author: HOUSER, Commissioner.

text:
    Laura MORRIS, Appellant, v. Charles F. DUKER, Respondent.
    No. 52257.
    Supreme Court of Missouri, Division No. 1.
    March 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 24, 1967.
    As Modified on Court’s Own Motion April 24, 1967.

      Thomas M. Sullivan, Edward L. Fitzgerald, Downey, Sullivan & McCormick, Kansas City, for appellant.
    Joseph A. Sherman, Barton Brown, Deacy & Deacy, Kansas City, for respondent.
   HOUSER, Commissioner.

Laura Morris, a pedestrian, sued Charles F. Duker, the driver of an automobile, for $55,000 damages alleged to have been sustained by plaintiff when she was struck by defendant’s automobile while walking across a street in Kansas City. A trial jury returned a verdict for defendant, and plaintiff has appealed from the judgment entered on the verdict.

Appellant’s first point is that the court erred in refusing to permit plaintiff on voir dire to ask the members of the jury panel whether they held policies of insurance in State Farm Mutual Automobile Insurance Company, which was interested in the outcome of the trial. In chambers, out oí the hearing of the veniremen, counsel for plaintiff indicated that he intended to inquire whether any members of the panel, or members of their immediate families, were employed by or held policies with this insurance company. Counsel for defendant objected on two grounds. First, it was objected that nothing would be done on behalf of defendant to cause the name of the insurance company to be mentioned in evidence in the presence of the jury and that the defendant was sued for an amount “in excess of any existing policy of insurance.” The court overruled this objection. Second, defendant objected “to any inquiry as to policy holders for the reason that the State Farm Mutual is a non-ass essable mutual company; that the mere fact that a juror may be a policy holder would not in and of itself disqualify him as a juror or give him any financial interest. The only financial interest that he could have would be the effect that this verdict would have on his premium, and that would be of such a small amount as to be insignificant, for the reason that there are so many policies of insurance issued by State Farm.” The court sustained the second objection. The only question then asked of the panel with regard to insurance was whether any of the veniremen or any of the members of their immediate families were either an officer in or employed by State Farm Mutual Automobile Insurance Company. The panel remained silent. There is nothing in the record to show that any of the veniremen, or any of the members of their families, actually were officers of or employed by State Farm Mutual, or that any of them carried insurance with that company.

The extent to which counsel may go in inquiring of veniremen with respect to their connection with an insurance company interested in the outcome of a case on trial is a matter resting within the sound discretion of the trial judge. The court is allowed a broad discretion in determining the latitude of the inquiry respecting the qualifications of veniremen to sit as jurors. Eickmann v. St. Louis Pub. Serv. Co., Mo. Sup., 323 S.W.2d 802, 807. The action of the court in this respect will not be set aside unless there is a manifest abuse of discretion. Moore v. Middlewest Freightways, Inc., Mo.Sup., 266 S.W.2d 578, 585; Kendall v. Prudential Insurance Company of America, Mo.Sup., 327 S.W.2d 174; Bunch v. Crader, Mo.App., 369 S.W.2d 768 [4] and cases cited, fn. 4. The burden is on appellant to establish prejudicial error upon an appeal, Nash v. Plaza Electric, Inc., Mo.Sup., 363 S.W.2d 637, 641, and this rule applies to an order restricting the scope of voir dire examination.

Appellant cites Gooch v. Avsco, Incorporated, Mo.Sup., 340 S.W.2d 665; Aiken v. Clary, Mo.Sup., 396 S.W.2d 668; McCollum v. Shubert, Mo.App., 185 S.W.2d 48; Rytersky v. O’Brine, 335 Mo. 22, 70 S.W.2d 538; Kaley v. Huntley, Mo.App., 88 S.W.2d 200, and Bunch v. Crader, supra. Gooch says that it is proper to ascertain what connection prospective jurors have with an insurance company interested in the defense, provided pertinent inquiries are made, and that the trial judge may reasonably circumscribe the inquiry “by limiting the number of questions and imposing other curbs on the nature of the examination.” Aiken reversed a ruling prohibiting any and all inquiry of the panel with respect to an insurance company’s interest on the mere basis of an affidavit of the president of the company that the company had no stockholders, officers or directors resident in Missouri and only one employee in this state, whose name did not appear on the list of prospective jurors. McCollum held that where the inquiry disclosed that 5 members of the panel held policies in a mutual company, plaintiff had a right to make an inquiry whether this fact would affect them one way or the other “in the decision of a case in which you thought they were interested or might be interested,” because as policyholders in a mutual concern they were interested in the company as owners and substantially occupied the position of stockholders. Rytersky says that it is proper to ascertain whether a juror “carries a like policy in some company.” Kaley holds that it is not improper to inquire whether any of the jurors or members of their families are policyholders or had any other connection with the insurance company interested in the outcome. Bunch upheld the action of the court in permitting inquiry whether members of the panel were policyholders, and considerable other interrogation with reference to the subject, on the basis that there was nothing to indicate bad faith on the part of counsel. The court points out, however, that absent special circumstances the better practice is to ascertain whether any member of the panel is interested by asking one general question.

None of these cases militates against our ruling that there was no error in restricting the inquiry to the question whether any panel member or member of his family was an officer or employee of the insurance company. It was a discretionary matter and in permitting the inquiry as to officers and employees but prohibiting it as to policyholders the court was not by that fact alone guilty of a manifest abuse of discretion. In making the objection defendant’s counsel stated that State Farm is a nonassessable mutual company. This was not controverted at the trial by plaintiff’s counsel. It has been held that the holders of nonas-sessable policies are not disqualified as a matter of law from acting as jurors in a case in which the issuing company has an interest in the litigation. Kendall v. Prudential Insurance Company of America, Mo.Sup., 327 S.W.2d 174. This was an action brought directly against Prudential on a life policy issued by that company. Four veniremen disclosed that they were Prudential policyholders. The failure of the trial court to sustain plaintiff’s challenges for cause, based on this fact, was upheld. The opinion pointed out that “a challenge for cause is not required to be sustained as to every kind of policyholder under all circumstances. In view of modern widespread use of all kinds of insurance, such a rule would be unreasonable at least as to those with nonassessable policies or those who do not participate in policy dividends. The view that holders of non-assessable policies are not disqualified as a matter of law was stated in Kanzenbach v. S. C. Johnson & Son, Inc., 273 Wis. 621, 79 N.W.2d 249. See also Mellinger v. Prudential Insurance Company of America, 322 Mich. 596, 34 N.W.2d 450.” 327 S.W. 2d, l. c. 177, 178. In Kendall the plaintiff failed to make a sufficient showing that the veniremen were interested in the outcome of the case. The court said that any interest of any of the challenged veniremen was too minute and too remote to require the court to sustain a challenge for cause as to them.

Now in this Court plaintiff contends that State Farm is not a nonassessable company. This, however, is not the criterion. The question on this appeal is whether plaintiff was prejudiced by the refusal of the court to permit inquiry whether any member of the panel was a policyholder. The burden is on the appellant.

If the fact that a member of the venire was a policyholder rendered him ineligible as a matter of law to sit as a juror it would constitute an abuse of discretion to refuse to permit the inquiry, but it does not. In Swinger v. Bell, Mo.Sup., 373 S.W. 2d 30, 32, this Court held that “The fact alone of being a policyholder, however, does not disqualify * * And see McCollum, supra, 185 S.W.2d 1. c. 50 [3].

If the inquiry had been allowed it would have been proper. McCollum, supra. The better practice would be to allow such an inquiry. If a venireman is a policyholder the plaintiff has a right to inquire whether in view of that fact he could try the case fairly. McCollum, supra. The refusal to permit inquiry whether any panel member was a policyholder, however, does not constitute an abuse of discretion requiring us to upset a verdict and judgment, in the absence of an allegation in the motion for new trial, and proof at the hearing, or an admission, that in fact one or more of the jurors empanelled was a policyholder, and showing that plaintiff was prejudiced by the ruling. There was no such allegation in the motion for new trial, and this fact was not admitted by defendant. The record does not show that evidence was taken on the motion for new trial, or that any of the jurors in fact were policyholders or that any of them had any interest in the outcome of the case, not even a minute or remote interest. No prejudicial error in this connection has been established under these circumstances.

Appellant’s second point is that the court erred in giving Instruction No. 5 on contributory negligence, as follows:

“Your verdict must be for the defendant whether or not defendant was negligent if you believe:
“First, plaintiff either:
“failed to keep a careful lookout, or left a place of safety and walked into the immediate path of defendant’s vehicle; and
“Second, plaintiff’s conduct, in any one or more of the respects submitted in paragraph First, was negligent; and
“Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.
“The term ‘negligence’ as used with reference to plaintiff means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.”

The complaints are that No. 5 was not supported by and conflicted with all of the evidence; that it improperly imposed a duty on plaintiff to yield the right of way to defendant even after she had walked over half the distance across the roadway, and that it provided no standard for the jury to decide whát was the “immediate path” of defendant’s vehicle.

Plaintiff, age 64, was walking eastwardly across Belleview, a north-south street, when she was struck by the front bumper and grill of defendant’s automobile. Belleview is a one-way (southbound only) three-lane asphalt street, 42 feet wide at its intersection with Forty-Fourth Street, where the collision occurred. The accident occurred on the evening of November 19. It was dark. The streetlights and automobile lights were turned on. Plaintiff was familiar with the conditions at this intersection, having crossed the street there every night for a year and a half. She knew that Belleview was a through street, busy during the rush hour. Customarily she would wait at the curb for cars to come to a complete halt before starting across “because cars came by there pretty swift.” There were no traffic lights or stop signs for southbound traffic at that intersection. Plaintiff, intending to walk across Belle-view from west to east, looked to the north, toward Forty-Third Street. She saw two southbound automobiles approaching, one in the west lane and the other in the center lane. The two automobiles came to a stop next to each other. She saw no other traffic. The driver of the car in the west lane motioned for her to cross in front of him. She stepped off the west curb and proceeded eastwardly across Belleview in line with the sidewalk. There were no painted crosswalk lines. The driver of the second car then motioned for her to go on in front of him and she walked in front of the second car. Then she started into the third lane, “got along a little ways,” when “a flash of light came across, and there was no way that [she] could get out of the way at all, and [she] knew that there was a car coming.” She “saw the bright light” but did not know how close the car was to her. When struck plaintiff was “not far” from the east curb; she had walked 36 feet of the 42-foot street. She was walking “at a regular pace,” a “normal gait,” and was not running or walking fast.

She looked to her left (north) twice. The first time was when she was at the west curb. She did not again look to her left until the instance of the impact, at which time she looked up and saw the light of the car that struck her.

Defendant testified as follows: He had been traveling south on Belleview at 20-25 m. p. h., in the center lane. There were some slow moving automobiles just ahead of him, so he drove into the lane on his left (the east lane) just after he passed Forty-Third Street. As he approached Forty-Fourth Street he was traveling 30 m. p. h. There was an automobile traveling to his right and ahead of him. This car obstructed his view of plaintiff. He first saw plaintiff when she was “just coming in view in front of that car, just stepping out from in front of him.” She was getting close to the line between the east lane and the center lane. Defendant immediately applied his brakes the second he saw plaintiff, and his tires skidded. She “appeared to just keep on walking” and she moved far enough to enter the east lane. His car stopped a couple of feet after he struck plaintiff. Considering the place plaintiff was in when defendant first saw her, there was room behind her for the car in the center lane to pass behind her.

A police corporal testified that defendant stated at the scene of the accident that he noticed the danger of an accident when his automobile was approximately 30 feet away; that he applied his brakes but could not stop in time to avoid the accident. He found “46 feet of overall skid” (i.e. not deducting the 10-foot wheelbase of the automobile) .

Taking the speed of the automobile (30 m. p. h.), the distance plaintiff walked (36 feet), the time it took her to walk from the curb to the point where she was struck (estimated at 9-12 seconds), appellant calculates that defendant’s automobile was more than 400 feet north of the point of impact when plaintiff left a place of safety on the west curb and began her walk across Belleview. A city ordinance requires the driver of a vehicle to yield the right of way, slow down or stop if necessary to yield to a pedestrian crossing the roadway within a crosswalk when the pedestrian is on the “half” of the roadway on which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite “half” of the roadway as to be in danger, “but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.”

Arguing that there was no evidence that the automobile was so close that the driver could not yield, appellant asserts that there was no evidentiary basis for a submission that plaintiff left a place of safety and walked into the immediate path of the automobile. We are unable to agree. The ordinance speaks not only of the curb as a place of safety but also of an “other” place of safety. Defendant’s testimony would justify a finding that plaintiff was in a place of safety between the line of traffic moving south in the center lane and that in the east lane, and that instead of remaining in that position until defendant’s automobile passed she kept on walking into a position in front of his automobile, without looking out for herself, under such circumstances that the collision occurred notwithstanding plaintiff made an immediate application of the brakes upon seeing and observing her actions.

Nor did No. 5 impose upon plaintiff a duty to yield the right of way to defendant, after she had walked over half the' distance across the roadway, as claimed. Plaintiff contends the basic premise of plaintiff’s case is that when she first stepped into the street she had the right of way — “the right to the immediate use of the roadway” — but that No. 5 “told the jury that the Defendant driver had the right of way to operate, and to proceed in his ‘immediate path,’ and that the Plaintiff was negligent if she walked into his ‘immediate path.’ ” This contention fails. The rights and duties of pedestrian and vehicle driver under the city traffic code are correlative and not absolute. There is a duty of a vehicle driver to yield the right of way to a pedestrian lawfully crossing, and to exercise the utmost care and caution to avoid striking a pedestrian not lawfully crossing, and to slow down or stop if the pedestrian, crossing the roadway within a crosswalk when upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half as to be in danger. A pedestrian is prohibited from suddenly leaving the curb or other place of safety and walking or running into the path of a vehicle so close that it is impossible for the driver to yield. These duties are not arbitrarily and inflexibly imposed regardless of circumstances. Just because she had the right of way did not entitle plaintiff to walk into and across the east lane of traffic without looking out for her own safety and in total disregard of the approach of southbound traffic, including defendant’s automobile. She was obliged to exercise her right of way with due regard to the exigencies of the situation, and if under No. 5 she left a place of safety at or near the line dividing the center and east lanes and walked into the immediate path of defendant’s automobile, without looking, and in blind reliance upon her right of way and his duty to yield, she could properly be found guilty of contributory negligence barring her recovery.

In our judgment No. 5 prescribed a sufficiently definite standard by which the jury could judge what was the “immediate path” of defendant’s vehicle. “Immediate” as used in this context means “direct,” which is one of the many recognized definitions of the word. Webster’s New International Dictionary, second edition, unabridged. The objection that No. 5 permitted a finding for defendant regardless of where defendant’s automobile was when plaintiff left the curb, or of how far away it was when plaintiff entered the east lane, is not well taken. The relative positions of pedestrian and automobile when plaintiff left the west curb are immaterial, because it was plaintiff’s place of safety between the center and east lanes that was involved. It was not necessary for No. 5 to hypothesize the distance between plaintiff and defendant's automobile when she entered the east lane. It was sufficient to hypothesize that she walked from a place of safety into the immediate path of the vehicle and that this was negligence and that her negligence in this respect directly caused or contributed to cause her damage. Number 5 hypothesized the ultimate issue without evi-dentiary detail and is entirely sufficient.

Appellant’s last point is that the court erred in giving Instruction No. 4, which read as follows:

“Your verdict must be for defendant if you do not believe that defendant was negligent as submitted in Instruction Number 2.” The negligence submitted in verdict-directing Instruction No. 2 was that defendant “failed to yield the right of way.”

The argument is that defendant’s testimony conclusively establishes that he failed to yield the right of way; that he stated that he was passing other vehicles when he should have been yielding the right of way to plaintiff, who had already crossed over 80% of the roadway; that where a motorist fails to yield the right of way he must justify his violation, and absent such a showing is to be held negligent as a matter of law.

This point is without merit. Defendant had a right to a converse instruction of plaintiff’s verdict-directing Instruction No. 2. Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95. And see Dell’Aria v. Bonfa, Mo.Sup., 307 S.W.2d 479. Defendant utilized MAI No. 29.02(2), verbatim, and acted entirely within his rights in so doing. The gist of defendant’s testimony was that his view of plaintiff was obstructed by other moving traffic; that plaintiff left a place of safety and walked into the path of defendant’s automobile when it was so close that it was impossible for him to yield, and under such circumstances the jury could properly find that defendant was not negligent in failing to yield the right of way to plaintiff.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    HAR-BEL COAL COMPANY et al., Appellants, v. ASHER COAL MINING COMPANY, Red Star, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 9, 1966.
    As Modified on Denial of Rehearing May 12, 1967.

      James S. Greene, Jr., Greene & Forester, Harlan, for appellants.
    E. B. Wilson, James S. Wilson, Pineville, for appellee, Asher Coal Mining Co.
    William L. Rose, Williamsburg, for ap-pellee, Red Star, Inc.
   WILLIAMS, Judge.

This case involves the validity of a coal-mining lease allegedly entered into between Asher Coal Mining Company (hereafter Asher Company) and the Har-Bel Company (hereafter Har-Bel). The Bell Circuit Court found the lease to be invalid and Har-Bel has appealed.

The Asher Company owned coal-bearing lands which it leased, to various concerns for the purpose of extracting and marketing coal. Included were two areas generally known as the Insull Boundary and the Balkan Boundary. In 1956 Asher Company leased the Insull Boundary to William F. Conley, president of Har-Bel. In 1957 negotiations between Robert Asher, president of Asher Company, and Conley, concerning a lease of the Balkan Boundary, were initiated. Upon the strength of such negotiations Conley purchased a tipple and other equipment and machinery already on the property from a third person. Robert Asher knew of and encouraged the purchase of such equipment and agreed to lease the Balkan Boundary subject to the same terms and conditions contained in ' the Insull Boundary lease. The initial term was to be five years with options to renew.

Relying on the oral agreement with Robert Asher, Conley (Har-Bel) entered into a sublease with Red Star, Inc. On about September 17, 1958, Red Star, Inc. moved equipment on to the Balkan Boundary and commenced stripping coal.

A few days thereafter Robert Asher and Conley requested the Asher Company’s regular attorney to prepare a lease covering the Balkan Boundary. Various changes in the first draft were agreed to by both parties and a second draft was prepared. After further changes were made a third apd final draft was prepared by the attorney. The instrument was signed by Robert Asher as president of Asher Company in the presence of Willard Kiger, an officer of Har-Bel. There is some question as to whether the instrument was then handed to Kiger, but in any event it was left with the attorney or Asher for the purpose of securing the signature of the secretary of the Asher Company.

The secretary refused to sign and the board of directors of the Asher Company did not authorize Robert Asher to enter into the lease. A copy of the instrument filed in this record bears the signature of Robert Asher, as president of Asher Company, but does not bear the signature of th§ secretary or the corporate seal or the signature of an officer of Har-Bel. The Asher Company later entered into a lease directly with Red Star, Inc.

The Asher Company brought this action against William Conley, Har-Bel ai)d Red Star, Inc., seeking to recover a royalty of 35 cents per ton on all coal mined from the leasehold by Red Star prior to the date of the lease between Asher Company and Red Star. Conley and Har-Bel denied liability and counterclaimed for damages for breach of the lease contract. Red Star cross-complained against Conley and Har-Bel for such sum, if any, as the Asher Company might recover against it. Conley and Har-Bel then filed a third-party complaint against Robert Asher seeking recovery of damages against him ⅛ the event the court should find he was without authority to enter into the lease. Before the case was submitted, Robert Ashpr was declared to be incompetent and June Asher Culton was appointed as his committee and made a third-party defendant. Robert Ash-er later died and June Asher Culton was appointed executrix under his will. As executrix she was substituted as third-party defendant by order of the court. The judgment of the Bell Circuit Court was in favor of the Asher Company, the Robert Asher estate, and Red Star, Inc.

In its conclusion of law the Bell Circuit Court pointed out that a corporation may act only through its board of directors, and is bound by the acts of its officers or agents only when made within the scope of their authority. Facts to bring this case within the exception to the rule that, where an officer of a corporation is held out by it as authorized to represent the corporation, then the corporation is bound by his acts, were found to be totally lacking. The court found that “Robert Asher had no authority, real or apparent, to make the alleged verbal or proposed written lease to Conley or Har-Bel.”

It has long been settled in this state that an officer of a corporation has no general authority to execute contracts on behalf of the corporation. Authority to bind the corporation must come either from the by-laws or the board of directors, or the action of the officer must be of the'nature that comes within the apparent scope of his employment. And, if the acts of the officer are relied on, his authority must be shown. In re Independent Distillers of Kentucky (DCWD Ky), 34 F.Supp. 724 (1940) ; Kentucky-Pennsylvania Oil & Gas Corp. v. Clark, 247 Ky, 438, 57 S.W.2d 65 (1933); Caddy Oil Co. v. Sommer, 186 Ky. 843, 218 S.W. 288 (1920); Mount Sterling & Jeffersonville Turnpike Road Co. v. Looney, 58 Ky. (1 Metc.) 550, 71 Am.Dec. 491 (1859). The mere representations of a claimed agent, even when coupled with signing a paper in such capacity, are not sufficient to show his agency or the extent thereof. Short v. Metz Co., 165 Ky. 319, 176 S.W. 1144 (1915).

Here the evidence fails to show that Robert Asher had actual authority to bind the Asher Company. No such authority was shown to exist either in the by-laws or by action of the board of directors. The same situation prevails as to his appparent authority. All leases previously executed by Asher Company, including one to Conley, had been signed by the president and attested by the secretary. In fact, Conley personally called on the secretary in an effort to get him to sign the instrument under discussion, which indicates he believed the attestation was necessary before delivery. It is undisputed that the Asher Company did not ratify the action taken by Robert Asher. All this leads to the conclusion that the circuit court had reasonable grounds to find that Robert Asher had no authority, real or apparent, to bind the Asher Company.

It follows, of course, that the instrument signed without authority by the president did not bind the Asher Company. Moreover, regardless of whether the instrument was handed to Kiger of Har-Bel, the fact remains it was retained either by Robert Asher or the Asher Company attorney for the purpose of securing the secretary’s signature. The signature was not obtained and the Asher Company refused to ratify the lease in any manner. Even though we assume Kiger had the instrument in his hand, that did not amount to a delivery of a valid lease under the circumstances. See Chaney v. Noland, Ky., 387 S.W.2d 308 (1965).

In Appleby v. Buck, Ky., 351 S. W.2d 494 (1961), we pointed out that an oil and gas lease is an interest in real estate within the meaning of the statute of frauds. A coal lease creates no less an interest. Any oral agreement had between Robert Asher and Conley was for an initial period of five years, and no action may be maintained against Robert Asher by virtue thereof. KRS 371.010.

If the claim of Har-Bel against Robert Asher was based upon breach of implied warranty of authority to execute the lease on behalf of Asher Company, rather than upon the lease itself, it was not established. It is evident Har-Bel considered a properly executed written lease necessary. Though Robert Asher signed it, this was nof adequate execution and Har-Bel knew it, In addition, the instrument was not delivered. The transaction was npt completed and Asher had not warranted his authority to complete it.

We conclude the judgment of the Bell Circuit Court was correct, and it is affirmed.


author: HILL, Judge.

text:
    Lillard BOND and Jack Harris, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 17, 1967.
    As Modified on Denial of Rehearing . May 19, 1967.
    B. M. Westberry, Marion, Joseph Grace, Paducah, for appellants.
    Robert Matthews, Atty. Gen., Lacey T.. Smith, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

Appellants Lillard Bond and Jack Harris were jointly indicted with Frankie Jones and charged with the wilful murder of Thruston Belt. Appellants Bond and Harris were convicted and given penitentiary terms of ten years each. They appeal. Jones had not been tried when the briefs in this action were prepared.

Appellants argue that: (1) They were entitled to a “directed verdict of not guilty”; (2) evidence obtained by reason of an illegal search should not have been admitted; (3) the instructions were erroneous; (4) they were denied a speedy trial; (5) the trial court erred in overruling their motion for a bill of particulars. After reciting the facts, we shall discuss these questions in the order listed above.

On Sunday night, May 9, 1965, the home of Thruston Belt, located four miles west of Marion, Kentucky, was completely destroyed by fire. A badly burned torso was found in that part of the ashes over which the bedroom of the house formerly was located. Numerous bone fragments were found, part of which were recovered some distance from the torso; none were larger than a silver dollar. Thruston Belt was in the community late in the afternoon before the night of the fire. He has not been seen since. A watch and cigarette lighter were found near what a mortician said was the torso of a male human being and were identified by members of Belt’s family as having been the property of Belt.

The deceased, Thruston Belt, and one Pilly (William Grady) Hodge on Saturday • and Sunday preceding the night of the fire worked on an automobile. Late Sunday afternoon, Hodge took deceased to the entrance of a gravel road leading up a steep incline, a distance of about one-half mile to the home of the deceased. Belt started walking the distance carrying his tool box. Hodge (in the company of his wife and child) met an old model car shortly after pulling away, and they (the Hodges) observed the old car slow up preparatory to pulling into the driveway of deceased. The Hodges recognized one or two of the occupants of the old car.

The next evidence of deceased was provided by the star witness for the Commonwealth, Alfreda Jones, wife of appellants’ codefendant Frankie Jones. But for her testimony, the Commonwealth would not have a scintilla of evidence against appellants.

According to convincing evidence, the home of appellant Lillard Bond was for some time before May 9, 1965, a place where people of both sexes gathered and drank, sang songs, played the guitar, and fought often.

Alfreda Jones and her husband Frankie Jones, from whom she is now separated, came to the home of appellant Lillard Bond two or three weeks before the date of the alleged crime and made arrangements with Bond to get their food and lodging in consideration of the promise of Frankie Jones to assist Bond in farming operations. At the time she gave her testimony, Alfreda Jones was living in Nashville, Tennessee. She testified that she, her husband Jones, and appellants were drinking and playing the-guitar before and after dark on the fatal Sunday evening, when someone, whose identity she could not give, brought deceased to the Bond home. The frolic continued up into the evening until her husband Frankie Jones, Jack Harris, and deceased “left the-house” and were gone a “good little while.” Then appellant Bond left the house. She never saw deceased again, and no car came that evening to pick him up.

Alfreda Jones testified her husband had and customarily carried a yellow-handled straight razor previous to that evening, which she never saw again.

On the examining trial of appellants, Alfreda Jones did not identify Belt. But shortly before the trial in circuit court, she was shown a photograph of deceased, and she identified deceased as the person who was brought to the Bond home that night.

She also testified that later in the evening she, appellants, and Frankie Jones got into a car and drove through the town of Marion and up a gravel road that was so steep the car “throwed gravel and rocks.” Another witness, who resided near the entrance of' the gravel road leading to the home of deceased, was awakened during the night by the noise from a car climbing the steep' hill of the gravel road. He fixed the time at about 11:30 p. m.

The testimony of Alfreda Jones goes on to relate that the four of them drove to the top of the hill; that the three men got out, leaving her in the back seat where she “laid down”; that the three men went around and opened the trunk of the car and then went away from the car and were gone a “good little while” when they returned; that Frankie Jones “went around to the trunk and done something back there and- he went back”; that they “seemed restless” during this period; and that after a short time, Frankie returned to the car and they drove back to the Bond home.

Three witnesses fixed the time the house was at the height of burning at 12:30 p. m.

As soon as the group returned to the Bond home, Alfreda went to bed. Not long thereafter, her husband came in, crossed his legs, leaned up against the wall for a time, and then “laid down” on the bed with his clothes on. The next morning she observed blood stains on the bedding and on the wall where, the night before, her husband had placed his hand against it.

A search of the Bond residence fourteen days later resulted in the possession by the sheriff of a number of articles of clothing and a “small metal toolbox containing an assortment of hand tools.”

The toolbox and tools were positively identified by Billy Hodge as the identical ones used by deceased on the Sunday preceding the fire. A short piece of clothesline wire was identified as the one Hodge removed from the premises of his mother during the time he and deceased were working on the car. The evidence obtained by the search is questioned by appellants and will be discussed later.

Appellants deny practically every word of •testimony given by Alfreda Jones.

We cannot agree with appellants’ first contention that they were entitled to a directed verdict of not guilty. The web of circumstantial evidence points toward the guilt of appellants. Assuming the testimony of Alfreda Jones was true, and the jury obviously believed it, we find deceased at the home of Bond with the other parties; no motor vehicle was heard to take deceased away; appellants were in the party that drove through town and up a steep “gravel hill.” What was the purpose of this trip in the middle of the night? Where was Belt during this trip ? He was not on the seat of the car. Was he in the truck ? If so, what shape was he in ? The fire was seen giving out its brightest light one hour after the departure of the group from the “top of the hill.” The skull bone fragments were found in a different part of the house than was the torso. Had Belt committed suicide or died a natural death, his head would not have been in one room and the remaining part of his body in another. The restless demeanor of the three men, the blood from Frankie Jones, the tools of deceased, and the vanishing of the razor are efficacious signs pointing to the guilt of Jones and these two appellants. They were charged with a conspiracy.

In Lester v. Commonwealth, 284 Ky. 352, 144 S.W.2d 808, 810, this court said:

“It is true that a conviction may be had upon circumstantial evidence and especially is this true as to charges of conspiracy where direct proof is seldom available but the circumstances relied on to establish a conviction must be so unequivocal and incriminating in their nature as to exclude' every reasonable hypothesis of the innocence of the accused.”

We turn now to the question raised by appellants that the toolbox and tools should not have been admitted for the reason that these items were not covered by the search warrant. The search warrant directed the sheriff to take “any clothing, bed clothing or other articles containing blood or signs of blood.” (Emphasis ours.) Some of the tools were instruments that could have easily produced death, such as a 14-inch pipe wrench. The search was made .fourteen days after the alleged crime, and blood"stains will becoige discolored during that length of time. Some of the tools had a rusty-red color. We think the sheriff was empowered under the search warrant to take possession of the toolbox and tools.

Appellants next say the giving of a voluntary manslaughter instruction was error. Our attention is “invited” to Daggit v. Commonwealth, Ky., 237 S.W.2d 49. We have accepted the invitation and have examined Daggit and find that in Daggit the “confession of the homicide characterize^) it as murder.” This court said in Johnston v. Commonwealth, 170 Ky. 766, 186 S.W. 655, in the same posture as Dag-git, supra, that, “Therefore, appellant is guilty of murder or nothing.” In the present case, the evidence of the presence of blood on Frankie Jones is some evidence of a struggle. There is no evidence of any shooting. We do not consider the giving of a voluntary manslaughter instruction prejudicial. See Lee v. Commonwealth, Ky., 329 S.W.2d 57 (1959).

Appellants contend they were denied a “speedy” trial. The trial commenced March 22, 1966, ten months and thirteen days after the date of the alleged crime. An effort was made in November 1965 in Crittenden County to obtain a jury. Appellants report to us that a jury “was unable to be empanelled” at that time, necessitating ⅛ continuance until March 1966. Furthermore, there was no motion by appellants for a trial or to assign their cases earlier than the date fixed on the various occasions when they were continued. We find no merit in this contention.

Appellants’ departing salvo is directed at the ruling of the trial court overruling their motion for a bill of particulars. To quote appellants’ brief, “This motion was directed toward establishing with particularity how the deceased Belt was murdered and particularly who mudered (sic) him.”

We have the suspicion the Commonwealth was more eager for this information than were appellants. This information was a request for evidence of the crime itself and was a matter of evidence. The jury’s verdict indicated the information sought by motion for a bill of particulars was wholly within the knowledge of appellants.

The judgment is affirmed.

All concur.


author: OSBORNE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. PINE COAL COMPANY and Jack Winston Collier, Appellees.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.
    Rehearing Denied May 19, 1967.

      Robert Matthews, Atty. Gen., H. C. Smith, Spec. Asst. Atty. Gen., Kentucky Highway Dept., Frankfort, Edmond H. Tackett, Pikeville, for appellant.
    Stephen Combs, Jr., Combs & Polly, Whitesburg, for appellees.
   OSBORNE, Judge.

This case involves the destruction of a bridge by a coal truck belonging to the Pine Coal Company. The bridge, located on Kentucky Highway 7 in Letcher County, Kentucky, was destroyed on January 21, 1963, when a loaded coal truck belonging to the Company attempted to cross it. The bridge was rated at fifteen tons by the Kentucky State Highway Department. The coal truck was loaded at a gross of 63,000 pounds. Even though liability was not seriously disputed in this case, the trial court refused to direct a verdict; and the jury found for the plaintiff and awarded damages in the sum of $400. We believe the jury was correct in its verdict so far as liability is concerned.

Defendant’s driver, on cross-examination, admitted that, in his opinion, the weight of the truck caused the collapse of the bridge. Defendant makes much of the fact that no notices were posted at or near the bridge advising the public of the gross weight to be transported over it. We know of no legal requirement that the Highway Department post such notices and defendant does not direct our attention to any.

KRS 433.350 provides:
“Any person who damages or attempts to damage any bridge or ferry owned or operated by this state shall be fined not less than ten dollars nor more than three hundred dollars, or imprisoned for not less than ten days nor more than six months, or both.”

American Jurisprudence recognizes the right of a governmental unit to recover for the destruction or damage to its roads or highways. 25 Am.Jur. Highways sec. 34, pp. 635, 637, states:

“The rule in many jurisdictions is that a municipal or quasi-municipal corporation has such an interest in streets or highways which it is its duty to repair and keep in order as will give it a right of action against one who makes such repairs necessary by a wrongful, negligent, or unreasonable use of the way, * * * »
“The damages recoverable are measured by the expense to which the municipality or other public agency has been put by the act of the defendant and do not include mere inconveniences in the use of the road which do not make it more expensive to be kept in repair.”

We believe that there can be no question but that the defendant is liable for the destruction of the bridge in controversy. Those who negligently damage or destroy roads, bridges or culverts should be held responsible in damages for their actions.

We now come to the question of damages. Appellant, through one of its engineers, testified that the reasonable value of the bridge destroyed, less salvage value, was $9553.20. Appellant also offered proof, which was excluded by the trial court, that the cost of tearing down and removing and replacing the old bridge was $5651.36. Damages should be limited to the fair and reasonable value of the bridge destroyed. See Stewart v. Sizemore, Ky., 306 S.W.2d 821. Had the bridge not been completely destroyed, then, of course, the measure of damages would have been the cost of restoration to its original condition. See Business Realty, Inc., v. Noah’s Dove Lodge No. 20, Ky., 375 S.W.2d 389. Appellant’s proof was properly limited to the value of the bridge destroyed.

At the conclusion of all of the evidence, appellant made a motion for a directed verdict, which motion was overruled by the court. After entry of judgment, appellant made a motion for judgment Non Obstante Veredicto under the provisions of CR 50.02. It is our opinion that the proof relative to liability is indisputable and there being no testimony as to damages, except that above referred to, the court should properly have sustained a motion for a directed verdict. Having failed to do so, the court should have, without question, sustained a motion for judgment Non Obstante Veredicto. Therefore, this action is remanded with directions to enter judgment for the plaintiff in the amount of $9553.20.

The judgment is reversed.

All concur.


author: CULLEN, Commissioner. OSBORNE, Judge

text:
    Russell BIDDLE, Appellant, v. Galen BIDDLE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 24, 1967.
    Rehearing Denied May 19, 1967.

      Elmer G. Berling, Jr., Florence, for appellant.
    John Lane Ackman, Williamstown, for appellee.
   CULLEN, Commissioner.

Appellee Galen Biddle, while operating his automobile at high speed, ran off the road on the wrong side (apparently because of the high speed) and hit an embankment, causing the car to overturn. His brother Russell, the appellant, who was a passenger in the car, was injured. Russell sued Galen for damages. The trial court entered summary judgment dismissing the complaint on the ground that the undisputed facts showed that Galen was drunk and Russell knew it, wherefore Russell assumed the risk as a matter of law. Russell has appealed, maintaining that although the “facts” were undisputed, different inferences could be drawn from them by reasonable minds, and therefore there existed a genuine issue of fact for submission to a jury.

In a period of around three hours immediately preceding the accident the two brothers, in each other’s company, each had imbibed “five or six” beers. In a deposition Russell was asked if he was feeling “pretty high” and responded that he wasn’t feeling “that high,” and that he “knew what I was doing.” He said that the beer affected him to “some degree. As I say, anybody will.” When they left the tavern his brother “was capable of driving the car” and “I wouldn’t say he was intoxicated.”

We think the evidence requires the conclusion that Galen was in fact intoxicated in the sense that his ability to operate an automobile properly was adversely affected and his judgment was materially impaired. Cf. Tate v. Borton, Ky., 272 S.W.2d 333. The best proof is found in the fact that he did not in fact operate his automobile properly nor did he exercise minimal good judgment. There remains, then, the question of whether Russell was chargeable with knowledge of Galen’s state of intoxication.

Considering all of the circumstances — the quantity of beer consumed and the period of time devoted to it; the close relationship of the two men which would be calculated to give each of them a special knowledge of the other’s reactions to alcohol consumption ; and the wreck resulting from Galen’s inability to operate his automobile safely— we conclude that reasonable men would have to agree that Russell was chargeable with knowledge that it was not safe to ride with Galen, and therefore Russell assumed the risk as a matter of law.

Our conclusion here is fully in accord with Sullivan v. Strong, Ky., 405 S.W.2d 298. It may be askedWhat about Jeffery v. Ray, Ky., 406 S.W.2d 838? We can say only that the sum of the circumstances present in Jeffery did not impress us as forcing a conclusion on which reasonable minds could not disagree. It must be remembered that a clearly marked line cannot be drawn to designate the place at which a question ceases to be one on which reasonable minds could disagree and becomes one on which reasonable minds could not disagree. The decision by a court that a particular question falls into one category or the other may in a close case be controlled by an indefinable, intangible, instinctive consciousness, sensitivity or feeling growing out of the accumulations of experience. The distinguishing factor between the case that goes to the jury and the one that is decided by the court as a matter of law often is not capable of being identified, probably because there is no single factor but rather a delicate mixture of interacting agents. As ⅛ so many areas of the law we are dealing with matters of degree, which sometimes results in decisions that cannot be distinguished from each other by any unit of measure.

We do not say that six beers are too many but four are not. We simply attempt to evaluate a set of circumstances with all of its inferences, nuance? and shadings.

The judgment is affirmed.

MILLIKEN and STEINFELD, JJ., concur in full.

HILL, MONTGOMERY and OSBORNE, JJ., concur in the result by separate opinion stating other reasons.

OSBORNE, Judge

(concurring).

I concur with the majority opinion herein, but I do not feel that it goes far enough. I believe that the case of Jeffery v. Ray, Ky., 406 S.W.2d 838 should be overruled. Starting with the case of Archer v. Bourne, 222 Ky. 268, 300 S.W. 604, which was decided in 1927, this court has uniformly held in a long line of cases that when the passenger drinks with the driver, who is later involved in a collision, the passenger is guilty of contributory negligence as a matter of law. These cases are: Irby v. Williams, 313 Ky. 353, 231 S.W.2d 1; Lewis v. Perkins, 313 Ky. 847, 233 S.W.2d 984; Kavanaugh v. Myers’ Adm’x, Ky., 246 S.W.2d 451; and Smith’s Adm’r v. Smith, Ky., 269 S.W.2d 260.

The only departure from this rule is to be found in the Jeffery case. The majority opinion herein makes some attempt to distinguish the present case from the Jeffery case, when the only distinction that logically exists is that in the Jeffery case the driver consumed four beers whereas in the instant case he consumed five or six beers. Is this court to be placed in a position of holding that one is guilty of contributory negligence when he rides with a driver who has consumed five beers, but not negligent when he rides with one who has consumed only four. Apparently this is the position which we now occupy.

When a passenger drinks with the driver and a collision ensues it is my opinion he is negligent as a matter of law. It is futile and foolish for this court to stand at the bar with these people and try to guess at what point in the drinking schedule negligence sets in.

It is, therefore, my opinion that the Jeffery case was wrong and should be overruled.

HILL and MONTGOMERY, JJ., join.


text:
    Payne RICE d/b/a Payne Rice Construction Company, Payne Rice Construction Company and United States Fidelity & Guaranty Company, Appellants, v. Hollie CONLEY and Amax Petroleum Corporation, Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    As Modified on Denial of Rehearing May 12, 1967.

      J. K. Wells, Paintsville, for appellants.
    G. C. Perry, III, Paintsville, Earl Cooper, Salyersville, Robert L. Milby, Hamm, Taylor & Milby, London, for appellees.
   OSBORNE, Judge.

This is an appeal from the judgment of the Magoffin Circuit Court, which reversed in part and affirmed in part, the actions of the Kentucky Workmen’s Compensation Board. The facts of the case are somewhat complex, and we will, therefore, set them out with some degree of detail.

In November of 1963, Amax Petroleum Corporation was involved in the process of cleaning up an oil field. This involved pulling pipe and moving storage tanks. In order to secure the services of Payne Rice, his trucking equipment and his crew of men, Amax and Rice entered into the following agreement:

“November 7, 1963
This agreement made between Amax Petroleum Corporation and Payne Rice is covered by the following letter:
Amax Petroleum Corporation agrees to pay Payne Rice $1.85 per hour, per man for the taking up and hauling of pipe and connections, also the moving of 210 bbl. tanks.
Trucks and other equipment used on the project is to be at the going price per hour for this district. Payne Rice, himself, is to receive $2.50 per. hour for supervision and is to be paid for ohly the actual time spent on the job.
Payne Rice is to furnish all necessary' insurance and Workmen’s Compensation to cover all men and equipment hired or used on the job.”

On May 4, 1964, Rice hired Hollie Conley, the claimant herein, and put him to work in the field at $1.25 an hour. He paid Conley each week for his services. However, because of the nature of the work, Conley took directions from the employees of both Amax and Payne Rice. In Conley’s testimony in the Transcript of Evidence, page 40, question 22, he stated:

“Q. 22. By check. Now had you ever at any time been employed by Amax Petroleum ?
A. No, sir” (Tr., p. 40).

On August 12, 1964, Conley was injured while carrying a skid pole, which injuries were considered to be total and permanent. On October 15, 1964, he filed an application for adjustment of his claim with the Workmen’s Compensation Board, and named as respondents therein Payne Rice Construction Company and United States Fidelity & Guaranty Company. When the claim was first brought on for hearing on December 21, 1964, Payne Rice indicated that they would be contending that the plaintiff was working for Amax Petroleum Corporation rather than for Payne Rice. This is shown by the Affidavit of G. C. Perry, attorney for the plaintiff. Following this announcement, the plaintiff Hollie Conley moved the Board and was granted permission to make Amax Petroleum a party to the compensation action, for the reason that Payne Rice was denying liability and on January 22, 1965, the Board entered the following order:

“It is ordered by the Board that the plaintiff’s motion to amend application for adjustment of claim by adding additional defendant Amax Petroleum Company filed herein December 23, 1965, be and the same is sustained and Amax Petroleum is made a party defendant.”

Following this order, and on February 15, 1965, Amax Petroleum entered a motion before the Workmen’s Compensation Board to be discharged as a party to the proceedings for the reason that the claimant was an employee of Payne Rice and not of Amax Petroleum. This question was passed to the merits of the case. The Board heard the case and on February 28, 1966, entered its order in which it found that the claimant was totally and permanently disabled, found that his average weekly wage Was $50.00 and stated that the only question remaining for determination by the Board was, “Which of the defendants is liable for Plaintiff’s compensation or whether both of them are?”

The Compensation Board, after reviewing the facts and noting that Hollie Conley worked under the directions of Raymond Conley, the head roust-about of Amax, determined that the question presented involved an application of the “loaned employee” doctrine. This doctrine is found in Larson’s works, The Law of Workmen’s Compensation, section 48, and reads as follows :

“When a general employer lends an employee to a special employer, the special employer becomes liable for Workmen’s Compensation only if (a) the employee had made a contract of hire expressed or implied with the special employer, (b) the work being done is essentially that of a special employer, (c) the special employer has the right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for Workmen’s Compensation.”

The Board applying the above doctrine concluded that as between the plaintiff and the two employers, the plaintiff was entitled to an award against both, and the Board expressed no opinion as to the respective rights or liabilities of Rice and Amax as against each other. This award was appealed to the Circuit Court and was there modified. The court held that under the contract of Rice and Amax, Rice should be primarily liable, since he, Rice, was required to procure and furnish Workmen’s Compensation for the men furnished to Amax. The court proceeded and held that Amax was to be secondarily liable and upon claimant’s failure to recover from Rice then Amax would be liable for the payments.

We are of the opinion that the judgment of the circuit court should be reversed to the extent that it holds Amax responsible for any portion of the payments. KRS 342.285 in which we adopted the “clearly erroneous” rule provides that the court may set aside an award if “the order, decision, or award is clearly erroneous on the basis of the reliable, probative and material evidence contained in the whole record.” The facts of the case clearly show that Conley was an employee of Payne Rice. The facts further show that Payne Rice had complied with the provisions of the Kentucky Workmen’s Compensation Act and that U.S.F. & G. was the compensation insurance carrier. Conley testified that he was not an employee of Amax and the record further shows he only made Amax a party to the claim because of a move on the part of Payne Rice to shed liability and place it upon Amax. It is understandable that Conley did not wish to be a victim of this controversy. In order for compensation to be payable, there must be a contract of hire between the employer and the employee, General Refractories Company, Inc. v. Henderson, 313 Ky. 613, 232 S.W.2d 846, and though it is not necessary for the contract of hiring to be in writing all of the elementary ingredients of a contract must be present. There was no such contract between Amax and Conley. The “loaned employee” doctrine was instituted for the protection of the employee and not for the purpose of allowing a bona fide employer to shift his responsibility to a fellow employer under whom he might be operating “An employee, for compensation purposes, cannot have an employer thrust upon him against his will or without his knowledge.” Larson, Vol. 1A, p. 713, sec. 48.10.

We are of the opinion that the motion to dismiss filed by Amax should have been sustained by the Board. To this extent, the judgment is reversed; in all other respects, it is affirmed.

All concur.

MILLIKEN, J., not sitting.


author: PALMORE, Judge.

text:
    J. P. PERRY, Appellant, v. J. M. McLEMORE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Rehearing Denied May 19, 1967.
    Hicks & Lovelace, Albany, for appellant;
    John A. Sloan, Albany, Harlan E. Judd, Burkesville, for appellee.
   PALMORE, Judge.

In 1959 and 1960 J. P. Perry and J. M. McLemore were jointly engaged in the acquisition and development of oil and gas interests in Cumberland County, Kentucky, during the course of which they purchased as tenants in common a 130-acre farm. Eventually they fell out, and Perry brought this suit against McLemore for a sale of the farm and division of the proceeds. . By counterclaim McLemore sought an accounting for various sums advanced by him to Perry and demanded recovery of $9,000 as damages for a fraud allegedly perpetrated upon him by Perry in the sale of a one-fourth working interest in the Earl Crawford leasehold.

Following a trial without a jury the court entered a judgment directing a sale of the farm and division of the proceeds and awarding McLemore $9,000 on his counterclaim. Perry appeals, submitting but one ground for reversal, which is that the trial court did not make findings of fact and conclusions of law as required by CR 52.01.

Perry did not take any action in the circuit court in the nature of a request for findings, either before or after entry of the judgment. He moved for a new trial on three grounds, (1) error in the admission of a deposition, (2) error in the admission of incompetent testimony, and (3) error in awarding McLemore $9,000 on his counterclaim, “representing the purchase price paid for an undivided ¼ interest in the Earl Crawford oil and gas leasehold, without providing for the diminution of the same, by the amount of the value of ½ of the oil runs and equipment, received by the Defendant, constituting unjust enrichment of the Defendant.” None of these grounds is pursued on the appeal.

The pertinent language of CR 52.01 is as follows:

“In all actions tried upon the facts without a jury * * * the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment * * *. Requests for findings are not necessary for purposes of review.”

For the reasons indicated in Clay’s Kentucky Practice, CR 52.01, Comment 3, the requirement of factual findings and conclusions of law is mandatory. The rule expressly provides that the requirement does not depend upon a request. Failure to comply with it is an error. Cf. Maher v. Hendrickson, 188 F.2d 700, 702 (7 Cir.1951); Fleming v. Rife, Ky., 328 S.W.2d 151 (1959); Standard Farm Stores v. Dixon, Ky., 339 S.W.2d 440 (1960). Nevertheless, it is not in all cáses that the error must or will result in a rémand of the proceedings for compliance.

“The duty of the trial court to make findings of fact should be strictly followed. But such findings are not a jurisdictional requirement of appeal which this court may not waive. Their purpose iá to aid appellate courts in reviewing the decision below. In cases where the record is so clear that the court does not need the aid of findings it may waive such a defect on the ground that the error is not substantial in the particular case. That is the situation here.” Hurwitz v. Hurwitz, 78 U.S.App.D.C. 66, 136 F.2d 796, 799, 148 A.L.R. 226, 229 (1943).

Had the judgment awarded Mc-Lemore any sum other than $9,000 it would not suffice for purposes of a review without findings of fact and conclusions of law, because an appellate court could have no way of determining from the record which of the several claims were allowed and to what extent. As it is, however, not only was there an identifiable claim in precisely that amount, and no other claim in the same amount, but Perry’s own motion for new trial identifies it as being the one allowed, and allowed in full, by the judgment. The relief sought by Perry’s complaint was granted, and McLemore’s demands for recovery by way of an accounting were in effect denied. Hence the record was sufficiently intelligible for an effective review and for purposes of res judicata.

The judgment is affirmed.

All concur.


author: GREENHILL, Justice. NORVELL, Justice.

text:
    J. & W. CORPORATION, Petitioner, v. M. A. BALL, Respondent.
    No. A-11629.
    Supreme Court of Texas.
    Jan. 11, 1967.
    Rehearing Denied March 1, 1967.
    Elliott & Nall, Ralph Elliott, Sherman, for petitioner.
    Charles E. Hughes, Sherman, for respondent.
   GREENHILL, Justice.

M. A. Ball was injured when the wheel of a truck being operated by an employee of the J. & W. Corporation rolled or spun over his left hand. Trial was to a jury which found defendant’s agent to have been negligent. The jury acquitted Ball of contributory negligence but found, among other things, that Ball had assumed the risk. Both parties filed motions for judgment, and the plaintiff’s motion was granted. The Court of Civil Appeals affirmed. 404 S.W.2d 616.

The defendant corporation operated the Texoma Truck Stop in Denison, Texas. It sold fuel for trucks, repaired flat tires, and made minor repairs. The B & J Garage, a separate business, was located about 200 yards from the Truck Stop. The plaintiff Ball had worked at the garage for about six weeks and had bought it about three days before the accident. He slept at the garage and was available for work there or at the Truck Stop.

On the night in question, a truck pulled into the vicinity of the Truck Stop. The driver wanted to have his truck’s fan belt tightened and to have a tire repaired which was going flat. The driver then went to the B & J Garage to ask if “they” could repair his fan belt. Ball said that he could. The driver then turned the truck over to Billy Gilbert, an employee of the defendant Truck Stop, who set about to repair the tire. Meanwhile, Ball took his tools and walked over to the Truck Stop.

The vehicle involved was described as a tandem axle truck tractor with dual wheels on each side of each axle. As will be hereinafter discussed, the number and location of the wheels is not made clear. The truck tractor, here called the tractor, pulled a trailer loaded with brick. The flat was on a left-rear tire of the tractor. Apparently there were four wheels and tires at the left rear. The tires in tandem were about 10 inches wide and there was about 5 or 6 inches between the tires. Gilbert had backed the tractor and trailer into an enclosed “grease stall.” The axle of the tractor was too low for the use of a jack. Gilbert was therefore attempting to back the tractor’s rear wheels onto two blocks of wood so a jack could be used. Each block consisted of two 2x6 inch pieces of wood nailed together, thus making a 4 x 6. They were about two feet long. The top piece was a little shorter to give the blocks a slant upward. Gilbert had placed his 15-year-old stepson, Bobby Harvey, on a small step ladder along the wall of the grease stall to assist him. Gilbert watched Bobby in the rear view mirror, and Bobby was to signal Gilbert when the wheels were on the blocks. Gilbert had made one unsuccessful attempt to back the wheels onto the blocks (the blocks had slipped in an effort to effect traction against the tire) when the plaintiff Ball volunteered to help.

When Ball arrived at the Truck Stop and in the vicinity of the truck, he put his tools down in front of the cab of the tractor. He was to begin work on the fan belt when Gilbert got the wheels on the blocks. Up to this point, the testimony of the witnesses was in agreement. After this point, the three witnesses were unable to agree.

Billy Gilbert, the defendant’s employee who was in the cab of the tractor, testified that he saw Ball with his tools at the front of the tractor. He told Ball that Ball could start with his repairs when the wheels were on the blocks. He did not ask Ball for help, did not know he was attempting to help, did not thereafter hear Ball shout at him to “hold it.” It was Gilbert’s practice not to use a “scotch block” or chock to check the wheels; and he was watching his stepson, Bobby Harvey, on the step ladder for assistance. The only other time Gilbert saw Ball was after Ball was hurt.

Bobby Harvey testified that all that was said between Ball and Gilbert was that Ball could start work on the fan belt when the truck was on the blocks. He stated that when Ball saw the wheels slipping against the block, he (Ball) grabbed the 4x6 block [not the scotch block or chock] and attempted to push it under the wheel from the rear. The truck came up on the blocks, and the plaintiff’s hand went under the wheel. The tire spun and caught plaintiff’s hand.

Ball testified that when he saw what Gilbert was trying to do, he told Gilbert he would help him. Ball said this conversation occurred when the two men were standing in front of the tractor. He said, “I told him I would help him, get in the truck and back it up on those blocks.” He admitted that Gilbert did not ask him for help. Ball testified that he picked up a scotch block which was on the floor. It was a piece of 4 x 4 wood about 18 inches long. He stooped down near the left-rear wheels of the tractor and held the block in his left hand. When the truck backed up on the blocks, Ball put the block in front of “the wheels.” It is not clear which wheels Ball referred to. At one place he said it was “the front left dual of the tractor”; i. e., in front of the forward wheels of the tandem. At another place he said it was the “front of the rear wheel.” Ball also testified that his hands were between the two left-rear wheels. There is no picture or drawing of the truck in evidence, and we are unable to get or to convey an accurate picture of the facts concerning the wheels. In any event, Ball said he hollered to Gilbert to “hold it.” Though Ball had squatted near the wheels, he thought Gilbert could see him; and he testified that “I just assumed he heard me when I hollered at him . . . hold it and I’ll scotch it for you.” He said, “It looked like he [Gilbert] was looking at me.” There was some noise in the grease room when the truck’s diesel motor was accelerated, but Ball said that the motor at this time was idling and he thought Gilbert would hear him. He said Gilbert had applied his brakes when he hollered at Gilbert to hold it when he attempted to put the block in front of “the wheels.” Suddenly, he said, the wheels spun and his hand and the block were carried under the wheel. At another place Ball testified that he supposed that the truck rolled back down and twisted the block and his hand under the tire. Ball’s hand was seriously injured.

It is difficult to ascertain from the Statement of Facts exactly what Ball did. He testified several times that it all happened so fast he did not really know what happened. When he was asked to demon--strate what he did, or to show on a blackboard where the wheels, the scotch block, the 4x6 blocks and the people were, he testified that he held the block “this a way,” put it under “like that,” and “I come down and put it here like this,” “by this wheel,” “about a foot over in between there,” and that he put the block “between both those wheels.” He did say that the truck had already been backed onto the blocks and had stopped, and that he had then shouted to Gilbert to “hold it” when he squatted, facing the left-rear tandem wheels, and shoved the scotch block with his left hand into the wheels. The wheels then spun and caught his hand, block and all. It is not clear whether the wheels spun forward or backward. Ball did not say which way it spun; Bobby Harvey said “backward.” Respondent Ball in his Reply Brief takes the position that it is immaterial which way the wheels moved.

Ball said he had done the same operation thousands of times. He thought it was necessary to do that [insert the block] “to keep it from rolling off those blocks.” He stated that “when you start back up on those blocks, they’ll scoot.” Ball said he did not think what he was doing was so dangerous. He was asked if it would not have been safer to slide the block into the wheels instead of placing it with his hands. He answered, “You can get hurt that way too”; that it would be just as dangerous to stick your hand “over there” as it would be to “scoot it in from the side.”

The jury found that immediately before the accident Ball shouted to Gilbert to stop the vehicle, but that Gilbert did not hear Ball; that Gilbert failed to listen for Ball’s shout but this was not negligence on Gilbert’s part. It found that Gilbert failed to keep a proper lookout for Ball and that this failure was a proximate cause; that Gilbert knew, or by the exercise of ordinary care should have known, that Ball was in a position of danger, and that Gilbert failed to warn- Ball of his dangerous situation; that this constituted negligence and proximate cause; that the plaintiff corporation operated a system for lifting vehicles which was dangerous to persons close by, and that this was negligence and a proximate cause.

On the contributory negligence issues, the jury found that the plaintiff Ball was not negligent in attempting to place the blocks next to the truck wheels under the circumstances; that Ball was not negligent in going near or about the rear of the truck on the occasion in question; and that the plaintiff did not fail to notify Gilbert that he was going to place the wooden block next to the truck wheels.

With regard to assumed risk, the jury found that Ball was an invitee on defendant’s premises, and we shall assume that he was. The jury further found that immediately before the accident, Ball was in a position of danger; that the plaintiff Ball' actually knew and realized the danger of attempting to place the blocks next to the truck wheels, and that the “plaintiff assumed the risk of danger, if any, in attempting to place the wooden blocks next to the truck wheels”; and that “the danger of the truck moving while attempting to place the blocks under the truck wheels was open and obvious . . .

This Court in McKee, General Contractor v. Patterson, 153 Tex. 517, 271 S.W.2d 391 (1954), clearly stated that there are two legal theories, wholly aside from the plaintiff’s own contributory negligence, for denying liability in a suit against an owner or occupier of land brought by an invitee for injuries. This Court there said, “One [of these two theories] rests on the judicial concept that there is no breach of any duty the landowner owes to, his invitees. The other arises qut of the doctrine of volenti non fit injuria — voluntary encountering of risk— which is regarded as a defense to all negligence actions. In this state both theories are recognized.” 271 S.W.2d at 393. These two legal theories were again explained in Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963).

The Court 'of Civil Appeals treated this case as a “no duty” case. It cited and relied upon Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.Sup.1963), which held that in “no duty” cases involving activities, the activity generally must be rigidly circumscribed and easily predictable. Also cited was McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940 (1956), a “no duty” case involving a limited amount of motion.

It is our opinion that the facts and the jury findings bring this case within the second of the two doctrines set out in McKee v. Patterson; i. e., that of volenti non fit injuria. The requirements for such a defense are (1) the plaintiff has knowledge of facts constituting a dangerous condition or activity; (2) he knows the condition or activity is dangerous; (3) he appreciates the nature or extent of the danger; and (4) he voluntarily exposes himself to this danger. It is our opinion that the jury findings set out above substantially fulfill these requirements. The jury found that immediately before the accident, Ball was in a position of danger; that he actually knew and realized the danger of attempting to place the blocks next to the truck wheels; and that he “assumed the risk of the danger, if any, in attempting to place the wooden blocks next to the truck wheels.”

It is true that there is no issue inquiring as to whether the plaintiff voluntarily exposed himself to the risk. On the other hand, it is undisputed that the plaintiff volunteered to do the acts which he performed. He admitted that Gilbert did not ask for his help and that he volunteered it. There was no objection to the issue which inquired whether “plaintiff assumed the risk of the danger.” Under the circumstances, it is our opinion that the finding that the plaintiff assumed the risk of the danger in attempting to place the wooden blocks next to the truck wheels is the equivalent of finding that Ball voluntarily exposed himself to the risk in attempting to place the wooden blocks next to the truck wheels.

Counsel for plaintiff Ball contends that this case is governed by cases such as Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953), and Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172 (1951). In each of those cases the plaintiff was aware of some danger but did not know or appreciate the particular danger. In the Triangle Motors case, the plaintiff appreciated the danger of falling through an open, unguarded elevator shaft and had lain down on the floor to avoid that danger. He did not know the elevator was above him. It was held that he did not assume the risk from which he was injured, being struck by the descending elevator. Similarly, in Wood v. Kane Boiler Works, the plaintiff knew of and appreciated certain dangers involved in his work, but his injury resulted from a defect about which he had no knowledge.

In this case, the plaintiff himself knew and realized that the wheels might move. He had told Gilbert to get in the truck and to back it up on the blocks. He testified that he attempted to put the scotch block or chock under the wheels “to keep it from rolling off those blocks.” The risk was that the wheels would move or come off the blocks. He testified that while he did not regard the operation as particularly dangerous, a person could get hurt either by “scooting the block under the wheels” or by placing the block there with his hand as he did. He realized that the blocks would be forcibly moved when the wheels moved. Referring to the 4x6 blocks, he testified that “when you start backing up on those blocks, they’ll scoot.” As to these blocks, the jury was entitled to believe the testimony of Bobby Harvey that the plaintiff Ball was attempting to push one of the 4x6 blocks under the wheel as it was moving in reverse when he was injured. Under the circumstances, it is our opinion that the evidence fairly supports the jury finding that Ball “actually knew and realized the danger of attempting to place the blocks next to the truck wheels,” and that he “assumed the danger, if any, in attempting to place the wooden blocks next to the truck wheels.” •

The jury having found that the plaintiff Ball was in a position of danger, that plaintiff did know, did appreciate and did assume the risk (voluntarily exposed himself to the risk), the plaintiff cannot recover. The trial court, therefore, should have granted the defendant’s motion for judgment on the verdict of the jury.

The judgments of the courts below are reversed, and judgment is here rendered that plaintiff take nothing.

ON MOTION FOR REHEARING

On motion for rehearing, counsel for Ball says that our opinion is in error in stating that there were no objections to the special issue inquiring as to whether the plaintiff “assumed the risk of the danger.” No objections were contained in the transcript sent to the Court of Civil Appeals and brought to this Court. Counsel now tenders a supplemental transcript under Rule 428, Texas Rules of Civil Procedure, showing his objections to the issue. His exceptions had been dictated to the court reporter and overruled by the trial court before argument to the jury; but they were not reduced to writing by the court reporter and filed until after our opinion had been handed down.

Rule 272, Texas Rules of Civil Procedure, authorizes the dictation of objections to the charge and their subsequent reduction to writing. The rule says that it will be sufficient if the written objections are “filed with the clerk in time to be included in the transcript.” [Emphasis added.] Assuming, without deciding, that we may consider these objections thus brought to our attention for the first time, the point is still not well taken. The objections did not relate to the submission of the conclusion that the plaintiff assumed the risk. Nor did they suggest that the inquiry should be whether the plaintiff voluntarily exposed himself to the risk. The objections made were that the submission of the issue on assumed risk would constitute a double submission of contributory negligence; would constitute a double submission of “open and obvious”; would serve to confuse the jury; and that there was no evidence, or in the alternative, insufficient evidence to support its submission.

The jury found that Ball actually knew and realized the danger of attempting to place the blocks next to the truck wheels; and we adhere to our opinion that the finding of the jury that Ball “assumed the risk of the danger ... in attempting to place the wooden blocks next to the truck wheels” is the legal equivalent to a finding that he voluntarily exposed himself to the risk.

The motion for rehearing is overruled.

NORVELL, Justice.

I concur. The tendered supplemental transcript comes too late. This Court cannot decide a case upon a different record than that filed in the Court of Civil Appeals.

SMITH, J., concurs in this opinion.