author: ARCHER, Chief Justice.

text:
    ALUMINUM COMPANY OF AMERICA et al., Appellants, v. Claire BENZ-STODDARD et al., Appellees.
    No. 10999.
    Court of Civil Appeals of Texas. Austin.
    May 23, 1962.
    Rehearing Denied June 13, 1962.
    Vinson, Elkins, Weems & Searls, Ray-bourne Thompson, James E. Allison, Jr., James W. McCartney, Houston, Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, for appellants.
    Will Wilson, Atty. Gen., H. Grady Chandler and Linward Shivers, Asst. Attys. Gen., Austin, Carter, Gallagher, Jones & Magee, Dallas, William E. York, McAllen, Hart & Hart, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from an order sustaining appellees’ special exceptions and holding that as a matter of law appellee Claire Benz-Stoddard is entitled to well completions in all reservoirs underlying her .115 acre townlot tract. The Trial Court dismissed the suit upon appellants’ refusal to amend their petition, because the petition does not state a cause of action for cancellation of the permit granted by the Commission to drill a first well and to complete it in any separate reservoir beneath such tract which may be found to be productive.

This is a Rule 37 case involving multiple completion authorization in an exception permit. An application was made in October 1960 by Wis-Tex Oil Company for a permit as an exception to the Railroad Commissions’ rules to drill and complete a first well on .115 acre of land in Calhoun County, and requesting authorization for multiple completion. A hearing and a rehearing were had. Subsequently on December 21, 1960, an application was made showing Claire Benz-Stoddard as the applicant who also requested multiple completion authority.

On January 6, 1961, in Rule 37 Case No. 52,744, the permit was granted as follows:

“NOW, THEREFORE, IT IS ORDERED : That the application of Clair-Benz Stoddard for an exception under the provisions of Rule 37 and a permit to drill well No. 1, Spencer J. Scott lease containing .115 acre of land in Section 3, Block 14, P.F. Campbell S/D, Carancahua Beach, Appling Field, Calhoun County, Texas, as shown by plat submitted is hereby approved and applicant is granted permission to drill well No. 1 to be located as, follows:
“25' from N and S lines; 5(7 from K and W lines of Lot 3, Lot 14, P.F. Campbell S/D FOR SPACING PURPOSES ONLY, multiple completion ⅛ granted in any zones found productive,. subject to compliance with all applicable rules and regulations of the Railroad Commission. IT IS FURTHER ORDERED that a continuous multi-shot directional survey shall be runj and copies of same furnished the ’ Railroad Commission, and that any operator in the field is authorized to witness such survey.”

■ Since the judgment of dismissal was based) on the Court’s action in sustaining special -exceptions to appellants’ petition, the facts alleged in the petition are assumed to-be=.tr.ue.-

. There, is actually no substantial dispute of the facts. The Appling Field is a multi-zone field and there are fifty two separate and distinct reservoirs in the field recognized by the Commission, many of them underlying the same surface area on which the permit was granted. Statewide Rule 37 and applicable rules in the Appling Field provide fop spacing. Exceptions are provided wherq necessary to prevent waste or to prevent confiscation of property. The issue of waste is not involved in this case.

As may be noted in the permit, provision is made:

“F.or spacing purposes only multiple completion is granted in any zone found'to be productive subject to compliance with all applicable rules and fegúlations of the Railroad Commission.”

The' techniques of. well completion and production permit different reservoirs or horizons to he produced through different strings of casing set in the same well bore and under the Commission’s practice, each completion is treated as a separate well. It is possible under the techniques and practices and under the permit, that the permit-tee can complete as many as six wells on her tract in the same well bore.

The applicáble proration orders in effect at ¡the'time .the-permit .-was granted purport to,allocate i/jrd of the reservoir allowable equally between the wells or completions on a per-well basis regardless of the size of the tract on which a well is located or the amount of reserves underlying that tract.

Factually, this case is said by counsel tor appellants to be one of first impression in that it involves multiple completion authorization granted in a Rule 37 exception permit, but that the- controlling legal principles are well established.

We believe that it was the burden of Claire Benz-Stoddard to prove that more than one completion is necessary to prevent confiscation of her property.

Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73.

In Atlantic Refining Company v. Railroad Commission of Texas, -Tex., 346 S.W.2d 801, the Supreme Court, both in the decision of the Court and the dissenting opinions, reviewed its prior holdings in the several cases cited, and no useful purpose can be had by embodying such herein. The holding is that:

“Appellee is entitled, and entitled only, to be accorded an equal opportunity with surrounding lessees to recover his fair'share of the recoverable oil; or, stated differently, to recover . the approximate amount of oil lying in . place under his lease.”

In Railroad Commission of Texas et al. v. C. Murel Williams, 356 S.W.2d 131, the Supreme Court held:

“The basic right of every landowner, including. small tract owners, is to. a fair chance to recover the oil and gas in and undér his’land, or their equivalents "in kind. Gulf Land Co. v. Atlantic Refining Co., cited just above. This means that the owners and lessees of some small tracts are entitled to a , well on their tracts as a matter of law because there is no other way to give ' them a fair chance to recover the oil and gas under, their land, Stanolind . Oil & Gas Co. v. Railroad Commission, cited just above. But they must first prove confiscation or waste.”

We believe that the appellee Claire Benz-Stoddard with one completion in her permit is given a fair opportunity to extract her fair share of the gas, measured by a reasonable approximation of the amount of gas or hydrocarbons in place underlying her tract and that the permit authorizing more than one completion was not validly issued.

The permit was granted on one tract of land as an exception, based on the application therefor on Section 3, Block 14, P. F. Campbell Subdivision, Carancahua Beach, Calhoun County, Texas, containing .115 acre, and the fact that there are ten separate reservoirs underlying the tract does not mean that her tract is converted legally or administratively into ten tracts. The permittee is entitled to recover only her fair share of the gas in place under her land. Halbouty v. Darsey, Tex.Civ.App., 326 S.W. 2d 528, error ref., N.R.E.

Appellees take the position that the productive reservoirs or horizons beneath the Claire Benz-Stoddard tract are separate and distinct reservoirs and no communication between such reservoirs, and that a completion in any of these reservoirs will produce gas only from such and not from any other reservoirs and that the permit authorizing the drilling and completion of the well in any zone found productive allows only one completion in any separate reservoir.

We do not believe that appellee Claire Benz-Stoddard is entitled to a completion in each separate reservoir as a matter of law. It is difficult for us to know or determine the exact meaning of the wording in the permit, and absent any evidence, we cannot say that appellee Claire Benz-Stod-dard is entitled to a well completion in each and every reservoir or horizon in order to produce her fair share of the hydrocarbons underlying her tract.

Appellant pleaded that pursuant to the permit authorization, Claire Benz-Stoddard triply completed a well on the .115 acre townlot tract. The well bore penetrated ten productive reservoirs. Production from the triply completed well during the six months’ period following the completion date was in excess of seven times the original reserves in place and in excess of nine times the original recoverable reserves in place. Already, production from each completion has recovered, far more than the equivalent total reserves in place underlying the tract. More than 99% of such production was drained from adjoining tracts and will continue to be drained therefrom; more than 84% of such production was drained and will continue to be drained from appellants’ lands.

If these allegations, now taken as true, are established upon trial, they will prove that the permittee’s fair share of the hydrocarbons underlying her land has already been produced. It is true that the Cornmission did not have this information before it when the permit was granted; however, they prove, if true, facts then in existence.

We do not know what evidence was before the Commission to support the permit authorizing multiple completions. If there was no evidence reasonably supporting it, then it is invalid.

We doubt if the Commission would have granted permits to drill, at the same time, three separate wells on this .115 acre tract to prevent confiscation. Substantial evidence to support such an order would be most remarkable.

If one well will prevent confiscation of an owner’s oil and gas, then one completion from a single reservoir may do the same. Until it is shown, by substantial evidence, that one such completion will not suffice, more than one completion is not authorized.

The judgment of the Trial Court is reversed and this cause is remanded for proceedings consistent herewith.

Reversed and remanded.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    GOLDEN STATE MUTUAL LIFE INSURANCE COMPANY, Appellant, v. Mary Dee PRUITT et vir, Appellees.
    No. 3987.
    Court of Civil Appeals of Texas. Waco.
    May 3, 1962.
    Rehearing Denied May 24, 1962.
    W. J. Durham, Dallas, for appellant,
    Harless & Bailey, Fred S. Harless, Dallas, for appellees.
   McDONALD, Chief Justice.

This is a suit on a life insurance policy, insuring the life of Vernie Lee McMillian for $1000. Plaintiff, Mary Dee Pruitt, was beneficiary. Defendant Insurance company issued the policy. The insured is dead.

Defendant denied liability on the policy, on the ground that the insured made false answers in the application, and that such false answers were intentionally, willfully and fraudulently made, for the purpose of having defendant deliver same; that defendant believed same, and was induced to issue the policy declared upon.

Trial was to a jury which, in answer to issues submitted, found:

1) Deceased did not tell Hazel Oaks (defendant’s agent) that she was in good health at the time the application for the policy was taken.

7) Deceased did not tell defendant’s agent she had not had heart trouble at the time the application for the policy was taken.

13) Deceased did not tell defendant’s agent that she had never been confined to a hospital at the time the application for the policy was taken.

19) Deceased did not tell defendant’s agent that she had had no illness in the past 10 years at the time the application for the policy was taken.

The Trial Court, rendered judgment for plaintiff for the face amount of the policy, statutory 12% penalty and $350. attorneys’ fees.

Defendant appeals, contending:

1) There is no evidence to support the verdict and judgment.

2) The findings are against the great weight and preponderance of the evidence.

3) The trial court erred in overruling defendant’s motion for judgment non obstante veredicto for the reason that the undisputed evidence shows deceased, insured, was not in good health, had been treated and been to the hospital for heart trouble; and that her answers to the questions in the application were false and untrue, and were relied on by defendant, and that such answers were fraudulent, intentional, and willful, and material to the risk; and that deceased died as a result of the heart trouble she was suffering with on the date the answers to the questions in the application were made.

The record reflects that defendant’s agent, Mrs. Hazel Oaks, approached deceased and took her application for the policy of insurance involved herein; Mrs. Oaks testified that deceased answered the questions in the application to the effect that she was in good health, did not have heart trouble, had not been treated by a doctor or confined in a hospital, and had no illness for 10 years; that she, Mrs. Oaks, recorded such answers on the application; and that she forgot to have deceased sign the application. Several days later Mrs. Oaks came to plaintiff beneficiary’s house and told her about the insurance, and requested that she sign deceased’s name to the application. Mrs. Pruitt testified that she did sign deceased’s name to the application, but that her sister had not authorized her to sign it. Thereafter, defendant issued the policy. The application is dated 26 June, 1958 and the policy is dated 18 July 1958. Insured died on 10 Augicst 1959, within the 2 year period in which the policy could be contested for fraud.

The hospital records in evidence reflect that deceased was a hospital patient from 23 March 1958 to 12 April 1958, and was treated for a heart condition; and that deceased died in the hospital on 10 August 1959, as a result of "congestive heart failure”, or "unknown heart disease”.

Defendant contends that the testimony is undisputed that the insured made false answers to the questions in the application, and that fraud is shown as a matter of law, and it was therefore not necessary to submit any issues to the jury. Defendant cites, among other cases, John Hancock Mut. Life Ins. Co. v. Esparza, (n. r. e.), Tex.Civ.App., 286 S.W.2d 695 as decisive of the contention in its behalf.

As noted, the insured did not sign the application and did not authorize plaintiff to sign it for her. Mrs. Oaks, the agent, testified that she asked insured the questions, and that she recorded the answers as given. There was no other evidence tendered on this point. We think the jury had the right to disbelieve Mrs. Oak’s testimony. It was defendant’s burden to secure findings that the insured did in fact make the representations complained of. Defendant failed to discharge this burden.

Further to the foregoing, Article 3.44 of the Texas Insurance Code, V.A.T.S. provides that all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties. And to avoid liability on a life insurance policy, because of misrepresentations, the insurer must plead, prove, and obtain findings, not only that the insured’s answers were false, but that the insured knew or should have known of their falsity, and made them wil-fully with the intention of inducing the insurer to issue the policy. Clark v. Nat. Life & Accident, 145 Tex. 575, 200 S.W.2d 820; Great Southern Life v. Doyle, 136 Tex. 377, 151 S.W.2d 197.

We do not think defendant carried its burden in this respect. It requested the submission of no issues as to the fraudulent aspect of the representations. We find no testimony in this record that conclusively shows that the insured knew that she had heart trouble at the time she is alleged to have answered the questions on the application for insurance, or that she made false answers wilfully and with the fraudulent intention of deceiving the insurance company and inducing it to issue the policy. In the Esparza case, supra, cited by defendant, the insured was conclusively shown by the undisputed evidence to have knowingly made false statements that he did not have cancer, when he had been to 7 doctors, was daily under treatment for cancer of the bone, hands, arms and chest; and died of same within 2 months. The case at bar as noted is not such a case.

All of defendant’s points and contentions are overruled and the judgment of the trial court is affirmed.


author: TIREY, Justice.

text:
    UNITED STATES FIDELITY & GUARANTY CO., Appellant, v. Harris J. DORSEY, Jr., Appellee.
    No. 4024.
    Court of Civil Appeals of Texas. Waco.
    May 3, 1962.
    Rehearing Denied May 24, 1962.
    Marcus, Weller & Evans, Beaumont, for appellant.
    Adams & Browne, Beaumont, for ap-pellee.
   TIREY, Justice.

This is a compensation case. The parties stipulated the weekly wages to be $110.-00, and the jury in its verdict found substantially that the claimant sustained injury in the course of his employment with the Sumner Sollitt Company as a result of an accident; that the accident resulted in incapacity to work, and that the incapacity was total, and that it began on December 4, 1957, and that such total incapacity would continue for 208 weeks from December 4, 1957; that such injury was a producing cause of such incapacity; that claimant did not and would not sustain any partial incapacity; and that he had not recovered from the effects of the injury on January 1960, at the time of the trial. The Court granted Motion for judgment and found and decreed that plaintiff was entitled to recover from appellant the sum of $4030.60 as of January 22, 1960, and that there were remaining 97 weeks of unaccrued compensation, and decreed that appellant pay the plaintiff 97 weeks’ compensation at $35.00 per week in weekly installments beginning January 29, 1960, and continue until the full sum of 97 weeks’ compensation had been paid to plaintiff and his attorneys-The decree also fixed the fee for his attorneys and decreed accordingly.

The judgment is assailed on 4 Points.. They are to the effect that the Court erred in rendering judgment for claimant for 208 weeks at $35.00 per week, based upon the jury’s findings that he had sustained total incapacity beginning December 4,, 1957, and that same would continue for 208 weeks from and after' that date, (1) because there is no evidence to support such findings; (2) because the evidence is insufficient to support such findings; (3 and 4) because such findings are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, and for that reason appellant’s motion for new trial should have been granted.

A statement is necessary. Testimony was tendered to the effect that appellee was 24 years old; that his wife worked at DuPont in Orange; that up to December 1957 he had followed pipefitting work; that he graduated from Port Neches High School; that in December 1957 he was working for Sumner Sollitt Company as a pipefitter; that he was making $3.50 per hour, working eight hours a day, five days per week, forty hours a week; that they were putting in a new grease plant; that on or about December 4, 1957 he and another man were handling a piece of pipe between twenty and thirty feet long, weighing two hundred pounds, and that the other man shoved back on the pipe and that he went over backwards into a wheelbarrow, landing in a sitting position, and that he still had the pipe on his shoulder and then rolled it off his shoulder, and that thereafter his back was hurting him and he had pain in his shoulder area and in his neck, but thought it would be all right to keep on going and that he kept on trying to work every day; that he had headaches, pain in his neck, back and shoulder which continued until he went to the doctor and the pain continued after that; that it was two weeks before he went to a doctor, which was December 17, 1957; that he told his boss about it immediately, and his doctor suggested he go to the First Aid; that he worked until December 16th, at which time he was holding up a valve and piece of pipe and felt severe pain in his shoulder, which was in the same place where the pain had been hurting on December 4th; that he went to Dr. Montgomery in Port Neches the next morning, who advised him to report it and he reported to the nurse in First Aid; that Dr. Montgomery gave him spinal manipulations and told him that he would have to stay off work until he advised him he could go back; that after two weeks the doctor sent him back to the job to do light work; that it was around the first of January when he went back out; that during the following year he tried to stay on construction jobs, doing light work; that he continued to stay under the treatment of Dr. Montgomery; that the insurance company sent him to Dr. Stephenson, who saw him three times; that he tried to stay on doing light work during the year 1958; that in 1959 he worked approximately a month or a month and a half; that he continued receiving treatments from Dr. Montgomery; that during 1958 the people on the job gave him light work; that during 1958 he averaged seeing Dr. Montgomery three times a week, in 1959 about twice a week, and that he is still seeing him. Appellee testified as to the treatments given him and testified as to having frequent headaches, pains in his shoulder, neck and back; that he worked as much as possible in 1958, at light work, and that he worked as much as three weeks out of a month in 1958, and in 1959 worked about a month or a month and a half; that in June 1959 he started a course in hair styling, but did not have a job doing it nor did he have a license for it; that the doctor said it would be best to get into something else; that in hair styling work he relies greatly on his stool, and did not know of any other work he could get into and be able to sit down and not use his back; that when asked how he felt he replied that he had a continual ache, mostly in the shoulder region, not so great in the neck, also in the lower region of the back, right arm and right leg; that he treated himself at home; that he does not sleep very well; that before he got hurt in December 1957 he could do a good day’s work but now “I can’t do it the way I used to” _“Five days a week, no, sir.”; He testified in part:

“Q. * * * tell the jury * * how you feel now?
“A. I’m not having any severe pains at the moment; I don’t feel good, I just ache, I have just a continual ache, but at the moment I am not having a sharp pain.
“Q. Where are you having these aches ?
“A. Well, mostly in the_just below the shoulder region, back there.
“Q. How about in your neck?
"A. It’s not as great as that.
“Q. Now, does your shoulder, does the pain in your shoulder get worse as time goes on?
“A. Yes, sir.
“Q. How about in your neck?
“A. Yes, sir.
“Q. Where else do you have pain?
“A. In the lower region of my back.
“Q. Anywhere else?
“A. Well, it will — I will get pain in my arm and in my leg.
“Q. Which arm and which leg?
“A. My right arm and my right leg.
“Q. How about — do you have headaches or not?
,“A.‘ Yes, sir.
“Q. Can you describe to the jury how these things come on, in other words right now they are not as severe as they get?
“A. No, sir, it seems to build up, progressive you might say, just seems to get more and more, just like stretching a balloon tighter, just tightening up on me and then it will start just with a piercing pain that will come with it. '
“Q. Are the most severe pains in your right shoulder, in the neck and in the lower part of your back?
“A. Yes.
“Q. Do those things just come on and keep building up and then what do you finally do, do you—
“A. I go to the doctor.
“Q. Does that give you temporary relief ?
“A. Right at the moment it doesn’t it takes a little time for it to relax, it makes it kind of sore and then it seems to help me quite a bit.
“Q. What do you do at home for treatment for yourself, or your wife do for you?
“A. Oh, I sleep on a heating pad and I have a Niagara vibrator that I have my wife use on me, plus massaging and use Bengue and sometimes if I haven’t got that I will use Vicks.
⅛ ⅜ ⅝ ⅜ ⅝
“Q. Before you got hurt in December 1957 did you go out and hustle pipe, pig iron and stuff and give a man a good day’s work every day, before December 1957?
“A. Before, yes, sir.
“Q. You tell this jury you can’t do' it now?
“A. No, sir, I can’t do it the way I used to.
“Q. Well, can you do it at all, can you get out and do it eight hours a day, five days a week?
“A. Five days a week, no sir.
“Q. When you don’t do any heavy work at all, you still get these pains that build up there, that get worse in your back, the lower part of your back and up in your neck and shoulder, and when you don’t do any heavy work— you say you only worked about a month in 1959?
“A. Yes, sir.
“Q. Do they still build up and you still have to go down there to get adjustments ?
“A. Yes, sir.”

As we read the testimony the claimant made an effort to get light work throughout the year 1958; that he had several different jobs, and that he was aided in securing these jobs by his father and an uncle, and that in making application for these jobs he at one time stated substantially that he had no injury, and he further stated that he did so because he felt like it was necessary for him to work, and in effect, that he had to work although his-wife was making a salary wherein her take-home pay was approximately $259.00 per month. He further testified to the effect that if he got two treatments per week from Dr. Montgomery he could make a work-week all right even though he had pain. The medical evidence was to the effect that Dr. Stephenson saw the claimant three times for the insurance company, and he stated he never found anything on either of these three times “I examined him.” Dr. Montgomery testified to the effect that he had been treating plaintiff for some 10 years, and that plaintiff had nothing wrong with him prior to December 4, 1957; that x-rays were made of the cervical and thoracic regions; that they showed a break in the curvature and the rotation at the level of the 5th and 6th dorsal vertebrae which is abnormal; that the first vertebra of the spine where the skull fits, is rotated right 4 degrees with relation to the bone of the skull which is abnormal; that this will cause pain, pinch nerves, and impinge on the spinal column; that the odontoid process or second vertebra is 4 degrees out of line which is abnormal and will produce pain; that the spinous process of the axis is rotated to the right 6 degrees which is abnormal and painful; that claimant had a whiplash injury to his neck; that a whiplash could be caused by the method in which he was injured; that the x-ray films of January 1960 still showed the conditions existing; that the first vertebra was 3 degrees abnormally forward; that claimant had abnormality in the right sacroiliac joint; that his right shoulder was lower than the left; that all the abnormalities are calculated to be painful and were still present in January of 1960; that claimant saw Dr. Montgomery 76 times between December 1957, and the end of 1958, and 33 times in 1959; that treatment would be necessary in the future for the duration of claimant’s life; that plaintiff was advised to get out of the pipefitting work.

The Court in its charge instructed the jury: “By the term ‘total incapacity’ or ‘total disability’, as used in the Workmen’s Compensation Law, does not imply an absolute disability to perform any kind of labor, but a person disqualified from performing the usual tasks of a workman in such a way as to enable him to both obtain and retain employment is ordinarily regarded as totally incapacitated.” That definition is not here assailed and is substantially in the same language as the definition contained in the Charge approved by our Supreme Court in Texas Employers’ Insurance Association v. Mallard, 143 Tex, 77, 182 S.W.2d 1000, Point 1. Appellant in its brief states that it “is fully aware that under the Texas decisions a compensation claimant is not necessarily precluded from recovering for total disability even though he continues to work and earn money, following an injury, even at higher wages”, and cites Texas Employers’ Insurance Association v. Mallard, Tex. Civ.App., 192 S.W.2d 302; Great American Indemnity Company v. Segal, 229 F.2d 845, (5th Cir.Ct.). See also Associated Indemnity Corp. v. Potts, 5 Cir., 164 F.2d 1002; Penn. Threshermen and Farmers Mut. Cas. Co. v. Gloff, 5 Cir., 238 F.2d 839; Choate v. American Motorist Ins. Co., Tex.Civ.App., 323 S.W.2d 188; Muro v. Houston Fire & Cas. Co., Tex.Civ.App., 310 S.W.2d 420, n. r. e.; Traders and Gen. Ins. v. Heath, Tex.Civ.App., 197 S.W.2d 130, but states in effect that it is of the view that this-cause should be reversed and remanded, because the verdict of the jury is against the. great weight and preponderance of the evidence, and cites a recent case of Texas Employers’ Ins. Assn. v. Vineyard, Tex.Civ.App., 316 S.W.2d 156, n. w. h. Appellant says that the Court there applied the wholesome principle, which is that incapacity to perform one’s usual occupation does not amount to total permanent incapacity and that where it is shown the employee is able to obtain lucrative employment calling for lighter duties than his former employment, a finding of total incapacity should not be allowed to stand. We have read the Vineyard case very carefully and do not believe it is controlling here. In the case at bar the evidence is without dispute that .the claimant had a good work-record before he sustained the accident and injuries complained of, and that he was doing-his work without any complaint of pain in his back, neck or anywhere else. Since the accident we have his work-record, which is without dispute, and we find him going back to work immediately after the accident and working on the job for a period of eleven days before he went to his doctor; that he continued to work, approximately most of the time throughout the year 1958, and he said he was in pain substantially all the time, and that he had to go to his- doctor approximately three times each week in order to be able to hold on to a job. The evidence is also without dispute that those with whom he worked had known of the accident, and knew he was having pain, and that they, as far as they could, protected him and helped him. When the work would run out on one job he would seek another and was aided by his father -and his uncle, and at one time it is without dispute that he falsified to the company that he had not been in an accident in order to obtain a job. There is nothing in the testimony of the claimant to indicate that he was malingering, but on the contrary, it is without dispute that he was going against his doctor’s advice in trying to do the work insofar as doing heavy work, and that the employee made a consistent effort to stay on the job and do the work, notwithstanding he •was in’ pain' in so doing, -and was" taking treatment from his doctor every week. Moreover, he continued to seek work, and tried to work in this condition during a part of the year 1959. This persistent work-record of the plaintiff is free from suspicion and contradiction, and no doubt the jury was impressed with his testimony. We have considered the testimony very carefully, and we are of the view that it has a “ring” of sincerity. It is true that appellant’s doctors testified to the effect that they found by their examination nothing to indicate permanent or partial disability but the jury chose to follow the testimony of the claimant and his physician. Our Supreme Court in Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, reannounced the following Rule in Texas: “Opinion testimony does not establish any material fact as a matter of law”. See also Consolidated Cas. Ins. Co. v. Baker, Tex.Civ.App., 297 S.W.2d 706, n.r.e., and cases there cited.

• We have carefully reviewed all the testimony shown by this reeprd and we cannot honestly say that the verdict of the jury is so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. See also “No Evidence” and “Insufficient Evidence”, by Justice Calvert, (Reprint from April, 1960, 30 Tex. L.Rev. 803). It is our view that since the employee did sustain an injury in the course of his employment that a consideration of all the evidence tendered under all the facts and circumstances surrounding the employee as shown by the record is that the preponderance of the evidence, under all the facts and circumstances here shown, supports the jury’s verdict. It follows that each of Appellant’s Points is overruled. Appellant and appellee each have cited and discussed many leading cases covering the factual situations similar- to the case at bar, but we believe that the record here presents only the issue of sufficiency of the evidence, and we see no reason to.write further on this matter because .of the view heretofore expressed. .

The Judgment of the Trial Court is in all things Affirmed.


author: WILSON, Justice.

text:
    RESERVE LIFE INSURANCE COMPANY, Appellant, v. John C. PRECOUR et ux., Appellees.
    No. 3989.
    Court of Civil Appeals of Texas. Waco.
    May 3, 1962.
    Rehearing Denied May 24, 1962.
    Joe Bailey Humphreys, Dallas, for appellant.
    Pope & Heitler and John E. Heitler, Tyler, for appellees.
   WILSON, Justice.

Appellees’ pleas of privilege to be sued in Smith County, where they reside, was sustained. Appellant, relying on Subd. 7, Art. 1995, Vernon’s Ann.Civ.Stat, sought to cancel its insurance policies issued to ap-pellees on the ground of fraud of the insured in making the written applications on which they were issued. Collusion between insured and appellant’s soliciting agent in making the applications was alleged. Appellant’s controverting plea asserted venue in Dallas County, where its principal office is located. No findings or conclusions were filed.

Insured signed and delivered the applications to the soliciting agent in Smith County. It is not shown how they reached appellant’s Dallas office, but it is clear ap-pellees did not deliver them there.

We confess inability to understand the nature of the ground of appellant’s complaint, but if it be that the soliciting agent became the agent of insured in receiving and transmitting the applications to Dallas, the evidence does not support it. If the implied finding of the trial court is intended to be under attack, the evidence does support it.

If the contention is that notwithstanding the applications were signed and delivered in Smith County, fraud was nevertheless committed in Dallas County because the asserted fraud in Smith County was “ripened into fruition in Dallas County where the applications were acted upon” so as to constitute fraud in Dallas County under Subd. 7, the decisions are against appellant, and we overrule the contention. Old Lincoln County Mut. Fire Ins. Co. v. Hall, Tex.Civ.App., 214 S.W.2d 203; National Security Life & Casualty Co. v. McLendon, Tex.Civ.App., 278 S.W.2d 393, no writs, and see Hassell v. Commonwealth Cas. & Ins. Co., 143 Tex. 353, 184 S.W.2d 917, 919. Other points are immaterial. Affirmed.


text:
    Sam I. MAJOR, Appellant, v. L. S. LORD, Appellee.
    No. 4004.
    Court of Civil Appeals of Texas Waco.
    May 3, 1962.
    Rehearing Denied May 24, 1962.
    Thompson, Walker, Smith & Shannon, Paul C. Cook, Ft. Worth, for appellant.
    Wm. Andress, Jr., Dallas, for appellee.
   WILSON, Justice.

Appellee, Lord, recovered judgment against appellant, Major, for debt alleged to be due under a contract, and for possession of equipment.

Lord was area licensee of the holder of a patent for re-treading tires. Under this primary license agreement the licensor agreed to supply Lord tread rubber at a cost not more than 10^ per pound above current market price, and Lord agreed to pay licensor a royalty of 10$⅜ per pound for rubber purchased from other sources. Such other sources were limited to persons who agreed in writing to collect a 10$⅞ per pound royalty and remit it to the licensor. The contract gave licensor an option to terminate the license if Lord failed to purchase or pay royalties on specified annual minimum quantities of rubber.

Lord, as “licensee-grantor , with licen-sor’s approval, thereafter entered into a written agreement with Major, as “grantee,” or sub-licensee for one county, under which patented equipment was furnished to Major, who agreed to pay Lord 21/^ per pound, and licensor 10⅝⅛ per pound for all rubber used in retreading. This contract provided, “The guaranteed minimum of rubber used or to be paid on is” the same as the minimum annual quantities specified to be used by the primary contract between the licensor and Lord. The contract with Major recited the rights given thereunder were “subject to” the primary license agreement. It gave Lord an option to terminate for breach, which should not “relieve the grantee of his obligation to pay to licensee-grantor any and all money that may be due.”

Judgment was computed on the basis of the guaranteed minimum annual ■quantities. Appellant says that since the primary agreement between licensor and Lord did not impose on the latter any obligation to pay licensor a minimum annual royalty, but gave licensor only an option ■to terminate for Lord’s failure to use minimum quantities, he could have no greater liability under his own contract. The contention is overruled. Major obligated him.self as to the “guaranteed minimum” on which he was to pay royalty. That Lord •did not also do so is unavailing to appellant.

Complaint is made of rendition of judgment in favor of the licensor which was not a nominal party. Lord alleged Major had failed to pay royalty to the li-■censor, and that as licensee for the area he was entitled to recover such amounts for the use and benefit of the licensor, and as its trustee and agent. By the judgment Lord recovered “for the use and benefit” of ■the licensor. Appellant filed no plea in .•abatement or verified attack on the pleading as required by Rule 93(c), Texas Rules •of Civil Procedure. We think the complaint -.is untenable. Smith v. Moseley, 74 Tex. 631, 12 S.W. 748, 749; Missouri Pac. Ry. Co. v. Cullers, 81 Tex. 382, 17 S.W. 19, 21, 13 L.R.A. 542; Perkins v. Terrell, Tex.Civ.App., 214 S.W. 551, 552, writ ref.; Fant v. Farrier Bros., Tex.Civ.App., 253 S.W. 955, 956; 32 Tex.Jur. Sec. 15, p. 22; 1 Tex. Jur.2d, Sec. 17, p. 37.

Error is assigned to overruling motion for continuance. The motion was not verified as required by Rules 251 and 252, and we cannot say the court abused its discretion. Other points have been considered, and are overruled. Affirmed.


author: WILLIAMS, Justice.

text:
    Guy LARUE, Appellant, v. SOUTHWESTERN FIRE & CASUALTY COMPANY, Appellee.
    No. 16001.
    Court of Civil Appeals of Texas. Dallas.
    April 20, 1962.
    Rehearing Denied June 1, 1962.

      Wm. Andress, Jr. and Steven G. Condos, Dallas, for appellant.
    Spafford, Ledbetter, Freedman, Hamlin & Gay and Warren Whitham, Dallas, for appellee.
   WILLIAMS, Justice.

Southwestern Fire & Casualty Company sued Guy LaRue to recover “an unpaid balance of $2,747.97” together with attorney’s fees, on a promissory note executed by LaRue in the principal sum of $4,871.93. The note itself was attached to plaintiff’s petition and made a part thereof for all purposes. The note was in the principal sum of $4,871.93 payable in six monthly installments of $811.98 with the final installment of $812.03. The reverse of the note recited assignment to Southwestern Fire & Casualty Company by the original payee, T. A. Manning & Sons, but did not demonstrate any credits on the note.

Guy LaRue, in his answer, specially excepted to the plaintiff’s petition because “it fails to show when and how credits for payments heretofore made have been applied, neither in the pleadings nor upon the note itself * * Following this special exception LaRue entered a general denial.

Thereafter, Southwestern Fire & Casualty Company filed its unverified motion for summary judgment alleging that the pleadings presented no issue of fact. The trial court overruled LaRue’s special exception and then sustained Southwestern’s motion for summary judgment, granting judgment against LaRue in the sum of $2,747.97, plus attorney’s fees in the sum of $274.80. From that judgment LaRue appeals contending in two points of error (1) that the trial court erred in overruling his special exception and (2) the trial court was in error in sustaining motion for summary judgment inasmuch as the pleadings demonstrated an issue of fact as to the amount due.

We agree with appellant that the trial court was in error in failing to sustain his special exception which sought clarification of appellee’s general allegation of credits. In its petition appellee merely stated that of the original amount of $4,-871.93 there remained due and unpaid the sum of $2,747.97, plus attorney’s fees. The note itself, which was attached to the petition, and which would control over the allegations of the pleading, reveals nothing more than the principal amount of the note, there being no credits or other evidence of payment indicated thereon. Paul v. Houston Oil Co., Tex.Civ.App., 211 S.W.2d 345; 2 McDonald, Tex.Civ. Practice, 513, § 5.17. The exhibit prevailing over the petition, the controlling allegation is the note itself in the amount of $4,871.93. There being an obvious discrepancy between the exhibit and the face of the petition, reciting unpaid balance in a lesser amount than the face of the attached note, appellant sought a clarification through the medium of a special exception which did nothing more than to ask the appellee to be specific in alleging how it arrived at the statement in the petition concerning unpaid balance. As stated by the court in C. D. Shamburger Lumber Co. v. Delavan, Tex.Civ.App., 106 S.W.2d 351, writ refused, the office of special exception is to place in the hands of an adverse party'a medium by which he can force clarification and specifications when they are not clear or sufficiently specific. A somewhat analogous situation was presented in Ralston v. Aultman, Tex.Civ.App., Miller & Company, 26 S.W. 746, being a suit on a verified account which contained an allegation of an unpaid balance. The court said:

“We think appellant, by special exception, had the right to require appel-lee to give a more specific statement of the items composing this account than was afforded by this exhibit. Love v. Doak, 5 Tex. 343; May v. Pollard, 28 Tex. 678; Railway Co. v. Granger, 85 Tex. 574, 22 S.W. 959; Leverett v. Wherry, 4 Willson, Civ.Cas.Ct.App. 186 [15 S.W. 121]. It would seem that this account should have been itemized, even though appellee’s petition could be treated as a declaration for an agreed balance. Neyland v. Neyland, 19 Tex. 423; Heidenheimer v. Ellis, 67 Tex. 426, 3 S.W. 666. We believe, however, this petition cannot be so considered. It will be noted that one of the items in this account is, ‘Balance due, in cash, 10/1/91, 600 dollars,’ and it will hardly be contended that this is set forth with the requisite particularity, and, in view of the credits admitted in the petition, its recovery was necessary to show a cause of action in favor of appellee.”

It is fundamental that a petition must specifically allege the amount claimed to be due on the instrument, or state the facts from which the amount due may readily be computed. 9 Tex.Jur.2d 276, § 255; Wood v. Evans, 43 Tex. 175. The whole purpose, of pleading is to advise the adversary, clearly .and definitely, of what is being sought. In this case the burden was upon the plaintiff, appellee here, to set forth sufficient facts to demonstrate how, and by what method, it arrived at the unpaid balance sued upon. This is specially true in view of the fact that the attached exhibit failed to indicate any credit whatsoever.

Appellee has, in effect, alleged a part payment of the note. Rule 95, Texas Rules of Civil Procedure requires a defendant pleading payment, or part payment in defense, to itemize with particularity. The same rule has been applied correctly by courts to plaintiffs who allege payment or part payment, and should be more especially true in the face of a special exception as here presented. Cooper v. Irvin, 110 S.W. 2d 1226; Pioneer Building & Loan Ass’n. v. Compton, Tex.Civ.App., 138 S.W.2d 884; Butler v. Merchants Nat’l. Bank of Mobile, 325 S.W.2d 229; 32 Tex.Jur. 699, § 37. Appellant’s first point is sustained.

The trial court’s action in sustaining appellee’s motion for summary judgment necessarily postulates the nonexistence of issuable facts as demonstrated by the pleadings. From what we have said in connection with appellant’s first point it is obvious that appellee’s petition and exhibit demonstrates an ambiguity concerning the correct amount due on the note, such amount being made issuable by appellant’s pleadings. In determining the question of whether or not material issues of fact were raised by the pleadings before the court in considering the motion for summary judgment we must review the record in the light most favorable to appellant and indulge every reasonable intendment in favor of appellant. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93; Little v. Employees Security Life Ins. Co., Tex.Civ. App., 343 S.W.2d 517. There being question of the amount presented by the pleadings it cannot be said that there is a nonexistence- of material facts. Appellant’s second point is sustained.

Reversed and remanded.


text:
    William Warren TAYLOR, Appellant, v. WRIGHT SALES COMPANY, Inc., Appellee.
    No. 3992.
    Court of Civil Appeals of Texas. Waco.
    May 3, 1962.
    Wm. Andress, Jr., Dallas, for appellant.
    Witts, Geary, Hamilton, Brice & Lewis, Jim Choate, Dallas, for appellee.
   WILSON, Justice.

Appellee filed this suit as one-'on a sworn-account. Judgment was rendered for the balance shown by the statement attached to the petition, and attorneys’ fees.

The account was not itemized; it listed only invoice numbers, and was insufficient to support the judgment against defendant’s exceptions. 1 Tex.Jur.2d Sec. 72, p. 322.

The statement of account contained as its first entry, “Balance 914.64, 8-31-57”. Appellee’s evidence consisted of subsequent itemized invoices covering a two-month period, the amount of which, with credits, cannot be reconciled with the judgment. There is no evidence to establish the initial item. Testimony as to whether the invoices had been paid was so equivocal as not to-constitute evidence. The evidence does not support the judgment, and reversal is required.

Reversed and remanded.


author: STANLEY, Commissioner.

text:
    Cecil HINES, Appellant, v. COMMONWEALTH of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    May 25, 1962.
    Cecil Hines, appellant, pro se.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., ■ Frankfort, for appellees.
   STANLEY, Commissioner.

The appeal is from a judgment denying discharge of the appellant, Cecil Hines, from the Kentucky State Reformatory in a habeas corpus proceeding.

The petitioner ié "confined under a judgment of the Pendleton Circuit Court for a term of five years upon his conviction of storehouse breaking. The indictment charged the commission of the crime “on or -about the 28th of October, 19SS, and before the finding of this indictment.” The petitioner filed as exhibits a copy of the indictment and a purported letter from the Record Clerk of the Ohio State Penitentiary, dated February 11, 1961, reciting that Hines had been committed to that prison on December 11, 1957, upon conviction of burglary and a sentence of one to fifteen years. He was granted parole effective November 7, 1958, and was then released into custody of the Chief of Police of Paris, Kentucky, on a warrant of arrest. The petitioner also filed copy of record of the Kentucky State Reformatory listing dates of his several arrests and convictions according to the Federal Bureau of Investigation (F.B.I.), including a notation of the above Ohio conviction and release. He charged that when he was so released he was taken to Paris, Kentucky, and lodged in jail there and then in the Pendleton County jail until his trial.

These records, the petitioner says, show that he was continuously confined in a penal institution long before and at the time of the commission of the crime of which he was convicted in the Pendleton Circuit Court and, therefore, that he could not possibly have committed that crime. He states, further, that the trial court had appointed counsel to defend him, but he had “protected his rights not.” Upon these allegations he insists that the “State flagrantly exceeded its authority and intentionally, willfully, illegally and unlawfully imprisoned your petitioner upon a false charge or charge that he cannot be guilty of,” and in doing so the State had exercised “absolute and arbitrary power” and denied him due process of law in violation of §§ 2 and 11 of the Kentucky Constitution and the 13th and 14th Amendments to the Constitution of the United States.

A provisional writ of habeas corpus was granted, and the petitioner testified before the court, as the judgment recites. Release was denied. The record of the hearing is not before use.

In the brief pro se the .appellant makes some statements that are not shown in the record and cannot, therefore, be considered.

In short, all of the allegations •of the petition herein, other than conclusions that the judgment was void, are that ■on his trial the petitioner had a good defense, namely, an alibi, but he was convicted nevertheless. There was no appeal in which the sufficiency of the proof of guilt could have been reviewed. There is no basis for the argument that the judgment of conviction is void, which is the ground upon which discharge under writ of habeas corpus will be granted in this jurisdiction. Owen v. Commonwealth, Ky., 280 S.W.2d 524.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Robert JOHNSON and Forest Barker, d.b.a. Johnson & Barker Coal Company, et al., Appellants, v. William C. STONE, Appellee.
    Court of Appeals of Kentucky.
    May 25, 1962.
    Harry C. Campbell, Pikeville, for appellants.
    M. B. Fields, Hazard, for appellee.
   PALMORE, Judge.

The appellee, William Stone, was employed by the appellants Johnson and Barker as a loader operator in a coal mine. On October 8, 1958, he became ill while moving rock in the mine with his loading machine. He continued to report for work during the next several days but still felt bad and found it necessary to stop and rest frequently. His physical distress finally became such that he went to the hospital at 4:00 A.M. on October 16, 1958. Ensuing examinations disclosed arteriosclerosis and a myocardial infarction. He was hospitalized for 25 days and is now disabled except for sedentary work. At the time he fell sick he was 58 years old. The arterio-sclerotic condition was diagnosed as having developed over a number of years, but he had not experienced any previous symptoms.

Following a hearing on Stone’s application for workmen’s compensation the full board adopted and confirmed findings by the referee and dismissed the claim on the ground that there was no probative evidence of (1) trauma, (2) overexertion or unusual strain, or (3) causal connection between the work and the heart attack. On appeal the Knott Circuit Court adjudged that the decision of the board was not in conformity with the definition of compensable injury by accident as set forth in KRS 342.005 and remanded the cause with directions to enter an award. The present appeal followed.

At the time the board adjudicated the claim this court had not decided the cases of Terry v. Associated Stone Co., Ky. 1960, 334 S.W.2d 926, and Grimes v. Goodlett and Adams, Ky.1961, 345 S.W.2d 47. In the Terry case it was held that a competent medical opinion to the effect that the strain of a specifically identified effort was a contributing cause to a disabling heart attack will support a finding of accidental injury. It is not necessary that the exertion have been unusual or extraordinary. In the Grimes case it was held that such an injury is “traumatic” within the meaning of KRS 342.005(1). Both of these cases recognize that if the work-connected exertion precipitates a disability in which a pre-existing arteriosclerotic condition is the predominating causative factor the award should reflect the proportionate contribution of the injury to the disability.

At the time he became ill Stone was having difficulty in breathing because of the presence of smoke blown upward through the mine spaces from a burning cable below. With respect to the causal relation between the immediate circumstances and the heart attack his physician, Dr. J. C. Coldiron, testified as follows: “There is no doubt in my mind that this man’s condition is due to a coronary incident happening back in October, 1958. * * * Seems like the resume of circumstances happening around the 8th of October was the trigger, the burning of the mine cable and the stress he was under triggered off this attack or coronary occlusion.”

Another physician, Dr. Franklin Moos-nick, a Lexington internist, added that breathing air contaminated by smoke fumes would be a factor conducive to the type of attack suffered by Stone.

The defense testimony was given by three doctors, two of whom are well-known heart specialists. Dr. John T. Gibson, a general practitioner who attended Stone following his admission to the hospital, ascribed the attack to the pre-existing arte-riosclerotic condition and thought it would have occurred eventually anyway, but would not say whether it was brought on or could have resulted in part from exertion. Both of the specialists, Drs. Morris Weiss and Herbert L. Clay, conceded that a coronary occlusion can be precipitated by “unusual” strain or excitement.

Assuming that the work Stone was doing at the time of the onset was his usual routine work and that the presence of the smoke was a condition to which he was accustomed, Dr. Clay said he would not consider the work as a precipitating factor “any ■more than” work on a milk route or in an office would be so considered. This observation, however, begs the question to be answered in this type of case, which is, did the work or the conditions under which it was performed contribute in any way to the attack ?

When the responsive effort demanded of an employee’s physical mechanism in order to do his work contributes to a seizure that would not have occurred at that time except for that effort, however easy and routine it may be, the resulting disability is.in some degree attributable to the work and is compensable. If, for example, a previously disabled knee is dislocated jn the routine act of stooping to retrieve a pencil from the office floor, it is no defense to say that the same thing could as easily have happened in church or on the golf course, or ,at leisure. We are aware, of course, that there are no tests by which the myriad factors that have interacted to determine the precise moment of a coronary occlusion can be ascertained. It is.simply ,a matter of professional opinion, based not on certainty but on reasonable probability, and in this respect is not startlingly different from many another educated guess the physician is accustomed to make in the eyeryday practice of his profession. What we want to know is whether it is likely that the work had anything to do with bringing on the attack at the particular time in question.

Just as in the Grimes case, the medical testimony given in defense was essentially noncommittal on the question of what, if any, was the relation between Stone’s work on October 8, 1958, and the heart attack. It did not really counter or tend to refute the positive opinion of Dr. Coldiron that the attack was “triggered” by the stress of Stone’s physical activity and his breathing smoke from the burning cable. Under these circumstances a liberal construction of the law required a finding of fact in accordance with the uncontra-dicted opinions of the claimant’s medical witnesses. Grimes v„ Goodlett and Adams, Ky.1961, 345 S.W.2d 47. Therefore, .the judgment of the circuit court reversing the order of the board and remanding the case was proper. Upon remand the board may hear whatever additional proof is necessary in order to base its award on the proportionate contribution of the injury to the disability.

Judgment affirmed.

STEWART, C. J., dissenting.


author: MONTGOMERY, Judge.

text:
    Minna W. JENKINS et al., Appellants, v. LOUISVILLE & JEFFERSON COUNTY PLANNING AND ZONING COMMISSION et al., Appellees.
    Court of Appeals of Kentucky.
    May 25, 1962.

      Henry J. Burt, Jr., Louisville, for appellants.
    James L. Taylor, Louisville, for appellees.
   MONTGOMERY, Judge.

Minna W. and Edward G. Jenkins, Sr., sought to have changed from residential to commercial the zoning classification of the northeast corner of their tract of land located at Wood Avenue and LaGrange Road in Lyndon. They have a lease agreement for the construction and operation of a service station contingent on the reclassification of the property. The Louisville & Jefferson County Planning and Zoning Commission denied the request for a change. The circuit court upheld the denial and the Jenkinses appeal.

Appellants contend, in substance, that: (1) The trial court erroneously placed the burden of proof on the property owners and disregarded the trial de novo requirement; and (2) there was a failure by ap-pellees to show that there would be a substantial adverse effect upon the health, safety, morals, or general welfare of the community attributable to the requested change.

By a pretrial order, the appellants were required to produce their evidence first in order to expedite the trial and to enable the trial judge to obtain a clear view of the whole of the evidence. At the beginning of the trial, appellants sought to change the order of proof so that the commission would be required to introduce its proof first. In the order overruling such motion, the trial judge indicated his familiarity with Boyd v. Louisville & Jefferson County Planning & Zoning Commission, 313 Ky. 196, 230 S.W.2d 444, and Louisville and Jefferson County Planning and Zoning Commission v. Grady, Ky., 273 S.W.2d 563. The pertinent rule obtained from those cases is that the hearing de novo in the circuit court means trying the dispute anew as if no decision had been previously rendered, with the commission having the burden of proof. The hearing is by the judge without the intervention of a jury. KRS 100.057(2).

There is nothing in this record to indicate that the trial judge did not understand the principles of the Boyd and Grady cases. The order complained of regulated the order of the proof as distinguished from the burden of proof. CR 43.02(3) permits the court in a jury trial to regulate the order of proof in order “to expedite the trial and to enable the court and jury to obtain a clear view of the whole evidence.” More certainly, it could he done in a trial without a jury. This is in the discretion of the trial judge. Clay, CR 43.02, Comment 2(c). While appellants insist that the court’s ruling constitutes reversible error, nowhere do they point out in what way they were prejudiced. In the absence of such showing, there is no reversible error. Simmons v. Willis, 9 Ky.Law Rep. 406; Straney v. Smith, Ky., 255 S.W.2d 653.

On the hearing the trial judge heard testimony from witnesses produced by both parties and, as stated in his memorandum of findings and conclusions, visited the premises. It is clearly apparent that he made his own determination of the matter, independently of the decision by the commission. There is no merit to the argument that the requirements of de novo trial were violated.

The rule is stated in Hamilton Company v. Louisville & Jefferson County Planning and Zoning Commission, Ky., 287 S.W.2d 434, relied on by appellants, to be:

“As an extension of the exercise of the police power, the interference or regulation by public authority of the use of a citizen’s property must be for the superior interest and rights of the public, and the power must be exercised in a reasonable and fair manner for the promotion of the common good of a community as a whole, more particularly, it must bear a substantial relation to the public health, safety, morals or welfare.”

The understanding of the problem by the trial judge is illustrated by the following from the memorandum filed herein, to-wit:

“I am to determine whether the common good requires the subordination of the plaintiff’s ordinary rights to develop her property as she sees fit, which is to say that, from a consideration of all the evidence, whether or not the Commission constitutionally and fairly exercised the police power granted it according to statutory authority. (Citing the Boyd, Grady, and Hamilton cases)”

In a memorandum of findings and conclusions, the trial judge referred to his long familiarity with the neighborhood. He made “two specific reconnaissance trips” to the area after having heard the evidence. The testimony of eighteen witnesses filled four volumes. It is unnecessary to detail it.

In substance, the evidence for the appellants was that they had made their home for more than forty years in the dwelling on the four-acre tract involved. Now that their family has been reared, appellants desire to lease a corner of their front yard for a filling station site. It is urged that the income would give them old age security.

Their evidence tends to show that the property is suitable for commercial zoning, is well adapted and desirable for the use sought, and would have a higher value as commercial property. Further, there is a showing that additional commercial property is needed and that part of the area is already zoned commercial. This testimony was given by appellants, local businessmen, and neighbors.

For the appellees there was testimony from other neighbors, real estate men, and members of technical advisers of the commission. The substance of their testimony is that Wood Avenue is the best natural barrier between the established commercial district to the east of Wood Avenue and the very nice residential district to the west; that residential zoning does not unreasonably restrict the use of the property; that such zoning and the denial of the commercial zoning request are in conformity to a plan for the Lyndon area; and that if commercial zoning is extended across Wood Avenue it will result by process of chain reaction in other commercial changes to the substantial detriment of the residential area west of Wood Avenue.

The findings of fact made by the trial judge were in substantial accord with the testimony introduced by appellees. From those findings it was concluded that the denial of the zoning change was valid. In reviewing those findings, this Court is bound by them if there is substantial evidence of probative value to support them. Louisville & Jefferson County Planning & Zoning Commission v. Cope, Ky., 318 S.W. 2d 842. The testimony introduced by ap-pellees sustains the trial court’s findings of fact. CR 52.01. The conclusion drawn from those findings was a proper one.

Judgment affirmed.


author: CLAY, Commissioner.

text:
    Martin J. CAMPBELL, d/b/a Western Kentucky Livestock Market, Appellant, v. N. H. WHITE et al., Appellees.
    Court of Appeals of Kentucky.
    May 25, 1962.
    Milliken & Milliken, G. D. Milliken, Jr., Bowling Green, for appellant.
    Paul Huddleston, Bowling Green, for ap-pellees.
   CLAY, Commissioner.

Plaintiff appellees recovered something over $6,000 for personal injuries suffered when attacked by a boar hog which escaped from the livestock yards of defendant appellant. Defendant’s contention on this appeal is that he was entitled to a directed verdict.

During a sale the hog, weighing approximately 340 pounds, became excited, jumped a 3(4 foot fence and escaped. It was pursued by one of defendant’s employees who was unable to recapture it. The hog ran up on the front porch where plaintiffs were sitting, attacked and injured them.

No claim is made that the animal had been previously known to be vicious. Plaintiffs’ legal theory is that the defendant negligently failed to (1) prevent its escape, (2) recapture it, and (3) warn plaintiffs of its dangerous propensities.

KRS 259.210(1) provides:

“No person shall permit any cattle owned by him or under his control or in his custody, to run at large.”

The word “cattle” includes hogs (KRS 446.010(5)), and the statute is violated if the person having control of the animal fails to exercise reasonable care to prevent its running at large. Wigginton & Sweeney v. Bruce’s Guardian, 174 Ky. 691, 192 S.W. 850. We have also held that if a person is damaged by an animal at large, the plaintiff has made a prima facie case by proving the accident and the defendant’s ownership (or control). Ellington v. Strader, Ky., 285 S.W.2d 497.

Defendant’s contentions are that there was no actual proof of negligence and if there was a presumption of negligence, it was completely overcome by his evidence. This evidence was in substance that the hog was handled in the customary manner in the stockyard; that the enclosure in which it was confined was of approved type and height; and that in many years of operation no hog had jumped the fence as this one did. However, this proof did not conclusively establish freedom from negligence. If there are reasonable inferences of negligence to be drawn from the evidence, the jury is the sole judge thereof. McGraw’s Adm’r v. McGraw’s Adm’r, 293 Ky. 722, 169 S.W.2d 840.

Reasonable inferences would be that the hog was mishandled in such a way as to unduly excite it, or that in view of such excited state other employees of defendant then available should have assisted in preventing its escape. (The hog made one unsuccessful attempt to jump -the fence.) When the animal did escape, negligence could properly be inferred from the fact that only one of defendant’s employees went in pursuit. (As a matter of common knowledge, it is almost impossible for one man to corral an enraged and excited hog.)

While this animal had initially no vicious propensities, they did develop while it was being handled in the stockyard. (It charged one of defendant’s employees so vigorously that the latter twice “climbed the wall”.) The fact that defendant maintained what was generally considered an adequate enclosure or the fact that this type of occurrence had not happened previously does not necessarily absolve him of liability. In view of all the circumstances, fair inferences of negligence could be drawn from the handling of this animal prior to its escape and from failing to recapture it immediately thereafter. In our opinion an issue for the jury was presented.

The judgment is affirmed.


author: BIRD, Judge.

text:
    KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, etc., et al., Appellants, v. WESTERN & SOUTHERN LIFE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 25, 1962.

      Paul E. Tierney, Frankfort, for appellants.
    J. Leland Brewster, Kyte, Conlan, Heek-in & Wulsin, Cincinnati, Ohio, for appellee.
   BIRD, Judge.

The Kentucky Unemployment Insurance Commission by appropriate order declared the Western and Southern Life Insurance Company liable for unemployment insurance taxes on a specific group of its agents operating in Kentucky.

The Insurance Company appealed to the Franklin Circuit Court. The Commission’s order was there voided and it appeals to this Court.

The controversy concerns “covered employment” as defined by KRS 341.050(1) and by an exception contained in KRS 341.-050(5) (i):

“341.050 Covered employment.
“(1) As used in this chapter, unless the context clearly requires otherwise and subject to the other provisions of this section, ‘covered employment’ means service, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied in which the relationship of the individual performing such service and the employing unit for which such services are rendered is, as to those services, the legal relationship of employer and employe. * * *
“(5) Unless- the employing unit thereof has elected that such services become covered employment under the provisions of subsection (3) of KRS 341.250, ‘covered employment’ does not include: * * *
“(i) Service performed by a worker for an employing unit as an insurance agent or as an insurance solicitor, if all such service performed by such worker for such employing unit is performed for remuneration solely by way of commission.”

The Insurance Company contends that its agents are covered by the quoted exception.

The agents involved were employed by contract containing the following pertinent provisions:

“V.-C. Weekly Premium Commissions.
“1. Collection and Service Commissions. The Agent shall be paid weekly a Collection and. Service Commission equal to one-thirteenth of the applicable percentage shown below of his Weekly Premium remittances during his preceding fiscal quarter:
Less than five years of active service — ■ 12%
Five or more years of active service — • 13%
For Minimum Collection and Service Commission see Paragraph G of this Section. * * *
“V.-D. Monthly Debit Ordinary Commissions.
“1. Collection and Service Commissions. The Agent shall be paid weekly a Collection and Service Commission equal to one-thirteenth of the applicable percentage shown below of his Monthly Debit Ordinary remittances during his preceding fiscal quarter:
Less than five years of active service— 6%
Five or more years of activei service — ■ 6½%
For Minimum Collection and Service Commission see Paragraph G of this Section. * * *
“V.-G. Minimum Collection and Service Commission.
“If the combined Weekly Premium and Monthly Debit Ordinary Collection and Service Commissions payable under Paragraphs C-l and D-l of this Section are less than $40 a week, such combined commissions shall be $40 a week.”

The Commission claims that V-G provides for a guaranteed weekly wage of $40 for each agent and that remuneration is therefore not solely by way of commission so as to relieve the employer of the tax liability.

Our consideration of V-G does not lead us to the conclusion reached by the Commission. Rather than being a guaranteed weekly wage this Court considers it as an increase in rate of commission under V-C and V-D when the prescribed rate does not produce as much as $40 per week. Section V-G specifically says the “commissions shall be $40 per week.” The parties to the contract of employment understood that the remuneration was a commission rather than salary or specified wage.

It is the Court’s conclusion that the employment of these agents is covered by the exception and is not “covered employment” within the meaning of the Act.

The judgment is affirmed.


text:
    Edgar DIXON, Individually, et al., Appellants v. COUNTY OF ELLIOTT, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    May 25, 1962.

      W. E. Mobley, Sandy Hook, for appellants.
    Wm. R. Redwine, Sandy Hook, Joseph .R. Rubin, Louisville, for appellees.
   STANLEY, Commissioner.

This taxpayer’s representative action -challenges the proposal of Elliott County to issue $100,000 of bonds to finance the erection of a courthouse and complete the construction of a jail.

The judgment approved the proposed bonds to be issued in accordance with the fiscal court’s orders and terms, which contained the condition that the bonds would not be issued unless and until they shall have been approved by the County Debt Commission and the State Local Finance Officer, as required by KRS 66.280-66.390.

The fiscal court on August 26, 1960, adopted a resolution declaring an emergency that required the incurrence of a debt of $100,000, and proposing the issuance of 25-year bonds and the levy of a special tax to pay the interest thereon and create a sinking fund for payment of the principal. The order provided for a referendum on the question of issuing the bonds to be submitted at the November, 1960, election. At that election 1,692 votes were cast in favor of the bonds and 511 against them. This was within the requirement of § 157 of the Constitution that two-thirds of the voters assent. The election was never questioned.

Approximately one-half of the proposed bonds is within the ordinary maximum indebtedness permitted by § 158 of the Constitution, which is 2% of the value of the taxable property in the county. The authority to issue bonds for the other half exists under the exception that there is an “emergency” and “the public health or safety” requires the enlargement of the percentage or the additional indebtedness.

In December, 1957, the Elliott County courthouse and jail were destroyed by fire. All furnishings and equipment and many of the county records were lost. The county collected $50,000 insurance on the courthouse. More than $20,000 of the proceeds were expended in the purchase of new equipment and some record books and in paying rent of a makeshift courtroom and county offices. The balance was used to build a jail, but there was not enough for heating facilities. It is proposed to provide a system for heating both the jail and the courthouse out of the proceeds of the bonds.

Since the fire the county has improvised a courtroom in a rented basement of a theatre building. The room is 30 x 50 feet. Two small jury rooms have been partitioned off, but they are inadequate in several particulars, one of which is the practical absence of secrecy of the-proceedings therein. The ventilation and lighting are poor and lavatory facilities deplorably lacking. These conditions, of course, are unhealthful and hazardous. The county offices are housed in a converted storeroom about three blocks from the courtroom. There is no vault for the protection of the records, and the conditions as to ventilation and other facilities are the same as for the courtroom. These bad conditions are graphically described by witnesses and shown in photographs. The county has been paying approximately $3,000 a year in rentals out of the regular 50‡ tax levy. This has deprived the county of funds which are vitally needed for other purposes.

The estimate of the cost of a plain building according to plans which have been submitted to the fiscal court, is $99,857.00. This is the minimum requirement, and a structure costing less would be inadequate and unserviceable.

The above is a summary of the circuit court’s findings of fact. They are fully sustained by the evidence.

The plaintiff recognizes the factual conditions but claims the present facilities are adequate and good enough, and that there is no emergency requiring that the maximum percentage of indebtedness should be exceeded.

On the question of emergency, Magoffin County v. Rigsby, Ky., 303 S.W.2d 545, is decisive. The neighboring Magoffin County courthouse and jail were burned a few months before Elliott County lost its facilities by fire. On a test of the proposition to issue $300,000 in bonds for building a courthouse and jail, the very question wé have here was before the court. We commented upon the imperative need of the people under such conditions and concluded without difficulty that they created an emergency within the meaning of § 158 of the Constitution; hence, the issuance of bonds, when and if approved by two-thirds majority of the voters, would be a legal indebtedness and authorize the necessary special tax levy.

In Rodgers v. Crittenden County, Ky.,. 337 S.W.2d 728, we approved bonds exceeding the county’s debt limit and the extra tax levy to provide a new courthouse in place of an old one which had become so-dilapidated as to be hazardous.

It is clear, we think, that the terms-of §§ 157 and 158 of the Constitution are met and the special tax levy is authorized by § 159.

The preliminary order of the Elliott County fiscal court, the notice of the referendum election and the question submitted on the ballots all stated that the amount of the bonds should not exceed $100,000.

In a postelection order of September 16, 1961, the fiscal court confirmed its previous proceedings and the result of the referendum election. The order provided in detail for the issuance and sale of the bonds “in the principal sum of $100,000” bearing interest at a rate to be determined at the time of the sale not to exceed 6% per annum. In listing the maturities of the several bonds, the interest was computed “on a tentatively anticipated interest rate of 4¾%- per annum.” The order provided for a sinking fund and the levy of an annual tax in whatever amount should be necessary to meet the obligations.

A critical provision of the order is that which directed the advertisement and sale of the bonds on sealed, competitive bids “upon such terms and conditions as the Fiscal Court may in its discretion, just prior to the sale, determine at that time to be advantageous in the light of existing market conditions, provided that bidders shall be required to bid not less than par plus such reasonable minimum premium, if any, as the Fiscal Court may determine to be advantageous at the time of such sale, in order to provide for expenses in connection with the validation, printing, advertisement and issuance of said bonds.”

In Bell v. Board of Education of Barren County School District, Ky., 343 S.W.2d 804, we recognized that part of the proceeds of municipal bonds may be applied to the payment of reasonable expenses, but the court disapproved a plan which required that funding bonds should be sold at a premium which would be used for that purpose. In that case the premium had been definitely fixed at $15 per bond while here the premium had not been determined at the time of the judgment. In both cases competition in the bidding for the bonds rested on the rate of interest to be paid, i. e., the sale would be made to the bidder offering the lowest rate of interest.

We held in the Bell case that as the higher rate of interest would be paid out of the special tax levy, the scheme was equivalent to increasing the amount which the taxpayers would ultimately have to pay. The requirement in the present case must be likewise regarded. The authority derived from the vote of the people to issue $100,000 in bonds carried the presumption or necessary implication they would be offered for sale at par value, that is $1,000 in money for a $1,000 bond. The people could well suppose that the rate of interest would be computed on that principal and on no greater sum. As pointed out in the Bell case, it is not to be supposed that a bidder will offer the same or a lower rate of interest on a $1,000 bond when he will have to pay more than that for it. Of course, if bids were to be on bonds to bear a definite rate of interest, the competition would be based upon the principal — par or more or less. But in this kind of proposal the rate of interest is itself the basic factor in the competition. The fiscal court was without right to change materially the terms or conditions of the proposition voted upon. Percival v. City of Covington, 191 Ky. 337, 230 S.W. 300; Reynolds v. Bracken County, 192 Ky. 180, 232 S.W. 634; Riddell v. Boone County, 183 Ky. 77, 208 S.W. 323.

The appellees ■ argue that the holding of the Bell case should be overruled or interpreted as applying only to funding bonds or held inapplicable here because the proceedings were begun before the decision in that case.

The decisions concerned with the sale of municipal bonds have had to do with questions arising from the sale below par. Some of them were based upon statutes. Hunter v. City of Louisville, 208 Ky. 562, 271 S.W. 690; Duff v. Knott County, 238 Ky. 71, 36 S.W.2d 870; Jones, Bonds and Bond Securities, § 366; 64 C.J.S. Municipal Corporations § 1932; 43 Am.Jur., Public Securities and Obligations, § 131, et seq. Our case of Bell v. Board of Education of Barren County School District, supra, Ky., 343 S.W.2d 804, seems to be a case of first impression. Upon reconsideration óf the principle laid down we continue of the opinion that it is sound and should not be overruled.

We see no basic difference in this respect between funding bonds and original obligations. We think the principle applicable to both classes of bonds.

This case is not of a character which justifies declaring a prospective effect of the opinion, as we have done where rights had become fixed upon the faith of previous opinions holding to the contrary; in fact, the judgment in this case was rendered nearly a year after the opinion in Bell v. Board of Education of Barren County School District, supra.

The judgment is affirmed except insofar as it approves the offer of the bonds for sale at a premium or for more than their par value. To that extent it is reversed.

Affirmed in part, reversed in part


text:
    Cecil NICKELL, Appellant, v. William KELLY, Appellee.
    Court of Appeals of Kentucky.
    May 25, 1962.
    John Y. Brown, Sr., Lexington, for appellant.
    Tolbert Combs, Commonwealth’s Atty., Calvin N. Manis, County Atty., Hazard, Daniel Boone Smith, Harlan, for appellee.
   PALMORE, Judge.

The appellant, Cecil Nickell, was denied bail while being held pending action by the Perry County grand jury on charges including armed robbery, a capital offense-. KRS 433.140. He brought this habeas corpus action in the Perry Circuit Court, and it resulted in a finding and judgment to the effect that the proof of guilt is evident and the presumption great, hence he is not entitled to bail. Cf. Const. § 16. He appeals. Crim.Code § 429a-l.

In establishing that an offense is not bailable the burden is on the Commonwealth to show that “the proof is evident or the presumption great.” Day v. Caudill, Ky.1957, 300 S.W.2d 45, 46, 48; Young v. Russell, Ky.1960, 332 S.W.2d 629, 633. However, the judge who conducts the hearing on the writ “is vested with a sound discretion” in determining whether that burden has been sustained, and his decision will not be disturbed on appeal unless he has clearly abused his discretion. Wells v. Commonwealth, 1944, 299 Ky. 51, 184 S.W.2d 223; Brooks v. Gaw, Ky.1961, 346 S.W.2d 543. To state the latter policy another way, if it appears from a review of the record that there is room for an honest difference of opinion among reasonable men as to whether “the proof is evident or tlie presumption great,” this court will not substitute its own judgment for that of the trial court.

The evidence of the hearing in this proceeding disclosed that on the night of' April 17, 1962, Dr. L. H. Wagers was assaulted and robbed and his wife severely beaten in their home at Hazard, Kentucky,, by three armed men wearing masks. One of them was dressed in a dark suit and' dark shirt. He had black hair parted on the left side. From these details (except for the mask), an hour and a half later at the police station Dr. Wagers identified the-appellant as that man. Again on the witness stand he positively identified him.

Shortly after the robbery, and a few moments before the arrival of police officers,,, the appellant came to the house next door to the Wagers home, where Dr. Wagers had gone to summon help, and asked the lady of the house, Mrs. Eblen, to call the police because some men had just held a gun on him. His story was that he was on his way driving from Lexington to Whitesburg and was about to go to a motel in the neighborhood for the night when suddenly two men opened his car door, pointed a pistol at him and forced him to drive them a short distance, but when they saw the lights of another car approaching they thought it was the police and departed as abruptly as they had appeared.

When the forces of the law arrived at the Eblen home appellant went with them in search of the robbers, and the two (or other two, as the case may be) men were shortly apprehended. Apparently they were afoot. They were taken to the police station and promptly identified there by Dr. Wagers. He then identified the appellant as well. According to Dr. Wagers, this was the first time he had seen the appellant since the robbery, though appellant says the doctor saw him at the Eblen home.

In Brooks v. Gaw, Ky.1961, 346 S.W.2d 543, the testimony of an eyewitness identifying the accused as the person who killed another was held sufficient to support a denial of bail. In Day v. Caudill, Ky.1957, 300 S.W.2d 45, and Burton v. Commonwealth, 1948, 307 Ky. 825, 212 S.W.2d 310, it was held otherwise in view of conflicting evidence creating a plausible basis for the defense of self protection or a reduction of the offense to a non-capital degree. In the case before us the appellant’s testimony certainly puts his apparent guilt in issue, but on the whole it strikes us as adding more to a conviction of guilt than would have been justified by the doctor’s identification alone. It is at least open to question whether the simple identification of a person who had been seen but once before, and with a mask over his face at the time, would raise a presumption strong enough to deny bail. Here, however, the appellant himself provided the further information that he was on the scene immediately after the commission of the crime, and, indeed, had just had in the car with him two armed men who fled when they thought they saw the police approaching. Thus he puts himself on the scene, and he puts himself with the apparent perpetrators of the crime. And under cross-examination his explanation of these circumstances tended considerably to impair his claim of innocence.

Considering the evidence as a whole, we cannot say that the trial court abused its discretion in denying bail.

Judgment affirmed.


author: CULLEN, Commissioner.

text:
    Jean Marie WANDLING, Appellant, v. Marlin C. WANDLING et al., Appellees.
    Court of Appeals of Kentucky.
    May 25, 1962.
   CULLEN, Commissioner.

Jean Marie Wandling, wife of Marlin Wandling, sued her husband and Abe Harrison to recover damages for personal injuries she claimed- to have sustained in a collision between the Wandling car, in which she was a passenger, and a car driven by Plarrison. The case was submitted to a jury which returned a verdict for the defendants. Judgment was entered accordingly and Jean has appealed.

The two automobiles were proceeding in opposite directions on a straight stretch of highway, at night. Harrison commenced a left turn into a school driveway, then decided that he would not be able to complete the turn, and stopped his car partly across the Wandling car’s traffic lane. Wandling applied his brakes and swung to the right but the left front of his car struck the left front of the Harrison car.

As concerns Jean’s claim against her husband any errors that occurred upon the trial could not have been prejudicial, because in our opinion she had made a judicial admission of his lack of negligence such as to entitle him to judgment as a matter of law. His several motions for such a judgment were, we think, improperly overruled.

In a pretrial deposition, and in her testimony on the trial, Jean said that her husband had his car under complete control, that he was not going at an excessive rate of speed, and that the Harrison car “turned right in front of us.” By this testimony Jean completely absolved her husband of any negligence, so as to entitle him to judgment on the basis of a judicial admission. Bell v. Harmon, Ky., 28/4 S.W.2d 812.

With respect to her claim against Harrison Jean’s first contention is that she was entitled to a directed verdict. However she did not move specifically for a directed verdict against Harrison. She did request an instruction, which was given, informing the jury that they must find a verdict against either Wandling or Harrison or against both of them. But this instruction was practically nullified by the giving of other instructions, over Jean’s objections, authorizing the jury to find Jean contribu-torily negligent.

As relate to contributory negligence the facts in this case are not distinguishable from those in Beasley v. Evans’ Adm’x, Ky., 311 S.W.2d 195, where it was held error to give a contributory negligence instruction. Accordingly, we hold that the giving of the contributory negligence instructions here was error.

Since the case must be reversed for a new trial against Harrison because of the erroneous instructions and since upon that trial the question of whether a verdict should be directed against Harrison most certainly will arise, we deem it proper to express our opinion that the evidence in the record before us establishes that Harrison was negligent as a matter of law.'

It is true that in a number of cases where a motorist turned left across the path of an oncoming vehicle it has been held that the question of negligence of the left-turning motorist was for the jury. But in every one of those cases there was evidence of excessive speed of the oncoming ■ vehicle, •and the speed was a factor- in the accident either because it brought 'the oncoming vehicle suddenly into view after the turning motorist had made a reasonable lookout ahead, or because the-turning motorist did not realize how excessive the speed was until after he had committed himself to t;he turn. For example, in , Jackson v. Shipley, Ky., 312 S.W.2d 627, the turning motorist testified that before he commenced his turn he looked ahead and in the 780-foot range of his view there was no approaching vehicle; he began his turn and then saw a car “coming down the road at -the highest :rate of speed I had ever seen.” In Beasley v. Evans’ Adm’x, Ky., 311 S.W.2d 105, the turning motorist said that he first looked and saw no car approaching, and then after he had started his turn he saw a car coming, 100 or 125 yards away, at 80 miles an hour or more. In Adams v. Feck, Ky., 303 S.W.2d 287, the turn was attempted at a place 180 feet from a curve; after the turn was commenced a car came around the curve “just flying;” there was physical evidence of excessive speed in the fact that the car skidded 117 feet uphill and struck the turning vehicle with a terrific impact. In Pillsbury-Ballard v. Scott, Ky., 283 S.W. 2d 387, the turn was attempted 350 feet from a curve; no vehicles were in-sight when the turn was begun but when the turning car was halfway across the road a car came around the curve' at 80 miles an hour. '

In the instant case both of the Wandlings testified that their car was going 50 miles an hour, and the only evidence of excessive .speed consisted of Harrison’s statements that it looked to him to be coming “at a pretty fast rate of speed” or at “a pretty good speed.”, However, when asked to. estimate a specific rate of speed he said -he “couldn’t say that,” and when asked whether the speed was faster than that of other cars traveling the highway on that occasion -he gave the equivocal answer that “I don’t know that there was any other cars along ■there at that time.”.

We have doubt whether Harrison’s estimates of the speed of the .Wandling car as -being “pretty fast” or “ppetty good” were of any value as proof of an excessive speed. It is true that in Consolidated Coach Corporation v. Earls’ Adm’r, 263 Ky. 814,. 94 S.W.2d 6, this Court held competent a statement of á witness that a bus was' going “real 'fast”, but it appears 'that this was considered as bearing only .on the question 'of whether the bus wa's going swiftly as distinguished- from slowly. And-in Wilburn v. Simons, 302 Ky. 752, 196 S.W.2d 356, a statement -that, a-vehicle was^ going.at a “terrific” rate of speed was held competent, but certainly “terrific” is much more indicative of an excessive .speed than is “pretty fast.”

However, even if it be considered that Harrison’s statements did constitute acceptable evidence of high speed, the significant fact in this-case is that Harrison was aware of the speed at all times and there was no reason for him to have been misled or trapped by reason of the speed. He testified that he first observed the Wandling car when it came over a rise 1,000 feet away and that it then looked to him to be going at a “pretty fast rate of speed.” With knowledge that the Wandling car was approaching at a high rate of speed Harrison must have known' he could not venture a left turn with reasonable safety. See KRS 189.380(1).

Even if Harrison’s testimony should be .construed as saying that he did not actually become aware of the extent of the speed of the Wandling car until after he had commenced his turn, there is no escape for him .from, his inexcusable act of stopping across the lane of the Wandling car. The evidence indicates that when he stopped the Wandling car was at least 150 feet away. Even going as slowly as 10 miles an hour Harrison could have cleared the 8-foot lane in one second. The Wandling car would have to have been going 100 miles an hour to travel 150 feet in a second. There is no suggestion it was going anywhere near that fast.

Our conclusion that Harrison was negligent as a matter of law is supported by Smith v. Sizemore, Ky., 300 S.W.2d 225, and Hollar v. Harrison, Ky., 323 S.W.2d 219.

As to the appellee Marlin Wandling the judgment is affirmed; as to the appellee Harrison the judgment is reversed with directions for a new trial as against him alone, upon which, if the evidence be substantially the same, the court will direct a verdict of liability to the plaintiff.