text:
    CITY OF IRVING, Appellant, v. Lozell E. ORTON et al., Appellees.
    No. 4508.
    Court of Civil Appeals of Texas. Waco.
    June 16, 1966.
    Rehearing Denied July 7, 1966.
    John F. Boyle, Jr., City Atty., Irving, for appellant.
    McKool & McKool, Dallas, for appellees.
   OPINION

WILSON, Justice.

The City acquired a permanent easement across appellees’ 22j4-acre tract for sanitary sewer purposes by condemnation. It also obtained a temporary working easement on each side of the permanent easement. The first two issues submitted to the jury inquire as to the value of the tract taken. To issue 3 the jury found $800 damages for the temporary easement. To issue 4 the jury answered $5500 was the amount of reduction in market value of the remainder of appellees’ property exclusive of land within the permanent easement. There are no objections to the charge, which is unorthodox.

Appellant’s first six points assert inadequacy of evidence to support the answers to issues 3 and 4. The trial court required a remittitur of $1500. The evidence supports the judgment.

Complaint is now made of admission in evidence of six photographs. As to five of these appellant’s counsel told the trial court he had no objection. There are no supporting assignments in the motion for new trial as required by Rule 374. The points are waived. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887.

Other points as to evidence of comparable sales have been considered and are overruled. Affirmed.


source: Caselaw Access Project

author: BLAIR, Judge.

license: Public Domain

text:
    KANSAS CITY ASSEMBLAGE COMPANY, Plaintiff-Respondent, v. Albert R. LEA, Defendant-Appellant.
    No. 24445.
    Kansas City Court of Appeals. Missouri.
    June 6, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 1966.

      Ray D. Jones, Jr., Kansas City, for appellant.
    Roger Guffey, Fallon, Guffey & Jenkins, Kansas City, for respondent.
   BLAIR, Judge.

This action was commenced by Kansas City Assemblage Company, a corporation, against Albert R. Lea on July 3, 1961. The relevant averments of the petition were that Albert R. Lea was an employee of the Assemblage Company and that “during said employment, and specifically and continuously from January 1, 1951 through and including December 31, 1958, defendant used and converted funds of plaintiff corporation to his own use by paying personal debts and expenses with plaintiffs funds from time to time in the total amount of $4,540.29” and that on January 24, 1961 the Assemblage Company “made demand on the defendant for repayment of said sum” and that he failed and refused to pay. By his answer the defendant denied that he had wrongfully converted any funds of plaintiff corporation to his own use and alleged that the petition failed to state a cause of action for the reason that “it is barred by the statute of limitations in that the suit was filed July 1, 1961 for claims alleged in 1951 and 1952.”

The trial was before the court without a jury. The court found (1) “that by mutual agreement plaintiff for business purposes paid $1224.00 for membership in the Mission Hills Country Club which was held in the name of defendantthat “this membership could not be transferred to the plaintiff corporation when defendant severed his connection with plaintiff and was therefore retained in defendant’s name;” that “defendant, having elected to retain said membership, is indebted to the plaintiff for the cost thereofand (2) “that the defendant did not wrongfully convert any funds of plaintiff to his own use.” Judgment was accordingly rendered for the Assemblage Company and against Lea in the sum of $1224.00 and the costs were taxed equally against the parties. Lea appeals from the judgment against him in the sum of $1224.00 and Assemblage Company appeals from the judgment against it that Lea “did not wrongfully convert any of the funds of the corporation to his own use,” contending that it should have had judgment for an additional $1996.29 for funds it claims were converted by Lea.

We must review this controversy upon both the law and the evidence as in suits of an equitable nature. Neither judgment will be set aside unless it is clearly erroneous. Due regard must be given by us to the opportunity of the trial court to judge the credibility of the witnesses. However, if our review of the case forces the conclusion that either judgment is clearly erroneous, we will not hesitate to set aside that judgment and to direct a different one. Civil Rule 73.01(a), V.A.M.R.; Hanover Insurance Co. v. Abschal, Mo.App., 375 S.W.2d 605, 609; M.F.A. Mut. Ins. Co. v. Alexander, Mo.App., 361 S.W.2d 171, 178. We deal first with Lea’s appeal.

The Assemblage Company is a family corporation. Mrs. Winona Gilkey was at all times the controlling stockholder, its president, its alter ego and almost its sole owner. Prior to 1947 an insignificant number of shares had been issued to her two daughters and her son. In 1947 Lea became associated with the Assemblage Company as its vice-president and general manager. His wife was a daughter of Mrs. Gilkey. Three hundred sixty shares of stock were issued to Lea. On April 27, 1951, Lea joined Mission Hills Country Club and the company paid for his membership, $1224.00. At the trial, Mrs. Gilkey testified as follows : “Q Let me ask you, on April 27, 1951, were you aware that Mr. Albert Lea joined Mission Hills Country Club, and were you aware at that time that the corporation, Kansas City Assemblage Company, paid his membership fee? A Yes, I was aware of that. Q You were aware of that fact? A Yes. Q Did you object at that time to the fact that the corporation paid Mr. Albert Lea’s membership to that club? A No, because we wanted to help out.” Prior to the trial, Mrs. Gilkey gave testimony by deposition which was read to her at the trial and which she acknowledged to be correct. Her testimony was that she and Lea discussed the purchase of the Mission Hills Country Club membership before it was purchased. She stated “Well, he just said he was going to do it (purchase the membership) and would it be all right, and I said ‘Yes, Go ahead.’ ” She admitted she told Lea in that discussion that it was all right for the corporation to pay for the membership. She said she was aware of the fact that thereafter on April 27, 1951, the corporation paid for that membership.

After the purchase of the membership Lea used it to entertain customers and prospects of the company and he and his wife used it for social purposes. He always paid the club dues with his own personal funds. The membership was nontransferable and no one claimed that the company and its officers were not aware that it was impossible for Lea to transfer it back to the company or to any one else once it was placed in his name. There is nothing in the testimony of Mrs. Gilkey establishing that Lea agreed at any time, expressly or tacitly, to repay the company for the membership. She did not even testify that she expected repayment when the membership was purchased. She was asked if any demand had been made on Lea to “return any of these funds to the corporation” before January 24, 1961, and she answered “I think every year this was done.” She thought the Certified Public Accountant, Mr. Harry Kuehn, who supervised and adjusted the bookkeeping for the company, “did look it (Lea’s account) over.” The intimation conveyed was that Kuehn did demand repayment by Lea each year. She did not testify that she had any direct knowledge that this was done. She stated that Mr. Kuehn would know how much Lea was indebted to the company. Oddly enough, Mr. Kuehn was not called as a witness and no attempt was made to account for his absence. The inference is allowable that testimony from him would have damaged rather than aided the company’s cause. Her final testimony almost at the end of the trial was that she did not “remember” if she ever demanded payment from Lea for the membership until January 24, 1961, after Lea had been discharged from the company on December 31, 1958, and after he and his wife, her daughter, were divorced in 1960.

Adah M. Sturgeon, the bookkeeper for the company, testified for the company that although the membership was purchased on April 27, 1951, no entry was made in the books until June 30, 1951. She made an entry on that date in the ledger from the check written to Mission Hills Country Club in payment for the membership. That entry was: “Mission Hills Country Club” for the sum of $1224.00. No other entry was ever made and thereafter this entry was always carried in the ledger as written. She testified this entry was carried in the ledger as “a club expense.” She repeatedly testified under the most insistent and repetitious examination that the membership was never carried on any of the books as an account receivable from Lea or as an indebtedness of Lea to the company. Illustratively, and this is only one of several similar examples of her testimony, she testified as follows: “Q Did you, as the bookkeeper, treat that transaction of Mission Hills at that time as a debt or gift? The Court: I think we have covered that. It is on the books as a club membership. Q Did you put it on the books as a club membership? A Yes, sir.” Counsel representing the company did not then or at any other time raise any objection that the statement of the court was an inaccuracy. Miss Sturgeon’s testimony on the entire subject of the membership was always explicit, unequivocal and as we have recited it. It stood unchanged and unshaken at the end of the trial. She knew nothing of the arrangement between Mrs. Gilkey and Lea when the membership was discussed and later purchased and paid for by the company. She simply made the entry in the ledger at the direction of Mr. Harry Kuehn, the C.P.A.

Earl C. Padgett, the son of Mrs. Gilkey, testified that he became associated with the company in December, 1960, as general manager and that on January 24, 1961, through his attorney, he made demand on Lea “for a return of funds then due and owing the corporation.” He was asked where he obtained his information that Lea was “indebted to the corporation” and his answer was “from the company books”. He was asked if any journal entry in the books showed that Lea was “indebted to the company” for the membership. He stated that he knew of no such entry. He was asked if “any records in the books” indicated that the membership was “carried in the corporation accounts as an account payable from Mr. Lea to the corporation, or as a note payable to the corporation, or as a debt of any kind to the corporation?” The court said: “If he knows of any entries in the books, he may show the entry.” He did not show any such entry or testify that any existed. He was one of the persons who “caused this law suit to be filed against Mr. Lea”. This is the substance of all of his testimony which is relevant to the membership.

Albert Lea testified that he joined the Mission Hills Country Club at the urging of Mrs. Gilkey and his wife, Mrs. Gilkey’s daughter, “for business and personal reasons and my standing in the community.” The membership was given to him as a bonus. Mrs. Gilkey fixed all salaries and bonuses paid by the company, including Lea’s and her own. Lea stated that he believed the books would bear out that for 1951 he was allowed a bonus equal to one-half of the bonus Mrs. Gilkey allowed herself and that his bonus was diminished by the cost of the membership. He stated he was not familiar with the books and that they were handled by Mr. Kuehn and Miss Sturgeon. The books for 1951 did not support his belief that he drew only half as much bonus as Mrs. Gilkey. That year she allowed herself no bonus. She allowed Lea a $3,500.00 bonus. What the books did not show was whether Mrs. Gilkey, in calculating Lea’s bonus, diminished it by the cost of the membership. It is not argued to us that they do show that she did not decrease his bonus to that extent. Counsel for the company in their brief say that Mrs. Gilkey “denied any knowledge of an agreement whereby the defendant was to receive a yearly bonus equal to one-half of any bonus received by her as president and specifically denied that the club membership was transferred to the defendant as a part of his bonus for the year 1951” and cite us to the record.. The record does not support this statement. Her testimony was as follows: “Q You heard Mr. Lea in court here testify that you received a bonus and he received a bonus in 1951 and that part of his bonus was the membership in the Mission Hills Country Club. Is that true or not true? A I don’t remember any of that.” She finally stated that she thought the books would reflect such a transaction if it occurred but said “I am not too familiar with the books. Really, I am not.” Mrs. Gilkey did not deny that she agreed with Lea that the cost of the membership was to be charged against any bonus she allowed him for 1951 and she did not deny that she diminished his bonus to that extent. She would only say she did not remember. ' We see nothing in the testimony of either Mrs. Gilkey or Lea on this subject that aids the company’s case or impairs Lea’s credibility.

After the books were produced, Lea acknowledged that he was mistaken about the proportions between the bonus paid Mrs. Gilkey and him. He explained that she was regularly drawing large sums of money out of the corporation during 1951 and other years, and that was the reason she drew no bonus in 1951. It must be remembered always that Lea was testifying in April of 1965, after having been discharged from the company on December 31, 1958, about what he thought from memory the books would show about the bonuses for 1951. After the lapse of 14 years, and more than four years after he left the company, we believe he could easily have been honestly mistaken about the proportions between the bonuses which Mrs. Gilkey allowed herself and him for 1951. We believe he was only mistaken and that his mistake was an honest one. We have devoted much study to the testimony of Mrs. Gilkey and Lea. And we do not believe that Lea was mistaken when he said that the membership was to be paid for from his bonus. We do not believe he was lying. As an intelligent man, if he wanted to lie, he could simply have testified that Mrs. Gilkey gave him the membership without any strings attached. To us the story he told carried the ring of honesty and truth.

On the other hand, there is much in Mrs. Gilkey’s testimony that does not carry the ring of truth. Her statement “I don’t remember any of that” in response to Lea’s testimony is not convincing to us. She attempted to bolster it by professing an amazing ignorance of the affairs and books of the company and by insisting that she had little understanding of them. This does not ring true as testimony from the controlling stockholder of the company, its president, alter ego and almost sole owner. Actually there was convincing testimony that she and the C.P.A. together went over the books of the company each year “with a fine tooth comb” and wé believe this is true. It is unbelievable that she had so little knowledge of this prosperous and profitable company. Her failure to “remember” whether she ever demanded of Lea that he repay the company for the club membership until almost 10 years after it was purchased is to us incredible. This whole record gives us the settled impression that she was the kind of woman who would remember debts owed the company and the evidence was that she wanted them settled at the end of each fiscal year. She regularly went over the books and settled her own debts to the company at the end of each fiscal year. We believe that she would have made demand on Lea long before 1961 for payment for the membership purchased in 1951 if she thought anything was due from him.

Lea and her daughter were divorced in 1960 and we believe that this more than likely was a strong reason for the impairment of Mrs. Gilkey’s memory and this claim against Lea. - On cross-examination she was asked if she did not carry “an intense hatred” for Lea. An objection to this question specifying no ground was made and the court sustained it, excluding from the record this competent and vital information concerning her feeling toward Lea. Certainly we do not need to cite authority that this ruling was wrong. We are entitled to assume that if she had been permitted to answer this question truthfully her feeling toward Lea would have been elicited and that it would have discredited her professed lack of memory and her weak testimony. We can place no other interpretation on the refusal of her counsel to let her answer a question so palpably relevant.

Beyond what we have said already, counsel for Lea tried twice, while cross-examining Mrs. Gilkey, to develop that in October of 1960 Lea had turned over all of his stock in the company to her in full settlement of all obligations the company might then be claiming against him. An objection was made that an answer to the question would not be relevant to any issues in the case. It was sustained. Counsel for Lea then stated to the court: “I would like to make the following offer. That in October, 1960, Mr. Lea entered into a property settlement with Joyce P. Lea, his wife. At that time the attorneys were Mr. Koontz for Mrs. Joyce Lea and Mr. Gentry was attorney for Mr. Albert Lea. As a part of the settlement Mr. Lea, in paragraph 5, transferred and assigned to Winona Pad-gett (Gilkey) 360 shares of stock in Kansas City Assemblage Company which had a book value at that time of $24.21, and we are prepared to testify the true value was somewhere in the neighborhood of $50,000.-00 at that time. We urge this evidence before the court for the reason that this involved a complete settlement at that time between the corporation, Mrs. Lea, Mrs. Winona Padgett (Gilkey), here, and Mr. Lea as to any possible obligations at that time owing between these parties, and we further offer it to show that at that time it never occurred to this person (Mrs. Gilkey) that Mr. Lea was indebted to this corporation.” The court refused the offer. Counsel for Lea then asked the court to take the testimony and then exclude it, if the court adhered to its ruling, so that it would be in the record and this was refused. The court said: “Now, you can make offers in connection with your defense and if it is pertinent we will hear it.” Later counsel again made a similar offer to prove the same settlement by Mrs. Gilkey and the offer was again refused. Evidently the court believed that Lea could try to establish the settlement by his own testimony or by other witnesses but not by Mrs. Gilkey. Finally, his counsel did manage to work in one question to her: “Q Did you make a full settlement with Mr. Lea at that time (October of 1960) as to all obligations he owed you?” Mrs. Gilkey answered: “No”, and that was as far as counsel for Lea was permitted to examine her on this subject. Considering the manner in which the parties were trying the case, these offers were erroneously refused for they related to a settlement that would be a complete defense to the company’s claims against Lea, including the club membership and all monies claimed from Lea in this case.

While the offer of proof was erroneously excluded, it was complete and full, and since we review this case as one of an equitable nature, we are at liberty to consider the offer just as though the evidence had been admitted by the court. Zorensky v. Wellston Clothing Co., Mo.App., 223 S.W.2d 851, 855. This we do. The findings of a trial court in a non-jury case lose weight when material evidence is excluded or not given consideration. Allison v. Mildred, Mo., 307 S.W.2d 447, 453.

Lea later was allowed to testify in his own behalf that there had been such a complete and final settlement of all of his obligations to the company in 1960 in consideration for his transfer of his 360 shares of stock in the company to Mrs. Gilkey. He stated that at the time of the settlement no mention was made of any debt due the corporation from him for the club membership, and indeed that there was no suggestion that any of the claims involved in this suit even existed. He flatly stated that he would not have transferred the stock if there had been any intimation that he was later to be charged with bearing the company any obligation at all. Again his testimony strikes us as being reasonable and truthful.

Viewing the offers of proof wrongfully excluded and giving them weight, the weakening effect their exclusion has on the trial court’s finding against Lea, the palpable weakness and implausability of the testimony of Mrs. Gilkey and of the company’s whole case, the failure of the company to produce Harry Kuehn, the C.P.A., as a witness or to explain his absence, and the candid and persuasive testimony of Lea which we believe, we are forced to the conclusion that the trial court’s finding that Lea was indebted to the company for the club membership was plainly not supported by credible evidence and was clearly erroneous from any factual or legal standpoint. For, looking at this controversy from all sides, and giving due deference to the opportunity of the trial court to judge the credibility of the witnesses, we still cannot escape the conclusion that the membership was given to Lea as a bonus in 1951 in friendlier and happier times and that the emergence on January 24, 1961 of the claim that he was indebted to the company for it was an afterthought engendered by malice. Although we entertain the highest respect for the ability and perspicacity of the learned trial judge, “the obligation of due deference does not permit us to yield our own firm convictions because another tribunal possessed of an equal sense of justice may have found differently upon the same facts” and this is true even though the evidence is conflicting. Tebbe v. Tebbe, 223 Mo.App. 1106, 21 S.W.2d 915, 918. “If a careful consideration of all the evidence convinces us that a wrong decision has been made, we must not follow the easy way and affirm the judgment.” McBee v. Twin City Fire Ins. Co., 241 Mo.App. 404, 238 S.W.2d 685, 688; Wyler Watch Agency v. Hooker, Mo.App., 280 S.W.2d 849, 855. We must follow our duty and set the judgment aside.

We consider the company’s appeal which contends the trial court erroneously refused it an additional judgment for $1996.29. Miss Sturgeon, the bookkeeper, testified that the books showed that through 1951 to 1959 charges were made on the books for gasoline and repairs for Lea’s wife’s car. Altogether and over the years they amounted to the sum the company claims. She stated that all of these charges originally were carried as “company car” expenses. Later, Mr. Kuehn, the C.P.A., “journal-entried” these charges off and caused the books to show them to be charges against Lea personally. She did not testify why the C.P.A. changed the charges and no other witness shed any light on this subject. She did say the C.P.A. questioned them but she did not say why. Again we notice that the C.P.A. was not called as a witness for the company and that no attempt was made to account for his absence. We believe he could have given information valuable to the solution of this controversy. We have a right to infer that, it would have been injurious to the company’s cause.

Lea denied that he owed the company for anything. He said he had paid all of his obligations to it. Explaining these charges, he testified that he often used his own car and his wife’s car on the company’s business because Mrs. Gilkey was absent from Kansas City for long intervals and she took the only company car with her for her own personal use. The company’s business required an available car. The inference is plain that these car expenses were incurred while his wife’s car or his own car was in use on the company’s business. There is no evidence that Lea ever agreed to accept these charges as his personal debt. On the contrary,, he testified that he was never told by Mrs. Gilkey or any one else that they were owing to the company from him until January 24, 1961, after he had left the company, had made a final settlement with it and had been divorced from Mrs. Gilkey’s daughter. He said no one ever asked him for “one dime” until after the occurrence of all of these events. Mrs. Gilkey testified that she did not “remember” making any demand on Lea for these charges “at any time prior to 1961”. Yet the evidence is convincing that she was always concerned to know how the company’s money was being spent and checked thoroughly with the C.P.A, to inform herself. The offers of proof made by Lea’s counsel which we have set out in our discussion of his appeal also applied to these charges. As we have stated, they were refused by the trial court. We have a right to consider them here as though the evidence offered had been admitted by the court and we do.

Lea testified that he transferred his 3.60 shares of stock in the company to Mrs. Gilkey in complete settlement of all charges the company might ever claim against him, including these of course, and that he would not have made the transfer if he thought any claim was to be made in the future. We believe he told the truth. It would have been at war with every motive of his own self-interest for him to relinquish all of his stock in the company, asserted to be worth $50,000.00 and knowingly to leave himself open to any claim Mrs. Gilkey might choose to make against him in the future. People in control of their senses just do not act that way, especially when they have just gone through a divorce proceeding with the daughter of the woman with whom they are settling. What we have said in summing up the weaknesses of the company’s case in discussing Lea’s appeal applies with equal force to the company’s appeal. Its cause is weak and implausible and it strains credulity much too far. All in all, we are convinced that here again is the result of raking among old ashes in search for an ember still glowing enough to burn Lea. We have no hesitancy in declaring the search a failure. The judgment of the trial court against the company and for Lea was clearly right.

We have analyzed all of the authorities cited by the company on both appeals. Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527; Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710; Lively v. Ridgewood Construction Corporation, Mo.App., 371 S.W.2d 658; Webster v. Sterling Finance Co., 351 Mo. 754, 173 S.W.2d 928; In re: De Gheest’s Estate, 360 Mo. 1002, 232 S.W.2d 378; Murray v. Murray, Mo., 293 S.W.2d 436. We acknowledge the validity of the principles they enunciate. Sufficient it is to say that, added all together, they could not possibly warrant different decisions than we have made on the record before us.

Accordingly, this judgment against the company and for Lea is affirmed and the judgment against Lea and for the company is reversed. This cause is remanded to the trial court with the direction to enter our judgments for Lea and against the company on all issues presented by both appeals.

All concur.


author: HILL, Judge. MONTGOMERY, Judge

text:
    Edwin Thomas GEORGE, Jr., Appellant, v. John F. EVANS, Administrator of Estate of Aline Beatrice Evans, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Fielden Woodward, John P. Sandidge, Louisville, for appellant.
    Frank E. Haddad, Jr., Allen Schmitt, Louisville, for appellee.
   HILL, Judge.

The appellant, Edwin Thomas George, Jr., appeals from a judgment awarding $8,000 to the appellee, John ■ F. Evans, administrator of the estate of Aline Beatrice Evans, as a result of an accident in which she was killed by a car driven by the appellant.

On June 26, 1962, appellant was driving on Fehr Avenue, a one-way street for eastbound traffic only. The accident occurred at the intersection of Campbell and Fehr streets in Louisville.

At the intersection, a traffic light controls traffic in all directions. The decedent, Aline Beatrice Evans, a little girl six years and ten months of age and approximately three and one-half feet tall, was killed when struck by appellant’s automobile. Fehr Avenue runs east and west, and Campbell Street runs north and south. Fehr provides four nine-foot lanes; the two outside lanes allow parking. When not in use for parking, all four lanes are used by eastbound traffic.

Previous to the time of the accident, Mrs. Evans and her children, including the deceased, had been visiting at 722 Franklin Street. They had started home shortly before 5:00 p. m. and were proceeding south on the west side of Campbell on the sidewalk about a half block north of the intersection of Campbell and Fehr streets when the accident occurred. The mother was pushing a small baby in a Teeter-Tot. At the time of the accident, the mother was one-half block away from Aline as she and some of the other children ran ahead.

When the children reached the intersection of Campbell and Fehr, the traffic control light was red for traffic moving east through the intersection. Thus, there were cars heading east on Fehr in the first two lanes from its north curb waiting for the traffic light to change. The car in the second lane from the north curb of Fehr was driven by Robert Jackson, who witnessed the accident and later testified. A Mrs. Mantle was behind a truck in the line of cars in the lane next to the north curb of Fehr. The appellant was proceeding east on Fehr in the third lane from the north curb about “three or four” car lengths west of the crosswalk at about twenty or twenty-five miles per hour, according to his own testimony, when the light turned green for traffic traveling east on Fehr.

The deceased ran south from the northwest corner of Fehr and Campbell when the light was red for her and green for the traffic. She ran across the first traffic lane, which was against the north curb, and halfway through the second lane when the driver of the first car, Jackson, blew his horn and told her to go back to the north curb. At that time, she stopped and looked at Jackson momentarily and then proceeded, running across the crosswalk of Fehr when she was struck by appellant’s car. There were seven or eight cars in the second lane of traffic, it being the one in which Aline had stopped.

Appellant’s car was approximately eighteen inches from the right side of the Jackson car and was being driven in its proper lane. At the time of the accident, the Jackson car and all of the other cars in the first two lanes to the north had not started moving. About one-half block away, appellant said, he saw the traffic control light at Fehr and Campbell showing red, which caused him to slow his automobile gradually to approximately fifteen miles per hour. As he slowed down, the other cars to his left were at a standstill; the light changed to green in his favor, giving him the right-of-way when he was approximately five or six car lengths from the intersection. He proceeded to speed up to approximately twenty or twenty-five miles per hour and to go on through the intersection.

After striking deceased, he immediately applied his brakes, resulting in stopping his car with the front of his car even with the west line of the crosswalk on the east side of the intersection.

The deceased was knocked across the intersection with her body coming to rest four feet east of the east line of the east crosswalk of Fehr. The child died from injuries received in the accident.

The appellee introduced in evidence measurements taken by Professor W. _ R. McIntosh, a civil engineer and instructor at the University of Louisville. The meas-, urements tended to show that the Jackson car was some eleven feet from the deceased when she stopped in front of his automobile; that due to the make of the Jackson car, which was a Buick, and the appellant’s car, a Ford, the appellant should have been able to observe and see the deceased if he had been keeping a proper lookout.

The appellant contends that he was entitled to a directed verdict because there was no negligence proven on his part as the decedent suddenly darted out in front of appellant’s car. He was driving at a speed of twenty to twenty-five miles per hour and had his car under such control that he stopped it after the accident within thirty to thirty-six feet. Appellant contends he could not have anticipated that this child would suddenly dart from in front of the Jackson car into the path of his car.

Appellant testified he did not see deceased until the very moment of impact. Having traveled Fehr Avenue to get to his home, appellant admitted he was familiar with traffic conditions, the presence of pedestrians in the vicinity of Fehr Avenue and Campbell Street, and that one block away a housing project contained about five hundred families where children could be expected.

Deceased being under the age of seven years at the time of her injury and death was not chargeable with contributory negligence. Appellant pleaded contributory negligence on the part of the mother of deceased. All the evidence on this question was peculiarly within the knowledge of the mother. She testified she cautioned deceased to wait for her at Fehr Avenue. Her evidence later on was confusing as to when or whether she cautioned the deceased to wait; but conceding ar-guendo that it was two blocks away, the question of contributory negligence was a matter for the jury to determine, and its verdict absolved the mother of fault. We cannot say as a matter of law that the verdict is not supported by substantial evidence.

We now undertake to examine the facts to determine whether the finding of negligence on the part of appellant was justified. It is true appellant had the “green light” authorizing him to proceed; but he was in motion, traveling at about fifteen miles an hour when the green light came on. From his own testimony, he was from forty to sixty feet back of the crosswalk when the green light flashed his signal to proceed. He had a right to proceed. In doing so, he remained under three important duties and those were to (a) keep a lookout ahead; (b) travel at a reasonable rate of speed, and (c) keep his vehicle under reasonable control. Did he observe these duties? The answer to this question must take into account all the circumstances. The first, and perhaps the most salient circumstance, was the fact that the entire line of traffic in appellant’s left lane of traffic had not moved. Of course, that could have been attributable to a stalled motor or some other cause. But another logical reason, which was the real reason in this case, for its failure to move when the green light appeared was that a pedestrian was in the crosswalk. A person in the crosswalk travels about four to five feet per second, while one traveling-in a motor vehicle at twenty-five miles art hour will travel 29.4 feet. The pedestrian, often gets caught in the crosswalk after his right to walk has expired, but the rights of the pedestrian and those of the motorist at crosswalks are reciprocal ones. If there is any condition at the intersection that is reasonably calculated to place a driver on notice that a pedestrian is in distress, he cannot heedlessly speed through without taking due caution. In such a situation, the driver’s first concern should be to-determine whether a pedestrian is in distress, and he cannot do so without keeping-a lookout. A lookout will avail him nothing if he does not have his vehicle under reasonable control. What reasonable control is may differ, depending upon the driver’s ability to observe the crosswalk and the time of his passing with reference to the changing of the traffic signal. The nearer the time of changing of the signal, the greater the possibility of the pedestrian being in the crosswalk. A motor vehicle traveling at any rate of speed above fifteen miles per hour is an instrument of death and destruction when colliding with a human being, while a human being will inflict little damage by running into a standing motor vehicle.

Considering the peculiar circumstances of the present case, we conclude the jury was justified in finding appellant guilty of negligence. Cf. Potts v. Krey, Ky., 362 S.W.2d 726.

Next it is insisted by appellant that the trial court erred in admitting the testimony of an employee of the Kentucky Department of Economic Security, Division of Unemployment Service, on the prevailing wage scale of “domestic help.” Ap-pellee was only entitled to recover the loss of earnings of deceased after she arrived at the age of twenty-one years, which period would have commenced about fifteen years after her death. Earning power fifteen years hence is difficult to prove. Of course, the present rate of pay for domestic help may be some evidence of what it may be fifteen years hence. On the other hand, Negro girls twenty-one years of age fifteen years hence may not be limited to “domestic help.” It could well be that such persons may be the employers at that time. It was shown deceased was well and healthy and that was sufficient to support the $8,000 verdict. Based upon the life expectancy of 46.77 years for “non-white” females, the deceased would have earned over thirty thousand dollars at the rate of six dollars per dav.

Finally, appellant complains of the giving of a last clear chance instruction. This record discloses that the appellee’s decedent was in a perilous position from which she could not extricate herself and that appellant had a continuing duty of lookout. In these circumstances, the last clear chance doctrine is applicable. Severance v. Sohan, Ky., 347 S.W.2d 498; Saddler v. Parham, Ky., 249 S.W.2d 945; Riley v. Hornbuckle, Ky., 366 S.W.2d 304. The jury was fully justified in concluding appellant had a “last clear chance” to avoid the accident. Cf. United Fuel Gas Co. v. Friend’s Admx., Ky., 270 S.W.2d 946.

The judgment is affirmed.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent because I am in accord with the principles stated in Johnson v. Gaines, Ky., 313 S.W.2d 408, and Clayton v. Gray, Ky., 348 S.W.2d 938, holding the driver free of negligence under factual situations which are not distinguishable from the facts of the instant case. Further, under the doctrine of Whitesides v. Reed, Ky., 306 S.W.2d 249, the giving of a “last clear chance” instruction cannot be justified here. There are other cases that sustain the principles of the cases cited.

If the court is going to change the law it should, in all fairness, point out to the losing litigants and the profession generally the basis for distinguishing the cases, or else overrule them, so that the law may have some certainty and that some guide be established by which advice may be given and litigation may be conducted. The old saying “the devil can cite Scripture for his own purposes” will become equally applicable to the law, and that is bad.

Accordingly, I disagree with the majority opinion.

STEWART, J., joins in this dissent.


author: PALMORE, Chief Justice.

text:
    Ray COLEMAN et al., Appellants, v. The CITY OF MAYFIELD, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    July 27, 1966.
    Henry Jack Wilson, Mayfield, for appellants.
    Sam Boyd Neely, Mayfield, for appel-lees.
   PALMORE, Chief Justice.

This is a declaratory judgment action brought by various taxpayers against the City of Mayfield, its tax assessor, city clerk and city attorney seeking to invalidate and enjoin the collection of 1966 ad valorem taxes levied pursuant to assessments made as of September 1, 1965. On appropriate motions and pleadings the trial court dismissed the complaint.

Mayfield is a city of the third class. September 1 is the date fixed by its legislative body for the assessment of property subject to taxation. Cf. KRS 92.420. After this court’s opinions in Russman v. Luckett, Ky., 391 S.W.2d 694, and Miller v. Layne, Ky., 391 S.W.2d 701, were handed down on June 8, 1965, the city council and tax assessor moved promptly to insure compliance with Section 172 of the Constitution, which requires that all property not constitutionally exempted from taxation be assessed “at its fair cash value, estimated at the price it would bring at a fair voluntary sale”. The tax assessor proceeded to assess all such property at its fair cash value, following which the city council fixed the 1966 tax rate at 31⅜ per $100. For the year 1965 the rate had been $1.00 per $100.

The sole contention made by the taxpayers who instituted this suit is that the new assessment was unlawful, premised on the theory that under Russman v. Luckett and Miller v. Layne, a revaluation before January 1, 1966, was premature and arbitrary. Cf. Const. § 2.

Section 172 of the Constitution has been in full force and effect without interruption since 1891. Our opinions in Russman and Miller do not suggest that it was in a state of suspended animation until January 1, 1966. They simply recognized the practical impossibility of retroactive enforcement, and they directed compliance in Jefferson County on the next tax assessment date following rendition of the opinions, which date was January 1, 1966. Cf. KRS 132.220(1).

In this case there is no problem of enforcing compliance. With commendable diligence the responsible officials of the City of Mayfield have recognized their sworn constitutional obligations and have proceeded to carry them out. The decision of the circuit court is absolutely correct.

The judgment is affirmed.

MOREMEN, HILL and STEWART, JJ-, not sitting.


author: MONTGOMERY, Judge.

text:
    Henry Wilson FREEPARTNER, Appellant, v. Howard Wayne RUTLEDGE et al., Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Thomas L. Ray, Louisville, for appellant.
    Norman A. Curtis, Louisville, for appel-lees.
   MONTGOMERY, Judge.

Henry Wilson Freepartner appeals from a judgment entered on a jury verdict in favor of Howard Wayne Rutledge and Willard Shewmaker. Appellant had sued for damages suffered in a “sideswiping” collision between his truck and the truck of Shewmaker operated by Rutledge, Error is claimed in the selection of the jury, exclusion of testimony, and coercion of the jury.

The trial of the case began May 25, 1964. The jury was selected, and while appellant was testifying as plaintiff one juror fainted. By agreement the jury was discharged. The case was then reassigned for trial on the following day before the same panel. A jury was then selected. It was composed partly of jurors who had served on the abortive trial the previous day and partly of jurors on the panel who had not heard the previous opening statements and testimony. No objection to this procedure was made by either party.

Appellant now insists that he was deprived of an impartial jury and that this constitutes a palpable error affecting his substantial rights within the meaning of CR 61.02. It has been held that jurors who served in one proceeding by a gas company to condemn a pipe line easement were not incompetent to act as jurors in another and similar condemnation proceeding by the gas company. United Fuel Gas Company v. Hieneman, Ky., 272 S.W. 2d 813. Membership on a grand jury does not necessarily disqualify a juror for implied bias when called on the trial of an indictment returned by the grand jury. Riley v. Commonwealth, 190 Ky. 204, 227 S.W. 146. Appellant does not point out any way in which he was prejudiced, which is necessary to constitute “palpable error.” In such absence the error, if any, is harmless. CR 61.01. It was not raised by timely objection. Little v. Whitehouse, Ky., 384 S.W.2d 503.

The trial court upon its own motion excluded testimony concerning certain debris because there was no competent evidence “tying up that debris with these two vehicles.” Appellant had introduced the two witnesses but no objection was made by appellant’s counsel at the time of the ruling or until a motion for a new trial was filed. The failure to object is fatal. CR 46. Division of Parks, Dept. of Conservation v. Hines, Ky., 316 S.W.2d 60; Little v. Whitehouse, Ky., 384 S.W.2d 503.

Finally, appellant complains that the jury was coerced into making a verdict. The case was submitted to the jury about 2:10 p. m. After deliberating until about 5:10 p. m., “the Court called the Jurors out and inquired as to whether in their opinion they could reach a verdict, cautioning the Jurors not to reveal the positions which they occupied with relation to a verdict. Seven of the Jurors indicated that they felt that a verdict could be arrived at while five of the Jurors indicated that they did not feel a verdict could be arrived at. The Court then read to the Jury a statement, the effect of which was that any verdict arrived at should be the verdict of each individual Juror but that if a majority of the Jurors were for the Plaintiff then the minority should examine their thinking to determine whether or not it was sound and if a majority was in favor of the defendant that the minority should examine their thinking to determine whether it was sound. Following the reading of this statement the Court then stated ‘now I want you to go back into the Jury Room and reach a verdict.’ The Jury then retired at approximately 5:20 P.M. and brought in a verdict at approximately 6:20 P.M.” The quotation is from the affidavit of appellant’s counsel filed in support of his motion for a new trial.

Appellees insist that the action taken was properly within the discretion of the court, that the claimed error was improperly preserved, and that no timely objection was made. The first point made is correct on the basis of the principles discussed in Abbott v. Commonwealth, Ky., 352 S.W.2d 552. See also Brannon v. Commonwealth, Ky., 400 S.W.2d 680. Under those principles there was no abuse of discretion. In this view of the case it is unnecessary to discuss the second point raised, • but it may be noted that no objection was made when the jury was sent back for further deliberation. Little v. Whitehouse, Ky., 384 S.W.2d 503. There is no merit in appellant’s claim of jury coercion.

Judgment affirmed.


author: CULLEN, Commissioner.

text:
    Donald BALL, Appellant, v. Henry STUMBO, Appellee.
    Court of Appeals of Kentucky.
    July 27, 1966.
    James T. Carey, Carey & O’Bryan, Louisville, Joe P. Tackett, Tackett & Tackett, Prestonsburg, for appellant.
    Barkley J. Sturgill, County Atty., Harris S. Howard, Howard, Francis & Howard, Prestonsburg, for appellee.
   CULLEN, Commissioner.

The question presented on this appeal involves the scope of a proposed local option election.

Floyd County, Kentucky, is a “dry” county pursuant to a county-wide local option election held a number of years ago. In April 1966 a petition was filed with the county court asking that a local option election be called in the county. In June the county court entered an order, pursuant to the petition, calling a county-wide election. Thereupon the appellant herein, a citizen, taxpayer and registered voter of the City of Prestonsburg, suing for himself and on behalf of all persons similarly situated, brought this action in the circuit court seeking a mandatory order to compel the county court to amend its order calling the election so as to provide for separate balloting and tabulation of votes in Prestonsburg and Martin, which are fourth-class cities. The circuit court entered judgment dismissing the complaint, from which judgment we have this appeal.

The appellant maintains that under KRS 242.125 the local option status of the two fourth-class cities is to be determined by separate balloting and tabulation of votes. We do not so construe the statute in application to an election in a “dry” county.

Subsection (1) of KRS 242.125 authorizes the calling of a local option election in any city of the fourth class or larger in a “dry” county. It does not provide for separate voting by such cities when a county-wide election is called in a “dry” county.

Subsection (2) of the statute provides for separate votes by cities of the first four classes when a county-wide election is called for a county that is not entirely dry but only has dry islands in it. Obviously, Floyd County is not in that category.

The remainder of KRS 242.125 has no application here.

In the light of the history of local option in Kentucky there is no ground for a plea that this statute should be liberally construed and extended beyond its literal terms. KRS 242.125, enacted in 1948, represents the only encroachment that the legislature has permitted in over fifty years upon the solid “county-unit” principle. See Stephens v. Stumbo, Ky., 239 S.W.2d 995. The extent of the encroachment is simply that cities of the first four classes may escape from an existing county-unit situation by the calling of separate, special elections. We find no indication that the legislature intended to give the cities the further freedom of voting separately in connection with an effort to vote an entire “dry” county wet.

To adopt the construction advanced by the appellant would be to give the “wet” forces multiple choices in seeking to change a “dry” situation. We are quite sure the legislature did not intend to open the door that far.

We find nothing in the cases relied upon by the appellant, such as Mastin v. Cornett, Ky., 373 S.W.2d 424, Stephens v. Stumbo, Ky., 239 S.W.2d 995, Halcomb v. Faulkner, Ky., 238 S.W.2d 162, and Karloftis v. Wells, 312 Ky. 722, 229 S.W.2d 477, to dictate a conclusion different from the one we have reached.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Robert L. HUDNALL et al., Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Robert Matthews, Atty. Gen., H. C. Smith, Frankfort, Deddo G. Lynn, Wm. O. Gilbreath, Lexington, for appellant.
    W. Earl Dean, Harrodsburg, Walter Patrick, Lawrenceburg, for appellees.
   MILLIKEN, Judge.

The Department of Highways has appealed an $8,500 judgment for the taking of 7.53 acres in Anderson County for the construction of the Bluegrass Parkway. Both parties had appealed the $6,214 judgment rendered in the County Court for the taking of the property. The taking divided the farm, leaving 4.26 acres on the north side of Ky. S3 and 38.21 acres on the south side on which there are no improvements and no water. On the land taken were the farm’s two ponds and sole water supply, “an everlasting spring,” and several acres of alfalfa. The owner had bought the farm in 1959 for $5,000, but since then had constructed a 6-room frame home and cleared an additional 10 acres of bushes. All of the improvements — the house, the barn, the chicken houses — are on the 4.26 acres on the north side of the road.

The Department contends that the judgment is excessive but concedes that it is within the range of the testimony. The maximum before-value set by the Department was $19,500, while that of the landowners was $22,000. The maximum difference between before- and after-values set by the Department was $2,810, while that by the landowners was $9,000. The Department contends that both of the landowners’ appraisal witnesses were holders of public office, sheriff and county treasurer, which fact undoubtedly affected their objectiveness in appraising property of their constituents. Suffice it to say, the two officer-witnesses were certainly qualified by vast knowledge of property values in Anderson County and were familiar with the improvements and topography of the subject property. They recited a number of comparable sales which reflected a fair estimation of property values in the community, and they pointed out that the subject property ceased “to be a farming unit after the road goes through.” The loss of the water source and the division of the farm made it no longer suitable for dairying or grazing purposes. The Department had full opportunity to cross-examine defense witnesses and did not attempt to impeach them, for it is apparent from the record that these witnesses had detailed knowledge of property values in the community and gave good reasons for their appraisals of the subject property.

The judgment is affirmed.


text:
    Stella SLOAN et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    July 1, 1966.

      Daniel N. Brock, Brock & Brock, Lexington, for appellants.
    Robert Matthews, Atty. Gen., William A. Lamkin, Asst. Atty. Gen., Deddo G. Lynn, Lexington, for appellee.
   MILLIKEN, Judge.

The landowners have appealed a $12,775 judgment for a tract of land taken by the Department of Highways at the intersection of the Old Paris Pike (North Limestone) and North Broadway in Lexington. The County Court had awarded $18,012.80 which was paid to the landowners when the Department took possession, the Circuit Court judgment appealed here thus being substantially less than the County Court judgment entered on the appraisal by commissioners appointed by the Court. As a result, in addition to the $12,775 award for the land taken, the Circuit Court judgment required the landowners to refund the Department the difference between the two judgments plus interest from February 11, 1963, to April 22, 1964, amounting to $915.53. The landowners had insisted and persisted that the land taken was worth $40,000, and so appeal here a judgment they contend is not just compensation for the land taken.

The land condemned fronts 295 feet along the Old Paris Pike and North Broadway and the rear of the property runs about 320 feet along the Louisville & Nashville Railroad right of way. It is across the highway from the Joyland Amusement Park, though a bit closer to Lexington. The land actually taken was 1,740 square feet from a total area of 31,640 square feet, but a 205-foot long retainer wall was built along the property which reduced access to two entrances, whereas before the wall was built it was accessible from the highway along its entire frontage. The construction also resulted in the grade of the highway being raised two (2) to three (3) feet above the grade of appellants’ property. There was a small home, a small tavern, a duplex, and a market and fruit stand on the premises, but none of these was taken. The property was zoned Residence One at the time of the taking although it was in a special category designated as a nonconforming use. Attempts to have it zoned commercial were rejected because of lack of sewer lines and the curve in the highway and railroad underpass made the location hazardous for any use which generated increased traffic. Oil companies had shown an interest in the location for the erection of a gasoline filling station, dependent on rezoning to commercial.

One of the grounds urged for reversal is the refusal of the trial court to admit certain photographs into evidence which were taken during the construction and after the retaining wall was built. These photographs, of course, showed the reduction of access and the change of the grade of the highway as well as implied the nature of the damage to the remainder. The jury viewed the property, but the landowners contend that the photographs offered in evidence pointed up certain damages which might not be observed in a casual jury view.

On the other hand, the Department contends that the photographs did not represent the property either before or after the taking, were intended to impress the jury with a particular phase of the case, and were cumulative in effect because of the jury’s view of the property and the testimony at the trial. The Department argues that it would have been prejudicial to have admitted them but, at any rate, it was not prejudicial to deny their admission.

We do not find it necessary to decide whether the photographs were admissible, for we conclude that their rejection was not prejudicial in view of the oral testimony at the trial and the jury’s view of the property. The photographs might have tended to stress improperly the reduction of access to the premises from the highway. The trial courts are allowed a broad discretion in admitting or rejecting them. 20 Am.Jur., Evidence, Sec. 727 and Sec. 729. Where photographs portrayed a temporary condition during construction, we have held them inadmissible as having no relevance to market value. Commonwealth, Department of Highways v. Quisenberry, Ky., 402 S.W.2d 427, decided April 29, 1966; Commonwealth, Department of Highways v. Staples, Ky., 388 S.W.2d 374 (1965). Even if we concede arguendo that the photographs here offered reflect a permanent condition so far as the retaining wall is portrayed, they stilll do not reflect the situation when the job was completed and it is that upon which the after-condemnation value of the property must be determined.

The Department invoked the statutes (KRS 177.220 through 177.310) covering limited access highways in condemning the subject parcel. The land must be valued in condemnation cases on the basis of its use at the time of taking unless it can be shown that there is an expectation or probability of other uses in the near future which would augment its value, Commonwealth, Department of Highways v. Creason, Ky., 402 S.W.2d 426, decided April 29, 1966, but loss of some access to the property is not compensable as long as the owners retain reasonable means of access as they did in the present case. Commonwealth, Department of Highways v. Lawton, Ky., 386 S.W.2d 466 (1965). In fact, it was proper for the trial court to exclude testimony as to loss of access where the owners had adequate access to the land for the uses to which it was devoted at the time of the taking as was the case here. Jennings v. Commonwealth, Department of Highways, Ky., 388 S.W.2d 133 (1965). Because of their inability to obtain rezoning of the property, its usage for a gasoline filling station was precluded before the condemnation, so evidence as to its unfitness for that purpose after the construction of the retaining wall was not proper because the limitation on the access was noncompensa-ble so long as the property had adequate access for its current uses, which it did in this case. The purpose of the Department in raising the grade and constructing the retaining wall was proper whether it was for channeling traffic at a bad intersection or whether it was for limiting access to the subject property, or both, for each was within the police power to make the highway safe for public use.

The judgment was within range of the proof, but that part of the judgment decreeing that the property owners pay the State interest at 6% on the excess of the County Court judgment over the verdict and judgment here appealed is questioned as violative of Sections 13 and 242 of the Constitution. KRS 177.087(5) directs payment of interest in such circumstances because the landowners have had use of the money. Section 242 of the Constitution declares in part:

“Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction. * * *«

In the 1949 case of Barker v. Lannert, 310 Ky. 843, 222 S.W.2d 659, at page 664, we said, “It is obvious that the just compensation referred to in both sections 13 and 242 of the Constitution, since it must be paid in advance of occupation, was not intended to be the compensation finally, if ever, fixed by a jury on appeal. The only other construction to be given to the act is that the just compensation referred to in those sections is the compensation required to be fixed before the entry of the judgment in the county court allowing the con-demnor to take possession of the property.” The Act referred to was KRS 416.280(6) which is almost identical to KRS 177.087 (5) authorizing the collection of interest in the case at bar. In Barker v. Lannert, only the payment of court costs by a landowner who lost his appeal was at issue, and the Court held the provision of KRS 416.-280(5) violated Section 242 of the Constitution which declared in relevant part that “The General Assembly shall not deprive any person of an appeal from any preliminary assessment of damages against any such corporation or individual made by Commissioners or otherwise; * * *.” In Lannert the Court commented: “If the landowner were required at pay the court costs of any part of the procedure prescribed (in Section 242), the amount of compensation awarded him for his land necessarily would be reduced by the amount chargeable to- him in the taxation of costs. To this extent, he would be denied his constitutional guarantee of just compensation under sections 13 and 242.”

We do not believe the same reasoning applies to the imposition of interest on the landowners in the case at bar. In Lannert the landowner would have netted less than his just compensation, in the meaning of the Constitution, if he had had to pay the court costs. In the case at bar, the landowner received more than just compensation for the original taking in the constitutional sense, and we can see no just reason for relieving him from paying interest on his use of the excess payment. The interest may be avoided in whole or in part by not accepting the excess payment at the time of the taking, a privilege which would rarely be exercised, human nature being what it is.

The judgment is affirmed.


text:
    Milton Ray SULLIVAN, Appellant, v. Roger C. STRONG, Appellee.
    Court of Appeals of Kentucky.
    April 22, 1966.
    Rehearing Denied July 1, 1966.
    J. Walter Clements, Louisville, for appellant.
    Harry L. Hargadon, Jr., Hargadon, Har-gadon, Lenihan & Harbolt, Louisville, for appellee.
   THOMAS J. HENNESSY, Special Commissioner.

On August 4, 1960, the appellee was a guest-passenger in the automobile operated by the appellant as they traveled beneath a railroad viaduct on Third Street near Eastern Parkway in Louisville, Kentucky. It was a warm night, and the appellee had his arm resting on the windowsill of the automobile. The appellant allowed his car to gradually move over next to the right-hand side of the viaduct and in so doing the appellee’s right elbow struck the edge of the viaduct, and the injuries complained of resulted.

A number of conflicting statements, some written and signed by the parties, were made. From the testimony given at the trial, the following facts seem clear: The two young men were long-time friends and had, prior to the accident, been together for three and one-half to four hours driving about Louisville with numerous stops to drink beer. The driver of the car admits to consumption of eight or ten beers, but both parties state that though they could tell they were drinking, the drinking did not in any way affect them.

From a judgment in favor of the appel-lee, guest-passenger, the appellant, driver, here appeals.

When is a person intoxicated within the meaning of the law ? The answer has been clearly stated by this court in Tate v. Bor-tón, Ky., 272 S.W.2d 333, wherein the court said:

“ ‘Drunkenness’ is a relative term. To some it means one thing, and to others something else. To most people perhaps it means an excessive degree of intoxication. It does not necessarily mean stupefaction or helplessness. It is not necessary that a person be ‘blind drunk’ or ‘plastered’ or ‘drunk as a boiled owl,’ to use some of the vernacular expressions, in order for him to be intoxicated within the meaning of the law. A person is intoxicated when he is under the influence of an intoxicant to such extent that his physical or mental faculties are affected and his judgment impaired. 29 Am.Jur., Insurance, page 763, section 1010.”

It is the feeling of this court that the case of Lewis v. Perkins, 313 Ky. 847, 233 S.W.2d 984, is a case on all fours with the present one in that the facts of the two cases cannot be distinguished. There, as here, the trial court submitted the case to the jury, and it found for the passenger against the driver. In reversing the judgment, this court said:

“Here, * * * the question is whether appellant, ‘was under the influence of intoxicants to such an extent that his driving was affected, and whether appel-lee knew, or by the exercise of ordinary care, could have known this fact.’ It was a clear day, the road was dry, and there was nothing wrong with appellant’s car. He could not account for his crashing into a tree. He had no theory as to why the accident occurred. Appel-lee and appellant, as well as the others, had been drinking ‘often and copiously’ from the time they reached Lebanon until immediately before the accident. It is obvious, we believe, that the facts and circumstances of this case point unerringly to the cause of the wreck — too much beer.”

Also Kavanaugh v. Myers’ Adm’x, Ky., 246 S.W.2d 451; Cosby v. Younger, Ky., 311 S.W.2d 389. It is true in the instant case that the driver did have a theory as to why the accident occurred. The appellant’s version that, “I just didn’t judge the distance right,” does not distinguish this case from Lewis v. Perkins, and the latter controls.

The facts in Spivey’s Adm’r v. Hackworth, 304 Ky. 141, 200 S.W.2d 131, are similar to those in this case, and what is said in summary there is equally applicable here. The pertinent part of the opinion reads:

“There is no contradiction of the evidence that the decedent was riding in the car knowing full well that the driver was drinking or drunk. * * * where a person voluntarily rides in an automobile knowing the driver to be in that condition, he is guilty of contributory negligence which precludes recovery of damages for injuries he sustained.”

On the facts, the trial court should have granted a directed verdict on behalf of the driver. Again, to reiterate, it is obvious, we believe, that the facts and circumstances of this case point unerringly to the cause of the wreck — too much beer.

Judgment is reversed.


author: PER CURIAM.

text:
    NEWSPAPERS, INC., Petitioner, v. Gerald Witt LOVE et al., Respondents.
    No. A-11257.
    Supreme Court of Texas.
    July 13, 1966.
    Rehearing Denied July 13, 1966.
    Coleman Gay, Austin, Jackson, Walker, Winstead, Cantwell & Miller, W. B. Patterson and Jack Pew, Jr., of above firm, Dallas, for petitioner.
    Byrd, Davis & Eisenberg, Austin, Tom Blackwell, Dist. Atty., Austin (Guardian Ad Litum), for respondents.
   ON MOTION FOR REHEARING APPLICATION FOR WRIT OF ERROR

PER CURIAM.

We refused this application for writ of error with the notation, "refused, no reversible error.” Rule 483, Texas Rules of Civil Procedure. Such action is not, however, to be taken as approval of the holding of the Court of Civil Appeals that each of the twenty-six enumerated items appearing at 397 S.W.2d 469, 473-75 constitute evidence showing a right of control by Newspapers over the district managers generally. On a prior appeal of this case we held that the contract between Newspapers and Cargile, a district manager, definitely fixed his status as that of an independent contractor unless said contract was originally a subterfuge or had been modified by a subsequent agreement expressed or implied. Newspapers, Inc. v. Love, Tex., 380 S.W.2d 582, at 590. Our action in this case, furthermore, is not to be taken as any disregard for the rule established in this state that the distribution of newspapers to individual purchasers thereof may be accomplished through the medium of independent contractors, provided that such distribution is effected under and consistently with a contract similar in terms to the one considered by the court in Carter Publications, Inc. v. Davis, Tex.Civ.App. (1934), 68 S.W.2d 640, wr. ref. See also Mid-Continent Freight Lines, Inc. v. Carter Publications, Inc., Tex.Civ.App. (1960), 336 S.W.2d 885, wr. ref., and the authorities therein cited. The motion for rehearing is overruled.


author: GRIFFIN, Justice.

text:
    Marshall ROSENFELD et al., Petitioners, v. A. V. STEELMAN et al., Respondents.
    No. A-11244.
    Supreme Court of Texas.
    July 13, 1966.
    Rehearing Denied July 27, 1966.
    Strasburger, Price, Kelton, Miller & Martin, Robert H. Thomas, Thomas C. Unis, with above firm, Dallas, for petitioners.
    Saner, Jack, Sallinger & Nichols, Dallas, for respondents.
   GRIFFIN, Justice.

This is an action for declaratory judgment instituted in a district court of Dallas County, Texas, by Marshall Rosenfeld and Julius Coleman against A. V. Steelman, Guy Vince, Harold Shank, City Secretary of the City of Dallas, and Tom E. Ellis, County Clerk of Dallas County, Texas. The suit asked that the trial court determine that certain premises, described by metes and bounds, and held by Vince and Steelman as lessees, lie in “dry” Justice Precinct No. Four of Dallas County, Texas, and not in “wet” Justice Precinct No. One, Dallas County, Texas. Defendants Ellis and Shank filed an answer in which they asked the trial court to determine whether or not the land in controversy was located in “wet” or “dry” territory, and they would conform to the court’s judgment.

Defendants Vince and Steelman filed their first trial amendment on the final day of trial and therein alleged that they were the owners of a leasehold interest in a portion of the tract of land described in pararaph 2 of plaintiffs’ original petition; that they held this land under a lease for twenty (20) years commencing February 18, 1963, and of record in a certain volume and page of the Deed Records of Dallas County, Texas. They alleged that this land was located in Justice Precinct No. One of Dallas County, Texas, and within an area where sale of alcoholic beverages is legal. They alleged that Shank and Ellis refused to certify that such area is a “wet” area and asked for a court order directing Shank and Ellis to certify, as a matter of law, that the land is in Justice Precinct No. One, where the sale of alcoholic beverages is legally authorized.

The case was tried before the court and judgment entered “that the sale of alcoholic beverages is not lawful on the land described in plaintiffs’ original petition.”

Steelman and Vince appealed and filed the record in the Court of Civil Appeals on June 4, 1965. Both appellants and appellees filed their briefs in the Court of Civil Appeals within the time required by the Texas Rules of Civil Procedure.

On November 2, 1965, a few days prior to oral argument, one J. B. Lesley, through his attorney, filed a motion to be permitted to file an amicus curiae brief to bring to the attention of the Court of Civil Appeals “facts not apparent from the record which show that the trial court did not have jurisdiction to render its judgment in the declaratory action and that said judgment is void. In accordance with Rule 406, Texas Rules of Civil Procedure, the affidavit of Mr. J. B. Lesley is attached hereto, furnishing evidence of jurisdictional facts not apparent in the record.” Mr. Lesley’s affidavit recites that he is owner in fee of the tract of land involved in this litigation and the lessor of Vince, and entitled to the reversionary interest including all improvements at the expiration of the lease [Vince and Steelman alleged the term to be twenty years] and he offers to testify as to the location of the land in the “wet” part of Justice Precinct No. One. In the brief it was urged that J. B. Lesley was the owner and lessee of the land in question and was a necessary and indispensable party but not made such in the court below.

Unless otherwise indicated, all emphasis herein is that of this Court.

The Court of Civil Appeals considered the affidavit and examined the lease which had been introduced in evidence and is shown as an exhibit to the statement of facts; and held Lesley was a necessary and indispensable party; and although no objection for lack of a necessary party had been made by either side below and no assignment to this effect was contained in the motion for new trial or in appellants’ brief, the court held the error was “fundamental error” and reversed and remanded the case to make Lesley a party. 397 S.W.2d 906.

The Court of Civil Appeals could not consider Lesley’s affidavit to determine the jurisdiction of the trial court, but must be bound by the record made in that court on the trial and filed in the Court of Civil Appeals on appeal.

The case of Chrisman v. Graham, 51 Tex. 454 (1899) was a trial of the right of property levied upon by the sheriff of Coryell County, Texas. The sheriff had valued the property at $400.00. Suit was brought in the district court. The Constitution provided the district court had jurisdiction of such suits only when the value of such property was “equal to or exceed [s] in value five hundred dollars.” Art. V, Sec. 8, Vernon’s Ann.St. Judgment was rendered for plaintiff. In the Supreme Court the plaintiff, in order to sustain the jurisdiction of the district court, sought to file an affidavit showing that the defendant in the execution was judge of the County Court of Coryell County and that Chris-man was his son-in-law. The Constitution at that time provided in Art. V, Sec. 16 that in the event the County Judge was disqualified to try a cause by virtue of relationship or otherwise, the district court had original jurisdiction.

The Supreme Court refused to consider this affidavit, saying that the power -given the Supreme Court to ascertain matters “by affidavit or otherwise” applies only to the ascertainment of its own jurisdiction, but does not authorize inquiry into the jurisdiction of the court below by evidence aliunde the record. The Court reversed the judgment of the court below because the record on appeal showed affirmatively that the trial court had no jurisdiction. The Court said:

“Chief Justice Wheeler says that ‘nothing can be more perfectly clear, than that this court can only revise the judgment of the District Court for errors apparent upon the record. To entertain the question of fact for decision, for the first time, in this court, as a ground for reversing the judgment, would be plainly violative of the Constitution, which confers upon this court, in reference to the judgments of the District Court, appellate jurisdiction only.’ (Brown v. Torrey, 22 Tex. 54; Hart v. Mills, 31 Tex. 304.)”

To the same effect is the case of Nalle v. City of Austin et al., 85 Tex. 520, 22 S.W. 668, 960 (1893), wherein Judge Gaines in discussing Art. V, Sec. 3 of the Constitution, providing that the Supreme Court has power to determine by affidavit or otherwise “such matters of fact as may be necessary to the proper exercise of its jurisdiction,” said:

“But we do not understand that this provision of the constitution applies to questions which were put in issue, or could have been put in issue, in the trial court, but only to such as may arise after a final disposition of the case in the court from which the appeal was taken. * * * The question whether or not the trial court had jurisdiction must be determined by the record.” (Emphasis added.)

Art. 1822, Vernon’s Texas Civil Statutes governing Courts of Civil Appeals, is practically in the same language as .that of Art. V, Sec. 3 of the State Constitution governing the Supreme Court. Article 1822 provides:

“Said courts shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction.”

Rule 406, Texas Rules of Civil Procedure applying to the Court of Civil Appeals provides :

“Motions made either to sustain or defeat the jurisdiction of the court, dependent on facts not apparent in the record and not ex officio known to the court, must be supported by affidavits or other satisfactory evidence.”

These provisions have been held to apply only to the determination by the Court of Civil Appeals of its own jurisdiction, and not to a determination of the trial court’s jurisdiction.

In the case of County School Trustees of Jackson County v. Edna I. S. D. (Tex.Civ.App., 1928), 9 S.W.2d 506, 508, affirmed on other grounds (Comm. of App., 1931), 34 S.W.2d 860, it is said:

“There is nothing upon the face of the petition showing that the Blair common school district had such legal or vested right in the subject-matter of this suit as to make its presence in the suit indispensable to the power or jurisdiction of the court to render the decree sought by plaintiffs, and, in the absence of a plea of nonjoinder of necessary or proper parties, we are not authorized to reverse the judgment because of the failure of plaintiffs to make it a party defendant.”

See also Traders & General Ins. Co. v. Garry et al., 135 Tex. 290, 143 S.W.2d 370, 372 (1940); St. Louis S. W. Ry. Co. of Tex. v. Anderson et al. (Tex.Civ.App., 1918), 206 S.W. 696, 698, writ refused; Poole v. Mueller et al. (Tex.Civ.App., 1895), 30 S.W. 951; Cook v. Ochiltree County et al. (Tex.Civ.App., 1933), 64 S.W.2d 1018, no writ history; Texas & P. R. Co. v. Hood (1910) 59 Tex.Civ.App. 363, 125 S.W. 982, 983-984, no writ history; Fruit Dispatch Co. v. Independent Fruit Co. (Tex.Civ.App., 1917), 198 S.W. 594, no writ history; Bingham v. Graham (Tex.Civ.App., 1920), 220 S.W. 105, 109, no writ history; 10 T.L.R. 231.

We hold that inasmuch as the record in the Court of Civil Appeals did not show that Mr. Lesley was an indispensable party, having an interest in this declaratory judgment suit which would prevent the trial court from fully adjudicating the rights of those who were parties to the suit, the Court of Civil Appeals had no authority to consider Mr. Lesley’s affidavit filed in that court long after the trial court record had been filed, and erred in its judgment.

The Court of Civil Appeals raised the question of the necessity for Mr. Lesley to be made a party in the trial court on its own motion. It decided this cause on that point alone and did not consider or discuss the points of error raised by the appellants.

Among the points of error appellants have one on the “insufficiency” of the evidence. This Court has no jurisdiction to decide this point, therefore the case must be returned to the Court of Civil Appeals for its consideration of the points of error raised by appellants in their brief in that court.

The judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding the cause to the trial court is reversed and this cause is remanded to the Court of Civil Appeals for consideration and disposition of appellants’ points of error.