author: McNEILL, Justice

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Wilbert J. THERIOT, Appellee.
    No. 6514.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 11, 1962.
    Rehearing Denied Feb. 7, 1962.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    Alvin E. Wiggins, Beaumont, for appel-lee.
   McNEILL, Justice

Appellee instituted this suit to recover Workmen’s Compensation benefits for two hernias which he contended resulted from a single accidental injury occurring March 31, 1960, while working in the scope of his employment for his employer.

The issues having been given to the jury, it found that appellee had sustained a hernia to his right side and a hernia to his left side as a result of one accident or occurrence. The trial court rendered judgment on this verdict in favor of appellee for two hernias at the rate of $35.00 per week for 52 weeks.

Appellant’s sole point asserts that the court was in error in awarding appellee 52 weeks compensation, there being only one accident, and the provisions of Sec. 12b of Art. 8306, Vernon’s Ann.Tex.St., the hernia section, limits payment in such case to 26 weeks compensation. The exact question is one of first impression in this state. The only case which comes close to the problem is Safety Casualty Co. v. Long, 137 Tex. 209, 152 S.W.2d 1102, which both parties cite. While not directly in point, it is helpful upon the question before us. The facts in that case were that the employee, as result of one occurrence on December 17th sustained a hernia on one side, and a week later as result of another occurrence sustained a hernia on the other side. He was operated upon for both hernias and the operation was successful. As result he sought compensation of 26 weeks for each hernia. The carrier claimed the statute limited recovery for both hernias to a recovery of one 26 weeks of compensation.

In reaching its conclusion sustaining the employee the Supreme Court held that a hernia is a specific injury and that it may be properly designated a “schedule injury.” Following this it was said in the court’s opinion (p. 1103 of 152 S.W.2d) : “It appears to be well settled that when there are two or more independent injuries, for each of which there is a scheduled amount of compensation, an award may be made for each. 71 Corpus Jur., p. 835, § 549.” No statement of facts was brought up in the present case, but it is clear from the briefs that there were two separate and distinct hernias.

In construing Sec. 12b of Art. 8306 we should keep in mind that the Workmen’s Compensation Act is construed liberally in favor of the employee. In so doing we hold that Sec. 12b of Art. 8306, V.A.T.S., provides for a “scheduled amount of compensation” (within the meaning of the above quoted language from the Long case) for each hernia, upon which the operation was successful. A thoughtful reading of this section shows beyond material doubt that its terms apply to and deal with only one hernia. The words, “the hernia” is used three distinct times in the section. And referring to this phrase in the concluding paragraph is found the phrase “such hernia”. These phrases show that the section was intended to define the rights of the parties where a single, distinct hernia is involved. It must, therefore, be implied therefrom that each distinct hernia invokes the provisions of said section as a separate and distinct injury. It logically follows from this that each hernia sustained, upon which the operation is successful, brought about by either one occurrence as defined in the section, or by a second occurrence, are separate injuries for each, of which the employee is entitled to recover 26 weeks compensation.

Appellant lays stress upon the beginning clause of Sec. 12b, which reads: “In all claims for hernia * * * it must be definitely proven * * * ” and then follows four distinct requirements before recovery is allowed. It is argued that the phrase “all claims” groups all injuries under this section as one injury. We do not give these words such meaning. Rather, as used in the section, they are synonymous with the phrase “every claim”.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice. RENFRO, Justice

license: Public Domain

text:
    H. C. ALLISON, Appellant, v. GULF LIQUID FERTILIZER COMPANY, Appellee.
    No. 16273.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 5, 1962.
    Rehearing Denied Feb. 9, 1962.

      Anderson & Anderson, Cleburne, Thompson, Walker, Smith & Shannon, and Arch B. Gilbert, Fort Worth, for appellant.
    Dennison & Naylor, and Richard D. Nay-lor, Pecos, for appellee.
   MASSEY, Chief Justice.

Gulf Liquid Fertilizer Company, d/b/a Western Chemicals brought suit on sworn account, under the provisions of Texas Rules of Civil Procedure 185, against H. C. Allison. Plaintiff averred the delivery, under contract of sale and purchase, of 29,-540 lbs. of fertilizer at a price stated. Defendant, admitting that the price stated was correct, attacked the amount delivered in pleadings filed by way of cross-action, set-off and counterclaim, etc. Essentially it was the defendant’s contention that 29,540 lbs. of fertilizer were approximately double the amount agreed to be taken, in that the measure of quantity agreed upon was sufficient fertilizer to amount to 50 lbs. thereof for each acre of defendant’s land in growing cotton, calculation of which would be only approximately one-half the number of pounds plaintiff swore it sold and delivered.

Furthermore, by affirmative allegations in the same pleadings filed by way of cross-action, set-off and counterclaim, etc., the defendant contended that the contract and agreement of the parties, antedating the time of the deliveries and pursuant to which the deliveries were made, obligated action on plaintiff’s part over and above mere sale and delivery. In that connection defendant claimed that the plaintiff agreed to and attempted to guide and control the mode by which the fertilizer was injected into irrigation waters of the defendant, the rate of injection, etc., — and that plaintiff acted pursuant to such agreement, but negligently in that it injected approximately double the amount of fertilizer to admit 50 lbs. of fertilizer per acre, burning and damaging the growing crops of defendant, whereby he sustained a loss in yield of cotton per acre, and a corresponding loss in profits otherwise to have been realized.

Upon the call of the case for trial both parties’ causes of action were ascertainable from their pleadings. Plaintiff’s was upon its sworn account. Defendant’s was upon a counter-affidavit purporting to destroy the efficacy of plaintiff’s account as prima facie evidence on which its case could be established,- — plus allegations by way of set-off, counterclaim and cross-claim under T.R. C.P. 97. The circumstances were such as to require the defendant to have plead his case against the plaintiff if ever he intended to do so, and it amounted to a “compulsory counterclaim” within the purview of section (a) of T.R.C.P. 97.

Trial proceeded, but before time for defendant to rest his case the court decided that the state of the record warranted severance of the affirmative case of the defendant against plaintiff from the suit of plaintiff under the applicable provision of T.R.C.P. 174. An order to that effect was entered. The court further decided that the state of the record on plaintiff’s suit was such that made it proper to take the case from the jury and to instruct the jury to return a verdict in favor of plaintiff and against defendant on the suit on sworn account, — leaving defendant’s suit pending as a cause to be tried. Accordingly such was done and the jury returned the verdict it was instructed to return. The court entered a judgment on such verdict. The defendant appealed.

The plaintiff, appellee here, filed a motion to dismiss the appeal. We believe that we do not reach the reasons set up in such appellee’s Motion to Dismiss Appeal, for the record is such that dismissal is required for other reasons. The premise of our holding is that the case has never become ripe for an appeal in that the judgment purportedly rendered on appellee’s suit on sworn account is interlocutory only, and not a final and appealable judgment within the meaning of T.R.C.P. 301, a rule which had its source in repealed Vernon’s Ann. Civ.Tex.St., art. 2211.

The Supreme Court, in an opinion answering certified questions having a direct bearing upon the situation posed, has held that where there has proceeded to trial a cause in which the case made on the pleadings of the parties involves: (a) ascertainment of plaintiffs’ right and amount due thereon; (b) ascertainment of defendants’ right and amount due thereby; and (c) judicial deduction of the smaller from the larger amount and award of recovery- (to the party entitled) of the balance, — any judgment rendered in disposition of the right of one party only would be an interlocutory judgment. As pointed out in the case no execution could be lawfully levied in carrying any such character of judgment into execution. See Nalle v. Harrell, 1929, 118 Tex. 149, 12 S.W.2d 550, and, on subsequent appeal, C. H. Myers & Co. v. Nalle, 1930 (Tex.Civ.App., Galveston), 24 S.W.2d 770.

There is no provision of law under which appeal is provided under these circumstances. With certain statutory exceptions, an order, judgment or decree, whether at law or in equity, must possess the essential characteristic of finality before any appeal will lie therefrom. 3 Tex.Jur.2d, p. 337, “Appeal and Error-Civil”, part III, “Appealability of Judgments and Orders”, sub. B, “As Affected by Finality of Judgment”, sec. 76, “In general”.

The appeal is dismissed.

RENFRO, Justice

(dissenting).

The defendant’s cross-claim against the plaintiff was severed by the court and given a new docket number. Everything involved in plaintiff’s case against defendant was disposed of in the judgment entered by the court and which judgment is the subject of this appeal. Therefore, the majority is in error in treating said judgment as an interlocutory order. It is a final judgment and should be so treated by this court.


author: DIXON, Chief Justice.

text:
    Eddie CUNNINGHAM et al., Appellants, v. The STATE of Texas, Appellee.
    No. 16003.
    Court of Civil Appeals of Texas. Dallas.,
    Jan. 5, 1962.
    Rehearing Denied Feb. 2, 1962.

      Heath, Rosenthal, Atlas & Cattanach, Houston, for appellants
    Will Wilson, Atty. Gen., and Marvin F. Sentell, Asst. Atty. Gen., for appellee.
   DIXON, Chief Justice.

This is an appeal from a temporary order “restraining and enjoining Eddie Cunningham and Cunningham Transport, Inc., their agents, servants and employees from aiding and abetting, using or employing motor trucks in the transportation of commodities for hire over the public highways of the State of Texas between incorporated cities, towns or villages without the owners of said motor trucks first having obtained a certificate of public Convenience and Necessity or a Permit issued by the Railroad Commission of Texas for the operation thereof; * *

It is undisputed that appellants were actually served with notice of hearing to be held on the State’s application for temporary injunction. It is undisputed also that they filed an answer to the application and that on the appointed day they were present and participated in the hearing. In their brief they say that a hearing was had, evidence was heard and that they, as defendants, rested without the introduction of any evidence.

Nevertheless, in their first point on appeal appellants attack the validity of the order granting the temporary injunction on the alleged ground that the statute under which the suit was brought is unconstitutional because the said statute, Art. 1690b (c) of our Vernon’s Ann. Penal Code, does not explicitly provide within the body of the statute itself for notice and the right to a hearing. It is appellants’ contention that this omission violates Art. 1, § 19 of the Contitution of the State of Texas, Vernon’s Ann.St., the due process provision.

There is no merit to appellants’ contention. Under Art. 5, § 25 of our State Constitution our Supreme Court is given power to make and establish rules of procedure to be followed in our courts. The Legislature pursuant to said Constitutional provision has enacted Arts. 1731 and 1731a, Vernon’s Ann.Civ.St. Our Supreme Court in exercising the powers so granted has promulgated Rules 680, 681, 685 and 686 Texas Rules of Civil Procedure. These Rules expressly require notice and hearing before a temporary injunction may be granted. Secs, (b) and (c) of Art. 1690b, Vernon’s Ann. Penal Code, provide that District Courts may issue an injunction such as the one here involved, but the statute does not attempt to lay down rules of procedure for injunctions. For such procedure we must look to the Rules above cited.

Appellants rely on Francisco v. Board of Dental Examiners, Tex.Civ.App., 149 S.W.2d 619 (err. ref.) However, our Supreme Court in Industrial Accident Board v. O’Dowd, 157 Tex. 432, 303 S.W.2d 763 has distinguished the Francisco case from a case such as is now before us. We quote from the Supreme Court opinion:

“A holding that a statute must expressly provide for notice or it is invalid is patently unsound. It is a common thing for a court to recognize and enforce implied or implicit clauses in both statutes and contracts. To hold that implied provisions could not be afforded validity when a constitutional due process clause is involved would be to reverse the general rule of construction that a statute must be construed so that it will be constitutional and hence valid if the language thereof is reasonably susceptible to such construction.
“Obviously if the explicit provisions of a statute direct an administrative board to proceed without notice in contravention of the constitutional due process requirements (as in the Francisco case) there would be no room for a presumption that the Legislature intended that a notice be given. However, on the other hand, we must assume that the Legislature intended to enact a valid law, and in the absence of express language to the contrary, intended that the administrative board should proceed in accordance with constitutional requirements. The Board here construed the statute as requiring notice and notice was actually given.”
Appellants’ first point is overruled.

The order granting the temporary injunction was dated June 15, 1961. Appellants did not tender a statement of facts for filing in this Court until the day before the appeal was submitted to us on December 8, 1961. No extension of time for filing had been requested. We had no alternative but to instruct the Clerk to refuse to accept the tendered filing. Board of Insurance Commissioners, etc., v. Adams, Tex.Civ.App., 286 S.W.2d 698; Huckman v. Campbell, Tex.Civ.App., 252 S.W.2d 604; Rule 385 T.R.C.P. Consequently we are faced with a situation where there is no statement of facts before us.

Under these circumstances we must presume that the order was supported by sufficient evidence. McDonald v. Debco Corp. of Texas, Tex.Civ.App., 350 S.W.2d 221. Pruett v. Sprouse, Tex.Civ.App., 278 S.W.2d 290; Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964, 966. Appellants’ second point is that there was no evidence to sustain the court’s order for temporary injunction. The point is overruled.

In their third point appellants contend that the trial court erred in not limiting the scope and effect of the temporary injunction to the geographical area of the 14th District Court, said geographical area being the same as Dallas County, Texas. This contention is based on the holding in Ford v. Tyson, County Attorney, Tex.Civ.App., 43 S.W.2d 619, 621 where it is said:

“Under the plain provisions of the statute in question, any district judge, upon the sworn application therefor by any county attorney, has a right by injunction to restrain parties from violating said law in any county within his judicial district.”

Notwithstanding, the holding in the Tyson case, we find ourselves unable to agree with appellants in this case. It is well known that the remedy of injunction acts, not in rem, but in personam. City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 976, 77 A.L.R. 709; 24-A Tex.Jur. 192. Here it is undisputed that the 14th District Court had jurisdiction of the persons of both appellants. That being so, the court could properly restrain appellants’ acts and conduct though the subject matter might be situated outside the boundaries of the 14th Judicial District. Roberts v. Stewart Farm Mortgage Co., Tex.Civ.App., 226 S.W. 1108; 24-A Tex.Jur. 192; 30 C.J.S. Equity § 81, p. 439; 43 C.J.S. Injunctions § 168, p. 795.

Appellants’ third point is overruled.

The judgment of the trial court is affirmed.


author: McNEILL, Justice.

text:
    Lee Edward WRIGHT and Dorothy Joan Wright, Appellants, v. C. E. PHILLIPS d/b/a East Texas Fence Company, Appellee.
    No. 6499.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 30, 1961.
    Rehearing Denied Jan. 10, 1962.

      Paul M. Branch, Kilgore, for appellants.
    Charles K. Ruth, William D. Winston, Lufkin, for appellee.
   McNEILL, Justice.

This suit was instituted by appellee against appellants to recover a balance owing upon a certain installment promissory note, dated September 1, 1959, executed by appellants, payable to the order of appellee over a period of three years, and to foreclose a chattel mortgage securing said note on the property of a certain business known as East Texas Fence Company at Kilgore. An open account was also included in the action. Appellants’ sole defense to the action was that as the note and chattel mortgage were parts of a contract entered into by appellee as seller of said business and appellants as purchasers thereof, and since said contract required appellants to purchase all their chain link and cedar fence material from appellee, this contract violated Arts. 7426 and 7428 of the antitrust statutes of our state; consequently the note, chattel mortgage, and open account, as the outgrowth of said contract, are each invalid.

Before discussing the merits, we are required to dispose of appellee’s motion to strike the statement of facts filed herein on the ground that such statement was neither approved by the trial court nor by appellee. At the time of submission appellee’s attorney stated in open court that because of the shortness of time to file the statement of facts, he approved same subject to certain corrections that were to have been made by the court reporter. There was no showing that these corrections were not made nor that the statement filed is inaccurate. Besides, the statement of facts was filed in this court July 7, 1961, the transcript was filed July 11, 1961, and motion to strike was not filed until September 1, 1961. Rule 404, Texas Rules of Civil Procedure, provides that all motions relating to infor-malities in the manner of bringing the case into this court shall be filed within 30 days after the filing of the transcript. The question raised being an informality and the motion not having been timely filed, it is overruled. Looney v. Wing, Tex.Civ.App., 195 S.W.2d 557; Strode v. Srygley, Tex.Civ.App., 342 S.W.2d 638.

The facts are undisputed. It appears that appellee at the time of, and for several years before, the sale to appellants was conducting the business of selling and erecting Hurricane chain link and cedar fencing for customers over a fairly large area in East Texas. He had places of business at Tyler, Kilgore and Lufkin and had phone service in his Kilgore office which connected with Longview and Marshall. At the time of the sale to him appellant Lee Wright was manager of the Kilgore business. He had no funds to purchase the business nor credit to carry it on, but appel-lee felt the weight of the various locations of the business was too heavy upon him and he decided to sell the Kilgore business. So the contract was made between appellants Wright and wife and appellee whereby ap-pellee sold the Kilgore business at the inventory wholesale price which amount was represented by the above described note.

There were numerous clauses in the contract. One such provided that appellants should have the right to continue using the name of the “East Texas Fence Company” in the business. It was agreed that appellants should have the Kilgore trade area composed of the counties of Gregg, Rusk, Harrison, Marion, Upshur, Panola and Camp, and that appellee was not to engage in business in said area. A clause provided that where either was called into the other’s area the work might be accomplished by him but the benefit of the contract therefor, except for a commission, would be transferred to the party whose trade area it was. The contract also provided appellants should buy no materials, merchandise or wares used in the construction of chain link and cedar fences from any source other than the appellee except in cases where appellee could not supply same. It was also agreed that appellants would have the right to buy all other merchandise from any wholesale or discount house on any account then used by appellee other than purchases for chain link fencing and cedar fencing, but in any such case appellants should promptly pay for such purchase and hold appellee harmless on account of using the latter’s charge account.

Only appellee testified and his testimony was uncontradicted. He stated that at the request of appellant Lee Wright the clause whereby appellants agreed to buy all their chain link and cedar fencing needs through appellee was inserted in the contract. This clause provided that appellants would pay therefor the wholesale price established from time to time by the Hurricane Fence Company of Houston, a branch of Hurricane Steel Industries, manufacturer of Hurricane fences, plus a 10 percent commission to appellee, and transporting charges. Appellee testified appellants needed this clause since they had no established credit and this arrangement assured them of merchandise for their business. He also testified this clause was to last only until he was paid for the business. Appellee further testified that he took appellant Lee Wright to Houston and introduced him to the steel fence industry and advised him that if he desired he could purchase directly from any such concern. Whether he did any of this, however, is not shown but the testimony showed that appellants purchased material under the contract through appellee in the amount represented by the open account. At conclusion of the trial, the court, sitting without a jury, rendered judgment for appellee for the debts sued upon and foreclosing the mortgage.

Appellants assert that the contract for purchase and sale of said business is void because it violates both Arts. 7426 and 7428, Vernon’s Ann.Civ.St., of the antitrust law of this state. In connection with Art. 7426 it is asserted that a trust was formed by the parties involved in the contract “1. To create, or which may tend to create, or carry out restriction in trade or commerce * * and in connection with Art. 7428 it is contended that a conspiracy in restraint of trade was created violating the clause, “to refuse to buy from or sell to any other person * * * any article of merchandise * * Appellee counters this with the proposition that since the agreement made, in the light of the circumstances testified to, limits the requirement that appellants purchase all fence material from him to a definite business and for a definite time the contract does not violate the statutes mentioned.

The contract confines the Kilgore business sold appellants to a definite trade area but does not expressly limit the purchases agreed to be made by appellants from or through appellee to the needs of the Kilgore business. We think it ambiguous in this respect and the court properly heard testimony thereon. When a contract is capable of two constructions, one of which makes it illegal as being in restraint of trade in violation of the statute forbidding monopolies, and the other construction renders the contract legal, then the construction which is legal will be indulged, since it is presumed that the contracting parties intended no unlawful purpose. Wright v. Southern Ice Co., Tex.Civ.App., 114 S.W.2d 933 (W.R.). When the circumstances of the parties are considered, as well as the testimony of appellee, a fair conclusion is that the contract dealt only with the Kilgore business and it was within the province of the trial court to conclude that the provision of the agreement to purchase all merchandise needed was limited to the business stated. In view of the judgment rendered we conclude that this was the implied finding of the court. Since the trial court found that the agreement to purchase was limited to the needs of the business involved, the cases of Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 243 S.W.2d 823; Twaddell v. H. O. Wooten Grocer Co., 130 Tex. 42, 106 S.W.2d 266; and Jones Investment Co. v. Great Atlantic & Pacific Tea Co. (Tex.Com.App.), 65 S.W.2d 495, uphold the contract. It is not unlawful for two persons to agree that one of them will buy from the other exclusively of a given commodity the amount needed or used in a certain business. The effect of this is that the purchaser contracts to buy from seller the amount of a commodity to be measured by that used in the operation of a particular store. Cox, Inc. v. Humble Oil & Ref. Co. (Tex.Com.App.), 16 S.W.2d 285.

Appellants rely principally upon Wood v. Texas Ice & Cold Storage Co., Tex.Civ.App., 171 S.W. 497; Grand Prize Distributing Co. of San Antonio v. Gulf Brewing Co., Tex.Civ.App., 267 S.W.2d 906 and Climatic Air Distributors of South Texas v. Climatic Air Sales, Inc. (Tex.), 345 S.W.2d 702. In the case last cited the Supreme Court through Justice Greenhill stated that the granting and accepting of the exclusive right to sell a manufacturer’s product within a given territory is made a violation of the antitrust statutes. In the present case no manufacturer was involved. Appellee did not represent nor act for the manufacturer of Hurricane fence. In order to help appellants get started in their own business he undertook to get the merchandise they needed for their business at an agreed price. At a price not set by appellee but by a third party. There was no exclusive territory given appellants by the manufacturer. Only appellee as the seller of the business agreed he would not compete with appellants in the Kilgore trade territory. This is recognized as a lawful restraint. The manufacturer of the Hurricane fence was not prohibited by the contract made from selling merchandise in the Kilgore area. Nor for that matter was appellee, but in such case he would have to transfer the contract, less commission, to appellants. The court in Climatic Air Sales case held the manufacturer-distributor contract invalid since Climatic Air Sales as manufacturer agreed with its distributor that it would turn over to distributor “all inquiries and orders for the above described area received for Climatic Air and that we will refrain from appointing other distributors in the area hereinabove set out during the term of this contract.” The following quotation from the Climatic Air Sales case clearly distinguishes it and the other cases cited by appellants from the present one. “The manufacturer (Climatic Sales, Inc.) did not agree to sell to Bland (distributor) all of his output and Bland did not agree to buy from the manufacturer all the air-conditioning units he needed. Rather, as we construe the contract, Bland agreed to purchase for resale air-conditioning units in a specified territory, and the manufacturer by agreement contracted that all of the orders for the sale of the units would be handled by Bland who would be its distributor in the territory.” 345 S.W.2d p. 70S.

Believing the trial court correctly decided the question involved, we affirm its judgment.


author: MOREMEN, Judge.

text:
    Charles Leroy HAMM, Appellant, v. William L. JONES, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    Charles Leroy Hamm pro se.
    John B. Breckinridge, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
   MOREMEN, Judge.

Appellant, Charles Hamm, was convicted in the Fayette Circuit Court of storehouse breaking, KRS 433.190, and sentenced to imprisonment for life under the Habitual Criminal Statute, KRS 431.190. The judgment was appealed to this court and was affirmed. Hamm v. Commonwealth, Ky., 300 S.W.2d 562.

On October 7, 1957, appellant filed a petition for a writ of coram nobis in the Fayette Circuit Court where the petition was treated as one asking for relief under CR 60.02— the writ of coram nobis having been abolished. The trial court entered a judgment dismissing the petition and on appeal the judgment was affirmed. Hamm v. Mansfield, Ky., 317 S.W.2d 172.

On the 5th day of August 1961, appellant filed a petition for a writ of habeas corpus in the Lyon Circuit Court which was dismissed by the court on the ground that the petition did not state facts upon which relief could be granted. An appeal has been taken from that judgment.

Appellant urges that the judgment was void because: (1) The arrest was illegal and in violation of his constitutional rights; (2) The search of his room in the hotel was illegal and therefore the evidence obtained under it was inadmissible; (3) He was deprived of effective assistance of counsel; (4) He was denied his constitutional right to be represented by counsel at all times during the trial.

This court has repeatedly held that a writ of habeas corpus should not issue except upon probable cause being shown that a judgment under which one is imprisoned is void. Duke v. Commonwealth, Ky., 287 S.W.2d 423; Lynch v. Jones, Ky., 342 S.W.2d 394; Adkins v. Commonwealth, Ky., 328 S.W.2d 412. It is also a firmly established rule that a petition for habeas corpus must be dismissed where it does not set up any ground which could not have been considered by this court on an appeal from the conviction. Hampton v. Whaley, 313 Ky. 611, 233 S.W.2d 273; Brown v. Hoblitzell, Ky., 307 S.W.2d 739; Stonefield v. Buchanan, 289 Ky. 386, 158 S.W.2d 970; Vickery v. Lady, Ky., 264 S.W.2d 683.

Appellant’s first contention is based upon the fact that the Lexington police who were investigating a storehouse breaking learned that appellant had been seen in the company of another person who was suspected of having committed the crime. They went to appellant’s hotel room door and when appellant responded and opened the door the officers saw a woman in his bed who appellant admitted was not his wife. Thereupon they arrested him and charged him with loitering. He complains that this was done without a warrant or legal cause. However this was not the crime for which appellant was convicted and for which he is serving his sentence in the penitentiary. We cannot recognize any relevancy it may have except insofar as it may concern illegal search and seizure which is appellant’s second ground for reversal.

Two days after the arrest the police returned to the room which appellant had been renting on a daily basis and obtained permission from the person in charge of the hotel to search his room. They found between the leaves of a magazine which was under the mattress of the bed certain checks which had been stolen and which we suppose were used in the trial which led to appellant’s incarceration, although the record is not clear on this point. From the sparse record we have before us we are not prepared to say this was an illegal search because no property of the appellant was searched, only property which belonged to the owner of the hotel who had given his permission for the room to be searched after appellant had vacated it. But even had the search been illegal, such a question should have been presented on the original appeal and in no event would the conviction and judgment be rendered void so as to subject it to a collateral attack.

Appellant next contends that he was deprived of effective assistance of counsel. He stated in his brief that :

“During the course of said trial, that the commonwealth introduced as evidence, evidence which was unreasonable and unlawfully seized from (Petitioner’s) appellant’s place of residence by police officers acting without a warrant of arrest or search warrant upon their 3rd such search in as many days, in violation of the rights and immunities guaranteed appellant under the mandatory provisions of both the state and federal constitutions, that, his court appointed counsel challenged the legality of said unreasonable search and seizure and objected to the admittance of said evidence as admissible evidence, was overruled by the court and saved an exception to same, which was noted in the record. That, although a seasonable exception had been saved upon same, still said court appointed counsel wilfully, intentionally and flagrantly neglected to take advantage of said seasonable exception by alleging said ruling to be in error and incorporating same as a part of the record, on motion and grounds for a new trial, in the bill of exception and upon appeal * *

As indicated above, we are not prepared to accept appellant’s premise that the search was illegal. It may well be that counsel (he was represented by two counsel on the trial of the case and four upon the first appeal) decided that the most important questions to be preserved for appeal involved the instructions which were given. There is nothing in the record that indicates appellant was not represented by efficient, reputable members of the Lexington bar.

A similar question was decided in Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, certiorari denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002, where it was said:

“There is no allegation that the court did not select defendant’s counsel with care and with due regard for appellant’s constitutional right. We must assume that the court appointed a reputable member of the bar in whom it had confidence * * *.
“It is clear that once competent counsel is appointed his subsequent negligence does not deprive the accused of any right under the Sixth Amendment. All that amendment requires is that the accused shall have the assistance of counsel. It does not mean that the constitutional rights of the defendant are impaired by counsel’s mistake subsequent to a proper appointment.
“The petitioner here must, therefore, rely upon the due process clause of the Federal Constitution which guarantees him a fair trial. But to justify habeas corpus on that ground an extreme case must be disclosed. It must be shown that the proceedings were a farce and a mockery of justice.”

The foregoing case has been cited many times. In a recent opinion of the United States Court of Appeals of the 6th District in O’Malley v. United States of America, 285 F.2d 733, the court quotes with approval this language from the same case.

“ ‘Few trials are free from mistakes of counsel. How much these mistakes contributed to the result can never be measured. There are no tests by which it can be determined how many errors an attorney may make before his batting average becomes so low as to make his representation ineffective. The only practical standard for habeas corpus is the presence or absence of judicial character in the proceedings as a whole.’ See also: Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, 709, certiorari denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82.”

We believe the appellant was well represented on the first appeal and had effective assistance of counsel.

Finally, appellant contends that he was denied his constitutional right to be represented by counsel at all times during the course of the trial. It was shown by affidavit of the attorney who represented appellant in his original trial in the circuit court that he was not present when the jury returned its verdict of guilty. In Powell v. Commonwealth, Ky., 346 S.W.2d 731, we held it was reversible error if counsel was not present at such a time. However, in that case the matter was properly raised upon appeal. In appellant’s second appearance before this court upon a petition seeking relief in the nature of coram nobis (Hamm v. Mansfield, Ky., 317 S.W.2d 172,) where he made the same contention, it was held that this error should have been presented on the original appeal and therefore could not properly be raised in a coram nobis proceeding. This same rule applies to subsequent proceedings under petitions for writs of habeas corpus. The circuit court properly dismissed the petition and the judgment is therefore affirmed.

Judgment affirmed.


author: MILLIKEN, Judge.

text:
    Lon COULTER et al., Appellants, v. A. B. HENSLEY et al., d/b/a Hensley & Davis Chevrolet Company, Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    Wilson & Nunn, Glasgow, for appellants.
    Robert C. Carter, Glasgow, for appel-lees.
   MILLIKEN, Judge.

The appellants were adjudged jointly and severally liable on a note for $2,800 executed by the appellant, Lon Coulter, for the purchase of a 1958 Chevrolet. The other appellants, Mary Coulter, Marie Coulter Coe and Carlie Fay Coe, the wife, daughter and son-in-law of Lon Coulter, were held liable on the theory that Coulter had expended funds of and transferred property to a business ostensibly operated by his wife and daughter as partners. Coulter admitted execution of the note, but claimed he paid it in cash without regaining possession of the note. The unsigned document which he claimed as a receipt for his alleged cash payment was shown to the jury and, in answer to a question submitted to them by the trial court, they unanimously found that Coulter had not paid the note sued on.

In answer to another interrogatory submitted to them by the trial court, the jury again found in favor of the complainants to the effect that the appellants were partners.

After summarizing and interpreting testimony in their brief, the appellants attack the judgment on the ground that their evidence showed (1) that the note had been paid and (2) that the appellants were not partners. We do not need to summarize their evidence for the purpose of this appeal, for a brief summary of the evidence offered by the complainants (the appellees) will reveal that the evidence presented to the jury was conflicting, and hence was within the jury’s province to weigh and determine.

The appellees’ salient evidence denied Coulter’s claim of cash payment of the note, it further contended that Lon said “he owned and operated the 31-W Wrecking Yard” when he sought credit to buy the Chevrolet automobile for which the note sued on was given; it further showed sale of a truck to Coulter for which his note was accepted and on which was painted “31-W Wrecking Yard”, the business which it was claimed by the appellants was a partnership solely of Mary Coulter and Marie Coulter Coe. When this latter note executed by Lon Coulter was paid, it was paid by the “31-W Wrecking Yard” by check drawn by the appellant, Marie Coe. Furthermore, it was shown that checks were drawn by Lon Coulter on “31-W Wrecking Yard.” Coulter had been in the car wrecking business at another site in the county, so was familiar with the car wrecking business. Other financial transactions following a somewhat similar pattern revealed a general intermingling of the family’s funds — a borrowing from Peter to pay Paul method of doing business. We conclude there was sufficient evidence presented to the jury to sustain their verdict.

The judgment is affirmed.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Lewis H. HALL et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    John B. Breckinridge, Atty. Gen., H. D. Reed, Jr., Asst. Atty. Gen., Charles E. Skid-more, Dept, of Highways, Frankfort, for appellant.
    J. R. Layman, Paul M. Lewis, Hatcher & Lewis, Elizabethtown, for appellees.
   WILLIAMS, Judge.

The appellees owned an undeveloped 19.-65-acre tract of land adjacent to Highway 31-W just north of the city of Elizabeth-town. The appellant condemned a strip across the front portion of the tract for the purpose of converting the road into a four-lane highway. The strip taken ranged from 66 to 96 feet in depth and was composed of 1.74 acres. There was left remaining 17.91 acres, with the same number of feet fronting the highway as existed before the taking. A jury in the Hardin Circuit Court returned a verdict for the appellees in the amount of $19,200, broken down as follows: $14,200 for the 1.74 acres taken, and $5,000 damage to the remainder of the tract. The appellant maintains the verdict was excessive and not based on competent evidence, and that the jury disregarded the competent evidence and instructions of the court.

The instructions given were offered by the appellant and were approved in Commonwealth v. Combs, 244 Ky. 204, 50 S.W.2d 497. The jury was advised to consider the tract taken “in relation to the entire tract of which it is a part.” It is argued that the value of the part taken should be in direct proportion to the value of the entire tract as the area of the part taken is to the area of the entire tract. That theory is not well taken because the part taken may be the only valuable portion of the entire tract and still comprise but a fraction of the whole. Here in fact the part taken was the most valuable portion of the tract because it was level and the part remaining was hilly.

The owners were questioned concerning the manner in which they arrived at the estimate of the value of the property. Counsel for both appellant and ap-pellees elicited information from them concerning the intended use of the property, its value per front foot and its value as acreage. Appellant objected to a question which generally required a statement of intended use in the answer. The objection was made after the same information had been brought into the case by both parties and, under the circumstances, the information garnered from the question was nothing more than reiteration of what had already been said. No prejudicial error resulted from the circuit court’s decision. It is said in 3 Am.Jur., Appeal and Error, section 879, that “an appellant cannot complain of error in the admission of evidence which he himself offered or drew out.”

Without alluding to the obvious practice of placing exorbitant values on property condemned for road purposes (Commonwealth Dept. of Highways v. Collins, Ky., 344 S.W.2d 613), we note that the two property owners and two neighbors qualified as experts and swore that the taking reduced the value of the entire tract in an amount greater than that awarded by the jury. As was stated in Commonwealth v. Collins, supra, we cannot reasonably say that the sum awarded was not supported by testimony having probative worth.

Judgment affirmed.


author: BIRD, Judge.

text:
    Charlie PAUL et al., Appellants, v. Louis LOOKOFSKY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    A. Joe Asher, Benton, for appellants.
    Farland Robbins, Mayfield, for appellees.
   BIRD, Judge.

A group of white plaintiffs brought this action to enjoin the Mayfield Municipal Housing Commission and its Executive Director from developing, through the help of a federal agency, a segregated Negro housing project on newly annexed territory in Mayfield, Kentucky.

The defendants filed a motion to dismiss because of plaintiffs’ failure to state a claim upon which injunctive relief could he granted. The trial court sustained the motion and dismissed the action. The plaintiffs have appealed.

After enumerating several things about which no complaint is made appellants’ brief states the entire complaint as follows:

“ * * * However, it is seriously contended by appellants, white citizens and residents adjacent to the proposed Negro housing development, that the action of appellees violates the Federal Constitution and recent rulings of the Supreme Court of the United States in making the proposed housing development a segregated one.' *' * * ”

The quotation contains the sole issue.

The complaint fails to point out any particular constitutional violation but appellants’ brief does charge that “segregation iri public housing violates provisions of 14th Amendment of United States Constitution.”

It is charged in the complaint that the proposed housing project is to be “a segregated Negro housing development.” On this appeal we must accept the statement as true and conclude that, at this point, a segregated public housing development is contemplated.

The complaint shows that the annexation ordinance has been passed and that application has been made to a federal agency for funds with which to construct the housing units. It is not alleged that the federal agency has gone so far as to approve the application. The complaint shows that the housing project is still in the planning stage. It is not alleged that any plaintiff or other person has asked to become a resident of the project and been refused. This would hardly happen until the project passes from the development to the operational stage.

We are unwilling to speculate on what may happen when operation of the project begins. There may or may not be a constitutional violation in its operation. We think it unwise to extend the use of injunc-tive processes to prohibit that which is purely speculative-and may never be undertaken. See Barnes v. City of Gadsden, 5 Cir., (1959) 268 F.2d 593; Cohen v. Public Housing Administration, 5 Cir., (1958) 257 F.2d 73.

We find no real issue in the other points discussed in appellants’ brief.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Irma W. BARTMAN, Appellant, v. O. L. SHOBE et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.

      Cyril C. Sehlinger, William Mellor, Louisville, for appellant.
    Charles B. Zirkle, Louisville, for appel-lees, O. L. Shobe & Zelma N. Shobe, his wife, and Shobe, Inc.
    J. D. Raine, Louisville, for appellee, D. F. Smith, Assignee for Shobe, Inc.
    Jackson & Seiller, Louisville, for amicus curiae, Louisville & Jefferson County Bd. of Health.
    Lucian L. Johnson, Louisville, for amicus curiae, Jefferson County Board of Education.
    Raymond F. Bossmeyer, Louisville, for amicus curiae, Louisville and Jefferson County Metropolitan Sewer Dist.
   PALMORE, Judge.

The controversy here is between the owners of adjoining tracts of land in Jefferson County. The appellant, Irma Bart-man, brought suit against the appellees O. L. Shobe and wife, Zelma Shobe, to enjoin further construction and eventual completion of a sewage treatment plant and sewerage system designed to carry off and drain through her property surface waters and sanitary sewage effluent from a residential subdivision being developed on the Shobe property. Because a great deal of money had already been spent on these facilities and the chancellor felt that the private loss and public inconvenience consequent to an injunction would outweigh its benefit to Mrs. Bartman, he conditioned the grant of such relief upon the failure of the Shobes to comply with whichever of two alternative courses of action outlined in the judgment Mrs. Bartman might choose. She declined them both and brought this appeal, insisting on absolute entitlement to an injunction.

The lands in question lie in the periphery of the burgeoning metropolis of Louisville and its suburbs. The Shobe subdivision, called Zelma Fields, was authorized by the Louisville and Jefferson County Planning and Zoning Commission in July of 1956. It had theretofore been approved by the city-county Health Department for septic tanks. Over the course of the next 2½ years lots were sold and some 15 homes were built. It developed that there were numerous underground springs in the land, rendering it unsuitable for septic tanks during certain months of the year, with the result that in January of 1959 the Board of Health gave notice that no further construction would be authorized unless a different method of sewage disposal were devised. Since there were no public sewer lines and no large streams in the vicinity the engineer employed by the Shobes determined that the only practical solution was a sewage treatment plant. He thereupon submitted plans and designs to and secured approval of the Water Pollution Control Commission of the State Board of Health, the city-county Health Department, and the Metropolitan Sewer District, and then applied for re-zoning to a classification requiring sanitary sewers instead of septic tanks. The sewage treatment plant in question was the method of sanitary sewage disposal proposed in this application. After due advertisement a public hearing on the application was held on July 2, 1959, though Mrs. Bartman did not receive actual notice and was unaware of it. The application was granted by the zoning authority, and work on the project proceeded apace.

Zelma Fields subdivision consists of three sections. Nos. 2 and 3 abut the Bartman property, but No. 3 has not been platted and improved as yet. Sections 1 and 2 comprise 102 lots. By reason of a north-south ridge or hump running through No. 2 the natural surface drainage of 59 of these lots is westward, away from the Bartman land, which lies to the east. The remainder of No. 2 and all of No. 3 drain into the Bart-man tract, and to the extent that the surface waters are not absorbed by the ground they flow through a shallow draw or ravine a distance of 1624 feet on the Bartman place to a creek. For the first 436 feet this depression is relatively flat, but for the remaining 1188 feet it has a sufficiently well-defined channel to be called a “wet weather stream.” This part of the Bartman property is unimproved and covered with vegetation. Mrs. Bartman regards it as a bird sanctuary at present but contemplates its future sale for subdivision purposes when it ripens to peak value by reason of surrounding residential development.

The controversial disposal plant is located on Zelma Fields No. 2 about 40 feet from the Bartman line. Though its principal function is the treatment of sanitary sewage, it is designed to receive both storm and sanitary sewage through a system of gutters, drains and underground sewer pipes. Thus it will discharge not only the sanitary sewage effluent (after treatment) but also the surface waters that would otherwise drain over the ground and into the draw entering the Bartman tract. The outlet for this purpose is a 27-inch pipe which ends 3 or 4 feet from the Bartman line. In times of heavy rain it is to be expected that such a concentrated flow would result in some degree of erosion to the Bart-man property.

All of the surface waters (storm sewage) to be discharged in this manner naturally drain into the depression below the disposal plant, but the installation of gutters, drains and pipes will necessarily accelerate the flow to and onto Bartman. The sanitary sewage will be drawn from the whole subdivision, on both sides of the watershed divide. As presently designed, the plant will handle a daily maximum of 50,000 gallons of sanitary sewage and will serve Zelma Fields Sections 1 and 2. When these two sections are fully developed and populated there will be a small flow of sanitary sewage effluent all the time, averaging the equivalent of 3 or 4 garden hoses, with a peak flow of about 5 garden hoses. (We are speaking now of the sanitary sewage effluent only, exclusive of storm sewage.) When Section 3 is developed it will be necessary to expand the plant capacity by an additional 40,000 gallons per day. It is so designed that it can be expanded eventually to a total capacity of 160,000 gallons. Contractual arrangements have been made whereby it will, upon completion, be conveyed to and operated by the Metropolitan Sewer District, a public agency.

The sanitary sewage effluent will be in the form of a clear liquid, less impure than ordinary surface water. It could be handled through an 8-inch pipe, whereas the combination with storm sewage will require a 27-inch pipe.

Mrs. Bartman learned of the construction in progress on November 3, 1959. She saw her attorney immediately, and on November 4 he notified the Shobes that she would resist “the flow of any kind from this plant onto her property.” The Shobes took the matter up with their counsel at once, and on November 17, 1959, he replied to the effect that the project had been duly approved and he did not believe Mrs. Bartman had a valid objection. There was no further communication between the parties until Mrs. Bartman brought this suit on April 11, 1960.

At the time Mrs. Bartman’s attorney wrote the Shobes on November 4, 1959, all of the construction work for the disposal plant and the storm and sanitary sewerage systems throughout Zelma Fields Sections 1 and 2 had been let out on contracts, and a substantial percentage of it had been completed. Work was finally halted about the middle of December, 1959, when the Shobes ran out of working capital, and at this time the outstanding contracts, totalling $157,000, had been performed to the extent of $114,000, based on the engineer’s estimates. (He estimated, incidentally, that $80,000 had been completed by November 3.) As of December 15, 1959, the percentage of completion was 95% on the sanitary sewage collection system, 74% on the treatment plant, and 30 to 50% on the storm sewerage. Completion of the project is contemplated by third parties who have contracted, on certain conditions, to buy the Shobes out.

To round out the picture, it should be mentioned that two innocent bystanders have built new houses in Zelma Fields No. 1 and are unable to sell or use them because septic tanks are no longer permitted and the sanitary sewerage facilities have not been and cannot be completed if Mrs. Bartman is granted an unconditional injunction. These individuals testified as witnesses but are not parties. Each has spent $12,000 on a house built to sell in the $16,000 bracket. In addition, one of them owns several other lots in the subdivision, which he purchased in order to build and sell houses. Without some means of sewage disposal this investment will, of course, be a dead loss. With respect to the more fortunate residents whose homes were completed before septic tanks were prohibited, the public problem that gave rise to the prohibitive order of the Board of Health in the first place presumably still exists.

Faced with this singularly difficult situation, after personally visiting the premises with counsel and receiving estimates of what it would cost to run pipes across the 1624 feet of Mrs. Bartman’s tract between the subdivision and the creek the chancellor decided to “balance the equities,” and he granted an injunction contingent on the failure of the defendants to comply with whichever of the following options Mrs. Bartman should choose:

(1) Defendants to construct across her land, following the meanders of the “wet weather stream,” an 8-inch pipe the full length of 1624 feet to the creek and, in addition, to pay Mrs, Bartman $2,834, that sum being equivalent to the cost of 436 feet of 27-inch pipe.

(2) Defendants to construct across her land a 27-inch pipe along the first 436 feet and, in addition, pay her $2,273.60, that sum being equivalent to the cost of an 8-inch pipe for the entire distance of 1624 feet to the creek.

The judgment further provided that Mrs. Bartman could require the defendants to purchase, at a price to be determined by court-appointed appraisers, all of her property within a radius of 200 feet of the sewage treatment plant. The reason for this provision was that FHA loans generally are not made for residential construction within that proximity to a disposal plant, and the city-county Health Department, though it has no regulation to that effect, recommends likewise.

The alternatives offered in the judgment as to the 8-inch and 27-inch pipe are based on the theory that the Shobes have a right, within the bounds of reason, to accelerate the discharge of their storm water onto the Bartman tract (cf. Wallace v. Schneider, 1949, 310 Ky. 17, 219 S.W.2d 977, and Jarvis v. Cornett, Ky.1953, 257 S.W.2d 524), but not in a channeled stream until it reaches the well-defined “wet weather stream” 436 feet below the property line, and that they have no right to discharge any of the sanitary sewage effluent upon her land. (As the defendants do not appeal, we need not question these conclusions.) In effect, therefore, the Shobes were required to pipe all of the water the first 436 feet but only the sanitary effluent for the rest of the way.

Counsel for Mrs. Bartman raise forceful objections to this solution. They say it permits condemnation by a private person for private use, and that in any event the Shobes get a free easement across her land. They argue that the discharge of sanitary sewage effluent onto the Bartman property is more than a nuisance, and is a trespass, for which reason the doctrine of balancing the interests is not applicable. And it is suggested that if the sewage treatment plant is to be operated by the Metropolitan Sewer District, then let that agency exercise the right of eminent domain in due and proper fashion. They stand on the ancient rights of private property.

The chancellor conceded that if this suit had been brought before so much had been expended on the project he would have awarded an unconditional injunction. He rejected the defense that Mrs. Bartman was estopped by her failure to sue more promptly. But he was sensible of the economic waste and damage as compared with the injury Mrs. Bartman would avoid thereby, and he sought a reasonable way out. In taking this approach we believe he was right.

Let us consider some of the elementary principles applicable to equitable relief. Granted the general rule that an injunction will be granted to prevent irreparable damage, and sometimes to obviate a multiplicity of lawsuits, it is not always so as a matter or right. It may be denied, and the plaintiff left to whatever legal remedy he may have, if with good reason the chancellor finds that an injunction would be inequitable. “Injunctive relief, in common with most other equitable weapons, though perhaps to a greater degree, has great potency for harm when misapplied, and for this reason courts consider every application for its employment in the light of its consequences to both parties, and to that end consider the ‘balance of inconvenience,’ frequently withholding the granting of an injunction when the benefit to the plaintiff will be small in comparison to the injury to the defendant.” Lawrence on Equity Jurisprudence, Vol. 2, p. 1179 (§ 1096).

In equity the rule of reason has always reigned supreme. In every case where in-junctive relief is denied because the plaintiff has an adequate remedy at law there is, in practical effect, a “private condemnation” in that the law refuses to stop one party from invading another’s property rights and paying later. And when we consider the equitable nature of this remedy, what real and reasonable difference stands between a nuisance and a continuing trespass? One is simply more visible and tangible than the other. But the tangibility or technical classification of the civil wrong has little to do with the gravity of its effect, and it cannot be the basis of any rational distinction in equity. No one would deny, for example, that a shaking of the earth or a diffusion of revolting odors can be just as offensive and destructive of property values as a stream of water, and an equally effective invasion of the offended party’s property rights.

Faulkner v. Lloyd, Ky.1953, 253 S.W.2d 972, gives example of a direct, clear and unequivocal invasion of property rights in which this court, through the balancing of interests, permitted what might be considered a “private condemnation.” A property owner inadvertently built his garage 4Yi feet over on his neighbor’s lot. The neighbor sought an injunction requiring its removal. It was held that the judgment should give the defendant the choice of paying the reasonable value of the strip of ground or removing the garage from it. Yet surely in that case the prospect of removing or even destroying his garage would have been far less a catastrophe to the defendant than would the loss of well over $100,000 to the defendants in this case. The answer to the “condemnation” argument is that one who comes to equity does so by choice. Equity forces nothing from him, and he may stand on his legal remedies if he wishes. But if he wants equity he must do equity.

“An injunction ought not to be granted where the benefit secured by it * * * is comparatively small, while it will operate oppressively and to the great annoyance and injury of the other party and to the public, unless the wrong complained of was so wanton and unprovoked as to properly deprive the wrongdoer of all consideration for its injurious consequence.” Burnam, J., in Herr v. Central Ky. Lunatic Asylum, 1901, 110 Ky. 282, 22 K.L.R. 1722, 61 S.W. 283 (at pp. 284, 285).

We cannot accede to the proposition that this is not a case in which the interests of the parties and the public may be balanced in granting or withholding the equitable remedy of injunction.

Consider now the situations of the respective parties, and the public interest as well. Mrs. Bartman artlessly acknowledges that she has been advised to hold onto the acreage through which this drainage runs until its value is further enhanced for subdivision purposes. Such enhancement depends on surrounding residential development such as this very Zelma Fields subdivision. Choking the latter off therefore cannot bring to Mrs. Bartman an unmixed blessing. And if the proposed drainage is effected through an underground conduit, what substantial damage will be done her, unless by the mere proximity of the sewage treatment plant?

A sewage treatment plant is not a nuisance per se. City of Harrodsburg v. Brewer, 1932, 243 Ky. 378, 48 S.W.2d 817. And if it is so operated as not to be a nuisance, it cannot be made a nuisance by force of any standing policy of FHA or the Health Department with respect to residential construction within its environs. That a particular structure may be such as to make it less desirable to build a home near it, and thereby affect the value of adjacent property, does not necessarily make it unlawful. We cannot say that the mere presence of the sewage treatment plant will constitute a nuisance. Thus the provision of the judgment giving Mrs. Bart-man the option of requiring the defendants to purchase all of her property with 200 feet of the plant was premature. It will be due time to consider that sort of measure if and when it should develop that the plant ⅛ actual operation is a nuisance. The privy case, Miley v. A’Hearn, 1892, 13 K.L.R. 834, 18 S.W. 529, is distinguishable because under its particular circumstances the court felt able to say as a matter of law that .a nuisance would exist. A reading of that opinion will satisfy any skepticism in this respect.

Eliminating the treatment plant until such time as it can properly be determined whether it actually is a nuisance, it may be seen that the actionable damage to which Mrs. Bartman will be subjected is neither great nor truly irreparable. Her right to equitable relief therefore rests on the continuing nature of the wrong, in that she ought not to be subjected to the necessity, unless she so elects, of bringing a succession of damage suits.

On the other side of the scales, the damage to the Shobes from an injunction is obvious and great, far outweighing any just benefit to Mrs. Bartman. It may be argued that the Shobes ought to have known better, but it must be recognized that they were not lawyers. Like any other ordinary citizen, they must have thought that what was planned by a qualified engineer and specifically approved by a veritable battery of public authorities was permissible and proper. When they received notice from Mrs. Bartman they consulted their attorney, who apparently did not think they were in trouble. Their contracts had been let and the performance well under way. We may doubt their prudence in not taking more initiative in seeking out Mrs. Bartman for further discussion, but certainly we find no substantial indication of bad faith.

Perhaps of greatest significance is the public interest in whatever precedent may be established in this case. We fully appreciate private property rights, but the world moves on, and we are equally responsive to the difficult problem that sewage disposal presents in populous areas such as Jefferson County, where for reasons both physical and financial public sewerage systems are not available in outlying areas. Where septic tanks are prohibited out of considerations of public health the land cannot be developed to meet the requirements of a rapidly blooming population unless other means of sewage disposal are made possible. Sewage treatment plants pose no threat to the well-being of anyone. Indeed, there are several in Jefferson County, from which the effluent flows on the surface of the ground through residential property. At most, the only possible offense is esthetic.

The suggestion that the acquisition and development of sewage disposal and sewerage facilities ought to be left to public agencies is not feasible. The taxpaying public will not permit it. Hence it is the general practice of governmental agencies, dictated by practical necessity, to require real estate developers to complete their utility installations at their own expense before they are accepted in behalf of the public. We may observe, too, that such a practice is to be treasured in the interests of private enterprise.

We come now to the details of the judgment. Mrs. Bartman’s contention that the price of pipes will not pay for an easement is well taken. We agree also that under the circumstances it is not enough to lay a pipe on top of the ground. And in view of the fact that Mrs. Bartman is being subjected to a legal wrong, we think it is hypertech-nical to say that for the last 1188 feet she cannot have a 27-inch pipe because the surface water would flow there anyway. Our conclusion is that in lieu of the various conditions and alternatives decreed by the chancellor the judgment should grant an injunction unless within a reasonable time the defendants satisfy the following requirements :

(1) Defendants to lay a 27-inch pipe underground from the treatment plant to the creek, following the course of the ravine, or, if she so prefers, pay Mrs. Bart-man a sum equivalent to what it would cost to do so.

(2) Defendants to pay Mrs. Bartman the reasonable value of a perpetual easement to accommodate such a pipe line, as determined by appraisers to be appointed by the chancellor.

Should Mrs. Bartman decline to accept these conditions defendants will be entitled to judgment and costs. In that event her legal remedy remains unabridged, and her ancient and constitutional rights unimpaired.

The cause is reversed with directions to enter a judgment in accordance with this opinion.

MONTGOMERY J., dissents.


author: CULLEN, Commissioner.

text:
    COMMONWEALTH of Kentucky, by and on Relation of William E. SCENT, Commissioner of Revenue, Appellant, v. L. C. SMITH et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 2, 1962.
    William S. Riley, Hunter B. Whitesell, Virginia R. Collins, Frankfort, James H. Amberg„ Hickman, for appellant.
    W. C. Tipton, Hickman, James H. Warren, Fulton, Robert D. Fry, Union City, Tenn., for appellee.
   CULLEN, Commissioner.

In an action by the Commonwealth of Kentucky on relation of the Commissioner of Revenue, against L. C. Smith and others, to enforce a lien for inheritance taxes, judgment was entered dismissing the action on the ground that the inheritance tax law is unconstitutional. The Commonwealth has appealed.

The ground upon which the law was held unconstitutional was that the law does not “specify distinctly the purpose for which said tax is levied,” as required by Section 180 of the Constitution of Kentucky.

The 1936 Act by which the present inheritance tax law was enacted (1936 3rd Ex.Session, Ch. 8) provided in sections 5 (4) and 12 that the proceeds of the tax should be credited to the General Fund in the State Treasury. It is conceded by the appellees that this was at that time a sufficient specification of purpose. See Planters Bank & Trust Co. of Hopkinsville v. City of Hopkinsville, 289 Ky. 451, 159 S.W.2d 25; Tandy & Fairleigh Tobacco Co. v. City of Hopkinsville, 174 Ky. 189, 192 S.W. 46.

In the general revision of the statutes in 1942 the above-mentioned provisions of the 1936 Act were omitted on the ground that they were covered by KRS 47.010 (a general section stating that with certain exceptions all state revenue shall be credited to the General Fund). The appellees maintain that this general section is ineffective because Section 180 of the Constitution requires that each tax law contain its own individual specification of purpose, with the result that there is now no valid specification of the purpose of the inheritance tax law.

It is our opinion that Section 180 requires only that a tax Act contain a specification of purpose at the time it is enacted, and that it is not necessary that the Act continue thereafter to carry the specifying provision. No subsequent repeal of the specifying provision, nor amendment undertaking to specify a different purpose, could be valid because of the prohibition in Section 180 against devoting a tax to a purpose other than that for which it was levied. See Unemployment Compensation Commission v. Savage, 283 Ky. 301, 140 S.W.2d 1073.

It is sufficient under Section 180 that the 1936 Act contained a provision specifying the purpose of the tax, and the subsequent omission or repeal of that provision (regardless of the effectiveness of KRS 47.010) could not render the Act invalid. The judgment holding the Act unconstitutional is erroneous.

In the trial court the appellees pleaded two defenses (other than the one of unconstitutionality of the statute) which the court found it unnecessary to pass upon. The appellees suggest that this Court should pass on those two defenses. In view of the state of the record, and particularly the fact that only a portion of the record was designated and the appellant’s Statement of Points lists the constitutional question as the only one to be argued, we deem it inappropriate for us to consider the issues that the trial1 court did not pass upon. See Clay, CR 7S.04, Comment.

The judgment is reversed.


author: CLAY, Commissioner.

text:
    GREYHOUND CORPORATION, Appellant, v. Edith ALLEN et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 17, 1961.
    Rehearing Denied March 2, 1962.

      Earl Cooper, Salyersville, Stoll, Keenon & Park, Lexington, for appellant.
    Ben Mann, Arnett Mann, Salyersville, James Hogg, Jackson, for appellees.
   CLAY, Commissioner.

Appellees (plaintiffs below) recovered judgments in the amounts of $12,000 and $500 respectively for alleged personal injuries suffered when the bus of appellant (defendant below) overturned after a collision on the highway. Though plaintiffs filed suit against the owners and operators of other vehicles involved in the collision, they made no attempt to prosecute their claims against such other parties and the latter are not involved on this appeal.

Plaintiffs were passengers on defendant’s bus. While rounding a moderate curve to its left, the left front wheel housing of the bus was struck by a pickup truck, operated by one Adams, which approached from the opposite direction. As a result of this collision the bus ran off the road to its right and turned over on its side. Defendant contends it was entitled to a directed verdict because there was overwhelming proof the bus was on its right side of the road and the sole cause of the accident was the emergency movement of Adams’ pickup truck.

According to Adams, he was proceeding at between 30 and 40 miles an hour as he approached the curve to his right. Another car pulled up even with him to pass. He, and apparently the driver of the passing car just then became aware of the approaching bus. The passing car cut back quickly, and Adams slammed on his brakes and turned his truck to the right. It went toward or into the roadside ditch and as Adams tried to bring it back onto the roadway it veered to the left and struck the bus. It is undisputed that Adams temporarily lost control of his truck.

Plaintiffs maintain they established the negligence of the bus driver in three respects : (1) he was on the wrong side of the road, (2) he was inattentive and did not have control of the bus, and (3) he was proceeding at an excessive speed.

With respect to the first item of negligence we find in Adams’ testimony the single statement that the collision occurred on his side of the highway. This is not only unsupported by any other evidence but is contradicted by the testimony of every witness who observed the accident, by the physical facts with respect to tire marks of the vehicles, by the positive prior statements made by this witness, and by the fact the bus had immediately before successfully met and passed the automobile directly in front of him. Such evidence simply could not induce conviction in reasonable minds, and under the authority of Central Lumber Company v. Sparks’ Adm’r, Ky., 296 S.W.2d 453, would not authorize the submission of this issue of negligence to the jury. See also Ison v. Mullins, Ky., 336 S.W.2d 599.

There is an additional reason why Adams’ statement concerning the position of his truck at the time of impact does not establish actionable negligence on the part of defendant. Under the peculiar facts of this case the proof was overwhelming, including the testimony of Adams himself, that the immediate and effective cause of the collision was not the position of the bus on the highway but Adams’ loss of control of his truck. (He traces the chain of causation further back to the movement of a passing car but this is unrelated to the operation of defendant’s bus.) The circumstances of this case are almost identical with those in Southeastern Greyhound Lines v. Tincher, 298 Ky. 151, 182 S.W.2d 334. There it was held the defendant was entitled to a directed verdict because similar testimony of a truck driver was not believable, but even if believable, failed to overcome the conclusive proof that the position of the bus involved was not a proximate cause of the collision. See also Southeastern Greyhound Lines v. Donohue, 298 Ky. 139, 182 S.W.2d 328.

The second claim of negligence is that defendant’s driver did not have proper control of the bus because, according to the testimony of plaintiff Allen, just before the accident the driver was lighting a cigarette and had only one hand on the steering wheel. We know of no duty which would require a bus driver to have both hands on the steering wheel at all times. There is no other evidence this slight incident in any way affected the driver’s control of the bus. In any event, the handling of the steering wheel had nothing whatever to do with the uncontrolled movement of Adams’ pickup truck which, as we have just observed, was the effective cause of the collision.

Apparently it is plaintiffs’ argument that if the driver had better control of the bus he would not have run off the road and turned over. The answer is that the driver’s subsequent loss of control was clearly shown to have been caused by the impact and not by the earlier manner of operating the bus.

The last contention of negligence is that the bus was travelling at an excessive speed to the extent its driver could not avoid leaving the road and turning over after the collision. In the first place, we find no evidence of excessive speed in this record. In the second place, the matter of speed relates to the operation of vehicles under normal driving conditions and we cannot say that a person must operate a vehicle so slowly that he can somehow avoid the subsequent injurious consequences of a collision. The bus driver did not violate any duty to appellees simply because he drove at such a speed that after another vehicle knocked the bus off the road he could not stop it before injury to a passenger. Even assuming excessive speed, it could not have been a proximate cause of this accident. See Southeastern Greyhound Lines v. Donohue, 298 Ky. 139, 182 S.W.2d 328.

We are unable to find in this record any evidence of substance that defendant’s driver failed to exercise the highest degree of care or breached any duties to the plaintiffs which reasonable minds could find was a proximate cause of this accident or plaintiffs’ injuries.

The judgment is reversed with directions to enter judgment for the defendant on its motion under CR 50.02.


author: EAGER, Presiding Judge.

text:
    David R. WARTENBE, Loretta C. Wartenbe, John A. Wartenbe and Cledith D. DeNoon, Trustees of Wartenbe Filters, Inc., Appellants, v. CAR-ANTH MANUFACTURING AND SUPPLY COMPANY, Respondent.
    No. 48183.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1962.
    Wilder Lucas, Jack R. Mandel, St. Louis,, for appellants.
    John M. Goodwin, Morton H. Orenstein,. and Hocker, Goodwin & MacGreevy, St. Louis, for respondent.
   EAGER, Presiding Judge.

A serious question of our jurisdiction' in this case arose at the time of the oral argument. We determined, however, to await a consideration of the briefs and the rather extensive record before ruling that question. We have now read the entire-record and have determined that we have-no jurisdiction.

The suit is one for alleged breach of contract in failing to perform certain work upon component parts of approximately 961 oil filter assemblies. In their amended petition plaintiffs prayed for the sum of $15,444 as the difference between the total expenses-incurred in getting the final work done elsewhere and what they would have been required to pay had the controverted contract been performed. The jury found for the defendant and plaintiffs appealed. During the trial considerable question arose concerning the legal validity of certain claimed items, as included in the total damages prayed. One of these was the defendant’s statement for work done ($1,632.97) which plaintiffs had refused to pay, except for an initial deposit, and for which a counterclaim was pending. Another was the cost ($1,101.77) of patterns for castings which had been burned in a fire at the shop of a third party, where some of the subsequent work was being done. Still another such item was the value of the time of one of the plaintiffs for a period of three months while he, as President of the now dissolved ■corporation, was looking for other shops, •and perhaps methods, for the completion ■of the work, although he was then on a salary. With reference to the burned patterns, counsel for plaintiffs stated during the trial: “We are not claiming damages •on that here. It was eliminated.” We •mention these matters, not to show a factual ■dispute, but to demonstrate that there was •a serious question throughout the trial as to the amount which might legally be claimed, in good faith. Upon questioning from the bench counsel for appellant were unwilling to concede here that the amount actually claimed had been reduced below ■•the sum of $15,000 during the trial.

We find in the final argument of plaintiffs’ counsel to the jury, the following : “ * * * I think that after you have taken everything into consideration and looked at some of these things that were ■done, like this, by the defendant in this case that you will come to the conclusion— and I might say that the total cost here amounts to $9122.82 and I believe after considering the case, after giving it careful consideration, you will come back with a verdict in that amount for the plaintiff.” Despite any previous uncertainty in the items or the total claimed, we thus see that the case was submitted to the jury upon an expressed request for a verdict of $9,-122.82. For all practical purposes this was equivalent to an amendment of the prayer of the petition. The case cannot be tried and submitted to the jury on one theory and presented here on another. Had this been frankly disclosed during the argument, the case would have been transferred from the bench.

It is really unnecessary to repeat here that this is a court of limited jurisdiction (Missouri Constitution, Art. 5, § 3, V.A.M.S.; Section 477.040 RSMo 1959, V.A.M.S.). And the ground of our jurisdiction, here $15,000, exclusive of interest and costs, must affirmatively appear of record. Kansas City Terminal Ry. Co. v. Kansas City Transit, Inc., Mo., 339 S.W.2d 766; Johnson v. Duensing, Banc, Mo., 332 S.W.2d 950. We must determine the fact of our jurisdiction sua sponte, when any doubt exists. Johnson, supra.

This cause will be transferred to the St. Louis Court of Appeals. It is so ordered.

All of the Judges concur.


author: WESTHUES, Judge.

text:
    STATE of Missouri, Respondent, v. Bill McNEW, Appellant.
    No. 48441.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Bradley & Noble, by Charles M. Cable, Kennett, for appellant.
    Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for respondent.
   WESTHUES, Judge.

Bill McNew was, by a jury, convicted ora a charge of manslaughter. His punishment was fixed at three years’ imprisonment in the State Penitentiary. His motion for a new trial was overruled and from the sentence imposed, he has appealed.

The case originated in Dunklin County,, Missouri, where an information was filed charging McNew with murder in the second degree. On change of venue, the cause was transferred to Stoddard County where the prosecuting attorney filed an amended information reducing the charge to manslaughter. The information alleged that on October 7, 1958, McNew assaulted one P. H. Wise with his fist, striking him a mortal blow in the stomach and liver from which Wise died the next day.

The principal points briefed pertain to the sufficiency of the evidence to prove that the death of Wise was due to the assault and not due to natural causes or accident. McNew claimed he struck Wise in self defense. We find little dispute in the evidence offered by the State and by the defendant. It shows the following to have occurred.

On the evening of October 7, 1958, at about ten o’clock, Wise, the deceased, was in a restaurant referred to in the evidence as Moore’s Cafe in Senath, Missouri. While Wise, Lola Brown, Mrs. Moore, operator of the cafe, and Mrs. Brown’s daughter Becky were sitting at a table, McNew came to the window of the cafe and motioned for Wise to come outside. Wise took his-coat and went outside to defendant’s car which was occupied by a Mrs. Nadine Smithmeir. At the car there was a conversation between Wise and McNew. McNew testified that Wise had told him that Mrs. Smithmeir had been going out with other men; that he had asked Mrs. Smithmeir about that and she had denied the accusation. McNew stated that his purpose in calling Wise (whom he referred to as, “P. H.”) to the car was to settle that dispute. The following is McNew’s version of what occurred, including his claim of accident and self defense:

“Q I see. Now, will you tell the Jury what was said between you and P. H. when he come up there?
“A Well, he walked up there and uh, he said, uh, uh, ‘What do you say, Bill?’, I said, ‘Well, there’s a misunderstanding between Nadine and myself and we’d like to get it straightened out.’, just like that. Then, uh, so he said, ‘Well, what is it?’ And I told him, I says, ‘Well, you tell me one thing and Nadine tells me another thing and we’d like to know which one’s tellin’ the truth.’ And so, he said, uh, ‘Well,’ he says, ‘you can hear anything.’, and I said/‘Well, yeah, that’s right, but you told me one thing.’, and he says, ‘Well, I don’t give a damn what I told you.’, just like that.
“Q All right. What did he do, if anything, as he told you he didn’t give a damn what he told you ?
“A Well, that’s when he dropped his left hand off of the car and he jammed his right hand down in his pocket.
“Q What pocket?
“A His right pocket.
“Q Front or back?
“A Front pocket.
“Q All right. Then what’d you do ?
“A Well, I was standin’ there with my arms crossed like this, and well, I heard rumors, so I slapped at his right hand—
“Q Backhanded?
“A Yes, sir, just backhanded. I was standin’ there like that and just slapped at it backhanded like that.
“Q. And what did you do, hit his hand?
“A No, sir, I missed his hand.
“Q And where did you hit him ?
“A Well, I hit him right along in here.
“Q Show me?
“A Right along in there.
“Q Right along in there?
“A Yes, sir.
“Q. He had his hand in his pocket like that?
“A Yes, sir. I slapped at his hand there and I missed it and I hit him right along in there.
“Q Why’d you strike at his hand, Billy?
“A Well, I’s afraid — I was goin’ to strike at his wrist. I thought he was goin’ to bring out a knife.
“Q Bring out a knife?
“A Yes, sir.
“Q What’d you —you struck out to protect yourself?
“A Yes, sir.”

It was the State’s contention that McNew struck Wise a hard blow with his fist, not on Wise’s hands or arms, but in his stomach, and that Wise made no threat or movement that justified McNew in acting in self defense. McNew claimed that he did not intend to strike Wise in the stomach but that when he, McNew, struck at Wise’s arm or hand, he missed and accidentally struck Wise in the side of his body.

A number of witnesses testified for the State as to what they saw at the time of the occurrence from places nearby. As to this evidence, McNew claimed that it was dark and that a post or pole obstructed the view of these witnesses and prevented them from seeing what occurred.

Mrs. Smithmeir, defendant’s companion, testified as a witness for the defense. As we see it, her evidence aided the State’s theory. Note what she said on cross-examination :

“Q Now, you saw him — just indicate now with your hand how he come back and hit, now, don’t hit too hard but hit me where he hit ?,
“A Where he hit him?,
“Q Yeah, here.
“A I don’t know.
“Q Well, you did see him hit him, didn’t you?
“A I know he hit him.
“Q Now, what did he say to him immediately when he said — I believe your testimony is when he said that ‘I am not — ’ that ‘I didn’t tell a lie.’, then he hit him, didn’t he ?
“A Yes.
“Q What else did P. H. say anything ?
“A I don’t know.
“Q Well, what did P. H. do ?•
“A He slumped over.
“Q All right. Where were his hands now immediately before he struck him ? What was he doin’ there ? What was P. H. doin’ when he said, 'I haven’t told any lie.’ What was P. H. doin’?
“A He was standing right outside the door:
“Q And did he have his hand — ?
“A I think so.
“Q And was his other hand where, down at his side?
“A I don’t know.
“Q Did you see P. H. offer to hit Billy?
“A No, sir.
“Q Did he make any move to strike or do him any harm ?
"A Not that I seen.
“Q Did you hear him utter one word or curse him or call him anything or threaten him in any way?
"A No, sir.
“Q You’d of remembered it if you’d of heard it, wouldn’t you?
“A I think so.”

On direct examination, this witness testified as follows:

“Q Billy told P. H. to tell you that he lied about what ?
“A The misunderstanding that we had.
“Q About the misunderstanding you had?
“A (Witness nodding her head up and down.)
“Q What did P. H. say?
“A He said, 1 didn’t lie/
“Q Then what happened?
“A That’s when Bill hit him.
“Q All right. Now, did you see the way Bill hit him ?
“A No, I didn’t. I just know he hit him.”

All of the witnesses who testified about the occurrence, including defendant’s witnesses, stated that after McNew hit Wise, he (Wise) “grabbed his stomach” and slumped over. A number of witnesses testified they saw defendant strike Wise with his fist in the stomach and also at the side of his head.

As to the cause of death, it was in evidence that Wise, a taxi driver, made one trip after the occurrence in question. He had a room next to the Moore Cafe. Someone heard a groaning in that room early the next morning. On investigation, Wise was found to be ill and he complained of pain in his stomach. Dr. Merriman was called and Wise was removed to a hospital by ambulance. There an operation was performed and it was found that Wise had a torn liver and had been bleeding internally. The torn liver was sutured and Wise was given a number of blood transfusions. Wise died on that day.

Dr. Merriman testified that he found Wise in a state of shock and he had no pulse or blood pressure; that Wise complained of severe pain in his upper abdomen and both shoulders; that these pains in the shoulders were a sign of “inter-abdominal” bleeding. At the hospital, Dr. Merriman assisted a Dr. Miltenberger in performing surgery. Dr. Merriman stated that they found a tear in the liver and continued his testimony as follows:

“A The liver is a soft organ which the blood isn’t under as much pressure as say it would be if you’d cut your arm or something and it has a capsule or covering around it which was torn also and it leaks rather slowly. It takes, oh, four, six, eight hours, maybe, for it to bleed enough that you lose enough blood to cause a great deal of damage. There were, oh, it’s a little hard to estimate, somewhere between two and three pints of blood loose in the abdominal cavity that was coming from this tear in the liver.
# ⅜ * * ⅜ *
“Q Doctor, could you tell what had caused this laceration in the liver ?
“A Some sort of trauma.
* ⅜ * * * *
“Q Now Doctor, after the surgery then what happened to Mr. Wise ?
“A He was transferred to the floor of the hospital there and his blood pressure fluctuated up and down. He was given more blood transfusions and so forth and finally expired.”

Defendant claims under points I, II, and III that the State failed to prove “all of the elements of the crime alleged”; failed to prove that “death was not due to natural causes or accident”; and failed to prove that death was “the result of Defendant’s criminal agency and not accidental.” All of these elements were supported by substantial evidence. The question of whether they were proved beyond a reasonable doubt was in these circumstances a question of fact for a jury and not a question of law.

That the defendant struck a hard blow was supported by the evidence of all witnesses who saw the assault. Even the defendant, in his evidence, testified that Wise, after he was hit, “just kind of grunted, you know, and just kind of tilted forward a bit.” Mrs. Smithmeir, defendant’s witness, stated that when McNew hit Wise, “He (Wise) grabbed his stomach and kinda slumped over.” She stated further, “I heard Bill (McNew) ask him if he wanted him to take him to the doctor.” Dr. Merri-man testified that the tear in the liver was caused by trauma. Then the doctor was asked a hypothetical question, the substance of which was whether the injury could have been caused by a blow with a man’s fist and the doctor answered that it could have. We find that all of the elements of manslaughter were supported by substantial evidence.

Under point IV, defendant complains of “instruction Number 5 because it omits, and discounts by emphasis in related instruction, the defense of accident and misfortune.” The instruction reads, in part, as follows: “The Court instructs the jury that if you find and believe from the evidence beyond a reasonable doubt that the defendant Bill McNew at and in Dunklin County, Missouri, on the 7th day of October, 1958, under such circumstances that it is not justifiable homicide or excusable homicide as said terms are defined in other instructions, and not in the lawful defense of his person as defined in other instructions, did unlawfully and feloniously with his fist, strike and hit the said decedant P. H. Wise in the stomach of the said P. H. Wise, * * *

The trial court gave an instruction (No. 14) on accident which submitted defendant’s theory that if defendant struck Wise without any intention to kill or do great bodily harm “and that by accident and misfortune the death of the said P. H. Wise resulted thereby, if you so find, then you will acquit the Defendant.” The court also gave an instruction (No. 7) defining excusable homicide as “the accidental killing of another.” By another instruction (No. 9), the court submitted defendant’s theory of self defense or justifiable homicide.

Defendant, in his argument in the brief, says, “Appellant submits that the giving of instruction Number 5 which fails to mention the word ‘accidental’ and the defense of ‘accidental killing’ except obliquely and indirectly, and following this instruction with instruction Number 8, which completely omits any reference to defenses, misled and confused the jury to Appellant’s prejudice.”

The instructions given by the trial court fully covered all of the defendant’s theories, that is, self defense, accident, and that the defendant’s act did not cause death. The jury was instructed that to convict the defendant the State was required to prove beyond a reasonable doubt that McNew’s assault was the cause of death. We find no deficiency in the instructions. We further find that the evidence justified the jury in finding the defendant guilty of manslaughter. The instructions given in this case are not subject to the criticism concerning instruction No. 3 given in the case of State v. Kinard, Mo., 245 S.W.2d 890, 891, 892(2, 3). Instruction No. 8, given in the present case, was a common-assault instruction. No reference was made in this instruction to self defense or accident. Since McNew was found guilty of manslaughter and the instructions were complete in the submission of that offense, any deficiency in the common-assault instruction was immaterial and not prejudicial to the defendant. State v. Swiney, Mo., 296 S.W.2d 112, loc. cit. 116(16). In State v. Winn, Mo., 324 S.W.2d 637, cited by the defendant, the instruction held to he erroneous submitted the question of whether the defendant was guilty of the offense of which he was convicted by a jury. The case is not in point.

In two assignments of error, as briefed, defendant complains of the admission in evidence of two exhibits: One, Exhibit A, was a photograph taken in the daytime at the scene of the alleged occurrence; the second, Exhibit B, was a picture of the deceased. Neither of these exhibits was filed with the record in this case. However, we hold the trial court did not err in the admission of those exhibits. The only objection to Exhibit A was that it did not accurately portray the scene of the alleged crime. The jury had before it the evidence of the point from which this photograph was taken and the fact that it was taken in the daytime. Defendant introduced a photograph, Exhibit 1, taken at night and claimed that this exhibit portrayed the scene accurately. It was for a jury to decide what the true situation was. Furthermore, as we understand, the only purpose of defendant in producing the photograph was to show that the State’s witnesses could not have seen the alleged assault because of darkness and the location of a post or pole which it was claimed obstructed the view of the witnesses. This was also for the jury to determine in considering the value and weight to be given the evidence of those witnesses. It was not very important since there was little dispute in the evidence. The assault was admitted. The dispute was, did McNew strike Wise with the back of his hand or with his fist?

Defendant says that the photograph of Wise should not have been admitted because it was not relevant to any issue in the case. The record does not support defendant on this point. The defendant, as well as the State, asked questions of witnesses concerning the height, size, and weight of both McNew and Wise. The photograph was therefore a proper exhibit to be in evidence.

. In the last point briefed, defendant says the trial court erred in sustaining an objection to testimony offered by defendant that the State’s witness, Lola Brown, dated and was friendly to .Wise; that such evidence would have tended to show bias or interest of this witness; that this witness was the only witness who testified that defendant struck Wise in the stomach. In this the defendant is mistaken. All of the witnesses, including the defendant, testified that Wise slumped forward when struck. The defendant stated he intended to strike Wise’s hand but missed and unintentionally struck his side. When Lola Brown was being cross-examined, she was asked if she had not been in a car with Wise. Lola answered that she had been as a taxi passenger. She was then asked if at other times she had been with (Wise when she had not hired him and Lola stated that she had not. It was in evidence that Wise, when he was called from the cafe, was sitting at a table with Lola Brown and others; that after the altercation, Wise took Lola and her two daughters home in his taxi.

While defendant was on the witness stand, he was asked whether or not Lola Brown had been keeping company with P. H. Wise. An objection to that question was sustained. Defendant then made an offer of proof that Wise and Lola had been seen together. The trial court ruled as follows :

“By the Court: You didn’t ask her if she dated him or anything like that. No, no, I’ll have to sustain that objection.”

It is our opinion that the record plainly shows that Lola Brown was friendly with Wise. However, the evidence offered and rejected would have added little to what was then before the jury. Furthermore, the defendant’s own evidence was that he struck Wise in the side of his body with the back of his hand. Lola Brown testified defendant used his fist. Does it make any difference which version of the occurrence was correct? We think not. In the circumstances, the trial court’s ruling was not prejudicial to the rights of the defendant. 98 C.J.S. Witnesses § 547, p. 489. A trial court has some discretion in limiting the examination on matters showing the interest of witnesses. 98 C.J.S. Witnesses § 568i, p. 527.

We have reviewed all of the points briefed and also those matters which are required to be examined under S.Ct. Rule 28.-02, V.A.M.R. We have discovered no prejudicial error.

The judgment is affirmed.

All concur.