author: ARCHER, Chief Justice.

text:
    SECHRIST-HALL COMPANY, Appellant, v. HARLINGEN NATIONAL BANK, Appellee.
    No. 11095.
    Court of Civil Appeals of Texas. Austin.
    May 15, 1963.
    Rehearing Denied June 5, 1963.
    Johnson, Hester, Jenkins & Toscano, Harlingen, for appellant.
    Orrin W. Johnson, Harlingen, for ap-pellee.
   ARCHER, Chief Justice.

Appellee, Harlingen National Bank, brought this suit on a note and chattel mortgage against L. O. Luper, mortgagor, and Appellant, Sechrist-Hall Company, as purchaser of the three units of a central air-conditioning system covered by the chattel mortgage, and recovered judgment against said parties jointly for conversion in a trial before the court without a jury for the value of said mortgaged items of $1,131.02 (including interest) and for the amount of appellee’s full debt against Luper in the sum of $2,226.46. L. O. Luper has not appealed.

The point on which this appeal is founded is that where appellee bank consented for Luper to sell the mortgaged equipment and collect the proceeds, it waived its right to recover from appellant for conversion and the lower court erred in rendering judgment against appellant. ,

The Court made findings of fact and conclusions of law, to which no exceptions were taken or objections made.

In brief, the Court found that the note and mortgage were executed and filed for record, and that the total amount due the bank aggregated $2,226.46, and the reasonable value of the three items, describing them, was $1,050.00.

The Court found that the company employed Luper on April 30, 1960 to construct an air-conditioning system by oral agreement, and agreed to pay Luper the costs of materials and equipment and for time and labor; that in May Luper.ordered the three items of air-conditioning equipment, describing them; that on June 2, 1960 Luper executed a chattel mortgage to the bank on the three items of equipment, then at the freight depot in Harlingen, and received from the bank funds to pay a draft covering the purchase price thereof; that the items were movable personal property and not susceptible of being attached to the realty of the company to become a fixture thereto; that the bank did not know that the three items were to go to the company, and did not learn of this until August 8, 1960, when Luper informed the bank that he had sold the equipment to the company, was installing it and would pay the bank when the job was done; that on June 11, 1960 Luper sold the three items to the company and was paid $1000.00, representing that he needed such to get the equipment out of the freight office, and did not inform the company that he had previously executed a mortgage to the bank.

The Court found that the bank amended its pleadings and elected to rely upon the remedy of conversion.

The Court concluded as a matter of law that the three items described in the mortgage were personalty and remained personalty; that the mortgage was properly recorded in the office of the County Clerk, and that the lien was a first and prior one on the personalty in question; that the company, at the time it bought the items had notice of the bank’s title as evidenced by the mortgage, regardless of whether or not its officers had actual knowledge thereof.

The Court concluded that the purchase of the equipment by the company accompanied by the denial of the company of the bank’s first lien upon the equipment, and the claim of superior ownership by the company in derogation of the rights of the bank constituted conversion of mortgaged property.

Appellant contends that if Luper failed to turn the proceeds of the payment made to him over to the bank that it was not involved in that part of the transaction in any way.

The undisputed testimony in this case is: Mr. Lummus, manager of appellant company testified:

“I can’t give the exact day when I made the contract with Luper or made the agreement, which was an oral agreement, with him to supply us with this equipment. It was delivered to our plant sometime the latter part of May or the first few days in June. I couldn’t say the exact date, because I have no accurate record of the date it was actually delivered on our premises. However, we issued him a check on June 11, 1960, in the amount of a thousand dollars. This was our check No. 2862, and it was to cover the payment of this equipment. * * *
“A. What happened on this, Luper came to our office on the day of June 11th and asked that we make this initial payment to him in order that he might pay the invoice for this equipment. And that was the reason for the thousand dollars being presented at that time, which was within a few days of the date that the equipment had been delivered to our place of business. The subsequent payment was then paid after the equipment was installed and operating.
“Q. Now, I believe you said that after that fire on April 30th, when you made your deal with Luper, that it was just an oral contract; isn’t that right?,
“A. That is correct.
“Q. What did you do? Just talk to him? He made an oral bid for the job or something like that?
“A. Actually, as I recall the conversation, we asked him for his recommendations on the size unit for the proposed space that we were rebuilding as an office and he recommended this particular unit. And then we asked him about the price and he said the equipment would run approximately a thousand dollars, plus his cost of installation, and that the cost of installation would vary somewhat with actual job conditions at the time it was ready.
“Q. Yes.
“A. And since we were somewhat vague as to our planning at that time, we told him to go ahead and order the equipment and we would then work out the details of installation at a later date. So, actually, he did the installation basis on pretty much of a time and material proposition. And the cost of the equipment, of course, as we understood to start with, would cost approximately a thousand dollars.”

Mr. Mike Powers, a witness for appellee bank, testified:

“A. Mr. Luper was a customer of our bank and a draft came in for the approximate amount of the note, and he approached us to what we call ‘floor plan’ the unit until it had been sold. We paid the draft on a bank in San Antonio, and he gave us a chattel mortgage and he described the equipment on the chattel mortgage. * * *
“A. It was probably in the freight yard here. He was taking the money to pay for the unit to get it out of the freight office.
“Q. He had to get paid in order to get it released, in other words ? * *
“Q. BY MR. JOHNSON: Now, will you please tell the Court how long you had known Luper, approximately, prior to this time? How many transactions up to that time probably you had been handling of this nature for him?
“A. He began doing business with us in February of ’59 and we handled approximately six or eight similar items for him, the same matter.”

The original note and mortgage to the bank was dated June 2, 1960, the note being for $900.00. The mortgage was recorded June 3, 1960. This note was renewed by the bank on August 8, 1960, regarding which Mr. Powers testified:

“Q. As best as you remember it, sir, how did it come that the original note was renewed?
“A. As I recall, he explained to me that he had sold the interest to Sechrist-Hall and was in the process of installing them, and the job hadn’t been completed. As soon as the job was completed, then he would be able to pay us. And he asked me to renew the note and thought he could pay it off within sixty days. * * *
“A. Well, he told me that he was waiting to get his money from Sechrist-Hall, and I think there was — he still hadn’t completed the job. There was something or other that he was waiting to finish. He- gave me some excuse. * *
“Q. Now when do you think it was that you found out that Sechrist-Hall — that Luper had installed this unit in Sechrist-Hall.
“A. Well, he told me, I think, when the note came up for renewal the first time; that he had sold it it to Sechrist-Hall and was installing it; and as soon as the job was completed, they would give him the money and he would pay us off.
“Q. And it was on that basis you dealt with him from then on?
“A. Yes.”
Mr. Powers also testified:
“Q. Now, have you ever released the chattel mortgage?
“A. No, sir.
“Q. Did Luper have any authority to sell it without paying the bank?
“A. No, sir.
“Q. In other words, the payment was supposed to go to you if he sold that type of equipment?
“A. That is right. The equipment as collateral on the loan. * * *
“Q. That August 8th note, I believe you testified that you talked to Luper at that time and he did tell you then that it was being installed in the Sechrist-Hall Building and the job was completed was his story to you ?
“A. That’s what he told me.
“Q. So, at least, you are sure that on August 8th you knew this equipment was going into the Sechrist-Hall Building?
“A. That is right. * * *
“Q. Mike, you had a number of dealings with Luper over a period of time, did you not?
“A. Yes, I did.
“Q. And in these dealings Luper was installing air conditioning equipment as a contractor on various jobs?
"A. Yes, he was.
“Q. And you were financing him on those jobs?
“A. Yes.
“Q. Luper had his own place of business over there?
“A. Yes, he did.
“Q. His own office and warehouse anc telephone and name of his business,—
“A. Yes.
“Q. —L. O. Luper Refrigeration, I believe ?
“A. Air Conditioning and Refrigeration. * * *
“Q. BY MR. HESTER: I say, in all of these dealings you knew that he was an independent contractor who did these installations in various buildings and you financed him on it?
“A. Yes, sir. * * *
“Q. Now, when you financed this, Mike, did you understand that he was going to display it and sell it?
“A. No. * * *
“Q. What did you understand about the financing of it? When you financed it what did you understand about it?
“A. I understood that it was for sale, of course, to be put — to be sold.
“Q. I see. And, in other words, you were financing the unit that he was then going to offer for sale in the summer ?
“A. Right.
“Q. Did you know where he would display it to offer it for sale?
“A. No. I don’t think he had a display yet. To my knowledge, he didn’t, Darrell. He had his warehouse over there.”

The bank did not notify appellant of its mortgage until after October 18, 1960. On October 7, 1960, appellant paid Luper a balance due of $283.30.

It is our opinion that the only reasonable deduction to be made from this undisputed testimony is that the bank consented to the sale of the mortgaged property and that it thereby waived its mortgage lien.

In Lumberman’s Nat. Bank v. Bush & Witherspoon Co., 247 S.W. 295, Galveston Civ.App., writ ref., the Court stated:

“As we understand it, the law is settled in Texas that a sale of the pledged or mortgaged property and delivery to the purchaser, with the pledgee’s or mortgagee’s consent, constitutes not only a waiver of the lien as against the purchaser, but further leaves the latter under no duty of seeing that the proceeds of the sale are paid to the former.”

We are also of the opinion that appellee’s lien is invalid as to appellant under Art. 4000, Vernon’s Ann.Civ.St. Appellant purchased this equipment which was daily exposed for sale, at retail, in good faith and in the regular course of business of Mr. Luper. Donahue Investment Company v. H. E. McMasters Company, 301 S.W.2d 330, El Paso Civil Appeals, writ ref., n. r. e.

The judgment of the Trial Court is reversed and judgment is rendered that ap-pellee take nothing by its suit


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Miriam F. SPRAY, Appellant, v. George Clifford SPRAY, Appellee.
    No. 11091.
    Court of Civil Appeals of Texas. Austin.
    May 15, 1963.
    Rehearing Denied May 29, 1903.
    Sharpe & Hardy, Brownsville, J. I. Simon, Pittsburgh, Pa., for appellant.
    Mathews & Walsh, Brownsville, for ap-pellee.
   HUGHES, Justice.

This is a divorce suit in which George Clifford Spray, appellee, was granted a divorce from appellant, Miriam F. Spray.

Appellant has four points which present but two questions, (1) that the Trial Court erred in finding that appellee at the time of exhibiting his petition was an actual bona fide inhabitant of this State for a period of twelve months next preceding its filing as required by Art. 4631, Vernon’s Ann.Civ.St. and (2) that divorce should have been denied because appellee was, at the time of trial, living bigamously with a common law wife.

This suit was filed November 8, 1961. Appellee testified that he moved from Pennsylvania and came to Texas on November 1, 1960, and that he had lived in Brownsville, Cameron County since November 13, 1960. The move from Pennsylvania was on the advice of appellee’s physician. He chose Brownsville because of its sub-tropical climate. He obtained a driver’s license in Texas in March, 1961. Appellee repeatedly testified that he intended to make Texas his home from the date he entered Texas. The fact that appellee, age 62, did not purchase a home in Texas, but lived in a motel, and that he received mail in places other than in Texas, are of an inconclusive nature, being evidentiary only. The Trial Court was fully warranted in' finding that appellee was a bona fide inhabitant of Texas for the required period, and appellant’s point to the contrary is overruled.

We also overrule the contention that appellee’s immoral conduct precludes his right to a divorce upon the ground it was granted.

The Court found that the parties were married on December 31, 1923, and have lived separate and apart without cohabitation since March 30, 1952.

Art. 4629, V.A.C.S., provides, in part, “A divorce may be decreed in the following cases: * * * (4) Where a husband and wife have lived apart without cohabitation for as long as seven (7) years; * *."

Appellant does not attack the above finding of the Trial Court, and we, therefore, do not review the evidence to sustain it. Appellant merely asks us, in effect, to amend the divorce statutes to include the proviso that divorce on the ground of separation shall not be granted if the spouse seeking divorce has committed bigamy. We have no such authority. The custodian of this authority is our Legislature. Pappas v. Pappas, 146 S.W.2d 1115, Galveston Civ.App., Divorce and Separation, Vol. 20 Tex.Jur.2d, Sec. 3.

Other Courts have considered the complaint which appellant makes and, invariably, it has been denied. We merely cite them' because it is inappropriate that we utilize space in discussing a point settled beyond our power to unsettle. Robertson v. Robertson, 217 S.W.2d 132, Port Worth Civ.App., Christopher v. Sims, 234 S.W.2d 901, Dallas Civ.App., writ ref., n. r. e., Heifer v. Heifer, 342 S.W.2d 8, Fort Worth Civ.App.

The judgment of the Trial Court is affirmed.

Affirmed.


author: PAUL VAN OSDOL, Special Commissioner. PER CURIAM.

text:
    AMERICAN AIRLINES, INC., a Corporation, and Delta Air Lines, Inc., a Corporation, Piaintiffs-Respondents, v. CITY OF ST. LOUIS, a Public Corporation, et al., Defendants-Appellants.
    No. 49211.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.
    Motion to Set Aside Order Denying Rehearing or to Transfer to Court En Banc Denied June 11, 1963.

      Kerth Thies &. -Schreiber, Alfred H. Kerth, Clayton, Thompson Mitchell Douglas & Neill, James M. Douglas, Richard P. Conerly, W. Stanley Walch, St. Louis, for respondents, American Airlines, Inc., and Delta Air, Lines, Inc
    ‘ Thomas J. Neenari, City Counselor, Thomas F. McGuire, Assoc. City Counsel- or, John J. Fitzgibbon, Asst. 'City Counselor, -St. Louis, for appellant City of St. Louis.
    William E. Gallagher, County .Counselor of, St. Louis County, Walter H. Smith; First Asst. County’ Counselor, Warren H. Ritch-hart, Asst. County Counselor, Norman C. Parker, County Counselor of St. Louis County, Gerald J. Bamberger, Asst. County Counselor, ' for appellants Comity of St. Louis and James Frank Bell, Collector.
   PAUL VAN OSDOL, Special Commissioner.

This cáse treats with questions of ’ the éffecf and validity of Chapter 155, RSMo 1959, V.A.M.S., pertaining to the taxation of “aircraft” of an “airline company” as. in Section 155.010 defined, and particularly with the effect and validity of .a proviso— “provided that, when any - municipality in this state owns and operates an airport outside its corporate limits, the valuation determined hereunder shall also be apportioned'to said^municipality” — which proviso is áppende'd to and is a part of Section 155.-050.

(All sections of, the Revised Statutes of Missouri mentioned herein are RSMo 1959, V.A.M.S., except as otherwise cited.)

In this action, plaintiffs American Airlines, Inc., hereinafter referred to as “American,” and Delta Air Lines, Inc., hereinafter referred to as “Delta,” sought a declaratory judgment, and injunctive and other relief from taxes levied for the year 1960 by defendants City of St. Louis and St. Louis County, which levies were made on valuations of plaintiffs’ aircraft as apportioned and certified to defendants, City and County, by the State Tax Commission pursuant to Section 155.050.

It was alleged by plaintiffs that the “proviso” and the whole of Chapter 155 because of the proviso were violative and in contravention of state and federal constitutional provisions.

Defendant Collector pf Revenue of 'St. Louis County by answer and counterclaim sought recovery for the amounts of taxes allegedly due from the plaintiffs for the year 1960, together with statutory interest, penalties and other charges Upon alleged delinquencies of'payment on andafter January 1, 1961. And it is- here pertinent to add that plaintiffs ipstituted . this actiqn -December 28, 1960, and that they, 'in accordance w-ith an order entered that day, on oral motion by plaintiffs, by the Circuit Court of' the City of St. Louis, paid into the registry of' the Circuit Court, “pending the determination of this matter,” the total amounts of the tax bills issued by the Collectors of the County and City.

, The ‘trial court found the proviso ap-pendant to Section 155.050 invalid, in its attempted apportionment of the portions of the Missouri. valuations- of plaintiffs’ aircraft to defendant City for taxation, and enjoined the collection pf the bills issued for taxes levied by City for the year 1960 and the issuance of tax bills 'for subsequent years by City under Section 155.050, and ordered the amounts that had been paid by plaintiffs, respectively, into the registry of the circuit court and’ equivalent to the tax bills on their aircraft issued by City to be, by the circuit clerk, paid over to plaintiffs. From this finding and portion of the judgment, defendant City of St. Louis' has appealed, and herein contends that the proviso and the whole of Chapter 155 are valid and that the apportionments of valuations to City pursuant to Section 155.050, including the proviso, and City’s levy of. taxes on plaintiffs’ property, aircraft, are. lawful, reasonable, valid and constitutional.

However, the trial court found the remainder of Chapter 155 (exclusive of the proviso) to be valid, in effect declaring the validity of .the bills, for taxes levied by defendant St. Louis County for the year 1960 in the amounts of $18,203.54 on the aircraft of American and $8,534.32 on the aircraft of Delta. And the trial court ordered that, when this portion of the judgment becomes final, the Clerk of the Court is to pay these stated amounts to County and its Collector, in satisfaction of the tax bills issued to American and Delta, respectively, on their aircraft. From this finding and portion of the judgment, plaintiffs, American and Delta, have not appealed.

The trial court found and entered judgment in favor of plaintiffs- and adversely to defendant Collector of Revenue of St. Louis County on his counterclaim for statutory interest, penalties and other' charges on alleged delinquencies in payment of the County taxes. And defendants St. Louis County and 'its Collector of Revenue have appealed from this part of the trial court’s judgment and decree..

Preliminarily to our examination of the facts, and the issues raised in the two appeals, we shall Set forth some 'other explanatory matters. -, "

July 6, 1960, the State Tax Commission, acting under Chapter 155, particularly Section 155.040, determined the Missouri valuations of plaintiffs’ aircraft for 1960 in the amounts of $1,815,088 for ..the aircraft of American and $751,592 for the aircraft of Delta. These determinations of .-Missouri valuations are in review in two actions pending in the Circuit Court of the= City of St. Louis (Case Nos. 30268E and 30269E). In these cases the Circuit Court by interlocutory orders enjoined the Commission from certifying Missouri valuations for 1960" in excess of $595,317 for the aircraft of American and $285,609 for the aircraft of Delta pending the final - disposition of these numbered .cases. The amounts the trial .court in the instant case ordered paid over by the Clerk, upon final judgment to St. Louis County, $1-8,203.54, and $8,534.32, are the amounts of taxes levied by St. Louis County for the yéar 1960, on the aircraft’ of American and Delta, respectively, at the rate of $4.06 per $100 valuation on the State Tax Commission’s assessments of the Missouri valuations as modified and reduced by the Circuit Court’s interlocutory orders, and further .apportioned and certified by the Commission- to’ St. Louis County for tax levies. And the trial court in the instant case denied the prayer of defendant Collector of Revenue of St. Louis County for judgment against plaintiffs in excess ’of these stated amounts “without prejudice to defendant Watt’s right to collect additional personal property taxes for 1960 from the plaintiffs in .the event the [State Tax] Commission ever lawfully certifies increased assessed valuations against plaintiffs’ aircraft.” (Bracketed insert ours.)

The samé amounts of apportionments of valuations for 1960 apportioned and certified to St. Louis County, $448,363 for the aircraft of American and $210,205 for the aircraft of Delta, were also certified by the Commission to the City of St: Louis for the levy of taxes pursuant to’ the’ proviso in Section 155.050.

In these connections, it is noted that although .the City of St. Louis in its ans’wef .claimed, and City’s Collector-originally ’ issued, bills’ for taxes in “composite” or-total levies by City in its “dual nature” as a “city” and as a “county,” defendant City and its Collector concede herein that City was in no event authorized to levy and collect taxes on the valuations certified to it, which levies were incident to its function as a “county.”

We shall now consider the appeal of defendant City of St. Louis; and later consider the appeal of defendants St. Louis County and its Collector in another part of this opinion infra.

The City of St. Louis was by statute and charter lawfully authorized or empowered to acquire, establish, construct, own, control, lease, equip, operate, and regulate airports or landing fields for the use of airplanes and other aircraft “either within or without” the city limits as a public purpose and as a municipal charge and a municipal or city purpose. The acquisition of lands for such purpose or purposes was authorized under the power of eminent domain as and for a public necessity. The City’s issuance of bonds, and its levy of taxes to retire them, in the acquisition of land and the improvement and development of the land by City for an airport or landing field was authorized as a public purpose. And the legislative body of the City was authorized to adopt regulations and establish fees or charges for the use of the airport or landing field. Sections 305.170, 305.190, and 305.210; Art. I, Secs. 8 and 9, Charter, City of St. Louis; Dysart v. St. Louis, 321 Mo. 514, 11 S.W.2d 1045, 62 A.L.R. 762; Ennis v. Kansas City, 321 Mo. 536, 11 S.W.2d 1054.

Defendant City acquired and established Lambert-St. Louis Municipal Airport (Lambert Field) in 1928. It is located in an unincorporated area in St. Louis County. City acquired land and made extensive improvements at a total cost of $23,000,000. Lambert Field is classified as a major air carrier transportation airport. Its service area is of wide radius in eastern Missouri and western Illinois, and “all over.”

Plaintiffs are “airline companies” operating “aircraft” as in Section 155.010 defined, and in their airline operations their aircraft have “arrivals and departures” at Lambert Field in St. Louis County.

We have noted that by Section 155.050, exclusive of the proviso, the apportionments allocated to local taxing areas are to each county, municipal township, city, and so forth, “in mihich the airline company has arrivals and departures of its aircraft.” Thus, it seems, the tangible personal property, aircraft, of an airline company was given a situs for property taxation because of its physical presence or location, however intermittent or temporary, in the territorial or corporate limits of the stated local taxing areas. However, by the proviso, a municipality (the City of St. Louis) owning and operating an airport outside its corporate limits is also apportioned the valuation as determined under Section 155.-050, even though neither the aircraft nor the operating airline company, by physical location or domicile, or business or corporate residence, was ever within the territorial or corporate limits of the City wherein the property, aircraft, or the airline company ordinarily could enjoy the protection and benefits which are assumed to be afforded by a taxing authority as fundamentally and essentially reciprocal to the governmental power of taxation.

While the legislature is vested with the power to fix the situs of property for taxation, its action must not be an arbitrary one. The power is subject to the rule of uniformity “and to the limitation that there must be some appreciable relation between the municipality exacting the tax and the person upon whom the burden is cast, either directly or by reference to the property taxed, from which there can reasonably be seen reciprocal duties to accord benefits on the one hand, and to respond therefor on the other. Whether that relation does or does not exist in any given circumstances is so conclusively a legislative question that nothing short of manifestly capricious action, amounting to a taking of property for a public use without just compensation, will justify judicial interference.” Chicago & N. W. Ry. Co. v. State, 128 Wis. 553, at pages 665-666, 108 N.W. 557, at page 589. See also Ewert v. Taylor, 38 S.D. 124, 160 N.W. 797; Wells v. Weston (1856), 22 Mo. 384; Art. I, § 10, Const., V.A.M.S.; Art. XIV, Amendments to the Constitution of the United States.

Specifically examining the proviso in its application to our case — it seems clear that the allocation of the apportionment of valuations of plaintiffs’ aircraft to City was not on the theory of a situs within the City, but was on the theory of the ownership and operation of the airport by the City and the use of the airport by airline companies.

This brings us to the questions— what benefits or protection do American and Delta or their aircraft enjoy in using City’s municipally-owned and extraterrito-rially-operated airport; and, whatever are those benefits or protection, are they provided by City in its governmental or in its proprietary function. These questions require a further statement of facts.

The Lambert Field installations consist of long runways designed to accommodate the large heavy aircraft of airlines; and of runways of lesser length to accommodate the aircraft of “general aviation.” “Military aviation” is also accommodated. There are other improvements, buildings and facilities appropriate to use by aircraft and the public, such as administration and office buildings, hangars, parking areas, and so forth.

In operating Lambert Field, City provides services such as crash, fire and rescue; general maintenance, and operation and cleaning of runways, and necessary utilities, such as electricity, heat, and water. City pays ten private watchmen, licensed by St. Louis County, and pays St. Louis County, directly, for four St. Louis County policemen who are stationed at the airport.

City’s airport manager testified that the airline companies have not paid for th* airfield services “used by them in common and exclusive with (sic) others.” (By this, we assume the airline companies at most do not “directly” pay for these services.)

City’s revenues at Lambert Field consist of landing fees, field-usage charges, and office and hangar rentals; and revenue from services to “consumers” such as parking lots and other concessions.

The “money” amounts of these landing fees, usage charges and rentals paid by airline companies were the subjects of negotiation, compromise and arrangement between City and the companies. The final arrangements were and are contractual. By this we mean the arrangements are said to be “lease agreements.” City’s airport manager testified that City had never been able to get the amount of money in fees, charges and rentals “we thought we were entitled to.” The amounts or rates of fees, charges and rentals were automatically increased, under the terms of the lease agreements in 1950, 1955 and 1960. The agreements will expire in 1965 — then “all bets are off.” By this we assume the airport manager meant that in negotiations subsequent to the expirations, the management will insist on substantial increases in the amounts or rates of fees, charges and rentals.

Total income as compared to total expense in airport operations during the year 1960, by City’s accounting, “showed a very small margin.”

It has been seen that no traditional taxable situs of the aircraft for tangible personal property taxation is within the territorial or corporate limits of City; and that the proviso in Section 155.050 in effect extends the governmental taxing power of the municipality, City of St. Louis, to the imposition of the levy and collection of “municipal” taxes on tangible personal property, aircraft of airline companies, located outside the municipality’s corporate limits.

What governmental benefit or protection does City as a municipality with powers of 'local self-government supply extrater-ritorially to plaintiffs, airline companies, or their aircraft> which could reasonably, law^ fully, and constitutionally support the, extraterritorial imposition of the burden on them of City’s tangible pérsohal property taxation?

We think there is none.

• Of course, the evidence shows that there are substantial services, benefits and, indeed, protection to the aircraft and the airline companies’ operations, but none unlike, we suppose, those afforded by any other municipally or privately-owned, efficiently-managed, and well-regulated airport operation.

, We have noted supra that by statute, Section 305.210, the legislative body of City is authorized to adopt ' “regulations and establish .fees or charges for the use” of City’s airport or landing field. It .is inferred that these regulations and fees or charges are, deemed by the state legisla-' ture to be- essential, and necessarily inci-’ dental to City’s operation of its airport; and that the fees or charges the legislative body of City is authorized to establish,are,, at least in theory, deemed in compensatipn for or in consideration of and commensurate-with the services, benefits and protection asshtned to be afforded to and enjoyed by the airline companies in'their use of City’s well-regulatéd and efficiently-operated municipally-owned airport or landing field.

' Even;though, as it was said, the airport was operated (in 1960) on a “very small margin,”.and whether operated oh a small or large margin of profit (or loss),, the' amounts of the fees and charges, including rentals, were fixed by express agreements, we'infer. And whether by express agree-, ments or by agreements implied from thej facts of the plaintiffs’ use in tacit accept-ánce and payment ,of the fees or ’charges' in amounts as established by the legislative' body of City, we suppose it was the intent' of the: state legislature that the payments of- the fees ,or- charges are to be assumed commensurate and considered as compensation for the service, benefits, and protection enjoyed by plaintiffs in their use of the airport installations. And so it is that we think it would be.'unreasonable to argué that plaintiffs’ property may be lawfully subjected additionally and extraterritorially to levies of City’s municipal tangible personal property taxes in order to erase a deficit or insure or enhance a profit in City’s operation of its proprietary enterprise.

We believe it is true that the service by City in its municipally-owned airport operation is in the public interest. So is plaintiffs’ service in their airline operations in carriage- for hire o-f persons and property in air commerce. But, actually, both City’s and plaintiffs’ operations are commercial. And it seems the actual relationship between City and plaintiffs is contractual.

No evidence tends'to support any benefit' or- protection- to' plaintiffs or their property which is provided by any governmental function of the municipality, we say.

Of course, there are benefits or protection, affordéd by City in its proprietary function, in operating its airport, as we have seen. For example, the private guards and policemen, “licensed” by St. Louis County. The County is the political subdivision having local governmental powers in the area' and supplies police protection governmentally.' City engages, and pays the expense of this extra police protection so supplied govern-men'tally by St. Louis County, and properly.The extra police protection is incidentally made necessary for the protection of all persons and property, including the persons and property of the air-traveling public, at the airport in response to all of the engagements entered into and services-proffered by: City in extraterritorially running its airport-business, - -

Our' conclusions aré that there is no benefit or protection provided by defendant City in its’mhnicipai-governmental capacity, nor are there other fundamental bases which reasonably, support .the legislature’s appor-tionnients of assessed valuations of plaintiffs’ aircraft to defendant City for City’s property taxation; that City’s attémpte'd levy'and imposition- of the burden of its •municipal tangible personal' property taxes on valuations of plaintiffs’ property apportioned pursuant to the proviso of Section 155.050 are unreasonable and arbitrary; and that the proviso, and City’s levies pursuant to the proviso, are invalid and void as vio-lative of due process clauses of - state and federal constitutions.

As we have said supra, the trial court ruled adversely to the counterclaim of defendant Collector of Revenue of St. Louis County for statutory interest, penalties and other .charges for alleged delinquencies in plaintiffs’ payment of the taxes .levied by the County, and County and its Collector have appealed.

In support of their contention that the trial court erred in so ruling defendants-appellants, County and its Collector, assert the court was without jurisdiction or power 'to stay or waive or remit or refuse to enforce these statutory exactions. They say such power is purely legislative, - arid no statutory authority to. the courts having been provided, the trial court’s exercise of the power was erroneous.

Plaintiffs-respondents, American and Delta, contend the .trial court correctly denied Collector’s recovery, because (1) a court of equity has the power, they: say, ,to relieve taxpayers in meritorious circumstances ; (2). the taxes assessed against respondents’.’property were' paid into 'the registry of the court before the taxes were delinquent; and (3) moreover, the exac-tions of penalties imposed by statute in Missouri are not applicable to taxes leyigd on respondents’ aircraft.

(1) and (2); It is the general rule that, in the absence of' statutory authorization, the courts have no power to relieve delinquent taxpayers from penalties imposed by statute. The principle is nót-affected by-the fact that the taxpayer will slifferi'hafdship by reason of paying the penalties. Nor is the principle affected by the facts' that the taxpayer is contesting in good faith the validity of the tax, and that the penalties have largely accumulated while the litigación is pending respecting the validity of the tax. 85 C.J.S. Taxation § 1031c, p. 599; 96 A.L.R. 925-937; 147 A.L.R. 142-147. Missouri is in harmony with this principle. Norborne Land Drainage Dist. Co. of Carroll County v. Cherry Valley Tp. of Carroll County, 325 Mo. 1197, 31 S.W.2d 201.

And no Missouri case has been cited in 'whióh it is held that a court in the exercise of its equitable jurisdiction or power may stay, waive or remit or refuse to enforce statutory exactions of delinquent tax penalties, although we have been reminded that this court in State ex rel. Stone v. Kansas City, Ft. S. & M. R. Co., Mo.Sup., 178 S.W. 444 (an action at law), in speaking of a delinquent tax penalty, said the court did •not have the power to relieve the defendant of the penalty, nor diminish it;- and in differentiating the case from the case of Cottle v. Union Pacific R. Co., 8 Cir., 201 F. 39, in which case the Circuit Court of Appeals refused to enforce a penalty, this court said, “That (the Cottle case) was. a proceeding in equity; this is a suit at law. This court, in this case, must. follow. the statute.”

.And if the, courts have not .the power .to relieve delinquent taxpayers from statutory peqalty exactions; .upon, final judgment, .we are not able to see the sound basis for the .contention that statutory penalties are - in effect procedurally circumvented ’ arid ' the legislative exactions judicially vitiated by payment, pending litigation, of the .amounts of contested'taxes into the-registry. Of .the court pursuant to court order entered' ber fore or after the taxes were delinquent.

In our case, the money equivalent to'the -taxes having been paid into court, 'respondents' would have readily availed themselves of the money had the final judgment been favorable' to them. And appellants may avail themselves of the payment over of the money to them upon final judgment favorable to them. But in their argument urging equitable relief from delinquent tax penalties, respondents do not take into account the fact that, during the period of the pendency of the litigation, the tax money was not available for use by the taxing authority, St. Louis County. And it is apparent that respondents in paying the amounts equivalent to the taxes on their property into court were not doing so as mere stakeholders. See generally 47 C.J.S. Interest § 54, p. 66.

But assuming a Missouri court, in the exercise of its equitable jurisdiction, has the power to relieve a taxpayer from statutory delinquency penalties in the meritorious circumstances of a case, we see no meritorious or equitable ground for the exercise of a court’s equitable powers in the circumstances of this case.

(3). Section 155.060 provides that taxes on aircraft of airlines shall be levied and collected in the manner provided for taxation on railroad property, and that county courts and other officials shall perform the same duties and may exercise the same powers in levying and collecting taxes on aircraft as such officials are required to perform in the levy and collection of taxes "on railroad property.”

Section 151.220 of Chapter 151, relating to taxation of railroads, provides that the failure of any railroad company to pay taxes on the property of the company, on or before the thirty-first day of December next after the taxes have been assessed and levied, the same shall be, after that date, known and treated as delinquent railroad taxes, and the company shall forfeit and pay, in addition to the taxes, “such penalty as is provided by law for the nonpayment of other delinquent taxes.”

Section 139.100 (applicable to penalties for delinquent taxes generally, real and personal property) provides for an additional tax, as penalty, in the “amount” as provided in Section 140.100, which amount of penalty, in addition to the amount of the tax delinquent, is ten per cent of each year’s delinquency, or one per cent per month or fraction thereof, or ten per cent annually. The early case of Maguire v. State Savings Association (1876), 62 Mo. 344, is not now, after the enactment of the statutory predecessor of Section 139.100, and other statutory changes, to be considered authoritative in holding there is no legislative intent expressed, or implied from the statutes that the penalty in the statute, now Section 140.100, is applicable to delinquency in payment of personal property taxes.

Chapter 141 relates to delinquent taxes, class one counties, of which Sections 141.-170 to 141.200 relate to delinquent tangible personal property taxes. A class one county may subject a taxpayer to a personal judgment for delinquent taxes on tangible personal property. Section 141.170. In such actions, attorneys’ fees are allowed in the amount of ten per cent on the amount of money actually collected and paid into the county treasury. And in each case, a fee of forty cents may be charged. Section 141.190.

It is provided in Section 151.280 that a county collector is allowed, for collecting (“by suit against such company”) railroad taxes and, by virtue of Section 155.060, airline taxes, a fee of two per cent of the amount collected, to be paid as costs.

And all county collectors are allowed a commission for the collection of delinquent and back taxes by Section 52.290, of two per cent on all sums collected, to be added to the tax bill and paid by the party paying the tax.

Respondents remind us that appellants did not employ the procedure provided in Section 151.230 for the collection of delinquent railroad taxes by seeking the enforcement of tax liens against the property of the delinquent (railroad) taxpayer, which proceeding is required to be instituted by suit prosecuted by the prosecuting attorney of the county; and that, consequently, there is no reasonable attorney’s fee applicable and taxable as costs against respondents as provided in Section 151.240. But the suit to be prosecuted by the prosecuting attorney under Sections 151.230, 151.240 — (or any other action instituted originally) — was procedurally forestalled by the instant action instituted by respondents before their taxes were delinquent and by the incidence of the effect of Supreme Court Rule 55.45 (a), V.A.M.R. And appellants were, in our opinion, obliged to state their claim for delinquent taxes and penalties by counterclaim after the taxes were delinquent. So it seems appellants sought a general judgment for delinquent taxes, interest, penalties, and other charges by counterclaim, and, we infer, appellants directed the County Counselor and his assistant to represent them in this litigation.

The counterclaim procedure employed because of the respondents’ institution of their original action and by the incidence of the effect of S.C.Rule 55.45(a), supra, should be no reason, we believe, for a refusal to find respondents liable for interest, penalties, and other charges statutorily exacted.

By Section 151.240 a reasonable attorney’s fee is allowed to counsel employed to aid and assist the prosecuting attorney in the statutory procedure to enforce the tax lien against railroad property provided by Section 151.230. But, say respondents, such a fee is not allowable here, and to this we agree. Nevertheless, Section 151.240 does exemplify the legislative intent that counsel fees are proper and just in actions to enforce delinquent railroad taxes. Since the delinquent taxes on respondents’ aircraft are in fact delinquent taxes on tangible personal property, we think it equitable and just that attorneys’ fees should be allowed and that we judicially respect the legislative admeasurement of attorneys’ fees as allowed in an original action for a general judgment on a claim for delinquent taxes on tangible personalty. So we look to Section 141.190 for the amount — “the sum of ten per cent on the amount of money actually collected and paid into the county treasury” to be taxed and collected as other costs and penalties (and not to be deducted from the tax), and to be accounted for and paid to the county treasurer.

We hold respondents liable for penalties in the amount as provided in Section 140.100 pursuant to Section 139.100; for attorneys’ fees in amounts as provided in Section 141.190; for Collector’s fees provided in Section 151.280; and for Collector’s commissions as provided in Section 52.290.

The trial court’s order, judgment and decree should be affirmed with respect to and in connection with the findings of the invalidity of the proviso and City’s levy of taxes pursuant thereto. The judgment and decree should be affirmed with respect to the order of recovery by St. Louis County and its Collector of the amounts in taxes, $18,203.54 on the aircraft of American and $8,534.32 on the aircraft of Delta. The judgment and decree with respect to the denial of County Collector’s counterclaim for interest, penalties, and other charges should be reversed, and a judgment should be entered in favor of defendants St. Louis County and its Collector and against plaintiffs American and Delta for penalties under Sections 139.100 and 140.100; for attorneys’ fees; for Collector’s fees; and Collector’s commissions in amounts of percentages in accordance with this opinion, additionally to and on each of the above-stated amounts of the ordered recovery for taxes against plaintiffs American and Delta, the total amounts of the final orders of recovery and judgment to be computed and entered by the trial court as of the date of its receipt of this Court’s mandate.

It is so ordered.

PER CURIAM.

The foregoing opinion by PAUL VAN OSDOL, Special Commissioner, is adopted as the opinion of the court.

All concur.

On Motion for a Rehearing or, in the Alternative, to Transfer to the Court en Banc

PER CURIAM.

Having considered the motion of plaintiffs-respondents, American Airlines, Inc., and Delta- Air Lines, Inc., we have come to the conclusion that our opinion should he modified with respect to the allowance to and recovery by defendants-appellants, St. Louis County and its Collector, and against plaintiffs-respondents, movants here, of the collector’s fees of “two per cent on the amount” collected “by suit against such (railroad) company.” Section 151.280. Such fees had been included in our original opinion and we had directed the recovery of them by defendants-appel-lantg and against plaintiffs-respondents “by virtue of Section 155.060.”

Having exarnined the case of Felker v. Carpenter, Mo.Sup., 340 S.W.2d 696, cited here by movants, particularly paragraph [4] of the opinion in that case (340 S.W.2d at page 701) ; and having re-examined Sections 155.060 and 151.280, we now have the' view that the- language of Section 155.060 does not inferentially make provision for and direct the collection of such a collector’s fee (two per cent of the amount collected by suit against a railroad company, Section 151.280) in the case of a claim asserted in an original action or by counterclaim for a general judgment for delinquent tangible personal property taxes on the aircraft of an airline company by the collector of a class one county.

And, furthermore, we believe that, in our original opinion, we were too liberal in applying equitable principles in sustaining defendants-appellants’ claim for the allowance of ten per cent pursuant to Section 141.190.

Accordingly, our original opinion is modified and changed to disallow the two per cent collector’s fees and the ten per cent attorneys’ fees we had in our original opinion allowed in favor of defendants-appellants -and against plaintiffs-respondents, movants here. And the trial court is directed to exclude the stated fees disallowed in this modifying opinion upon computing the total amounts of final orders of recovery and judgment.

The motion for a rehearing or to transfer to Court en Banc is overruled.


author: BIRD, Judge.

text:
    Green HARRISON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 17, 1963.
    Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.
    John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., Frankfort, for appellee.
   BIRD, Judge.

Green Harrison was convicted of unlawfully possessing alcoholic liquors in local option territory.

On appeal to this Court he contends that the evidence was insufficient to sustain a conviction and that the court erroneously permitted the prosecuting attorney to go beyond the record and thus inflame the jury to his prejudice.

The testimony shows that 56 cans of beer were found during a search of Harrison’s premises and there was further testimony to the effect that Harrison had the reputation of being illegally engaged in the traffic of alcoholic liquors. Harrison testified that he had-the beer for his personal use.

Evidence of the possession of 56 cans of beer plus evidence of Harrison’s reputation for being illegally engaged in the liquor business is sufficient to sustain a conviction.

It must be conceded however that the quality of evidence required to sustain a conviction in a case of this type is very poor.

With the quantity so slight and the quality so poor the prosecuting attorney and the trial court should be extremely careful to keep extraneous matter from being considered by the jury.

In the present case the prosecuting attorney said: “The people of Jackson County know what sorrow drinking and bootlegging cause in Jackson County.” He further said: “Most of the murder cases that are tried are caused by liquor.” He further said to the- jury: “You have a right to use what knowledge you have in trying these cases.”

Considering the quantity of evidence, the quantity of beverage found and poor quality of substantive evidence required for conviction the prosecutor’s argument, as quoted, could reasonably have influenced the jury in its determination of this case. We consider the argument prejudicial.

The motion for appeal is therefore granted and the judgment is reversed.


author: STANLEY, Commissioner. WILLIAMS, Judge

text:
    Martha Lillian BAIRD, Appellant, v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILROAD COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 17, 1963.
    Geo. R. Silliman, Danville, Pat Rankin, Stanford, for appellant.
    James F. Clay, Danville, Bradley & Bradley, Georgetown, for appellee.
   STANLEY, Commissioner.

The court is urged to reverse its position that a wife may not maintain an action to recover damages for loss or impairment of her husband’s consortium caused by negligence of another party.

The particular case is a suit filed by Mrs. Martha Lillian Baird against the Cincinnati, N. O. & T. P. R. Co., charging that by the defendant’s negligence in operating its train at a public crossing, the plaintiff’s husband, Harrison Baird, was “totally incapacitated from working and was permanently injured and placed in extreme financial difficulties” ; that by reason thereof she, the plaintiff, “has been deprived permanently of her rights of consortium with her husband, and by reason of his injuries and the extraordinary services she has been compelled to render to him, she has sustained great physical, mental and nervous damages which are permanent.” See Baird v. Cincinnati, N. O. & T. P. Ry. Co., 6 Cir., 315 F.2d 717.

The trial court dismissed the complaint as not maintainable under the rulings of this court. The appellant recognizes those rulings but, as stated, urges that they be overruled.

In Cravens v. Louisville & N. R. Co., 195 Ky. 257, 242 S.W. 628, drawing a distinction between the right of a wife to recover for loss of the consortium of her husband due to an intentional wrong or a direct attack on the marriage relation, as for alienation of a husband’s affection and the like, as held in our previous cases, the court, on authority of a number of foreign cases, held that, in the absence of a statute conferring the right, no recovery can be had for the loss of consortium due merely to negligent injury, and that the Married Woman’s Act did not confer such right of action.

In Commercial Carriers v. Small, 277 Ky. 189, 126 S.W.2d 143, we observed, “There has come down to us from ancient days the recognition in law” that a husband has the right to recover damages for the loss or impairment of his wife’s services, society and companionship as the result of the negligence or wrongful act of a third person. We affirmed a judgment of recovery in such an action. The case did not involve the converse, i. e., the right of a wife to maintain a similar action for loss or impairment of the consortium of her husband by reason of negligence; but we noted the existence of such right, as in the Cravens case, where the loss was due to intentional wrong or direct attack upon the marriage relation.

In LeEase v. Cincinnati, Newport & Covington R. Co., Ky., 249 S.W.2d 534, the sole question was whether this court should overrule the Cravens case and adopt the reverse principle, enunciated in the then recent case (1950) of Hitaffer v. Argonne Co., 87 App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, cert. den. 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624. The court adhered to the previous decision in the Cravens case and declined to overrule it. The question is now opened up again.

The United States Court of Appeals, in its comprehensive and precedent-shattering Hitaffer opinion, recognized the 'elements of consortium and noted that its invasion is an independent wrong directly against the spouse so injured. The court discussed and criticized as thin and unsubstantial the various reasons assigned by the courts for denying a wife the same remedy which is incongruously granted a husband. The conclusion of the court was that a wife, deprived of her husband’s aid, assistance, enjoyment and sexual relations by an injury to his person, resulting from another’s negligence, shduld have equal rights in the marriage relation and should receive equal protection of the law, and, therefore, has a cause of action for the loss of consortium.

Reasons advanced for adhering in modern times to the common law denying the right of action to a wife for impairment or loss of consortium in negligence cases are as follows: (1) The action may entail double recovery or overlapping of causes of action for the same injury since the husband could recover in his action for his diminished ability to support his family; (2) it would compensate for an indirect and remote injury and consequences of a wrong which were not foreseeable; and (3) the theory that the husband’s action is predicated on his right to his wife’s services without corresponding right of the wife.

The Hitaffer case has been considered in a long chain of cases in various courts of the country. Some of the courts have accepted its reasoning as authority for overruling their previous cases to the contrary. Others have adhered to the common law that the right of a husband to maintain an action for loss of consortium of his wife caused by an injury negligently inflicted by a third person does not extend to a corresponding similar right in a wife to recover for loss of her husband’s consortium.

The reasoning of the Hitaffer opinion basically rests on the epochal evolution in the status and position of a wife from conditions which existed in olden times under the common law. Among those conditions were that the wife was subservient to the husband, a servant, almost a chattel, a legal nonentity on the principle of unity (and he was that one) and without right to bring any action at law. 1 Blackstone Commentaries 433-436, 442. In these days a woman and a man are upon a plane of equality, legally, economically and socially. Later (1960), in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184, the Illinois Supreme Court-followed-the Hitaffer case. It also made a vigorous attack upon the grounds of the “antiquated procedures” and the several arguments .therefor, deeming them specious, and held that a wife may maintain such an .action. The. court said in the course of the opinion: “We find.no wisdom in abdicating to the legislature our essential function of re-evaluating common-law concepts in the light of present day realities. .Nor do we find judicial sagacity in continually looking backward and parroting the words and analyses of other courts so as to embalm for posterity -the legal concepts of the past.” . Three judges dissented on the ground that neither a husband nor awife should have such right of action.

. More recently, in March, 1963, the Supreme Court of Missouri in Novak v. Kansas City Transit Co., Mo., 365 S.W.2d 539, reconsidered the question. In the light of Hitaffer v. Argonne Co. and Dini v. Naiditch, supra, and the “array of overwhelmingly convincing- arguments” in support of the conclusions of .the courts which followed those, opinions, that" the wife has the right to recover for loss of consortium due to negligent injury of her husband, the Missouri court overruled its previous case to the contrary. Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320. The court now holds that a wife may'maintain such an action. Three of-the seven judges dissented. ”

It is noted that the. court, which delivered the Hitaffer opinion-has since circumscribed or overruled it in part by holding that a wife of an employee whq received full benefits under a workmen’s compensation statute, was barred from recovering from the employer for loss of consortium in view of ‘the’ statute. Smither & Co. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220, and Aubrey v. United States, 103 U.S.App.D.C. 65, 254 F.2d 768.

It appears from A.L.R.2d Supplemental Service that the courts of the following jurisdictions"- Have followed- the Hitaffer opinion in' recognizing a wife’s right of action in such cases: Arkansas, Georgia, Illinois, Iowa/ Michigan, Missouri, Montana, Nebraska, Oregon, Pennsylvania, Texas, and several United' States District Courts. ' Others which have sincé rejected the Hitaffer case and adhered to the' old doctrine' denying the wife’s right of action are: Alabama, ’Arizona, California, Colorado, -Connecticut, Florida, Indiana, Kentucky, Maryland, Minnesota/ New Hampshire, New Jersey, New York, Oklahoma, Tennessee, • -Washington, Wisconsin, and several United States District Courts.

In the present age the distinction between the right of a 'wife and of- a husband to maintain the action is at odds with reason. The same may be said as to the inconsistency inherent in recognizing a wife has a cause of action for the impairment of consortium [ where, her husband’s injury was the result' of ’an" intentional or malicious wrong," but not where it was the result of negligence. Nevertheless, since there is a diversity of opinion among ;the courts in other jurisdictions'and this court has heretofore expressly declined to depart from its earlier-decision, having regard for the doctrine of stare decisis, we affirm the judgment.- '

Judgment affirmed.

WILLIAMS- and PALMORE, JJ., dissent.

WILLIAMS, Judge

(dissenting).

The conclusion- of th.e majority opinion is reached .by application of the doctrine of .stare decisis. The. salutary effect of adhering to the doctrine of stare decisis is well recognized. But, when the reason for the original rule no longer exists;- then stare decisis should not operate to" continue an outmoded principle.

The legal status of a. married woman has changed to such an extent that, if a husband should have the right- to recover for the loss of consortium, then surely the wife should be entitled to the same right. But, in my opinion, there is no discernible reaspn to allow the right to either. Rather than extend this opinion, I refer to the separate dissenting opinion by Chief Justice Walter V. Schaefer, Illinois Supreme Court, in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184. Therein the reasons why neither party should have a right of action are very ably stated.

PALMORE, J., joins in this dissent.

      . Other courts “have neatly solved the dilemma by denying the right of action also to the husband.” Note, 23 A.L.R.2d 1381.

      . This, it is pointed out, emphasizes only one element of consortium, the loss of support; whereas, consortium includes companionship, mutual service, felicity and other elements “all welded into a con-ceptualistie unity,” as discussed by the Illinois court in Dini v. Naiditch, infra, 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184, at 1199, and cases summarized in Annotation, 23 A.L.R.2d 1378, pp. 1385 et seq.


author: MILLIKEN, Judge.

text:
    Robert A. PRATHER, Jr., Appellant, v. COMMONWEALTH of Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    May 17, 1963.
    Robert Andrew Prather, Jr., pro se.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., for appellees.
   MILLIKEN, Judge.

Appellant filed this habeas corpus action in forma pauperis pro se, asserting that he had been deprived of his constitutional rights and that the state had waived its jurisdiction over him by turning him over to the Federal authorities in the Western District of Kentucky.

The appellant had been arrested in Nelson County charged with carrying a deadly weapon and being in possession of burglary tools. Since he was unable to make bail, he was detained in custody in the Nelson County jail. He was released to the Federal authorities to face a charge that he had transported a car in interstate commerce. He was released on bond by the Federal authorities to appear before the United States District Court at Louisville on October 1, 1962. Subsequent to his release on bond, he was rearrested • for attempting to flee the state to avoid prosecution on the state charges in Nelson County and was jailed in that county in September, 1962.' In October, 1962, the-Nelson County grand jury indicted him for the offense of carrying concéaled á deadly weapon and for possession of ' burglary tools, and he was subsequently convicted and sentenced ,to three years in the state reformatory at La Grange.

This is not a case within the scope of our rules in Jones v. Rayborn (1961), Ky., 346 S.W.2d 743, and Davis v. Harris (1962), Ky., 355 S.W.2d 147, where convictions had been obtained in the state courts and the men were serving state sentences when released without their consent by local state authorities to other jurisdictions to face charges. In the case at bar, the appellant had not been indicted and convicted for the state offenses prior to his release to the Federal officers, and the state, therefore, did not waive its right to indict and prosecute him for those offenses. In Jones v. Ray-born and Davis v. Harris, the state released the prisoners without their consent to authorities of other jurisdictions after they had been convicted, and we held that the state had waived its rights to subject the prisoners to further imprisonment on state charges after the service of their sentences in the other jurisdictions; we held that Kentucky had waived its rights to a return of the prisoners to this state.

The judgment denying habeas corpus is affirmed.


author: PALMORE, Judge.

text:
    BETHLEHEM MINES CORPORATION, Appellant, v. Arthur DAVIS et al., Appellees.
    Court of Appeals of Kentucky.
    May 17, 1963.
    Harry C. Campbell, Pikeville, for appellant.
    Thurman L. Hibbitts, Pikeville, for appel-lees.
   PALMORE, Judge.

On its factual findings that the appellee Davis was totally and permanently disabled by reason of an occupational disease of a respiratory nature acquired while in the employ of the appellant, Bethlehem Mines Corporation, the Workmen’s Compensation Board awarded maximum compensation. The employer appeals from a judgment of the Letcher Circuit Court confirming the award.

Davis was 61 years old and had been employed by Bethlehem and its predecessor in business, Consolidated Coal Company, for 34 or 35 years when he quit on May 3, 1960, because he was physically unable to continue working. During most of his career he worked as a motorman or as a brakeman, which exposed him injuriously to sand and dust. He says that he had been sick for two or three years but had forced himself to work on until he could “make it no longer.” He did not know exactly what his trouble was, though he had been examined by Dr. A. F. Judd, chief of medicine at the Whitesburg Memorial Hospital, on July 14, 1959, at which time he was complaining of shortness of breath, a mild ache across the front of the chest that would become aggravated with exertion, and loss of weight. Dr. Judd concluded then “that he had pneumoconiosis and bronchial asthma * * * and possible arterioscle-rotic heart disease, angina pectoris.” The doctor does not recall whether he discussed these conclusions with Davis at the time, but thinks that probably he did not. Though at the time of giving his deposition he was of the opinion that Davis might have had some degree of disability when examined in 1959, his records did not indicate that he had then reached any conclusion in that respect. Davis testified that the doctor advised him he “had a little dust but not enough to call it silicosis” and told him to go back to work.

The facts thus far recited dispose of the contention that the employer, which did not become aware of Davis’ condition until he was again examined shortly after quitting in May of 1960, was not given timely notice. The ambiguous phraseology of KRS 342.316(2) relating to “notice of disability” was construed in Mary Helen Coal Corporation v. Chitwood, Ky.1961, 351 S.W.2d 167, to mean that the duty to notify does not arise before the disease results in an actual impairment of the employe’s capacity to perform his work. This ruling necessarily had the effect of overruling Osborne Mining Corporation v. Barrera, Ky.1960, 334 S.W.2d 917, since it is the opinion of the court that so long as a man is able to carry on his duties, though he may suffer while doing it, he is not yet disabled within the meaning of KRS 342.316(2).

After he quit work bn May 3,1960, Davis was examined by four physicians, two of whom testified in his behalf and two in the employer’s behalf. One of these examinations was by Dr. Judd, who had seen Davis in 1959. All of the physicians found his ability to breath to be so impaired that there is no question respecting the degree of disability. The dispute centers on the issue of causation.

Dr. Judd found evidence of pulmonary emphysema, mild pulmonary fibrosis, and a number of small punctate shadows (as shown by X-ray) in the lung fields. He interpreted these shadows as representing nodules characteristic of anthracosilicosis, a form of pneumoconiosis, and said the X-ray evidence indicated pneumoconiosis to be definitely present but minimal. The only significant difference from his 1959 examination was that on this occasion Dr. Judd observed a heart murmur not detected in the course of his previous examination. Based on this circumstance and certain historical information he felt that Davis had an aortic insufficiency which “might possibly be contributing to his disability,” but “probably contributing very little.” There was evidence also of a mild myocardial infarction that apparently had long since healed and was not a factor contributing to present disability. In summary, it was Dr. Judd’s opinion that Davis was totally and permanently disabled, principally as the resut of anthracosilicosis. He explained that this conclusion was consistent with a “minimal” appearance of the disease on the X-ray films because such patients “can have minimal X-ray evidence of pneumoconiosis and can have severe pulmonary disability with no other apparent cause than pneumoconiosis.” For this reason it is customary to conduct other types of inquiry, such as ventilatory function tests (and, of course, the case history), in order to formulate a valid judgment.

Dr. William H. Anderson, chief of medicine at the Harlan Memorial Hospital, on the basis of case history, physical examination, chest X-rays, electrocardiogram, and pulmonary function studies, found what'he called “category two pneumoconiosis or anthracosilicosis with secondary emphysema.” He too detected evidence of a myocardial infarction at-some time in the past, hut was of the opinion that “a previous heart attack does not affect the breathing capacity. A man’s breathing capacity is decreased by disease' Or affliction of the lungs and not this type of heart trouble * * *. I don’t .think that his previous myocardio [sic] infarction contributes' to his inability to work.” It was" Dr. Anderson’s conclusion that .the primary causé of Davis’ decreased breathing -vyas emphysema caused by “pneumoconiosis or anthra-cosilicosis, whatever, term we wish to use is widely recognized as one .of the causes of emphysema.”

Dr.' Allen L. Cornish, of .Lexington, on the basis of .substantially the same type of examinations (except for the breathing test) as. those made by Drs. Judd and Anderson, .found, that .Dav-is “was suffering: from pul,'monary fibrosis, .and .'emphysema/-as. well 'as leutic heart disease with aortic insufficiency * * *. The electrocardiogram showed a minimal' pulmonary fibrosis and moderate pulmonary emphysema.” He found no •nodulation in the lungs and no evidence of silicosis. The heart condition “could have contributed” to the ..shortness of breath and chest pains, but the lung condition is “-the primary’ cause of’ his inability to work.” This condition, according to Dr. Cornish, was attributable ’ entirely ’ to pulmonary fibrosis and emphysema, which in turn was caused by “chronic bronchitis with repeated infections,” a type of ailment .common to the public in general.

Dr. E. R. Gernert, who is engaged in practice at Louisville as a specialist in diseases of the chest and teaches at the University of Louisville’s ‘Department of ‘Medicine, also examined Davis and testified as a defense- witness. He found, among other things, emphysema and inactive tuberculosis, but no nodulation indicative of silicosis or pneumoconiosis in any form. 'In his opinion, emphysema,’ which might have resulted from any of a great number of causes, was the cause of disability.’ In contrast with the other medical witnesses, Dr. Gernert found Davis’ heart condition normal and “very good.” (Apparently, however, he did not do an EKG.) Though he did not observe any X-ray evidence- of pneumoconiosis, he acknowledged that on the basis of the case history Davis had been sufficiently exposed to have it. The X-rays showed a linear (as distinguished from nodular) type of fibrosis consistent with tuberculosis, but which does not result from pneumoconiosis unless the latter disease has been brought -on by cotton dust, asbestos dust or tobacco dust. In the final analysis, Dr. Gernert’s testimony with respect to the cause of this patient’s emphysema was that he did not know.

Following the referee’s award of total permanent benefits thé employer moved the Board, pursuant to KRS 342.315 to appoint three disinterested physicians to examine the, claimant and advise'the Board. It is contended that the Board .abused its discretion in overruling, this motion.

There are, of. course, inconsistencies in the medical testimony, the most important of which is that the claimant’s witnesses found nodulations indicative 'of pneumoconiosis whereas the company’s 'witñesses did not. It is pointed out that Drs. Judd and ’ Anderson'were young doctors, employed by the union of which Davis is a member," whereas Drs. Cornish and Gernert were self-employed specialists of -much experience and outstanding qualifications. It is suggested that the union doctors were biased and the company-selected doctors disinterested, a questionable premise at best. Be that as it may, we are not going to interfere with the discretion of the Board in a matter of this sort unless the alleged abuse is clear and flagrant. We see no such abuse in this case.

On the evidence as a whole, including the testimony of Drs. Cornish and Gerriert, we think it would have been most difficult for the Board not to conclude that Davis’ lung condition resulted from his years of exposure to sand and dust in the mines, whatever may have been the abstruse physiological phenomena leading to the end product. It is our opinion also that the proof relating to other possiblé contributing factors was insufficient to require an apportionment.

The judgment is affirmed.


author: STANLEY, Commissioner.

text:
    Warren G. WRIGHT, Appellant, v. BETHLEHEM MINERALS COMPANY, a West Virginia Corporation, Appellee.
    Court of Appeals of Kentucky.
    May 17, 1963.
    Warren G. Wright, pro se.
    Francis L. Rice, Pikeville, W. G. Startl-ers, Clarksburg, W. Va., for appellee.
   STANLEY, Commissioner.

The case involves the interpretation of mineral deeds with respect to auger mining operations. The appeal is from a judgment permanently enjoining the surface owner, Warren G. Wright, from interfering in any way or manner with the mineral owner, Bethlehem Minerals Company, in the construction of roads and ways, facing up the coal and removing same by the auger mining method or interfering with its use of the surface “in any way incidental to such purposes.”

We summarily dispose of the appellant’s contentions of procedural irregularities in the granting of a restraining order and temporary injunction by which he, as defendant, was temporarily enjoined from interfering with the preparatory work for the mining operation. The appellant had a remedy by application to this court for an order directing its dissolution or modification. CR 65.07. See Slone v. Commonwealth, 225 Ky. 218, 7 S.W.2d 1037; Smith v. Smith, 304 Ky. 562, 201 S.W.2d 720. Likewise, as to the contention with respect to the absence of a reply to the defendant’s counterclaim as constituting an admission of its allegations and pleading of relief. The depositions by which the case was tried treated the issues as having been raised, CR 15.02, except the allegations of damage, which must have been proved. CR 8.04(3). Nor is there any merit in the appellant’s belated claim that the court was without jurisdiction.

The appellant admits the case is not one to prohibit auger mining, for the mineral deeds granted the right to mine the coal by any method. But he contends the restrictive clauses in the conveyances of the minerals prohibit the operations to which he objects. These are (1) excavations on the mountainside to provide a wide bench or I edge and a facing wall forty feet or so high, so as to “face up” and expose the outcrop of the coal seam for auger mining, and (2) the dumping of slate and any other debris or waste material onto the surface. It is also contended that the judgment ignores all rights reserved to the surface owner.

On June 26, 1891, appellant’s predecessor in title conveyed to appellee’s predecessor all coal and other minerals in a 353 acre tract of land, embracing about 100 acres here involved, with the customary rights to mine coal, including the right “to operate and construct all such wagon roads, railroads and tramways as may be necessary” etc. The coal that was capable of being mined by the conventional deep mining or tunnel method had been extracted when the then mineral owner, Consolidated Coal Company, obtained from the then surface owner of the property involved a second deed on March 16, 1939. The appellant, Warren G. Wright, and other owners of the surface joined in the deed and quit-claimed to the grantee “all their right, title, claim, interest and possession in and to the minerals, privileges and immunities hereinbefore described and granted.” That deed recites as a “Whereas” that the coal company “desires to obtain greater mining rights and privileges in and pertaining to” the land described, “now, therefore, without detracting from any of the property or rights or privileges now held by” the company in the land, “but for the purpose of enlarging its mining rights and privileges in and touching” the land, and for a consideration, the grantors convey all the coal and other minerals and the right to mine and remove all of the minerals upon the land. Other described mining operational rights are extensive and explicit. While the deed does not mention auger mining or any other particular method, it grants the right “to enter in, upon and under said land and to mine, excavate and remove” all the coal “in any manner and by any method deemed either convenient or advisable” by the grantee. The particular provisions in this deed upon which the appellant strongly relies is as follows:

“Anything to the contrary herein notwithstanding, it is not intended by this deed to grant the right to erect any miner’s dwellings or tipples on any of said three tracts of land; nor is it intended to grant by this deed the right to use any portion of the surface of said three tracts of land for the purpose of dumping slate thereon.”

In excavating the bench or ledge necessary for placing the machinery and reaching the seam of coal to be extracted by rotary augering, the soil, rocks, bushes and other material were shoved over the edge and down the hillside. The appellant contends this act is using the surface “for the purpose of dumping slate thereon” and violates the particular exclusion stipulated in the deed. He also contends that the excavation and leveling of the bench cannot be deemed a roadway or tramway, as authorized by the conveyances.

The first deed executed in 1891 is concise and general, and its terms indicate the use of the surface in mining operations was to be such as was customary at that time. Later, the development of different and more modern methods of mining seemed to require “greater rights and privileges,” and the second conveyance, for that purpose, was executed when accessible coal had been extracted by tunnel mining. So, that deed granted those rights and privileges. As stated, appellant concedes that auger mining was comprehended. The method being pursued was shown to be proper, customary and reasonable.

If the specific terms of the first deed granting the right to operate and construct wagon roads and tramways should be limited and regarded as not including the creation of a bench or ledge, the second deed, by necessary implication, enlarged the right to use the surface so as to include it.

It appears that the material or debris thrown upon the surface, as described, is commonly called a “spoil bank.” The appellant regards it as slate and the throwing of it upon the surface as being in violation of the particular express exclusion of the right “to use any portion of the surface for the purpose of dumping slate thereon.” The word “slate” is defined as a fine grained rock, composed of clay, shales and other similar substances, having a characteristic cleavage. Webster’s Dictionary. In coal mining parlance, it is the material containing rock, shale and unusable coal which lies immediately above the coal seam and which falls down when the coal is excavated. It appears to be flammable. There was nothing in the first and primary conveyance of the minerals that would prohibit the dumping of this product on the surface in deep or tunnel mining.

It is elementary law that conveyances, like other contracts, are to be interpreted as a whole and the meaning gathered from the entire context and not from particular clauses or words. Such clauses and words must be read in the light of that law and construed to harmonize with the whole and in a way that will be consistent with the general intent and purpose of the instrument.

When the deeds are considered and construed as a whole, we think the restriction or exclusionary clause should not and cannot be construed as depriving the appel-lee of the right to do what it was doing; hence, the judgment enjoining the appellant is proper.

We cannot agree with the appellant’s argument that the judgment entirely destroys his property rights. The only provision in the judgment which might be deemed to justify the argument is that which enjoins the appellant from interfering with the appellee’s use of the surface “in any way incidental to such purposes.” According to the context, the word “incidental” may mean a casual or chance happening, not of prime importance, or may mean what is subordinate to the main event or act. Webster’s Dictionary. The use of the term in the judgment should be regarded in the latter sense and as being the general surface rights of the owners of minerals as defined in many opinions of this court, and as provided in the conveyances.

The judgment is affirmed.


text:
    Vaughn C. HEMPFLING, Appellant, v. Everett H. EDINGTON et al., Appellees.
    Court of Appeals of Kentucky.
    May 17, 1963.
    Armer .H. Mahan, -Davis & -Mahan, Louisville,- for appellant. •, .
    Á. D. Yelton, Frankfort, John E. Crigler,' Burlington/ Walter "D. "Vest, Covington,-for appellees. •
   CHARLES M. ALLEN,' Special Commissioner.

This is an appeal from the judgment of the Boone Circuit Court affirming an award by the Workmen’s Compensation Board finding appellee,' Everett H. Edington, to be totally disabled for an indeterminate period, not exceeding 500 weeks, as the result of an injury occurring to his left leg on December 31, 1955, which was received in the course' of his employment with the appéllant, Vaughn C. Hempfling.

Appellee fell from a ladder in appellants barn. He suffered a compound fracture-of the left tibia between the ankle and the knee; Following operations of March 2, 1956, and, May 24, 1957, an amputation was performed just above the knee of the left leg on January 10, 1958. The amputation was rendered necessary because of the inadequate healing and reoccurring sinuses from ' osteo-myelitis.

Since the operation, appellee has been fitted with an artificial leg but has been unable to perform the farm work which he had performed previous to the date of his injury. Appellee has been unable to adjust satisfactorily to his artificial leg and was using crutches at the time of the hearings before the Board. He has a fourth grade education, is 35 years of age, and has spent practically all of his adult life in farm work.

On March 14, 1954, appellee suffered a compound fracture of the tibia of the left leg and suffered some destruction of the bone tissue which was probably 'due to osteomyelitis. The condition of'osteomyeli-tis, however, was inactive at the timé of the injury of December 31, 1955. Dr. Robert H. Coffield, who has treated appellee since December 31, 1955, stated that it was possible that appellee might not have suffered any reoccurrence of osteomyelitis had it not been for his second injury, but that even if he had not suffered a second injury, the osteomyelitis could have reoccurred.

The medical panel appointed by the Board found that the disability of December 31, 1955, was not contributed to or aggravated by the injury of March 14, 1954. The panel also found that appellee was suffering from a 5% disability to the body as a whole when the injury occurred.

Dr. Ralph Carothers, who examined ap-pellee on only one occasion, testified that 50% of appellee’s disability was due to the pre-existing condition of osteomyelitis.

Appellant contends that the Board should have apportioned responsibility for appellee’s disability between the injury of March 14, 1954, and the injury of December 31, 1955. Appellant also contends that the Board was restricted in its award of compensation to the specific amount set out in KRS 342.105(19).

Appellant is correct in his second contention. In the case of Wirth Lang Company v. Meece, 211 Ky. 520, 277 S.W. 834, the Court held that where an employee receives an injury which results in the removal of a member of his body for which specific compensation is provided under Section 4899 of the statutes, he is not entitled to recover additional compensation for a period of temporary-total disability over and above the amount awarded under the specific schedule. That opinion makes it clear that the Legislature intended that all injuries resulting in the loss of the .members of the body set out in Section 4899 are to be considered as permanent partial disability and to be compensated for in accordance with that section. Section 4899 is now KRS 342.105.

In Atlas Coal Company v. Moore, 298 Ky. 767, 184 S.W.2d 76, the Court held that Moore having suffered a loss of his left thumb and index finger and a permanent impairment of the second finger was entitled to be compensated under KRS 342.105 and that no reduction could be made in the award because of the fact that he was receiving a salary from his employer after the loss of the limbs. The Court stated that injuries which come within the provisions of KRS 342.105 call for the specific amount of compensation fixed by that statute and cannot be reduced or increased either by the Board or by the Court. See also Holt v. West Kentucky Coal Co., Ky., 350 S.W.2d 155.

The cases cited by appellee, such as Hardy Burlingham Mining Company v. Sawyer, Ky., 254 S.W.2d 350, and Clark v. Gilley, Ky., 311 S.W.2d 391, are not in point since they involve injuries to but not removal of limbs of the body, which injuries resulted in total and permanent disability. In such cases, by virtue of the specific provisions of KRS 342.095(4), the Board may award a greater amount than is awarded for the loss of a limb set out under KRS 342.105.

Appellant contends that where there is a specific loss under KRS 342.105, there should be an apportionment under KRS 342.005. There was medical testimony that 50% of appellee’s disability was due to the pre-existing condition resulting from the first injury.

KRS 342.110, which together with KRS 342.105 comprised Section 4899 of the Kentucky Statutes, provides in part:

“In all other cases of permanent partial disability * * * compensation shall be determined according to the percentage of disability, taking into account, among other things, any previous disability, * *

In Shuman Co. v. May, Ky., 327 S.W.2d 14, it was held that the pre-existing condition should be considered and that the disability should be apportioned, having regard for such condition.

It is recommended that the judgment be reversed with direction to remand to the Board for an award in conformity herewith.

The opinion is approved by the Court and the judgment is reversed.


author: STEAKLEY, Justice.

text:
    Ex parte J. C. WAGNER and Wife, Mardess Wagner.
    No. A-9516.
    Supreme Court of Texas.
    May 22, 1963.
    Rehearing Denied June 19, 1963.
    Kuykendall & Kuykendall, Austin, Le-Voy Musick, Houston, for relators.
    Adams & Granberry, Crockett, for respondent.
   STEAKLEY, Justice.

This is an original habeas corpus proceeding. Relators, J. C. Wagner and wife, Mardess Wagner, were committed to jail on December 27, 1962, pursuant to an order of commitment of the county judge of Houston County. They were released on March 22, 1963, pursuant to our order granting a writ of habeas corpus.

On March 30, 1962, one P. S. Berry filed a forcible detainer action against relator J. C. Wagner in the justice court of Houston County. Berry was given judgment and Wagner appealed to the county court. In the appeal cause No. 3063 the county court by judgment dated August 7, 1962, decreed that Berry have restitution of the property in question, and a writ of restitution was served on J. C. Wagner on August 11.

Under date of October 25, 1962, Berry filed suit for injunction against relators in the county court of Houston County. The suit was assigned cause No. 3079. Berry alleged that he was the owner of the tract of land in question; that he had recovered judgment against J. C. Wagner in cause No. 3063 for restitution and possession of the premises; and that a writ of restituí fion in enforcement of the judgment had been issued and served. He further alleged that relators “will immediately, or shortly after such restitution re-enter upon such premises and again take possession,” and that he “has no means by which he can hold and retain possession of said premises except by writ of injunction.” His prayer was that relators “be temporarily enjoined from taking possession of, holding possession of, or interfering with plaintiff’s possession of, said house and premises,” and for permanent injunction. On October 26 the judge of the county court granted a temporary restraining order enjoining relators from “taking or holding possession * * * and from interfering in any way with the plaintiff, P. S. Berry, exercising possession of, and having possession of, said house and premises.” A temporary, injunction to the same effect as the restraining order was granted on November 5; the órdér of - the court recited that the plaintiff' was entitled to "the temporary injunction “for the reason that the property and premises described in plaintiff’s petition are owned and belong to plaintiff.”

Subsequently, the attorney for Berry filed a complaint supported by affidavit charging that'relators on or about November 6 .entered upon and took possession of the premises .wilfully and without‘.justification and in defiance of the order" of the court granting the temporary injunction. Acting thereon, .the court'ordered that attachment issue for relators to personally answer the complaint on December 27. Upon hearing, the court found that- relators were in contempt of the temporary injunction order by entering upon and taking possession, and holding possession, of the premises. .The court decreed that relators pay “a fine of $No as a - punishment of •the contempt aforesaid and that they forthwith turn over and deliver to P. S. Berry the house and premises above described and that they both an.d each be imprisoned in the common jail of Houston County, Texas, until each of them shall pay the said fine of $No as herein described and until they and each of them shall turn over 'and deliver to the said P. S. Berry the house and premises in Houston County, Texas,, belonging to the said P. S. Berry * * * or until they and each of them shall be discharged by • the further order of this, court * *

Relators attack the order of commitment on the sole ground that it was void because based on an attempted adjudication of title beyond the jurisdiction of "the county court. There is no attack upon the factual basis supporting the temporaty injunction and contempt orders. See Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884.

In the forcible detainer suit instituted by P. S. Berry neither the justice court nor the county court undertook to adjudicate title and the final judgment therein was for possession only. The injunction suit instituted by Berry was anciliary to, and. brought for the enforcement -of, the prior judgment of the same epurt ordering the relator J. C. Wagner to restore possession of the premises to Berry. The fafct that it was assigned a different cause number is not controlling. The recitation in the order granting the temporary injunction that the plaintiff was entitled thereto for the “reason” that the plaintiff was the owner of the property does not ' render the Order void as an" assertion of jurisdiction to adjudicate title to the property. We will presume that the court did not undertake to exercise a- jurisdiction . which was riot invoked arid which-was be- - yond its powers.

Although not raised by relators, we note that-the performance required of relators to purge themselves under.,,.the terms of the contempt order is to, “turn over and deliver to the- said P. S.- Berry the house and premises.” . Imprisonment for an indefinite period in a civil contempt is a recognized remedial measure to coerce a contemner to do- an act within his power to perform, but he must have the me^ns by which he may purge .himself. , Under the terms of the contempt order here the possibility is apparent that the relators cannot discharge themselves — do not carry the keys to their jail in their pocket, see Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 — because the incarceration itself may have accomplished that which relators were required to do. The imprisonment of relators removed them from possession of the house and premises and may have made it possible for Berry to regain possession, hence there was no additional performance by which relators could obtain their liberty. However, the record does not include a statement of facts and we must presume there was evidence to support the contempt judgment of the court. See City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860. For example, relators may have been continuing to hold possession of the property by means of an agent whom they could direct to relinquish possession.

Relators are remanded to the sheriff of Houston County.