author: PALMORE, Judge.

text:
    David L. DAVIS, Warden, Kentucky State Reformatory, Appellant, v. Evoyd HARRIS, Appellee.
    Court of Appeals of Kentucky.
    March 9, 1962.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellant.
    H. Elliott Netherton, La Grange, for ap-pellee.
   PALMORE, Judge.

In this habeas corpus proceeding the Old-ham Circuit Court adjudged that Evoyd Harris be released from the Kentucky State Reformatory at La Grange. The state appeals.

In October or November of 1960 Harris was convicted of forgery in the Jefferson Circuit Court and sentenced to 2 years in prison. The sentence was not executed in due course. Instead, the prisoner was held in jail for purposes of trial in the United States District Court at Louisville on a federal charge. This trial was had on December 21, 1960, and resulted in a prison sentence of a year and a day. On January 11, 1961, Harris was released to federal authorities, who carried out the judgment of the District Court by delivering him to the Ohio Federal Reformatory at Chilli-cothe. All of this comity between the local and federal authorities was practiced without benefit of any statutory authority from this state and without the prisoner’s consent.

Harris was released from the Chillicothe institution on October 4, 1961, and turned over to officers from Jefferson County acting pursuant to some sort of warrant, the details of which are not in the record. He was then committed to the reformatory at La Grange as directed by the November, 1960, judgment of the Jefferson Circuit Court.

The question here is whether Jones v. Rayhorn, Ky.1961, 346 S.W.2d 743, applies. It does.

The evil in this and the Rayhorn case is not so much what was done, but that it was done without authority. Because human liberty is precious the handling of a prisoner is always a serious matter. If he is to be shuttled about pillar to post from one jurisdiction to another it is important that the process be carried out under the safeguard of known ground rules. The only such rule we have in this jurisdiction is KRS 440.330, enacted in 1960, which reads as follows:

“The Governor may in his discretion surrender upon demand of the executive authority of another state, any person found in this state, notwithstanding the fact that a criminal prosecution or charges under the laws of this state are pending against such person, or that such person has been convicted in this state and is serving a sentence in any penal institution of this state. The Governor may condition the release of such prisoner to the demanding state upon such terms as he may stipulate, including the condition that the prisoner be returned to this state immediately after trial and before commencing the service of sentence, if any, in the demanding state; provided, however, in no case shall surrender of such prisoner he construed as a complete relinquishment of jurisdiction by this state, but such prisoner shall forthwith be returned to the custody of this state at expense" of the demanding state, immediately after trial in the demanding state, or the completion of sentence therein, as the'case may be.”

Given a liberal and practical construction, as we believe it should have, this statute is broad enough to authorize a transfer by the Governor of this state on request of the Attorney General of the United States or his duly authorized representative. However, it implies no policy toward entrusting such a grave discretion to local law enforcement authorities. Hence the treatment of Harris was arbitrary and, under the Rayhorn case, forfeited this state’s right to complete the execution of his sentence.

Judgment affirmed.


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    Charles TIPPIT, Appellant, v. Luther THOMAS, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    March 9, 1962.
    Charles Tippit pro se.
    John B. Breckinridge, Atty. Gen., Ray • Corns, Asst. Atty. Gen., for appellee.
   WADDILL, Commissioner.

Charles Tippit, a prisoner in Kentucky State Penitentiary, appeals from a judgment of the Lyon Circuit Court dismissing his petition for a writ of habeas corpus.

From the scanty record we gather that in 1959 appellant was found guilty in the Oldham Circuit Court of escape from La-Grange Reformatory while serving a three-year sentence there. Upon his conviction pursuant to KRS 432.390 he received an additional sentence of three years in the penitentiary to run consecutively with his former sentence.

In his petition appellant contends that he is wrongfully detained because (1) the mit-timus under which he is held is predated, and (2) the court had no authority to “suspend a judgment sentence beyond the period of the judgment sentence.”

The contents of the mittimus are not disclosed in the record, nor does appellant allege that he is detained under a void judgment. We have held that a petition for writ of habeas corpus is a collateral attack on the judgment by which a petitioner is imprisoned and that the writ will not lie unless it is established by the record that the judgment is void. Brown v. Hoblitzell, Ky., 307 S.W.2d 739; Owen v. Commonwealth, Ky., 280 S.W.2d 524. Even if the mittimus were before us and we could find error in it, the fact remains that appellant is confined by the efficacy of the judgment and not by virtue of the commitment. Glenn v. Porter, 292 Ky. 719, 168 S.W.2d 32.

We further observe that the court had authority to suspend the second sentence until the first sentence was satisfied because KRS 432.390 specifically provides that confinement of an escapee under this section shall “commence after he has served out the sentence for which he was originally confined.”

Judgment affirmed.


author: BIRD, Judge.

text:
    Harold L. BAKER et al., Appellants, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellee.
    Court of Appeals of Kentucky.
    March 9, 1962.
    William A. Miller, Miller & Howard, Louisville, for appellants.
    Kent McElwain, Louisville, for appellee.
   BIRD, Judge.

Harold L. Baker and Carol Flamm sued Nicholas DeToro for damages in the Jefferson Circuit Court. Upon the verdict of a jury a judgment was entered awarding damages to Harold L. Baker in the sum of $5,437.50 and to Carol Flamm in the sum of $500. This judgment was entered on June 24, 1959.

After the disposition of various motions, DeToro, on July 31, 1959, filed a notice of appeal. Thereafter, on August 3, 1959, he executed a supersedeas bond with Fidelity and Deposit Company of Maryland as surety whereupon an order of supersedeas was. entered and the execution stayed.

DeToro, however, did not further pursue his appeal and filed no record or any part thereof with the Clerk of the Court of Appeals.

Thereupon Harold L. Baker and Carol Flamm filed a copy of the judgment together with a motion to dismiss the appeal! and award each of them the ten percent penalty provided by KRS 21.130.

An order was entered sustaining the mo: tion to dismiss but no mention was made in that or any other order concerning the motion to recover the penalty.

On the margin of the motion there was a notation indicating that the motion to dismiss was sustained and that the motion for a penalty of ten percent was overruled. This notation bore the initials of the chief justice and the initials of the then court administrator, all of which was in the handwriting of the administrator. There is in the record of this appeal a letter signed by a deputy clerk dated October 15, 1959, asserting that the motion to dismiss was sustained and that the motion for penalty was overruled. The information in the letter was taken apparently from the margin notation which was erroneous. This Court’s-order simply dismissed the appeal. There is nothing in the record of this Court to show that the motion for penalty was ever considered.

After the appeal was dismissed and the judgment for damages became final in the Jefferson Circuit Court, Harold L. Baker- and Carol Flamm moved the Jefferson Circuit Court to enter a judgment against Fidelity and Deposit Company awarding a penalty of ten percent to each of them. The trial court overruled the motion. Baker and Flamm have appealed to this Court.

The record discloses no reason for the trial court’s action. Appellee, however, argues that the trial court was correct in overruling the motion for penalty upon two grounds. First, appellee claims that the issue was litigated and determined by this 'Court. It quotes the clerk’s correspondence as evidence. This Court speaks through its orders and there is no order on the issue of penalty. Consequently, we see no merit in the argument. Second, appellee claims that, under KRS 21.130, the penalty is payable only after the appeal has been docketed in the Court of Appeals.

It is true that DeToro never caused the record or any part of it to be filed or docketed in the Court of Appeals but he did, by filing a notice of appeal and supersedeas bond, delay the execution and collection of the judgment for which the penalty provision of the statutes is intended to provide compensation.

To permit an appellant to stay and delay without penalty, as was done in this case, contravenes the purpose of the penalty provision and is wrong. See Solter v. Sandy Valley Grocery Company, Ky., 352 S.W.2d 816, for a quite similar situation.

Though DeToro did not cause the case to be docketed, it was nevertheless docketed within the meaning of KRS 21.130 when Baker and Flamm caused the judgment to be filed and with it a motion to dismiss and award a penalty under KRS 21.130.

The appeal has been dismissed and the case has been docketed and the reasons given for overruling the motion in the circuit court are without merit.

The internal operation of the Court has been changed so as to prevent a recurrence of the situation revealed by this record and the previous one.

The judgment is reversed with directions to award each appellant a ten percent penalty provided however that the bond is otherwise valid.


text:
    Edward Anthony WAGNER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 9, 1962.

      Robert N. Hubbard, Elizabethtown, William E. Johnson, Frankfort, for appellant.
    John B. Breckinridge, Atty. Gen., Martin Glazer, Asst. Atty. Gen., for appellee.
   WADDILL, Commissioner.

Edward A. Wagner, Jr., has appealed from a judgment sentencing him to five years’ imprisonment for detaining a woman against her will with intent to have carnal knowledge of her, KRS 435.110. As grounds for reversal he urges that the court erred: (1) in refusing to grant a continuance; (2) in overruling the motion for a directed verdict of acquittal; (3) in permitting the jury to hear and consider incompetent and prejudicial testimony and (4) in allowing the Commonwealth’s Attorney to make an improper and prejudicial argument to the jury.

At appellant’s arraignment on May 19, 1961, the court appointed counsel to defend him, and, upon his plea of not guilty, assigned the case for trial on June 8, 1961. When the case was called for trial counsel for appellant moved for a continuance and requested the court to permit appellant to make a statement in chambers. The request was granted and appellant gave an account of his activities on the afternoon the offense allegedly occurred which, if proved, would establish an alibi. He stated further that neither he nor his friends had any money or property and therefore he had been unable to post bail, locate witnesses who could substantiate his alibi, or have them interviewed and available to testify in his behalf at the trial. Although it was disclosed that his court appointed counsel had discussed the case with him on two occasions he said that he had not believed it to be necessary to inform his counsel of the witnesses he desired to have subpoenaed. He claimed that additional time was necessary to prepare his defense.

The method employed by appellant to obtain a continuance failed to meet the requirements of Section 189 of our Criminal Code of Practice. Appellant’s statement was not made under oath nor was it supported by an affidavit. It does not show whether the persons whom he desired to testify in his behalf were presently within the jurisdiction of the court or that he had exercised any diligence in the matter. Furthermore, he does not claim that the attorney representing him had been derelict in preparing a defense or that he was dissatisfied with the services of his attorney. Under the circumstances presented the trial judge did not abuse his judicial discretion in overruling the motion seeking a continuance of the case. Gibson v. Commonwealth, Ky., 302 S.W.2d 128; DeHart v. Commonwealth, Ky., 287 S.W.2d 618.

During the afternoon of February 23, 1961, while driving alone on Highway #62, Lucinda Janice was stopped by a man who represented himself as a deputy sheriff. He compelled her to get into his car and drove her to a secluded spot on a side road where he forced her out of the car, tied her hands behind her back, threw her in the back seat of the car, and forced off her shoes. She thought he was trying to have intercourse with her. After a short struggle he untied her and took her back to her car. She identified appellant as her assailant.

Appellant contends that the proof was insufficient to show that he had detained Miss Janice with intent to have carnal knowledge of her. The elements of the offense denounced by KRS 435.110 are (1) an unlawful detention of a woman (2) with intent to have carnal knowledge of her. Commonwealth v. Littrell, 4 Ky.Law Rep. 251. When an unlawful detention has been established, only slight evidence is required to show the purpose of the detention. Pardue v. Commonwealth, 224 Ky. 783, 7 S.W.2d 211. The evidence in the instant case sufficiently established the elements of the offense denounced by KRS 435.110. Tobin v. Commonwealth, Ky., 257 S.W.2d 908.

Appellant maintains that the court erred in permitting Miss Janice to stand while testifying and in allowing her to do so while under mild sedation. The record reflects that Miss Janice had informed the trial judge of a painful back condition which had developed overnight and also of the fact that she had taken some medicine to relieve the pain. Since she testified without objection the alleged grounds of error are not reviewable on an appeal to this Court. Collins v. Commonwealth, Ky., 297 S.W.2d 54.

Appellant next complains that the court erred in permitting the prosecution to introduce into evidence a sweater, coat and trousers which a policeman obtained from appellant’s wife. Appellant urges that the clothing was obtained from his home during an illegal search. However, there is no evidence which supports this claim. The testimony merely shows that the articles of clothing were given to a state trooper by appellant’s wife when he went to her home. Consequently, the evidence fails to establish that the clothing was obtained by means of a search. See, 79 C.J.S. Searches and Seizures § 1, page 775.

During his closing argument to the jury the prosecuting attorney emphasized the fact that appellant had admitted he was a felon. Appellant contends that this argument was improper and prejudicial because the court had previously erred in allowing the Commonwealth’s Attorney to ask questions of appellant in such a manner as to cause him to admit having been “at Kentucky State Reformatory.” The admission of this fact was disclosed when appellant was being interrogated concerning his previous places of employment. Upon this disclosure the court admonished the jury to consider it only for the purpdse of affecting appellant’s credibility as a witness, if it did so. Under these circumstances we find no error either in its admission in evidence or in the reference to it in the prosecuting attorney’s closing argument.

Judgment affirmed.


author: WILLIAMS, Judge. PALMORE, Judge

text:
    Ada RADEMAKER, Appellant, v. Robert C. WILLIAMSON, Appellee.
    Court of Appeals of Kentucky.
    March 9, 1962.
    Lawrence & Duvall, Ephraim K. Lawrence, Jr., Chris Duvall, Ronald V. Simpson, Louisville, for appellant.
    William Mellor, Louisville, for appellee.
   WILLIAMS, Judge.

The appellant, Ada Rademaker, was injured when she fell in the home of appel-lee, Robert C. Williamson. She sued Williamson for damages in the sum of $10,000. Depositions of both parties were taken for discovery purposes. Summary judgment denying recovery was entered.

Appellant was 79 years old at the time she sustained the injury. She had spent the night as a guest in the Williamson home and sustained the fall in midafternoon the following day. The Williamson living room had a waxed, hardwood floor upon which a rug extending to within one and one-half to two feet of the walls had been placed. There was no padding under the rug and it had not been secured to the floor in any manner. The fall occurred as appellant was going out of the living room toward the bedroom area. She had stepped one foot off a corner of the rug on to the hardwood floor when the rug under her other foot slipped. She had been in and out of the living room several times duringher stay with the Williamsons and had visited there on prior occasions and observed the placement of the rug. The rug had slipped occasionally prior to this time when appellee or his wife walked on it, but no one had ever fallen because of that fact. Appellant said she did not know the floor was waxed until after she fell and appel-lee said he did not warn her that the floor was waxed or that the rug might slip.

In a similar case, Tharp v. Tharp, Ky., 346 S.W.2d 44, the following observations were made:

“As a visitor in the home, appellant was a licensee. As to the condition of the premises, no duty was owed to appellant by appellees other than that of not knowingly letting him run upon a hidden peril or willfully or wantonly causing him harm. (Citing cases.)
“As a nonpaying guest, appellant occupied the same status as a member of appellees’ household and was expected to take the premises as the appellees used them and was not entitled to expect that they would be prepared for his reception or that precautions would be taken for his safety in any manner in which appellees did not prepare or take precautions for their own safety or that of the members of their family. (Citing cases.) * * *”

There is no contention that appellee willfully or wantonly caused appellant harm. Consequently, it is incumbent upon her to show that appellee knowingly let her run upon a hidden peril. In Pease v. Nichols, Ky., 316 S.W.2d 849, this Court held that •a throw rug placed on a slick stair landing could reasonably be calculated to produce a fall. There a landlord abrogated his duty to a tenant, to exercise reasonable care to keep the stairway free of danger, by continuously maintaining a slick landing with a rug that scooted about from place to place. Here we are not concerned with a landlord and tenant situation but rather a gratuitous licensee is involved. Both parties cite numerous cases from other jurisdictions involving rugs which have slipped on highly polished or waxed surfaces. In those cases the rugs involved have been small throw rugs, and it is generally held that the use of such rugs on waxed hardwood floors is not inherently dangerous.

Appellant insists that rule should not apply when a large rug rather than a small one is in use. It appears to us, however, that a corner of a large rug would be as likely to slip as all or a portion of a smaller rug. The fact that a rug or a corner of a rug will slip on a waxed floor is within the knowledge of all persons who are familiar with the use of rugs on hardwood floors. Certainly it could not be said that because a corner of the rug slipped on occasion when stepped on, it became a hidden danger. Further it appears that appellant had frequented the area where she fell a sufficient number of times to have become familiar with it.

The parties here were the only witnesses to the fall. There appears to be no reasonable possibility of producing more or better evidence on this point. The trial court properly sustained the motion for summary judgment. Tharp v. Tharp, supra.

Judgment affirmed.

PALMORE, Judge

(dissenting).

It seems to me that the average guest would not expect the corner of a large rug to slip out from under him. In the first place, its more extensive area of contact with the floor provides a greater amount of friction which must be overcome in order to move it than would be true of a small rug. Secondly, most people use floor pads under large floor coverings, whereas the converse probably is true as to throw rugs. These observations of life in passing lead me to disagree with the conclusion that all of us must know that the corner of any rug will slip on a waxed floor. We know it only in the same sense that we must know that the roof of a building we may happen to enter will fall on our heads if it was not set up right. But the ordinary mortal relies on the assumption that such a contingency has been reasonably provided against. And I think that an elderly person who is a guest can properly assume that large rugs in the home are secure unless the host cautions her otherwise. I cannot see that as a matter of lav/ the peril is obvious.

No one would quarrel with the remark in the majority opinion to the effect that the rug did not become a hidden danger simply because it had slipped on occasion. Quite the contrary. That was the means by which the danger became known. That appellee and his wife did not fall when they slipped is not decisive. They were much younger people than the appellant. Nor is it material that appellant herself “had frequented the area where she fell a sufficient number of times to have become familiar with it.” If she had not herself slipped on the rug she had no particular reason to know that it would slip. Familiarity with the area and familiarity with the danger therein are hardly synonymous.

As I view this case, there was evidence of (1) a danger, that was (2) hidden and (3) known to the host. Whether he acted as a reasonably prudent man in failing to warn the elderly guest was strictly a jury question. I dissent from this judicial preemption of it.


author: MOREMEN, Judge.

text:
    Gilbert GREGORY, Appellant, v. PEABODY COAL COMPANY et al. Appellees.
    Court of Appeals of Kentucky.
    March 9, 1962.
    Doyle & Doyle, Harlan, for appellant, Gilbert Gregory.
    Clore & Swinford, Pineville, for appel-lee, Left Fork Coal Co.
    Sampson & Rice, Harlan, for appellee, Peabody Coal Co.
   MOREMEN, Judge.

Appellant, Gilbert Gregory, was employed as a miner by appellee, Peabody Coal Company, in September 1928, and he worked for that company until March 1958, when the mine was closed. In September 1958, he was hired by appellee, Left Fork Coal Company, where he worked for four weeks and two days, or about twenty-five shifts, after which he was unable to perform any work. On December 4, 1958, he filed with the Workmen’s Compensation Board an application for benefits under the Act on the ground that he was totally and permanently disabled by occupational pneumoconiosis. Both coal companies were named defendants. The case was referred to Hon. George F. Silliman, referee for the Board. After proof was taken he filed an opinion and award in which he found, inter alia, that both appellee companies had due and timely notice of the disease contracted by appellant and: “(1) That the plaintiff was last injuriously exposed to the occupational hazard which would, independent of any other cause whatsoever, produce the cause of the disease while in the employment of the Peabody Coal Company on March 16, 1958; (2) That the plaintiff’s employment with the Left Fork Coal Company was not such an exposure as would have caused the disease independent of any other cause, therefore the claim against the Left Fork Coal Company is dismissed.”

A full Board review was had and the Board approved the recommendation of the referee as to dismissing appellant’s claim against the Left Fork Coal Company, but set aside the findings of fact, rulings of law and the order and award of the referee insofar as they affected the appellee, Peabody Coal Company. This was done on the ground that appellant, for a year prior to August 1957, had suffered from shortness of breath and had other symptoms which would indicate that he was suffering from pneumoconiosis. The ruling was based on the fact that the only medical specialist, Dr. Anderson, testified that at the time he saw appellant, on December 2, 1958, the x-ray examination revealed massive fi-brotic density in both upper lung fields and that he also examined the x-ray film which had been made by another doctor on August 20, 1957, and he noted there was no appreciable difference between the two x-ray films. It was his opinion that Gregory had the disease as early as August 20, 1957.

In addition, Gregory had testified that for a year prior to August 1957, he had shortness of breath and other symptoms which should have indicated to him that he was suffering from the disease. It was held since he had such knowledge before August 1957, that under subsection (2) of KRS 342.316 he should have given notice of his disability to his employer as soon as was practicable. Since neither employer was notified until claim was filed in December 1958, the requirements of the statute were not fulfilled and the claim was dismissed as to both companies. The case was appealed to the circuit court where the court adopted the opinion and award of the Board.

It is clear from the proof that appellant had visited other doctors and had been examined by x-ray as early as 1957, but no doctor had ever reported to him that he was suffering from pneumoconiosis until the final diagnosis by Dr. Anderson a few days before he filed his claim with the Board.

The ruling of the Board in this case was made before our decision in Mary Helen Coal Corporation v. Chitwood, Ky., 351 S.W.2d 167; Peabody Coal Company v. Guthrie, Ky., 351 S.W.2d 168; Peabody Coal Company v. Harp, Ky., 351 S.W.2d 170; and Peabody Coal Company v. Powell, Ky., 351 S.W.2d 172. In the Chit-wood case we held that under subsection (2) of KRS 342.316 it was not necessary that notice of disability be given until the employee’s capacity to perform his work was impaired because of the disease and that it was not necessary for him to give notice when he first experienced some discomfort in breathing or other symptoms of occupational disease. Similarly in the case at bar, although Gregory had suffered from discomfort in breathing, the proof seems certain that he ably performed his duties until October 17. He was examined by Dr. Anderson on October 22 and his disease was properly diagnosed. About a month later he filed his claim before the Board. The filing of this claim was within reasonable time and with sufficient notice. Peabody Coal Company v. Powell, Ky., 351 S.W.2d 172.

The question remains, however, of the fixation of liability as between his two employers, the Peabody Coal Company, for which he had worked about thirty years, and the Left Fork Coal Company for which he had worked about twenty-five days.

In Childers v. Hackney’s Creek Coal Company, Ky., 337 S.W.2d 680, we said:

“It is provided in KRS 342.316(12) that the employer in whose employment the worker was ‘last injuriously exposed to the hazard of, the disease’ shall be liable for compensation. Obviously this contemplates that the worker also may have been exposed in some prior employment and may even have contracted the disease in a substantial degree in such prior employment. All that is required under KRS 342.316(1) (b) is that the exposure be such as could cause the disease independently of any other cause. It will be noted that under neither of the cited subsections is there any minimum time requirement for the period of exposure. Accordingly, it is not required that the employe prove he did contract silicosis in his last employment, but only that the conditions were such that they could cause the disease over some indefinite period of time.”

In Gibson v. Blue Diamond Coal Company, Ky., 342 S.W.2d 698, it was again pointed out that the controlling factor is not when or where the disease developed, but where the employee became disabled while working under occupational conditions which would, regardless of the time element, cause such disease. See also W. M. Coal Company, Inc. v. Campbell, Ky., 344 S.W.2d 794.

This brings us to the difficult question of whether Gregory worked at the Left Fork Coal Company mine under conditions which were such that they could cause pneumoconiosis over some indefinite period of time. There was considerable proof in the record that this mine was the type known to the trade as a wet mine. Several witnesses testified that there was very little dust and the conditions were excellent. However, appellant Gregory testified there was dust.

“Q. Was there dust? A. Practically any, wet dust.
“Q. But there was dust, wasn’t there? A. Yes, some.
“Q. And that dust got up into the air, didn’t it?
“A. Yes, if you stirred it up.”

He testified that one had to breathe “mighty little” of the dust.

When Dr. Anderson was placed on the stand, he testified as follows:

“Q. If there was sufficient water present in a particular mine, can that presence of water keep down all dust?
A. No. This has been shown by the Bureau of Mines that the dust that is kept down by water is predominately the larger particle sizes which aren’t particularly important, and the Bureau of Mines has shown that even though water is used the dust the size of a red-blood cell and smaller, which is the size that does the damage, is still present in the air.”

In addition, in answer to a hypothetical question which described the working conditions in the mine and Gregory’s participation, Dr. Anderson stated that if the facts were correct, in his opinion, Gregory was exposed during the period of his work with the Left Fork Coal Company to an occupational hazard which, independently of all other factors, would be a causative agent of occupational pneumo-coniosis. This was the only proof of a scientific character in the record. It was definitely shown that the exposure at the place of last employment, Left Fork Coal Company, was such as could have caused the disease independently of any other cause. Since there is no minimum time requirement for the period of exposure — Childers v. Hackney’s Creek Coal Company, Ky., 337 S.W.2d 680 — an award in favor of appellant and against appellee, Left Fork Coal Company, should have been made.

In the light of our recent decisions the Board’s ruling was erroneous in failing to grant appellant compensation. The judgment is therefore reversed with directions to enter a judgment remanding this case to the Board for entry of an award in conformity with the views expressed in this opinion.

Judgment reversed.


author: CULLEN, Commissioner.

text:
    Rev. G. R. ABERNATHY et al., Appellants, v. CITY OF IRVINE et al., Appellees.
    Court of Appeals of Kentucky.
    May 5, 1961.
    As Modified on Denial of Rehearing March 16, 1962.
    Jesse K. Lewis, Lexington, for appellants.
    Ben Scott, Mart Mainous, Hunter Shu-mate, Irvine, for appellees.
   CULLEN, Commissioner.

After completion by the City of Irvine and the County of Estill of the construction of a joint city-county hospital building, financed by voted bond issues of the city and county and by a grant of federal funds under the Hill-Burton Act, 42 U.S.C.A. § 291 et seq., the governing authorities of the city and county found that they did not have adequate financial resources to operate the hospital. They sought in vain for some time to find a private organization willing to undertake the operation and finally obtained an agreement to do so from the St. Walburg Monastery of Benedictine Sisters of Covington, Kentucky. The legislative bodies of the city and county authorized the execution of a long-term lease of the building to the Sisters, at a rental of one dollar per year, and such a lease was executed. The lease requires that the Sisters use the property for “charitable hospital and/or charitable nursing home purposes;” that they not commence operation of the hospital until receiving approval and acceptance by the Division of Hospital Facilities of the State of Kentucky and the Health Facilities Section of the United States Government; that they maintain the property in reasonably good condition at their expense, and keep the property insured against loss by fire or storm. In order to comply with regulations under the Hill-Burton Act the Sisters further were required to agree that they would operate the facility as a public nonprofit hospital for a period of 20 years, they would accept a reasonable number of indigent or charity cases, and would not deny admission to any patient solely because of race, creed ■or color.

A group of citizens and taxpayers of the city and county brought this action asking that the lease be declared invalid and that the city and county officials be •ordered to take over the control, management and operation of the hospital. The judgment of the circuit court declared that so much of the lease agreement as divested the public officials of the city and county •of control of the management of the property and of the hospital operation was void, but the judgment dismissed that part of the complaint asking that the city and county officials be ordered to take over the operation of the hospital. The plaintiffs have appealed and the defendants have cross-appealed.

The first contention of the appellants is that the city and county had no power or authority to enter into any lease of the hospital property. We find no merit in this contention. In Perkins v. City of Frankfort, Ky., 276 S.W.2d 449, a similar lease of the city hospital of Frankfort, to the King’s Daughters, was upheld. A lease of a county hospital to a private organization was upheld in State Bank & Trust Company of Richmond v. Madison County, 275 Ky. 501, 122 S.W.2d 99. A lease of part of the courthouse yard by a county to a blind person, for operation of a refreshment stand, was held valid in Burns v. Moore, 307 Ky. 167, 209 S.W.2d 735. A lease of part of the State Fairgrounds to a private organization was held valid in Lehman v. Matthews, Ky., 343 S.W.2d 133. In Southeastern Greyhound Lines v. City of Lexington, 299 Ky. 510, 186 S.W.2d 201, 202, it was held that the city could sell land acquired for a municipal auditorium where the city “had been required to abandon its original purpose because of a lack of funds to carry out the purpose.” Broad powers to sell real estate are granted to counties and cities under KRS 65.010, 67.080, and 82.060, and it is an established principle that the power to sell includes the power to lease. Burns v. Moore, 307 Ky. 167, 209 S.W.2d 735. The city and county being financially unable to carry out their original purpose of operating the hospital as a governmental institution, we think they had the power to lease the hospital property.

The second contention of the appellants is that under KRS 216.040, relating to county hospitals, and KRS 216.240, relating to city hospitals, the city and county were required to control and operate the hospital and could not surrender this duty to others. In substance, the argument is that if a city or county, or both jointly, once undertake a hospital proj ect they must continue to maintain it as a governmental institution. We think, however, that the statutes relied upon mean only that so long as a hospital is operated as a governmental institution the appropriate public officials must manage and control it. Here the county and city found themselves unable to operate the hospital as a governmental institution, and they chose to accomplish the purpose of making hospital facilities available for the community by leasing the hospital building to the Sisters, for operation by them of a private hospital serving the public. The statutes do not demand that a county or city maintain a hospital as a function of government; they merely require that if a hospital is maintained as a governmental institution it be controlled and managed by public officials. Under the lease here involved the city and county have no financial obligation in the hospital operation, so there is no need for operational control by them.

A related contention of appellants is that the city and county could not delegate part of their functions and responsibilities to a private organization. The circuit court, in upholding this contention, relied on Booth v. City of Owensboro, 274 Ky. 325, 118 S.W.2d 684, 686. The ap-pellees, on their cross-appeal, maintain that the Booth case is not applicable and that the lease here in question does not make an invalid delegation. In the Booth case the governing board set up to operate a city-county hospital included representatives of a private organization, with the result that private persons shared in management decisions. The court held that the city and county had no authority to “take a private corporation- or individuals into partnership in conducting such public enterprise.” In the instant case the hospital is not being operated as a governmental institution — the city and county simply have placed the .building in the hands of a private organization for the purpose of the operation of a hospital by that organization. There is no delegation of responsibility for the operation of a governmental institution because no governmental institution has been established. A similar lease of hospital property by the City of Frankfort was held valid in Perkins v. City of Frankfort, Ky., 276 S.W.2d 449, as against the contention that the lease constituted an unlawful delegation of power. It is our opinion that the lease here in question is not invalid as unlawfully divesting the public officials of control and management of the hospital operation and that the circuit court erred in holding it invalid.

The final contention of the appellants is that the lease gives public property to a religious organization in violation of Sections 1, 3 and 5 of the Kentucky Constitution and the First and Fourteenth Amendments to the Constitution of the United States. This contention is fully answered and refuted by the opinion in Kentucky Building Commission v. Effron, 310 Ky. 355, 220 S.W.2d 836.

On the direct appeal the judgment is affirmed; on the cross-appeal the judgment is reversed to the extent that it declares the lease invalid on the ground of divestiture of public control, with directions to enter judgment declaring the lease to be valid.


text:
    Ephraim K. LAWRENCE, Jr., Ancillary Administrator for Julie Gross, Etc., Appellant, v. James M. MARKS, Executor of the Estate of H. Halbert Leet, deceased, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1961.
    As Modified on Denial of Rehearing March 23, 1962.
    Ephraim K. Lawrence, Jr., Manny H. Frockt, Louisville, for appellant.
    Weldon Shouse, Shouse, Barker & Cop-lin, Lexington, for appellee.
   CULLEN, Commissioner.

Leonard Gross and H. Halbert Leet were killed in a crash of Leet’s private airplane in Woodford County, Kentucky^ Ephraim K. Lawrence, Jr., an attorney of Louisville, having been appointed by the Woodford County Court as ancillary administrator of the estate of Leonard Gross, brought action in the circuit court of Fay-ette County (the county of Leet’s residence) against Leet’s executor, seeking damages for wrongful death. The circuit court entered summary judgment dismissing the action “because of improper party plaintiff.” There is no such ground for dismissing an action but it appears that the actual ground for the dismissal here was that the plaintiff did not have capacity to sue. CR 9.01. Appealing from the judgment, the ancillary administrator asserts as the main ground of error that the trial judge abused his discretion in permitting the defendant to raise the issue of capacity to sue by an amended answer tendered some six months after the action was commenced.

Gross was killed on January 26, 1959. At that time he and his wife were attending the University of Kentucky and were living in Fayette County. In May 1959 the widow was appointed in the State of New York as administratrix of the deceased’s estate, this being done on the basis that the legal domicile of the couple was in New York. In July 1959 Lawrence was appointed ancillary administrator by the county court of Woodford County, Kentucky, and on the same day he commenced the action for wrongful death. The defendant filed an answer admitting the allegations of the complaint concerning appointment of the administratrix and the ancillary administrator, denying negligence and asserting contributory negligence and assumption of risk.

As of January 29, 1960, the action had not yet been set for trial. On that day the defendant tendered an amended answer, setting forth that on February 7, 1959, the widow of Gross had been appointed admin-istratrix of his estate by the county court of Fayette County, Kentucky; that such appointment had never been set aside; that by reason thereof the purported appointment of Lawrence as ancillary administrator was void, and he had no capacity to maintain the action. On the basis of the tendered answer with accompanying exhibits the defendant moved for summary judgment.

The plaintiff objected to the filing of the amended answer on the ground that the defendant had not acted in good faith but had deliberately withheld the tendering of his amended answer until after a year had elapsed from the date of the death, in order to be able to assert the statute of limitations against any new action. The plaintiff presented an affidavit, which was not controverted, stating that the defendant’s attorney knew on February 7, 1959, of the appointment by the Fayette County Court.

The plaintiff further submitted an affidavit of the widow stating that her appointment by the Fayette County Court was at the suggestion of a Lexington bank, which had a lien on a car Gross had owned, and that the only purpose of the appointment was to enable sale of the car and withdrawal of a small bank deposit. The affidavit further stated that it was the widow’s impression that the letters of administration from the Fayette County Court were limited. Such an impression appears to have had some justification because the order of appointment recited that no bond or settlement was required.

The appellee maintains that the question raised by the amended answer, of the illegality of Lawrence’s appointment as ancillary administrator, was one of jurisdiction, which could be raised at any time. However, it is clear that the question is merely one of capacity to sue. See Caldwell v. Hoskins, Ky., 312 S.W.2d 616. An amendment raising such a question is not a matter of right.

Under CR 15.01 it is provided that after the expiration of 20 days from the service of an answer the defendant may amend his pleading only by leave of court or by written consent of the adverse party, hut that “leave shall he freely given when justice so requires.” The trial court has a broad discretion in granting leave to amend, but the discretion is not without limitations. In Clay, CR 15.01, it is stated that it should be a condition of granting leave to amend that the party seeking such leave acts in good faith. In Garrison v. Baltimore & O. R. Co., D.C.Pa.1957, 20 F.R.D. 190, the court indicated that significant factors to be considered in determining whether to grant leave to amend are timeliness, excuse for delay, and prejudice to the opposite party.

In the instant case no excuse at all was offered for the delay by the defendant in asserting the defense of lack of capacity to sue. Had the issue been raised promptly there would have been time for a new action to be brought, but if the delayed pleading is permitted to stand the estate of the decedent will have lost its cause of action completely, to its great prejudice. As concerns the matter of good faith there appears to be no basis upon which it could be contended that in deliberately waiting until the limitation statute had run before tendering his answer the defendant acted in good faith.

It perhaps might be argued that the plaintiff himself is not in a position to talk about good faith, since the widow knew of her Fayette County appointment as admin-istratrix and had represented to the county court at the time of her appointment that she and her husband were domiciled in Fayette County. This might be considered as bearing on the question of whether “justice requires” the granting of leave to amend. However, the circumstances do not indicate any actual bad faith on the part of the widow. She apparently assumed that the Fayette County administration, which was initiated on advice of her bank, was merely a formality and was of temporary duration. There was justification for this belief because the order of appointment re-required no bond or settlement. In the absence of a requirement of a settlement any order of discharge at the completion of the administration would have been little more than a formality. In fact, there is room for doubt as to whether there ever was any valid appointment by the Fayette County Court or any effective qualification under that appointment, in view of the attempted waiver by the county court of the statutory requirements of a bond and a settlement. It is our opinion that the plaintiff was not estopped, by virtue of the widow’s participation in and knowledge of the Fayette County administration proceedings, from objecting to the late filing of the amended answer.

It is true, as held by the circuit court, that upon a showing that previously granted letters of administration are still in force, a second grant of letters of administration will be held void. But in order for a party to make such a showing he must have pleaded the illegality of the second grant. If the defendant’s amended answer in the instant case was not properly acceptable by the court the defendant has no basis in pleading on which to attack the plaintiff’s capacity to sue.

It is our opinion that the trial court abused its discretion in permitting the amended answer to be filed, and therefore erred in granting the summary judgment appealed from.

The judgment is reversed with directions for further proceedings in conformity with this opinion.


author: DICE, Commissioner.

text:
    James J. McGEE, Appellant, v. The STATE of Texas, Appellee.
    No. 34276.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    Putman & Putman, by Hal J. Putman, San Antonio, for appellant.
    Charles J. Lieck, Jr., Crim. Dist. Atty., Edward E. DeWees, Jr., Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

The State’s evidence shows that appellant was stopped and arrested around 2 A.M. by Officer Don Garrison after he had clocked appellant driving his automobile at a speed of 80 miles per hour on the Pan American Expressway in the city of San Antonio. Officer Garrison testified that after he stopped appellant, he could smell a strong odor of alcohol on his breath; that his speech was slightly confused; that his walk was “swaying” and expressed his opinion that appellant was intoxicated. He further stated that after appellant had consented to take a drunkometer test he took appellant to “the police station where the test was administered to him by Detective Norman Jarke. Officer William Donald Howe corroborated Officer Garrison in his description of appellant’s actions and appearance at the scene and expressed his opinion that appellant was intoxicated. It was stipulated that if Officer Jarke were called as a witness, he would testify that he gave appellant the drunkometer test in the usual and customary manner and that as a result of the test there were 280 cubic centimeters of water displaced. Officer Jarke was later called as a witness by the State and described in detail the drunkometer test which he administered to appellant. Officer Harold Fisk, assigned to the police laboratory, testified that a drunkometer test which resulted in the displacement of 280 cubic centimeters of water indicated that the blood alcohol content of the person who took the test was .19% and that such percentage was indicative that the person was under the influence of alcohol.

As a witness in his own behalf, appellant testified that he was employed at a brewery and on the day and night in question had worked from 4 P.M. until 1:30 A.M. Appellant admitted that he had consumed six or seven glasses of beer under company rules before getting off work but denied that he was intoxicated. Appellant called several employees of the brewery who observed him at work on the night in question and who expressed their opinion that at such time he was sober.

The jury resolved the disputed issue of intoxication against the appellant and we find the evidence sufficient to sustain their verdict.

Appellant insists that the court erred in admitting the evidence showing the results of the drunkometer test because his consent to take the test was rendered involuntary by reason of certain promises made to him by the arresting officer. Appellant’s contention is based upon the fact that Officer Garrison, in addition to telling appellant that if he took the test and it showed he was intoxicated, it would be used against him, also told him that if it showed that he was not intoxicated, he. would be released. We find nothing in the officer’s statement to appellant that if he passed the test he would be released to render his consent to take the test involuntary. Appellant did not pass the test and there is no showing of bad faith on the part of the officer. We further observe as we did in Davis v. State, 165 Tex.Cr.R. 622, 310 S.W.2d 73, that when appellant testified in his own behalf he made no claim that he was motivated by or relied upon the officer’s statement in agreeing to take the test. In admitting the evidence the court did not err.

Appellant next insists that the court erred in permitting Officer Fisk to testify as to the results of the drunkometer test over appellant’s objection that he was not shown to be qualified as an expert. Officer Fisk testified that he had over two years of chemistry at St. Mary’s University, had attended a short course at Northwestern University studying operation of the Harger Drunkometer and had supervision of the operators of the machine at the San Antonio Police Department. The officer’s education and training was similar to that of Lt. Joe Morales of the San Antonio Police Department which we held sufficient in Fluitt v. State, Tex.Cr.App., 333 S.W.2d 144, to show that he was qualified as an expert in the operation and translation of readings of the Harger Drunkometer Breath Test Machine.

Appellant next insists that the court erred in permitting the State to call Officer Jarke to testify after it had been stipulated before the jury as to what his testimony would be. The record reflects that when the stipulation was made, Officer Jarke was absent from the court because of his duties in civil defense activities during the Storm Carla on the Texas Coast. It was not until after appellant had later objected to the introduction in evidence of a photograph of a drunkometer machine that the officer was called to the stand to identify the photograph. His testimony before the jury was not contrary to that which it had been stipulated his testimony would be. Although the State and appellant had stipulated what the officer’s testimony would be, we find no error in the court’s action in later permitting the officer to testify.

We find no merit in appellant’s contention that the court erred in permitting the State to introduce in evidence a photograph of a Harger Drunkometer Machine over the objection that it was not shown to he a true picture of the machine used at the time appellant was given the breath test. Officer Jarke testified that the photograph was a fair and accurate representation of a Harger Drunkometer and identical to the one used in the police department.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing; the judgment is affirmed.

Opinion approved by the Court.


author: McDonald, justice. WOODLEY, Presiding Judge

text:
    Jackie Lloyd HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 34120.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    Edward T. Miller, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., Jerome V. Chamblerlain, Jr., George R. Milner, J.r., Phil Burleson, Assts. Dist. Atty., Dallas,, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, justice.

The offense is robbery by assault; the punishment, 60 years in the penitentiary.

In view of our disposition of this appeal, we shall not discuss the facts of the case.

Appellant did not testify nor call any witnesses in his own behalf.

This appeal will be disposed of on appellant’s contention that the court’s failure to grant a mistrial, based upon a police officer’s testimony about appellant’s prior police record, was prejudicial error.

While Officer Pat Stroud was testifying as a witness for the State, on direct examination, he stated that he recognized the three men involved in the robbery, and, in answer to the question “Did you know Arthur Ted Bell, Jackie Lloyd Hicks, and Jimmy Kirk on November 22, 1960, Mr. Stroud?” the witness replied, "I was familiar with their mug shots, which I looked at sometime — At this time, an objection was taken and request for a mistrial made. The court sustained the objection and told the jury to disregard the answer and overruled the motion for mistrial.

It is the State’s contention that the answer was harmless, that it was not responsive to the question asked. The State also contends that there is no showing that the mere fact that the officer was familiar with appellant’s “mug shot” is indicative that appellant had a prior police record. The State relies upon Sapet v. State, 159 Tex.Cr.R. 620, 266 S.W.2d 154; Ramsey v. State, 165 Tex.Cr.R. 409, 308 S.W.2d 26; and Bolick v. State, 165 Tex.Cr.R. 493, 309 S.W.2d 74. We have carefully examined all of these cases, none of them being in point.

We might not be confronted with this problem had the jury abided by the trial court’s instruction and disregarded the answer. In viewing the statement of facts in the motion for new trial, we find that juror Balentine referred to Officer Stroud’s testimony about the “mug shot” during the jury’s deliberations, that the foreman warned “We are not supposed to discuss that” when “mug shot” was mentioned, but that the discussion was already had pri- or to the warning being given by the foreman. Juror Bobbie D. White testified that he recalled that the judge had instructed them not to consider any such statement and that the foreman’s remark ended the discussion. Juror J. L. Riddle, called by the State as a witness on the motion for new trial, testified that he heard one of the members of the jury say something about a “mug shot” but that Mr. Houck, the jury foreman, told them not to consider that. Juror Riddle further related that after the statement had already been made the foreman reminded them not to say anything else about it. Juror Alton Bass testified that he heard a discussion about a “mug book.”

In measuring the prejudicial effect upon the appellant of the inadmissible testimony that was voluntarily placed before the jury by the officer’s inadvertent statement, and the failure of the jury to abide by the court’s instruction to disregard the answer given by Officer Stroud, it is clear to us that when four jurors testify that mention was made in their deliberations of this testimony, the jury gave consideration to said testimony. We have here a case of a jury considering the appellant’s character when it had not been put in issue, giving consideration to a statement implying strongly that the appellant had been in previous trouble, when no evidence was introduced showing any previous acts of misconduct or law violation.

In Priest v. State, 162 Tex.Cr.R. 66, 282 S.W.2d 390, we held that evidence similar to that in the case at bar was so highly prejudicial that it could not be cured by the court’s instruction to the jury to disregard it. Here, we have a positive showing that the jury did consider such inadmissible and highly prejudicial evidence in disregard of the court’s instruction, plus the uncontroverted evidence that at least two of the jurors (Balentine and Rose) voted to increase the punishment after consideration of such evidence, which clearly shows injury to the appellant. Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168, and Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748.

Because the trial court erred in refusing to grant a new trial, the judgment is reversed and the cause remanded.

WOODLEY, Presiding Judge

(dissenting).

Jury misconduct is one of the grounds upon which reversal of this conviction is sought. The court’s refusal to order a mistrial when Officer Stroud gave the unresponsive answer that he was familiar with mug shots of appellant and two others involved in the robbery is another.

The majority opinion does not reverse upon either but couples the two claims of error.

It is my view that the trial court did not err in overruling appellant’s motion for mistrial, and did not err in overruling his motion for new trial based upon claimed misconduct of the jury. If this be so, the two claimed errors do not together show reversible error.


author: MORRISON, Judge.

text:
    Lonnie Albert JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34309.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1962.
    Victor R. Blaine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 30 days in jail and a fine of $100.00.

Highway patrolman Crook testified that when he arrived upon the scene of the accident appellant was alone in an upturned automobile which had come to rest in a ditch. He stated that the banister of a nearby bridge was broken and “a two by six driven through defendant’s car that had come off this end of the bridge”; that all the doors of the automobile were locked and the windows rolled up; that he broke one of the glasses, asked appellant if anyone was'with him, and appellant replied that he was alone and had been driving. As Crook was helping appellant out of the ditch and onto the highway, appellant at first laughed but then used vile language and tried to fight him as he put him in the patrol car. Crook stated that appellant smelled strongly of intoxicants, staggered when he walked, and spoke in a slurred manner as if with a thick tongue, and expressed the opinion that he was intoxicated. Appellant was carried to-the Pasadena Hospital, where a specimen of his blood was taken with his consent and mailed to the Department of Public Safety laboratory.

Truck driver Quinn, who was with officer Crook at the time he received a call, accompanied him to the scene, and corroborated the officer’s testimony.

Chemist and toxicologist Byrd of the Department of Public Safety laboratory testified that he ran a test on the blood sample which was identified by Crook and found it to contain .24 per cent alcohol by weight, which was indicative of intoxication.

Appellant did not testify or offer any evidence in his own behalf.

We shall discuss the contentions advanced by appellant in his brief. He first contends that the court erred in permitting officer Crook to testify that in his opinion the automobile had been in the position he found it between 30 and 45 minutes prior to his arrival. He stated that he had been a patrolman for five years, had had occasion to feel the hoods of automobiles in an effort to determine if an automobile had been driven recently, and, based upon the heat of the hood plus the fact that gasoline was still running out of the automobile, he formed his opinion. We conclude that the officer was qualified to express an opinion and can perceive of no injury to appellant from such testimony.

Appellant complains of the testimony of Chemist Byrd on the grounds that there was no proof that the Fisher electro-spectrophotometer which he used in running the test was accurate and in good working condition. The witness testified that he checked the instrument for accuracy each time before it was used and if any repairs were needed it would be returned to the Fisher Company for the same. We find no merit in appellant’s complaint.

Appellant’s last complaint relates to the court’s failure to charge on the law of circumstantial evidence. Recently, in Jarnigan v. State, Tex.Cr.App., 345 S.W.2d 754, we had a similar contention. There, we said:

“Williamson’s testimony that appellant was standing by the truck immediately after the collision, that the door was open, that no one else was nearby, plus appellant’s statement that his brakes had failed, were sufficient facts to constitute direct evidence that appellant had been the driver at the time of the collision.”

The facts before us here are stronger than in Jarnigan.

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


author: CHAPMAN, Justice.

text:
    Mattie L. WEIR, Appellant, v. Lillie G. PETTY, Appellee.
    No. 7106.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 12, 1962.
    Rehearing Denied March 12, 1962.

      Boling & Griffith, Lubbock, for appellant.
    A. W. Salyars, Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment by the court below for Lillie G. Petty, plaintiff-appellee against Mattie L. Weir, defendant-appellant.

Alonzo V. Petty, Jr., son of appellee, borrowed his mother’s automobile to go inspect an apartment. His wife at that time and his mother were riding with him on the occasion, and there is no question but that he was driving the automobile with the owner’s permission. He had a collision with appellant that seriously damaged his mother’s automobile, as a result of which she filed suit against Mattie L. Weir. The jury found the 1951 Ford was worth $350.00 in Lubbock County immediately prior to the collision and worth $50.00 immediately thereafter. The jury also found both appellant and Alonzo V. Petty guilty of negligence, which proximately caused or contributed to cause the collision and resulting damages. Appellant and appellee each submitted forms of judgment. The judgment submitted by appellant denied recovery to Lillie G. Petty. The trial court rejected that form of judgment and awarded damages to appellee. Appellant has perfected appeal from that part of the judgment awarding damages to Mrs. Petty.

There is no question from the record but that the relationship between appellee and her son with respect to her automobile at the time of the collision was one of bailor and bailee. In 8 T.J.2d, Sec. 1, Page 232 it is stated that:

“A bailment may be defined as a delivery of goods for some purpose on a contract, express or implied, whereby after the purpose has been fulfilled, the goods are to be redelivered to the bailor or dealt with according to his direction.”

The automobile was redelivered to the bailor after the collision and was sold by her. Appellee in her brief does not contest the bailment conditions but relies on dissenting opinions in two of the cases hereinafter cited. Thus, the controlling question of law to be decided is whether the contributory negligence of Alonzo V. Petty, Jr., the bailee, is imputable to the bailor and operates to bar a recovery.

This exact question has been decided by the Supreme Court of this state and is contrary to appellee’s contentions here made and to the judgment rendered by the trial court. That court in Rose v. Baker et al., 138 Tex. 554, 160 S.W.2d 515, Syl. 3 said:

* * * where a bailor entrusts his property into the care, custody, and control of a bailee, and damage results to such property while in the hands of the bailee, as a result of negligence on the part of a third party and contributory negligence on the part of the bailee, the contributory negligence of the bailee is imputed to the bailor, so as to bar recovery by bailor in his suit against the negligent third party.”

The court then cited as its authority cases extending all the way from the year 1885 to 1932.

In the Supreme Court case of Rose v. Baker, supra, and the Langford case by the Court of Civil Appeals, cited in the footnote, there were dissenting opinions. We feel the Supreme Court by refusing a writ in the Langford case and continuing to adhere to the same principle, despite a dissent by its Chief Justice in the Rose v. Baker case, has obligated us to the rule above quoted from that case. As stated by Judge Sharp in Rose v. Baker: “Whatever may be the rule in other jurisdictions, the rule herein stated has been long established in this State.” Applying the rule announced in Rose v. Baker to the facts and the theory upon which this case was tried compels us to reverse and render the trial court wherein it awarded damages to appellee: The judgment is reversed to that extent and costs are assessed against appellee.

      . Texas & Pacific Railway Co. v. Tankersley, 63 Tex. 57; Munster v. Hexter, Texas Civ.App., 295 S.W. 245; Langford Motor Co. v. McClung Const. Co., Inc., Tex.Civ.App., 46 S.W.2d 388 (Writ refused) .


author: McDONALD, Chief Justice.

text:
    NATURAL GAS DISTRIBUTING CORPORATION, Appellant, v. Murel WILLIAMS, Appellee.
    No. 3945.
    Court of Civil Appeals of Texas. Waco.
    Jan. 25, 1962.
    Rehearing Denied Feb. 15, 1962.

      Reeves & Reeves, Tyler, Jackson, Walker, Winstead, Cantwell & Miller, Jack Pew, Jr., Dallas, Wardlow Lane, Center, for appellant.
    Bracewell, Reynolds & Patterson, Houston, Dudley Davis, Center, for appellee.
   McDONALD, Chief Justice.

Plaintiff, Williams, instituted this suit as overriding royalty owner, against defendant, Natural Gas Distributing Corporation, alleging that he was entitled to additional money (to that already paid) as the net proceeds from certain gas production by defendant. Trial was to a jury and resulted in a judgment for plaintiff for $60,608.80.

Defendant is a producer of natural gas and operates a pipeline for distribution and sale of natural gas to users and purchasers.

Defendant, in 1953, was desirous of leasing 50 acres which belonged to plaintiff’s father, (as well as additional acreage in the immediate vicinity). Plaintiff assisted defendant to procure such leases under oral agreement for an overriding royalty, and on May 2, 1953 defendant executed an assignment, in writing, to plaintiff, pertinent provisions of which follow:

“WHEREAS, C. Murel Williams caused said lease (the 50 acre lease) to be prepared and signed, procured an abstract covering same, and has rendered other services at considerable expense under an agreement with Lessee (Natural Gas Distributing Corp.) that he would receive ⅛ of %’s overriding royalty interest in said lease, and in any and all other leases with which said 50 acre tract, more or less, covered by said lease should be at any time actually unitized or pooled by Natural Gas Distributing Corporation. * * *.
“On dry gas or casinghead gas, when marketed from said leases, the said C. Murel Williams shall be paid of %’s part of the net proceeds at the well derived therefrom, free and clear of all cost, other than production, severance, pipeline, sales and other direct taxes * * *.
“It is expressly agreed that operations, if any, on said premises, and the extent and duration thereof, as well as the preservation of the leaseholds, or either of them, by rental payments or otherwise, shall be solely at the will of Natural Gas Distributing Corporation ⅜ ⅜ ⅜ >>

Thereafter defendant pooled plaintiff’s parents’ 50 acres with other acreage into a unit containing 575 acres (instead of the conventional 640 acres); in August 1953 defendant completed a gas well on the Williams 50 acres; and on 17 August, 1953 defendant entered into a contract with United Gas Pipe Line Company to sell the gas from the unit to United for 8.5 cents (later to be increased to 9.5 cents) per thousand cubic feet, and to deliver it to United at a point 1 miles from the Williams well.

Defendant paid plaintiff his overriding ⅜ royalty on the basis of the price received from United, that is 8.5 cents and 9.5 cents per thousand cubic feet.

Defendant’s gas pipeline runs past a connection with another well (the Love well) and thence some 50 miles where it furnishes gas for distribution at the towns of Ten-eha, Haslam, Joaquin and Garrison. Schematic diagram of such pipeline follows:

Plaintiff plead 2 separate but related causes of action. In his 1st cause of action he pleaded that some of the gas from the Williams unit was sold to purchasers in excess of the prices paid by United, and he sought an accounting for the gas sold. The gas from the Williams unit was put into the defendant’s pipeline, and from August 1953 to 1 February, 1958 was commingled with gas from the Love well (also from the Chil-dress well not shown in schematic diagram). Although United purchased an amount of gas equal to or in excess of the amount produced by the Williams unit (except for a few months’ period) the gas by virtue of its physical characteristics commingled with the gas from the other wells; some of the gas from the other wells went into the amounts sold to United; and some of the gas from the Williams unit went into the amounts transmitted down defendant’s pipeline for some 50 miles, and which was sold for varying amounts, the highest price during the period being 25 cents per thousand cubic feet.

The juiy found that: 1) gas from the Williams unit went into defendant’s main line;

2) Became so commingled with gas from other wells that it was impossible to determine who was the purchaser of each and every thousand cubic feet;

3) That defendant knew that such commingling of the Williams gas with gas from other wells was taking place;

4) That defendant intended to commingle such Williams gas with the gas produced from other wells;

5) That 25 cents per thousand feet was the highest price paid to defendant by purchasers of gas during the period.

Plaintiff contended for, and the Trial Court adopted the theory of the case, that since the defendant wrongfully commingled the gas on which plaintiff was entitled to an override of ⅛ of “the net proceeds at the well” that the net proceeds of the well were impossible of determination and plaintiff should have his override computed on the basis of the well metered production, at the highest price paid, that is 25 cents. Defendant contended that since it contracted to sell the Williams well production to United for 8.5 and 9.5 cents that it was entitled to compute plaintiff’s overriding royalty on this basis, and had done so. The trial court entered judgment for plaintiff on this phase of the case for $55,070.39.

Plaintiff’s 2nd cause of action is to the effect that defendant orally agreed with plaintiff in consideration of his services to pool the Williams well in a 640 acre unit (which would have permitted greater production) ; and that in failing to do so, plaintiff was damaged in the amount of overriding royalty he received. The jury found that plaintiff and defendant made such an agreement in March, 1953, and that defendant had not carried out its agreement. The Trial Court calculated the increased production of a 640 acre unit as against a 575 acre unit and awarded plaintiff judgment on such increased production computed at 25 cents per thousand feet. This amounted to $5537.80 of the total judgment.

Defendant appeals on 37 points, presenting the following basic contentions:

1) The Trial Court erred in computing the net proceeds at the well on the basis of the highest price paid defendant by any purchaser of gas, because the assignment on which plaintiff bases his suit is on “net proceeds at the well," which is not the highest price paid for any gas purchases.

2) The Trial Court rendered judgment on an erroneous theory that since defendant commingled gas from the Williams well with gas from other wells, and it was impossible to determine the ultimate purchaser of each and every thousand feet of gas produced from the Williams well, the measure of plaintiff’s damage was the highest price paid by any purchaser.

3) The Trial Court erred in rendering judgment for plaintiff for $5537.80 damages because plaintiff’s and defendant’s oral agreement that the Williams unit would contain 640 acres was inconsistent with and superseded by the written assignment of 2 May, 1953, (which gives defendant the right to determine the acreage to be pooled into the unit).

We revert to defendant’s contentions I and 2. The Trial Court held that because defendant had commingled gas from the Williams unit with gas from other units, and because it was impossible to determine exactly who was the ultimate purchaser of each thousand feet of gas from the Williams unit, that defendant must pay plaintiff overriding royalty on the basis of the highest payment received for any gas, which was 25 cents per 1000 feet.

Defendant had a contract with United to buy at 8.5 and 9.5 cents, gas produced from the Williams well. While United purchased more gas than actually produced from the Williams well, (except for a period of a few months), it is undisputed that some of the Williams gas was commingled into defendant’s main line with gas from other wells, and that gas from defendant’s main line was sold for amounts up to 25 cents some 50 miles down the line. Defendant paid plaintiff his override based on the 8.5 and 9.5 cents paid by United, on all gas produced from the Williams welL

Plaintiff was entitled, under his assignment, to 1/8 of ⅜⅛ part of the “net proceeds at the well”. It is obvious that the highest price paid for any gas is not the “net proceeds at the well.” The doctrine contended for by plaintiff and applied by the Trial Court has no application here. Defendant was not guilty of willful misconduct in commingling the gas, as was the producer in Mooers v. Richardson Pet. Co., 146 Tex. 174, 204 S.W.2d 606. (In our case plaintiff Williams received some royalty payment on all gas produced from the well, albeit computed on a basis he disagrees with. In the Mooers case, the royalty owner received no royalty payment computed on any basis, on the “hot oil” run from the well, in violation of the law). In fact the record here reflects that defendant was relying on counsel and trying to pay plaintiff what he was entitled to, albeit that it máy not have done so. Defendant would resolve this question by the amount United paid. The amount United paid would resolve the matter except for the fact that it is undisputed that for “several months”, United purchased less gas than was produced- by the Williams unit. The method defendant seeks to invoke to resolve the question of “net proceeds at the well” is not the complete answer; just as the highest price paid for gas by purchasers along the line is not the complete answer. We think the “net proceeds at the well” to which plaintiff was entitled is a question of fact for the jury to determine (on a month by month basis), from all of the facts and circumstances which might relate thereto. Moreover, we regard this phase of the case as not fully developed.

Plaintiff is entitled to ⅛ of the “net proceeds at the well”. This means money. Defendant had the right to sell the gas to whosoever it chose, and absent fraud or bad faith in such sale, had only the obligation to plaintiff, to pay him ⅛ of the “net proceeds at the well.” The commingling of the gas from the .Williams well with gas from other wells could not prejudice plaintiff under the facts of this case, if United (to whom the gas was contracted to be sold by defendant in August 1953 upon completion of the Williams well), in any accounting month, purchased an amount equal to the total production of the Williams well. Therefore, as a practical matter, we think that if on future trial the proof should show without dispute that, for any accounting month, United purchased as much gas from defendant as the Williams well produced, and paid plaintiff an overriding royalty computed on the price United was paying under its contract, that such payment is conclusive on plaintiff, that he received that to which he was entitled. (Actually such computation does not take into account expenses for transmitting the gas the 1 Yz miles from William’s well to the United meter point).

For the months that United did not purchase the entire production of the Williams well a different problem is presented, and what constitutes “net proceeds at the well” from all sales of gas during such period must be determined as a factual issue as noted above.

It follows that defendant’s contentions 1 and 2 are sustained and this portion of the judgment relating to this phase of the case is reversed and remanded.

Defendant’s 3rd contention related to the Trial Court’s judgment for $5537.80 for damages because defendant breached his oral agreement with plaintiff to pool the Williams land into a unit containing 640 acres (instead of the 575 acres it actually contained).

The jury found that plaintiff and defendant made such an oral agreement on 23 March, 1953. It is undisputed that defendant executed the written assignment made the basis of plaintiff’s suit on 2 May 1953. Such assignment provides plaintiff shall have an overriding royalty in the lease on his parents’ 50 acres and “in any and all leases with which such lease should at any time be actually unitized or pooled by Natural Gas Distributing Corporation. Such assignment then provides:

“It is expressly agreed that operations on said premises, and the extent and duration thereof, as well as the preservation of the leaseholds, or either of them, by rental payments or otherwise, shall be solely at the will of Natural Gas Distributing Corporation * * ⅜»

Guarantee Life Ins. Co. v. Davidson, Tex.Com.App., opinion adopted, 234 S.W. 883 states the parol evidence rule as follows:

“A contract which has been reduced to writing, and imports on its face a complete expression of the whole agreement, without any uncertainty or ambiguity as to the object and extent of the engagement, must be taken as expressing the final views of the parties, as well as the full consummation of their undertaking.
“In the absence of fraud, accident, or mistake, parol evidence is inadmissible to vary, alter, or add to the terms of a written contract, clear in its terms, unless upon its face it in some manner rebuts the presumption that it is complete. This rule forbids the adding by parol where the writing is silent, as well as to vary where it speaks ’’

The effect of the parol evidence rule has more recently been stated by our Supreme Court in Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, as follows:

“When parties have concluded a valid integrated agreement with respect to a particular subject matter, the rule precludes the. enforcement of inconsistent prior or contemporaneous agreements.”

See aslo Albers v. Schumacher Co., Tex.Civ.App., 314 S.W.2d 852 (N.W.H.).

The written assignment from defendant to plaintiff, of his overriding royalty, is not incomplete or ambiguous. Plaintiff does not even contend that it was. There is no issue of fraud, accident or mistake. We think plaintiff simply attempts to en-graft upon the assignment a prior oral agreement.

The written assignment does not obligate defendant to construct a unit of any particular size. It simply recites that plaintiff shall receive an overriding royalty in “any” leases that should “actually” be placed by defendant in the unit.

The claimed prior oral agreement was not simply an agreement to place 640 acres in the Williams unit; it was an oral agreement to place 640 acres of leases in the unit and keep them there. Yet the assignment specifically provides that the “extent and duration” of operations on the premises “as well as the preservation of the leaseholds, or either of them, by rental payments or otherwise, shall be solely at the will of Natural Gas Distributing Corporation.” Thus defendant had the right under the assignment to release or abandon any of the--leases which should at any time be actually unitized or pooled by it. Defendant was not required to keep any particular amount of acreage in the unit, much less 640 acres.

We think any oral agreement plaintiff and defendant had with reference to the inclusion of 640 acres in the Williams unit is “an addition to” and “inconsistent with” the written assignment which, under the authorities cited, must govern.

The contention is sustained and the portion of the judgment relating to this phase of the case is reversed and rendered that plaintiff take nothing.

Plaintiff’s cross assignments have been considered and are overruled.

Reversed and rendered in part.

Reversed and remanded in part.