author: STEINFELD, Judge.

text:
    LICKING RIVER LIMESTONE COMPANY, Appellant, v. Melvin HELTON and Kenneth Helton, Appellees.
    Court of Appeals of Kentucky.
    March 24, 1967.

      Earl R. Cooper, Salyersville, for appellant.
    Marcus Mann, Arnett Mann, Salyersville, G. C. Perry, III, Paintsville, for appellees.
   STEINFELD, Judge.

This is an action to recover for personal injuries sustained by Messrs. Helton and for damage to a truck. From a judgment of $1,000.00 in favor of Kenneth Helton and a judgment awarded to Melvin Helton for $3,500.00, both against Licking River Limestone Company, it appeals.

On June 28, 1963, Melvin Helton was driving a dump truck owned by him about 14 of a mile away from the gravel quarry owned and operated by Licking River Limestone Company (hereinafter called Company) in Morgan County, Kentucky. Kenneth Helton was a passenger. While in Morgan County the truck in which the two Heltons were riding met a truck going in the opposite direction which they claimed was owned and operated by Company. The Heltons testified that this truck forced Melvin to pull his truck over on the shoulder of the road and to turn over in a field adjacent thereto. Both Kenneth and Melvin were injured and Melvin’s truck was damaged substantially.

At the time the accident occurred Messrs. Helton resided in Magoffin County. The office and place of business of Company was in Morgan County.

Kenneth Helton filed suit in the Magof-fin Circuit Court naming Company and Melvin Helton as defendants. After summons were served Melvin filed a motion to dismiss, claiming that the complaint did not state a cause of action against him “upon which this court may grant relief.” Company filed a similar motion “because the complaint fails to .state a claim against this defendant upon which relief can be granted.” A deposition of Kenneth was taken for the purpose of discovery but no one was present representing Company. Melvin, by counsel, moved for a summary judgment and filed in support thereof the deposition just referred to.

The motions to dismiss had not been ruled upon by the court when Company filed an answer. It alleged that “The complaint fails to state a claim against * * * Company, upon which relief can be granted.” It admitted various allegations including that Messrs. Helton are citizens and residents of Magoffin County, Kentucky, and were at all times mentioned in the complaint, and that on the 28th day of June, 1963, Kenneth was a passenger in the truck owned and driven by Melvin “on the Licking River Road in Magoffin County, Kentucky near Pomp, Kentucky.” All other allegations of the complaint were denied. Various depositions were taken at which counsel for Company was present. There were various motions made for summary judgment for and against various parties, but these motions were not predicated upon alleged lack of jurisdiction or venue.

Melvin Helton filed a separate answer and cross claim against Company on the same day that Kenneth Helton dismissed his claim against Melvin Helton, it having been settled. Kenneth reserved his claim against Company and Melvin reserved his cross claim against Company. Later Company moved that the cross claim of Melvin be dismissed “for the reason that the accident complained of occurred in Morgan County, and that the chief office and place of business of Licking River Limestone Company is Morgan County.” Company filed an amended answer to the complaint in which it alleged “That the collision and injuries referred to in the complaint occurred in Morgan County, Kentucky, and that the- chief office and place of business of Licking River Limestone Company is in Morgan County, Kentucky.” They also alleged “That the venue of this action is in Morgan County, and it objects to any proceedings against it herein.” It demanded that the complaint be dismissed. The same defense was made to the cross claim. These motions were overruled and the case went to trial resulting in jury verdicts in the amounts hereinabove mentioned.

Company claims that the venue of the action was not in Magoffin Circuit Court and that there was insufficient evidence to show liability on the part of Company. It also complains that counsel for Messrs. Helton was guilty of improper argument to the jury which was prejudicial and that the court erred in refusing to give certain instructions offered by Company.

Unless the venue was waived, KRS 452.460 fixed Morgan County as the proper place for an action against both defendants, for that was where the collision occurred. Crume v. Taylor, 272 Ky. 585, 114 S.W.2d 1119. However, the action as to only Melvin Helton was properly brought in Magoffin County, for he resided there. Appellees contend that Company waived the question of venue by timely failing to object. CR 12.02. They cite Martin v. Cornett-Lewis Coal Co., Ky., 287 S.W.2d 164 wherein the Pike Circuit Court was affirmed in dismissing an appeal from a final order of the workmen’s compensation board.

The complaint showed the place of residence of Messrs. Helton to be Magoffin County and the place of the accident to be Morgan County but it did not show where were located the principal office or place of business of Company. The motion to dismiss “because the complaint failed to state a claim” could not have been sustained by the trial court on the assertion that it lacked venue to try the action. The answers of Company did not allege lack of venue but reiterated its allegation that no claim against it was stated.

Such a motion as Company filed admits the facts which have been well pleaded but challenges the legal sufficiency of the claims which are asserted. Nicholson Transit Co. v. Bassett, D.C.Ill., 42 F. Supp. 990. The complaint did not show on its face that there was a lack of venue; therefore, the question of lack of venue was not presented by that pleading.

The issue of lack of venue was first raised as to Kenneth by the amended answer which was filed after counsel for Company participated in taking depositions, answering interrogatories and moving for summary judgment. This was too late and appellant does not contend as to the claim of Kenneth that venue was not waived. CR 12.08. Gillen v. Illinois Central R. R. Co., 137 Ky. 375, 125 S.W. 1047; Pinnacle Motor Co. v. Simpson, 216 Ky. 184, 287 S.W. 566; James v. Holt, Ky., 244 S.W.2d 159.

Melvin filed a cross claim against Company. It answered asking dismissal of Melvin’s cross claim because of lack of venue, and it moved to dismiss on that ground. Venue having been established with respect to the original action it existed as to this cross claim. The purpose of our civil rules is to provide a one form of action system in which litigants who are properly joined are afforded means of settling entire controversies with minimum of expense and procedural steps. CR 1; Fox v. House, D.C.Okl., 29 F.Supp. 673 ; 6 Ky. Practice, Clay 240.

Melvin’s release by dismissal because of settlement did not cause the court to lose jurisdiction over Company on the cross claim of Melvin. Worthington v. Commonwealth, By, Through and ex rel Smith, Ky., 304 S.W.2d 926.

Appellant challenges the judgment by claiming that there was insufficient evidence that its truck with a driver for whose acts it was responsible caused the accident. He cites Consolidated Coach Corp. v. Bryant, 260 Ky. 452, 86 S.W.2d 88, Williams v. Coleman’s Adm’x, 273 Ky. 122, 115 S.W. 2d 584 and Spencer’s Adm’r v. Fisel, 254 Ky. 503, 71 S.W.2d 955 to support his claim that the burden was upon the claimants to show that the employee driver was operating the vehicle on the business of his employer and within the scope of his authority. Bowling v. Lewis, Ky., 287 S.W.2d 629; R. L. Jeffries Truck Line v. Brown, 303 Ky. 405, 197 S.W.2d 904; Bogner v. Kendle, 309 Ky. 221, 217 S.W.2d 211; Broadway Motors v. Bass, 252 Ky. 628, 67 S.W.2d 955.

Melvin testified that the truck which forced them to get out of its way had written on the door “L 50 D, Licking River Limestone Company”; that he had seen it before and knew it was a truck belonging to Company. He did not recognize the driver. Another witness, a truck driver, stated that he was driving a truck for Company in June 1963 and was proceeding in the same direction shortly ahead of Melvin’s truck when Company’s L 50 D truck passed him proceeding in the direction from which Melvin and Kenneth had come. He stated that the driver was Bill Smith who had been working for Company three or four days; that Bill rode to work with Kenneth and he was positive that he recognized Bill as the driver.

The President of Company admitted that it owned a truck “L 50 D in operation in hauling gravel” and in doing so it had occasion to use the road past the scene of the accident because “That was the only road, just the one road to the quarry.” The testimony, together with the proximity of the quarry, was sufficient to meet the burden of going forward which was on the two claimants. Mullen & Haynes Co. v. Crisp, 207 Ky. 31, 268 S.W. 576; Webb v. Dixie-Ohio Express Co., 291 Ky. 692, 165 S.W.2d 539; Union Transfer & Storage Co. v. Fryman’s Adm’r, 304 Ky. 422, 200 S.W.2d 953.

There was evidence to the contrary, and testimony of Melvin which may have been contradictory of other statements made by him; therefore, this became an issue for the jury to decide after being properly instructed. Bogner v. Kendle, supra; Oldfield v. Owens, 292 Ky. 183, 165 S.W.2d 952.

Company argues that the judgment should be reversed because the court did not give the instructions offered by Company. We find that the instructions given to the jury were substantially in the form offered by counsel and that this complaint is without merit.

Company complains of the failure of the court to admonish the jury not to consider argument by Kenneth’s counsel when he said that Company had plenty of money and that Kenneth had none and Company did not help to pay the medical bills. Timely objection was made which was sustained. No motion to admonish the jury was made, therefore, this complaint is without merit. R. B. Tyler Co. v. Cantrell, 281 Ky. 718, 137 S.W.2d 401; Louisville & N. R. Co. v. McEwan, Ky., 51 S.W. 619.

Company claims that the verdicts are excessive. The truck which cost $4,400.00 had been driven only 8,000 miles. The repair bill was $814.17. Melvin was injured in his side, his leg and had “a knot on his head”. He testified that he lost seventy days from his work, and he earned $12.50 per day. An award of $3,500.00 including the damage to the truck is not. so large as to strike one at first blush as being excessive. Kenneth sustained serious injuries to his back with tearing of muscle tissue and ligaments, resulting in a chronic low back syndrome. He was disabled at the time of the trial sixteen months after the accident. There is no merit in the claim that he received an excessive award. Hedges v. Neace, Ky., 307 S.W.2d 564; Fields v. Baker, Ky., 329 S.W.2d 376 and Koch v. Stone, Ky., 332 S.W.2d 529.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Morel B. JONES and Lawrence L. Jones, III, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1967.

      Lawrence L. Jones, III, H. Wendell Cherry, Louisville, for appellants.
    Robert Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, Raleigh Jones, Dist. Atty., Dept, of Highways, Randolph A. Brown, Louisville, for appellee.
   DAVIS, Commissioner.

Presented on appeal is whether appellants are entitled to have considered as one tract two non-contiguous tracts, from one of which a portion is taken in this condemnation proceeding. The trial judge ruled that the tracts could not be considered as one.

For our purposes, a portion of the facts which were stipulated in the trial court will serve to focus upon the issue at bar; we quote pertinent portions of that stipulation:

“In 1957 the James C. Irvin Co. purchased the John H. Caperton Estate lying south of the River Road and east of Indian Hills Road in Jefferson County, Kentucky.
“The total acreage purchased is divided approximately equally between land suitable for residential use which is situated on a ridge about 100 feet above the ground level and about one-fourth (¼) of a mile south of the River Road overlooking the Ohio River and land not suitable for residential use lying immediately south of the River Road to the beginning of that ridge. * * *
“The bottom land is unsuitable for residential use as it has a body of water situated on it (as indicated on the map), it drains poorly and is extremely susceptible to seasonal flooding from the Ohio River. * * *
“Subsequent to its purchase of the Caperton Estate the James C. Irvin Co. subdivided the homesite property into nine (9) separate residential lots and sold these lots to various purchasers including the Defendants herein. The Defendants were given the opportunity to also purchase a portion of the bottom land for use as a recreational area for fishing and ice skating on the lake situated thereon, for securing earth fill necessary in connection with the construction of their residence and more particularly to hold as a buffer zone between the River Road and their residence overlooking that road in order to insure privacy of their homesite lot.
“All of the bottom land was purchased by the buyers of the homesite lots on a first come, first serve basis. By reason of these Defendants purchasing their homesite and bottom land tracts subsequent to the purchase of such tracts by their neighbors in this subdivision it was not possible to physically connect these two tracts at the time of their purchase and they are, therefore, separated by between 400 to 500 feet. However, as stated above, the sole use and purpose of the Defendants’ bottom land tract is in connection with their residence situated on their homesite tract.
“The Deed of Restrictions recorded by the Irvin Co. * * * regarding this subdivision, * * * restricts the use of each ‘parcel’ of land to one residence only. The Deeds to other owners in this subdivision * * * describe their homesite and bottom land tracts as one parcel only. Their actual residences having been constructed upon their homesite tracts, no construction may be placed upon their bottom land tracts by reason of these recorded restrictions.
“The deed from the Irvin Co. to the Defendants describes their homesite and bottom land tracts separately by necessity since they are physically separated and do not have a common closing point.
“However, the restriction prohibiting the use of the land to one residence only prevents these Defendants from using their bottom land in any way different from the use allowed to their neighbors (i. e. for recreation, earth fill and a buffer zone between their homesites and River Road).” (Emphasis added, “Defendants” refers to the present appellants.)

For convenient reference we shall refer to the two parcels as the bottom land and the residential land, as was done in the stipulation. A portion of the bottom land is being condemned; the residential land is not embraced in the taking at all.

The general rule of law applicable is not seriously disputed between these litigants. The accepted rule is accurately stated in 27 Am.Jur.2d, Eminent Domain, Section 315, p. 136:

"Even if the owner’s land is divided into parts in such manner as might otherwise raise the issue of separateness, if he is devoting the parts to a single use, and they lie in such proximity as to be in effect united by that use into a single property, they will be regarded as a whole for the purpose of assessing damages for the taking of a part.”

This rule, discussed in 6 A.L.R.2d 1199, et seq., and in 4 Nichols, Eminent Domain, 3d ed., Section 14.31 [1], has not been applied specifically in this jurisdiction, although it has been recognized as the sound rule in appropriate circumstances. See City of Williamstown v. Wallace, Ky., 316 S.W.2d 373; Commonwealth, Dept. of Highways v. Slusher, Ky., 371 S.W.2d 851. In its brief here the appellee candidly states: “The Commonwealth agrees that the Unit Rule is based on fairness and equity.”

It is our view that the appellee has stipulated itself out of the debate. It will be observed that the italicized portion of the stipulation, quoted above, expressly recites that “ * * * the sole use and purpose of the Defendant’s bottom land tract is in connection with their residence situated on their homesite tract.” It is appropriate to add, we think, that the factual situation warranted the stipulation anyway. We hold that there was such unity of use of the bottom land and the residential land as to make the two parcels one unit for the purposes at hand.

It follows, therefore, that the evidence relating to the before and after values of the “unit” (the bottom land and the residential land as an entity) should have been admitted. We find no merit in the ap-pellee’s assertion that appellant did not tender evidence along this line. The trial court had ruled in a pre-trial order that such evidence would not be admitted. The appellants appropriately proffered the evidence by avowal without going through the motions of first offering it before the jury in direct contravention of the court’s announced ruling.

In the county court the commissioners were directed to report awards calculated both ways — that is, by treating the bottom land as a separate unit and then by treating both parcels as a unit. Their award in the latter instance was substantially higher, and the county court based its judgment on the “unit” award. We are unable to agree with the appellee’s contention that appellants have failed to demonstrate prejudicial error. It seems to us that appellants were entitled to have the jury consider the impact of the taking upon the entire unit of property.

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

All concur.


author: OSBORNE, Judge. PALMORE, Judge

text:
    Charles E. LEDFORD and Lillian H. Ledford, Appellants, v. Tommy ATKINS, General Partner of Tommy Atkins Producing Company, a limited partnership d/b/a Melcher Atkins Oil, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Edward F. Prichard, Jr., Frankfort, for appellants.
    E. Gaines Davis, Jr., Smith, Reed, Yessin & Davis, Frankfort, for appellee.
   OSBORNE, Judge.

This is an action for a declaratory judgment as to the rights of the parties to an assignment of an oil lease. Appellants Ledford were lessees of another, whose identity is not disclosed in these proceedings. Ledford, in turn, assigned the leased premises consisting of several tracts to Harry Kaplin of Skokie, Illinois. Kaplin, in turn, made an assignment of his interest to the appellee herein, Tommy Atkins, general partner of Tommy Atkins Producing Company, a partnership.

The complaint alleges that the plaintiffs are holders of the lease by virtue of an assignment from Kaplin; that the lease provides for certain delay rentals to be paid on or before May 1, 1965, and that the failure to make these payments on or before that date would void the assignment. It further alleges that Atkins, who was managing partner of the partnership, was ill.

“3. Tommy Atkins, managing partner of plaintiff, was stricken with a very serious illness in March of 1965 which required extensive surgery on March 22, 1965 and put him in a comatose condition for twenty-three days, or until April 14, 1965. He remained in the hospital until April 25, 1965, and required a special nurse at home until May 2, 1965.
“4. As soon as he regained his senses, Atkins notified his limited partner, Martin Melcher, to pay the delay rentals, and on May 7, 1965, a check for Two Thousand Seven Hundred Seventy-Eight Dollars ($2,778.00) was mailed to defendants via air mail. This check was returned by defendants with a letter stating that it had been received on the 10th; that the amount was erroneous, and that the tender too (sic) late, and that defendants were treating the assignment as void by default.”

The complaint further alleges that on May 13, 1965, another check in the amount of $3182.00, along with appropriate interest, was mailed to the appellants. Plaintiff also alleges in his complaint that he has invested $250,000.00 in the leasehold and stands to lose this amount if the lease is forfeited. The defendants filed a motion to dismiss the action, along with their answer, in which they denied in part and admitted in part the allegations of the plaintiff in the complaint.

When the motion to dismiss was brought on for hearing, the parties stipulated and agreed that it should be treated as a motion for summary judgment. At this time, they each filed with the trial court exhaustive briefs in support of their respective contentions. The court, after considering the facts and making a most exhaustive examination of the law, rendered a well-considered and well-written opinion wherein he refused to declare a forfeiture of the lease because of the delay in making payment. The substance of the trial court’s ruling is as follows:

“In deciding the pending motion, the allegations of the complaint must be taken as true. The plaintiff lessee was 7 days late in tendering something less than full payment and full payment with interest was tendered 13 days late. Plaintiff was seriously ill on May 1st, the due date, and prior thereto. Plaintiff has expended $250,000.00 in working this lease. Whether plaintiff expended this amount or something less, he was apparently trying to find oil. A search for oil is the essence of this lease. Time of payment of rentals is not of the essence in this lease. It has been urged that there is no distinction between failure to develop and failure to pay rentals, and that the cases cited wherein a forfeiture was adjudged for a failure to develop are applicable to the present situation. I am of the opinion that there is a very distinct difference between the two. The search for oil is jeopardized in one and not in the other.
“On May 13th, the defendant had everything to which he was entitled under the lease — his rental with interest and a lessee who apparently had demonstrated something more than a passing interest in finding oil. This Court will not make time of the essence in this lease where the parties did not do so. This court cannot exact so great a penalty from a lessee who was 7 or 13 days late in paying his rental. Under this courts construction of the lease under the facts as they appear in the complaint, there has been no forfeiture. The motion for summary judgment is overruled.”

The question now before us is, did the trial court commit error in refusing to forfeit the lease? We believe not. Appellants contend, and it is true, that time is normally the essence of these contracts and the courts are prone to forfeit them when the time condition is not promptly met. Especially has this been true in Texas and some few other states which seem to recognize no exception to the rule. However, we believe the better rule, and the one generally followed by the majority of states, is to make allowances for extraordinary circumstances and not to order a forfeiture where the only failure has been a short delay in making payment. Especially when the forfeiture would result in the loss of a substantial investment on the part of the lessee and unjustly enrich the lessor. This rule is recognized in 5 A.L.R.2d, pp. 994 and 995.

“With allowances to be made for ordinary variances in rulings from state to state, explained in part at least by differences in the circumstances of cases, and except for negative doctrines supported with more or less consistency in one or two jurisdictions, the correct general conclusion seems to be that equity will grant relief from termination of an ‘unless’ lease, or from forfeiture of an ‘or’ or other lease, for nonpayment of delay rental, where it appears the leaseholder had fully intended to pay the full amount, but, without gross negligence, and because of accident, mistake, inadvertence, mischance, etc., failed to do so strictly on time.”

In Shaffer v. Marks, D.C., 241 F. 139, the court stated in effect that equity does not relieve against termination for intentional failure to pay delay rents on time whether the lease be an “or” or an “unless” lease. Yet, where the intention of the leaseholder was to make payment in strict accordance with the lease, but his attempt to do so was abortive because of some accident or mistake, not the result of his wilful or gross neglect, he may be granted relief. In the course of the opinion, the court states:

“ * * * intention to make the stipulated payment in strict accordance with the terms of the lease, but his attempt to do so is abortive because of some accident or mistake, not the result of his willful neglect or gross negligence, a court of equity may grant him relief as against the forfeiture asserted by the lessor because of such failure, where the lessor has not suffered in any way by the delay and it would be inequitable to enforce the forfeiture.”

The courts of this state seem to follow the majority rule. In the case of Bell v. Kilburn, 192 Ky. 809, 234 S.W. 730, we held, where assignment of oil and gas leases required assignee to place drilling machine on premises within specified time or pay a specified amount “immediately” upon expiration of such period of time, as-signee’s tender of payment three days after expiration of time did not prevent a forfeiture, since assignee was not entitled to any more time than was reasonably necessary in the regular course of business to -make the payment after expiration of the specified period.

However, in the case of Trammel Creek Oil and Gas Co. v. Server, 197 Ky. 594, 247 S.W. 753, where the lease didn’t contain a specific provision for forfeiture, we reached the opposite result holding that a short delay does not forfeit the lease. In Johnson v. Dodson, 227 Ky. 132, 12 S.W.2d 310, we were faced with a situation of failure to develop in accord with lease and in holding that there was no forfeiture, we stated:

“Forfeiture for nondevelopment, or delay in development, or for a failure to reasonably develop, is highly essential in the business of producing oil, but the law does not favor forfeitures, and none should be allowed without the one claiming the right shall have first placed the other party on notice that a forfeiture will be demanded, unless the terms of the lease as to development are carried out.”

So far as we have been able to find, there is no case in this jurisdiction where the failure to meet payments required under a drilling lease was caused by the physical incapacity of the lessee. In one case in Texas where the lessee claimed inability because of sickness of members of his family, Ford v. Barton, Tex.Civ.App., 224 S.W. 268, the court denied relief. However, the courts of Texas follow a minority rule that recognizes no excuse for delay in payment. Thornton on Oil and Gas, Chapter V, section 264, recognizes that there are exceptions to the forfeiture rule. He states the predominant view as follows:

“Forfeiture will be enforced where there is a substantial breach of an implied condition to develop; but not for failure of a strict compliance with requirements as to payment of rentals.”

We are of the opinion that equity should not permit the forfeiture of an oil lease because of a delay of 13 days in making payments, where the facts show that the lessee was severely ill and comatose for a period of 23 days, at a critical time when payments came due under the lease. Especially when the facts are considered that he intended to make the payments, and made them immediately upon regaining consciousness. To forfeit the lease under these conditions and especially so where the lessee stands to lose a substantial investment already made in developing the lease, in our opinion, would be a gross injustice.

The judgment is affirmed.

WILLIAMS, C. J., and STEINFELD, HILL and MONTGOMERY, JJ., concur.

MILLIKEN, J., not sitting.

PALMORE, Judge

(dissenting opinion).

The assignment in this case specifically provided that it would terminate upon the assignee’s failure to drill or pay the delay rentals when due. Such a provision in an oil and gas development contract not only is “favored by the courts,” cf. Bell v. Kilburn, 192 Ky. 809, 234 S.W. 730, 731 (1921), but by statute is made a part of any contract that “provides in substance that actual drilling or development may be postponed by the payment or tender of the rental on or before a certain day.” KRS 353.020. “The lease must be construed if possible to bring as strong a pressure to bear as possible on the lessee to begin development as soon as he can. The covenant as to rent must be interpreted in the light of this principle * * *. The provision that the failure to pay stipulated rentals on or before the day provided by the lease for that purpose shall work a forfeiture of such lease has a direct tendency to enforce the lease.” Kelley v. Hardwick, 228 Ky. 349, 14 S.W.2d 1098, 1099 (1929).

In Bell v. Kilburn, 192 Ky. 809, 234 S.W. 730 (1921), an assignment required the as-signee within 60 days to place a drilling machine on the leasehold or to pay a $510 delay rental. When the 60 days expired he had surveyed the premises and placed pipes and casing preparatory to drilling but had not moved a drilling machine onto the property. His tender of the $510 several days later was rejected, and this court upheld an injunction against his further entry. A similar result was reached in Niles v. Meade, 189 Ky. 243, 224 S.W. 854 (1920), wherein the assignee had expended $1,000 in preparing the leased premises but was prevented by heavy rains and high waters-from placing a drilling rig on the property within the specified time. The following excerpts from the opinion in the last-cited case are appropriate to this case:

“The failure to perform the stipulations of a contract, such as the ones undertaken by the defendants and their assignor, is not excused by the obligor being disabled to perform them because of casualties arising without fault upon his part, and the conditions of this contract were not impossible of performance when undertaken, and the assignor of defendants in making the contract did not make any provisions against such conditions as thereafter made the stipulations difficult of performance by the defendants. * * * Parties may place such lawful stipulations in their contracts as they may see fit and mutually agree upon, and if sui juris they are bound by them, and must submit to such results as they agree shall follow a failure to perform * * * ”

As pointed out in Kelley v. Hardwick, 228 Ky. 349, 14 S.W.2d 1098, 1099 (1929), a covenant to pay delay rentals is of no lesser importance than a covenant to drill. They are complementary. Failure to perform one or the other gives the lessor (or, in this case, the assignors) the right to avoid the contract. Hence this case cannot be distinguished from Niles v. Meade, 189 Ky. 243, 224 S.W. 854 (1920), cited above, upon the ground that in the Niles case the obligation was to place a drilling rig on the leasehold whereas in this instance it was merely to pay a delay rental, because it is a distinction without a difference in legal principle. And in no sense can this case be distinguished from Bell v. Kilburn, 192 Ky. 809, 234 S.W. 730 (1921), except insofar as the assignee here may be entitled to more sympathy by reason of the particular circumstances that occasioned his default.

I regard the delay rental provision of oil and gas contracts as very little different from an option. The lessee must either drill or make timely payment to keep the lease alive. When grown men have seen fit to place such a requirement in the contract, without condition, qualification or provision against unforeseen circumstances, I do not feel that a court should modify it.


author: STEINFELD, Judge. PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. D. W. SMITH et al., Appellees.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Robert Matthews, Atty.Gen., H. C. Smith, Sp. Asst. Atty. Gen., Frankfort, Reed D. Anderson, Madisonville, Robert A. Becht, Louisville, for appellant.
    Wells T. Lovett, Kenneth B. Kusch, Lovett, Howard & Moreman, John B. Anderson, Owensboro, for appellees.
   STEINFELD, Judge.

For the purpose of reconstructing a portion of U.S. Highway 60 near the city of Owensboro the Commonwealth, through the Department of Highways, sued to condemn land owned by appellees. From a judgment in the amount of $48,500.00 the Commonwealth appeals. It is claimed that the award was excessive; that it is not supported by evidence of probative value and that incompetent evidence was before the jury. The qualification of one witness is also under attack.

About 1940 a shopping center was developed on a tract of land containing slightly over two acres on the outskirts of Owens-boro. The tract had 422 front feet on the south side of the highway and a depth throughout of 220 feet. At the time of taking there were improvements consisting of three separate buildings. The principal structure contains a grocery which is called a supermarket. The grocery building is located approximately 21 feet from the old right of way and is just west of the center of the tract. It is 105 feet wide and approximately 78 feet deep. Another building containing a soft ice cream business is just east of the middle of the property and is approximately 25 feet from the old right of way. This building is 24 feet in width and 34 feet in depth. Across the rear of the property is a building 400 feet long which is occupied by a farm store, warehouse, western wear store, barber shop and offices. The total area occupied by buildings is approximately 20,888 square feet and the remaining land of approximately 70,000 square feet is a paved parking area.

The land being condemned is 18 feet in width on the west side and the width is gradually reduced until it is 10 feet wide on the east side. It extends the entire length of the front of the property. The area taken is 4,575 square feet, approximately ¾0 of an acre, all of which is paved for parking but contains no structural improvements.

In the original action brought in the Daviess County Court the commissioners awarded $4,487.25 from which award the owners appealed. The jury found the value of the entire tract before the taking to be $280,000.00 and after the taking to be $231,-500.00. It returned a verdict in the sum of $48,500.00 which it found to be the difference in the value before and after the taking. Judgment was entered for that amount.

Two witnesses testified for the Commonwealth. One stated that the entire property had a fair market value before the taking of $156,500.00 and an after value of $149,-750.00, a difference of $6,750.00. The other witness stated that before the taking the property was worth $165,000.00 and after-wards $156,000.00, a difference of $9,000.00.

Appellee produced six witnesses. Some were experienced real estate appraisers. Their testimony was to the effect that the value before the taking ranged from $260,-000.00 to $300,000.00; that the after value was between $190,000.00 and $200,000.00. According to what they said the difference in the value before and after taking ranged from $70,000.00 to $100,000.00.

Mr. Boyce Taylor, over the objection of the Commonwealth, attempted to qualify himself to testify by stating that he had been in the retail grocery business operating two markets for 24 years in Owens-boro, Kentucky and that he had read trade publications concerning the cost of developing shopping centers. He said he had studied the cost of constructing a building for a grocery. He testified that the before taking value was $280,000.00 and afterwards the land was worth only $200,000.00. He based his valuation on two sales which he considered comparable, one being a tract of land which was sold to an oil company for an automobile service station and the other a 12 acre tract also on the outskirts of Owensboro. Mr. Taylor was not qualified to testify as an expert and the trial court should have sustained the objection timely made. Napier v. Commonwealth, Dept. of Highways, Ky., 397 S.W.2d 45.

Testimony for the condemnee showed that customers had been accustomed to using a part of the existing highway right of way for the parking of vehicles, and that this would no longer be possible when the new highway is constructed. The evidence also showed that before the taking customers could enter the shopping center at all points along the highway and that this too would be changed, although it was admitted that reasonable ingress and egress would be provided to and from the new highway. The Commonwealth argues that the experts who testified for the owner considered these factors in arriving at the values which they stated. This was denied by these witnesses.

The law is clear that the loss of parking spaces on the right of way or loss of unrestricted ingress and egress, so long as there remains reasonable access to the property, may not be considered in determining values. Commonwealth, Department of Highways v. Caudill, Ky., 388 S.W. 2d 376; Sloan v. Commonwealth, Department of Highways, Ky., 405 S.W.2d 294.

The size of the award strikes “us as being unreasonable, and such as to show the jury was actuated by passion or partiality or by prejudice.” We consider it excessive. Commonwealth, Department of Highways v. Staples, Ky., 388 S.W.2d 374; Commonwealth, Department of Highways v. Quisenberry, Ky., 402 S.W.2d 427. The amount suggests that the jury gave some weight to factors which it should not have considered. Commonwealth v. Meehan, Ky., 258 S.W.2d 482.

The judgment is reversed for a new trial.

All concur except PALMORE, J., who dissents.

DISSENTING OPINION

PALMORE, Judge.

Although the award in this case was substantial, I have never yet mastered the witchcraft by which a group of non-experts sitting at Frankfort is able to determine that a verdict supported by the testimony of well qualified expert witnesses is excessive.

I think also that the witness Taylor was qualified. If not, it is a remarkable coincidence that his estimates were so well in line with those of the landowners’ other witnesses who are conceded to be qualified.

For these reasons I respectfully dissent.


author: HILL, Judge.

text:
    CITY OF LOUISVILLE, etc., Appellants, v. Beverly M. CHAPMAN et al., Appellees.
    Court of Appeals of Kentucky.
    March 24, 1967.

      Eugene H. Alvey, Chester A. Vittitow, Jr., Louisville, for appellants.
    Theodore Wurmser, Louisville, for ap-pellees.
   HILL, Judge.

Nineteen-year-old Judith Smith was killed February 14, 1963, at the intersection of 22nd and Hill Streets in Louisville, Kentucky, as a result of a collision between the automobile operated by Beverly M. Chapman, in which she was riding, and a police cruiser of the City operated by appellant Charles Mayer. Admittedly Mayer disregarded the red traffic light as he proceeded north on 22nd Street to answer an emergency call. The Chapman car was traveling east on Hill Street.

The jury trial resulted in a verdict for $101,305 to the estate of Miss Smith and a verdict for $1610 in favor of Mrs. Chapman. Mayer and the City appeal.

For some seconds before and at the time of the collision, Chapman had a green light. She had her windows closed and the wind was blowing. There were buildings along all four points of the intersection. She testified she did not hear the siren of .the police cruiser or see its rotating signal lights until within a few feet of the collision. At the time and previous to the collision, the siren was sounding and the signal lights were flashing.

Of the six grounds relied on by appellants, only two will be discussed. One relates to the instructions and the other to claimed municipal immunity to tort actions.

Before reaching the objection to the instructions, we review the duties of the two operators of the vehicles involved in the collision.

First to the duties of the operator of the emergency vehicle. KRS 189.320 provides such vehicles “shall have the right oi way with due regard to the safety of the public." (Emphasis added.) KRS 189.080(2) designates required equipment for emergency vehicles. KRS 189.390(6) exempts emergency vehicles from speed regulations when answering an emergency and provides for visibility of signal lights of at least 500 feet in normal atmospheric conditions, but this section concludes with this admonition of safety:

“This provision shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street, nor shall it protect the driver of any such vehicle from the consequence of a reckless disregard of the safety of others.”

By general ordinance 331.21 of the City of Louisville, it is provided:

“Authorized emergency vehicles shall comply with the provisions of this Traffic Code regulating the movement, stopping and parking of vehicles:
“(a) Provided, however, that the operator of any such vehicles performing emergency duties so long as he does not en~. danger life or property may exceed the lawful speed limit, disregard regulations governing direction of movement or turning in specified directions and park or stand notwithstanding the provisions of this Traffic Code; and,
“(b) Provided that * * * operators of any vehicle of the Police Division in answering emergency calls * * * may proceed past a red or stop signal or stop sign but only after slowing down as may be necessary for safe operation.” (Emphasis added.)

In addition to the general duties imposed upon appellee Chapman by Chapter 189 of Kentucky Revised Statutes, Louisville general ordinance 331.22 required that “the operator of all vehicles shall yield the right of way” to emergency vehicles. But in Gasparac v. Castle, Ky., 330 S.W.2d 111, 113 (1965), the duty to yield was qualified as follows:

“Notice and warning to persons required to yield the right of way is essential, and a reasonable opportunity to yield or get out of the way is necessary before they become chargeable with the obligation to give preference to the emergency vehicle. There must be strict observance of the conditions which will exempt an emergency vehicle. When a driver has the preferred right of way, he must be especially alert when he intends to run a red traffic light at a busy street intersection and must take care commensurate with the serious consequences that might follow his failure to do so.”

.With these duties in mind, we turn now to a consideration of Instruction 2 objected to by appellants. Instruction 2-d required the operator of the police car to: “(O)bserve traffic regulations governing the flow of traffic at that time and place.” This was improper and prejudicial. It was in effect a directed verdict for appellees. We think the jury had a right to, and no doubt did, interpret “observe traffic regulations” to mean to obey traffic regulations, such as observing stop and go signal lights. Instruction 4 required appellant Mayer to sound his horn, to exhibit a red flasher light, and to drive with due regard to the safety of the public; but nowhere in the instructions was the jury told that Mayer had a right to run a red light by exercising due regard to the safety of the public. Instruction 4 did not cure the defect in 2-d or supply the necessary qualification of the duty imposed in 2-d.

Appellant City of Louisville, a city of the first class, earnestly urges that the rule of law announced in Haney v. City of Lexington, Ky., 386 S.W.2d 738, 10 A.L.R. 3d 1362 (1964), violates Section 233 of the Constitution and many decisions of this court prior to Haney. Chambers v. Ideal Pure Milk Co., Ky., 245 S.W.2d 589 (1952) and other cases are cited.

In Haney this court said, “In determining the tort liability of a municipality it is no longer necessary to divide its operations into those which are proprietary and those which are governmental.” We reaffirm our holding in Haney. It should be stated, however, that neither in Haney nor in the present case do we intend to impose liability on municipalities in the exercise of legislative or judicial or quasi-judicial or quasi-legislative functions.

A further word is appropriate to dispose of appellants’ insistence that section 233 of the Constitution of Kentucky is a constitutional bar to this action. Appellant reasons that the rule in Haney does not apply to the facts of the present case by reason of the difference in the municipal functions in the two cases, and that inasmuch as Haney did not discuss section 233 of the Constitution, this court should do so in the present case.

We discern no justifiable reason for making a distinction between the application of the rule in Haney and the facts of the present case.

The writers of the Constitution in dealing with governmental immunity (a product of the common law) stated in section 233 that the common law “shall be in force within this State until they shall be altered or repealed by the General Assembly.” But the common law is not now, nor was it ever, a static body of the law. It (the .common law) may be likened to a- mighty- rising river. It may and it must_spilL over into new fields and new -territory in order to make its way to the sea. This identical question was before the supreme court of the state of Illinois in Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953), except that in the Amann case a statute was involved, whereas in the present case a section of the Kentucky Constitution is in focus. We could not hope to improve upon the language of the renowned Justice Schaefer in the Amann case, from which we quote:

“What the statute adopted was not just those doctrines which happened to have already been announced by English courts at the close of the Middle Ages, but rather a system of law whose outstanding characteristic is its adaptability and capacity for growth. The common law which the statute adopted ‘is a system of elementary rules and of general judicial declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions, and the exigencies and usages of the country.’ Kreitz v. Behrensmeyer, 149 Ill. 496, 36 N.E. 983, 984, 24 L.R.A. 59.
“In rejecting the contention upon which the defendant now insists, this court pointed out more than a hundred years ago, ‘that if we are to be restricted to the common law, as it was enacted at fourth James, rejecting all modifications and improvements which have since been made, by practice and statutes, except our own statutes, we will find that system entirely inapplicable to our present condition, for the simple reason that it is more than two hundred years behind the age.’ Penny v. Little, 3 Scam. 301, 304.”

We do not think the framers of our Constitution intended to shackle the hands of the judicial branch of government in its interpretation, modification or abolition of the great body of mutable common law to meet the demands of changing times.

Municipal functions have become so varied and extensive that public safety demands that municipal employees be held to the same safety standards as other citizens. Private citizens voluntarily and for good economic reasons insure themselves against tort liability. Why shouldn’t a collection of citizens classified as a municipality do likewise ?

We reverse the judgment with directions to grant appellants a new trial. This conclusion makes it unnecessary to discuss the four remaining questions raised by appellants.

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

MONTGOMERY, J., not concurring.

STEINFELD, J., not sitting.


text:
    Anna Faye SHERRARD, etc., Appellants, v. John OAKLEY, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Francis E. Bauman, Arnold J . Lemaire, Louisville, for appellants.
    E. E. Hubbard, W. R. Gentry, Jr., Bards-town, for appellee.
   HILL, Judge.

This is an appeal from a judgment entered on a directed verdict for defendant at the close of plaintiffs-appellants’ evidence in a malpratice case against defendant-ap-pellee, a dentist.

Only two points are assigned in appellants’ statement of “points on appeal.” The first one has been abandoned, and the second asserts that: “The court erred in not sustaining Plaintiffs’ Motion for Peremptory Instruction for them.” Only a partial record has been designated by appellants and filed in this court. CR 75.04 required the filing of a “concise statement of the points on which” appellants intended to rely on the appeal.

The only question properly raised on this appeal is whether appellants were entitled to a directed verdict at the close of plaintiffs’ evidence. Clearly the trial court had no power to cut off defendant’s right to present his case, if he so desired, by sustaining a motion of the plaintiffs for a directed verdict at the close of their case.

The judgment is affirmed.

All concur.


author: WILLIAMS, Chief Justice.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. W. H. HARRIS et al., Appellees.
    Court of Appeals of Kentucky.
    March 24, 1967.

      Robert F. Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Frankfort, Charles W. Huddleston, Bowling Green, for appellant.
    Charles H. Reynolds, Bell, Orr & Reynolds, Bowling Green, for appellees.
   WILLIAMS, Chief Justice.

In this highway condemnation action the appellant, Commonwealth of Kentucky, Department of Highways, condemned approximately 13½ acres of appellees’ farm for the purpose of constructing a portion of Interstate 65. A jury in the Warren Circuit Court determined the difference in value of the appellees’ property before and after the taking to be $8,000. From a judgment awarding that sum the Commonwealth has appealed.

Appellees’ farm is located about 11 miles south of Bowling Green and was comprised of approximately 164 acres prior to the taking. The farm is a good economic unit, satisfactory for diversified farming. 'The land is partly level and partly rolling, and is adaptable for both tilling and pasture. Located thereon are a residence, three barns, a garage, service buildings and ponds, none of which is affected by the taking. The land taken lies along one edge of the farm near the residence.

The Commonwealth alleges that (1) the verdict was excessive and (2) the trial court erred in refusing to strike the testimony of appellees’ appraisal witness.

Having considered all the testimony offered by both sides it is apparent the verdict is liberal. However, it does not strike us at first blush as being so excessive as to require a reversal. Nor can we say the verdict is unsupported by probative evidence.

Appellees had only one appraisal witness who was an experienced licensed realtor and admittedly was well qualified. Although the witness did not use comparable sales in making his estimate concerning the value of the property, he took into consideration various other items which he believed affected its value. For example, he considered the reduction in overall size of the farm unit, the fact that some of the better land was taken, the alteration of the drainage system, and the construction of a frontage road along one side of appellees’ residence which resulted in a road both in front and at the side of the residence.

Although comparable sales are a recognized valuable tool in making appraisals, there are many other factors which properly should be considered, and the failure to use comparable sales is not always fatal to the appraisal. We said in Commonwealth, Department of Highways v. Vaughn, Ky., 390 S.W.2d 146:

“ * * * Fortunately, this Court has recognized that the valuation placed upon property by competent witnesses is suf-ficent in itself without reference to genuinely comparable sales which so often are not available.”

The testimony of appellees’ appraisal witness would have been much more convincing had he based it in part upon the comparable sales factor. But, even though he did not, we do not say that his testimony lacked probative value. Consequently, the trial court did not err in overruling appellant’s motion to strike his testimony for that reason.

A schedule of the witnesses’ valuations follows:

Appellant’s Witnesses
Before value After value Difference
(1) $50,000 $47,000 $3,000
(2) $45,000 $41,500 $3,500
Appellees’ Witness
$57,000 $41,800 $15,200

The witnesses for appellant used comparable sales as well as other factors in determining the before and after values of the property. That they reached divergent opinions serves to point up the fact that an appraisal of property is nothing more than an estimate of its worth determined in the best judgment of the appraiser. Had comparable sales been the only reliable factor upon which to base an estimate in this case, there would have been no justification for a value as high as was fixed by the jury. However, as heretofore noted, other factors properly should be and were included in making an appraisal.

The difference in the before and after values of the property as testified to by the appraiser for the appellees was obviously exaggerated and just as obviously discounted by the jury. The jury plainly and simply did not believe appellees’ witness to the full extent of his testimony. But they did put credence in it up to a point. The jury just as obviously did not put full credence in the testimony of appellant’s witnesses. It found the before value of the farm to be $52,000, which was more than either had valued it, and found the after value to be $44,000, which was less than one had valued it. In Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W. 2d 472, we said:

“ * * * the jury is deemed capable of exercising reason and logic, and of having common knowledge, and therefore is capable of according such evidence its proper weight and value * * * ”

The jury apparently sifted through the evidence introduced by both sides and reached a verdict based on the believable and logical conclusions gleaned therefrom. Although the verdict was quite liberal, it was based on sufficient evidence of probative value.

The judgment is affirmed.

All concur.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. L. R. GARDNER, Single, Edna Mae Gardner, Single, Appellees.
    Court of Appeals of Kentucky.
    March 24, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Dept, of Highways, Frankfort, Joseph R. Huddleston, Huddleston & Hud-dleston, Bowling Green, Tildón H. McMas-ters, Elizabethtown, for appellant.
    Davis Williams, Munfordville, for appel-lees.
   CULLEN, Commissioner.

The Commonwealth of Kentucky, Department of Highways, appeals from a judgment awarding the appellee landowners $2630 as damages for property taken by condemnation for highway purposes.

The condemnation took a triangular parcel of 4.48 acres from the western tip of the appellees’ farm, to be used as right of way for a limited-access interstate highway. As a part of the highway project a county road on which the farm abutted was to be closed at the right-of-way line of the new highway, thus cutting off the ap-pellees’ closest route of travel westward to U. S. Highway No. 31 W and the town of Bonnieville.

Before the taking the appellees’ farm consisted of 160 acres. The highest “before” value assigned by the appellees’ witness was $18,000, or $112.50 per acre. However, these witnesses testified that the difference in “before” and “after” values was from $4,000 to $8,950. They did not ascribe any unusual qualities of value to the land taken, so it would appear that they did not consider it worth any more than the average “before” value of $112.50 per acre, which means that only around $500 of the difference in value the witnesses testified to was attributable to the value of the land taken. The question was, then: Where did the rest of the difference in value come from? The simple truth is that every one of the appel-lees’ witnesses based the rest of the difference in value on circuity of travel and separation of the farm from the “Bonnieville Community.” Some of the appellees’ witnesses frankly so admitted, and their testimony then was stricken. The other witnesses, when motions were made to strike their testimony, undertook to say that the differences in value testified to by them existed without regard to the factors of circuity of travel and separation from the Bonnieville Community. However, they were unable to think of any factor at all, ■other than the bare value of the land taken; they squirmed and made feeble attempts to evade; they asked the court if they had to answer the Commonwealth’s questions; and it is perfectly obvious that they, as did the others, rested their estimates of damage primarily on the improper factors above mentioned. Their testimony also should have been stricken.

Mere subjection to circuity of travel is not compensable. Department of Highways v. Jackson, Ky., 302 S.W.2d 373; Department of Highways v. Herndon, Ky., 378 S.W.2d 620. Nor is separation from the “influence” of a particular community. Department of Highways v. Prewitt, Ky., 390 S.W.2d 898.

If a witness bases his estimate of damages primarily on an improper factor his estimate is invalid and his testimony is subject to a motion to strike. Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472; West Kentucky Coal Company v. Commonwealth, Ky., 368 S.W. 2d 738; Commonwealth, Department of Highways v. Napier, Ky., 387 S.W.2d 861.

For the reasons pointed out in Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472, the admonitions given by the trial court to the jury, not to consider the improper factors, and the rulings of the court excluding so much of the testimony as related to improper factors, were of no efficacy. The witnesses were not able to exclude, disregard or eliminate from their consideration the improper factors and make an estimate of damages free from the influence of those factors, so how could the jury be expected to make a separation?

Although the testimony of all of the valuation witnesses for the appellees should have been stricken, this does not mean that the court should have given a directed verdict for the amount of damage testified to by the Commonwealth’s witness ($630). See Stewart v. Sizemore, Ky., 332 S.W.2d 281.

The judgment is reversed with directions to grant a new trial.

All concur.


text:
    Thomas M. SWOPE, Appellant, v. Elwood FALLEN, Jr., Appellee.
    Court of Appeals of Kentucky.
    March 24, 1967.

      John Y. Brown, Brown, Sledd & Mc-Cann, Lexington, J. Smith Hays, Jr., Hays & Hays, M. C. Redwine, Jr., Winchester, for appellant.
    J. Marshall McCann, Jr., and Beverly P. White, White, McCann & Stewart, Winchester, for appellee.
   CULLEN, Commissioner.

Appellant Thomas M. Swope’s automobile, while stopped on the highway at a point where construction work was going on, was struck from the rear by the automobile of the appellee Elwood Fallen, Jr., whose brakes had failed. In Swope’s suit for damages the jury found for Fallen under a “sudden emergency” instruction, and judgment was entered dismissing the claim. Swope has appealed.

The accident occurred in August 1964. Fallen’s car was a 1960 model. A mechanic who examined the car after the accident found a hole in the brake line running to the left rear wheel. He testified that the line was “out of its normal position;” a shock absorber had rubbed against the side of it and had “wore it real thinand when the brakes were applied at the time of the accident the thin spot broke through. He further testified that “in the normal maintenance of a car you wouldn’t examine that brake line.” This mechanic had fixed a leaking wheel brake cylinder on the Fallen car two or three months before the accident.

The “sudden emergency” instruction under which the jury found for Fallen was predicated upon Fallen’s being “suddenly and unexpectedly confronted by brake failure.” Another instruction, on causation, referred to the brakes’ giving way “suddenly and without previous warning.” The plaintiff objected to the instructions on the ground that they did not “include the requirement that the defendant not know or could not by the exercise of ordinary care know that the brakes would not work.” We think this objection sufficiently raised the point of the necessity of instructing on the defendant’s duty to have exercised ordinary care in regard to inspecting and maintaining in good order the brakes on his car.

The applicable statute, KRS 189.090(3) (e), says: “All brakes shall be maintained in good working order * * In Veal v. Davis, Ky., 343 S.W.2d 593, this Court recognized the proper rule as being that one of the conditions of exoneration from liability on account of a sudden failure of brakes is that the owner “has exercised ordinary care in checking and maintaining the braking system.” The Court approved an instruction containing the condition “and could not, by the exercise of ordinary care, have known that said brakes would not work at the time and place of the accident.” Most jurisdictions impose a duty on the owner of a motor vehicle to exercise ordinary care to see that the brakes are in a proper and safe condition. See 8 Am. Jur., 2d, Automobile and Highway Traffic, sec. 700, p. 250.

In Gaidry Motors v. Brannon, Ky., 268 S.W.2d 627, in holding that a dealer in used cars has the duty of reasonable inspection for brake defects and other mechanical defects, we observed that an automobile in a defective mechanical condition may become ,a dangerous instrumentality. The great danger potential from defective brakes is obvious.

We reconfirm the rule that the owner of a motor vehicle has the duty to exercise ordinary care to see that the brakes are maintained in safe condition. This being the rule, the trial court in a brake-failure case should so instruct the jury, unless, as was the situation in Veal v. Davis, Ky., 343 S.W.2d 593, the evidence shows conclusively that the motorist had exercised ordinary care (or unless the evidence of lack of care is so conclusive as to entitle the plaintiff to a directed verdict).

It is our opinion, at least with respect to an automobile several years old, that from the mere fact of a brake failure an inference may be drawn that the owner had not exercised ordinary care with regard to maintenance. See 8 Am.Jur., 2d, Automobiles and Highway Traffic, sec. 500, p. 251. In the instant case the inference was strengthened by the evidence that the brake line was out of normal position, touching a shock absorber, which fact presumably could have beén discovered by a reasonable inspection. Opposing the inference there was the evidence that work had been done on a wheel cylinder a few months before the accident, and the mechanic’s statement that in the “normal maintenance” of a car “you wouldn’t examine that brake line”. However, this statement had the import only that in routine servicing of a car brake lines are not examined. Certainly, the defendant’s evidence was not so strong as to overcome the inference completely and entitle the defendant to a directed verdict. At the same time, we do not feel that the inference was itself so strong as to entitle the plaintiff to a directed verdict. See Bell & Koch, Inc. v. Stanley, Ky., 375 S.W.2d 696.

It is our conclusion that the trial court committed prejudicial error in not submitting to the jury, under a proper instruction, the issue of whether the defendant had exercised ordinary care in regard to inspection and maintenance of the brakes on his car in safe condition.

The appellant presents other arguments with respect to the instructions, which will require only brief comment.

The evidence of the appellee was that he saw the appellant’s stopped car when he rounded a curve 600 feet away; he applie4 his brakes and they momentarily took hold but when he reached a point 250 feet from the appellant’s car the brakes “went out;” he did not think about using the emergency brake; he disengaged the clutch and shifted into second gear but did not manage to reengage the clutch before the collision; he was “scared.” There was conflicting evidence as to whether the shoulder to the right of the appellant’s car was sufficiently clear of obstructions to have given the ap-pellee a reasonable chance of avoiding a collision by turning onto the shoulder.

Under the evidence there was no occasion to instruct on the appellee’s duty of lookout because admittedly he saw the appellant’s car in ample time to have stopped if his brakes had held. There was no basis for an instruction on the duty of the appellee not to knowingly operate his car with defective brakes, because there was no evidence that he did know the brakes were defective. So the court did not err in refusing to give those requested instructions.

Any contributory negligence of the appellant in leaving his car standing longer than necessary where he was stopped was not a proximate cause of the accident, since the appellee with effective brakes would have had no difficulty in coming to an uneventful stop. Therefore the court should not have instructed on contributory negligence.

The evidence does not warrant the conclusion that as a matter of law the appellee created the emergency condition in which he found himself because he was driving at an excessive rate of speed, failed to have his car under control, and failed to keep a proper lookout. While there was evidence of excessive speed there was evidence to the contrary. There was no evidence of any failure of lookout or control that as a matter of law could be held to have been a contributing cause of the accident. The instructions on sudden emergency required that the appellee have been exercising ordinary care in the operation of his automobile and observing his duties as to speed, control, etc. We think this was sufficient to inform the jury that the appel-lee could not be exonerated by a self-created emergency.

The appellant contends that as a matter of law the appellee failed to exercise ordinary care after the emergency developed, in that he failed to use his emergency brake, did not reengage the clutch after shifting into second gear, and did not turn onto the shoulder. We think the question of what a reasonably prudent man would have done in the circumstances is one on which reasonable minds could differ. We are not so naive as to believe that the ordinarily prudent motorist is capable of utilizing to full advantage all of the means and devices available to him in an emergency situation.

Upon another trial it should be sufficient to submit to the jury only the issue of care as to maintenance of the brakes in safe condition, and the issue of sudden emergency (the latter issue embracing care both before and during the emergency).

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

All concur.


author: WADDILL, Commissioner.

text:
    Hubert CAMPBELL, Appellant, v. HARRIS BROTHERS CONSTRUCTION COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Burke & Justice, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Jack T. Page, Stephens, Combs & Page, Pikeville, Stuart E. Alexander, Louisville, J. Keller Whitaker, Workmen’s Compensation Board, Frankfort, for appellees.
   WADDILL, Commissioner.

This is an appeal from a judgment upholding an award of the Kentucky Workmen’s Compensation Board based upon the finding that appellant is 20% permanently disabled from an injury he sustained in his employment with appellee. The only contention is that appellant is entitled as a matter of law to an award for total disability.

Appellant, age 35, has been employed by the appellee for approximately fourteen years. He characterized his employment as a “lineman,” the duties of which included building new lines, removing and setting new poles and rendering house service. At times he was required to climb poles and string wire thereby necessitating a full range of arm motion.

On May 13, 1964, while appellant was engaged in his duties for appellee he came into contact with a hot-wire and received a severe electrical shock which caused a dislocation of the right shoulder and a fracture of the glenoid realm. Appellant returned to work for appellee during December 1964 and the next month he was promoted to a supervisory position in which capacity he is foreman of a crew of linemen.

Upon submission of appellant’s claim for compensation the only issues before the board were the extent and duration of appellant’s disability. Concerning these issues there is sharp disagreement between the two physicians who testified. Doctor W. C. Hambley, an orthopedic surgeon, stated the appellant has a 33½ per cent disability to the right shoulder which he translated to a 10-15 per cent disability to the body as a whole. Doctor Hambley was of the opinion that, because of the limitation of the motion in appellant’s right shoulder, he would be incapable of performing the duties of a lineman. As to his physical limitation for other activities Doctor Hambley stated:

“ * * * I would say he would be able to do most ordinary manual employment —Well, for example, as a painter, he would have some limitations for overhead painting. He could even do electrical work where it was not — where he didn’t require climbing, the ordinary inside, probably, electrical work, but as a matter of fact I think probably the Company could find something for him to do within their own company that didn’t require his work as a lineman and he might have to take a pay decrease because of re-classification.”

Doctor Kearns Thompson, also an orthopedic surgeon, stated that, while appellant has sustained an impairment of the right extremity, this impairment would lessen because the atrophy in the muscles of the shoulder would decrease with use. Doctor Thompson was of the opinion that appellant is now physically able to perform all of his former employment duties.

In substance, appellant argues that the job of lineman and that of foreman of a crew of linemen are not in the same occupational classification. It is argued further that, since appellant’s injury prevents him from working as a lineman and in view of the fact his capacity to perform other types of work is impaired he is entitled to compensation for total disability. It is urged that the rule to be applied is that an injured employee is entitled to total disability benefits provided by KRS 342.095 when he is totally disabled from the performance of work in his former occupational classification and his capacity to perform other kinds of work is impaired. Highland Roofing & Sheet Metal Company v. Helms, Ky., 407 S.W.2d 132; Leep v. Kentucky State Police, Ky., 366 S.W.2d 729; E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 84 A.L.R.2d 1102.

The fallacy of appellant’s contention is that the evidence fails to establish that appellant is unable to perform the work in his former occupational classification and the companion requirement that his capacity to perform other kinds of work is seriously impaired.

Doctor Thompson was of the opinion that appellant is able to work as a lineman. Appellant’s own physician, Doctor Hambley, thought appellant could perform most of the duties of an electrical worker, a painter, or most jobs requiring manual labor. The medical testimony alone is amply sufficient to support the finding of 20% partial permanent disability as found by the fact-finder rather than the 100% disability for which appellant contends.

The facts and contentions made in the instant case are similar to those in Hopkins v. Wiscombe Southern Painting Company, Ky., 402 S.W.2d 690. Therein we affirmed a judgment which had reduced an award for total and permanent disability to one for partial permanent disability.

The judgment is affirmed.

All concur except HILL, J., who was not sitting.


author: WALKER, Justice.

text:
    Thomas T. DAVIS et al., Relators, v. Eva BARNES, Judge of Domestic Relations Court No. 1 et al., Respondents.
    No. B-82.
    Supreme Court of Texas.
    March 22, 1967.
    Joe Shannon, Jr., Fort Worth, R. Temple Dickson, Sweetwater, for relator.
    Clyde & Hines, Fort Worth, for respondent.
   WALKER, Justice.

This is an original mandamus proceeding. Relators contend that the writ should issue to enforce their right to a mandatory legislative continuance under the provisions of Article 2168a, Vernon’s Ann.Tex.Civ.Stat. We hold that on the facts of this case re-lators are not entitled to the relief they seek here.

The Honorable Eva Barnes, respondent, is Judge of the Domestic Relations Court No. 1 of Tarrant County. Thomas T. Davis, relator, is defendant in a divorce proceeding pending in that court, and one of his attorneys in the divorce action is the Honorable Joe Shannon, Jr., relator, who is a member of the House of Representatives of the 60th Legislature. The divorce case was set for trial on December 30, 1966. This was less than thirty days prior to the convening of the regular session of the 60th Legislature, and on Décember 28, 1966, relators filed their verified motion for a legislative continuance. The motion was orally overruled, and the divorce action was tried on December 30th. Thereafter on February 2, 1967, Judge Barnes signed a judgment overruling the motion for continuance, granting a divorce to the plaintiff, and dividing the community property of the parties.

Relators then presented to us their petition for a writ of mandamus. We granted leave to file and set the mandamus proceeding for oral argument on February 15, 1967. Relators also filed a motion for new trial in the divorce action. This motion was granted by order entered on February 6, 1967, which recites that the court erred in overruling the motion for continuance and in entering judgment. According to the allegations of the amended petition for mandamus, however, Judge Barnes refused to enter an order affirmatively continuing the divorce case until 30 days after adjournment of the Legislature.

The granting of the motion for new trial eliminates any question as to whether the issuance of a writ of mandamus might be precluded by the fact that relators had a remedy by appeal. It also gave relators all the relief they ordinarily would have obtained on appeal, and the only question is whether a writ of mandamus should now issue directing Judge Barnes to continue the case until 30 days after adjournment of the Legislature. Relators say they are entitled to this additional relief under our decision in Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759.

In Mora a criminal action was pending in the district court, and the defendant was represented by a member of the Legislature. The petition for a writ of mandamus was filed promptly after their motion for a legislative continuance was overruled and before the criminal case was tried. An order was entered by this Court staying further proceedings in the district court until the mandamus action could be decided. The district judge stated in his answer that he had no intention of calling the criminal case for trial “until after adjournment of the Legislative Session.” This did not accord full relief, because it was the judge’s mandatory duty to continue the case until some date at least ten days after adjournment of the Legislature. It was accordingly held that a mandamus would issue unless an order to that effect was entered by the district judge. The decision does not stand for the proposition that a writ of mandamus will always issue whenever a motion for a legislative continuance has been improperly overruled and despite assurances from the district judge that the main case will not be called for trial during the period contemplated by Article 2168a.

At the time she originally acted on the motion for continuance, it was the duty of Judge Barnes to grant the same and continue the case until 30 days after adjournment of the Legislature. She violated that duty initially, but the situation is now somewhat different. The divorce action was tried and a judgment was entered before our jurisdiction was invoked. That judgment was later set aside and a new trial granted. The case thus stands on the docket untried and unset, and this was brought about not by the intervention of a superior court but by the action of the trial judge in recognition of her error in failing to grant a continuance. It also is clear that the previous order overruling the motion for continuance can have no effect upon future proceedings in the divorce action. In our opinion Article 2168a does not require that a motion for legislative continuance be entertained and granted under these circumstances and when the case is not even set for trial. This leads to the conclusion that the petition for a writ of mandamus should be denied, and it is so ordered.

      . “In all suits, either civil or criminal, or in matters of probate, pending in any court of this State at any time within thirty (30) days of a date when the Legislature is to be in Session, or at any time the Legislature is in Session, it shall be mandatory that the court continue such cause if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney for any party to such cause, is a Member of either branch of the Legislature, and will be or is in actual attendance on a Session of the same. * * * On the filing of such affidavit, the court shall continue the cause until thirty (30) days after the adjournment of the Legislature * * *. It is hereby declared to be the intention of the Legislature that the provisions of this Section shall be deemed mandatory and not discretionary.”

      . Article 2168a as amended in 1949 requires that the cause be continued until thirty rather than ten days after adjournment of the Legislature.


author: BELCHER, Judge.

text:
    David CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 40180.
    Court of Criminal Appeals of Texas.
    March 29, 1967.
    Stanley I. Weinberg (on appeal only), Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for burglary; the punishment twelve years.

As grounds for reversal, the appellant contends that the court erred in admitting certain testimony of police officers over his objection that the matters revealed in said testimony occurred outside of his presence and was hearsay, having been obtained by them from telephone calls and police radio broadcasts which led to appellant’s arrest.

Dorothy Jenks testified that about 10:25 a. m. she observed a car occupied by two Negro males backing into the driveway at her home and noted its first three license numbers and later got all the numbers; that while she was talking by telephone with Officer Behringer, the passenger knocked on the front door, and then the driver (whom she identified at the trial as the appellant) came to a window at the side of the house. The witness Jenks further testified as follows:

“Q All right. After you heard him (appellant) getting in there, and with your Real Kill Spray — that’s one of those aerosol spray bombs things that spews out?
“A Yes, it is.
* * * * * *
“Q All right, what did you do with the aerosol bomb of Real Kill?
“A Punched it down, squirted it in his face and he just fell back and he ran to the car, like he was going out the drive way.
“Q All right, now, and all of this time was the telephone call open to the Dallas Police Department?
“A Yes, it was.
“Q State the facts as to whether or not you had, whether in fact you did have a conversation with Lieutenant Behringer of the Burglary &' Theft Department ?
“A I did.
“Q All right, and did you tell him what had transpired there?
“A Yes, I did.
“Q Did you give him the license number that you had written down from this car?
“A Yes, I did. I gave him the first three numbers. And then he told me to get the others, and I did.
“Q And you went back and got the numbers, is that right ?
“A Yes, sir.
“Q When did you get the numbers, as they were driving away?
“A As they were driving away.”

On cross-examination Dorothy Jenks testified in part as follows:

“Q Now, when did you see the other three numbers on that license plate ?
“A When they were going out of the driveway.
“Q While you were talking on the telephone ?
“A Yes, sir. He (Officer Behringer) told me to get the other numbers, so I got 'the other numbers.”

Officer Behringer testified that following the telephone conversation with Dorothy Jenks he caused a broadcast of the license number of an automobile to be made over the police radio.

There was no objection made to the admission of the foregoing testimony of Dorothy Jenks, and the information given in the radio broadcast did not include anything not contained in the testimony of Dorothy Jenks as it is shown herein. No error is presented.

Error is also urged on the ground that the court erred in “admitting into evidence on a separate hearing on punishment before the jury after a finding of guilt as provided by Article 37.07(2) (b), [Vernon’s Ann.] C.C.P., 1965, stipulations as to prior felony convictions of Appellant where said stipulations were not in writing, Appellant had not testified in the trial on the questions of guilt or innocence and had not taken the stand in the separate hearing on punishment, and Appellant did not personally join in the stipulations nor specifically waive his right to the confrontation of witnesses nor his right against self-incrimination.”

After the return of the verdict of guilty by the jury, the following evidence was all that was introduced before the jury on the issue of punishment, and it was stipulated:

“State’s Counsel: We have a stipulation. I assume that we can enter into at this time.
“The Court: Very well, enter into your stipulated testimony.
“State’s Counsel: It is agreed by and between counsel for the state, counsel for the defendant, and the defendant, in open court, that this defendant has been previously convicted in 1955 of the offense of burglary and served a term of years in the Texas State Penitentiary for that offense; and, again, convicted of the offense of burglary in 1959, and served a term of years in the penitentiary for that offense. Is that so stipulated?
“Appellant’s Counsel: Yes.
“The Court: Is it agreed and stipulated to by both sides, and the defendant alike ?
“Appellant’s Counsel: Yes, sir.
“The Court: Very well. That stipulation will be entered into the record.”

In considering a similar contention in Alexander v. State, Tex.Cr.App., 401 S.W. 2d 818, 821:

“The stipulation dictated by the prosecutor specified that both counsel and appellant were parties to the agreement. While appellant did not personally voice his assent, but remained silent throughout this colloquy, we have concluded that this stipulation by appellant’s counsel, and appellant’s acquiescence thereto, are sufficient to obviate the necessity for further proof of the prior conviction. Locke v. State, 168 Tex.Cr.R. 507, 329 S.W.2d 873.”

The judgment is affirmed.


text:
    Lloyd Harold MOODY, Appellant, v. The STATE of Texas, Appellee.
    No. 40211.
    Court of Criminal Appeals of Texas.
    March 29, 1967.
    Robert J. Seerden, Victoria, for appellant.
    Wiley Cheatham, Dist. Atty., Cuero, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for murder; the punishment, fifty years.

Trial was had and notice of appeal given prior to January 1, 1966.

In our Cause No. 38,469, this appeal was dismissed for the lack of a sentence, and mandate issued. Thereafter, sentence was pronounced in accordance with the judgment of conviction and this appeal was docketed under the above-numbered cause.

The testimony of two eye witnesses reveals that while the appellant and the deceased were standing near each other arguing, the appellant told the deceased he was going to kill him, pulled a pistol, pointed it in his face and pulled the trigger; that the deceased had no weapons in his hands, which were down by his side at the time of the shooting, and no weapons were found on or near his body.

A physician, who examined the body of the deceased, testified that death was caused by a .22 caliber bullet entering the inner side of the right eye, going into the brain and lodging in the back of the skull; and that there were powder burns around the bullet entrance site.

The appellant did not testify. He called three witnesses but they were not present at the time of the shooting.

It is concluded that the evidence is sufficient to support the conviction.

The refusal of the trial court to grant his motion for discovery with respect to a tire tool and for it to be produced in court for inspection by the appellant and his counsel is urged as a ground of error.

The discovery motion was filed the day the trial began, but the record fails to show that the state was given or had notice of it, or, that it was ever presented to or acted upon by the trial court. At the close of the evidence, the appellant orally stated that he renewed his motion for the state to produce the tire tool. At this time the state’s attorney stated: “Your Honor, they can call any witness they want.” The motion was overruled. Officer Bone testified at the hearing on motion for new trial that he told appellant’s counsel • during the trial that he found the tire tool. Bone was available during the trial as a witness but not called.

The evidence on the trial on the merits reveals nothing pertaining to the use of a tire tool at the time of the shooting.

The evidence shows an argument between appellant and deceased at a tavern and then appellant went home in his car. Appellant’s mother testified that the deceased came to their house in his car, got out, and drew back with a “stick or something” but never struck the appellant, and they drove away in separate cars. They soon returned near the tavern where they again argued, the shooting followed, and the deceased fell to the ground, dying instantly.

On motion for new trial, Officer Bone, one of the arresting officers, testified that on the way from appellant’s home to the police station, the appellant told them that the deceased had a tire tool in his hand but never said he threatened to use it and he (deceased) threw it in the back seat of his car, and he (Bone) found it under the right front seat of deceased’s car and placed it in the property room at the police station; that he told other officers about the tire tool; and he also told appellant’s counsel during the trial that he found the tire tool; and that he was available as a witness during the trial.

The trial court did not abuse its discretion in overruling the oral motion for the state to produce the tire tool.

As a ground of error, the appellant insists that error was committed when the eye witness McDade testified that the next time (after the shooting) he saw the appellant was “The night he got after me.” No objection was made to this testimony. Nothing is presented for review.

Error is also urged on the ground that the court failed to charge the jury on the law applicable to self-defense.

A review of the testimony fails to reveal any evidence raising the issue of self-defense. No error is shown.

The sentence reading “not less than 5 nor more than 50 years” is reformed to read “not less than 2 nor more than 50. years.”

With the sentence as reformed, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Jerry Ray JAMES et al., Appellants, v. The STATE of Texas, Appellee.
    No. 40080.
    Court of Criminal Appeals of Texas.
    March 15, 1967.
    Brooks Holman, Austin, for surety Jack B. McClellan.
    Gene Compton, Dist. Atty., Bob D. Slough, Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

Jack B. McClellan, surety upon an appearance bond entered into by Jerry Ray James as principal and J. H. Stelfox and appellant as sureties in the sum of $7,500.00, appeals from a judgment making final a judgment nisi forfeiting said bond.

The first two points of error are the same as those overruled in the appeal of the same appellant as surety on similar appearance bonds of Clifford Henry Bowen and James Timothy Overton, this day affirmed in Bowen v. State, Tex.Cr.App., 413 S.W.2d 915, and Overton v. State, Tex.Cr.App., 413 S.W.2d 920.

Point three is that the court erred in granting the state’s motion for summary judgment because the affidavits attached to and included in appellant’s motion in opposition thereto raised a defense sufficient to entitle him to a jury trial.

The facts which appellant pleaded as a defense and in answer to the state’s motion for summary judgment were to the effect that on the same day the Sheriff of Potter County approved the appearance bond of Jerry Ray James, he delivered him to the agent of the State of Mississippi named in the Executive Warrant of the Governor of Texas, which he executed, and that the failure of James to appear as required by his bail bond arose through no fault of his own but by the uncontrollable circumstance that he has been in custody of the State of Mississippi continuously from the time he was so delivered for extradition.

Certified copy of the Extradition Warrant with the Sheriff’s return was attached to appellant’s affidavit in support of his motion in opposition to the state’s motion for summary judgment.

Art. 22.13, Vernon’s Ann.C.C.P. provides, in part:

“The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:
******
“3. The sickness of the principal or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, if any, unless such principal appear before final judgment on the bond to answer the accusation against him, or show sufficient cause for not so appearing.”

The state argues that incarceration in Mississippi was not a circumstance which arose through no fault of the principal, Jerry Ray James, consequently he cannot be exonerated from liability under the provisions of Art. 22.13 C.C.P. Williams v. State, 130 Tex.Cr.R. 124, 92 S.W.2d 1036, and cases from other jurisdictions are cited.

In the recent case of Grantham et al. v. State, Tex.Cr.App., 408 S.W.2d 235, we declined to apply the reasoning of the Williams case and cited with approval the case of Jones et al. v. State, 112 Tex.Cr.R. 171, 15 S.W.2d 622, relied upon by appellant.

The allegations which were held to afford a basis for the prayer that Jones and his sureties be exonerated from liability were to the effect that prior to the day the judgment nisi was entered the sheriff had delivered the principal, Jones, to the Federal authorities and on the date judgment nisi was entered he was confined in the United States Penitentiary at Leavenworth, Kansas.

Jones et al. v. State, supra, sustains appellant’s contention that the affidavits of appellant raised a defense sufficient to entitle him to a jury trial, and the trial court erred in entering summary judgment making the judgment nisi final.

The judgment is reversed and the cause ■remanded.