in Ballard v. Ballard, Ky., 411 S.W.2d 330 as follows:

“The amount of alimony to be awarded and the method of payment are matters within the discretion of the Chancellor. Hicks v. Hicks, Ky., 290 S.W.2d 483; Boggs v. Boggs, Ky., 330 S.W.2d 118; Ralston v. Ralston, Ky., 396 S.W.2d 775. The exercise of such discretion will not be set aside unless it is shown to be clearly erroneous. Somerville v. Somerville, Ky., 339 S.W.2d 940; Peavy v. Peavy, Ky., 351 S.W.2d 869. An abuse of discretion has not been shown.”

We are of the opinion that the judgment of the trial court should be affirmed.

Judgment affirmed.

All concur.


text:
    Charles MOOSER and Margaret Mooser, Appellants, v. W. T. MASON, d/b/a Mason Realty Company, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1967.
    Charles B. Zirkle, William J. Francis, Louisville, for appellants.
    Roger L. Wiedeback, Louisville, for ap-pellee.
   EDWARD P. HILL, Judge.

A summary judgment for $6,056.39 was entered for plaintiff, now appellee Mason, in his suit against appellants for 5 percent commission on a build and lease arrangement on property of appellants located on Preston Highway in Louisville, Kentucky. This appeal followed.

Appellants contend there were genuine issues of material facts in issue and that summary judgment was inappropriate.

By the terms of the contract appellee agreed:

(1) "To negotiate and secure a leasehold arrangement with Burger Queen of Louisville, Inc.
(2) “To obtain financing of improvements to be placed on tract pursuant to proposed lease.
(3) “To generally supervise for the second parties the construction of improvements as required by the lease * * * »

Appellee admittedly performed the first obligation of the above contract. He contends he also performed the second and third obligations in the manner contemplated by the contract, but appellants vigorously deny he did so. Herein arises the controversy.

The main storm of controversy rages around the issue as to the amount of financing appellee agreed to “obtain” and the extent of his duty to “obtain” financing. Appellants charge in their counterclaim that appellee failed to “generally supervise” the construction of improvements, but this issue occupies a minor place in the arguments. The counterclaim was dismissed by the judgment.

Appellants argue $62,226 was required for the improvements, which amount included the cost of filling the lot. Appellee counters by saying the cost of the improvements was only $48,870, that he “obtained” a loan of $38,200 and was instrumental in obtaining another net loan of $12,500, making a total more than sufficient to cover the cost of improvements.

The evidence does not disclose the amount of the cost of filling the lot. Other property of appellants was also filled under the same contract, and the amount attributable to the lot in question is not clear.

The trial court concluded it had “no cup by which to measure the amount of aid he (appellee) should have given, because the contract is not definite on that point.” We find there is nothing indefinite in the phrase, “to obtain financing of improvements.” The contract does not require appellee to try, to do his best, or to exert reasonable efforts to obtain financing. It simply obligates appellee to “obtain” financing. Of course, the amount of financing is not stated in the contract for the simple reason the parties did not then know the amount necessary for improvements. This obviously is a question of proof.

■ The procedure for summary judgment under CR 56.01 is a handy tool for the bench and bar alike, but the procedure is a drastic one and should not be invoked where a genuine issue of a material fact is involved. Cf. Conley v. Hall, Ky., 395 S. W.2d 575 (1965).

In Robert Simmons Construction Company v. Powers Regulator Company, Ky., 390 S.W.2d 901, 905 (1965), this court thus summarized the law pertaining to summary judgment:

“Since the burden of establishing the nonexistence of any genuine issue of material fact is on the moving party, for the purposes of the motion all doubts are to be resolved against him. Rowland v. Miller’s Adm’r, Ky., 307 S.W.2d 3, 6,. (1956); Clay, Kentucky Practice, CR 56.-03, Note 5 (Vol. 7, p. 165). Ordinarily, summary judgment is proper when it is manifest that the opposing party could not strengthen his case at trial and the moving party would be entitled ultimately and inevitably to a directed verdict. Adkins v. Greyhound Corporation, Ky., 357 S.W.2d 860, 862 (1962). There may'be instances in which the opposing party, if he has countervailing evidence, cannot hold it back unil trial — for example, if it consists of information to which he alone has access. See Moore’s Federal Practice, R. 56, § 56.15 [5] (Vol. 6, p. 2144 et seq.). But that situation cannot arise unless and until the moving party has properly shouldered the initial burden of establishing the apparent non-existence of any issue of material fact. Id., p. 2153. It is clear that one party cannot compel the other to try his case on a motion for summary judgment. Clay, Kentucky Practice, CR 56.03, Note 5 (Vol. 6, p. 166); Payne v. Chenault, Ky., 343 S.W.2d 129, 132-133 (1960).”

It is concluded there were genuine issues of material facts raised in the pleadings and that appellants were entitled to a jury trial on those issues.

The judgment is reversed for proceedings consistent with this opinion.

All concur.


author: CLAY, Commissioner.

text:
    SHIVELY WELDING & BOILER REPAIR, Appellant, v. Charles C. BISCHOFF et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1967.
    Bill V. Seiller, Jones, Ewen, MacKenzie & Peden, Louisville, for appellant.
    John F. Stewart, Segal, Isenberg, Sales & Stewart, Louisville, J. Keller Whitaker, Workmen’s Compensation Board, Frankfort, for appellees.
   CLAY, Commissioner.

In this workmen’s compensation case the Board found appellee to be totally and permanently disabled, and made an award accordingly. This was confirmed on appeal by the circuit court. Appellant employer contends here that there was not sufficient evidence of probative value to support the Board’s finding of permanent and total disability.

The employee was a boiler maker by trade and his occupation called for hard work, handling of heavy materials and climbing about water tanks and towers. He was involved in a serious accident which resulted in paralysis of the right eye, neck fractures, a skull fracture, back and other fractures, and other arm, shoulder and finger injuries. Admittedly he was permanently disabled.

In the opinion of one doctor the employee was IS to 20 percent disabled. Another fixed the permanent disability at SO percent, although this doctor said he would not recommend his returning to work and doubted if he would “be able to hold up under it”. Another doctor was firmly of the opinion that the employee was 100 percent permanently disabled from “performing his job”.

Appellant’s first contention is that the Board erroneously assumed that the employee was a welder by occupation. It is apparent that because of his eye injury he cannot do this type of work. Whether or not the employee was qualified to work as a welder, we find nothing in this record to indicate that the opinions of the medical experts or the finding of the Board were based upon the welding disability.

It is next contended the medical opinions about disability were based on the erroneous assumption that the employee’s work required “climbing to heights”. The simple answer is that there was ample evidence the employee’s occupation did require such climbing on tanks and towers in performing work as a boiler maker.

It is finally contended the employee could not have been permanently and totally disabled because he had actually gone back to work as a boiler maker subsequent to his injuries. It is true the employee had been re-employed for short periods and had actually certified to the Kentucky Department of Economic Security that he was physically able to return to work in his regular occupation. However, these jobs did not last long, and there was significant evidence by a business agent of the union to which the employee belonged that because of his physical condition there were simply no jobs available.

We believe there was ample evidence in the record that the employee was not capable of returning with any regularity to this field of endeavor, even though he could perform some of the duties required in his general employment classification. This is a highly paid, skilled occupation. In substance, the Board’s finding was that half a boiler maker is no boiler maker. The Board was justified in concluding that the employee’s physical disability was such that his job opportunities in this field were practically eliminated. As expressed by one of the doctors, the situation was such that he was not “going to go back to work as a boiler maker”.

In our opinion the award was amply supported by substantial evidence.

The judgment is affirmed.

All concur.


text:
    COMMONWEALTH of Kentucky, Appellant, v. Clell MILLER, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1967.

      Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellant.
    Clell Miller, pro se.
   STEINFELD, Judge.

Clell Miller moved pursuant to RCr 11.42 to set aside and vacate a judgment entered in 1959 finding him guilty of robbery. He is now serving the sentence. Miller claimed that the judgment was void. The lower court sustained the motion, set aside the judgment and ordered a new trial. From that order the Commonwealth appeals. RCr 11.42(7) and RCr 12.52. Commonwealth v. Watkins, Ky., 398 S.W.2d 698. The trial court stayed the order pending the appeal. RCr 11.42(8); Watkins v. Wingo, Ky., 403 S.W.2d 19.

Miller was indicted for armed robbery along with Amos L. Duncan and Howard Hicks. At his trial he was represented by counsel and after negotiations with the Commonwealth’s Attorney it was agreed that the charge be amended to robbery. The court approved, whereupon Miller pled guilty to this lesser charge and was sentenced to ten years in the penitentiary.

Duncan and Hicks were tried on the same indictment on the charge of armed robbery. They were found guilty and were sentenced to life imprisonment. Duncan appealed and the judgment as to him was reversed because the indictment was not sufficient to support a conviction for armed robbery. Duncan v. Commonwealth, Ky., 330 S.W.2d 419. Later Duncan and Hicks each received a sentence of only two years in the state reformatory.

The indictment charging Miller with armed robbery was read to the jury. He claims that this influenced the jury to impose upon him a sentence of ten years, the maximum penalty for robbery. He testified that this violated his rights under the 6th and 14th Amendments of the United States Constitution and section 11 of the Kentucky Constitution. The lower court held that the rights guaranteed to Miller by Article III section 2 and the 6th Amendment to the Federal Constitution and section 11 of the Kentucky Constitution were violated. It opined that the reading of the indictment which charged armed robbery, whereas the alleged crime was robbery, so influenced the jury that it could not act without bias or prejudice. Tayloe and White v. Commonwealth, Ky., 335 S.W.2d 556; Brumfield v. Commonwealth, Ky., 374 S.W.2d 499.

The Commonwealth claims that the trial court erred in vacating the judgment and ordering a new trial. It points out that the reason which that court stated as the basis for its action was not included in Miller’s motion. We agree with this contention for there was a failure to state any fact necessary to support the order. Morris v. Morris, 299 Ky. 235, 185 S.W.2d 244; Hartford Accident & Indemnity Co. v. Lewis, Ky., 296 S.W.2d 228.

The next contention for reversal is that the motion was insufficient. RCr 11.42 supplements CR 60.02 and provides a post-conviction review procedure which must be followed if the relief demanded is to be obtained. The motion filed by Miller does not meet the test usually applied to pleadings. CR 8.01. Caldwell v. Frazier, Ky., 304 S.W.2d 922. However, here we have a prisoner proceeding pro se, therefore, we do not impose on him the same standards as those applied to legal counsel. Metzger v. Breeze Corp., D.C.N.J., 37 F.Supp. 693. Miller’s motion was required to and gave the court and opposing party fair notice of the nature of the claim. CRr 11.-42(2); Lee v. Stamper, Ky., 300 S.W.2d 251; Cincinnati, N. & C. T. Co. v. Fischer, Ky., 357 S.W.2d 870; Gunn v. Robinson, Ky., 330 S.W.2d 399.

The Commonwealth argues that while under oath to tell the truth the movant made statements in the motion which were contrary to the testimony given by him at the hearing. Miller alleged that he had no counsel at the time he pled guilty. At the hearing he admitted, and the record of the conviction showed that he was represented by paid counsel. He also alleged that he was sentenced without a jury being impaneled, when the undisputed proof is that a jury fixed the sentence which he is serving. He finally admitted that the real basis for his motion was that Duncan and Hicks, the two with whom he was involved in the crime received a sentence of only two years, whereas he had been sentenced to serve ten years, which was not “equal justice”. He complains that he acted under what he called bad advice of his attorney. This was a claim without merit, therefore, it was not a basis for vacating the judgment. King v. Commonwealth, Ky., 408 S.W.2d 622.

Miller was not acting in good faith in making the allegations upon which he obtained the hearing. This was essential. Williams v. Commonwealth, Ky., 405 S.W.2d 17. “Allegations are required to be simple, concise and direct”. CR 8.05 Massengale v. Lester, Ky., 403 S.W.2d 697. Courts should not and will not permit a pleader, even though the proceeding be pro se, to make allegations which he knows or should know are false. Our system of justice is based upon truth, without which it cannot survive. Resort to untruth is contemptuous. Miller was in contempt and trifling with the court. Burton v. Tartar, Ky., 385 S.W.2d 168, cert. den. 85 S.Ct. 1354, 380 U.S. 984, 14 L.Ed.2d 277. Efforts to trifle with the courts will not succeed. Kinmon v. Commonwealth, Ky., 396 S.W.2d 331.

When the trial court discovered that Miller had made material statements in his motion, which were false, the motion should have been stricken. CR 11; 6 Kentucky Rules of Civil Procedure, Clay 183, comment 5. It was error on the part of the trial court not to strike the motion and dismiss the proceedings. Burton v. Tartar, supra.

The order vacating the judgment and directing a new trial is reversed for proceedings consistent with this opinion.

All concur.


text:
    Carl CABE, Commissioner of Labor, etc., Appellant, v. SPLASH DAM BY-PRODUCTS COAL CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    June 16, 1967.
    Paul D. Rehm, Versailles, Martin Glazer, Counsel, Dept, of Labor, Frankfort, for appellant.
    William J. Baird, Baird & Hays, V. R. Bentley, Pikeville, Robert Matthews, Atty-Gen., J. Keller Whitaker, Director, Workmen’s Compensation Board, Frankfort, for appellees.
   STEINFELD, Judge.

Charles Lester who was an employee of Splash Dam By-Products Coal Corporation was injured on January 17, 1963, by an accident arising out of and in the course of his employment. He filed claim under the Workmen’s Compensation Act. KRS Chapter 342. During the proceedings before the Board, on motion of the employer, it ordered that the Special Fund be made a party. KRS 342.120(1). On May 2, 1966, the Board adjudged and ordered that Lester recover of his employer “ * * * Thirty Eight ($38.00) Dollars per week for a period not to exceed four hundred twenty five (425) weeks commencing January 17, 1963 * * * It also awarded interest “ * * * and medical, hospital and/or surgical expenditures not to exceed Twenty Five Hundred ($2,500.00) Dollars * * . It dismissed the Special Fund.

Contending that a part of the award should have been adjudged against the Special Fund under KRS 342.120(4) the employer appealed to the circuit court. KRS 342.285. That court found that “ * * * there was * * * a pre-existing disease and/or condition capable of being aroused into disabling reality * * * ” therefore, it ordered that the case be remanded to the Board with directions that it “ * * * review the record in an effort to determine the percentage of disability which the defendant-employee, Charles Lester, had or suffered prior to the date of injury, being January 17, 1963, and that when the determination is made that the percentage of pre-existing disability be fixed as liability against the Special Fund and the balance thereof be fixed against the plaintiff-employer, or its insurance carrier.” It entered judgment accordingly and remanded the case to the Workmen’s Compensation Board of Kentucky.

Pursuant to KRS 342.290 the Special Fund has appealed. It claims that there was conflict in the medical evidence before the Board, therefore, its decision is conclusive upon the court. KRS 342.285(3). It cites several cases including Neagle v. State Highway Department, Ky., 371 S.W.2d 630, in which we said: “We have many appeals where the testimony of doctors produced by the employers and employees is diametrically opposed concerning the extent of the injury, but on appeal the only concern of the court is limited to whether there was competent evidence of probative value to support the factual findings of the board.” It asserts that there was sufficient competent evidence of probative value to support the finding of the Board that the disability on which the award was based was not caused or brought about by a pre-existing disease, condition or disability. It contends that even though there was conflicting testimony of physicians, the testimony of two doctors and a report made by the physician appointed by the Board sustains the decision of the Board. We find that Dr. Tillou Henderson, who performed the first disc operation, stated that he removed “a degenerative bulging disc” which was a degenerative process that “had been developing over a period of time.” Dr. Henderson testified that the “degenerative disc” which he found “was a latent pre-existing disc disease and that this accident was the thing that triggered it into a disabling reality.”

The employer argues that Dr. E. G. Skaggs and Dr. F. M. Picklesimer did not testify as to whether the claimant had a pre-existing diseased disc condition and that the only doctor who furnished the Board any information on that subject was Dr. T. Rothrock Miller who was appointed by the Board. KRS 342.121. He made a report dated January 28, 1966, in which he said: “It would be my opinion that disability is probably total and permanent for an occupation such as he describes. Assuming the history I obtained from him is accurate regarding any previous difficulty and in the absence of any congenital or degenerative changes, I feel that all of present disability is on the basis of the accident which he describes.” Later Dr. Miller testified, and after relating the history which he obtained and explaining the examination he made, confirmed the information which we have just quoted from the report. He admitted, however, that the surgeon who performed the operation was “in a better position to judge as to pre-existing condition and disability than a doctor * * * exam-ing him (Charles Lester) two or three years after the accident.”

The testimony of all of the physicians, with the exception of Dr. Henderson, is non-committal as to whether a disability or condition pre-existed the injury and was aroused by it. “Testimony of defense experts that is essentially non-committal will not justify the rejection of a claim supported by positive medical opinions.” Horton v. United States Steel Corporation, Ky., .384 S.W.2d 73.

The evidence before the Board of probative value does not support its conclusion that the claimant had no existing disability or pre-existing disease condition which was aroused into disabling reality by the traumatic 'injury. Reversal by the circuit court was proper. Mullins v. Kentucky-West Virginia Gas Company, Ky., 300 S.W.2d 553. Apportionment is required. Young v. Eastern Coal Corporation, Ky., 408 S.W.2d 464.

The judgment is affirmed.

All concur.


text:
    Andrew Howard MURPHY, Appellant, v. William CRANFILL, Sheriff of Jefferson County, Appellee.
    Court of Appeals of Kentucky.
    June 16, 1967.

      Ralph H. Logan, Hardy, Logan & Tross, Louisville, for appellant.
    John B. Breckinridge, Atty. Gen., Frankfort, Cecil Davenport, Asst. County Atty., Louisville, for appellee.
   CLAY, Commissioner.

This habeas corpus proceeding raises the question of the validity of KRS 439.175, which relates to parole of prisoners convicted of misdemeanors. The act was declared unconstitutional by the circuit court and relief was denied appellant.

By judgment of the Jefferson Circuit Court appellant was sentenced to confinement in the Jefferson County jail for a period of one year on a charge of attempted storehouse breaking. While serving this sentence he applied to the county judge of Jefferson County for parole, and that judge entered the following order:

“IT IS NOW ORDERED AND ADJUDGED : That said Andrew Howard Murphy be and he is hereby discharged by parole from further confinement in the Jefferson County Jail on said charge, said discharge to be effective this date.”

Appellee, the sheriff of Jefferson County, refused to honor that order and this habeas corpus proceeding resulted.

KRS 439.175 (enacted in 1962) provides:

“(1) Parole may be granted to persons convicted of a misdemeanor and sentenced to jail under the same terms and conditions as parole may he granted for conviction in felony cases.
“(2) The power to grant parole shall be vested in the county judge of the county wherein the misdemeanant may be confined.” (Emphasis added.)

The constitutional validity of this statute is questioned. It is contended the act violates section 51 of the Kentucky Constitution, relating to the title of acts, and section 77 thereof, which empowers the Governor to commute sentences and grant reprieves and pardons. We find it unnecessary to consider these two sections because we believe the law must be declared void on another ground.

The trial court held that section 27 of the Kentucky Constitution was violated by the act. That section simply provides for the separation of legislative, executive and judicial powers. It was the view of the trial judge that, under a principle long recognized, where the legislature fails to set up adequate standards under which a law may be administered, the delegation of uncertain duties to an administrative agency constitutes an unconstitutional delegation of legislative power. Among the cases applying this principle are Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387; and Dawson v. Hamilton, Ky., 314 S.W.2d 532. However, in our more recent case of Commonwealth v. Associated Industries of Kentucky, Ky., 370 S.W.2d 584, we recognized that the “delegation of legislative power” theory as a test of constitutional validity was of questionable soundness.

All parties apparently agree that the statute under consideration was hastily drawn and is ambiguous. All parties have assumed this to be a valid law unless it violates some specific provision of the Kentucky Constitution, but there is another ground upon which we may declare this enactment ineffective as a law. That is the lack of intelligibility. In other words, if the language of a law is so ambiguous as to completely obscure the legislative intent and to defy rational meaning, it is simply inoperative as a law. We were confronted with precisely the same problem in Kerth v. Hopkins County Board of Education, Ky., 346 S.W.2d 737. Therein we stated (page 741) :

“The question is not whether the legislature illegally delegated its powers but whether it failed to delegate any power in this respect by failing to prescribe the manner of its exercise.”

Some question is raised as to whether the county judge is a judicial or administrative officer, the contention being made that parole is an executive rather than a judicial function. See Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101. Clearly the county judge could be authorized to perform an executive or administrative function, and the legislature could properly delegate to him, as it delegates to the Parole Board under KRS 439.330, the power of granting parole. See Tincher v. Commonwealth, 208 Ky. 661, 271 S.W.2d 1066, 1068. The difficulty is determining the scope of the power vested in the county judge by the statute under consideration (KRS 439.175).

We think it evident the legislature intended to establish some system under which misdemeanants could be paroled as felons may be paroled. With this laudable purpose in mind, the legislature totally failed to set up a workable method of procedure. The act does not purport to vest in the county judge the power to grant unconditional parole in his absolute discretion. If so construed, it would in effect vest the power to pardon, which is a power reserved to the Governor by section 77 of the Kentucky Constitution. In actuality the order of the county judge by which appellant was “discharged by parole” was nothing short of a pardon.

The legislature did not authorize such a discharge. KRS 439.175(1) provides that parole may be granted “under the same terms and conditions as parole may he granted for conviction in felony cases”. (Emphasis added.) What terms and conditions? The statutory system for parole of felons is quite complex. KRS 439.320 to KRS 439.520 provide for a Parole Board with many duties, among which are the promulgation of rules and regulations governing the eligibility of prisoners for parole and the appointment of parole officers. These statutes also provide for retention of the prisoner, supervision, discharge, and other matters.

What did the legislature have in mind in using the words “terms and conditions ?” Did it mean that the county judge should take into consideration those matters specified for the Parole Board under KRS 439.340 ? Did it mean that a prisoner could be paroled only after arrangements had been made for his proper employment or his maintenance and care, a condition imposed by KRS 439.340(2)? We do not know and have no way of finding out.

One of the conditions of parole where felons are involved is that the prisoner shall be amenable to the orders of the Parole Board and the Division of Probation and Parole. (KRS 439.346) Would a prisoner paroled by the county judge be subject to this supervision?

When we think of “terms and conditions” in connection with parole, we would normally consider those restrictions which apply to each individual parolee and which of course may differ with each individual case. But the legislature apparently did not use those words in that sense because the statute refers to “terms and conditions” of granting parole. The only way the county judge could comply with this direction would be to set up the entire machinery which governs the Parole Board’s functions. Yet the statute does not prescribe a method of doing this and the county judge simply does not have the facilities of the Parole Board.

The order in this case indicates the county judge did not consider himself bound by any terms and conditions. Apparently he did not know what they were, nor do we. The function reposed in the county judge obviously required implementation. The words “terms and conditions” as they pertain to granting parole, from either a practical or legal standpoint, are meaningless.

As stated in Folks v. Barren County, 313 Ky. 515, 232 S.W.2d 1010, 1013:

“ * * * where the law-making body, in framing the law, has not expressed its intent intelligibly, or in language that the people upon whom it is designed to operate or whom it affects can understand, or from which the courts can deduce the legislative will, the statute will be declared to be inoperative and void. * *

The statute before us falls within that category. Though a program of parole for misdemeanants may be desirable, it is obvious the legislature has so far failed to provide any machinery or method to carry out this objective. As we have noted, the General Assembly could not empower the county judge to pardon these prisoners. If, under this act, the county judge is subject to any restrictions, or is required to follow any procedures, we cannot comprehend what they are.

We find this statute to be an abortive effort. Its purpose cannot be effectuated under the language used. Though on a different ground, we must agree with the trial court that this law is a nullity.

The judgment is affirmed.

All concur.

      . See Report by the President’s Commission on Law Enforcement and Administration of Justice, entitled “The Challenge of Crime in a Free Society” (1967), wherein it is said (page 166):
      “Lack of community treatment facilities for misdemeanants and juveniles means, the neglect of one of the most important lines of defense against serious crimes, since many persons with juvenile or misdemeanant records graduate to graver offenses. Lack of probation facilities also may mean that many minor and first-time offenders, who would be more suitably and economically dealt with in the community, are instead institutionalized. And lack of supervision, particularly through parole, means that the community is being exposed to unnecessary risks and that offenders are going without assistance in reestablishing themselves in jobs and schools.”


author: WALKER, Justice.

text:
    Gwendolyn McFARLAND, Petitioner, v. The FRANKLIN LIFE INSURANCE COMPANY, Respondent.
    No. B-49.
    Supreme Court of Texas.
    June 7, 1967.
    Stubbeman, McRae, Sealy & Laughlin, Gene L. Jameson and Milton L. Bankston, Midland, for petitioner.
    Turpin, Smith, Dyer, Hardie & Harman, James T. Smith, Midland, for respondent.
   WALKER, Justice.

This appeal involves an asserted right to recover a twelve per cent penalty and attorney’s fees under Article 3.62 of the Insurance Code, V.A.T.S. The principal question to be decided is whether The Franklin Life Insurance Company, respondent, had reasonable grounds for anticipating rival claims. We hold that as a matter of law it did not.

In 1950 respondent issued a policy of insurance on the life of John V. McFarland, who was about nine years of age at the time. The policy was taken out by his parents, Bernard and Gwendolyn McFarland, the latter of whom is petitioner here. Bernard was named in the policy as primary beneficiary, and petitioner was designated as contingent beneficiary. John married in 1962 and died the following year. His father predeceased him; he was survived by his widow and petitioner. Petitioner brought this suit against respondent to recover the amount due on the policy plus the statutory penalty and attorney’s fees. Respondent interpleaded Mrs. John V. McFarland, admitted liability for the proceeds of the policy, and paid the funds into court. The trial court, sitting without a jury, awarded petitioner the money so deposited but allowed no penalty or attorney’s fee, and the Court of Civil Appeals affirmed. 409 S.W.2d 467. The only question brought forward on appeal is whether petitioner is entitled to recover such penalty, attorney’s fee and court costs.

Article 3.62 is penal in nature and must be strictly construed. Washington Fidelity Nat. Ins. Co. v. Williams, Tex.Com.App., 49 S.W.2d 1093; Note, 9 Baylor L.Rev. 452; 29A Am.Jur. Insurance § 1697; 16 Couch, Insurance, 2d ed. 1966, §§ 58.3, 58.10. See also Annotation, 90 A.L.R. 530; 46 C.J.S. Insurance § 1406; Note, 48 Harvard L.Rev. 319. It is generally held, therefore, that “where the insurer admits liability, but has reasonable grounds for anticipating rival claims, and in good faith declines to pay the named beneficiary, and deposits the money in court to be paid to the rightful person as determined by the court, it is not liable for more than the face amount of the policy.” See Murray v. Bankers Life Co., Tex.Civ.App., 299 S.W.2d 730 (wr. ref.); Murray v. American National Ins. Co., Tex.Civ.App., 300 S.W.2d 187 (wr. ref.); 3 Appleman, Insurance, 1967 ed., § 1618.

Respondent advances two basic propositions in support of the trial court’s judgment: (1) that, in view of a letter received from Mrs. John V. McFarland’s attorney and the possibility that she might be entitled to part of the policy proceeds under the community property laws of Texas, it had reasonable grounds for anticipating rival claims; and (2) that petitioner never made demand for payment as contemplated by Article 3.62. The following is a chronology of the relevant correspondence:

September 3, 1963: petitioner’s attorney notified respondent of John’s death.

September 6, 1963: respondent sent petitioner’s attorney forms for filing the claim.

October 16,1963: respondent notified petitioner’s attorney that the completed claim forms had not been received.

October 29, 1963: Mrs. John V. McFarland’s attorney wrote respondent advising that “we represent the wife of John Vernon McFarland, deceased, and would appreciate details concerning the amount and beneficiary, if any, of Policy No. 884834.”

October 31, 1963: respondent wrote Mrs. John V. McFarland’s attorney that petitioner was the beneficiary of the policy and also furnished the name and address of petitioner’s attorney.

November 1, 1963: petitioner’s attorney sent respondent the necessary proofs of death.

November 12, 1963: respondent notified Mrs. John V. McFarland’s attorney that the proofs of death had been received and requested him to obtain and furnish a release from his client. A copy of this letter was sent to petitioners attorney.

January 7, 1964: petitioner’s attorney wrote respondent as follows:

“Regardless of ‘your practice’, the contract and the law in Texas require that the proceeds of this policy be paid to the beneficiary. Unless your check for the amount due under the policy is received forthwith or, in the alternative, we receive by return mail some valid reason (other than ‘your practice’) for withholding payment thereof, suit will be filed to recover on this policy, as well as attorneys’ fees which are authorized for this type of action.”

January 10, 1964: respondent replied as follows:

“I am sorry for the delay that has occurred under this settlement, but we have been waiting for a reply from Mr. Billy G. Alexander of Odessa who represented the wife of the .Deceased. In an effort to hurry along the disposal of the claim funds, I called Mr. Alexander and determined he no longer represents the widow as she recently called him that she had no need for legal counsel since there no longer was any family problems. Mr. Alexander stated it was his understanding the widow was living in your city and indicated we should have no problem in obtaining a Release from her.
“The form is enclosed for her signature, and when received here with the policy, our check payable to Gwendolyn McFarland will be mailed promptly. The total proceeds amount to * * *.
“If there is any objection to sending the Release and policy direct to us, they may be sent to the Illinois National Bank here in Springfield, and we will exchange the check for these items. Or, if you prefer that we have one of our agents call at your office and pick up the Release and policy in exchange for the check, we shall be glad to make that arrangement.
“We agree that as beneficiary Mrs. Gwendolyn McFarland does have an interest in the policy proceeds, but the extent of her interest is certainly questionable under your Community Property Statutes when there is a surviving spouse. Claims of this kind are not infrequent in your state or in other states, where Community Property prevails, and it is seldom that we have a case where it is not determined that some part of the proceeds should go to the spouse. When the spouse is not brought into settlement, it is the opinion of our Legal Counsel that a Release of any interest she might have should be obtained for the Company’s protection against additional liability. We have followed this procedure for many years and without any difficulties; in fact, this procedure was discussed with your Texas State Insurance Department in 1959 without any suggestions for change in it.
“We were at fault in not following this case more closely with Mr. Alexander, and when our check is issued to Mrs. Gwendolyn McFarland, we will include interest * *

The present suit was instituted on February 6, 1964, and respondent filed its bill of interpleader and paid the policy proceeds into the registry of the court about four weeks later.

An insurance company which knows that rival claimants are actively asserting their rights is usually held to have reasonable grounds for withholding payment; it will not be subjected to the statutory penalties if the other conditions set out above are satisfied. Drane v. Jefferson Standard Life Ins. Co., 139 Tex. 101, 161 S.W.2d 1057; Demmer v. American National Ins. Co., Tex.Civ.App., 263 S.W.2d 795 (no writ); Grand Lodge Colored K. P. of Texas v. Watson, Tex.Civ.App., 145 S.W.2d 601 (no writ). That is not, however, the situation here. The October 29th letter from Mrs. John V. McFarland’s attorney gave no indication that she intended to claim all or any part of the policy proceeds. It was a mere inquiry — nothing more. Any misgivings about her attitude which the letter may have caused should have been dispelled when respondent was advised that she had dismissed her attorney because there were no more family problems.

Petitioner is the beneficiary named in the policy and as such would ordinarily be entitled to the proceeds thereof. See V.A.T.S. Insurance Code, Art. 3.48. In that respect the case differs from Life Ins. Co. of Virginia v. Oldham, Tex.Civ. App., 385 S.W.2d 403 (wr. ref.), and Whittet v. Reliance Life Ins. Co., Tex. Civ. App., 213 S.W.2d 164 (no writ.). There the estate of the insured was the designated beneficiary, and the heirs were demanding payment. It was held that the insurance company was justified in withholding the money until proper authority could be obtained for making payment to the heirs. See also Texas Life Ins. Co. v. Valley View Nat. Bank, Tex.Civ.App., 44 S.W.2d 1045 (no writ).

Respondent relies primarily on Murray v. American National Ins. Co., Tex.Civ.App., 300 S.W.2d 187 (wr. ref.), and Murray v. Bankers Life Co., Tex.Civ.App., 299 S.W.2d 730 (wr. ref.). In each of these cases the company knew that the wife of the insured, who was the beneficiary named in the policy, had been charged with murdering her husband. There was thus a reasonable basis for anticipating rival claims, because Article 21.23 of the Insurance Code provides that the nearest relative of the insured shall receive the insurance when the beneficiary has wilfully brought about the death of the insured. In the present case respondent had no information suggesting that the widow was asserting a right under the policy or that payment to the named beneficiary would subject it to a substantial risk of double liability. An investigation, which could have been made during the period of thirty days allowed by Article 3.62, would have disclosed that the policy was taken out while the insured was unmarried and that all premiums were paid by petitioner and her husband. It thus appears that the widow did not have a valid claim, and there was nothing within respondent’s knowledge to warrant the belief that she did. Respondent was not justified, therefore, in requiring that petitioner obtain a release from the widow, and petitioner was under no duty to explain her failure to furnish the same. The mere possibility that facts giving rise to an adverse claim could exist does not constitute reasonable grounds for refusing to pay the designated beneficiary.

As previously indicated, respondent also contends that petitioner failed to demand payment as required by Article 3.62. The letter of January 7th makes it clear that petitioner was insisting upon payment and would file suit .unless respondent had some valid reason for withholding the money other than its practice of requiring a release from the widow. This constitutes a sufficient demand under the statute. See National Life & Accident Ins. Co. v. Dove, 141 Tex. 464, 174 S.W.2d 245; Republic National Life Ins. Co. v. Beard, Tex.Civ.App., 400 S.W.2d 853 (wr. ref. n. r. e.); 16 Couch, Insurance, 2d ed. 1966, § 58.76.

The judgments of the courts below are reversed, and the cause is remanded to the district court with instructions to render judgment in petitioner’s favor for the amount due under the policy plus the statutory penalty, attorney's fees and court costs.

      . “In all cases where a loss occurs and the life insurance company * * * liable
      therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecution and collection of such loss. * * *»


author: GREENHILL, Justice.

text:
    Ex parte Wesley D. CARDWELL, Relator.
    No. B-83.
    Supreme Court of Texas.
    May 3, 1967.
    Rehearing Denied May 31, 1967.
    John H. Regner, Houston, for relator.
    L. J. Clayton, James C. Brough, Houston, for respondent.
   GREENHILL, Justice.

This is an original habeas corpus proceeding. The relator, Wesley D. Cardwell, was picked up and jailed upon a writ of attachment for failure to obey court orders relating to child support. It affirmatively appears from the record that he was not served with citation or a copy of a “show cause” order prior to his being seized or prior to his trial for contempt and subsequent commitment, other than the writ of attachment. The order of commitment, however, recites that Cardwell had been “duly cited.” The question is whether Cardwell had been afforded due process. We hold that he had not.

In December of 1966, Cardwell’s wife, Carol, brought a suit against him for divorce and requested custody of their minor child. She also sought support for the child and requested that Cardwell be required to make medical and financial arrangements for the birth of their unborn child.

On January 3, 1967, the Court of Domestic Relations Number 4 of Harris County directed Cardwell to make such arrangements and payments. The first of such payments was due on January 6, and Card-well failed to make it. Five days later, the wife filed a motion that Cardwell be held in contempt. The trial court on the same day signed an order directing Cardwell to appear on January 20 and show cause why he should not be held in contempt.

A citation was issued to be served on Cardwell, but the deputy sheriff was unable to serve him. On January 24, the wife filed a motion alleging that Cardwell was deliberately avoiding the service of process and requested the court to issue a writ of attachment for him. The deputy also made an affidavit that he believed that Cardwell was avoiding service and stating that he had been unable to serve him. The citation itself is in the record. It shows that unsuccessful attempts were made to serve Cardwell on January 13, 14, 16 and 19. On January 24, the court issued an order directing that Cardwell be arrested and produced “instanter.” The deputy was able to find Cardwell for the service of this order; and on January 27, Cardwell was picked up and directly put in jail. No copy of this order or writ of attachment is in the record.

Cardwell remained in the Harris County jail from January 27 until January 30 when he was led from the jail to the courtroom. He was found to be in contempt and sentenced to six more days in jail, three days for each of two violations. On February 3, after he had been in jail since January 27, Cardwell applied to this Court for a writ of habeas corpus. The writ was granted on that same day, conditioned on Card-well’s making a $500 bond. He was released from jail on February 6 upon making the bond. His case was later argued to this Court.

Article 4639a of Vernon’s Ann.Texas Civil Statutes states that “after ten days' notice” the trial court may enforce its support orders by civil contempt proceedings. Rule 308-A of the Texas Rules of Civil Procedure also states that “notice of such [show cause] order shall be served on the respondent * * * not less than ten days prior to the hearing on such order to show cause.”

It affirmatively appears from the citation and from a “Statement of Facts” prepared in narrative form by the trial court, that Cardwell was not served with citation to-appear for the show cause hearing. It further appears from the statement of the trial court that Cardwell was seized under its “order of attachment” and brought [from the jail] to the “show cause” hearing at which he was adjudged in contempt.

The order of commitment, however, recites that “the said Wesley D. Card-well has been duly, cited.” It is a general rule in this State in civil cases that a recitation of due service in a judgment cannot ordinarily be impeached by a collateral attack. Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 137 A.L.R. 1032 (1941); Smith v. Walker, 163 S.W.2d 857 (Tex.Civ.App.1942, writ refused). One of the reasons for the rule is that errors or failures in citations may be reached by motions for new trial, bills of review, by appeal, and by other methods. In contempt proceedings, however, there is no remedy by appeal. The only remedy to review contempt proceedings where the relator is in custody is by habeas corpus. Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956). The statutes and our rules require ten days’ notice upon service of process; and it would be unconscionable for us to establish a precedent in contempt cases that a trial court could order the seizure and incarceration of a citizen with no notice and then deprive him of a right to relief in a habeas corpus proceeding by reciting in its judgment that the person had been “duly served.” See Ex parte Wilkinson, 102 Tex.Cr.R. 336, 278 S.W. 426 (1925). As this Court stated in Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961), a contempt proceeding is unlike a civil suit, has some of the incidents of a trial for crime, and is quasi-criminal in nature.

Under such circumstances, this Court will consider the entire record to determine whether due process has been accorded to the relator. Ex parte Morris, 147 Tex. 140, 215 S.W.2d 598 (1948); Ex parte Elmore, 161 Tex. 585, 342 S.W.2d 558 (1961); Ex parte Duncan, 42 Tex.Cr.R. 661, 62 S.W. 758 (1901).

By examining the record, including the trial court’s own narrative “Statement of Facts,” it is clear that Cardwell was not served in accordance with the statute and our rule.

If we assume that the writ of attachment (which was not a part of the record sent to this Court) gave Cardwell some kind of notice, it was served less than ten days before his “show cause” hearing. During the period from the service of the writ until he was brought on for trial, a period of three days, he was kept in jail.

We have held that while the language of the statute and the rule is mandatory, trials for contempt conducted upon less than ten days’ notice will not constitute a denial of constitutional due process in all instances; and contempt judgments based on such trials may, therefore, be valid. Where there is less than ten days’ notice, the relator may be entitled to be discharged because of a lack of due process. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961). As we said in Davis, each case must be evaluated on its own facts.

We need not speculate as to whether only three days’ notice could afford due process if the person were correctly cited and he were free and able to make adequate preparation for trial. Here, however, if relator was given any notice at all by the writ of attachment, it was not the type prescribed by law. The three days’ time which he had was spent in jail, during which period he was unable to communicate with the outside world at least the major portion of the time. Instead of having at least the statutory ten days to use freely to prepare for trial after proper notice, relator had three days of confinement without proper notice. We hold that, as a matter of law, he was deprived of his liberty without due process of law. We therefore order the relator, Wesley D. Cardwell, discharged from the custody of the sheriff of Harris County, Texas.

      . The paper headed “Statement of Facts” and stamped with the signature of the trial judge was sent to this Court by an assistant district attorney two days before oral argument of the cause. It is not shown when it was prepared; it was not part of the record sent us by the clerk of the trial court; and it was not filed with the clerk of the trial court. Counsel for Cardwell states that he was not furnished with a copy of it and had had no opportunity to examine it. We shall assume, however, that it is an admissible part of the record here.

      . It is unnecessary for us to decide in this case upon the validity of the use of a “writ of attachment” under these circumstances. This Court has suggested that a defendant might be attached when he failed to appear in response to [i. e., after] a show cause order for contempt. Ex parte Winfree, 153 Tex. 12, 263 S.W.2d 154, 41 A.L.R.2d 1259 (1953). Here, however, the relator, Cardwell, was not served with a copy of the show cause order giving him notice of the contempt hearing.


text:
    TENNECO OIL COMPANY et al., Petitioners, v. H. H. ALVORD, Jr., Respondent.
    No. B-31.
    Supreme Court of Texas.
    May 31, 1967.
    Rehearing Denied June 28, 1967.
    . Long, Strong, Jackson & Strong, Carthage, Rafferty, Taylor, Kepner & Associates, Houston, Wilson, Miller, Spivey & Steger, Murph Wilson, Spruiell, Lowry, Potter, Lasater & Guinn, John H. Minton, Jr., Tyler, for petitioners.
    Bankhead & Davis, Tom Bankhead, Carthage, for respondent.
   GREENHILL, Justice.

The question here is whether certain oil and gas instruments reserved to the grantor the mineral estate to a depth of 4704 feet. The trial court entered a summary judgment that such estate was not reserved. The Court of Civil Appeals reversed that judgment and remanded the cause for a trial on the ground that the various instruments in question were ambiguous and hence parol evidence was admissible to ascertain the intentions of the parties. Tex.Civ.App., 408 S.W.2d 769. We granted a writ of error to review that holding.

The eight oil and gas leases in question were owned by Natural Gas Production Company, hereinafter called Natural. It had sixteen oil or gas wells on the leases in Harrison and Panola Counties. The shallowest production was of gas at 900 feet on the Floyd lease. There were other producers of oil or gas between 2300 and 2500 feet. The deepest well was bottomed at 4704 feet on the Roquemore lease.

On March 7, 1941, Natural and Midstates Oil Corporation entered into a contract whereby Natural agreed to assign to Mid-states major interests in the above leases. It was contemplated that Midstates would test the lower strata, and Natural would receive an overriding royalty from such production. The contract to assign resulted in an assignment dated April 24, 1941. The question is whether Natural, in such contract and assignment, reserved the entire mineral estates in all the leases down to 4704 feet, or whether it reserved only the then existing wells on the leases, together with the right to produce from such wells, to rework them, and other incidental rights restricted to the particular wells.

Natural subsequently assigned its rights to H. H. Alvord, Jr., who had been Natural’s president. Midstates assigned its interests to Tenneco. Tenneco, in turn, farmed out the Floyd lease down to 3850 feet, or to the base of the Mooringsport Lime, to J. S. Meriwether et al. who obtained production. As mentioned above, Natural had one well on the Floyd lease producing at 900 feet.

Alvord brought this suit against Tenneco for a declaratory judgment. He sought a declaration that his predecessor, Natural, had reserved the mineral estate down to 4704 feet. Meriwether et al. intervened and aligned themselves with Tenneco.

The contract whereby Natural [Alvord] agreed to assign the leases to Midstates [Tenneco] will be discussed below. One of its provisions, however, was that “title to each of the [16] wells * * * shall not pass * * * to Midstates,” and that Natural would have the right to produce such wells from the horizon from which they were producing “until Natural elects to abandon the same * * *.” [All emphasis herein is ours.]

Upon the first trial of this case, the court entered a summary judgment for Tenneco and the intervenors. The holding was that they owned the entire mineral estates (including that above 4704 feet) subject to certain overriding royalties not in question here. The court also, by summary judgment, held that Natural [Alvord] had abandoned all of the sixteen wells, and hence their rights in the shallow production had ceased.

Upon the first appeal, the Court of Civil Appeals at Tyler was of the opinion that there was an issue of fact as to whether there had been an abandonment of the wells. It remanded the cause for a trial of that fact issue. 382 S.W.2d 358 (1964). That opinion does not mention any question of ambiguity of the written instruments. Only Tenneco filed an application for writ of error, and the only point in the application was that the Court of Civil Appeals had erred in holding that there was an issue of fact as to abandonment. The application was refused, no reversible error.

Before the second trial, Tenneco and the intervenors stipulated that there had not been an abandonment of the wells, thus taking out the fact issue found by the Court of Civil Appeals. They again moved for summary judgment. Alvord contended, however, that oral evidence should be introduced to show the intention of the parties that Natural [Alvord] intended to reserve the minerals above 4704 feet, and that the true meaning of the instruments was that this estate had been reserved. The trial court again entered summary judgment for Tenneco and the intervenors, holding that the instruments were not ambiguous and that Natural [Alvord] had reserved only the particular wells and the rights therein ; and that the entire mineral estate had been assigned by Natural [Alvord] to Midstates [Tenneco], subject to overriding royalties not here involved.

The Court of Civil Appeals at Texarkana, on the second appeal, was of the view that, taken as a whole, the instruments were ambiguous; and it reversed the case again for a trial at which extrinsic evidence would be introduced to show the intention of the parties. No particular provisions were stated to be ambiguous; and Alvord’s counsel points out none. We are pointed to no provisions which specifically conflict with other provisions. The argument is that from several different provisions, none ambiguous in themselves, a doubt is raised as to the meaning and intention of the entire contract and assignment. It will be necessary, therefore, to summarize or set out the various provisions referred to.

The actual assignment in the case is that of April 24, 1941. After describing the leases, it states that Natural [Alvord] “does hereby grant, sell, assign and transfer unto Midstates Oil Corporation * * * its successors and assigns [Tenneco], all of the right, title and interest of the original lessee and present owner in and to each of the above described oil and gas leases * * It then refers to “a certain unrecorded agreement of even date between the same parties” and to the basic agreement between the parties of March 7, 1941, and provides that the assignment is subject to the reservations and stipulations therein contained. The “unrecorded instrument of even date” (March 7, 1941) was included in an appendix to the application for writ of error in this cause on the first appeal. Alvord’s counsel does not contend that anything in that instrument creates any ambiguity. So we turn to the contract of March 7, 1941.

That contract, after describing the leases and prescribing the usual terms for furnishing and examining abstracts, contains these provisions, most of which are summarized for brevity:

(2) Upon approval of title by Midstates, “Natural shall * * * grant, sell, transfer and assign all of the right, title and interest” it has in all of the leases, subject to certain overriding royalties.

(3) Natural will assign to Midstates its gas purchase contracts, with certain specified exceptions.

(4) The sixteen producing wells are described as to location by leases and the depth from which they were producing. The deepest was the gas well at 4704 feet on the Roquemore lease. The instrument then sets out the language which is important here:

“Title to each of the wells presently producing and listed above shall remain in NATURAL and shall not pass under this agreement to MIDSTATES, and the equipment and appurtenances and all present and future production from said wells, together with the right to sell such production under the existing gas purchase contracts applicable thereto, shall belong to NATURAL so long as said wells continue to produce from the horizon from which said wells are presently producing and until NATURAL elects to abandon same as hereinafter provided.”

(5) Natural reserved an overriding royalty of ½6 of ⅞ of oil, gas or hydrocarbons “produced, saved and marketed from each of said leases * * ride would never be more than ¾6 of ⅞

(6) Natural’s overriding royalty was to be increased to ⅛ of ⅞ after Midstates recovered certain costs; but Natural’s over-on wells producing below 6500 feet.

(7) Midstates was not obligated to drill; but if it did not begin a well within 30 days after the assignment, it was to pay Natural $100 for the privilege of delaying another 30 days. This could continue for 24 months. If Midstates had not then drilled, it agreed to reassign to Natural. If Mid-states did drill, it agreed to drill to a particular horizon or 6500 feet, whichever was first encountered, “unless production is obtained at lesser depth and below the 4,700 foot horizon.” It was provided that the completion of one well as a producer or as a dry hole “shall constitute full development hereunder, and MIDSTATES may retain all of said leases without further development * * [Midstates did drill and complete a well below 4700 feet.]

(8) The interest of NATURAL was subject to a deed of trust in favor of a Shreveport bank. Natural agreed to obtain from the bank a subordination of its rights to the rights of MIDSTATES, “except that the rights of MIDSTATES shall be subordinated to the rights of the bank with respect to the wells which are presently producing * * The instrument then continues:

“Midstates will not produce from any horizon on any particular lease from which NATURAL is now producing so long as such production by NATURAL shall continue without the consent of NATURAL unless Midstates shall fail to obtain paying production in other horizons above 6,500 feet, * * * PROVIDED that if said bank should refuse to consent to the completion of any well by MIDSTATES in any such horizon, MIDSTATES shall have the right to take over said loan from said bank.”

(9) If Natural desired “to abandon any well presently producing on any of said leases,” it was to give Midstates 30 days’ 'notice. Midstates could then elect to acquiesce in the abandonment or “take over such well.” If Midstates took over a well, it would pay Natural its salvage value, “and MIDSTATES may redrill or deepen said well, in its discretion, it being agreed that NATURAL reserves no overriding royalty on the production from any such wells derived from horizons from which the well is producing at the time MIDSTATES takes same over. MIDSTATES shall be obligated to pay overriding royalties only on the production from such wells derived from deeper horizons.”

(11) Natural agreed to cause the two leases on the Roquemore tracts to be unitized into one lease with respect to all horizons below 4704 feet before the assignments were made; and (12) Midstates could unitize “any or all part of said leases with each other or other leases” as it desired.

We do not regard the assignment, or the contract to assign, as being ambiguous. The assignment itself is plain enough; it conveys all of Natural’s rights, title and interest subject [as far as relevant here] to the reservations and conditions of the contract to assign. It does not purport to retain any portion of the mineral estate.

Similarly, the contract to assign agrees to convey all of Natural’s rights and reserves only sixteen [16] producing wells and rights therein. As stated, one of these wells produced from 900 feet, five from approximately 2500 feet, others at 2350, 2300, 2400, 3500, and 3750 feet. Only one well on one of the eight leases produced from 4704 feet. It was agreed that each well could continue to produce from the horizon from which it was then producing.

“A grantor may reserve unto himself mineral rights, and he may also reserve royalties, bonuses and rentals — either one, more or all.” Benge v.. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953). In Collier v. Caraway, 140 S.W.2d 910 (Tex.Civ.App. 140, writ refused), the grantor conveyed land, making this brief reservation: “The privilege to drill an oil well is hereby reserved unto the grantors, upon the here-inabove described tract of land.”’ The grantor contended that the reservation constituted a reservation of the mineral estate. In the alternative, it was contended, among other things, that the reservation was ambiguous and that the court should admit parol evidence to show the intention of the-parties. As applicable here, the holding was that grantor reserved only . the right or privilege to drill a well on the land. He did not reserve an estate in land. “Ownership of the oil estate was not essential to-the exercise of the right reserved to drill an oil well.” The court also applied the rule that a conveyance will be construed favorably to the grantee, and it would not enlarge the reservation to grantor unless a fair construction of the language of the deed required it. The cause was not reversed to permit the grantor to introduce paroL evidence.

We regard the above holdings to be applicable here. The grantor (assignor) could have reserved the mineral estate above a certain level, but it did not. Natural conveyed all of the mineral estate reserving only the right to operate and produce from specified wells provided each continued to produce from its own horizon and was not abandoned. These reservations are not ambiguous.

Counsel for Alvord seek to distinguish the Collier case this way: the grantor in Collier reserved the right to drill a well (which was construed to be an equitable right), whereas the grantor here reserved the title to the sixteen wells until they were abandoned. As it relates to the question of ambiguity and the reservation of the title to the mineral estate, we regard this as a distinction without a difference. The parties could agree that a well belonged to one of them and that all minerals produced from that hole would belong to the owner thereof without that person owning all of the minerals in the land down to the depth of that well.

The agreement of Midstates not to produce from 4700 feet or above with certain exceptions contained in section 8 of the contract to assign is a provision for the benefit of the Shreveport bank which held a deed of trust on the interests of Natural. The agreement was designed to protect Natural’s production in those areas which would be used to repay the Shreveport bank. It was provided, however, that if the bank did not agree to Midstates’ drilling in the shallow area, Midstates could take over the bank’s loan, and thereby Midstates would be relieved of this part of the agreement. The paragraph does not create an ambiguity as to the title to the mineral estate.

It is argued, in substance, that a circumstance showing a reservation of the mineral estate is found in the language dealing with the various producing “horizons” of the sixteen wells; and that a “horizon” encompasses a geological structure, which means the mineral estate. The instrument did not attempt to reserve a producing horizon or formation. It limited the particular wells retained by Natural to their production at particular depths within the same producing horizon.

The agreement of Natural to unitize its two Roquemore leases above 4704 feet before the actual assignment was executed, which agreement was a condition to Mid-states’ obligation to take the assignment, is not inconsistent with the conveyance of the entire mineral estate to Midstates. The fact that part of the mineral estate was unitized, or was not unitized, would form no barrier for the passage of title to the mineral estate. Midstates apparently wanted these two leases unitized by Natural before it took the assignment.

It is argued that some of the provisions of section 9 of the contract to assign set out above creates a doubt as to ownership of the mineral estates. Under that section, if Natural abandoned any well, Midstates was authorized to rework, redrill or deepen such well. It is reasoned that if Midstates acquired the mineral estate above 4704 feet, it would not need Natural’s authorization to redrill or deepen the well. The function of that section, taken in context, is to provide for Natural’s right to overriding royalties. If Midstates did deepen the well to a different producing horizon, it was provided that Natural would receive an overriding royalty from such well. But if Midstates produced minerals from such well from the same horizon, it would not have to pay Natural overriding royalty on the well abandoned by Natural.

It is contended by Alvord that recitations in instruments executed in 1943 and 1947 created ambiguities in the 1941 contract to assign and in the 1941 assignment. Assuming that it is possible for an instrument executed years later to create an ambiguity in the original instrument, the point is not well taken. In 1943, Midstates entered into a gas purchase contract with United Gas Pipe Line Company for the sale of gas from a unit with which it had pooled the leasehold below 4704 feet. The first recital in the contract begins, “Whereas Mid-states is the present owner of an oil and gas leasehold, insofar as said leasehold covers and applies to all horizons below a depth of 4704 feet subsurface * * The Court of Civil Appeals stated that this recitation created a doubt as to the intention of the parties to the 1941 contract. We disagree. The parties were dealing with gas produced below 4704 feet; and a recitation that one of the parties owned such rights is not, in context, to be taken as a declaration that such party does not own other rights.

In 1947 there was an agreement between United Gas Pipe Line Company, Midstates, and Alvord to release certain gas purchase contracts. The Court of Civil Appeals says this contract “settled the issue as to who owned the shallow mineral rights down to a depth of 4704 feet because Midstates thereby released all of its rights above 4704 feet.” 408 S.W.2d at 773. We disagree. The only provisions of the 1947 contract which purport to release any rights of Midstates above 4704 feet are as follows :

“ * * ' * For the same consideration Midstates does hereby release, discharge and relinquish any and all rights, if any, which it owns or might assert in said gas purchase contract described in paragraph (b) * * * down to a depth of four thousand seven hundred four (4,-704) feet * * * together with any and all rights and options which it mighi have for the purchase and transfer from Alvord of any and all wells now situated on and producing from any properties covered by said gas purchase contracts * * *

The quoted language quite obviously does not release a leasehold estate-, it releases only rights, if any, in a gas purchase contract under the terms of which the gas produced was sold to United Gas and an option which Midstates had under the terms of a 1941 contract to obtain certain wells from Natural [Alvord].

The assignment of April 1941 which embodies the conditions and reservations of the contract to assign of March 1941 is so worded that it can be given a certain or definite legal meaning. Its terms are expressed without uncertainty. It is not ambiguous. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977 (1941), and Anderson & Kerr Drilling Co. v. Bruhlmeyer, 134 Tex. 574, 136 S.W.2d 800, 127 A.L.R. 1217 (1940). The trial court therefore was correct in entering a summary judgment for Tenneco and the intervenors.

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

HAMILTON, J., not sitting.

      . Before the entry of judgment on the second trial Alvord died, and his widow was substituted as the plaintiff. The plaintiff is referred to herein as Alvord throughout.