text:
    NORFOLK AND WESTERN RAILWAY COMPANY, a Corporation, and Wabash Railroad Company, a Corporation, Appellants, v. MISSOURI STATE TAX COMMISSION, Hunter Phillips, Howard L. Love, J. Ralph Hutchison, Members of the Missouri State Tax Commission, and J. R. Towson, Secretary of the Missouri State Tax Commission, Respondents.
    No. 51943.
    Supreme Court of Missouri, Division No. 1.
    Dec. 30, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 13, 1967.
    Motion for Stay of Mandate Filed and Sustained Feb. 21, 1968.
    Probable Jurisdiction Noted Oct. 9, 1967. See 88 S.Ct. 84.
    On Remand May 7, 1968.

      Charles L. Bacon, David R. Hardy, Frederick Beihl, Kansas City, John F. McCartney, St. Louis, for appellants. Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel.
    Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondents.
   HIGGINS, Commissioner.

Proceeding under Section 536.100 et seq., V.A.M.S., for judicial review of a final decision of the State Tax Commission of Missouri. The circuit court affirmed the decision, and the railroad’s appeal involves construction of the revenue laws of the state.

Appellants Wabash and Norfolk and Western entered into a lease effective October 16, 1964, whereby N & W leased all of the rolling stock and roadbed owned by Wabash in Missouri and elsewhere. As part of the payment due under the lease, N & W is to pay all taxes on the demised property. Also effective October 16, 1964, were a merger of the New York, Chicago and St. Louis Railroad Company (Nickel Plate) with N & W and a lease of the rolling stock and roadbed of the Pittsburgh and West Virginia Railway Company by N & W. Prior to the leases and merger Nickel Plate, P & WV, and N & W did not run into Missouri.

Appellants furnished statements required of all affected railroads by Section 151.020, V.A.M.S., “setting out in detail the total length of their road so far as completed, including branch or leased roads, the entire length in this state, and the length of double or sidetracks, with depots, water tanks and turntables, the length of such road, double or sidetracks in each county, [etc.,] * * *; the total number of engines and cars of every kind and description, including all palace or sleeping cars, passenger and freight cars, and all other movable property owned, used or leased by them on the first day of January in each year, and the actual cash value thereof.” On June 2, 1965, N & W was notified that its assessment for 1965 taxes on such properties was $31,298,939. The notice advised also that a hearing relative to the assessment would be held June 15, 1965, and “please be prepared to submit detailed information on leased equipment including copies of such leases and any other pertinent data.” The hearing was recessed until June 23, 1965, at which time appellants offered evidence on various matters including the depreciated value of property in the name of Wabash alone, studies concerning rolling stock actually in Missouri, the nature of appellants’ business including coal hauling in the eastern United States, and figures relating to locomotives and coal hoppers employed in the coal-hauling portion of appellants’ business. Appellants’ corporate status and the commission’s mode of computation were stipulated.

The commission entered its Findings of Fact, Conclusions of Law and Decision:

“FINDINGS OF FACT

“The Petitioner, Norfolk and Western Railway Company, is incorporated under the laws of the Commonwealth of Virginia with its principal office and place of business in Roanoke, Virginia; The Wabash Railroad Company is incorporated under the laws of Ohio with its principal offices and places of business in Wilmington, Delaware and Philadelphia, Pennsylvania. Norfolk and Western Railway Company owns no track or roadbed within Missouri but leases all of the track, roadbed, rolling stock and all other property owned by the Wabash Railroad Company in this State, pursuant to a lease dated March 1, 1961, as amended October 1, 1964, effective as of October 16, 1964. Petitioner owns and leases an extensive railway system which it operates in States other than the State of Missouri.

“Pursuant to the information submitted by Petitioner to the Commission on Form 1, on May 15, 1965, the State Tax Commission of Missouri, on June 2, 1955, placed a total assessed valuation of $31,298,939 on Petitioner’s property in Missouri for taxes for the year 1965.

“Said Assessment included an assessed value for roadbed in the amount of $11,677,875; for buildings in the amount of $499,722; and for rolling stock in the amount of $19,981,757, less $860,415, which is deducted by the Commission as an economic factor, which factor is allowed all railroads in varying amounts.

“To arrive at assessed value of rolling stock taxable in the State of Missouri, the Commission determined the assessed value of the entire rolling stock of the Petitioner, wherever situated, for the year 1965, to be in the amount of $513,309,877. This was arrived at as in all other railroad assessments made by the State Tax Commission of Missouri, by taking the original cost of the equipment by the year of acquisition and allowing five percent depreciation per year but with a maximum depreciation of Seventy-five percent of original cost. Thereafter, in this case, as in the case of all railroad assessments for the year 1965, a factor of forty-seven percent was applied by the State Tax Commission resulting, in this case in the figure of $241,255,-643. The track formula was then determined and it was found that 8.2824 percent of all of the main and branch line tracks owned or leased everywhere by Petitioner, were leased, owned, or controlled by Norfolk and Western in Missouri. This percentage of the above value of the depreciated rolling stock was determined to be $19,981,757 and was by the Commission stated to be the value of the rolling stock properly taxable in Missouri. The figures used in this determination were furnished the Commission by Petitioner in Form 1, which was filed with the Commission.

“That from the total value of the fixed property, which includes the roadbed and buildings, assessed in Missouri at $12,177,-597 which property was owned by the Wabash Railroad Coampany and leased to Norfolk and Western, plus the above assessed value of the rolling stock and all other property, the sum of $860,415 was deducted by the Commission as an economic factor, which factor is allowed all railroads in varying amounts, and that as a result of the above method of assessment and computation, a total assessed valuation was made of $31,298,939.

“No assessment has been made against Wabash Railroad Company for the property leased to Petitioner.

“The Petitioner, on June 15, 1965, filed a request for adjustment and equalization of assessment and for a hearing with respect thereto, and such hearing was granted and such rehearing heard on June 23, 1965, at the Offices of The State Tax Commission of Missouri, 501 Jefferson Building, City of Jefferson, Cole County, Missouri, and the Commission then considered the assessment placed on said property by it as of January 1, 1965. The Railway and Commission agreed that the hearing held on June 23 constituted an exhaustion of administrative remedies of the Petitioner.

“At said hearing, the Petitioner introduced evidence consisting of testimony supplemented by exhibits for the purpose of showing assessed valuation placed by the Commission on the rolling stock of Petitioner was excessive and resulted in an unjustified discrimination against Petitioner in violation of the Constitutions, both of the United States and of the State of Missouri. The Petitioner did not challenge the amount of the assessment on its fixed properties.

“The State Tax Commission of Missouri has adopted uniform procedures and methods to determine the true value in money of the railroad property for assessment purposes within the State of Missouri. Such procedures and methods are designed to value all railroad property within the State of Missouri uniformly and equally with all other property within the State of Missouri. Such procedure and methods were used in assessing and valuing the petitioner’s property as of January 1, 1965. The evidence failed to disclose that the property of the Petitioner was ever placed on sale in the open market.

“Utility company valuations are made by the State Tax Commission as to the distributable property and rolling stock of railroads while other properties are assessed locally by county and township assessors. The relative values of sales ratio assessments and utility assessments are separate and distinct in that there are two methods used in arriving at values, and there is no basis for comparison between the valuation of the sale of a farm or a home based on revenue stamps attached to the deed and the valuation of utility property which is not being sold frequently, or ever. There is no similarity in these two types of property or in the method of arriving at the valuations for assessing purposes thereof.

“CONCLUSIONS OF LAW

“All railroads now constructed, in the course of construction, or which shall hereafter be constructed in this State and all property, tangible personal property, and intangible personal property owned, hired or leased by any railroad company or corporation in this State shall be subject to taxation, and taxes assessed on real property, and tangible personal property shall be assessed in the manner set forth in Chapter 151, R.S.Mo.

“Property shall be assessed for tax purposes at its true value in money or such percentage of its true value in money as may be fixed by law. There is no such thing as an absolute true value of property. The values mentioned in the Statutes are the valuations of officials whose duty it is to make them. Property, including railroad property, is not a commodity which has a fixed market value at a given period. The value is determined always by the estimate of the party who values it; all presumptions will favor the correctness of the valuations of the officials whose duty it is to make them; and their good faith and the validity of their acts is presumed. The State Tax Commission of Missouri is the sole judge of the credibility of witnesses appearing before it.

“Every owner, lessor or party having an interest in property shall have the right to appeal and to a rehearing under rules prescribed by the State Tax Commission. The said Commission shall investigate all such appeals or motions for rehearing or protests of assessments and shall correct any assessment which is shown to be unlawful, unfair, improper, arbitrary or capricious.

“In assessing, adjusting and equalizing a railroad property for any year or years, the State Tax Commission may arrive at its finding, conclusion and judgment, upon its knowledge, or such information as may be before it, and shall not be governed in its findings, conclusions and judgment by the testimony which may be adduced, further than to give to it such weight as the Commission may think it is entitled to; provided, that when any railroad shall extend beyond the limits of this State and into another state in which a tax is levied and paid on the rolling stock of such road, then the said Commission shall assess, equalize and adjust only such proportion of the total value of all the rolling stock of such railroad company as the number of miles of such road in this state bears to the total length of the road as owned or controlled by such company.

“In determining the total length of the road of railroad company for the purpose of determining its tax assessment, the Commission is required to take into consideration the track which is operated partially under the control of the railroad under trackage agreements as well as that which is owned by the railroad, even though such trackage agreement does not provide for the exclusive use by the railroad of the track in order to require it to be taken into consideration.

“The Assessment of the rolling stock of the Petitioner was determined in accordance with Chapter 151, R.S.Mo., particularly Section 151.060-3, in that said assessment was determined by taking that percentage of the total value of all the rolling stock of the Petitioner that the number of miles of the trackage of Petitioner in this State bears to the total length of the road as owned or controlled by Petitioner wherever situated.

“Section 151.060-3 R.S.Mo., which prescribes the formula by which the Commission determined the assessed valuation on Petitioner’s rolling stock in the State of Missouri, provides a fair and reasonable method to determine that amount of rolling stock of any railroad which extends beyond the limits of the State which may be taxed by this State and does not constitute a violation of any of the rights or privileges guaranteed by the Constitution of Missouri or the Constitution of the United States.

“This formula, as used in conjunction with the determination of value using depreciation and a forty-seven percent equalization factor together with the deduction of the economic factor as set out in the Findings of Fact, were used uniformly by the Commission to arrive at assessments of the rolling stock of the various railroads in this State, and to apply this formula to some railroads and not to others would be arbitrary and discriminatory.

“The evidence adduced by the Petitioner does not show that the valuation placed upon' the rolling stock of Petitioner was grossly excessive, nor that such assessment resulted in an unlawful or unconstitutional taxation of any property of Petitioner, nor does the evidence adduced by the Petitioner show that in applying the formula herein indicated that the Commission acted in an unlawful, unfair, improper, arbitrary or capricious manner.

“DECISION

“The Commission, after giving due consideration and study to the records, evidence and data submitted on behalf of the Commission and studying the transcript of the proceedings before it, finds that the valuation of the Petitioner’s property for the year 1965 should be as follows: Thirty-One Million Two Hundred Ninety-Eight Thousand Nine Hundred Thirty-Nine Dollars, ($31,298,939).”

Upon appeal to the circuit court the decision was affirmed without additional findings of fact or conclusions of law and, on this appeal, appellants “do not challenge the amount of the assessment of the fixed properties located in Missouri, but do challenge the manner in which assessment was made of the rolling stock, the amount of rolling stock apportioned to Missouri and the resulting excessive assessment of rolling stock.” Appellants also do not question the total depreciated valuation of the entire rolling stock of N & W, $513,309,877, the method of depreciation, the 47 percent adjustment and equalization factor, and the $860,415 economic factor.

Appellants’ contention is stated: “I. The Trial Court Erred in Affirming the Decision of the State Tax Commission, Its Findings of Fact and Conclusions of Law, and Its Assessment of Rolling Stock Against Norfolk and Western Railway, Because Such Assessment Contravenes the Due Process Clause (Section 1) of the Fourteenth Amendment to and the Commerce Clause (Article I, Section 8) of the Constitution of the United States and the Due Process Clause of the Constitution of the State of Missouri (Article I, Section 10), in That:

“(A) The Track Formula (Sec. 151.060 (3)) Was Arbitrarily and Erroneously Applied by the Commission As the Sole Method of Apportioning Rolling Stock to Missouri, Inasmuch As the Uncontradicted Evidence Established (1) a Grossly Uneven Distribution of N & W Rolling Stock Throughout Its Operations, and (2) That the Percentage of All Units, Located in Missouri at Any Given Time, Varied Substantially from the Percentage in Missouri of All Miles of Road of the Railroad.

“(B) The Tax Commission, by Its Use of the Track Formula, Alone, under the Facts of This Case, Apportioned to Missouri a Grossly Excessive Amount of Rolling Stock, with No Fair, Necessary, or Reasonable Relation to the Units of Rolling Stock Actually Present in Missouri on January 1, 1965, or to the Average Number of Units Regularly and Habitually Used in Missouri During 1964, or to the Value of Such Units.

“(C) The Tax Commission, by the Invalid and Improper Use of the Track Formula, Alone, under the Facts of This Case, Apportioned to Missouri a Grossly Excessive Amount of Rolling Stock, and Thereby Included in the Assessment Property with No Tax Situs in Missouri.

“II. * * * Because the Decision of the Commission, its Findings of Fact, and Conclusions of Law are not Supported by Competent and Substantial Evidence Upon the Whole Record.”

The State Tax Commission of Missouri has the exclusive power of original assessment of railroads, railroad cars, and rolling stock, Section 138.420(1), V.A.M.S.; “all real property, tangible personal property, and intangible personal property, owned, hired or leased by any railroad company or corporation in this state, shall be subject to taxation,” Section 151.010, V.A.M.S.; and “In assessing, adjusting and equalizing any railroad property * * * the state tax commission may arrive at its finding, conclusion and judgment, upon its knowledge, or such information as may be before it, and shall not be governed in its findings, conclusions and judgment by the testimony which may be adduced, further than to give to it such weight as the commission may think it is entitled to; provided, that when any railroad shall extend beyond the limits of this state and into another state in which a tax is levied and paid on the rolling stock of such road, then the said commission shall assess, equalize and adjust only such proportion of the total value of all the rolling stock of such railroad company as the number of miles of such road in this state bears to the total length of the road as owned or controlled by such company”, Section 151.060(3), V.A.M.S.

Appellants recognize that a state may impose an apportioned tax on the value of the rolling stock of a nondomiciliary railroad in the manner contemplated by the Missouri statutes, “that precision may not always be reached in taxing property of a foreign corporation which moves in interstate commerce,” and they “make no claim that the track formula is per se invalid,” thus limiting the question as to whether Missouri’s method, Section 151.060(3), valid on its face, meets the test of reasonable or fair and workable apportionment in its application to N & W in this case. General Motors Corp. v. District of Columbia, 380 U.S. 553, 562, 85 S.Ct. 1156, 14 L.Ed. 2d 68; Norfolk and W. R. Co. v. State of North Carolina, 297 U.S. 682, 685, 56 S.Ct. 625, 80 L.Ed. 977; St. Louis Southwestern Ry. Co. v. State Tax Commission of Mo., Mo., 319 S.W.2d 559, 561 [1],

It has been repeatedly recognized in connection with statutes similar to Section 151.060(3) that an appropriate and constitutional method of assessment of an interstate railroad is to determine the value of the entire system “as a homogeneous unit representing a single profit-earning business,” 51 Am.Jur., Taxation, § 877, and then to assign a percentage of that valuation to the taxing state according to some fair and reasonable method of apportionment. 84 C.J.S. Taxation § 426(c). The courts have long considered that the valuation of the entire rolling stock of railroads under a unit method of assessment and the apportionment of that value to the taxing state in the proportion the number of miles of railroad operated in the taxing state bears to the total mileage of railroad in the entire system, is an equitable and eminently fair method of arriving at an assessment of rolling stock. Pullman’s Palace Car Co. v. Commonwealth of Pennsylvania, 141 U. S. 18, 26, 11 S.Ct. 876, 35 L.Ed. 613; Pittsburgh, etc., R. Co. v. Backus, 154 U.S. 421, 431, 14 S.Ct. 1114, 38 L.Ed. 1031; Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 174, 69 S.Ct. 432, 93 L.Ed. 585. The theory underlying such method of assessment is that rolling stock regularly employed in one state has an enhanced or augmented value when it is connected to, and because of its connection with, an integrated operational whole and may, therefore, he taxed according to its value “as part of the system, although the other parts be outside the state; in other words, the tax may be made to cover the enhanced value which comes to the property in the state through its organic relation to the system.” Pullman Co. v. Richardson, 261 U.S. 330, 338, 43 S.Ct. 366, 368, 67 L.Ed. 682. See also Judson on Taxation, 2d Ed., §§ 258-268, discussing development of the unit method and mileage apportionment or “rule of entirety” as an acceptable method of valuation of interstate railroads; 2 Cooley, Taxation, 4th Ed., § 805, on the philosophy of taxation of railroad companies by mileage apportionment; and St. Louis Southwestern Ry. Co. v. State Tax Commission of Mo., supra, 319 S.W.2d 1. c. 562 [4, 5], describing the theory of Section 151.060 as being “that the rolling stock is substantially evenly divided throughout the railroad’s entire system, and the percentage of all units which are located in Missouri at any given time, or for any given period of time, will be substantially the same as the percentage of all the miles of road of the railroad located in Missouri.” And it has been held that such methods are not an “attempt to tax property having a situs outside of the state, but only to place a just value on that within.” Adams Express Co. v. Ohio State Auditor, 165 U.S. 194, 227, 17 S.Ct. 305, 311, 41 L.Ed. 683.

Of course, even if the validity of such methods be conceded, the results, to be valid, must be free of excessiveness and discrimination. Caution in application of such methods has been suggested in many cases, for example. Braniff Airways, Inc. v. Nebraska State Board, 347 U.S. 590, 603, 74 S.Ct. 757, 765, 98 L.Ed. 967: “Property in transit may move so regularly and so continuously that part of it is always in the State. Then the fraction, but no more, may be taxed ad valorem.” Fargo v. Hart, 193 U.S. 490, 500, 24 S.Ct. 498, 500, 48 L.Ed. 761: “So long as it fairly may be assumed that the different parts of a line are about equal in value, a division by mileage is justifiable. But it is recognized * * * that if, for instance, a railroad company had terminals in one state equal in value to all the rest of the line through another, the latter state could not make use of the unity of the road to equalize the value of every mile. * * * The same principle applies to personal property which the state would not have the right to tax directly.” Pittsburgh, etc., R. Co. v. Backus, supra, 154 U.S. 1. c. 431, 14 S.Ct. 1. c. 1119: “ * * * there may be exceptional case-es, * * * as, for instance, where the terminal facilities in some large city are of enormous value, and so give to a mile or two in such city a value out of all proportion to any similar distance elsewhere along the line of the road, or where, in certain localities, the company is engaged in a particular kind of business, requiring for sole use in such localities an extra amount of rolling stock.” See also Wallace v. Hines, 253 U.S. 66, 40 S.Ct. 435, 64 L.Ed. 782; Rowley v. Chicago & N. W. R. Co., 293 U. S. 102, 55 S.Ct. 55, 79 L.Ed. 222; Union Tank Line v. Wright, 249 U.S. 275, 39 S. Ct. 276, 63 L.Ed. 602; Southern Ry. Co. v. Commonwealth of Kentucky, 274 U.S. 76, 47 S.Ct. 542, 71 L.Ed. 934; Hans Rees’ Sons v. State of North Carolina, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879; Kansas City Ft. S. & M. R. Co. v. King, 6 Cir., 120 F. 614, refusing application of mileage apportionment to accomplish obvious arbitrary or excessive results.

The stipulation and the findings and conclusions show that the commission did assess, adjust, and equalize, as required by statute, Section 151.060, and in keeping with a reasonable exercise of the philosophy of the unit method and mileage apportionment there provided. The commission ascertained the depreciated value of the rolling stock of N & W as of January 1, 1965, from the return filed by N & W pursuant to Section 151.020. That value was obtained by application of an allowable depreciation of five percent per year with a maximum of 75 percent against the original cost. To the resulting figure, $513,309,877, the factor of 47 percent, used to equalize all railroad property in Missouri, was applied to equalize the total or entire value of N & W rolling stock with the valuation of other properties in Missouri. A percentage was then obtained by determining the proportion the mileage in Missouri, 627.61, bore to the total mileage in the N & W system, 7577.55. The proportion thus obtained, 8.282 percent, was then applied to the equalized value of N & W rolling stock to determine the amount of N & W property subject to taxation in Missouri. This amount was further adjusted by deduction of an economic factor of $860,415 from the assessed valuation of fixed and movable property of N & W in Missouri and resulted ultimately in the valuation of N & W rolling stock of $19,981,757. The total process thus described constitutes the assessment of N & W, all as required and provided by Section 151.060, and such assessment was made in the same manner as for all other railroads in Missouri.

Appellants introduced evidence before the commission to show that the average depreciated, equalized value of rolling stock regularly used in Missouri in 1964 and on January 1, 1965, was $7,014,723 and that, while 8.2824 percent of all N & W miles were in Missouri, only 2.71 percent of all N & W units having 3.16 percent of the total depreciated, equalized value of N & W rolling stock was in Missouri on January 1, 1965. Such evidence came from exhibits showing the employment by N & W of most of its coal-hauling equipment in hauling coal from Virginia, West Virginia, and Kentucky to the eastern ports and manufacturing centers and to the Great Lakes region. Similar exhibits showed that part of the system originally operated as Wabash to be utilized mainly for hauling general merchandise between Missouri and Iowa and the east, with but a small portion of coal hauling in that area. Exhibits also showed the depreciated values of equipment belonging to the individual railroads prior to the leases and merger which put together the N & W system. These, of course, showed that the bulk of the coal-hauling equipment now in the total system came from those roads which originally served the coal-producing and demanding areas prior to the merger of all the roads into a more comprehensive and diversified system which now employs its entire rolling stock to meet the demands of a larger system serving a greater area. Other exhibits showed that the leases and merger brought about no increase in the average amount of Wabash, N & W, Nickel Plate, and P. & W. V. cars in Missouri.

Use of the average number of units in the state has been held to be a fair method of assessment of interstate rolling stock, Central R. Co. of Pa. v. Commonwealth of Pennsylvania, 370 U.S. 607, 82 S.Ct. 1297, 8 L.Ed.2d 720; Marye v. Baltimore & O. R. Co., 127 U.S. 117, 8 S.Ct. 1037, 32 L.Ed. 94; American Refrigerator Transit Co. v. Hall, 174 U.S. 70, 19 S.Ct. 599, 43 L.Ed. 899; however, figures thus obtained are not conclusive on whether the N & W assessment for 1965 based on mileage apportionment is unconstitutional, arbitrary, or grossly excessive. Nor are the figures of 2.71 percent of the total rolling stock constituting 3.16 percent of the total value conclusive on the matters of substantially even division of rolling stock and mileage throughout the system because, quite obviously, they do not recognize any justified enhanced or augmented value to the portion actually in Missouri brought about by being merged into the entire N & W system. See Union Tank Line Co. v. Wright, supra, 249 U.S. 1. c. 282, 39 S.Ct. l. c. 278: “While the valuation must be just it need not be limited to mere worth of the articles considered separately but may include as well ‘the intangible value due to what we have called the organic relation of the property in the state to the whole system.’ ” In Pittsburgh, etc., R. Co. v. Backus, supra, the assessed railroad was created between April 1, 1890, and April 12, 1891, by merger of several existing roads. Prior to the merger, the Indiana portion of the merged property had been assessed at $8,538,053, and the postmerger assessment was $22,666,470, approximately the same increase as that involved here. Complaint of unconstitutional valuation was attempted to be supported in much the same manner as here and was answered: “Still, it must be borne in mind that a mere increase in the assessment does not prove that the last assessment is wrong. Something more is necessary before it can be adjudged that the assessment is illegal and excessive, and the question which is to be now considered is whether the testimony shows that the assessment made by the state board can be adjudged illegal.” 154 U.S. 1. c. 432, 14 S.Ct. l. c. 1119.

Much of appellants’ argument is based on comparisons of the Missouri portion of the original Wabash system to the total Wabash system prior to the lease to N & W, but surely the parties to the leases and merger thought that the merged system would be more valuable than its component parts. Otherwise, common sense would suggest they remain as separate, smaller, noninte-grated entities, and it makes equally good sense for the coal-hauling equipment to be continued in the area where it is most needed. Consideration of the total value of N & W rolling stock, including its coal-hopper cars and coal-region diesel engines, in arriving at the valuation of that part of the N & W system in Missouri is not like the situations presented, for example, in Wallace v. Hines, supra, where the cost of building railroads in neighboring mountain states was out of proportion to the cost of construction in North Dakota, the taxing state; in Union Tank Line Co. v. Wright, supra, where the number of cars of a New Jersey tank-line company claimed by Georgia bore no relation to the percentage Georgia’s railroads bore to all railroads in the country; in Fargo v. Hart, supra, where bonds of an express company in New York bore no relation to the valuation of the company’s express business in Indiana; and in Pittsburgh, etc., R. Co. v. Backus, supra, recognizing the exceptional case of terminals of enormous value in one city out of all proportion to any other distance on the line, and the use in certain localities of a particular kind of business requiring an extra amount of rolling stock for that part of the line only. An example of the last suggestion might be the employment in a mining operation of narrow gauge rails and cars which could not be used throughout the entire system.

Appellants’ figures also showed that the depreciated value of rolling stock previously owned by Wabash alone would be $82,456,-813, as compared to $241,255,643 for the entire merged system. They concede that if, on the 1965 return, the commission had applied the formula to the Wabash part of the system and properties alone, the assessment would have amounted to $10,103,340. Certainly, no unconstitutional disproportion is revealed in an assessment of $19,981,757 against a total valuation of $241,255,643, when compared to $10,103,340 assessed against $82,456,813, and such proportion in no way approaches the differential of 600 percent criticized in Union Tank Line Co. v. Wright, supra. See also Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254, where an assessment of $23,996,604.14 was held not excessive in comparison to the railroad’s figure of $16,021,296.

The decision of the state tax commission must, of course, be supported by competent and substantial evidence upon the whole record. Drey v. State Tax Commission, Mo., 345 S.W.2d 228. In this case the decision receives ample support from those items taken directly from appellants’ statutory return of properties used in connection with mileages both within and without Missouri, “habitually, constantly and regularly used as an essential part of Norfolk and Western Railway Company within the meaning of Section 151.060.” The evidence was also such as to give the commission substantial knowledge and information on the scope and type of operation conducted by N & W as well as the manner in which the operation measured by the Missouri mileage fits into the entire N & W scheme. Under the authorities that is sufficient because “(t)here is no such thing in assessments as an absolute ‘true value,’ and an assessment is, at best, a mere estimate; a presumption exists that the assessed valuation is correct, and the courts have no right to substitute their judgments, as such, for the values fixed by the assessor or by reviewing boards * * * and a taxpayer has the burden of establishing a discrimination.” Cupples Hesse Corp. v. State Tax Commission, Mo., 329 S.W.2d 696, 700 [3-6]. Such presumption is rebuttable, of course, Koplar v. State Tax Commission, Mo., 321 S.W.2d 686, 693 [3], but it is not sufficient to assert that use of the track formula alone could well result in a “figure approximating the value of the property actually in the state” without demonstrating that or similar situation to be the case. The commission noted in its decision its prerogative of judging credibility of witnesses, and it was free to weigh, determine relevancy, and disbelieve appellants’ evidence on the issues presented. May Dept. Stores Co. v. State Tax Commission, Mo., 308 S.W.2d 748, 761 [16]. It is not necessary to analyze further all the evidence or to point out all the permissible inferences, it being sufficient to say that a formula alone was not the only item available to the commission’s consideration. “The noted evidence and its reasonably permissible inferences establishes the presence of other factors and, in short, substantially supports the order and finding of the commission.” State ex rel. Platz v. State Tax Commission, Mo., 384 S.W.2d 565, 568 [7].

Judgment affirmed.

WELBORN, C., concurs.

HOUSER, C, not participating.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

HENLEY and HYDE, JJ., and STORCKMAN, Alt. J., concur.

HOLMAN, P. J., not sitting.

ORDER

The Supreme Court of the United States having vacated the judgment of this court affirming the judgment of the circuit court of Cole county and having remanded the cause to this court for further proceedings,

It is ordered that this cause be, and it is hereby, remanded to the circuit court of Cole county with directions that it remand the cause to the Missouri State Tax Commission for further proceedings not inconsistent with the decision of the Supreme Court of the United States handed down March 11, 1968, 390 U.S. 317, 88 S.Ct. 995, 19 L.Ed.2d 1201.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    William A. SETTLE, Appellant, v. George V. TRIPLETT. Committee for Harvey Willett, an Incompetent, Appellee.
    Court of Appeals of Kentucky.
    March 22, 1968.
    Thomas E. Sandidge, Sandidge & San-didge, Owensboro, for appellant.
    Grover C. Cox, Owensboro, for appel-lees.
   DAVIS, Commissioner.

This appeal presents a facet of the controversy respecting the potential rights of Harvey Willett to a share in the estate of Joseph G. Settle, deceased. See Willett v. Triplett et al., Ky. (decided March 29, 1968).

William A. Settle, the appellant, initiated a proceeding under CR 60.02 in the Da-viess County Court attacking that court’s order appointing George V. Triplett as Committee for Harvey Willett. The county court entered a judgment denying the relief, and Settle appealed to the Daviess Circuit Court where judgment was rendered affirming the ruling of the Daviess County Court. It is from the latter ruling that this appeal is prosecuted.

The appellant contends that the order appointing Triplett as Committee for Harvey Willett was void ab initio because the county court had no jurisdiction of the parties or the subject matter involved.

It is asserted for appellant that the appointment of the committee by the county court was illegal in that there was not substantial compliance with KRS 387.025 and KRS 395.016 relating to fixing a time for hearing of such an application and providing for notice of the time, place, and purpose of the hearing at least five days prior to the date of hearing. The record reflects that when the application for appointment of the committee was filed in the county court there was no date set for hearing nor notice by registered mail furnished to any person. However, there was a showing that some of the persons who would have been entitled to notice purportedly waived notice as permitted by KRS 395.016. The appellant assails the efficacy of the attempted waivers of notice in some detail, but our view of the case makes it unnecessary for us to consider these arguments in depth.

The order appointing appellee as committee was entered by the county court on February 25, 1965. The motion to vacate and set aside that order, which initiated the proceeding now on appeal, was filed- in the county court on May 5, 1966. A hearing on the merits of the motion was held by the county court, and all persons having any legal interest in the matter were before the court and had full opportunity to present all legal objections to the validity of the original order of appointment. It seems to us that the rationale of Logsdon v. Logsdon, Ky., 334 S.W.2d 919, rules the present appeal. In Logsdon an effort was made in the county court to set aside the appointment of a guardian made in that court. It appeared in Logsdon that there were procedural irregularities as to notice and naming of parties respecting the original application for appointment. However, when the appointment was attacked, there were various hearings at which all of the interested persons were afforded opportunity to be heard. In Logsdon the court pointed out:

“ * * * As a procedural matter it would have been better practice for the county court to have set aside the original order and re-entered it after the hearing on appellant’s motion, but this was the legal effect of what was done and the form of the order is not material on the basic issue in the controversy.
“Insofar as appellant is concerned, the initial irregularities in the proceedings for appointment of a guardian were cured by the subsequent procedures in the county court. * * Logsdon v. Logsdon, Ky., 334 S.W.2d 920, 921.

It is our view that the order of the county court appointing the committee was not void by reason of any asserted failure to comply strictly with the statutory provisions respecting notice and hearing. The order overruling the CR 60.02 motion was equivalent to a re-appointment of the committee and valid. Hume v. Chenault, 305 Ky. 68, 202 S.W.2d 1018; Logsdon v. Logsdon, Ky., 334 S.W.2d 919.

The appellant contends that the county court lacked jurisdiction of the subject matter because of a claimed fatal defect in the inquest which had been held in the circuit court prior to the appointment of the committee. Reliance is had upon Denton v. Commonwealth, Ky., 383 S.W.2d 681, in which we held that it was reversible error to admit evidence of doctors by certificate or affidavit in an inquest, over the objection of counsel for the person upon trial. The Denton case is distinguishable from the present one in at least two respects. In Denton there was a direct appeal in the inquest proceeding, and counsel for the alleged incompetent specifically objected to the admission of evidence of the doctors by certificate or affidavit. In the present case we have a collateral attack on the inquest judgment, coupled with a showing that no objection was raised by the guardian ad litem for the alleged incompetent when the evidence of the doctors was received through certificates or affidavits. We are unwilling to say that the inquest proceeding in the present controversy was void. To say, as was said in Denton, that evidence from doctors may not be received by affidavit over the objection of the defendant is not to say that the defendant in an inquest may not waive such an objection. It is our view that the guardian ad litem in the inquest had authority to waive the personal presence of the doctors and that the resulting judgment in the inquest was not rendered void by the failure of the doctors to appear in the circumstances at bar.

Daly v. Spencer’s Committee, 260 Ky. 19, 83 S.W.2d 502, relied upon by the appellant, is inapplicable to the present case. In Daly it was appropriately held that a committee appointed pursuant to an inquest without a jury was, in fact, no committee at all. That ruling was based on the proposition that there was no office of committee to be filled, since no jury inquest had been held. That situation does not obtain in the case before us.

It may well be doubted that the present appellant has any standing to maintin this action. See Stuart v. Richardson, Ky., 407 S.W.2d 716. This question is not directly presented by the appellee, and we do not base this decision upon lack of capacity of the appellant.

The judgment is affirmed.

All concur.


author: PALMORE, Judge.

text:
    The GLOBE INDEMNITY COMPANY, Appellant, v. Phyllis H. DOYLE et al., Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.
    C. W. Swinford, Stoll, Keenon & Park, Lexington, for appellant.
    Philip Hargett, James E. Clarkson, Donald L. Wood, Maysville, for appellees.
   PALMORE, Judge.

Allen Doyle, an employe of Charles H. Arnold Distributing Company, Inc., was killed in an airplane crash. His widow and other dependents brought this workmen’s compensation proceeding against the employer and its insurer, The Globe Indemnity Company (hereinafter called Globe). Globe filed special pleadings alleging that its policy “did not provide coverage for the occupation in which the * * * decedent was engaged at the time of the accident which resulted in his death.” After hearing the evidence pertinent to that issue the board determined that the policy applied. Globe’s appeal to the circuit court resulted in a judgment affirming the action of the board. KRS 342.285. Globe now appeals to this court. KRS 342.290.

There is no argument as to the amount of compensation and who is entitled to draw it. The only question in the case is whether the party required to pay it is the employer or the insurance company. The point of issue is that although Doyle was employed as a tractor-trailer driver, which definitely was within the policy coverage, he was used from time to time as an airplane pilot and was engaged in piloting Mr. Charles H. Arnold, the company’s owner, on a business trip at the time of the accident, in which both of them were killed.

It is our conclusion that the board and the circuit court were correct in holding that the employer’s use of Doyle for a purpose different from his usual occupation, but within the scope of the business operation intended to be covered by the insurance, did not remove him from the coverage of the policy.

Charles H. Arnold Distributing Company, Inc., of Maysville, Ky., was engaged in the wholesale soft drink and beer distributing business. It was incorporated on December 8, 1965, prior to which time it appears that Arnold had operated it as a sole proprietorship. He also operated, as a separate corporation, a commercial airport across the Ohio River at Aberdeen, Ohio, and kept several airplanes there. However, the aircraft in which he and Doyle were traveling at the time of the fatal accident was Arnold’s personal plane, which he used both for pleasure and for business purposes, and it is undisputed that the flight was being made on the business of Charles H. Arnold Distributing Company, Inc.

The accident occurred on January 4, 1966. Doyle had been employed and put on the regular payroll of the distributing company during the pay period ending September 16, 1965, at $100 per week. Though engaged in the capacity of a tractor-trailer operator he was able to do many things and was a licensed airplane pilot, all of which Arnold knew. The secretary-treasurer of the company explained as follows:

“Well, when Allen went to work for us we knew he was an airplane pilot and with this in our mind and owning an airplane in the business we figured if any occasion arose we could use him as a pilot in the airplane. Allen was a handy man. He would do anything there was to do, mechanic or carpenter or whatever it was. We knew this and this was what we had planned for him to do.”

A log kept by Doyle showed that between May 3, 1965, and December 18, 1965, he had flown 38 business missions and several pleasure trips for Arnold. Ten of these business flights were made on or after September 14, 1965. On most of these occasions Arnold was a passenger.

The insurance policy under discussion had been issued some time before Doyle was employed by Arnold. It specified three categories of employes covered, as follows:

Classification Description Rate
Number
8018 “Store risk — Wholesale or combined $1.03 per $100 wholesale and retail — n.o.c.”
8810 “Clerical office employees — n.o.c.” $1.03 per $100
7380 “Drivers, chauffeurs and their help- $1.04 per $100 ers — commercial.”

After issuance of the policy Arnold had acquired a property subdivision and some rental property, and the policy had been endorsed to cover those operations.

Standard rates and classifications for various types of businesses and employes for purposes of workmen’s compensation insurance are set forth in a “Workmen’s Compensation and Employers’ Liability Insurance Manual” which has been approved by the Department of Insurance and is used by insurance agencies as a guide in preparing policies to cover the employes of the parties to be insured. In addition to the classifications listed on Globe’s policy covering Arnold, the manual carries a classification No. 7421 for “Aircraft operation, transportation of personnel in conduct of employer’s business, all members of flying crew,” etc., the rate for which is $1.83 per $100 subject'to adjustment based upon subsequent audits of the employer’s records showing the weeks during which employes did or did not engage in flying.

Globe’s position in this case is that in order for the policy to cover Doyle’s employment while flying an airplane on the company’s business it would have been necessary for it to list classification No. 7421. Much emphasis is placed upon the case of Old Republic Insurance Company v. Begley, Ky., 314 S.W.2d 552, 553 (1958). In that case the insured employer, as sole owner, operated three businesses, a garage, a theater, and a taxicab, and had one payroll for all. The business covered by his compensation insurance was listed as “Automobile Sales and Service Agencies,” under which the manual listed two classifications, “Automobile salesmen” and “All other employees — including * * * chauffeurs and their helpers.” The injured employe worked around the garage and drove the taxicab as well. He was injured while driving a fare-paying passenger in the taxicab. This court reversed a judgment and award against the insurance company upon the ground that “the policy did not cover the operation of a taxicab as an independent business or enterprise.” (Emphasis added.) 314 S.W.2d at 554.

The insurance policy itself was not made a part of the record. We have before us only the “producer’s copy” or agent’s “daily,” which lists the type of coverage by classification and rates. It does not show the type of business in which the distributing company was engaged. The employer’s notice of acceptance, Form No. 1, filed with the Workmen’s Compensation Board indicated “Kind of business being conducted” as “Soft Drink and Beer Distributor.” The employer’s proof of insurance, Form No. 14, signed by Globe’s insurance agent and also filed with the board, certified that Globe had issued a policy covering the distributing company and insuring its liability to pay compensation to its employes. A line on this form for “If not full coverage, state extent of” was left blank.

The opinion in Old Republic Insurance Company v. Begley, Ky., 314 S.W.2d 552 (1958), contains a rather exhaustive analysis of this court’s previous decisions involving similar questions, together with the meaning and effect of KRS 342.375. Two of the cases there discussed, Kelly v. Nussbaum, 218 Ky. 330, 291 S.W. 754 (1927), and Aetna Life Insurance Co. v. City of Henderson, 228 Ky. 1, 14 S.W.2d 211 (1929), are cited by Globe in this case. In Kelly, the employer’s notice of election to accept the compensation law described his business as “junk dealer,” and the insurance police covered his employes while engaged in that business. The manual classification expressly provided that the covered operation of a “junk dealer” would not extend to blasting or wrecking of buildings. The employe was injured while engaged in wrecking a building. It was held that the insurance did not apply. In Aetna, the employer was a city which was engaged in several different operations, including the proprietary function of operating a gas plant. It had separate policies of workmen’s compensation insurance for its gasworks and for its street department. Several truck drivers under the direction of the superintendent of streets customarily were used in the work of other departments, and their time was charged to and paid from the funds of those departments. One of them was injured while performing an assigned task for the gas department. It was held that the policy issued for the street department did not apply. On the other hand, in a companion case, City of Henderson v. Royal Indemnity Co., 227 Ky. 746, 14 S.W. 2d 213 (1929), it was held that the insurance on the gasworks did apply, even though the policy showed that in the operation of that department the city used no drivers or drivers’ helpers. In the latter opinion, after pointing out that the policy covered any and all employes engaged in the operation of the gasworks, the court made this further comment: “If the contract itself did not so provide, the law writes such a provision into the contract for the parties.”

In a very recent case, Aetna Casualty & Surety Co. v. Freeman, Ky., 427 S.W.2d 220 (decided March 1, 1968), the employer operated a machine shop. The classification specified in his workmen’s compensation insurance policy was “Machine Shops n.o.c.” At the time the policy was issued he had three employes, all of whom operated machines. Later, as the business grew, the number of employes reached nine or ten, all of whom operated machines but some of whom also did other jobs incident to the business, such as truck driving and maintenance work. It became necessary that the employer’s business be moved to another location. One Freeman, a construction worker, was employed to assist in this operation, and he was injured while applying roofing to the new building. We held in substance that the insurance coverage extended to all employes engaged in work incidental to the operation of the machine shop business, which included the work Freeman was doing at the time he was injured.

All these decisions are consistent with the conclusion in the case now before us that Doyle was covered while flying the airplane in connection with his employer’s beverage distributorship business, because the work was incidental to the business operation the insurance was intended to cover. If, on the other hand, he had been killed while flying a plane for some other business purpose of Arnold, such as the airport operation, the Begley case would have applied.

Let the first sentence of KRS 342.375 be read and considered once more: “Every policy * * * shall cover the entire liability of the employer for compensation under this chapter to every one of his employes covered by such policy,” etc. Larson (2 Larson’s Workmen’s Compensation Law § 93.20, p. 461) has chided our construction of this language as requiring something less than full coverage. In Begley, 314 S. W.2d at 555, we responded to this criticism by calling attention to the statutory phrase “covered by such policy” qualifying the word “employes.” We do not believe, however, that the legislative intent was to permit a coverage that would extend to certain workmen and not to others (unless, as the statute provides, they are protected by employer’s self-insurance under KRS 342.340 and 342.345) who are employed in the same business. Our cases have gone only so far as to reject the argument that if the employe is covered at all by the policy (as Doyle was), he is covered regardless of what he is doing for the employer, and have held, as in Begley, that he is covered only if he is engaged in the business operation for which the policy was procured and issued.

It is our opinion that when there has been an election to operate under the provisions of the workmen’s compensation act the law intends for all eligible employes to be covered by insurance or employer’s self-insurance. It is the responsibility of the employer and his insurer to see to it that the classifications set forth in the policy are sufficiently comprehensive to include all eligible employes. If they do not, one of them may have a remedy against the other, but the employe is covered by the insurance.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY, OSBORNE and STEINFELD, JJ., concur.

      . Though it would not he a dispositive circumstance one way or the other, the record does not disclose the exact manner in which the title to Mr. Arnold’s personal plane was held. In answer to the question, “How many airplanes did Mr. Arnold own?” the secretary of the distributing company replied, “At that date, they owned three at the airport, two new planes leased or on floor plan and his own private plane for Arnold Distributing Company.” “So he had an interest in a total of six airplanes?” “That’s right.” The “hull insurance” on his private plane was carried by the same agency through which Globe’s compensation policy was issued, but all the other planes were insured through another agency.


author: WILLIAMS, Chief Justice.

text:
    Charles E. MOOSER et al., Appellants, v. URBAN RENEWAL & COMMUNITY DEVELOPMENT AGENCY OF LOUISVILLE et al., Appellees.
    Court of Appeals of Kentucky.
    March 29, 1968.

      Charles B. Zirkle, William J. Francis, Zirkle, Raine & Francis, Louisville, for appellants Mooser.
    Robert L. Tross, Hardy, Logan & Tross, Louisville, for appellees Finegan.
    Robert W. Zollinger, George R. Ambro, Louisville, for appellee Urban Renewal & Community Development Agency of Louisville.
   WILLIAMS, Chief Justice.

Urban Renewal & Community Development Agency of Louisville (hereinafter called Urban Renewal) purchased a building in Louisville from the appellants, Charles Mooser and wife, for $91,500, taking a general warranty deed. It developed that the appellees Thomas Finegan and wife, tenants of the building, had an unrecorded lease which they declined to give up. Urban Renewal brought this suit against the Finegans under KRS 99.420 to condemn the leasehold, joined the Moosers as defendants and asked that the Moosers be required to reimburse it in the amount ultimately awarded to the Finegans. No question is raised with respect to this procedure.

KRS 99.420 provides for the appointment of commissioners to fix the value of the property taken. A copy of their report and award is attached to the summons, and “exceptions to the report and award of the commissioners must be filed within the same period of time as required for appearance and defense of the complaint. * * * If exceptions are based on the ground that the award of the commissioners is too small or too great, the exceptions must be accompanied by an affidavit of the party excepting, his agent or attorney, stating the amount of the award and damages, if any, the party believes is just and reasonable.” KRS 99.420(4), (6). If timely exceptions are filed, the question of value is submitted to a jury. KRS 99.420(7).

The commissioners reported an award of $7,550 for the leasehold. In due time Urban Renewal and the Moosers filed separate exceptions on the ground that the award was excessive, but the Mooser exceptions did not include an affidavit as required by KRS 99.420(6). The Moosers sought to remedy this omission by filing an affidavit, but the date of such filing was beyond the time in which the statute requires exceptions to be filed, so the trial court sustained a motion by the Finegans to strike the Mooser exceptions.

Before the Mooser exceptions were stricken it had been determined in a pretrial order that Urban Renewal was entitled to judgment against the Moosers for whatever amount was awarded to the Finegans and that Urban Renewal would not be required “to contest the issue of leasehold value as raised by the pleadings.” Urban Renewal having paid the amount of the award into court, the Finegans took the position that the pretrial order in effect eliminated Urban Renewal from the case and thereby nullified its exceptions to the commissioners’ award. Evidently the trial court agreed. Final judgment was entered without a trial on the issue of the value of the leasehold. It awarded the Finegans $7,550 and directed the Moosers to reimburse Urban Renewal in that amount.

This is an unusual case, and we are of the opinion that a hypertechnical approach has led to an unfair result. Assuming the solvency of the Moosers, it is they rather than Urban Renewal who were the real parties in interest as against the Finegans on the issue of the value of the leasehold. Since Urban Renewal was asking that the Moosers be required to pay the amount of the ultimate judgment, Urban Renewal’s exceptions to the amount of the preliminary award could only have been for their use and benefit. These exceptions were never attacked, stricken or withdrawn. It is our conclusion that the Moosers were entitled to rely upon them and have the issue tried by a jury.

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

All concur.


text:
    Jesse C. CAMPBELL, Max Miller and Fred Miller, d/b/a Miller Feed Service, Appellants, v. Charles E. MARKHAM, Appellee.
    Court of Appeals of Kentucky.
    March 29, 1968.

      Frederick E. Nichols, Nichols & Nichols, Madisonville, for appellants.
    M. R. Mills, Mills, Spain & Mitchell, Madisonville, for appellee.
   PALMORE, Judge.

Appellee, Charles Markham, obtained a verdict and judgment in the amount of $38,-473.50 against Jesse Campbell and Campbell’s employers for personal injuries and property damages sustained by Markham when a truck driven by Campbell knocked or forced his automobile off the highway. Campbell and his employers, owners of the truck, appeal. They contend that (1) they were entitled to a directed verdict, (2) competent testimony offered in their behalf was improperly rejected, (3) they were entitled to a sudden emergency instruction, (4) they were entitled to an instruction specifically referring to Markham’s duties of maintaining a lookout and keeping his car under reasonable control, (5) the instruction defining contributory negligence as to Markham was erroneous, and (6) the award of damages was excessive. Our conclusion is that there was no error.

The accident happened on a straight stretch of U.S. Highway 41 a short distance north of Madisonville. The pavement was 22 feet wide and consisted of two lanes, one for northbound and the other for southbound traffic, divided by a broken white center line. The day was clear, the road was dry, and the time was between noon and 1:00 P.M., March 23, 1962. There was no northbound traffic. At least four vehicles were moving southward. First in line was a car driven by Kyle Corum, then a pickup truck driven by Henry Groves, and then Campbell’s tractor-trailer unit. According to all the witnesses except Markham, Markham’s Chevrolet automobile was the fourth and last vehicle in the line of traffic. Markham says there was another car, which we shall call car X, between him and Campbell’s truck, that car X passed Campbell’s truck and he followed suit, and that as he was alongside and in the act of passing the truck Campbell suddenly pulled to his left and the front tires of the trailer unit struck the right front door of the Markham car, which went out of control down the left shoulder of the highway and turned over in a field.

Campbell testified that a short time before the accident he had noticed the Markham car following at a distance of 100 to 150 feet, that there was nothing else between, and that no other vehicle passed his truck. He gave three different versions of the event in a pretrial statement, a pretrial deposition, and his testimony at the trial, but we need not go beyond the latter, in which he described the accident as follows:

A- “Sunshiny day; clear. The vision was good, the road was dry, and I approached this last house out here where Holiday Inn is now, it wasn’t there at the time, and as I came over the raise of this hill, I came up behind a pick-up truck which was going down the road ahead of me down through this swag as you leave Holiday Inn, and down about the bridge I seen the stoplight come on on the pickup, I don’t know for how long, but it decreased his speed to which I thought he was stopped — stopping or stopped, but he could have been slowing down to four or five miles an hour. When his stoplight came on, I automatically hit my brakes, I suppose two, maybe three times, but sitting up in my truck, there was nothing coming that I could see, and I just dropped the gears and went on around the pick-up and the car in front of the pickup. And back about a mile or so down the road I had glanced in my mirror and seen a car behind me. When I went around these two cars down in this swag and was pulling back into my right-hand lane, I remembered that there was a car behind me, and I glanced in my left hand mirror, and at that time is when I seen the Chevrolet turning end over end down in the field south of the bridge.”

The highway crosses a small bridge guarded by concrete abutments 22 feet long. The abutments, or bridge rails, are 10 feet off the pavement. A yellow no-passing line for southbound traffic begins at a point about 100 feet north of the bridge and runs southward. There is a dispute as to whether the point of impact was within the yellow line area or north of it. Anyway, Corum, driving the lead vehicle, noticed some stakes set in the field to the left of the highway and decided to stop and look at them. After he cleared the south end of the bridge he pulled off onto the right shoulder and stopped. Groves, behind him, slowed down and also decided to stop. Groves pulled on around the slowing car of Corum and stopped on the shoulder in front of Corum. As his testimony indicates, when Campbell observed these vehicles slowing down in front of him he at first applied his brakes, thus decreasing his speed to some extent, but then decided it would be easier to pass than to stop his heavily loaded truck. There was no oncoming traffic, and Campbell’s field of vision was such that he felt it safe to go around even though he realized he would be in the no-passing zone before he could return to the southbound lane. Unfortunately, but admittedly, he did not take the precaution of checking his rearview mirror, for it is clear from the evidence that the Markham car was already in the left-hand lane and in the process of passing his trailer unit.

That there may be no question as to Campbell’s actions and the situation with which he was confronted, we quote additional salients of his testimony:

Q- “Now at what point did you go into the left lane?”
A- “As soon as I seen the stoplight come on on the pick-up, I realized he was slowing down and automatically I looked ahead to see if there was any oncoming traffic, which if there was I was going to have to stop. If there wasn’t I was going to go on around with the big load, because it is hard to stop.”
⅝ ⅜ s|e ⅜ ⅝ ⅜
Q- “When you began to swing back into the right hand lane, how far south of the abutment were you ?”
A- “I would say two hundred — between two and three hundred feet.”
Q- “And then what happened? What did you see then ?”
A- “As I was swinging — I looked in my right mirror and seen I was clear of the vehicles I had passed, and I started back into my right lane, and I thought, ‘Where was the car that was behind me ?’ and I looked in my left mirror.”
Q- “That is when you saw the new Chevrolet ?’
A- “Right.”
Q- “Where was it?”
A- “It was on end when I saw it.”
Q- “Mr. Campbell, do you know what did happen insofar as the Chevrolet was concerned that day?”
A- “No.”
Q- “Did a horn blow?”
A- “No.”
* ⅝ * * * *
Q- “Did you cross the yellow line?”
A- “Yes.”
Q- “For what reason?”
A- “The reason- was the pick-up and car had slowed down, and I didn’t want to slow down the momentum of my truck unless it was absolutely necessary, and I glanced ahead and there wasn’t nothing coming so I went ahead.” [Emphasis added.]
Q- “No other cars passed you on that hill until Mr. Markham started around, if that is what he did ?”
A- “No.”
Q- “Did you hear a horn out there ?”
A- “No.”
* * * * * *
Q- “You say you had seen this car behind you up there by Holiday Inn?”
A- “I had seen it three or four times.”
Q- “You knew there was a car behind you ?”
A- “Yes.”
Q- “You knew there was a car following you all the way down through there; why did you suddenly remember that car after you had gone out and passed these cars, this pick-up truck and this other car there in the road, why did you suddenly remember the car following you?”
A- “I had to make a decision quick, either to stop or go on, and I just wondered what his decision was, whether he stopped too or come on. That’s why I looked.”
Q- “That was when you saw him rolling off the road, didn’t you ?”
A- “Yes, in the field; I didn’t see him roll off the road.”
Q- “You hadn’t seen him when you swung out to pass those cars ?”
A- “No.”
Q- “You hadn’t looked back at all coming off that hill?”
A- “No.”
Q- “How far behind were you following that pick-up ?”
A- “I come up on him on the hill. I judge I was hundred or a hundred and fifty feet behind him, as he drove down through there.”
Q- “You all were going about the same speed?”
A- “Yes.”
Q- “When he put his brakes on, he was some hundred or two hundred feet in front of you?”
A- “Yes.”
Q- “He came on to a stop, did he now, or you thought he might?”
A- “I thought he might. He could have slowed down to five miles an hour.”
Q- “Did you make any effort to try to stop your truck behind him?”
A- “I hit my brakes twice and by that time I seen there was nothing coming and I went on around him.”
Q- “How hard did you hit them?”
A- “I don’t know.”
Q- “You didn’t hit them hard enough to lock them or mark the road?”
A- “No, I didn’t have to, I was far enough behind him, if I had to stop.” [Emphasis added.]
Q- “You didn’t give the man behind you any emergency signals, did you?”
A- “My stoplights.”
⅝ ⅜ ⅜ ⅜ ⅜ ⅜
Q- “You did not look into your rear-view mirror before you swung out to see where this car behind you was?”
A- “No, I didn’t.”

Markham testified that as he was overtaking the truck Campbell activated his left-turn blinker light, which Markham took to be a signal that it was safe for him to pass. Campbell acknowledged that this signal is sometimes used for that purpose, but denied that he gave it on this particular occasion. He said the only signal Markham could have seen was his brake light. Markham said also that he sounded his horn and that he began his move to pass the truck and the collision occurred at points some distance short of the no-passing zone. However, it is clear that after the impact his car went along the left-hand shoulder and crossed the bridge before going down the embankment to the east of the highway.

The argument that Campbell and his employers should have had a directed verdict rests on the two premises that as a matter of law (1) Campbell was free of negligence and (2) Markham was contributorily negligent.

As we have said, the evidence clearly established that Markham was already in the left-hand lane in the process of passing the trailer portion of Campbell’s unit when Campbell began his move to pass the pickup truck driven by Groves. The jury could also have accepted Markham’s assurance that he had sounded his horn immediately before attempting to pass Campbell, but even if Markham had not done so, certainly Campbell could and should have looked in his rearview mirror to see that the southbound lane was clear of other traffic, both fore and aft. Cf. KRS 189.300, 189.350, 189.380; Carnation Co. v. Devore, Ky., 252 S.W.2d 860, 862-3 (1952); Collett v. Taylor, Ky., 383 S.W.2d 692, 695 (1964) ; Hainline v. Hukill, Ky., 383 S.W.2d 353, 355 (1964). Unless, as he contends, Campbell was confronted with a sudden emergency, there can be little doubt that the evidence was sufficient to justify a finding that he was negligent.

Having thus arrived at the sudden emergency question, we may as well dispose of the argument that Campbell was entitled to an instruction on that theory. To be brief, we think not. Campbell did not claim he cut to the left in order to avoid running into Groves. He knew he had room to stop, but it was not as convenient as it was to go on around. We cannot regard the inconvenience of stopping as a sudden emergency. The trial court did not err in refusing to instruct on the sudden emergency theory. Berry v. Jorris, 303 Ky. 799, 199 S.W.2d 616 (1947), in which the distance between the first two of three vehicles occupying positions comparable to those of Groves, Campbell and Markham was only 25 feet, is distinguishable on the facts.

Appellants contend that Markham was negligent as a matter of law in (1) passing in a no-passing zone, (2) failing to keep a lookout, and (3) failing to have his car under reasonable control. The first of these contentions accords no recognition to Markham’s testimony that the collision occurred some 200 feet north of the bridge and 100 feet short of the no-passing zone. Aside from whatever question there may be as to whether a statutory violation in that respect would or would not have been a proximate causal factor in the accident, a directed verdict could not have been proper in the face of conflicting evidence as to whether the violation actually took place.

Though Markham’s duty of ordinary care included the duties of keeping a lookout and having his car under control, there was simply no evidence that he did not. Therefore, not only was there no basis for a peremptory on such grounds, but also no requirement for an instruction specifically enumerating those duties. The main theory advanced by the appellants in this regard is that Markham should have observed the slowing and stopping movements of the vehicles in front of Campbell’s truck. It seems to us, however, that it would be unrealistic and unreasonable to expect a motorist following behind a large tractor-trailer unit on a straight stretch of two-lane, two-way highway to see what is happening so closely in front of the truck as to affect its movement. If a motorist were required to stay so far behind that he could observe conditions immediately ahead of a preceding truck, how would he ever get close enough to pass?

Among the cases cited by appellants on this subject are Dixie Ice Cream Co. v. Ravenna Grocery Co., 306 Ky. 182, 206 S.W.2d 824 (1947); Lexington Roller Mills v. Thornberry, 314 Ky. 111, 234 S.W.2d 491 (1950) ; Slusher v. Brown, Ky., 323 S.W.2d 870 (1959) ; Clardy v. Robinson, Ky., 284 S.W.2d 651 (1955); Morrison v. Hibbard, Ky., 375 S.W.2d 685 (1964), and Duncan v. Wiseman Baking Co., Ky., 357 S.W.2d 694 (1962).

In Dixie Ice Cream Co., 306 Ky. 182, 206 S.W.2d 824, only two vehicles were on the highway at the time and in the immediate vicinity of the accident. Truck A backed from the north side of an east-west highway into the south lane and was struck in the rear by truck B, which was approaching from the west. The driver of truck B said his vision was obscured by a dip in the road. There was evidence, however, that he could have seen the movements of truck A from a distance of 600 feet. The parties differed as to whether truck A was entirely in the eastbound lane or, after backing into that lane, had moved forward and swerved into the westbound lane as truck B attempted to pass. In a suit brought by the owner of truck B against the owner of truck A a jury found both drivers negligent. On appeal, the owner of truck B, the plaintiff, contended it was entitled to a directed verdict. In affirming, this court held that the question of contributory negligence was for the jury, and commented that if the view was obstructed it was the duty of the driver of truck B to slow down until he could see. We find nothing inconsistent between that case and this one. The instructions given in this case required Markham (a) to pass to the left of Campbell’s truck and not again drive to the right of the center line of the highway until he was reasonably clear of it, (b) to sound his horn before passing, and (c) to exercise ordinary care generally to avoid a collision with other vehicles using the highway at the time and place. Under this instruction the jury had ample guidance and authority for finding contributory negligence on Markham’s part and could have come to the same conclusion reached in Dixie Ice Cream Company.

In Lexington Roller Mills, 314 Ky. 111, 231 S.W.2d 491, the plaintiff’s car was struck head-on by the defendant’s vehicle while the plaintiff was still in the left-hand lane after having failed in an attempt to pass a truck. Plaintiff’s failure to get by the truck had resulted from the fact that there was another truck in front, which she had not seen. A judgment in her favor was reversed on the ground of erroneous instructions and it was held, among other things, that the plaintiff was negligent as a matter of law because she was attempting to pass in violation of KRS 189.340(3). Again, we see nothing in that case to force a different result in this one. Had Markham’s car been hit by an oncoming vehicle while he was in the northbound lane, he probably would have been held negligent as a matter of law. The difference is that in this instance the passing lane was clear; in Lexington Roller Mills it was not.

Slusher, Ky., 323 S.W.2d 870, Clardy, Ky., 284 S.W.2d 651, Morrison, Ky., 375 S.W.2d 685, and Duncan, Ky., 357 S.W.2d 694, are cited for their enunciation of the principle that if there are extraordinary or unusual conditions obstructing a motorist’s vision he must exercise caution commensurate with the circumstances. In Slusher the plaintiff’s automobile collided with the rear end of the defendant’s truck in a heavy fog. (It was held, however, that the question of his contributory negligence should have been submitted to the jury.) In Clardy a coal truck collided with the rear end of a grain truck which had been stopped by its driver to inquire whether he could assist the driver of a disabled hay truck headed in the opposite direction. Morrison and Duncan also involved factual situations in which the driver of one vehicle had stopped to assist the driver of a disabled vehicle headed in the opposite direction, and a third vehicle struck one or the other. In each of those three cases there was an unusual condition, of which the oncoming motorist had ample notice. Specifically, in Morrison and Duncan it was held that if a motorist is blinded or his vision obscured by lights it is his duty to take such protective measures for his own safety as an ordinarily prudent driver would take under similar circumstances. In none of these cases was the third driver held negligent as a matter of law, and only in Morrison was it held that the lookout duty should have been recited in the instructions.

In each of the cases discussed in the preceding paragraph there was an unusual condition which was either known to or observable by the approaching driver. When a man runs into an obstacle despite the existence of warning circumstances there is reason to infer that he was not keeping a lookout, or was going too fast, or did not have his vehicle under reasonable control. But when a motorist draws up to a large truck with the intention of passing it, about the best he can do is to see that the passing lane is clear; he cannot see what is happening directly in front of the truck until he moves over into the passing lane, and until he does that, ordinarily he would have no reason to anticipate an unusual condition. So, unless something happened to alert Markham before that time, not only was there no call for instructions on the duties of lookout and control, but no basis for holding him negligent as a matter of law.

At first impression it might appear that ;Markham was negligent in passing the truck after seeing its left-turn blinker signals. Regardless of what he thought, or what the customary courtesy among truck drivers may be, a turn signal can have but one legally-recognized meaning for a vehicle in motion, and that is a turn. Cf. KRS 189.380. Nevertheless, it must be remembered that Campbell denied having activated his turn signal. Accordingly, the jury was free to believe that the only signal from his truck was the momentary flashing of his brake lights as he touched his brakes before going around Groves. And whether the brake lights provided such warning of conditions ahead that Markham should not have attempted to pass was within the province of the jury to decide under the ordinary care portion of the instruction heretofore mentioned.

In summary, what we have said thus far is that Campbell and his employers were not entitled to a directed verdict, were not entitled to an instruction on sudden emergency, and were not entitled to an instruction specifically reciting Markham’s duties to keep a lookout and to have his car under reasonable control.

The next contention is that the trial court erred in rejecting testimony in the form of an opinion by a state trooper locating the “point of impact” and in refusing to permit the trooper’s report of the accident to be read to the jury. On the latter point, no authority is cited to suggest the admissibility of such a report. It is “generally held that reports or records made by the police and other officials concerning the cause of, or responsibility for, an injury to the person or damage to property * * * are not admissible in evidence.” 30 Am.Jur.2d 134 (Evidence, § 1002).

It has been held proper to allow an investigating officer to use the descriptive phrase “point of impact” after fully disclosing the qualifying facts on which he bases the statement, Browley v. Murkison, Ky., 282 S.W.2d 3S2 (1955), and in Sellers v. Cayce Mill Supply Co., Ky., 349 S.W.2d 677, 679 (1961), it was observed that perhaps the trial court had been overcautious in refusing to allow a state trooper to give an opinion as to where the impact occurred. Thus far there has been no case in which this court has found it prejudicially erroneous to exclude such an opinion, and we are not prepared to say it was prejudicial in this instance. In the first place, in order to qualify himself to give an opinion, the trooper gave the physical details upon which he based his conclusion, and even though he was not permitted to say specifically where he thought the collision occurred, the jurors could hardly have failed to grasp the import of his testimony in this respect. Secondly, the principal importance of the point of impact was its relationship to the no-passing zone. In his avowal the trooper placed it 75 feet north of the scratches made by Markham’s car on the bridge abutment. Since, however, the court did not give any instruction with reference to the no-passing zone, and neither side asked for it or objected because it was not included, the question became immaterial.

The instruction outlining Markham’s duties concluded as follows:

“If the jury shall believe from the evidence that the plaintiff negligently failed to perform either of these duties and that said failure, if any, was a proximate cause contributing to cause the accident, and that otherwise the plaintiff would not have been injured, the law is for the defendants and you should so find.”

Appellants object to the quoted portion of the instruction on the theory that it required Markham’s negligence (if any) to be the proximate cause of the accident in order for the jury to find against him on the ground of contributory negligence. If that were the case, the objection would be well taken. However, the instruction says “a proximate cause,” not “the proximate cause.” The customary and better form of contributory negligence instruction is substantially along the lines set forth in the recent case of Skees v. Whitaker, Ky., 398 S.W.2d 715, 718 (1966), and Stanley’s Instructions § 112b (1967 Supp.), as follows:

“If you believe from the evidence that the plaintiff failed in any one or more of said' duties and that such failure on his part, if any, contributed to or helped to bring about the collision, to such extent that otherwise it would not have occurred, then the law is for the defendant, and you shall so find.”

However, the instruction as given does not, as appellants argue, convey the impression that Markham’s negligence must have been the sole cause or sole proximate cause in order to bar his recovery, and we do not find it misleading. Appellants seem to feel that there can be but one “proximate” cause, but any negligence, including contributory negligence, in order to have legal significance, must be a proximate causal factor in the resulting injury.

The last point is that the award was excessive. Markham was 28 years old at the time of the accident. The trial was held four years later. He was a band director and teacher of instrumental music in the public schools. His principal injury consisted of a comminuted fracture or shattering of the head of the humerus at the point of articulation in the right shoulder. It required open surgery to repair. Markham was hospitalized for five days and returned to work in ten days. His medical expenses amounted to $523.50. He did not suffer any loss of income and is today earning more dollars per annum, at the same occupation, than he was earning before the accident. Nonetheless, his right arm is permanently impaired to the degree of 60%, and even though this has not yet affected his earnings, there are many things both at work and at home that he cannot do, or that he cannot do as well as he did before, and he must take special exercises every day to keep his arm in working order. His physician testified that “in a shoulder that is damaged to this extent we would expect wear-and-tear arthritis and traumatic arthritis to develop over the years.”

The jury awarded $1,950 for damages to Markham’s automobile, $523.50 for his medical expenses, and $36,000 for “personal damage.” Under the instructions it was authorized to award damages not only for impairment of his power to earn money but also for the pain and suffering he had endured and will endure in the future by reason of the injury. Although the extent of impairment to his earning power appears uncertain, there is no doubt that he will have to live out the rest of his days (an expectancy of 40 years) with a game right arm. He will not be able to do- the things other men can do, he will have to take special exercises others need not take, and it is likely that he will suffer arthritic pain where others do not have it. We think all this adds up to a very substantial damage, and we cannot find the award excessive.

The judgment is affirmed.

All concur.

      . Cf. KRS 189.340(4).


text:
    Albert L. PIERCE, Appellant, v. FRITO-LAY, INC., Appellee.
    Court of Appeals of Kentucky.
    March 29, 1968.

      Richard E. Moorman, Leitchfield, Albert F. Reutlinger, Louisville, for appellant.
    James M. Collier, Faurest & Collier, Elizabethtown, for appellee.
   WILLIAMS, Chief Justice.

This is an appeal from a judgment dismissing appellee, Frito-Lay, Inc., on a claim for damages resulting from an automobile accident.

Appellant Albert L. Pierce was a passenger in an automobile driven by James A. Stochay. It collided with a tractor operated by Hugh A. Sims. The movements of the Frito-Lay truck were claimed to have precipitated the collision between the other two vehicles. Pierce sued Sims and Frito-Lay, Inc. He claimed that Sims was negligent and that the negligence of the driver of the Frito-Lay truck also was a proximate cause of the collision. The trial court dismissed the action as to Frito-Lay, Inc., and the jury awarded Pierce $4,500.00 against Sims. Pierce appealed from that part of the judgment which dismissed Frito-Lay, Inc.

Appellee contends that the issues presented by the appeal are moot because Pierce has been paid and has acknowledged “ * * * complete and full satisfaction of the judgment entered herein against the defendant, Hugh A. Sims, in accordance with paragraph 1 of said judgment.”

We have stated that:

“* * * a person injured by a joint tort has a single and indivisible cause of action. He may proceed against the wrongdoers either jointly or severally, and may recover a judgment or judgments against all, but he can have but one satisfaction of his single cause of action. * * * In 52 Am.Jur., Torts, § 131, it is said: ‘It is a rule announced generally in a number of cases that nothing but the satisfaction of a judgment, or something which the law deems equivalent thereto, can bar an action against other tort-feasors. It is an implication of this rule that the satisfaction of such a judgment does operate as a bar. This implication finds affirmative support in other cases which specifically support the rule that the satisfaction of a judgment against one tort-feasor releases all from liability.’ ” Penrod v. Devine, 301 Ky. 629, 192 S.W.2d 817 (1946).

Also see Commonwealth, Dept. of Highways v. Begley, Ky., 376 S.W.2d 295 (1964), which held that “Although joint or concurrent tort-feasors may be jointly or severally liable, only one full satisfaction of damages for a single harm may be recovered by the injured party.” In Dardeen v. Greyhound Corporation, Ky., 412 S.W. 2d 585 (1967), we wrote: “Mere entry of the award against the Highway Department did not raise a bar precluding action against the other tort-feasors; the bar would arise only from satisfaction of the award.” Sherwood v. Huber & Huber Motor Express Company, 286 Ky. 775, 151 S.W.2d 1007, 135 A.L.R. 263; Bach v. Bach, Ky., 288 S.W.2d 52; Prosser on Torts, 3rd Ed., Ch. 8, sec. 45, p. 267.

Appellant relies upon 52 Arn.Jur., 448, Torts, section 110 and quotes the statement that “The general rule as to this matter is that joint tort-feasors are jointly and severally liable.” He also cites 52 Am.Jur., 465, Torts, section 128, which says: “The general rule is that a judgment in favor of one joint tort-feasor is no bar to an action against another tort-feasor.” He discusses Hackett v. Hyson, 72 R.I. 132, 48 A.2d 353. The quoted statements from American Jurisprudence are harmonious with the Kentucky rule announced in the cases to which we have referred. Hackett v. Hyson, supra, involved a Rhode Island contribution statute similar to KRS 412.030. Neither contribution nor indemnity is involved in the case we have before us. As between Pierce and Frito-Lay, Inc., the claim is moot, therefore, we need not consider the arguments advanced by Pierce to secure a reversal of the judgment.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    ROBERT F. SIMMONS CONSTRUCTION COMPANY, Inc., Appellant, v. The AMERICAN STATES INSURANCE COMPANY, and National Union Fire Insurance Company of Pennsylvania, Appellees.
    Court of Appeals of Kentucky,
    Feb. 16, 1968.
    Rehearing Denied May 3, 1968.

      Wilbur Fields, Louisville, for appellant.
    Lively M. Wilson and Robert G. Breetz, Stites, Peabody & Helm, Robert C. Hobson and Kenneth L. Anderson, Woodward, Hobson & Fulton, Louisville, for appellees.
   CULLEN, Commissioner.

This is the third time we have had before us an appeal in this litigation, which involves questions of liability as between the principal contractor on a building job, the surety on his bond, and the surety on a subcontractor’s bond, for a default of the subcontractor in paying for materials. The two previous cases were Robert Simmons Construction Co. v. Powers Regulator Co., Ky., 390 S.W.2d 901, and Robert Simmons Construction Co. v. Birmingham Fire Insurance Co., Ky., 411 S.W.2d 479. In the stage of the litigation now on appeal Robert F. Simmons Construction Company (hereinafter “Simmons”), the principal contractor had sought to recover from The American States Insurance Company (hereinafter “American”), the subcontractor’s surety, the amount paid by Simmons in satisfaction of a judgment in favor of Powers Regulator Company (hereinafter “Powers”), the materialman, for materials which Powers had furnished the subcontractor and for which payment had not been made. As an alternative, Simmons had sought to recover from his own surety, National Union Fire Insurance Company (hereinafter “National”), the amount paid on the judgment. Simmons is appealing from a judgment which denied recovery on both of his claims.

Simmons was the principal contractor on a school building job. National was the surety on his performance bond. Simmons subcontracted part of the work to one Roy C. Dillow, and Dillow executed to Simmons a performance bond on which American was surety. Dillow failed to pay for materials purchased from Powers, and went broke. Powers sued Dillow, American, Simmons and National. He recovered judgment against Dillow, Simmons and National (for some reason no ruling was made on his claim against American). Prior to entry of that judgment none of the defendants asserted any cross-claim for indemnity as to any possible recovery by Powers.

Simmons and National appealed the judgment obtained by Powers (Dillow was broke) and executed a single supersedeas bond on which Birmingham Fire Insurance Company was surety. That was the first appeal to this court. The judgment as to National was reversed but as to Simmons was affirmed. Birmingham, as surety on the supersedeas bond, was compelled to pay the judgment, and it in turn compelled Simmons to reimburse it. Simmons, after the decision affirming the judgment against him had been handed down but before he reimbursed Birmingham, had filed a cross-claim in the action, against American, seeking indemnity for any amount he might be compelled to pay Birmingham. After paying Birmingham, Simmons sought judgment on the cross-claim. The circuit court denied relief on the ground that the claim had not been asserted within the time limitation set forth in American’s bond. Simmons also sought recovery on a cross-claim against National, on the theory that National had without authority of Simmons inserted his name on the supersedeas bond and thereby had improperly subjected Simmons to liability on the supersedeas bond. (In connection with this point see the opinion of this court on the second appeal hereinbefore referred to.) The trial court rejected this claim on the ground that Simmons had authorized execution of the supersedeas bond (as held by this court on the second appeal).

We shall first consider Simmons’ claim against National. On this appeal Simmons has abandoned the theory of claim asserted in his pleadings, and has argued that since National and Simmons were named as co-principals in the single supersedeas bond, somehow National is liable for half of the judgment that was superseded, even though the judgment was reversed as to National. Not having pleaded such a claim (the pleaded claim was for recovery of the whole amount of the judgment), Simmons is not entitled to raise it on appeal. Bibbs v. Kentucky & Indiana Terminal Railroad, Ky., 300 S.W.2d 229. Furthermore, there is no merit in the argument. Plainly, Simmons was superseding the judgment as against him, and National was superseding the judgment as against it, and the mere fact that the bond was a single document is no ground for holding that both of the appellants jointly guaranteed payment of the judgment even if it were affirmed only as to one of them. We can conceive of no reason why they would want to so commit themselves.

In considering the claim against American it is necessary to refer to the terms of American’s bond, particularly as concerns the matter of limitations. The bond ran to Simmons and stated that no right of action should accrue upon or by reason of it, to or for the use or benefit of anyone other than Simmons. It contained an express provision that “All suits at law or proceedings in equity to recover on this bond must be instituted * * * before the 1st day of July, 1959, unless the Surety shall have extended the time * * * in writing * * With knowledge of Simmons the time was extended by American to July 1, 1960.

Powers brought his suit against Dillow, American, Simmons and National on May 5, 1960. Simmons answered on May 26, 1960. Subsequently, on November 17, 1960, Simmons tendered a cross-claim against American for damages he had sustained by extra work required to complete Dillow’s subcontract (this claim was unrelated to the Powers claim). No ruling was made on this. Much later, on September 20, 1965, and after the judgment against Simmons on Powers’ claim had been affirmed on appeal, Simmons filed an “Amended and Supplemental Cross-claim” against American in which for the first time Simmons sought indemnity on the Powers’ judgment. As hereinbefore stated, the circuit court held that the latter claim was too late. Also, the court denied recovery on the first cross-claim on the same ground.

A time limitation in an insurance contract, though shorter than the statutory period, is not invalid if not unreasonably short. Burlew v. Fidelity & Casualty Co. of New York, 276 Ky. 132, 122 S.W.2d 990. Simmons does not contend that the time limitation fixed in the American bond was unreasonably short as compared with the statutory period. He contends that his cause of action did not accrue until he had paid the claim on which indemnity was sought, and that the bond limitation clause could not validly cut off the time for bringing suit before the right to bring suit had accrued. We may point out an inconsistency in Simmons’ position on this, in that he did file his cross-claim for indemnity before he paid the Powers judgment.

We think it is clear that Simmons could have asserted a cross-claim for indemnity in his original answer, which was filed well before the limitation period fixed in the American bond (as extended) ran out. Under the principle of Jackson & Church Division, York-Shipley, Inc. v. Miller Plumbing & Heating Co., Ky., 414 S.W. 2d 893, and Parker v. Redden, Ky., 421 S.W.2d 586, and under the provision of CR 13.07 that a cross-claim may embrace a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant, the filing by Simmons of a cross-claim for indemnity was not required to await payment by Simmons of the liability on which indemnity was sought.

Simmons suggests that his cross-claim should relate back to the time Powers brought the action, under the holding in Modern Bakery, Inc. v. Brashear, Ky., 405 S.W.2d 742. The Brashear holding, which permits an amended pleading in certain conditions to relate back to the date of an original pleading, clearly applies only to the same party’s original pleading. It does not mean that a defendant (as Simmons here) can relate his amended pleading back to the date of the plaintiffs pleading.

There is no way Simmons can claim a relation back to the date of Powers’ complaint on a subrogation theory, because Simmons paid his own liability to Powers, not American’s.

It would do no good to relate the 1965 cross-claim hack to the date of the November 1960 cross-claim because it too was filed too late.

Simmons contends that because Dil-low’s subcontract was “annexed to the bond” (for all we know the bond was annexed to the contract) the limitation clause in the bond somehow was nullified. There can be no merit in that proposition. Of course the bond, whether or not “annexed” to the contract, insured performance of the obligations and the meeting of the liabilities imposed by this contract, but the bond put a time limit on suits to enforce that insurance.

It is our conclusion that the trial court correctly adjudged that both cross-claims against American were too late.

The judgment is affirmed.

All concur except STEINFELD, J., who did not sit.