text:
    Robert HATFIELD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.
    William A. Watson, Robert J. Watson, Middlesboro, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   MONTGOMERY, Judge.

Robert Hatfield appeals from a judgment by which he was convicted of trafficking in alcoholic beverages in local option territory. He was fined $100 and sentenced to serve sixty days in jail. He contends that the court erred in the admission of certain testimony.

Jessie Partin testified to having purchased a half-pint of whisky from appellant on December 7, 1964. Before testifying about the purchase she was permitted on direct examination to testify, over objection, as follows:

“Q 5 Back in December, this year, did you decide you would assist the Middlesboro Police Department in making some purchases of alcoholic beverages from various people who you knew or believed were in the business of trafficking in alcoholic beverages in Middlesboro?
A I decided to do it myself.
Q 6 Why?
A Because they were selling my husband whiskey, and selling my sister whiskey. They have about got her crazy. She runs her kids off and won’t buy clothes for them and half the time they ain’t got nothing to eat.”

Appellant argues that the witness’ reasons for making the purchase are irrelevant and immaterial. The issue was whether appellant sold Jessie Partin alcoholic beverages in local option territory. It did not matter whether Jessie Partin bought whisky while on a crusade, for her own consumption, or for some other reason. Her reasons for buying where immaterial and should have been excluded. 20 Am.Jur., Evidence, Section 245, page 238. Certainly her statements were inflammatory and prejudicial. The admission of such testimony was reversible error.

On cross-examination the appellant testified, over objection, as follows:

“Q 1 Mr. Hatfield, you heard the police testify concerning your reputation?
A Yes, sir.
Q 2 Do you know what would give rise to such a conclusion by the police officers?
A Yes, sir, I have been previously convicted for trafficking in whiskey.”

He now urges that in the last answer he was required to give substantive testimony against himself. An examination of the question and answer reveals that the question and first part of his answer are harmless. The harmful portion of the answer is a voluntary statement by way of explanation which is not responsive to the question. In other words he talked too much. Consequently, he will not be heard to complain.

Appellant also complains that the reputation evidence related to a period twelve months prior to the date of indictment, January 15, 1965, instead of twelve months prior to the commission of the offense, December 7, 1964. Such testimony should be confined to the time of or a reasonable time preceding the commission of the offense. KRS 342.390; Sturgill v. Commonwealth, 242 Ky. 314, 46 S.W.2d 98. The variation in time here is not considered sufficiently prejudicial to constitute reversible error.

No merit is found in appellant’s argument that the half-pint of whisky introduced was not properly identified.

Judgment reversed.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. J. D. KITCHEN, Appellee.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.

      H. Rupert, Wilhoit, Wilhoit & Wilhoit, Grayson, for appellant.
    William R. Redwine, Sandy Hook, Ralph N. Walter, Nickell & Walter, West Liberty, for appellee.
   STEWART, Judge.

This appeal is by Kentucky Farm Bureau Mutual Insurance Company, hereinafter sometimes referred to as “Kentucky Farm,” from a judgment entered against it on the verdict of a jury in favor of J. D. Kitchen in the amount of $5130.13.

The sole question presented in this appeal is whether the operation by J. D. Kitchen of a 1956 Ford automobile, owned by his son, which was involved in an alleged hit-and-run accident, was at the time within the coverage of an automobile liability policy issued by Kentucky Farm.

The policy named appellee, J. D. Kitchen, as the insured and covered a 1953 Plymouth automobile. One of the provisions of the insuring agreement, which appellee seeks to invoke, was to the effect that its terms extended to “an automobile while temporarily used as a substitute for an insured automobile * * * when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction * *

An issue was joined on the question of whether appellee on the occasion of the accident, within the meaning of the policy, was temporarily using his son’s 1956 Ford as a substitute for the insured 1953 Plymouth. Appellant contends appellee failed to prove the fact of substitution so as to come within the protection of this provision of the policy. Furthermore, it maintains the evidence conclusively shows that the 1956 Ford owned by appellee’s son was “available for the regular use of the named insured” ; and that, for this reason, an exclusion in the policy, making the policy inapplicable under such kind of use, precluded any recovery under its insurance contract with appellee.

After overruling appellant’s motions for a directed verdict, the first of which was made after the completion of appellee’s testimony and the other, after all the evidence was in, the trial judge submitted the case to the jury. The jury returned the verdict hereinbefore mentioned. Subsequently, appellant’s motion for a judgment n. o. v. was filed and overruled, and this appeal followed.

Our consideration of the evidence in this case leads us to the conclusion that appellant’s position must be upheld, namely, that the 1956 Ford automobile, owned by the insured’s son and involved in the accident, was available for the regular use of appel-lee. We will now recite the pertinent facts in this connection.

Appellee’s own testimony reveals that, the latter part of 1961, he left his home in Elliott County and went to work at a location at or near Dayton, Ohio. His son then resided at Zenia, Ohio, where he was employed. Appellee did not take his own car; he drove to his new job in and kept with him his son’s car. He remained in Ohio at his work for something like three months and was thrown out of work just prior to Thanksgiving. He kept his son’s 1956 Ford with him the entire time he worked in Ohio, driving it at will to and from his job or to such places he chose to go.

He drove this 1956 Ford car back to his home after his job played out in Ohio. His reason for this trip, according to his testimony, was that his son believed he had the car sold. Appellee’s son later came down to Elliott County to see about the sale of his car. However, it was soon learned that the prospective buyer would not purchase the automobile; so that the son returned to his work in Ohio, leaving the car with its keys in his father’s possession.

In early January, 1962, appellee commenced working in Ashland. He and three of his neighbors agreed that each would rotate in furnishing daily transportation to the job and back to the home of each. Before it became appellee’s turn to provide a car, he bought a new battery and a new cable and installed them in his son’s Ford. On January 18, 1962, while he and his three neighbors were returning from their work in Ashland, an accident occurred in which one of the occupants was killed and ap-pellee and the other two were injured.

It was brought out that, during the period of time shown, appellee drove the 1956 Ford for any purpose he saw fit without asking his son’s permission. Nor did he ever at any time report to his son when he used the car. He was asked this question: “But it was here for your regular use?” His answer was: “Yeah, I could drive it if I wanted to.”

As pointed out in 7 Am.Jur.2d, Automobile Insurance, sec. 106, pp. 415-18, it must be determined from the facts of each case whether the automobile is “available for the regular use of the insured” within the meaning of the policy. Available is defined as “at one’s disposal,” “accessible,” “usable.” See Webster’s “New International Dictionary, Second Edition.”

In the instant case, appellee kept the 1956 Ford of his son continuously in his possession, and also freely used it, from the time he drove it to his job at or near Dayton, Ohio, until he had the accident on January 18, 1962, which wrecked it. This length of time covered approximately four and one-half months. When he and his three neighbors began working at Ashland, it appeared obvious that appellee intended to use indefinitely the 1956 Ford to provide his share of the transportation to and from their jobs. One does not ordinarily buy a battery and a cable, and install these accessories, unless he plans to make regular use of the car for which he acquired them. These acts seem to speak undeniably as to his purpose in this regard.

There is no evidence of substance in this case which can be said to establish that the 1956 Ford car, when the accident occurred, was then being driven as a substitute vehicle for the 1953 Plymouth. Furthermore, there is not a shred of proof that the insured vehicle was then withdrawn from service because of a breakdown or, for that matter, because of any other reason. On the contrary, the evidence compels the conclusion that appellee had resolved, a considerable period of time in advance, to use the 1956 Ford car regularly for the transportation needs of himself and his three neighbors on the long journey to and from Elliott County and Ashland. The fact that he got his son’s car in good running condition, plus the fact that he had continued driving it for an extensive period of time. brands as inconsistent his contention that he was temporarily using this car on the occasion of the accident.

In our opinion it has been conclusively shown that the 1956 Ford of appellee’s son was available to the insured for regular use; hence, under the applicable exclusionary provision of the policy, it was not covered by the insuring agreement. This holding negates any claim that the son’s car was used at any time as a temporary substitute for the 1953 Plymouth of the insured.

There are other assignments of error urged for a reversal of the judgment but, in view of the conclusion we have reached, we deem it unnecessary to discuss and resolve them.

Wherefore, the judgment is reversed with directions that a new one be entered dismissing the complaint.


author: PALMORE, Judge.

text:
    Joe VALLA et al., Appellants, v. PRESTON STREET ROAD WATER DISTRICT #1 OF JEFFERSON COUNTY, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.

      Herman E. Frick, Matt L. Garlove, Louisville, for appellants.
    Robert L. Sloss, Stuart E. Lampe, Eugene H. Alvey, William Davis, Hector E. Rose, Thomas L. Ray, Henry R. Heyburn, Ernest C. Pepples, Jr., Louisville, for appellees.
   PALMORE, Judge.

Joe Valla and others, as class representatives of the citizens, taxpayers and property owners of the City of Louisville, appeal from a judgment of the Jefferson Circuit Court declaring valid certain contracts pursuant to which Louisville Water Company (hereinafter called the water company) proposes to absorb Preston Street Road Water District No. 1 of Jefferson County, Kentucky (hereinafter called Preston District), and to purchase at a 12% premium all the outstanding revenue bonds of that and two other water districts.

The water company is a private corporation created in 1854 by legislative act. All of its common stock is owned by the City of Louisville, which also has the legal title to the company’s physical properties and will in the same manner receive title to the facilities of Preston District under the terms of the contract between Preston District and the water company. See Burkholder v. City of Louisville, Ky., 276 S.W.2d 29 (1955). The city is a party to the contract.

Its contract with Preston District obligates the water company to acquire $617,000 in outstanding revenue bonds of the district, all of which are held by Royal Neighbors of America, an Illinois corporation. Royal Neighbors also owns the outstanding revenue bonds, totalling $2,238,000, of two other water districts operating in Jefferson County, which we shall call the Auburndale and Louisville Extension districts. The water company plans at some time in the future to absorb the Auburndale and Louisville Extension districts, and it has contracted with Royal Neighbors to purchase the outstanding bonds of all three districts at $1,120 per $1,000 bond. These obligations carry various interest rates and mature annually over periods extending to 1986. The Preston District bonds will be cancelled. The Auburndale and Louisville Extension district bonds probably will be held as investments until those districts are absorbed by the water company, but may be sold if the company sees fit. According to expert testimony they will be a prudent investment at the contract price.

The funds necessary for the bond purchase from Royal Neighbors, being some $3,200,000, will be derived from a current $18,000,000 water revenue bond issue of the City of Louisville. The authority for this bond issue is the same ordinance approved in Burkholder v. City of Louisville, Ky., 276 S.W.2d 29 (1955).

The proof demonstrates beyond cavil that the proposed merger is essential to the achievement of a water supply system sufficient to the reasonably anticipated growth and development of the Louisville area. Indeed, we can take judicial notice that such a unification would seem indispensable to orderly planning and efficient, economical service. The most serious objections raised in this suit are of a technical nature.

The contract between the water company and Preston District expressly provides that the district’s customers are third party beneficiaries and shall he entitled to enforce its terms. Preston District itself agrees to effect a dissolution by petition to the Jefferson Circuit Court. This raises the first point in controversy: Is there any authority for the dissolution?

Preston District is a public corporation, sometimes ealled quasi-municipal, existing by virtue of KRS Chapter 74. There is no statute providing in so many words for the “dissolution” of such a corporation. It may be conceded without argument that the formation and dissolution of corporations, including municipal corporations, is a matter of legislative prerogative. Cf. Jewell v. City of Lake Louisvilla, Ky., 339 S.W.2d 169, 170 (1960). However, the appellees submit that under a reasonable construction of KRS 74.110 the county court does have statutory power to dissolve a water district, and we agree.

KRS 74.110 provides a method by which the “territorial limits of an established water district may be enlarged or diminished.” Appellants argue that diminution does not include extinction, but we perceive no reason why an unlimited power of territorial diminution cannot be exercised to the point of nothingness. And if so, surely a corporate dissolution would be no more than a normal, reasonable and necessary concomitant of such authority. We are not disposed to believe that the legislature ever intended or would intend the empty effigy of a corporate creature to be strung up throughout eternity on the end of an aimless technicality.

Commissioner of Fire District No. 12 v. Ziegenbalg, 16 N.J.Super. 607, 85 A.2d 223 (1951), cited by appellants, holds merely that when a statute directs a method of dissolution it cannot be accomplished in a different manner. The question before us in this case is whether the statute provides any method of dissolution. We hold that KRS 74.110 does authorize and prescribe the procedure for a dissolution if and when it is incident to a substantially complete territorial diminution.

The occasion for a complete territorial diminution of a water district once established as a going concern probably could never arise except in connection with or following a disposition of all its assets and an assumption or satisfaction of its liabilities. Under the contract in question all the assets of Preston District will be transferred to the city or the water company, and the water company will assume its liabilities (all of which, other than current items, are payable solely from future revenues). Appellants contend that Preston District has no authority to make such a contract. KRS 74.070 empowers its governing body to “make contracts for the water district with municipalities for a water supply * * * and do all acts necessary to earry on the work.” The district has no reason for existence but to secure for and to its patrons a water supply and distribution system. Preston District now purchases 90% of its water supply from the water company. The contract by which the city-owned water company agrees to assume the district’s function guarantees continued service and will result at once in annual savings of $200,000 to the district’s customers. In our opinion it comes within the purpose and purview of the authority granted by KRS 74.070.

KRS 74.290 empowers a water district to borrow money by issuing its revenue bonds. Subsection (2) of the statute prohibits bonds so issued from bearing a greater interest rate than 6%. Subsection (3) provides that “such bonds shall be negotiable and shall not be subject to taxation,” and further on in the same subsection this sentence appears: “The bonds shall not be negotiated on a basis to yield more than six percent.” Relying on the technical distinction between “issuing” and “negotiating” commercial paper, appellants take the position that this latter sentence has the effect of preventing Royal Neighbors from selling any of the water district bonds at a price that will encompass a yield of more than 6%. Granted that the purpose may already have been amply served by the interest limitation in subsection (2), we cannot believe that the legislature intended here to concern itself with anything other than the cost to the water district. What beneficial objective could be gained by restricting the price at which the buyer of bonds may sell them in the market place? Giving faith to the maxim that the legislature will be presumed not to have intended an absurd thing, we are of the opinion that the limitation in question applies only to the cost that the issuing district is permitted to pay for the use of the borrowed money.

The next argument is that the use of funds borrowed by the City of Louisville, through its $18,000,000 revenue bond issue, to finance the water company’s purchasing the outstanding bonds of the Auburndale and Louisville Extension districts constitutes either an obtaining or appropriation of money by the city for, or a loan of its credit to, the Auburndale and Louisville Extension districts in violation of Const. § 179. That the city can raise money for the water company, which it owns and operates, without violating this constitutional inhibition is not questioned, nor does it appear to have been questioned in Burkholder v. City of Louisville, Ky., 276 S.W.2d 29 (1955). Appellants contend that the city could not have purchased the bonds of these two water districts on their original issue and that there is no distinction between that and a purchase from an intermediate holder. Both of these theories are unsound, at least insofar as they relate solely to Const. § 179.

Const. § 177, which provides that the Commonwealth cannot give, pledge or lend its credit, is analogous to that portion of Const. § 179 which proscribes a city’s lending of its credit. In Industrial Develop. Auth. v. Eastern Ky. Reg. PI. Com’n, Ky., 332 S.W.2d 274 (1960), it was held that a loan of public money is not a pledge or loan of public credit. The purchase of bonds is a loan of money, not a loan of credit. The purchaser becomes a creditor, not a debtor. Id. at p. 278.

The restriction of Const. § 179 against obtaining or appropriating money for others applies to donations to projects from which no benefit will be received by the city or in which it may not independently engage. Cf. Board of Education v. City of Corbin, 301 Ky. 686, 192 S.W.2d 951 (1946); Kesselring v. City of Louisville, Ky., 257 S.W.2d 596 (1953). Quite aside from the question of whether it could legally do so, the city is neither appropriating nor donating money for or to the Auburndale and Louisville Extension districts. Even if the city were the first purchaser of their bonds, the transaction would amount to nothing more than a loan, and although a question might arise as to whether it satisfied the requirements of ICRS Chapter 58, it would not run afoul of Const. § 179.

We might go on to suggest several more reasons why the transaction does not involve Const. § 179, but one will do. The fact is that the raising of money by the city for the purpose of acquiring previously issued and outstanding bonds of the Auburn-dale and Louisville Extension districts cannot in any sense be “for” the two districts, for the plain reason that it will not benefit or affect either of them one way or the other. They have their money already. They will return the same principal and pay the same interest whether the bonds are held by Royal Neighbors or by the water company. This simply is not a case in which Const. § 179 is relevant.

The burden of the remaining arguments by appellants is that for several reasons the project is unfavorable from a business standpoint to the water company, is a “bad bargain,” and that its governing officers are therefore guilty of an abuse of discretion. No court should, and this court will not, commit the folly of matching business acumen with the thoroughly competent and informed individuals who planned and recommended the project in behalf of the city and water company and whose judgment appears to be so clearly supported by the evidence.

The judgment is affirmed.


author: MOREMEN, Chief Justice.

text:
    Dale HALL and Floyd Roberts, d/b/a Hall and Roberts Coal Co. et al., Appellants, v. Jona BANKS, Appellee.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.
    Willis W. Reeves, Reeves, Barret & Cooper, Hazard, for appellants.
    Ronald G. Polly, Whitesburg, for appellee.
   MOREMEN, Chief Justice.

Appellee’s husband, Howard Banks, was seriously injured in a coal mining accident when slate fell on him, broke his back and caused paralysis from the waist down while he was working within the course and scope of his employment for appellant, Hall and Roberts Coal Company. He filed claim before the Workmen’s Compensation Board which held that he had been permanently disabled and awarded him the sum of $13,-812.50. Banks died several years after the injury. He had been paid, at the time of his death, $8,357.86. Appellee, widow of Howard Banks, filed an application under KRS 342.111. This reads:

“When an employe, who has been awarded disability compensation by the Workmen’s Compensation Board, shall die as a result of such injury or occupational disease prior to the payment to him of the amount of the award, then the dependents of the deceased employee shall be allowed and paid all allowed and unpaid awards made to such employe. * * * ”

The Board dismissed appellee’s claim and said that although they “strongly suspected” that Banks died as a result of his injury or resulting complication, they concluded that since no medical testimony had been introduced which connected the death with the original injury, any award made would be based on mere surmise and conjecture and therefore would not be proper.

On appeal to the circuit court judgment was entered awarding the wife all allowed and unpaid awards which had been made to her husband. This judgment was entered because the trial court was of opinion that the undisputed testimony given by lay witnesses was sufficient to require that an award be made.

In proceedings before the Workmen’s Compensation Board in the instant case, the appellee established by testimony that her husband had been paralyzed from the waist down by the mine injury which left him in a painful and agonizing condition until his death. Two lay witnesses and Mrs. Banks vividly described Banks’ condition from the time of his release from the hospital after the injury until his death. Banks had suffered a broken back in the accident; following an operation the operative site refused to heal and remained an open sore until his death; his testicles burst immediately prior to his death; he was in a coma at his death. The import of the testimony was that Banks had slowly and painfully died from his injury.

The appellants did not attempt to prove by medical or lay witnesses that Banks’ death resulted from an intervening cause. No evidence was offered to dispute the testimony of appellee’s witnesses with regard to Banks’ condition. The appellant apparently based its case on the assumption that the appellee could not meet the burden of proving the causal relation between the injury and death without bringing in competent medical testimony.

It is conceded that all the evidence with regard to Banks’ condition after injury came from the testimony of lay witnesses. Although medical proof was used to establish Banks’ permanent disability in the first action before the Board, no medical testimony was available in this action because Banks had not seen a doctor within four months of his death and an autopsy was not performed.

Appellant contends that medical testimony is indispensable in proving the causal connection between the injury and death. This is not invariably so. In Hollinsworth v. Traubaugh, Ky., 268 S.W.2d 43, it was stated that there is no rule of law which requires a claimant in a workmen’s compensation case to prove beyond doubt by medical testimony that the accident was the cause of the employee’s death.

In the majority of cases medical testimony is necessary to establish the causal relationship between injury and death. Laymen certainly are not competent to make medical diagnoses, or to give conclusions which presume a knowledge of the medical arts. But when the circumstances in a given case clearly show that death was the natural and probable result of the injury, medical testimony, although desirable, is not essential. Thus, this Court upheld the Workmen’s Compensation Board’s award to a widow for her husband’s death although a panel of three doctors called upon to arbitrate refused to give a definite opinion on the cause of death. The only evidence to support the award was given by lay witnesses. Luzerne-Graham Mining Corp. v. Tanner, 314 Ky. 875, 238 S.W.2d 842.

The cause of death in the present case is manifest. An able-bodied man was severely injured in an accident which paralyzed half his body. There was substantial and uncontroverted testimony with respect to the gradual worsening of his condition as indicated by symptoms observable to the ordinary person. It was further established that no visible physical change in condition which could be attributed to a cause other than the accident occurred before death. Under these circumstances a finding that Banks’ death was not the result of the accident would be based on surmise and conj ecture.

We find it unnecessary to decide the question of whether Mrs. Banks’ testimony given before the Board was incompetent under KRS 421.210 known as the “dead man’s statute.” Since her material testimony was the same as that given by others we find its admission did not constitute prejudicial error. Three Point Coal Company v. Moses, 298 Ky. 868, 184 S.W.2d 242.

We are of opinion that the Board erred in concluding that it had no power to make the award without medical proof and that since the undisputed facts show that appellee should have recovered, the trial court was correct in entering judgment for appellee.

Judgment affirmed.


author: DAVIS, Commissioner.

text:
    Ralph LOBRED, Appellant, v. Oble MANN, Appellee.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.

      J. Walter Clements, Louisville, for appellant.
    Robert P. Hastings, O. Grant Bruton, Louisville, for appellee.
   DAVIS, Commissioner.

Obie Mann, appellee, obtained a jury verdict for $16,473 against appellant Ralph Lobred, based on appellee’s asserted personal injuries sustained when he was struck by an automobile driven by appellant. To reverse the judgment entered upon that verdict, the appellant makes four assignments of error: (1) appellee was guilty of contributory negligence as a matter of law; (2) the evidence did not warrant an instruction on permanent injury; (3) an erroneous instruction was given, and (4) the damages are so excessive as to reflect that the jury “ * * * was either misled by these enigmatic instructions, or motivated by reasons other than those inferable from the evidence.”

The subject accident occurred in Louisville on April 27, 1961, on Seventh Street near its intersection with Cedar Street. The time of the accident was shortly after 9:00 a. m.; the weather was clear and dry. Appellee, an employee of Louisville Gas & Electric Company (hereinafter L G & E), was a cable splicer, and on the occasion of the accident was engaged in his duties as such. With him oh the project were two fellow employees.

Seventh Street was a one-way street for south-bound traffic at the time of the accident. There were two driving lanes and two parking lanes on Seventh Street. In the performance of his duties appellee was required to open and enter a manhole, located between -the two westernmost lanes of Seventh Street; the white line which divided the two westernmost lanes intersected the site of the manhole. Prior to the accident a three panel guard device was placed just north of the manhole; this guard was constructed of tubular material from which were suspended three flags. The center section of the guard device was set at a substantially right angle to Seventh Street; the other two panels lay at approximate forty-five degree angles to the center panel, so as to partially enclose the area around the manhole. The open or mouth area of this guard was facing south-wardly. A two-wheeled trailer cart of L G & E was positioned just south and slightly west of the manhole.

According to appellee’s theory and evidence, before the accident the appellee had been down into the manhole, which was a comparatively shallow hole less than five feet in depth. He had withdrawn some cable from the hole and had returned to the street surface from the hole before he was hit. Appellee said that he was leaning over, within the guard rail, when one of his fellow employees shouted a warning “Watch out.” Nearly simultaneously with that warning appellant’s automobile, traveling south on Seventh Street at about 10 miles per hour, struck the guard rail. The ap-pellee was thrown forward against the two-wheel cart and allegedly injured.

The appellant testified that his vehicle did not strike the guard rail or appellee at all. However, there was evidence from a police officer that the right front of appellant’s car was slightly damaged, and yellow paint as if from the guard rail was observed on the car at the damaged point. There was no obstruction to appellant’s view of the guard rail as he approached it.

The appellant vigorously contends that the appellee was guilty of contributory negligence as a matter of law, and that the trial court should have directed a verdict absolving appellant of liability. This contention is rested on the fact that appellee admitted that when he came out of the hole onto the street he did not look toward the north. Since appellee knew that the normal flow of traffic would be coming from the north, and also knew that it was dangerous to work in a busy city street, it is reasoned that appellee convicts himself of contributory negligence. This argument overlooks the fact that appellee, and witnesses in his behalf, testified that appellee had already safely emerged from the hole, and was actually leaning over working on the cable before the accident. Assuming, without deciding that it constituted negligence for appellee to come up from the hole without looking to the north, we think it is patent that negligence in that regard had ceased after appellee safely gained his place on the street’s surface. The time interval, according to appellee’s evidence, between his returning to the street surface and the impact was of sufficient duration to permit a finding that no useful purpose would have been served by looking toward the north before coming out of the manhole. Lanzner v. Wentworth, Ky., 315 S.W.2d 622, cited by appellant, is not controlling here; basic factual differences between Lanzner and the case at bar readily distinguish the cases. Moreover, the Lanzner opinion deals with the matter of liability of an individual occupying an entirely different role from the one played by appellant in this accident. Appellant relies also on Clark v. Smitson, Ky., 346 S.W.2d 780; Allen v. Dillman, Ky., 249 S.W.2d 23; Jordan v. Clough, Ky., 313 S.W.2d 581, and Carlisle v. Reeves, Ky., 294 S.W.2d 74. We shall not undertake a detailed analysis and distinction of each of the cited cases, but do observe that we have carefully considered them and find them to be distinguishable on their facts from the instant case. The prime distinction rests in the fact that here the appellee was required to be in the dangerous position in order to perform his lawful duties. As early as Berry v. Irwin, 220 Ky. 708, 295 S.W. 1020, this court recognized that one whose duties required him to work in a street could not perform his work and keep a constant lookout for vehicles. Compare Robinson v. Meding, 2 Storey 578, 52 Del. 578, 163 A.2d 272, 82 A.L.R.2d 1176, and R. E. Gaddie, Inc. v. Evans, Ky., 394 S.W.2d 118 (Decided June 11, 1965). We hold that the appellee was not as a matter of law guilty of contributory negligence, even though he realized he was working in a dangerous area. To hold otherwise would create “open season” on every person whose legitimate duties require his being in a perilous place.

We think the evidence did warrant an instruction on permanent injury. The following excerpt from the testimony of an admittedly qualified doctor demonstrates the propriety of the permanent injury instruction :

(Dr. Twynam’s evidence, in part) :
“Q. 37. Now, doctor, is there, can you state whether or not this condition that you indicate Mr. Mann has, whether or not it is a permanent condition?
“A. It has been going on now for about thirty months and there hasn’t been much change in it in the past year, as I recall, and from those facts I believe that I would consider it permanent.”
* * * * * *
A to Q38. “ * * * I felt that he should have fifteen percent permanent partial disability.”

The appellant contends that there was an insufficient showing of impairment of ap-pellee’s earning capacity, and relies on Herndon v. Waldon, 243 Ky. 312, 47 S.W.2d 1047, and other cited cases of like import. Appellee testified, and was corroborated by medical and lay witnesses, that he had not been able to resume his normal duties as a cable splicer since the accident. He told of continuing disability to utilize his extremities in order to perform the somewhat strenuous tasks of a cable splicer. However, he has continued to work for L G & E in “light” work, requiring little or no physical exertion. His educational background is quite limited; his physical fitness for strenuous labor appears to be a fundamental requirement if he is to perform at his peak earning capacity. Consolidated Coach Corp. v. Wright, 231 Ky. 713, 22 S.W.2d 108; 22 Am.Jur.2d, Damages, §§ 92-94, pp. 134-139. The jury was entitled to evaluate the conflicting medical testimony. It is our view that the evidence was sufficiently positive and satisfactory to import reasonable certainty of permanent injury. A conclusive showing is not required. Ingram v. Galliher, Ky., 309 S.W.2d 763.

The third asserted error relates to “double” damages because the jury was not instructed that any award for permanent impairment of earning power should be computed from the time following the period for which “lost time” damages were allowed. The complaint would be meritorious had not an appropriate remittitur been made. A. L. Dodd Trucking Service v. Ramey, 302 Ky. 116, 194 S.W.2d 84. The criticized instruction authorized the jury to find $470 for loss of time. The appellee made timely offer of remittitur of $470, and the trial court entered judgment for $16,003 — the amount of the verdict less the remittitur of $470. This cured the error, since appellant cannot claim he has been required to respond in double damages. CR 61.01.

The final assault on the judgment is premised on the asserted excessive damages. There is substantial medical testimony that appellee had some pre-existing compressive fractures of the spine. However, the medical testimony positively shows that the injury sustained in the accident did not aggravate these pre-existing conditions. Yet appellee showed that he had worked regularly at strenuous labor prior to the accident, but that he has not been able to do strenuous work at any time since. There was medical evidence, as above noted, indicating that appellee will permanently endure partial disability as the result of this accident. There was medical evidence to the contrary. The jury elected to believe the evidence adduced for appellee — that evidence was of sufficient substantive value to support the verdict. Appellee was 45 years of age when the case was tried; his then life expectancy was more than 28 years. The amount of the verdict may appear liberal, but we are not able to say that it is of such magnitude as to strike the court at first blush as having been rendered as the result of passion or prejudice. Cf. Louisville & N. Railroad Co. v. Mattingly, Ky., 339 S.W.2d 155.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Harry YORK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.

      Daniel W. Davies, Davies & Hirschfeld, Newport, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant seeks reversal of a judgment sentencing him to prison upon his conviction of committing incest. He contends: The trial court prevented him from obtaining a fair trial by making inaccurate statements concerning the law governing the case; the court erred in permitting the former wife of the appellant to testify against him, and the court erred in failing to direct a verdict of acquittal.

After the parties had accepted the jury the trial judge made the following remarks:

“Ladies and gentlemen of the jury, as Mr. Davies has already indicated, an indictment is a formal method of accusing a person of a crime; it is not evidence of any kind against the accused and it does not create any presumption whatsoever, or any inference, of guilt. The law presumes the defendant to be innocent of any crime. Thus the defendant, although accused, comes into court with a clean slate, or as we say, with clean hands. The law permits nothing but the evidence presented before the jury to be considered. The presumption of innocence alone is sufficient to acquit a defendant unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt. The evidence consists of the sworn testimony of the witnesses; the exhibits which are offered in evidence and received by the court; all facts that may be admitted or stipulated by the attorneys, which may be judicially noted by the court as applicable; and any inference which you may draw from the instructions which you will receive at the conclusion of the case.
“Opening statements and arguments of counsel are not to be considered as evidence and are not to be considered by you in your deliberations. Any evidence to which an objection is sustained will not be considered by you, and anything that goes into the record but ultimately is ordered stricken from the record, you must not consider in your deliberations either. You are chosen to try the issue of facts presented in support of the allegations of the indictment, and also those that are submitted in support of the denial. You are to pursue this attitude without bias and prejudice to any party, and without regard to public opinion. The accused and the public expect you to give an unbiased, impartial verdict after you hear the evidence.
“If the accused is proven guilty beyond a reasonable doubt, say so; if he is proven innocent beyond a reasonable doubt you should say so, because society is the victor when justice is done, and that is what we want; it is not whether the defendant is guilty or not guilty, it is when justice is served that society is the victor.”

No objection was interposed to these remarks, no motion was made to discharge the jury and to continue the case nor were they presented as a basis for a new trial. See RCr 9.22 and 10.12; Young v. Commonwealth, Ky., 335 S.W.2d 949 and Watkins v. Commonwealth, Ky., 287 S.W.2d 416, 58 A.L.R.2d 804. Nevertheless, appellant urges that these remarks contained several statements which were so inaccurate and prejudicial that they prevented him from obtaining a fair trial. Because appellant’s contention raises the constitutional question of whether the conviction is void we have carefully considered the remarks in light of the entire record and have concluded that, although they are in part erroneous, they did not deprive him of a fair trial. We apply RCr 9.26 which in essence provides that a judgment in a criminal case will not be reversed unless, upon the consideration of the whole case, it appears the substantial rights of the accused have been prejudiced. Gossett v. Commonwealth, Ky., 302 S.W.2d 380; Ciatos v. Commonwealth, 298 Ky. 851, 184 S.W.2d 125.

It has been traditional in this state for the trial court to refrain from preliminary remarks and explanatory dissertations to the jury in connection with a particular case being tried or about to be tried. The example before us illustrates the wisdom of this policy. The trial court should confine its comments to matters of strict necessity.

Appellant contends that his former wife, Evelyn Schumann, should not have been permitted to testify against him because the information she divulged was a privileged communication within the meaning of KRS 421.210(1). The trial court permitted Mrs. Schumann to state that while she was married to appellant, she had seen him having sexual relations with his daughter Lucianne. A sufficient answer to appellant’s contention is that Mrs. Schumann’s testimony concerned her observations which were shown to be equally available to other persons who were residing in appellant’s home and, therefore, it was not privileged as being knowledge obtained by reason of the marital status. Gill v. Commonwealth, Ky., 374 S.W.2d 848.

In this character of case the uncorroborated testimony of the victim will sustain a conviction unless it is so improbable as to show it is false. Newsome v. Commonwealth, Ky., 274 S.W.2d 484. Appellant contends that under this rule the victims’ testimony in this case is so improbable and patently false that it will not sustain his conviction for incest. While there are some contradictions in the victims’ narration of the details of the alleged crime, both of appellant’s daughters, Lucianne and Eileen, testified unequivocably that their father had sexual intercourse with them and their testimony is corroborated by the aforementioned testimony of Mrs. Schumann. The testimony of these witnesses was amply sufficient to authorize the submission of the case to the jury and to sustain the conviction.

The judgment is affirmed.


author: HILL, Judge.

text:
    Mancel BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.
    Mancel Bell, pro se.
    Robert Matthews, Atty. Gen., Lloyd R. Cress, Asst. Atty. Gen., Frankfort, for ap-pellee.
   HILL, Judge.

This is an appeal from an order overruling appellant’s motion to vacate a judgment under RCr 11.42.

Appellant was charged with armed robbery under KRS 433.140 committed while he was on parole under a previous felony conviction. He was arraigned under the armed robbery charge on December 10, 1961, at which time he was represented by Ruben Hicks, attorney. Appellant testified at his RCr 11.42 hearing that this attorney was both “appointed for and employed by him.” After his plea of guilty was entered, the jury found him guilty and fixed his punishment at life in prison. Before he was sentenced on this conviction, he was returned to prison at LaGrange, Kentucky, to serve the remainder of his first sentence. After some months, he was returned to the Wayne Circuit Court for sentencing.

Appellant’s first contention that the judgment should be vacated on the ground of newly-discovered evidence is untenable. He seeks to use the evidence of an accomplice, Ralph Ping. It is reported Ping will now testify that he made a false statement to the prosecution. Newly-discovered evidence is not a ground for relief under RCr 11.42. Jennings v. Commonwealth, Ky., 380 S.W.2d 284 (1964) ; King v. Commonwealth, Ky., 387 S.W.2d 582 (1965). Appellant might have had a remedy under RCr 10.06; but, even so, it should have been asserted within one year from the date of the original judgment. Perkins v. Commonwealth, Ky., 382 S.W.2d 393 (1964). Since the judgment in this case became final in 1961 and motion to vacate was filed in July 1964, the newly-discovered evidence is untimely under the one-year limitation.

He next contends a plea of guilty was entered for him without his consent either by the commonwealth attorney or by his own attorney. The trial judge and attorney representing appellant testified that to the best of their memory appellant personally entered his plea voluntarily. The finding of the trial judge who heard appellant’s motion to vacate, a judge other than the one who entered the judgment of conviction, heard the conflicting evidence, if it may be dignified as conflicting and in so doing found against appellant. Such ruling should not be disturbed unless clearly erroneous.

Appellant further argues he was “mentally ill” at the time he was arraigned and convicted. This allegation is not sufficient. Obviously he has had no further mental illness. In Commonwealth v. Strickland, Ky., 375 S.W.2d 701, 703 (1964), this Court stated what the test should be in a case such as this•

“The terms ‘insane,’ ‘unsound mind,’ and ‘mental illness’ are too loose to serve as a reasonable test of whether a person is properly fit to plead or defend himself in a criminal proceeding. For this purpose, whatever may be the technical classification of his mental state, legally or medically, the test is whether he has substantial capacity to comprehend the nature and consequences of the proceeding pending against him and to participate rationally in his defense. Cf. 14 Am.Jur. 802 (Criminal Law § 45). It is not necessary that this determination be made by a jury.”

At the time of appellant’s trial and conviction Criminal Code of Practice, § 156 (old criminal code) was in effect. It provided that “[i]f the court shall be of opinion that there are reasonable grounds to believe that the defendant is insane, all proceedings in the trial shall be postponed until a jury be impaneled to inquire whether the defendant is of unsound mind * * This Court held that whether an inquest pursuant to this section shall be held rests in the sound discretion of the trial judge. Murrell v. Commonwealth, 291 Ky. 65, 163 S.W.2d 1 (1942).

We hold the allegation of “mental illness” was not sufficient; and that the trial judge did not have sufficient information of claimed “mental illness” to necessitate an inquiry.

It is next insisted appellant’s conviction resulted from “trickery.” Apparently this is founded on his assertion that his co-defendant, Ralph Ping, had made a statement implicating the appellant because of a promise of leniency. We find no substantial evidence to support this contention.

The final contention is that he had “inadequate” counsel. However, it should be noted that in appellant’s motion for vacation of judgment, he listed several grounds on which he felt he was entitled to relief, but a lack of effective representation by counsel at his original trial was not included. On this appeal, the appellant asserts for the first time that he was denied the right to effective counsel. In Kinmon v. Commonwealth, Ky., 383 S.W.2d 338, 340 (1964), which held that grounds not presented in the circuit court on a motion to vacate judgment would not be considered on appeal from a denial of the motion, this Court said:

“In his brief on appeal Kinmon claims a right to relief on the grounds that the evidence on which he was convicted was obtained by an illegal search, that he had ‘incompetent counsel who failed to properly represent him/ and that he ‘has been denied equal protection and due process of law.’ These grounds not having been presented in the motions below will not be considered here.”

Therefore, the issue of “inadequate” counsel should not be considered on appeal.

The order overruling motion to vacate judgment is affirmed.


text:
    Harry BALL et al., Appellants, v. James S. HELTON et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.
    Kelly Clore, Paris Swinford, Pineville, for appellants.
    Logan E. Patterson, Pineville, for ap-pellees.
   DAVIS, Commissioner.

The question presented here is whether the Bell County board of election commissioners exceeded its authority in naming precinct election officers in three precincts for the election to be held in Bell County-on November 2, 1965. The applicable statute is KRS 116.070. The appellants are two of three members of the Bell County board of election commissioners who named the questioned precinct election officers. The dissenting member of the board of election commissioners, James S. Helton, is one of the appellees.

The Republican executive committee for Bell County met September 11, 1965 and selected the names of eight persons as possible precinct officers for each of the thirty-two precincts in the county. The names of these persons were delivered to appellee James S. Helton, the Republican member of the board of election commissioners, on or before September 15, 1965.

The executive committee adopted a resolution at the September 11th meeting requesting the election commissioners to select the first two persons named in each of the lists. Evidence reflects that it had been a long standing custom in the county for the election commissioners to select as precinct officers the first two persons named in the lists. When the election commissioners convened to select the precinct officers ap-pellee Helton presented thirty-two lists of two persons per precinct. It appears that the two names so presented had been transcribed from the original lists of eight by appellee Helton and were the names of the first two persons on each list. However the names of eight persons per precinct were never presented to the full board of election commissioners.

In three of the precincts in Bell County the two appellant members of the board of election commissioners named precinct officers whose names had not been submitted on the “two-name” lists turned in by ap-pellee Helton. In the other twenty-nine precincts the persons submitted by Helton were named as precinct officers. The trial court adjudged that the appellants, acting as a majority of the election commission, had acted illegally in refusing to name the persons from the list of eight persons in each of the three precincts.

It is clear from KRS 116.070 that the election commissioners must name the precinct officers from the nominees submitted by the governing authority of an authorized political party if the nominees are properly and timely submitted. The pivotal question here is whether the lists were properly and timely presented. It is our view that they were not, and that the trial court erred in requiring the board of election commissioners to reconvene to select precinct officers from the lists of eight persons in the three precincts.

The basis for our ruling is that the delivery of the lists of eight to appellee Helton, as an individual member of the board of election commissioners, was not a designation in writing to the board of election commissioners of the eight names as required by the statute. Although the lists of eight names were handed to appellee Helton, the other commissioners never did have access to these lists. Failure of the executive committee to follow through to make certain that the lists were actually designated in writing to the board of election commissioners was failure to comply with the statute. A list of two names left the commission no discretion, if it was bound to name the two persons on the list. Such a practice would frustrate the purpose of the law and make the board of election commissioners a mere rubber stamp.

We recognize that the result in this case may seem harsh and overly technical. It is our view, however, that to approve the procedure followed here would deprive the board of election commissioners of any opportunity to exercise its proper functions. By virtue of KRS 116.050 the sheriff is substantially the chairman of the board of election commissioners. Delivery of the written lists to the sheriff, in his official capacity as chairman of the board, should be the minimum requirement for substantial compliance with KRS 116.070. Cf. Russell v. Rhea, 269 Ky. 138, 106 S.W.2d 148, in which delivery of a written list to- the chairman of the state board of election- commissioners was held sufficient.

The judgment is reversed with directions to enter an order denying the relief sought by the plaintiffs below.


author: CLAY, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Ruth C. CALVERT et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 5, 1965.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Joyce Ferris Nedde, Frankfort, Harold K. Huddleston, Elizabethtown, for appellant.
    Paul M. Lewis, Hatcher & Lewis, Eliza-bethtown, for appellees.
   CLAY, Commissioner.

In this condemnation case the Commonwealth raises the single question of whether the court improperly excluded the testimony of one of the Commonwealth’s witnesses relating to a comparable sale.

We will assume, without deciding, that the excluded testimony was competent and should have been admitted. The ruling of the court on this question could not have been prejudicial.

The purpose of this evidence was to justify the witness’ appraisal of the before value of the farm involved. With the exception of the owner, all of appellees’ witnesses appraised the property at approximately the same figure used by the Commonwealth’s witness (three of them gave a lower valuation). Since the parties were in practical agreement about the before value of the farm, we are at a loss to understand how the evidence of a comparable sale could have affected the controversy one way or the other. The question raised by the Commonwealth is academic.

The judgment is affirmed.


author: WALKER, Justice.

text:
    Raymond Remigio GARZA et al., Petitioners, v. Abelina ALVIAR et al., Respondents.
    No. A-10749.
    Supreme Court of Texas.
    Nov. 3, 1965.
    Rehearing Denied Dec. 1, 1965.

      Lloyd, Lloyd & Dean, Alice, Keys, Russell, Keys & Watson, Corpus Christi, for petitioners.
    Perkins, Floyd, Davis & Oden, Alice, for respondents.
   WALKER, Justice.

This is a personal injury action in which the trial court rendered judgment on the verdict for the defendants. The Court of Civil Appeals reversed such judgment and remanded the cause for a new trial, because it concluded that the evidence was factually insufficient to support the jury’s finding of contributory negligence. 387 S.W.2d 905. In our opinion this question was not raised in the trial court or presented by the plaintiffs’ brief in the Court of Civil Appeals.

Linda Alviar, a girl eleven years of age, was crossing Almond Street in Alice, Texas, when she was struck by an automobile owned by Remigio M. Garza and driven by his son, Raymond Garza. Suit was instituted by Linda’s father, individually and as next friend for his daughter, against the Garzas to recover damages for her injuries. The jury found that Almond Street had been designated as one-way street for south bound traffic only, and that the accident was proximately caused by the negligence of Raymond Garza in driving north thereon. It also concluded that Raymond was driving at an excessive rate of speed, but refused to find that this was a proximate cause of the accident. All other primary negligence issues were answered favorably to the defendants.

The jury acquitted Linda of any negligence in failing to keep a proper lookout for her own safety and in failing to yield the right of way to the automobile. It also determined that while she was negligent in failing to cross the street at a regular crosswalk, such negligence was not a proximate cause of the accident. In response to Special Issues Nos. 14, 15 and 16, the jury found: (14) that just before the accident Linda ran from immediately behind a soda water truck, and (15) that this was negligence and (16) a proximate cause of the accident. The judgment of the trial court rests upon these three findings.

Plaintiffs went to the Court of Civil Appeals with seven points of error. Points Nos. 1, 2, 3, 4 and 6 were stricken by the intermediate court upon motion of the defendants. Plaintiffs were then granted leave to amend their brief, but no amendment was filed. After further consideration, the Court of Civil Appeals concluded that Point No. 4 challenged the sufficiency of the evidence to support the finding in response to Special Issue No. 15 that Linda was negligent in running from immediately behind the truck just prior to the accident. According to its opinion, the Court of Civil Appeals found “that the evidence is insufficient to support the jury’s answer to issue number 15” and on the basis of that holding reversed the judgment of the district court and remanded the cause for a new trial.

A statement in a point of error, or in the opinion of one of our intermediate appellate courts, that the evidence is “insufficient” to support a finding by the trier of fact is often troublesome because of its ambiguity. It can mean that the evidence is legally insufficient, i.e., there is no evidence of probative force, to support the finding in question. When that contention is made, a question of law within our jurisdiction as well as that of the Courts of Civil Appeals is presented. In deciding that question, the appellate court must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. If a “no evidence” point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment is usually rendered for the appellant unless the interests of justice require another trial.

On the other hand, an assertion that the evidence is “insufficient” to support a finding of fact can mean that the evidence is factually insufficient, i.e., the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. When that contention is made at the appellate level, a question within the peculiar and conclusive factual jurisdiction of the Courts of Civil Appeals is presented. The intermediate court is required to consider all of the evidence in deciding the question. If the contention is sustained, the finding under attack may be set aside and a new trial ordered. Factual insufficiency of the evidence does not, however, authorize the court to disregard the finding entirely or make a contrary finding in entering final judgment for one of the parties. See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 359; Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.Law Rev. 803; Gulf, C. & S. F. Ry. Co. v. Deen, 158 Tex. 466, 312 S.W.2d 933, 159 Tex. 238, 317 S.W.2d 913; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Unless the context shows that the words were used in a different sense, references to the insufficiency of the evidence are usually construed to mean factual insufficiency. We are satisfied that this is the meaning attributed to plaintiffs’ Point No. 4 by the Court of Civil Appeals in the present case. The court stated that it had considered all of the evidence in passing on the point. It also remanded the cause for a new trial and said nothing to indicate that this was done in the interest of justice. In their answer to the application for writ of error, plaintiffs tacitly recognize that the Court of Civil Appeals was exercising its factual jurisdiction, for they insist that the Supreme Court is without power to review the ruling of the intermediate court on the sufficiency of the evidence. It is true that we have no jurisdiction to review the holding that the evidence is factually insufficient to support the answer to Special Issue No. 15, but we are authorized to determine whether the jurisdiction of the Court of Civil Appeals to decide that question was properly invoked.

Point No. 4 urged by plaintiffs in the Court of Civil Appeals reads as follows:

“The error of the trial court in overruling and in not sustaining plaintiffs’ motion to disregard the jury’s findings with respect to certain special issues.”

This and four other points were grouped in their brief, and the statement thereunder contains a rather full resumé of the evidence. In the course of the argument, plaintiffs took the position that Special Issues Nos. 14, 15 and 16 are evidentiary and should not have been submitted, and that the affirmative answers thereto will not support a judgment for the defendants. It was also pointed out that they had filed their motion to disregard the answers to these three issues because “there was insufficient support in the evidence to warrant the submission of such issues to the jury.” This is the only reference in the brief to the sufficiency of the evidence to support the answer to Special Issue No. 15.

As the basis for Point No. 4, plaintiffs referred in their brief to Paragraph V of the amended motion for new trial, which reads as follows:

“The court erred in overruling Plaintiffs’ motion to disregard the jury’s findings with respect to certain special issues, a copy of Plaintiffs’ motion to disregard the jury’s findings with respect to certain special issues being attached hereto and made a part hereof for all purposes.”

An assignment in these terms is too general to require or justify consideration of a point of error based thereon. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887. Even if that were not the case, the assignment of error as well as Point No. 4 and the argument thereunder are directed at the action of the trial court in overruling plaintiffs’ motion to disregard the jury’s findings. Under the provisions of Rule 301, Texas Rules of Civil Procedure, the trial court is authorized, upon motion and notice, to “disregard any Special Issue Jury Finding that has no support in the evidence.” The court may not, however, properly refuse to submit an issue or disregard the jury’s answer thereto merely because the evidence is factually insufficient to support the same.

A contention that an issue should not have been submitted, or that a finding of the jury should be disregarded, because of the insufficiency of the evidence is subject to only one construction. It can mean only that there is no evidence to warrant submission of the issue or support the jury’s finding. See McDonald v. New York Central Mutual Fire Ins. Co., Tex.Sup., 380 S.W.2d 545. Many contentions are presented by the assignment and point of error quoted above if we overlook their generality and consider plaintiffs’ motion to disregard, but they do not raise any question as to the factual sufficiency of the evidence to support the answer to Special Issue No. 15. The judgment of the trial court should not have been reversed on that ground.

We have examined plaintiffs’ other points of error in the Court of Civil Appeals. Several are not supported by proper assignments of error in the motion for new trial, and it was for this reason that the court sustained defendants’ motion to strike. The remainder of such points, if sustained, would require that the judgment of the trial court be reversed and rendered or modified and affirmed. These questions cannot be considered by us, because they have not been brought here by application for writ of error. See Calvert, Some Problems of Supreme Court Review, 21 Tex.Bar Jour. 75.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.


author: STEAKLEY, Justice.

text:
    Mary ISBELL, Petitioner, v. Annie ISBELL, Respondent.
    No. A-10728.
    Supreme Court of Texas.
    Nov. 3, 1965.
    Austin Guest, Clarksville, Moore & Lipscomb, Paris, for petitioner.
    B. F. Edwards, Pat C. Beadle, Clarks-ville, for respondent.
   STEAKLEY, Justice.

This is an action in trespass to try title. The trial court withdrew the case from the jury and rendered judgment that the plaintiff below, Mary Isbell, a widow, take nothing. The Court of Civil Appeals affirmed, 387 S.W.2d 456, and Mary Isbell is Petitioner here. The defendant below, and Respondent here, is Annie Isbell, also a widow.

Mary sought to recover an undivided one-sixth interest in two tracts of land. The common sources of title were stipulated. Mary introduced four subsequent deeds in evidence, and rested. Annie offered no evidence but moved for judgment, which motion was granted by the trial court. The four deeds which Mary introduced to establish her title to an undivided one-sixth interest are described in detail in the opinion of the Court of Civil Appeals. The fourth deed, dated September 8, 1961, was a conveyance by J. A. and Lizzie Isbell to Mary Isbell of “ * * * all of our undivided one-sixth (i/£) interest in and to * * *» two tracts of land identified as the Glass and Turner Surveys and described by metes and bounds. It is this interest which Mary seeks to recover in her suit. Deed No. 1, dated September 24, 1937, from the common source conveyed the Turner tract to Annie and Lizzie Isbell in undivided shares. Deed 2, dated March 30, 1929, from the common source conveyed the Glass tract to J. A. Isbell (husband of Lizzie) and J. D. Isbell (husband of Annie) in undivided shares. The problem of the case arises out of deed No. 3, dated April 20, 1946, by which J. A. and Lizzie Isbell conveyed to Annie Isbell, wife of J. D. Isbell deceased, “ * * * our undivided one-fourth interest in * * * ” two tracts of land not here involved and, as to the two tracts here involved:

* * * au 0f our undivided one-third (Vá) interest of, in and to * * ” the Glass Survey of 160 acres; “ * * also all our undivided one-third (1/3) interest of, in and to * * *” the Turner Survey of 273.2 acres.

It was the holding of the Court of Civil Appeals that deed No. 3 is ambiguous; that its terms implied that an undivided one-third interest constituted all the interest claimed by the grantors; and that Mary had the burden of showing that deed No. 3 did not convey the entire interest owned by J. A. and Lizzie Isbell, failing which she failed to prove her title. Our views are otherwise.

Under deeds No. 1 and No. 2, J. A. and Lizzie Isbell received undivided one-half interests in the two tracts of land and it is presumed that such ownership continued in the absence of evidence to the contrary. Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951); John Hancock Mutual Life Insurance Co. v. Bennett, 133 Tex. 450, 128 S.W.2d 791 (1939). Deed No. 3 on its face is a conveyance by J. A. and Lizzie Isbell to Annie Isbell of a one-third interest in the two tracts. It was the remaining one-sixth interest which was the subject of deed No. 4. The controlling consideration is the fact that deed No. 3 by its express terms conveyed a limited interest in the two tracts, namely, a one-third interest. Moreover, the description made no reference to a source of title or to a prior deed as was the case in Klein v. Humble Oil & Refining Co., 126 Tex. 450, 86 S.W.2d 1077 (1935). The whole case for ambiguity, and for the breaking down of Mary’s title, rests on the use of the word “all” in the description of the undivided one-third interests conveyed by deed No. 3. This is not a sufficient circumstance to rebut the presumption that J. A. and Lizzie Isbell owned undivided one-half interests in the two tracts of land. Whatever the reason for the use by the scrivener of the word “all” — whether ineptly or deliberately employed — the word as here used, and standing alone, does not render the conveyance ambiguous or create a presumption that the grantors owned no more than the undivided one-third interests conveyed. We hold that Mary established her title under the stipulated common sources and is entitled to recover on her count in trespass to try title since Annie made no proof of a superior title in herself or otherwise overcame Mary’s prima facie case. Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610 (1960).

The judgments of the trial court and of the Court of Civil Appeals are reversed, and the case is remanded to the trial court with instructions to enter judgment in accordance with this opinion.

      . The word “all” is erroneously omitted from this description in the opinion of the Court of Civil Appeals, 387 S.W.2d 456, 459.


author: MORRISON, Judge.

text:
    Floyd Lee BULLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 38595.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1965.
    Jouette M. Bonner, Jacksboro, for appellant.
    Patrick A. Myers, County Atty., Jacks-boro, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of $250.00.

The statement of facts is in narrative form. Officer Black testified that a 1960 white Ford ran a red light, nearly colliding with his police car, and that he gave pursuit and brought it to a halt. He identified appellant as the driver and stated that he was unsteady on his feet and “had to lean on his automobile to steady himself” and expressed the opinion that appellant was “drunk”.

Highway Patrolman Jackson testified that he, his partner, Burt, and Dr. Turner were in his patrol car when they came upon Officer Black who had stopped a 1960 white Ford, that he observed that appellant was unsteady on his feet, that his speech was not clear, that his eyes were glassy and that he had the odor of alcohol about his person.

Patrolman Burt corroborated his partner’s testimony and expressed the opinion that appellant was intoxicated.

The witness Turner testified that he followed a white 1960 or 1961 Ford for approximately five miles until he saw it where the officers had testified that appellant had been apprehended and that during this distance the white Ford had crossed the center stripe of the highway a dozen times and at times oncoming vehicles had to leave the highway in order to avoid being hit by the Ford.

Dr. Turner testified that he observed appellant on the occasion in question and “as he viewed him, he was drunk at the time.” He further testified that carbon monoxide would affect a person “in somewhat the way intoxicants would. * * * ”

Appellant’s wife testified that their automobile exuded excessive fumes.

Garageman Tilghman testified that appellant brought his Ford in for repair a few days after the day in question and that he found a “broken gasket in the front which * * * allowed excessive carbon monoxide fumes to enter the cab of the car.”

The jury chose to accept the testimony of the witnesses that appellant was intoxicated, and we find the evidence sufficient to support the conviction.

We have examined appellant’s contention that the complaint is defective and find no merit therein.

Objections to the charge may not be raised for the first time in a motion for new trial. Watson v. State, 162 Tex.Cr.R. 156, 282 S.W.2d 715.

Finding no reversible error appearing, the judgment is affirmed.


author: COLEMAN, Justice.

text:
    PHILLIPS PETROLEUM COMPANY, Appellant, v. John W. MECOM, Appellee.
    No. 14659.
    Court of Civil Appeals of Texas. Houston.
    Oct. 28, 1965.
    Rehearing Denied Nov. 18, 1965.
    Wm. J. Zeman, Lloyd G. Minter, Bartles-ville, Okl., E. H. Brown, Marion R. Froeh-lich, Houston, for appellant.

      Cecil N. Cook, W. C. Perry, Louis Paine, Jr., Houston, Butler, Binion, Rice, Cook & Knapp, Houston, of counsel, for appellee.
   COLEMAN, Justice.

By this action appellant sought a judgment requiring appellee to abandon and plug a producing gas well located on leases owned by appellee within the City of Hitchcock, Texas. Essentially it is appellant’s theory that the drilling of a producing gas well by appellant, under a permit issued by the city, on a block created by a comprehensive drilling ordinance enacted by the city, which limited to one the number of wells which could be drilled on each block to each producing sand, gave appellant the vested right to be the sole producer of the gas underlying the lands within this block despite the action of the city in repealing this ordinance, passing a new ordinance, which did not designate blocks, and issuing a permit to appellee authorizing the drilling of a gas well on leases owned by him within this block. On a trial to the court without a jury, the relief sought was denied.

Appellant has concisely stated the chronology of events giving rise to this controversy as follows:

“This controversy arises under the Ordinances of the City of Hitchcock, Galveston County, Texas. The Northeast Hitchcock 9100-foot Frio Field was discovered by the Phillips Petroleum Company-Thompson, Trustee Well in 1957. In that same field Phillips, as operator, drilled and completed the Phillips-Davis D. Well in 1957; the Phillips-Delaney Well in 1958; the Phillips-Louise Well in 1958; the Phillips-Prets Well in 1958; and the Phillips-Huff Well in 1959. At this point in the development of the field, the City of Hitchcock was incorporated at an election held on January 30, 1960. Ordinance No. 4 was passed and became effective April 6, 1960. This ordinance was a comprehensive drilling ordinance, designed to regulate the drilling of all wells for oil and gas within the City of Hitchcock. Attached to and a part of said Ordinance as Exhibit ‘B,’ was a plat, dividing the City into blocks for the purpose of drilling gas wells. This plat showed the existing gas units, designated by letters, and gas blocks not drilled at the time the ordinance was passed were signated by numbers. After the passage of Ordinance No. 4, Phillips made application for and obtained the permit from the City to drill and operate the Sundstrom Unit, being Block 4 on Ex. ‘B’ of Ordinance No. 4. There is no controversy herein as to this Block 4 Unit.
“The City of Hitchcock passed Ordinance No. 11 amending Sections 6 and 9 of Ordinance No. 4 effective June 2, 1960.
“On April 5, 1961, the City of Hitchcock issued to Phillips Petroleum Company a permit to drill and operate a well on Block 5. This unit is referred to variously as Block 5, or as the Lasalo Unit, or as the Phillips Petroleum Company-Lasalo Unit. On August 17, 1961, Phillips Petroleum Company as operator completed a gas well in the NE Hitchcock 9100-foot Frio Field on this block 5 Unit.
“On August 27, 1962, the City of Hitchcock passed Ordinance No. 66. This is a comprehensive drilling ordinance to control the drilling of wells for oil and gas within the City of Hitchcock and amends and supersedes Ordinances 4 and 11. In many respects this Ordinance 66 is quite similar to Ordinances Nos. 4 and 11; but Ordinance No. 66 does not have any exhibits ‘A’ or ‘B’ to delineate drilling blocks, and nowhere contains any provisions delineating the area of a drilling block. By its terms (Section 31), Ordinance No. 66 purports to repeal all ordinances in conflict therewith.
“After the passage of Ordinance 66 the City of Hitchcock issued to Mecom the permit dated November 26, 1962, for the Mecom-Kipfer Well to be drilled on a unit of 30.6 acres of land carved out of the Block 5 Unit on which Phillips had previously completed the Lasalo Well. * * * In January, 1963, Mecom commenced operations on the.Mecom-Kipfer Well, and said well was completed as a gas well in the Northeast Hitchcock 9100-foot Frio Field.”

Ordinance No. 66 provided that the drilling ordinance passed April 6, 1960, “is expressly repealed in its entirety.” Among other provisions Ordinance No. 4 provided that it was unlawful to drill a gas well within the City without a city permit; that only one well could be drilled to each sand in each block created by the ordinance; that the “person holding the greater area of ground within the drilling block by ownership in fee or by lease or other contract authorizing the drilling and operation on land for oil or gas” should be granted the permit where more than one application is filed; that the permit should not be construed as a grant to occupy any land except by consent of the owner.

Ordinance No. 11 was enacted for the stated purpose of correcting typographical errors in certain sections of Ordinance No. 4, including Section No. 6. As amended this Section reads:

“Section 6. In the event an application for a permit for the drilling, completion and operation of a well for oil or gas shall be made by any person not owing or not holding oil and gas leases or drilling contracts from the owners of all lots, blocks or parcels of land included in or embraced within a drilling block as shown upon the maps attached to said Ordinance No. 4, marked Exhibits ‘A’ and ‘B/ and made a part thereof, a permit shall be issued to such applicant, his heirs, successors and assigns, only upon the following conditions, in addition to such other conditions as may be provided in other sections of this Ordinance, to wit:
“The applicant shall be free to enter into such contract and agreements with the owners of such other lots, blocks or tracts as he may be able to make. If agreements are not reached with all owners of lots, tracts and blocks within the drilling block, then the owners or owner of any given lot or lots, block or blocks, tract or tracts with whom permittee has failed to reach agreement shall have the right or option by notice to the permittee given in writing within thirty (30) days after the issuance of a permit for a well on the drilling block involved, either (1) to treat his interest as a working interest and contribute toward the actual costs and expense of drilling, completing and operating said well with all necessary appurtenances currently each month in the proportion that the number of square feet in area owned by him in the drilling block bears to the number of square feet embraced in said block and thereupon receive the same proportion of the oil or gas produced and saved from such well or its value at the well at the option of the permittee, and a like proportion of natural gas produced, saved and utilized or sold, or the value of the same at the well at the option of the permittee; or (2) to treat his interest as being leased to permittee, and receive a sum in cash equal, on an acreage basis, to the highest cash bonus per acre paid by the permittee for any lease covering lands within said drilling block; and to receive as a royalty, a share of all oil and gas produced and saved from such well equal to one-sixth (14) of the proportion of the whole quantity of oil so produced and saved that the number of square feet in the area owned by him bears to the number of square feet in such drilling block, or at the election of permittee to receive such proportion of the value at the well of the oil so produced, and to receive a like proportion of the gas and casinghead gas produced, saved and utilized or sold, or at the election of permittee the value at the well of such proportion of gas or casinghead gas produced, saved and utilized or sold. If any owner does not exercise the right and option above provided and give notice to the per-mittee within the period above provided, the obligation shall then be upon the permittee, his heirs, successors and assigns, to make settlement with such owner on the terms provided in option 2 above, providing for the payment of a one-sixth (i/,) royalty. If the owner of a lot or lots, block or blocks, tract or tracts, shall exercise option 1 above and treat his interest as a working interest, as therein provided, the permittee shall be entitled to a lien on such owner’s proportionate part of the oil, gas and casinghead gas or the value thereof to secure payment of such owner’s proportionate part of the cost and expense. If option 1 is exercised by the owner of any lot or lots, block or blocks, tract or tracts, such owner shall, within the time provided for notice of his election above set forth, file with the City Secretary a bond or other obligation executed by such owner as Principal and by an authorized surety company as Surety, in which such Principal and Surety agree, bind and obligate themselves to pay to the per-mittee, his heirs, successors and assigns, currently each month that proportion of the actual and necessary costs and expenses involved in the drilling, completion and operation of such well that the number of square feet embraced within the lot or lots, block or blocks, tract or tracts, of such owner shall bear to the total number of square feet in such drilling block, such bond to be approved by the Mayor and held by the City Secretary for the benefit of the beneficiaries therein. Permits shall be issued in all such cases upon the condition that the permittee, his heirs, successors and assigns, shall make settlement in accordance with the provisions hereof.” (Emphasis added.)

It will be noted that in the first paragraph the ordinance speaks of one not owning or not holding oil and gas leases, etc. In Section 7 the Ordinance provides that where applications for permits to drill in a particular block are filed by more than one applicant “that application shall be granted, if otherwise sufficient, which shall be made by the person holding the greater area of ground within the drilling block by ownership in fee or by lease or other contract authorizing the drilling and operation on land for oil or gas.” (Emphasis added.)

In Section 8, in which the requisites of the application for a permit are prescribed, there is a requirement that the application shall have attached to it “certified or photostatic copies of the deed, oil and gas lease or drilling contract with the owners of the land covering the lot, block or tracts, in said drilling block over which applicant has control for oil and gas purposes,” so that the application will show the proportion and parts of the drilling block “the applicant owns in fee or holds under lease or drilling contract from the owners.” (Emphasis added.)

Section 8 also provided that two bonds accompany the application, one of which “shall run to the City of Hitchcock, Texas, for so long as said well is producing for the benefit of all persons, * * * owning lots, blocks or tracts of land in said drilling block who have not executed * * * leases, drilling contracts, waivers or other form of contract under which applicant * * * js * * * authorized to operate the premises of said owner for the development and production of oil and gas” conditioned on the payment by applicant for oil and gas as required by the ordinance. (Emphasis added.) It is provided that the principal amount of this bond would be the sum of $50,000.00, but that it would be automatically reduced “by an amount in proportion to the difference between the total area of the drilling block and the total area owned by the applicant in fee or covering which he has leases from or drilling contracts with or waivers from the owners authorizing operations for the development and production of oil or gas.” (Emphasis added.)

Section 9 of the Ordinance provides that notice of the application for a permit be given by the applicant by registered mail to “each owner of leases of lots, blocks and tracts not owned by or under lease to the applicant, addressed to the last known address of such latid and lease owners. * * ”

Section 11 provides, in part: “No permit shall be granted or issued for the drilling of a well except upon ground owned by the applicant or held by him under oil and gas lease or drilling contract from the owner giving the owner’s permission or authority to drill the well, * *

Section 12 provides: “Neither this ordinance or any permit issued hereunder shall be interpreted to grant any right or license to the permittee to enter upon or occupy in any respect in drilling or production operations any land except by the written consent of the owner; nor shall it limit or prevent the free right of any lot owner to contract for the amount of royalty or cash to be paid with respect to his own land or other consideration therefor, or for damages, rights or privileges with respect thereto.” The ordinance then provides standards to be observed in drilling and producing oil and gas. These standards are clearly designed to minimize the dangers inherent in such operations in a populated locality. It is not questioned that the City acted well within its authority under its police powers in requiring these safety measures. The ordinance provided penalties for violations and contained a severability clause.

The trial court found Section 6 of Ordinance No. 4, as amended by Ordinance No. 11, “did not apply to oil and gas lease owners within any undrilled block designated therein (such as Mecom) who are not permittees under the Ordinance and did not make any provisions for such lease owners.” It concluded, as a matter of law, that such ordinance and, in particular, Section 6, as amended, is arbitrary, unreasonable and confiscatory, and, therefore, unconstitutional and void in that (1) it deprived Mecom of his property and rights other than by due process and the due course of the law of the land, contrary to the 14th Amendment of the Constitution of the United States of America and Article 1, Section 19, of the Constitution of the State of Texas, Vernon’s Ann.St.; (2) it denied him equal protection of the laws and equality of rights, contrary to the 14th Amendment of the Constitution of the United States of America and Article 1, Section 3 of the Constitution of the State of Texas; (3) it authorized Phillips to take Mecom’s property without adequate compensation being made and against his consent, contrary to the 14th Amendment to the Constitution of the United States of America and Article 1, Section 17 of the Constitution of the State of Texas.

It is apparent that the distinction between owners of lots, blocks and tracts and owners of mineral leases covering lots, blocks or tracts, was in the minds of the City Council when these ordinances were adopted. Under Section 6, as amended, the permittee was required to permit the lot owners to elect to join as a working interest owner in the drilling of a well by the permittee. If he did not so elect, the permittee was required to pay him a royalty. No provision was made for royalties to the owners of leases, nor was there a provision for compensating lease owners for the value of their leases or for the cost of acquiring them. The ordinance does not specifically require the permittee to allow other owners of leases to join as working interest owners. Since Ordinance No. 4, as amended, permitted Phillips to drill and produce gas from the block in question without making-provision for the protection of the correlative rights of Mecom, the owner of oil and gas leases in the same block, it was confiscatory and unreasonable, and, therefore, void as to Mecom. Railroad Commission of Texas v. Williams, 163 Tex. 370, 356 S.W.2d 131; Atlantic Refining Co. v. Railroad Commission of Texas, 162 Tex. 274, 346 S.W.2d 801; Railroad Commission of Texas v. Rowan Oil Co., 152 Tex. 439, 259 S.W.2d 173; Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941; Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A.L.R. 1107, on motion for rehearing 87 S.W.2d 1069, 101 A.L.R. 1393; Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475; Marrs v. City of Oxford, Cir. Ct. of App. 8th Cir., 32 F.2d 134, 67 A.L.R. 1336.

In any event, we have concluded that since Ordinance 66 repealed Ordinance 4, the City acted well within its power in granting a drilling permit to Mecom.

Ordinance 4, as amended, (a) did not provide for the transfer of title to any interest in land from any person affected by the ordinance into the permittee; (b) did not expressly provide for any pooling of rights or interests in land, minerals or mineral leases. It is clear that Phillips has acquired no title to the oil and gas underlying the land on which Mecom has oil and gas leases. Phillips Petroleum Co. v. Mecom, Tex.Civ.App., 375 S.W.2d 335; Mills v. Brown, 159 Tex. 110, 316 S.W.2d 720. Mecom refused to pool his leases on the terms offered and neither Mecom nor his lessors received any payments provided in the Ordinance. Phillips’ right to be the sole permittee in the block in question, as provided in Ordinance No. 4, was not a vested right, or a right in the nature of property. Ordinance No. 66 did not deprive Phillips of the right to continue production from its existing well. Nale v. Carroll, 155 Tex. 555, 289 S.W.2d 743; Ryan Consol. Petroleum Corp. v. Pickens, 155 Tex. 221, 285 S.W.2d 201; Dailey v. Railroad Commission, Tex.Civ.App., 133 S.W.2d 219, writ ref.; Texas Trading Co. et al. v. Stanolind Oil & Gas Co., Tex.Civ.App., 161 S.W.2d 1046, writ ref., w. o. m.

We are not in agreement with Phillips’ argument that Ordinance No. 4 necessarily resulted in forced pooling even if the word “owners” as used in Ordinance No. 11 should be held to include owners of leases. If the Ordinance be valid, lease owners refusing to pool voluntarily might have found themselves unable to produce oil or gas from the leased premises, or might have been forced to forfeit their leases because of their inability or unwillingness under the circumstances to comply with conditions contained in their leases. While under the Ordinance such lessees could not have drilled to a producing formation, for which a permit had already been granted, they might well have desired to drill to a different formation and might have been able to secure a permit under the terms of that Ordinance to do so. Section 4 of the Ordinance authorized the City to issue a permit for one well to each producing sand. The Ordinance does not necessarily effect forced pooling of the various leases in the block.

In the case of Reichert v. City of Hunter’s Creek Village, Tex.Civ.App., 345 S.W.2d 838, error ref., n. r. e., where the City amended its zoning ordinance to place certain property, formerly classified as business property, in a single family residence zone, this Court rejected the argument that before there can be a rezoning there must be a substantial change in conditions. The Court held that the fact situation presented at the time of the passage of the amenda-tory ordinance will be examined, regardless of what conditions were when the original ordinance was passed, and if the rezoning can be fairly said to bear a reasonable relation to the promotion of the health, morals or general welfare of the community, it will be upheld, otherwise it will not.

In the case of Winslow v. Zoning Board of City of Stamford, 143 Conn. 381, 122 A.2d 789, the Supreme Court of Errors of Connecticut said:

“* * * Furthermore, the legislative body ought to be free to amend its enactments, when, for example, the purpose is to revoke or modify provisions which time or application has shown to be unwise or subject to desirable change, or when, for added example, the body desires to correct a correctable injustice wrought by the existing ordinance.”

We think it clear that Ordinance No. 4, as amended, specifically Section 6 thereof, could reasonably be considered unwise, subject to desirable change, and productive of .injustice. Ordinance 66 can fairly be said to bear a reasonable relation to the promotion of the general welfare of the community.

The judgment of the trial court is affirmed.

WERLEIN, J., disqualified and not sitting.