author: MONTGOMERY, Judge.

text:
    Elizabeth BERRY et al., Appellants, v. Alonzo BERRY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    William T. Walton, MacDonald & Walton, Flemingsburg, for Janet Rascov.
    E. V. Holder; E. V. Holder, Jr., Vance-burg, for appellee.
   MONTGOMERY, Judge.

The custody of Opal Jean Berry, a seven-year-old female child, was awarded to Alonzo Berry, the father. Janet Rascov, with whom the child had been living, has appealed. She questions whether the father is suited for the trust and whether the transfer is in the best interest of the child.

Elizabeth Mason Berry and Alonzo Berry were married on February 2, 1956. At that time Elizabeth had a son, Michael Mason, born out of wedlock and fathered apparently by someone other than Alonzo. Opal Jean was born March 13, 1957.

On October 28, 1957, Elizabeth sued for divorce. She was granted a divorce on January 8, 1959. Custody of Opal Jean was awarded to the mother, with the father having the right of reasonable visitation and being directed to pay $10 per week for the child’s support.

The mother died April 1, 1963. Shortly before her death she requested Janet Ras-cov, unrelated, to take care of Opal Jean and suggested that she seek to be appointed as guardian of the child. Appellee says that he had had no notice of the proceeding by which Janet was appointed as guardian by the Lewis County Court. The child had since lived with Janet in a house trailer, also occupied by Michael and another young woman and her child.

Janet is 23 years old and a licensed practical nurse. Under her care Opal Jean had attended school and church regularly and seemed to have had good care. Janet expressed a desire to adopt the child but testified that she had been advised that this could not be done unless she was married. She also said that she had contemplated marriage “If I can find the right one.” She indicated an interest in someone. When asked, “What happened?”, she replied, “He was married.”

Appellee has remarried. He provides a home for his present wife and their two children by employment with an established business firm.

Appellee has been active in his efforts to regain the custody of Opal Jean. He, unsuccessfully, sought her custody by a habeas corpus proceeding in the Fleming Circuit Court. His attempt to have the guardianship appointment invalidated was unsuccessful in the Lewis County Court. On June 17, 1963, he moved to have redocketed the divorce action as to the question of custody; hence, the style of this proceeding. Janet sought to defeat the move by seeking prohibition, which was denied November 15, 1963, in an unreported opinion styled Rascov v. Sowards, Judge.

Testimony was heard on appellee’s motion in the latest proceeding, and the court awarded custody of the child to the father to be delivered on or before July 9, 1964. At the hearing appellee was called as if upon cross-examination. Janet, her mother, and Opal Jean’s teacher also testified in Janet’s behalf.

By KRS 405.020(1) the surviving parent, if suited to the trust, shall have the custody, nurture, and education of a minor child. The rule is that in a contest between a foster parent and a natural parent who has not surrendered custody, the natural parent has the superior right of custody which must prevail unless the natural parent is not suitable, fit, or capable-of making reasonably adequate provisions; for the child’s well-being. Rallihan v. Motschmann, 179 Ky. 180, 200 S.W. 358; Crase v. Shepherd, Ky., 240 S.W.2d 548; Middleton v. Middleton, Ky., 261 S.W.2d 640. The burden of showing unfitness is on: the person seeking to deprive the natural parent of custody. Rallihan v. Motschmann, 179 Ky. 180, 200 S.W. 358; Whalen: v. Boles, 314 Ky. 817, 236 S.W.2d 885, Bonilla v. Bonilla, Ky., 335 S.W.2d 572. If both parties are shown to be equally fit, the-natural parent shall prevail. Galilean: Children’s Home v. Ball, 308 Ky. 319, 214 S.W.2d 403.

The Chancellor correctly placed the-burden of showing unfitness on appellant.. She contends that she has shown unfitness, by reason of appellee’s lack of interest and failure to maintain support payments. Appellee had made his support payments satisfactorily until he had some difficulty with his ex-wife’s father shortly before her death. When he inquired about the child' after her mother’s death, Janet told him, “You ain’t got no relations to her.” Since-the mother’s death, appellee had seen the child only once. On the other hand he had steadfastly sought to regain custody of the child by various legal proceedings which may be considered as indicative of his-interest in the child. On this record no abuse of discretion by the Chancellor has. been shown.

Judgment affirmed.


source: Caselaw Access Project

author: MOREMEN, Chief Justice.

license: Public Domain

text:
    Henry KEARNEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    Fred Faulkner, Jr., Faulkner & Bertram, 'Campbellsville, for appellant.
    Robert Matthews, Atty. Gen., F. E. Wood, Asst. Atty. Gen., Lester Spalding, ■Commonwealth’s Atty., Lebanon, Fuller Harding, County Atty., Campbellsville, for ■appellee.
   MOREMEN, Chief Justice.

Appellant, Henry Kearney, was convicted for the rape of Sylvia Dotson and sentenced to confinement in the penitentiary for twenty years.

On this appeal it is contended that the ■verdict is unsupported by proof as to the •element of force or threatened violence and that the testimony of prosecutrix is incredible, improbable and at variance with the laws of common experience. It is therefore necessary for us to detail at some length the evidence produced.

The prosecutrix, Sylvia Dotson, and her sister, Mary Dotson, lived on a small farm in Taylor County. The former was eighteen years of age and the latter was twelve years of age at the time of the alleged offense. The appellant was forty-eight years of age. The evidence as a whole was very contradictory, and almost every statement advanced by one side was disputed by the other. A great deal of the testimony was devoted to impeachment of witnesses. Some of the witnesses were convicted felons.

The prosecutrix testified that on Tuesday, January 28, 1964, about 5 p. m. appellant, Kearney, accompanied by two companions, Phillip Ratliff and David Sharp (she knew Ratliff, but not the other two), walked into her house. The men had been drinking and were profane and abusive. They asked where her sister Mary was and she told them she had not returned home from school. David Sharp left to get Mary who was at a nearby house. Sylvia stated that Kearney then pointed a pistol at her and said “if you don’t go with me I am going to kill you.” All these statements were denied. When Mary returned with Sharp all five of them left the farm and drove to Campbellsville, spent a short time driving around, and then proceeded to the old Greensburg Road where they parked. At this time the prosecutrix testified the men exposed themselves and attempted forcibly to rape both of them. They stayed there for about an hour and a half and then left and went back to town to the residence of Pete Gertins and bought some wine. From there they went to Beard’s Service Station in order to obtain some gasoline. The prosecutrix, Sylvia, denied they ever went to the station, but all the other witnesses, including her sister Mary, the owner of the filling station, the attendants and other people who were present testified that the group was at the station ten or fifteen minutes. Mary testified that they went to the station, but did not get out of the automobile. Appellant, Kear-ney, testified that the girls got out of the automobile and went to the restroom, and this version was substantiated by the service station attendants and others who were present at the time. Let it be noted here that neither prosecutrix nor Mary raised a “hue or cry” and those who were present reported that the girls did not appear to be in distress at the time. From the service station they went to the home of Mrs. Smothers, apparently in search of a third woman. Mrs. Smothers, when approached by Mary Dotson, refused to go with them. The witnesses, other than prosecutrix, testified that it was at this point they went to the home of Pete Gertin to get some wine. There is a conflict of evidence as to whether another attempt at rape was made while they were parked in front of the Gertin house. From there they went to the home of appellant, Kearney, in Campbells-ville. Here again is conflict as to whether they were forced to go into the house. Mr. and Mrs. Dennis Clark, whose home is twenty to twenty-five feet away from Kearney’s house, testified that they were returning to their home at the time the group arrived. They said they noticed nothing unusual and no attempt was made by the girls to communicate with them. Sylvia Dotson testified that after they entered the house the doors were locked; that David Sharp took off Sylvia’s clothes and then doffed Mary’s clothes, and that the men took theirs off also. She testified on direct examination that Kearney took her into the bedroom and forced her to have intercourse with him under threat of using a pistol. Later, he repeated the act. She also testified that she was raped by another member of the party. They remained at appellant’s house for approximately four hours. Sylvia testified that during the latter part of the evening appellant shot at wine bottles and she was wounded either by a bullet or a shard of glass. The parties then went to the Rosary Hospital where she was released without treatment, the wound being very slight. The men were boisterous and noisy at the hospital and one of the attendants called the police who sent the men home. The police then took Sylvia and her sister to the home of a friend where they spent the night. There was no mention of the offense to the police. It was not until the next evening when the girls were being transported to their home by their brother that they related to anyone the story of the alleged rape. On the following day the prosecutrix’s parents brought her to town where a warrant for the arrest of the offenders was obtained.

In Holland v. Commonwealth, Ky., 272 S.W.2d 458, it was said that in cases of this type the evidence and the verdict should be scrutinized by the appellate court because the charge is easily made and difficult to disprove, and its very nature is liable to create natural indignation in the jurors’ minds.

In Carrier v. Commonwealth, Ky., 356 S.W.2d 752, where the testimony of the prosecutrix was uncorroborated, it was stated that if the story of the prosecutrix was intrinsically improbable or her actions before and after the time of the alleged offense were such as indicated, when considered in the light of the rules of ordinary behavior, that the related event or the offense charged did not occur — then the proof was not sufficient to support the verdict. As stated in the Holland case: “This rests upon the appellate court’s conclusion that the conviction was the result of passion and prejudice and was not based upon evidence having the quality of legal proof.”

It is true that in the case under consideration the prosecutrix’s testimony was corroborated (and also contradicted) by the testimony of her sister, but it appears to us that the action of both of these girls disproves their testimony. According to. their version, they were abducted and held prisoners for many hours. Although they had many opportunities to escape with safety they made no attempt so to do. The prosecutrix had many opportunities to raise a hue and cry, or to complain of the offense. Let us again name the times; they were: (1) on the occasion of the alleged abduction when a younger brother was. in the house; (2) when they went to the home of Mrs. Smothers and Mary went into the house and talked to her; (3) when they were at the service station; (4) when they arrived at appellant’s house and the next-door neighbors, Mr. and Mrs. Clark, were going into their house at the same time; (5) when they were at the hospital; (6) when the police took them to a friend’s house to spend the night; (7) during the day when they were at their friend’s house.

We have concluded that the prosecutrix’s behavior during the course of the evening was such as to indicate that she was not raped. We believe the verdict was flagrantly against the evidence adduced.

Judgment reversed.


author: WILLIAMS, Judge.

text:
    E. V. GREGORICH et al., Appellants, v. Shirley JONES Appellee. E. V. GREGORICH et al., Appellants, v. Mattie ISHAM et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.

      Hamm, Taylor & Milby, Boyd F. Taylor, London, for appellants.
    Cole & Cole, Charles G. Cole, Jr., Bar-bourville, R. L. Brown, Williamsburg, for appellee.
   WILLIAMS, Judge.

Appellee Shirley Jones was the driver of a car which ran off a highway in Knox County causing injuries to appellees Mattie Isham and James Jones, as well as to others who were passengers in the car. The three appellees and the other passengers sued appellant Steve Gregorich, a minor who allegedly caused appellee Jones to leave the highway, and appellant E. V. Gregorich, the owner of the car driven by Steve Gregorich. From adverse judgments the Gregoriches have appealed.

The appeal against Shirley Jones is here as a matter of right (amount in controversy exceeds $2,500). The appeal against Mattie Isham and James S. Jones is here on a motion for appeal which was granted. Both appeals are now consolidated.

During the course of taking discovery depositions the appellees agreed to furnish information concerning insurance, medical expenses, and days lost from work. Some of the information regarding medical expenses and lost days was given on the discovery depositions. Substantially all of the remaining information was given on the day the case was set for trial. The appellee Shirley Jones had very little knowledge concerning the insurance, but it mattered little since appellants did not recover on their counterclaim.

Although the appellants were entitled to the information withheld until the day of the trial, the refusal of a continuance cannot be said to be clearly erroneous in view of the information revealed by the depositions. There was no showing of prejudice to any substantial right of the appellants.

Secondly, reversible error is asserted because of misconduct of appellees’ counsel and one of the jurors by injecting the-Catholicism of the appellants into the case.. On cross-examination, a witness for the-appellants admitted she and the appellants; attended the Catholic Church. A juror who did not sign the verdict swore that another juror said in the presence of the-jury: “He (appellant E. V. Gregorich) is-a Catholic and has plenty of money; he is. also a ‘rub doctor’ and if you get a sore back he can take care of you.” The juror accused of the statement categorically denied by counter-affidavit that any suchi statement was made. Affidavits of five-other jurors supporting the accused juror were submitted.

An appellate court could hardly take judicial notice that the mere mention of the Catholicism of a party is prejudicial before a jury in southeastern Kentucky. While such evidence is irrelevant and objectionable, it is not reversible error by itself. Nor does the affidavit of a juror sufficiently indicate reversible error where six fellow jurors contradict that affidavit.. Moreover, the affidavit of a juror cannot be-used to impeach the verdict of a jury; it can be used to support a verdict. Turner v. Hall’s Adm’x, Ky., 252 S.W.2d 30 (1952).

Appellants’ instructions were accepted without objection by the appellees and given by the court. Appellants now complain of' the excessiveness of the awards to three-appellees.

Appellee Isham was awarded $2,434 for pain, suffering and loss of wages. The instructions authorized an award of $4,434. Appellee Isham suffered a fractured clavicle which required hospitalization for three days and immobilization of the clavicle by a surgical corset No medical expenses; were proved for her. The instructions authorized recovery only for physical and mental suffering not to exceed $4,000 and for loss of wages not to exceed $434.

Awarded $6,500 by the jury, appellee Shirley Jones was authorized to receive $9,813 by the instructions. Her nose bone was fractured up to the eye orbit, her left knee was lacerated and her left elbow had a compound fracture. Her doctor testified that she would probably have some permanent disability from the fractured left elbow. The extension of her arm was limited 15 degrees. Her flexion was limited five degrees. One doctor testified that she could expect some permanent disfigurement from her injuries. Her medical and lost wage expenses were $712, according to appellant, and $813, according to appellee. Presumably, the rest of the $6,500 award was for physical and mental suffering and permanent disability.

James Jones was awarded $1,000 by the jury for a fractured thumb. The appellants “are not prepared to say that his award is grossly excessive.”

In Herald v. Gross, Ky., 343 S.W.2d 831, this Court said, at page 834:

“ * * * in the absence of a satisfactory showing of what, if any, future effects of the injuries are reasonably probable we must judge the verdicts only on pain and suffering * *

Furthermore, the court enunciated again the test for permanent injuries outlined in Ingram v. Galliher, Ky., 309 S.W.2d 763, 766 (1958):

“ * * * Some injuries, such as the loss or injury of a member of the body, need little or no professional opinion to prove their permanency; but where the injuries are internal great reliance must be had upon that character of evidence. It is an established rule that to warrant a recovery for permanent injuries, the future effect of the injuries sustained must be shown with reasonable certainty. The evidence must be positive and satisfactory,, although it need not conclusively show the condition to be permanent. * * ”

The quality of the evidence is sufficient to show a reasonable probability of permanent injuries to Shirley Jones. The compensation for medical expenses and pain and suffering does not appear excessive as to Shirley Jones or Mattie Isham.

The judgments are affirmed.


author: DAVIS, Commissioner.

text:
    Tannie AKERS, Appellant, v. UNITED CARBON GAS COMPANY, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.

      ■Combs & May, Pikeville, for appellant.
    E. R. Hays, Pikeville, for appellee.
   DAVIS, Commissioner.

The appellant seeks to reverse the judgment of the circuit court which affirmed a ruling of the Workmen’s Compensation Board denying her claim for death benefits arising incident to the death of her husband. KRS, Ch. 342.

The sole question, as posed by the appellant, is whether the decision of the Board was supported by evidence of probative value.

The decedent, Birl Akers, had been an employee of United Carbon Gas Company for many years. His work was described as “field work” which included running tubing, pulling casing, digging ditches, loading and unloading pipe, and cleaning rights-of-way for pipelines.

Shortly after 7:00 a. m. July 27, 1962, Akers reported for work at the company’s warehouse near Pikeville. In company with two fellow employees he rode to Millard, where the three men erected a platform. After that task was accomplished the three workmen proceeded to Marrowbone Creek for the purpose of cleaning out around a gas well preparatory to painting.

In order to reach the site of their work, the three men were required to walk up a hill for several hundred feet. Akers was carrying a gallon can of paint and a paint brush as he walked up the hill. The three men paused “to catch their breath” after having traversed about five hundred feet up the grade, which was described as not severely steep.

After another short walk, Akers again stopped “to catch his breath.” The other two men went ahead; they had nearly completed cleaning out around the well when they heard Akers calling them. Responding to his call, they found him at a point farther up the hill than where they had left him. He was ill and pale. There was evidence that he had suffered nausea and had vomited. Akers was seated on the ground just at a gate. - Some significance is attributed to the gate, because one of the two doctors who treated Akers testified that the latter had told him that he had “lifted a gate” just before his seizure of illness. The fellow workmen of Akers expressed doubt that Akers had lifted the gate, since the gate was partially broken down, and they had passed through it without the necessity of lifting or opening it.

After resting a short while, Akers walked down the hill, assisted somewhat by one of his fellow workmen. He was taken to his home, and from there he went to the office of Dr. O. W. Thompson, Jr.

Dr. Thompson examined him in the office, and found Akers to be “cool, pale and sweaty”; the doctor noted that the lungs of the patient appeared clear, with “occasional skip beat on oscillation.” At that time Akers’ blood pressure was 110/80; he appeared anemic, and his hemoglobin count was 11 grams.

Later that day Akers was admitted to the hospital where Dr. Thompson re-examined him. The doctor reported the findings of the second examination as follows: “As far as physically it was the same, blood pressure was 110/40 and of course he had findings of heart murmur and hemoglobin had dropped to 9.25.” Akers then could “talk some,” according to Dr. Thompson’s account. Dr. Thompson felt that Akers was suffering gastro-intestinal hemorrhage.

Dr. Thompson prescribed a blood transfusion, as he feared Akers would bleed to death. The blood, however, caused congestive heart failure, from which Akers died on July 29th.

Dr. Thompson completed the death certificate whereon he ascribed the cause of Akers’ death to “(a) rheumatic heart disease . and congestive failure due to (b) gastro-intestinal hemorrhage.” When questioned as to whether the activities of Akers had been sufficient (on July 27th) to cause internal bleeding, Dr. Thompson answered, in part, “ * * * I would just have to say it is possible.” He added: “How much exertion it takes to make a man bleed I don’t know, I think any amount if he is about ready to bleed, the same way he can cough and rupture an ulcer, which I have seen happen.”

There was no specific finding of an ulcer affecting the decedent. No autopsy was performed. Dr. Thompson, as well as Dr. Clark (who was called in for consultation) expressed their belief that an ulcer was the most likely source of the internal hemorrhage; however, each of them conceded that neither could say with certainty where the source of the bleeding had been, nor could they tell what caused it

The two doctors were at variance as to whether an electrocardiogram reflected recent myocardial infarction. According to Dr. Thompson the EKG showed “first degree heart block, left ventricle enlargement, but no evidence of recent infarction.” On the other hand, Dr. Clark said the EKG “showed myocardial infarction that was acute, and also showed some old changes that were indicative of right ventricular enlargement.”

The general past medical history of decedent reflected that he had a known heart disease, although he had been able to continue working with no apparent difficulty from that source. Each of the doctors expressed the view that the heart condition would not have caused Akers’ death absent the hemorrhage.

The Compensation Board found that the proof failed to establish that the death of Birl Akers “resulted from any exertional factor” relating to his employment. So, the question as posed by appellant is not accurate; the question is not whether the Board’s finding is supported by substantial evidence, but whether the quantum of claimant’s proof is so clear-cut and convincing as to preclude the Board’s finding against the claimant. We think it is apparent that the Board quite properly declined to be persuaded by the claimant's proof. This it was authorized to do. Lee v. International Harvester Co., Ky., 373 S.W.2d 418; Columbus Mining Co. v. Childers, Ky., 265 S.W.2d 443, 445.

The judgment is affirmed.


author: CULLEN, Commissioner. STEWART, Judge

text:
    William Loraine MIX, Executor of the Estate of Will White, Deceased, Appellant, v. Mary Belle SMITH, Appellee.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.

      Benjamin Mazin, Louisville,' for appellant.
    David Kaplan, Stuart Lyon, Louisville, for appellee.
   CULLEN, Commissioner.

William Loraine Mix, Executor of the estate of Will White, appeals from a judgment of the Jefferson Circuit Court which dismissed his complaint and thereby refused to set aside a deed executed by Will White on January 16, 1962, in which he conveyed most of his estate to his niece, Mary Belle Smith.

Will White was 78 years of age when he executed the deed. For many years prior to this time he was a professional bondsman in Louisville, and consequently had spent a large amount of his time around the courts. His friends admired him for his business acumen and dignity.

Sometime during 1961 several friends began to notice a marked change in Will’s behavior. He dressed less carefully, his mind began to wander, and on a number of occasions he got lost in his own neighborhood. On January 3,1962, he was admitted to General Hospital where it was determined that he was suffering from chronic brain syndrome and hardening of the arteries or senility. He was released from the hospital on January 8 and returned to his home. On January 16 he executed the deed in question.

The appellant introduced several witnesses who testified that during 1961 Will White was often confused and often unable to converse coherently. This evidence was bolstered by the testimony of Will’s doctors that while he was in the hospital he was undernourished, disoriented, and unable to relate himself to his environment. We think this evidence was sufficient to have supported a finding that Will White did not have the requisite mental capacity to execute a deed on January 16, 1962.

■However, for the appellee, the attorney who drew the deed testified that on the occasion of its execution, and on another day between that day and January 8, he had talked to Will about his estate, and he was satisfied that Will had an adequate understanding of the effects and consequences of his acts. Other witnesses for the appellee testified that although Will had become feeble and showed signs of senility, still he was able to talk rationally to them on numerous occasions. We think this evidence was sufficient to support a finding that Will White had adequate mental capacity to execute the deed.

We cannot say that the chancellor’s finding, under the conflicting evidence, is clearly erroneous.

The appellant maintains that because of the confidential relationship that existed between appellee and Will White when the deed was executed appellee had the burden of showing that the procurement of the deed was free from fraud and undue influence and was fair and equitable, Hightower v. Hightower, Ky., 346 S.W.2d 748; and that she did not sustain that burden.

The burden referred to by the appellant is said to be that of going forward with the evidence. Kitts v. Kitts, Ky., 315 S.W.2d 617; Nagle v. Wakefield’s Adm’r, Ky., 263 S.W.2d 127; see also Been v. Jolly, Mo., 247 S.W.2d 840. We think this may be equated with the burden on the defendant in a res ipsa loquitur case. The rationale is that the circumstances of the transaction or event constitute circumstantial evidence which, if the defendant does not go forward with the evidence, will authorize a finding for the plaintiff, or if strong enough, may require a finding for the plaintiff. Lee v. Tucker, Ky., 365 S.W.2d 849; Bell & Koch, Inc. v. Stanley, Ky., 375 S.W.2d 696. If the circumstantial evidence is strong enough only to authorize a finding for the plaintiff, the fact that the defendant does not go forward with the evidence, or produces. only weak evidence, will not prevent a finding for him. (The purpose of a defendant’s going forward with the evidence in such a case is either to increase his chances of a favorable finding, or to endeavor to produce . evidence so completely overcoming the force of the circumstantial evidence as to require a finding for him.) On the other hand, if the circumstantial evidence is strong enough, unrebutted, to require a finding for the plaintiff, the defendant in order to authorize a finding in his favor must produce evidence weakening the force of the circumstantial evidence sufficiently to create an issue of fact, and in order to require a finding in his favor must produce evidence completely overcoming the force of the circumstantial evidence. Lee v. Tucker, Ky., 365 S.W.2d 849; Bell & Koch, Inc. v. Stanley, Ky., 375 S.W.2d 696.

In the instant case it is unnecessary for us to decide whether the circumstances sur-' rounding the execution of the deed, if unexplained, would have required a finding for the plaintiffs, because in our opinion the ■evidence produced by the defendant in any event weakened the force of the circumstantial evidence sufficiently to create an issue of fact. The primary evidence consisted of the testimony of the attorney who dfew the deed, that on his first visit to Will White’s home he talked with Will privately in Will’s bedroom, and Will voluntarily instructed him to make out the survivorship deed allowing the appellee to take the property at Will’s death. Also there was evidence that the appellee was the natural object of Will’s bounty because she had cared for him during his last years.

The trial court was entitled to resolve the issue of fact in favor of appellee.

The appellants complain that the chancellor allowed the appellee to use two witnesses at the trial in addition to those authorized by a pre-trial order. The testimony of these witnesses was merely cumulative and in our opinion there was no prejudice from permitting them to testify. Whether the court erred we need not decide.

The judgment is affirmed.

HILL and STEWART, JJ., dissenting.

STEWART, Judge

(dissenting).

I find myself unable to agree with the majority opinion. The great preponderance of the evidence introduced as to Will White’s mental competency, including his doctor’s testimony, established he was suffering from an acute condition of senility, and did not understand the consequences of his act, when he executed the deed. The chancellor found, almost solely upon the basis of the testimony of the attorney who drafted the deed, that Will White was rational when the conveyance was executed.

Although the opinion is transparently scant as to the testimony produced in respect to Will White’s mental ability to know what he was doing at the time, there is no evidence whatsoever in the opinion which points up the fact that the procurement of the deed was free from the exercise of undue influence.

In this case a confidential relationship existed. When Will White became helpless, his niece moved in with him and, shortly after he was released from the hospital, where, as the opinion states, “he was * * disoriented, and unable to relate himself to his invironment,” an attorney appears on the scene and the deed transaction was consummated.

According to Hightower v. Hightower, cited in the opinion, the burden was upon the niece, the beneficiary under the deed of conveyance, to show no undue influence was exerted to secure this deed from a helpless old man. As held in Fortney v. Elliott’s Adm’r., Ky., 273 S.W.2d 51, 54, this must be proven by clear and convincing evidence. There is a complete absence of evidence in this respect.

HILL, J., concurring.


author: STEWART, Judge.

text:
    Sidney RICE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.

      John C. Anggelis, Lexington, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Chas. W. Runyan, Asst. Atty. Gen., Victor Bradley, Jr., Commonwealth Atty., Georgetown, William Baldwin, County Atty., Paris, for appellee.
   STEWART, Judge.

Sidney Rice was convicted of the crime of wilfully and maliciously shooting at and wounding another with intent to kill and, being found guilty, was sentenced to the penitentiary for IS years. See KRS 435.170(1).

He appeals, urging these grounds for reversal: (1) The indictment should have been set aside because two persons sitting on the grand jury, that returned it, were illegal members; (2) the motion to dismiss the case on the claimed ground of double jeopardy should have been sustained; (3) the instructions were erroneous (a) in failing to provide that a unanimous verdict was required in order to convict and (b) iii not stating that, if there was reasonable doubt of the guilt of the accused, the jury should find him not guilty; (4) the comments of the trial judge (noted hereinafter) were prejudicial; and (S) the trial judge erred in not permitting a witness, who sat in the courtroom during the trial and was under the rule of separation, to testify.

The first complaint is the indictment should have been set aside because an employee of the Department of Highways and the wife of the county attorney sat on the grand jury that returned it We áre not informed why these two persons were ineligible to serve. On the other hand, they meet the test as to the basic qualifications laid down in KRS 29.025(1). See also KRS 29.020(2). In Lee v. Commonwealth, 210 Ky. 410, 276 S.W. 127, an indictment was not set aside because one not a resident of the county served on the grand jury.

The grand jury proceeding is not a trial. Such a body does nothing more than accuse a person of the offense he is alleged to have committed. The grand jury is merely required to find an indictment where they have received what they believe to be sufficient competent evidence to support it. See RCr 5.10. Even if the two who are objected to were ineligible to sit, which ineligibility is not established, this is not a valid reason for quashing the indictment in view of the requirement of KRS 29.005 that: “A grand jury shall consist of twelve persons, nine of whom concurring, may find an indictment.” We conclude this contention is without merit.

Appellant was convicted under the original indictment in the Bourbon Circuit Court and sentenced to the penitentiary in 1961. After serving two or more years, he applied for a writ of habeas corpus in the Oldham Circuit Court. The application was denied and this Court reversed this ruling in Rice v. Davis, Ky., 366 S.W.2d 153, with directions that the writ issue. The trial court then granted the writ and ordered appellant released unless the proper officer of .Bourbon County took him into custody for the benefit of the jurisdiction of the Bourbon Circuit Court.

Although the order did not expressly so provide, we may presume the part of it, relating to the possible resumption of jurisdiction over the case by the Bourbon Circuit Court, was issued pursuant to KRS 419.120. This statute contemplates another trial. Since the judgment of the Bourbon Circuit Court had been set aside by these voluntary proceedings of appellant, the only and next step to be. taken was that of a new trial; the parties were then in the same position as if there had been no trial at all. See Foster v. Commonwealth, Ky., 348 S.W.2d 759. The record in this case shows appellant was fpund guilty under the same indictment on which the other conviction was had. In Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757, a case of similar import, it was held one may not complain of former jeopardy when he procured the setting aside of the former judgment. The jeopardy plea here was properly rejected.

In respect to the instructions, two contentions are made. One is that the jury was not told its verdict must be unanimous; the other that the trial court failed to instruct as to reasonable doubt in conformity with RCr 9.56. The latter item is specifically covered by “Instruction No. 5.” The jury, however, was not informed their verdict must be agreed upon by all. RCr 9.82(1) requires the verdict to be unanimous.

Although in the case at bar, a perfunctory objection was interposed to all the instructions (but it is not necessary to raise any objection to the instructions at the time they are given), we said on this point in Hartsock v. Commonwealth, Ky., 382 S.W.2d 861, 864:

“ * ' * * it is imperative that claimed •errors in instructions, given or emitted, be presented to the trial court at some time, either by proper objection or by motion, and certainly no later than the motion for a new trial, before they may receive appellate review. * * * The underlying principle of the rule is to afford an opportunity to the trial court, before or during the trial or hearing, to rule upon the question raised. * * ”

As appellant failed to pursue a course of action which would enable the trial court to make a timely correction of the error he raises, he cannot now ask us to consider it for the first time.

Another contention is that the trial judge made caustic comments during the trial which it is asserted were so highly detrimental that the minds of the jury were influenced against appellant. Six instances are mentioned, and all of these arose from colloquies between the trial judge and appellant’s counsel when discussing certain points of evidence. We have carefully read the record and, on the whole, we are unable to detect any statements of the trial judge that went beyond the immediate subject matter under consideration.

The last assignment of error relates to the refusal of the trial court to allow a witness, who had been placed under the rule of separation, and then had sat in , the courtroom throughout most of the trial, to testify for appellant. Appellant had asked for the rule and, later, when he called Margaret Mach as a witness in his behalf, it was discovered she had been present in the courtroom and had heard the testimony of adverse witnesses. Then appellant wanted to be relieved of the binding effect ¡ of the rule. It was too late. The burden was upon him and his counsel to see that Margaret Mach did not disqualify herself by violating the rule.

While RCr 9.48, dealing with the separation of witnesses, is not mandatory, we are of the opinion that once the trial court puts the rule into effect it is binding upon the parties, subject, of course, to the discretion of the trial court as to whether a particular violation has been prejudicial. See Turner v. Commonwealth, 240 Ky. 536, 42 S.W.2d 716.

Wherefore, the judgment is affirmed.


author: PALMORE, Judge.

text:
    Howard NORRELL, Suing as a Taxpayer for Himself and Those Similarly Situated, Appellants, v. Paul JUDD, Chairman Ex Officio, et al., Appellees. CONSOLIDATED TELEVISION SERVICE, INC., a Kentucky Corp., etc., Appellants, v. James W. (Pete) FLYNN et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    See also Ky., 374 S.W.2d 192.
    William E. Johnson, Johnson & Burton, Frankfort, for appellants.
    Allen Prewitt, Jr., Ben B. Fowler, Dailey & Fowler, Frankfort, for appellees.
   PALMORE, Judge.

Two actions against the Frankfort Municipal Housing Commission, a public corporation, and Community Service, Inc., a nonprofit private corporation, have been consolidated on appeal to this court. The first suit was brought by Howard Norrell as a taxpayer of Frankfort and pertains to the Leestown housing project. The second suit was brought by Consolidated Television Service, Inc., a private corporation of which Norrell is president and chief stockholder, both in its individual right and as a taxpayer of Frankfort, and pertains to the Sutterlin housing project. Both projects, including the utility poles on their premises, are owned by the Commission.

Community Service, Inc., and Consolidated Television Service, Inc., are business competitors offering television cable service in the Frankfort area. For background information see Consolidated Television Service v. Leary, Ky., 382 S.W.2d 78 (1964), in which a contract giving Community an exclusive right to install and maintain its facilities on certain utility poles owned by the Electric and Water Plant Board of Frankfort was upheld.

In 1960 the Commission entered into a contract, terminable by either party on 90 days’ notice, giving Community nonexclusive permission to use the electric poles located in the Leestown project. Norrell brought suit to have that agreement set aside as void because Joe Pennington, an officer (executive director) of the Commission was also a member of Community’s board of directors, creating a conflict of interests in violation of KRS 80.080. On appeal to this court following a summary judgment of dismissal it was held that whether the contract came within the purview of KRS 80.080 depended on the proof to be adduced and, if so found, it would be void. Norrell v. Judd, Ky., 374 S.W.2d 192 (1964). Further proceedings in the circuit court resulted in a judgment declaring the contract void ab initio and enjoining Community from furnishing any service in the Leestown project as long as the conflict of interests continued.

The post-appeal Leestown judgment was entered on April 24, 1964. Meanwhile, the Commission had cancelled its contract with Community, had adopted uniform regulations under which any television cable service company or companies would be permitted, upon application, to use the poles and make connections to the housing units in the project, and had notified both Consolidated and the tenants in the project accordingly. These regulations, as had the original contract with Community, provided that no tenant should be required to pay an installation charge. They put Community and Consolidated on an equal footing except that Community’s equipment was already in place and its customer relationships established, as the result of the void contract.

The execution of this veronica by the Commission in withdrawing the contract and opening its project areas to all cable companies that might desire entry had revealed at once that the remedy sought in the original complaint, as amended, would be an empty victory. So Norrell tendered and was permitted to assert, prior to the judgment, a further amendment in which he alleged that Pennington was still serving both masters, Community was still being permitted to serve the Leestown'project, and it would be inequitable for Community to retain the advantage of the facilities it had installed unlawfully. Hence the prayer of the complaint was enlarged to include a declaration that Community be disentitled “to any benefits to be derived from any previous void contract or permit.”

Following the judgment of April 24, 1964, Pennington severed his connection with Community, and in response to a motion for a rule the circuit court on May 20, 1964, directed Community to notify all its subscribers in the Leestown project that its service would cease as of midnight on May 31, 1964, and that they would be free to choose between Community and Consolidated or to discontinue using any cable service whatever, as they saw fit. Community complied with this order.

Norrell appeals from the judgment and supplementary order of May 20, 1964, because they do not go far enough, in that they do not require Community to remove its facilities from the project and thus put the two companies in an equal competitive position.

In the Sutterlin case the Commission in 1962 gave Community an exclusive contract after receiving proposals from both companies in which Consolidated offered to serve customers in the project for 25<¡¡ per month less than the rate proposed by Community. That contract was attacked on the same ground as the Leestown contract and on the further ground of arbitrary action by the Commission in accepting a proposal less favorable to the tenants than that offered by Consolidated. In due course a judgment was entered on July 2, 1964, containing the same provisions as the Leestown judgment of April 24, 1964. Meanwhile the Commission had taken the same course of action with regard to the Sutterlin contract and the Sutterlin project as it had taken in the Leestown case, and Consolidated had amended its complaint to demand in substance that Community be required to remove its facilities from the Sutterlin proj ect.

The complaint in the Sutterlin case demanded not only the invalidation of Community’s contract but also the award of an exclusive contract to Consolidated. As the latter point is not pursued on this appeal it appears to have been abandoned in the wake of the Commission’s ultimate decision not to award an exclusive contract to anyone. Thus the questions to be decided in the two cases are the same.

We can and do understand the dissatisfaction of Mr. Norrell and his company at the manner in which their efforts to compete with Community have been frustrated. On the surface at least it would appear that they have received something less than fair treatment. But the courts cannot be the compleat St. George. There are some dragons beyond our rightful province to slay.

This court has been most liberal in its recognition of the right to maintain a taxpayer’s suit. Thus a business competitor has been permitted to maintain such an action to enjoin the exercise of an unlawful permit or franchise. City of Ashland v. Fannin, 271 Ky. 270, 111 S.W.2d 420 (1958); People’s Transit Co. v. Louisville Ry. Co., 220 Ky. 728, 295 S.W. 1055 (1927); Merchants’ Police & District Telegraph Co. v. Citizens’ Telephone Co., 123 Ky. 90, 93 S.W. 642, 29 K.L.R. 512 (1906). And though it has been held in some jurisdictions that the right is restricted to cases involving the illegal creation of debts or the wrongful expenditure of funds, it is settled here that the taxpayer need not show that the public will be damaged if the relief is denied. Kentucky Utilities Co. v. Ginsberg, 255 Ky. 148, 72 S.W.2d 738, 741 (1934). Nevertheless, from the very nature of a taxpayer’s suit there must be some reasonable relationship between the particular relief sought and the public interest. There is bound to be a limit to what can be done for an individual proceeding under the guise of an affronted taxpayer.

The prosecution of these lawsuits had a legitimate public objective separate and apart from the private aspirations of the instigators. Otherwise they could not have been maintained in the name of the taxpayers. But as we view it they have reached a parting of the ways. The public purpose was achieved when the relief originally asked was given; the contracts were stricken down, the municipal officers received an official precept which ought to and no doubt will from henceforth assure a proper course in this area of their activities, and the public right to nullify the unlawful acts of its agencies was vindicated. Only the personal interests of the individual plaintiffs have come up short of full requital.

We are asked to push back the hands of the clock so that Community will have to start even with Consolidated. We are asked to make Community root out wires and connections that it will have an instant right to restore. At this point the mask has been dropped and the suits assume a mien not only more private than public, but private altogether. The taxpayers could have no interest in or benefit from requiring Community to remove facilities it will have an immediate right to replace. Indeed, to all but the private competitors who were permitted entrance to the courts because they wore the taxpayers’ cloak such a prospect must appear fatuous.

The judgments are affirmed.

      . See Kelly, Piet & Co. v. Baltimore, 53 Md. 134, 142 (1880), holding that relief will be denied “when‘the controversy, reduced to its elementary facts, is one between rival tradesmen” for the city’s custom.

      . Cf. Thompson v. Haskell, 24 Okl. 70, 102 P. 700, 702 (1909).


text:
    Ora Lee WILLOUGHBY, Guardian of Sherman Willoughby, a Minor, Appellant, v. Robert C. STILZ and William A. Saunders, Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    W. Rodes Clay, Lexington, for appellant.
    Denney & Landrum, Edwin R. Denney, Charles Landrum, Jr., Lexington, for ap-pellees.
   STEWART, Judge.

This appeal is from a judgment rendered on a verdict finding defendants, appel-lees herein, not liable for the injuries- received by a nine-year-old boy when struck by an automobile owned by defendant, Robert C. Stilz, and driven by defendant, William A. Saunders.

The accident occurred at the intersection of North Broadway and Fourth Street in Lexington on May 25, 1961, between 8:00 and 8:15 a. m., while the boy, Sherman Willoughby, was on his way to school. North Broadway is 52 feet wide and has four lanes extending north and south; Fourth Street is 33 feet wide and runs east and west. In the center of the intersection of the two streets is an electric traffic signal that controls traffic by flashing green for “go” and red for “stop.”

A summary of the facts, about which there is little, if any, dispute, is that Sherman Willoughby, when hit by the motor vehicle, a station wagon, was in company with three other children, their ages ranging from eight to thirteen. Just before the mishap they had crossed from the east side of North Broadway and were at Fourth Street waiting and intending to continue south across that street along the west side of Broadway."

Meanwhile, the traffic signal being green for travel on Fourth Street, appellee, Saunders, according to his testimony, was driving the station wagon westwardly on that street at a rate of speed of approximately 25 miles per hour. He slowed down to 20 miles per hour after seeing the children. When appellee was a few feet from the crosswalk on Fourth Street, Sherman Willoughby ran out in front of the path of the station wagon “real fast” and came in contact with that vehicle.

It was shown by the testimony of appel-lee, Saunders, and also by that of two other witnesses, one who was traveling toward Saunders on Fourth Street and another who had stopped on Broadway because the light was red on that street, that the boy “angled” into the street in front of the station wagon three or four feet below the crosswalk; that the station wagon was then six or eight feet from him; that Saunders, the driver, applied his brakes immediately, leaving black skid marks three or four feet in length; that the boy was struck, knocked down and rolled about eight feet; and that the station wagon traveled three or four feet after the boy was hit.

Motions for a directed verdict, made by each of the parties, having been overruled, the case was submitted to the jury, and the jury found for appellees under instructions which are questioned in two respects. They are:

(1) The jury should not have been allowed to consider the question of negligence upon the part of the boy, and (2) the trial court failed to instruct properly as to the station wagon driver’s duty when it was apparent the boy was playing with other children on the street corner the driver was approaching.

It is maintained appellant neither objected to any of the instructions submitted nor specified any reason why any of them should not have been given. Hence, it is claimed appellant’s argument concerning any alleged errors in that respect should not now be considered. See CR 51.

However, as to the first point raised, the record reveals appellant’s counsel, although interposing no objection to any of the instructions, did offer two of his own which fully placed before the trial judge the contention that the jury should not have been told the injured boy could be guilty of negligence. The error asserted in submitting this instruction is that the evidence introduced failed to rebut the legal presumption of the incapacity of nine-year-old Sherman Willoughby to be held negligent.

This Court has uniformly ruled that a child under seven years of age is considered incapable of negligence, and one between the ages of seven and fourteen is; presumptively not charged with such, but in the latter age category the presumption may be rebutted by counter testimony. See Baker v. Sizemore, Ky., 338 S.W.2d 386. United Fuel Gas Co. v. Friend’s Adm’x., Ky., 270 S.W.2d 946, and Ward v. Music, Ky., 257 S.W.2d 516. We must examine the evidence to determine whether the hoy could.be held accountable for his acts.

Sherman Willoughby was nine years old at the time of the accident. Although he was an epileptic, three doctors who attended him after he was injured testified he appeared to be of normal or average intelligence and discretion. Virginia DeLong Root, the boy’s school teacher, testified he had been instructed by her about rules to be observed in crossing streets. She stated he was taught, among other things, to cross the street only on a green light, not to cross in the middle of the block but at a crosswalk, and to look both directions before proceeding into a street, even if it was a one-way street. She said his intelligence to respond to such instruction was as sufficient as that of any child of nine. His mother testified that she had repeatedly talked to him about the danger of automobiles when crossing the street and that he responded well to this advice. None of the foregoing testimony was rebutted.

Therefore, we believe the trial court properly ruled that this nine-year-old boy could be held responsible for his negligent acts as a matter of law, since the evidence was undisputed that he, a child of normal intelligence for his age, knew the danger of running against a red light into the street and beyond the crosswalk at a busy intersection. See Nett v. Zellars, Ky., 353 S.W.2d 379.

Out of an abundance of precaution, the trial judge under “Instruction No. 2” and “Instruction No. 3” allowed the jury to determine whether the boy was or was not negligent under the particular facts presented. The first of these instructions told the jury to find for appellees, if they believed Sherman Willoughby failed to exercise ordinary care for his own safety in crossing the street at the time and place recited in the evidence. “Instruction No. 3” defined “ordinary care,” in its application to Sherman Willoughby, as that degree of care usually exercised under the circumstances by careful and prudent boys of the age, intelligence and experience of Sherman Willoughby. See Travis v. Hay, Ky., 352 S.W.2d 209.

The point is raised that, as the driver of the station wagon approached the corner, the children were seen playing tag with each other near or at the edge of the sidewalk on Fourth Street. It is argued this fact should have alerted him to use extra precaution as he drew close to them, because a motorist must anticipate the tendency of young children to dart or run suddenly into the street. Thus, appellant insists that in not incorporating in “Instruction No. 1” this special duty of the driver of the station wagon, the trial court committed reversible error.

A short answer to this complaint is that appellant neither objected to “Instruction No. 1” as given nor brought to the attention of the trial judge, for inclusion in “Instruction No. 1,” any duties, other than those mentioned therein, that should have been imposed upon the driver of the station wagon. This he should have done. See CR 51.

Actually, appellee, Saunders, the driver, in the case at bar stated he did slow down to 20 miles per hour at the instant he saw the children. He was only three or four feet from the crosswalk when the boy suddenly dashed out in front of him. He immediately applied his brakes and it was only a matter of seconds before the boy was hit. Under the facts presented we know of nothing he could have done to avoid this accident.

Wherefore, the judgment is affirmed.


author: CLAY, Commissioner.

text:
    Bobby GORDON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 22, 1965.
    Rehearing Denied March 12, 1965.
    Robert B. Reed, Paducah, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. .Atty. Gen., Frankfort, J. Albert Jones, Commonwealth’s Atty., Pa-ducah, for appellee.
   CLAY, Commissioner.

Appellant was convicted of knowingly receiving stolen goods (under KRS 433.290) and sentenced to three years’ imprisonment. He contends he was entitled to a directed verdict of acquittal because he was entrapped. The cases relied upon by him are Scott v. Commonwealth, 303 Ky. 353, 197 S.W.2d 774, and York v. Commonwealth, 314 Ky. 445, 235 S.W.2d 1007.

This case is controlled by Alford v. Commonwealth, 240 Ky. 513, 42 S.W.2d 711, and Eisner v. Commonwealth, Ky., 375 S.W.2d 825. The offense of which appellant was convicted was knowingly receiving stolen goods. This crime was conceived, planned and perpetrated by him. The fact that public authorities were aware that a burglary was planned by other parties did not constitute an inducement for appellant to commit the crime with which he was charged.

The judgment is affirmed.


author: HILL, Judge.

text:
    Tim Pete PIPER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.

      Feb. 12, 1965.

      Alfred C. Ross, Greenville, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, Dan Cornette, Commonwealth Atty., Green-ville, for appellee.
   HILL, Judge.

This is an appeal from a verdict and judgment of the Muhlenberg Circuit Court finding the defendant, Tim Pete Piper, guilty of voluntary manslaughter and fixing his punishment at confinement in the state penitentiary for two years.

Appellant relies upon the following grounds for a reversal:

1. The court erred to the prejudice of the rights of the defendant in failing to give an instruction on involuntary manslaughter.

2. The court erred in overruling motion of defendant for a directed verdict at the close of the proof for the Commonwealth, and again at the close of the whole case.

For the purpose of reviewing this case on appeal, we need not determine whether the lower court erred in failing to instruct on involuntary manslaughter. Appellant did not object to the instructions at the time, nor did his motion and grounds raise this question. In Hartsock v. Commonwealth of Kentucky, Ky., 382 S.W.2d 861, interpreting RCr 9.22, 9.54 and 10.-12, this Court.said:

“ * * * However, in our consideration of the entire case we point out that we construe RCr 9.22, 9.54 and 10.12 as meaning that although it is-not necessary to raise objection to the instructions at the time they are given, it is imperative that claimed errors in instructions, given or omitted, be presented to the trial court at some time,, either by proper objection or by motion, and certainly no later than the motion for a new trial, before they may receive appellate review.”

Under this authority we cannot review-this question on appeal.

We cannot agree with the second contention of the appellant in which he urges that he was entitled to a directed verdict of acquittal at'the close of the evidence.

There was only one eye-witness to the killing and he testified there was no fighting immediately before the fatal shot was. fired; he said deceased was talking to him while looking for his shoe which, if true, was evidence that the fight was over. This-witness was a cousin to the wife of the deceased.

The appellant testified that he and the deceased were scuffling over the possession of the shotgun at the time it went off. The appellant also says that at the time the shotgun discharged he and the deceased were on the ground wrestling over the shotgun and the deceased was on top. The coroner testified there were no powder burns although he stated that there could have been powder burns on the clothing of the deceased but that blood had covered the part of the clothing where the shots entered and thereby obliterated any possible trace of powder burns. There was other testimony to indicate that the noise from the shot was muffled indicating that the parties were close together at the time the shot was fired.

The evidence for the appellant, taken with the physical facts and the photographs offered in evidence, somewhat fortifies the ■appellant’s contention. ^However, the jury saw all the witnesses and heard their testimony. Certainly the jury was in a more

favorable position to pass upon these disputed facts than this Court.

By the authority of Pennington v. Commonwealth, Ky., 344 S.W.2d 407 (1961) and a long line of similar cases, we conclude that the conflicting testimony presented a question for the jury and that the court did not err in overruling the motion of the appellant for a directed verdict.

The judgment appealed from is affirmed.


text:
    Raymond FLORA, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Rehearing Denied March 12, 1965.
    David Van Horn, Lexington, for appellant. •
    Robert Matthews, Atty. Gen., Frank D. Berry, Asst. Atty. Gen., Frankfort, for appellee.
   STEWART, Judge.

Raymond Flora, found guilty of the offense of grand larceny, was sentenced to four years in the penitentiary. See KRS 433.220. He appeals.

Upon trial Samuel Roe, a truck driver who was jointly indicted with appellant, testified that on December 14, 1962, he was paid $125 by appellant to deliver a load of tobacco to a location other than its proper destination. This tobacco was diverted from and never restored to its owner, the American Tobacco Company. Roe had previously pleaded guilty to the charge of grand larceny arising out of the same incident and had received a one-year probated sentence.

The contention made on this appeal is that Roe must be deemed to have been an accomplice of appellant in the commission of the crime and that, since there was an absence of corroborative testimony, appellant should have received a directed verdict of acquittal.

RCr 9.62, which incorporates Section 241 of óur former Criminal Code of Practice within it and upon which appellant relies, is as follows:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. In the absence of corroboration as required by law, the court shall instruct the jury to render a verdict of acquittal.”

In Harris v. Commonwealth, Ky., 285 S.W.2d 489, 491, it was said: “ * * * we have held the requirement of the rule is met if the corroborative evidence is of such quality that a reasonable and unprejudiced mind could conclude that it tends to establish some fact that links the accused up with the principal fact of the commission of the offense.” See Price v. Commonwealth, 296 Ky. 144, 176 S.W.2d 271; Williams v. Commonwealth, 257 Ky. 175, 77 S.W.2d 609.

Appellant undertook to prove an alibi. He testified that on the day the crime was committed, except for going out to eat lunch, he was at a hospital in Lexington with one Malcolm Huff, while the latter’s wife was undergoing an operation, from about 9:30 a. m. until late in the afternoon. He and Huff left around 11:30 a. m. for the noon meal at Huff’s residence and were back at the hospital not later than 12:30 p. m. Appellant testified he rode to Huff’s residence in a black and white 1953 Chevrolet. En route they went through an area where there are a number of tobacco warehouses. It was in this vicinity that the crime was perpetrated.

Roe said he saw appellant in the “afternoon after lunch” on the day the tobacco was- wrongfully taken from its owner. Pursuant to appellant’s instructions Roe delivered one load properly before transporting the second load to the location where it was stolen. Appellant was with Huff in a black and white 1953 or 1954 Chevrolet during the delivery of the second load. According to Roe’s testimony, “He (Huff) was driving his car and was parked behind the warehouse where Flora told me to follow them to the warehouse.”

Appellant and Huff contradicted each-other as to the hospital in which the operation was performed, appellant testified it was in the University Hospital on the Nicholasville Pike, while Huff said it took place at the St. Joseph Hospital on the Har-rodsburg Pike. Huff stated he and appellant remained at the hospital all day, and that he was unable to remember whether he and appellant went out to eat lunch. Huff and appellant quit their jobs the day after the tobacco was stolen.

Anna Croucher, called as a witness for the Commonwealth, testified she had lived in the same house in Lexington with appellant, and that she had been “going with” him a year and four months. We recite from her testimony on direct examination these questions and the answers given by her:

“Q. 15 Did he ever talk to you about a deal of taking tobacco to the wrong warehouses ?
“A. Yes, he did.
******
“Q. 18 Do you recall giving a statement to the Lexington Police Department as to what you knew about this Raymond Flora and some stealing of tobacco ? Do you recall doing that ?
“A. Yes.”

It is our opinion the statements of Anna Croucher tend to connect appellant with the crime of which he is accused. Although she refused, when asked to do so, to repeat what she had told the Lexington Police Department, her response to the first question confirmed exactly how the theft was committed, namely, that appellant highjacked tobacco by taking it to the “wrong” warehouse. This evidence, coming from the lips of appellant’s “close” friend, is corroboration of a very strong kind.

In addition, we have appellant’s admission that he was with Huff in a black and white 1953 Chevrolet on December 14, 1962, in the neighborhood where the diversion took place and at or about the time it occurred. It will be recalled Roe testified in a similar vein. The jury was entitled to consider such a circumstance in connection with all the other evidence in the case in determining the question of his guilt.

Certainly the facts we have set forth bring this case within the rule quoted from the Harris case, supra, and within the doctrine that “[i]t is usually a question ■ the jury as to whether the required corroborating evidence has been produced under a proper instruction submitting that issue,” as stated in Price v. Commonwealth, supra. The trial judge gave the jury a proper definition of an accomplice and instructed correctly concerning corroboration.

Wherefore, the judgment is affirmed.


text:
    GREATER LOUISVILLE AUTO AUCTION, INC., Appellant, v. OGLE BUICK, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.

      William P. Mulloy, Lee F. Swan, Louisville, for appellant.
    Allen Schmitt, Louisville, Baker & Orbison, Bell & Bell, Indianápolis, Ind., Freeman Blackwell, Louisville, for appellees.
   PALMORE, Judge.

The appellant, to which we shall refer as Auction or the auction company, is a corporation which during the time pertinent to this litigation conducted weekly auctions of used cars at its place of business in Louisville. On July 18, 1961, one Marion Caylor caused to be sold through the auction a group of automobiles he had purchased during the previous week from the various appellees, whom we shall call the Indiana sellers. Caylor had given the Indiana sellers checks on his bank at Franklin, Indiana, in full payment for cars so purchased. These checks, aggregating about $12,500, were rendered uncollecti-ble by Auction’s action on July 18 and 19, 1961, in stopping payment on checks it had theretofore given to Caylor as advances to finance his acquisition of vehicles to be sold through its auction, as well as the checks it gave Caylor on July 18, 1961, representing the proceeds from the cars auctioned off on that day, with the result that Auction kept the money for the cars Cay-lor had purchased from the Indiana sellers and the Indiana sellers got nothing. So the Indiana sellers brought this action against Auction for the - amounts of their checks from Caylor .which had been made cold by Auction’s stop payment orders.

The trial court found in favor of the Indiana sellers, and Auction appeals.

We do not have any question in this case concerning legal title of the vehicles in question, which passed freely from the Indiana sellers through Caylor to the ultimate purchasers. Cf. § 2-403, Uniform Commercial Code (KRS Ch. 355). The question to be decided is whether the Indiana sellers had, as between them and Cay-lor, any rights with respect to the property which under the particular circumstances were good against Auction’s seizure of the proceeds. We agree with the chancellor that they did.

It was the custom over a period of some two years for Auction and Caylor on each Tuesday to exchange checks in the amount required in order for Caylor to purchase cars during the ensuing week. The purpose of Caylor’s check to Auction was to cover the advance, and it would not be deposited by Auction until a week later. Auction received a fee of $20 per car sold through it by Caylor, and Caylor received whatever profit was realized on each car. Though Caylor was a vice president of the auction company, it can be assumed for purposes of the argument that in buying cars and selling them through Auction he was acting for himself, free'of any control by the company. There was no restriction or understanding to the effect that the vehicles acquired with money advanced by Auction one week would be brought to the auction the very next week. Caylor had a wholesale car lot at Franklin, Indiana, and often brought newly acquired vehicles there to be “cleaned up” before taking them to Louisville for sale.

On the eve of Tuesday, July 18, 1961, Auction had two $15,000 checks it had received from Caylor on July 11 and had not yet deposited, one $20,000 check dated June 20 which had bounced three times, and two $15,000 checks dated June 27 which had bounced once. The chief officer- of Auction were greatly alarmed, and in spite of reassurances from Caylor that he had other checks coming in and also had some $10,000 worth of cars at his lot in Franklin, when their bank opened its doors on the morning of July 18 they stopped payment on about $21,000 in outstanding checks “and all others” they had given Caylor, and on the next day executed a similar order covering “all checks to Marion Caylor.” These stop orders had the effect of cancelling about $36,-000 worth of checks Caylor had deposited in his bank at Franklin, thus wiping out his bank account. Meanwhile, on July 18 the cars Caylor had bought from the Indiana sellers had been sold and Auction had issued Caylor checks in the amount of about $12,000 representing the proceeds.

Both at common law and under the Uniform Sales Act the implied lien of an unpaid seller of personal property depended on possession and was lost by delivery to the buyer. 46 Am.Jur. 677-679 (Sales, § 520); § 56, Uniform Sales Act (formerly KRS 361.560); Hoven v. Leedham, 153 Minn. 95, 189 N.W. 601, 31 A.L.R. 574 (1922). The same rule applied in equity. 46 Am.Jur. 680 (Sales, § 521). Both the Uniform Sales Act (§ 73) and its successor, the Uniform Commercial Code (§ 1-103), provide that unless displaced by the statutes the principles of common law and equity relative to fraud and other invalidating circumstances continue to apply. The rule in this state prior to the enactment of the Uniform Sales Act in 1928 was that if the buyer obtained possession of goods not intending to pay for them the seller had a right of rescission, though not as against a third party bona fide purchaser for value and without notice. Nashville Grain & Feed Co. v. American Co-op Ass’n, 203 Ky. 458, 262 S.W. 634 (1924); Templeman v. Salisbury, 222 Ky. 53, 299 S.W. 1095 (1927). But even if it be assumed that this rule continues in existence under the UCC, it does not apply here because there is no finding that Caylor, at the time he took possession from the Indiana sellers, did not intend that they be paid. Therefore, unless the UCC has effected some modification in this respect the Indiana sellers, after delivering the automobiles to Caylor, had no rights or interest in them.

UCC § 2-507(2) provides that when payment for goods is due and demanded on delivery, as between the parties the buyer’s right to retain or dispose of the property is “conditional upon his making the payment due.” Payment by check “is conditional and is defeated as between the parties by dishonor of the check on due presentment.” UCC § 2-511(3). Therefore, as between Caylor and the Indiana sellers Caylor had no right either to retain or dispose of the cars. -In such circumstances the UCC does not • specifically reserve to the seller a right of reclamation. However, Comment 3 to UCC § 2-507 suggests that the seller’s rights are the same as provided in UCC § 2-702, relating to sale on credit to an insolvent buyer, and we agree that surely the rights of an unpaid seller under UCC § 2-507(2) must be no less than in the case of a sale falling within the express terms of UCC § 2-702 (2).

According to UCC § 2-702(2), if the seller discovers that the buyer has received goods on credit while insolvent (how'ever innocently) he may reclaim them •on demand within 10 days after the receipt. § 2-702(3) makes this right of reclamation subject to the rights of a buyer in ordinary course or other good faith purchaser or lien creditor. “A person is ‘insolvent’ who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they 'become due or is insolvent within the meaning of the federal bankruptcy law.” Id., § 1-201(23), Under this definition it seems obvious that Caylor was “insolvent” when he traded with the Indiana sellers on July 14 and 15, 1961. Hence if the sales had been made “on credit” each of the sellers would have had a right of reclamation until the cars were resold within 10 days thereafter. We hold that an unpaid seller under UCC § 2-507 (2) has the same right. Cf. Comment 3, UCC § 2-507.

Certainly Auction was not a lien creditor, nor could it have been a “buyer in the ordinary course of business or other good faith purchaser” from Caylor, since it did not purchase from him but merely acted as his agent in selling the cars to others. By retaining the proceeds Auction in effect took the cars from Caylor, not as a buyer but as an unsecured creditor, and applied them toward the satisfaction of its account against him. Though technically the Indiana sellers’ right of reclamation ended when the cars were sold at auction to the ultimate buyers in ordinary course, we think that equity cannot allow Auction to retain the proceeds under circumstances in which it would not have been permitted to defeat the prior and superior rights of the Indiana sellers by taking the cars themselves.

Our conclusion to the effect that the rights of the Indiana sellers survived the resale of the cars and attached to the proceeds is based on equitable principles. The chancellor found as a fact, and his finding is supported by substantial evidence, that when the cars were sold on July 18 Caylor had not been advised and did not know his checks from Auction had been stopped. Indeed, Mr. Isaacs, president of the company, admitted that the reason he did not tell him was because he (Isaacs) did not want him to stop the sale of the automobiles; “we was going to try to collect all we could.” Isaacs admitted also that even before the checks covering the cars sold on July. 18 were issued he expected to get them back. All of this adds up to a conscious design on the part of Auction to decoy Cay-lor into going through with the sale and then to withhold the proceeds. By virtue of Caylor’s ignorance of that design, for all practical purposes Auction had already converted the automobiles to its own account before the sale. From an equitable standpoint we think the "act of Auction in retaining the money should relate back to the time its purpose to do so was conceived and the property was put in its hands for sale. At that time the right of reclamation by the Indiana sellers existed intact, because Caylor had not transferred title to the cars.

All that we have said still might not justify impressing the interest of the Indiana sellers upon the proceeds of sale except that Auction knew enough of the circumstances to put it on notice of the likelihood that its actions in stopping payment of its checks would result in the dishonor of checks Caylor had issued in payment for the vehicles sold. The chancellor so found, and in our opinion that factual conclusion is supported by the evidence.

We recognize that the Indiana sellers, who had done business with Caylor on prior occasions, looked solely to his credit for their pay. Each of them took his personal check in satisfaction of the bargain and sale. Since he thought his checks would be good, he did not commit actual fraud on them. Auction had no detailed knowledge of the transactions between Caylor and the sellers. So far as it was concerned the cars belonged to Cay-lor and he had the unencumbered title papers. Ostensibly he could have paid cash for them, though there is nothing in the record to suggest any such custom on his part. Caylor also did an undisclosed amount of borrowing from another, source. Nevertheless, Auction knew that for the past two or three weeks Caylor’s checks had been bouncing like rubber balls, from which it was bound to realize that other checks given by him to other people would likewise be dishonored, particularly after the stop orders. One would ordinarily expect business of the type here in question to be done by check. Auction surely realized from the ordinary course of its business with Caylor that these automobiles probably had been purchased very recently. That they had been paid for by check also was an undeniable likelihood; that such checks would be dishonored was almost a certainty. Therefore, we agree .with the chancellor that Auction’s knowledge of the circumstances was sufficient to put it on notice of the rights of the Indiana sellers. “A person has ‘notice’ of a- fact when * * * from all the facts and circumstances known to him at the time in question he has reason to know that it exists.” UCC § 1-201(25).

The judgment is affirmed.

      . No auction was held during the week in which Tuesday fell on July 4.

      . These cheeks later were handed back to Auction by Caylor, but of eourse..the stop orders had rendered them worthless to Caylor anyway.

      .KRS Chapter 355, adopted in 1958, effective July 1, 1960.

      . A buyer in ordinary course is one who takes in good faith and without “knowledge” of the interest of a third person. UCC § 1-201(9). “Knowledge,” as distinguished from “notice,” means actual knowledge. Id., § 1-201(25).

      . In fact, such information must have appeared on the face of the title papers turned in to Auction’s office by Caylor.


author: HAMILTON, Justice.

text:
    HEYDEN NEWPORT CHEMICAL CORPORATION et al., Petitioners, v. SOUTHERN GENERAL INSURANCE COMPANY, Respondent.
    No. A-10141.
    Supreme Court of Texas.
    Jan. 27, 1965.
    Rehearing Denied March 10, 1965.

      Barnes & Barnes, Beaumont, for petitioners.
    John H. Benckenstein, Beaumont, for respondent.
   HAMILTON, Justice.

This is a suit between petitioners, Hey-den Newport Chemical Corporation and its insurer, The Insurance Company of North America, against Southern General Insurance Company, the respondent, to recover the cost of defending a prior suit under the omnibus clause of Southern General’s policy. In the prior suit Heyden Newport Chemical Corporation, Newport Industries Division, hereinafter referred to as “Newport Industries”, was named as a defendant along with Raymond Pickering and Arthur Marks in an action brought to recover damages for the death of Sam Traylor. The defendant, Raymond Pickering, carried an automobile liability insurance policy with the Southern General Insurance Company, hereinafter referred to as “Southern General”. Newport Industries demanded that Southern General furnish it a defense in such prior suit, claiming to be an additional insured under the omnibus provision of the policy covering Pickering. Southern General furnished Pickering and Marks a defense but refused to defend Newport Industries. Newport Industries had a policy of insurance with The Insurance Company of North America, who furnished this defense and joined Newport Industries in the present suit as a plaintiff. A jury being waived, the trial •court after hearing evidence granted judgment for Southern General. The Court of Civil Appeals has affirmed. 376 S.W.2d 821. We reverse the judgments of the Court of Civil Appeals and the trial court and remand with instructions.

The allegations in the prior suit were in ■part as follows:

“II
“Defendant, Newport Industries, is a turpentine refining business along with other related items. The raw materials from which said turpentine and other items are refined are old pine stumps that are full of resin and are sometimes referred to as ‘rich’ and ‘litered’ stumps. The principal source or supply of said raw materials or stumps is from the pine woods of Louisiana and East Texas. The stumps are purchased from lumber companies, dynamited and removed from the ground with bulldozers, loaded by men onto trucks, and hauled to Newport Industries by means of trucks. At all material times herein, Defendant, Raymond Pickering was an agent for Newport Industries, and his job was to purchase said stumps in the field, and get the said stumps to Newport Industries at Oakdale, Louisiana. Defendant Raymond Pickering was the owner of many trucks, which were used to haul said stumps and had employees to load and haul said stumps. Defendant Arthur Marks job was to drive a truck into the forest, load it with stumps, and haul the stumps to Newport Industries in Oakdale, Louisiana.
* * * * * *
“IV.
“Heretofore, to-wit: On or about the 16th day of February, 1961, at about 6:30 A.M., Sam Traylor, a husband and father of plaintiffs was wrongfully killed when a motor vehicle driven by defendant Arthur Marks, who was then and there in the course of his employment with defendant Raymond Pickering, collided with his pickup truck on Highway #63, approximately Seven (7) miles east of Jasper, Texas. The said collision, made the basis of this suit, was brought about by one or more of the negligent acts on the part of the said Arthur Marks as hereinafter set out with particularity * #■ * At time of said collision made the basis of this suit, the driver of the vehicle, Arthur Marks, was within the scope of his employment with defendant Raymond Pickering, and at the time of said collision under the exclusive direction of defendant Raymond Pickering.”

The policy of insurance contained the following provisions:

“I. COVERAGE A — BODILY INJURY LIABILITY: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile. * * *
"II. DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS: With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:
“(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudu- ■ lent; * * *
“III. DEFINITION OF INSURED : (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible. for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. * * * ”

The petitioners contend that Newport Industries was entitled to be defended under respondent’s policy by reason of the fact that the allegations in the prior suit say in effect that Pickering was an agent of Newport Industries at all material times, and that therefore Newport Industries was-legally responsible for the use of the automobile involved in the collision causing the death of Sam Traylor. After the allegations were made Newport Industries advised the respondent, Pickering’s insurer, that Pickering was not in fact an agent of Newport Industries at any relevant time. It was on the sole ground that Pickering was not an agent of Newport Industries and therefore the latter was not legally responsible for the use of the automobile at the time of the collision that Southern General refused to defend the lawsuit against Newport Industries. It contends that no duty to defend the lawsuit arose under the policy until a legal determination had been made and that the one demanding a defense be shown to be legally responsible for the use of the automobile in question.

In upholding the contention of respondent the Court of Civil Appeals has held in effect that in determining liability under the defense clause of the policy the court must look further than the terms of the policy and allegations of the suit against petitioner. It must actually determine the question of legal responsibility. We do not agree.

We think that in determining the duty of a liability insurance company to-defend a lawsuit the allegations of the complainant should be considered in the light of the policy provisions without reference to the truth or falsity of such allegations and without reference to what the parties know or believe the true facts to-be, or without reference to a legal determination thereof. By refusing a writ outright this court has determined this to be so in Maryland Casualty Co. v. Moritz, 138 S.W.2d 1095, Tex.Civ.App., 1940, wherein the Court of Civil Appeals held that:

“In the instant case, the issue involved depends not upon ultimate liability, established after trial on the ■merits, of the insurer for the damages sustained; but upon the provision of the policy wherein the insurer bound itself to defend any suit against the insured alleging damages within the terms of the policy even though such suit may have been groundless, false or fraudulent. In such instance, in testing the liability of the insurer to defend, the proof is not material. Liability depends upon the allegations of the plaintiff’s petition. * * *
“As above stated, we are not here concerned with what the proof showed upon the trial of that damage suit. The issue of appellant’s liability to pay whatever judgment was rendered, and whether such judgment came within the terms of coverages A and B of its policy, is not the question here presented. The only issue before us is whether the allegations above quoted, if taken as true, were sufficient to state a cause of action against Moritz coming within the terms of the policy. If so, it was the duty of appellant, under its policy, to defend the suit. We construe these allegations as broad enough to do so; and think that the trial court properly so held. The judgment will therefore be affirmed.”

The case of Travelers Insurance Company v. Newsom, 352 S.W.2d 888, Tex.Civ.App., 1962, refused n. r. e., follows the Moritz case and reviews a number of out of state authorities which agree with the holding in the Moritz case. The Court of Civil Appeals takes cognizance of these two cases, but seeks to distinguish them from its holding on the ground that in those cases the named insureds were seeking relief, whereas here it is a party claiming to he covered as an additional insured. We cannot see that the policy makes any distinction between the named insured and the additional insured under the omnibus clause.

Paragraph I of the policy set out in part above describes the contingencies of liability covered by the policy. Paragraph III describes and defines who are insured with respect to the coverage described in Paragraph I. The insurer does not pay because one is alleged to be legally responsible but because one has been adjudicated to be legally responsible. The coverage in Paragraph II is entirely different from the coverage in Paragraph I. No legal determination of ultimate liability is required before the insurer becomes obligated to defend the suit. That paragraph has reference to a suit seeking to recover damages that are covered in Paragraph I. It starts off “With respect to such insurance [coverage under Paragraph I] as is afforded by this policy * * * the company shall: (a) defend any suit against the insured * * The wor¿ “insured” used here means the same parties that are covered in Paragraph I because this paragraph is speaking with respect to that coverage.

The coverage in Paragraph II does not depend on what the facts are or what might finally be determined to be the facts. It depends only on what the facts are alleged to be. To put it simply, Paragraph I protects all parties described in Paragraph III from payment of damages they may be found legally obligated to pay under Paragraph I. Paragraph II protects the same parties against the expense of any suit seeking damages under Paragraph I.

Respondent says that even if the Court of Civil Appeals be wrong in holding the Moritz case is not controlling here, the trial court’s judgment should be affirmed on other grounds not passed on by the Court of Civil Appeals. It is contended that the plaintiff’s petition in the prior suit did not allege a cause of action against Newport Industries in that it did not specifically say that Pickering, the alleged agent of Newport Industries, was using or owned the truck involved or that at the place and time of the collision Pickering or his alleged employee Arthur Marks was in the course of his employment or agency with Newport Industries. Further, the petition did not allege facts which could make Newport Industries legally responsible for the use of the truck in question.

We have set out above in full Paragraphs II and IV of said plaintiff’s petition in the prior suit which contain the pertinent pleadings in question. While they are not as complete as they should he, they do allege that Pickering was at all material times an agent of Newport Industries and his job was to procure and get pine stumps to Newport’s place of business; for this purpose he had many trucks and had employees to load and haul said stumps to Newport Industries; Arthur Marks was such an employee and at the time and place of the fatal collision he was driving a truck in the course of his employment for Pickering. We think these pleadings are sufficient to permit proof on a trial that Marks was hauling stumps to Newport Industries in a truck belonging to Pickering at the time of the collision. Since this is the very work Pickering was to do for Newport, we think such alleged facts are sufficient to support a holding that Newport was responsible for the use of the truck involved and would be an additional insured under the omnibus clause.

While we have said above that the court is limited to a consideration of the allegations and the insurance policy in determining an insurer’s duty to defend, we wish to point out that in considering such allegations a liberal interpretation of their meaning should be indulged. It is stated in the comprehensive annotation in 50 A.L.R.2d 458, at 504:

“Where the complaint does not state facts sufficient to clearly bring the case within or without the coverage, the general rule is that the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy. Stated differently, in case of doubt as to whether or not the allegations of a complaint against the insured state a cause of action within the coverage of a liability policy sufficient to compel the insurer to defend the action, such doubt will be resolved in insured’s favor.”

Respondent contends further that respondent is not liable in any event because the trial court found that the truck involved was not covered by the policy of insurance here sued on. It is true the trial .court made such finding, but it was made in the face of an admission by respondent in reply to requests for admissions-under Rule 169, Texas Rules Civ.Proc., that the truck in question was covered by its policy on Pickering. Such finding does not have support in the evidence and will not support the judgment.

The policy introduced in evidence by both petitioner and respondent was a Southern General policy insuring Raymond Pickering at all material times on some 98 trucks and other automobiles. Although no witness testified specifically that this was the policy in question, under all the facts and circumstances we think reasonable minds could not differ as to the conclusion that it was the same policy.

Other cross points raised by respondent do not merit discussion and we overrule them.

We reverse the judgment of the Court of Civil Appeals and the trial court and remand the cause to the trial court for entry of judgment in accordance with this opinion.