text:
    Lou S. MURRAY, Appellant, v. Thomas P. MURRAY, Appellee.
    No. 15788.
    Court of Civil Appeals of Texas. Dallas.
    June 16, 1961.
    Rehearing Denied Sept. 29, 1961.

      Gilbert P. Howard and John A. Rawlins, Dallas, for appellant.
    Hughes, Donoslcy, McCracken & Hunt, Samuel Donosky, Dallas, for appellee.
   DIXON, Chief Justice.

Our opinion heretofore rendered in this appeal is withdrawn and the following opinion is substituted therefor.

This is an appeal from an order (1) reducing the amount of the monthly child support payments, and (2) denying appellant an allowance for attorney’s fee.

On April 22, 1955, appellant Lou Bottema, then Lou Murray, was granted a divorce from appellee Thomas P. Murray after a trial before Hon. Paul Peurifoy, Judge of the 95th District Court sitting for the Judge of the Juvenile Court of Dallas County. The parties had entered into a written agreement whereby appellee obligated himself among other things to pay $250 per month as child support for his two children, who were then seven and four years of age respectively. The contract provided that the amount of the monthly payments might later be changed either by written agreement of the parties, or by court order upon a showing that appellee’s financial circumstances or the financial needs of the children had changed.

The contract was copied in and made a part of the divorce decree. Custody of the children was awarded to appellant. The judgment recites that another child, then twelve years of age, born to appellant of a previous marriage, had lived with the parties during their marriage, but had not been adopted by appellee.

On October 23, 1957 appellant, who had remarried and moved to California, filed a motion to hold appellee in contempt of court for failure to keep up his child support payments.

On the same date, October 23, 1957, John A. Rawlins and Gilbert P. Howard were appointed attorneys for appellant under authority conferred on the court by Rule 308-A, Texas Rules of Civil Procedure.

In an amended motion filed December 6, 1957 appellant alleged that appellee had arbitrarily reduced his payments to $75 semi-monthly, and finally beginning June 16, 1957, had discontinued making any payments whatsoever with the result that he was $1,775 in arrears. She prayed that ap-pellee be confined in jail for contempt and that she be allowed an attorney’s fee of $500.

On January 21, 1958 appellee filed an answer to the contempt motion and a motion to reduce his child support payments, in which pleading he alleged that soon after entering into the written agreement he had discovered that the sum he had agreed to pay as child support was beyond his financial ability, that he had found it necessary to borrow money and sell certain assets in order to try to keep up his payments, and that as a consequence he had become greatly involved in debt and was in arrears in his child support payments. Appellee further alleged that part of his financial troubles was due to the fact that he had found it necessary to pay part of the burial expenses of his father and to defray part of the expenses of the care of his aged mother. The record shows that appellee had also remarried.

Appellee also alleged that he had informed appellant of his financial plight and an agreement between them had been entered into whereby the amount of the child support payments was reduced. Appellee pled that the amount of his payments be reduced by the court to $150 per month. Appellee’s testimony supported his pleadings.

Following the filing of appellee’s answer there began an unusual train of events. On January 21, 1958 a hearing on the motion-began before Hon. Dwight McCormack, Judge of the Juvenile Court of Dallas County. In one of her later pleadings appellant alleges that following the hearing Judge McCormack made an entry on the court’s docket sheet as follows:

“1-21-58 — Motion in contempt sustained. Commitment suspended on condition Respondent pay arrearage in amount of $1,-775.00 on or before July 15, 1958. Motion-to reduce sustained. Original Judgment modified and child support set and ordered in amount of $166.00 per month payable semi-monthly as per previous dates.
“Dwight McCormack, Judge.”

The court’s docket sheet was not introduced into evidence.

However, the Statement of Facts shows that at the conclusion of the testimony, Judge McCormack made this statement:

“The Court: The motion for contempt is sustained. Commitment is suspended on conditions (sic) the respondent pays an arrearage in the amount of seventeen hundred seventy-five dollars on or before July 15th, 1958. Motion to reduce sustained; original judgment modified and child support ordered in the amount of one hundred sixty-six dollars per month payable semi-monthly and payable as per previous date.
"Mr. Rawlings: Judge, you didn’t overlook the matter of attorney’s fees?
"The Court: Yes, I did. I want a slight explanation of that. I probably heard that evidence. (At this point after the testimony was concluded there was an off the record discussion held between the Court and Counsel.)” (Emphasis ours.)

The record before us contains no written decree signed by Judge McCormack. The attorneys for the parties agree that no such judgment was ever entered on the minutes of the court.

Much later in the course of perfecting a bill of exceptions, one of appellant’s attorneys stated that he had prepared a written judgment which was signed by Judge Mc-Cormack before being turned over to appel-lee’s attorney for approval. The record contains a copy of the document, but the signature of Judge McCormack has been scratched out. In a motion to enter judgment nunc pro tunc appellant says that after Judge McCormack had signed the decree, he instructed his clerk to hold it pending his decision in regard to appellee’s objections to the instrument as drawn. Appellee’s attorney says that Judge McCormack scratched out his own signature because the document, drawn by appellant’s attorney, had not been submitted to appellee’s attorney prior to the signing.

Meantime Judge McCormack died. No written judgment had received his final approval. None had been entered on the minutes of the court. Judge McCormack was succeeded as Judge of the Juvenile Court by Judge Lewis Russell.

On October 9, 1959 appellant, who had become Mrs. Lou Bottema, filed a motion to enter judgment nunc pro tunc. Appellee filed a written answer opposing the granting of the motion. On December 2, 1959 the motion was sustained by Judge Russell.

The judgment entered nunc pro tunc carried out the main provisions of the proposed judgment prepared by appellant’s attorney, which proposed judgment Judge McCor-mack had signed but from which his signature was later obliterated apparently by the Judge himself. Appellee was held in contempt but his commitment to jail was suspended on condition that he pay $1,775 by July 15, 1958, his child support payments were reduced to $166 per month, and appellant’s request for an allowance for attorney’s fee was denied.

On the same date that judgment nunc pro tunc was entered, December 2, 1959, Judge Russell also signed an order which recited that appellee had theretofore paid the entire amount of his arrears in child support payments, $1,775, of which $1,000 had been paid on July 15, 1958, and $775 on October 22, 1959, and that by doing so appellee had purged himself of contempt.

Soon after this appeal was perfected by appellant appellee filed a motion to dismiss the appeal on the ground that the parties had reached a settlement of their controversy. Attached to the motion was a copy of a telegram from appellant to appellee and a copy of a notarized letter dated May 26, 1960 from appellant to her attorney, both documents signed Lou S. Murray, advising that an understanding had been reached between the parties and requesting that the appeal be discontinued.

Appellant contested appellee’s motion to dismiss the appeal. Attached to her written answer were copies of two letters written by appellant to her attorneys withdrawing her previous instructions to discontinue the appeal. Her grounds were that her instructions of May 26, 1960 were written without knowledge of a tentative settlement proposition then pending between the attorneys.

Opinion

The only questions before us on this appeal involve the court’s orders (1) reducing the amount of child support payments from $250 per month to $166 per month, and (2) refusing any allowance for attorney’s fee.

Appellant’s first, second, third and fourteenth points on appeal all attack the court’s alleged error in undertaking to modify a contractual judgment for child support. Her points in substance are that it was error (1) to modify a contractual judgment at all, (2) to modify a contractual judgment without pleading or proof of changed conditions, (3) without pleading and proof of the existence of the grounds specified in the contract for a modification of the child support payments, which contractual grounds were: (a) by written consent, or (b) because of changed financial conditions of ap-pellee or the children, and (14) to fail to limit the court’s order to the terms and conditions contained in the contractual judgment.

The fact that the parties had entered into a contract in regard to child support and that the Juvenile Court recognized the contract, did not deprive the Court of its statutory authority under Art. 4639a to enter an appropriate child support order or later to change its order. Brady v. Hyman, Tex.Civ.App., 230 S.W.2d 342; Mobley v. Mobley, Tex.Civ.App., 221 S.W.2d 565; Townsend v. Townsend, Tex.Civ.App., 115 S.W.2d 769; Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953.

We quote with approval this statement from 21 Tex.Jur.2d 45-^47:

“A decree or judgment for child support based on an agreement possesses dual characteristics and is interpreted like a contract between the parties. Though the judgment may partake of the nature of a contract and also of the nature of a decree, contractual provisions, even though made a part of a decree, insofar as they go beyond statute provisions, cannot be enforced by contempt proceedings. * * *
“Under the statute a divorce decree providing for child support payments in accordance with an agreement of the parties may be modified by a subsequent order, and if modified may be enforced by contempt proceedings only as to the modified amount. However, the modification does not affect the liability for the contractual amount, and the obligee is entitled to recover delinquent payments based on this contract by the ordinary processes of law for the enforcement of contractual obligations.”

Our holding relates only to the liability imposed on appellee under Art. 4639a by virtue of the nunc pro tunc order of December 2, 1959, which order may be enforced by contempt proceedings. Nothing contained herein shall affect the contractual obligations assumed by appellee and appellant or the right of the parties to assert their contractual claims or defenses through the ordinary processes of law for the adjudication of contractual obligations. Appellant’s first, second, third and fourteenth points are overruled.

In her fourth, sixth, tenth, eleventh and twelfth points on appeal appellant says that the court erred in (4) attempting to make a new determination of what the intention of the parties was as to the number of children for whom support was to be paid, (6) assuming that it was intended that the payments were for the support of three instead of two children, (10) sustaining special exceptions to part of appellant’s motion for new trial, (11) sustaining objections and excluding testimony of statements made by Judge Dwight L. McCormack, as a part of the final ruling on contempt and res gestae thereof, and (12) excluding verbal statements made by Judge McCormack amounting to findings of fact and conclusions of law.

The effect of the trial court’s sustaining of exceptions to appellant’s motion for new trial was to exclude from consideration the alleged reasons given by Judge McCormack in connection with his final decision on contempt and modification. The last entry in the Statement of Facts, part of a quotation from the record already given herein, is this: “At this point after the testimony was concluded there was an off the record discussion held between the Court and Counsel.” There is nothing in the record to show what was said by the Judge in the discussion. The context suggests that the discussion was concerned with the subject of an allowance of attorney’s fees. However, one of appellant’s attorneys offered to testify that Judge McCormack said that it appeared to him that the amount was •originally intended for the support of three children, and with that he took his pencil .and said that for that reason he was reducing the amount of support to $166.66 and the Judge further said he was going to deny the application for attorney’s fees since appellant had already paid $150 to one of the attorneys. Objection to this testimony was sustained.

We are of the opinion that it was proper to exclude the proffered testimony concerning the matters of which appellant complains in her fourth, sixth, tenth, eleventh and twelfth points on appeal. Oral declarations of a judgment cannot be accepted as substitutes for the written findings of fact and conclusions of law to which appellee was entitled under the provisions of Rule 296, T.R.C.P. Kinney v. Shugart, Tex.Civ.App., 234 S.W.2d 451; Long v. Smith, Tex.Civ.App., 162 S.W. 25. Said points are therefore overruled.

But in connection with this phase of the controversy we shall turn now to consideration of appellant’s thirteenth point on appeal wherein she complains of the failure of the court to file findings of fact and conclusions of law. The record reveals that on February 3, 1960 appellant filed her written request for findings and conclusions. Following the court’s failure to comply, appellant on March 1, 1960 in writing called the omission to the attention of the judge pursuant to Rule 297, T.R.C.P. No findings of fact or conclusions of law were ever filed.

The omission was important to appellant in this case. She was entitled to know the factual and legal basis for the court’s judgment. There were fact issues necessarily determined by the court. Appellee testified over appellant’s objection that the $250 child support which he had been originally ordered to pay and which he had agreed to pay was really for the support of four persons : his wife, his two children and his stepson. Did the court accept this interpretation of the original order, and did the court therefore reduce the child support one-third because he believed that the original order required appellee to support three instead of two children?

Appellee testified that his former wife agreed to a reduction of the child support to $150 per month. Appellant denied any such agreement. Was the court’s judgment based in part on a finding that such an agreement was made ?

The answers to these and other questions cannot be known in the absence of findings of fact and conclusions of law. The failure of the trial judge to file findings and conclusions was reversible error under the circumstances.

We can understand Judge Lewis Russell’s reluctance to file findings of fact and conclusions of law in this case. He did not sit as Judge at the divorce trial when the original child support order was entered, nor did he sit as Judge when the motion to reduce child support was heard by Judge Mc-Cormack and sustained in part. The record does not show when the statement of facts was completed and was available for study and analysis. It does show that the statement of facts was approved by Judge Russell on March 18, 1960 and filed in this court March 25, 1960. If Judge Russell did not have an opportunity to study the statement of facts prior to March 18, 1960 his attempted findings of fact would hardly have been anything more than guesses.

Nevertheless, we believe that in compliance with Art. 2248, V.A.C.S., it was incumbent upon Judge Russell to make and file findings and conclusions. The statute provides that when a judge shall die his successor may file findings and conclusions.

Even if we were to interpret the statute as merely directory, not mandatory, we would nevertheless be bound to sustain appellant’s thirteenth point. For such an interpretation would mean that appellant, through no fault of her own, would be denied the findings and conclusions to which she was entitled under Rules 296 and 297, T.R.C.P. Though the ruling involved a statement of facts and bills of exception in a criminal case, the holding of the Court of Criminal Appeals in Pierson v. State, 147 Tex.Cr.R. 15, 177 S.W.2d 975 (Syl. 10) seems to us to be applicable to a situation like this where an appellant has been denied findings of fact and conclusions of law. Appellant’s thirteenth point is sustained.

In her seventh, eighth and ninth points appellant complains because the trial court did not allow her an attorney’s fee. The record reveals that sometime before her motion for contempt was filed appellant had employed her attorneys and had paid them a fee of $150 to represent her in the contempt proceedings. She also sent her attorneys checks for $10 and $7 for court costs. Thereafter, on the day the motion was filed the attorneys were appointed by the court under Rule 308-A, T.R.C.P.

We think Rule 308-A, T.R.C.P., was promulgated primarily for the benefit of persons who are not financially in position to employ an attorney, not for persons who have the money for their own defense. Be that as it may, in the second paragraph of the Rule it is expressly provided that except with the consent of the court no fee shall be charged by or paid to the attorney for his services in representing the claimant. Appellant’s seventh, eighth and ninth points are overruled.

However the trial judge’s holding in regard to attorney’s fee brings us back to appellant’s thirteenth point. She was entitled to findings of fact and conclusions of law which would make clear the factual and legal basis for the court’s refusal to allow her an attorney’s fee. We refer again to quoted part from the last paragraph in the statement of facts where there is recorded a discussion between the court and counsel in which the court apparently speaking of the attorney’s fee said: “I want a slight explanation of that. I probably heard that evidence.” Then followed an off the record discussion between the court and counsel. But the record is silent as to the explanation, or the evidence referred to by the court, or the court’s grounds for refusing to allow an attorney’s fee.

Because of our sustaining appellant’s thirteenth, point on appeal, we reverse the trial court’s judgment and remand the cause for another trial.

On Rehearing

Appellee in his motion for rehearing charges that we erred in considering and sustaining appellant’s thirteenth point for the reason that (1) appellant filed no bill of exceptions complaining of the trial court’s failure to make findings of fact and conclusions of law; and (2) appellant failed to call the attention of the trial judge to his omission to make findings of fact and conclusions of law as required by Rule 297, T.R.C.P.

In support of the first of the above points appellee cites us to the cases of Steppe v. O’Day, Tex.Civ.App., 315 S.W.2d 599, 603; Smith v. Vankirk, Tex.Civ.App., 314 S.W.2d 377, 380; Spradlin v. Rosebud Feed & Grain Co., Tex.Civ.App., 294 S.W.2d 301, 302; Gunst v. Dallas Trust & Savings Bank, Tex.Civ.App., 8 S.W.2d 806, 807; and 4 Tex.Jur.2d 37.

We do not disagree with the holdings in the above cases, but we are of the opinion that their holdings are not applicable under the circumstances presented in the instant case. Rule 419, T.R.C.P., provides that any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party. In this case appellant stated expressly in his brief that the trial court failed to file findings of fact and conclusions of law. This statement by appellant was not only not challenged by appellee, it was admitted by appellee to be true.

We quote from appellant’s brief:

“Thirteenth Point Restated
“The error of the trial court in failing to file findings of fact and conclusions of law. * * *
“Though request was timely made and the proceedings were available, the present judge failed to file such findings of fact and conclusions of law; *

In his brief appellee answered as follows:

“Thirteenth Counterpoint Restated
“The trial court did not err in failing to file findings of fact and conclusions of law, because the judge of the trial court is now deceased and left no memorandum of office, and for the further reason that the appellant has his Statement of Facts upon which to rely. * *
“Appellee would further show that the failure of a judge to file conclusions of fact is not grounds for reversal when there is a full Statement of Facts in the record, and it does not appear that the appellant has been or could be injured by reason of the non-performance of such duty by the judge.
“Appellee would further show that it would have been futile on the part of the present judge of the Juvenile court of Dallas County, Texas, to attempt to make any finding of fact or conclusion of law, and such effort would have been useless and of no effect in view of the death of the trial judge prior to the entry of judgment in the instant case.”

The purpose of a bill of exceptions is simply to show what occurred in the trial court. Gulf Coast Transport Co. v. Standard Milling Co., Tex.Com.App., 252 S.W. 751, 754; Whatley v. Davis, Tex.Civ.App., 116 S.W.2d 466. If what occurred otherwise appears there is no need for a bill of exceptions. In this case appellant asserts and appellee admits that the trial court did not file findings of fact and conclusions of law. Under Rule 419, T.R.C.P., we may accept these statements as true.

In his second point on rehearing appellee contends that it cannot be known from the record whether appellant’s second letter to the trial judge actually was ever seen by the judge. Appellee cites cases holding that the reminder notice, pursuant to Rule 297, T.R.C.P., must be called to the attention of the judge — it is not sufficient merely to file the notice with the clerk.

Again we do not disagree with the holdings in the cases cited by appellee. We think the record discloses that the notice was brought to the personal attention of the trial judge.

The second letter of notification, including a notation at the bottom left-hand corner, was as follows:

“February 29, 1960
“Dear Judge:
“In checking with your Clerk today, she advised that findings of fact and conclusions of law have not been filed in the above case. As provided by the Rule, this omission is hereby called to your attention.
“Yours very truly “/s/ Gilbert P. Howard.
“3-1-60
“Called Mr. Donosky.”

With our permission appellant filed a supplemental transcript which contains a copy of an affidavit by the trial judge which affidavit includes this statement:

“I have examined page 85 of the Transcript in said cause on appeal whereon there is contained a copy of a letter from Mr. Gilbert P. Howard to me, dated February 29, 1960. Same is a true and correct copy of the original of said letter which was received by me on March 1, 1960. After receiving said letter calling my attention to the fact that findings of fact and conclusions of law previously requested by Plaintiff as Appellant in said cause on appeal had not been filed, I called Mr. Samuel Donosky by telephone, called his attention to said letter of February 29, 1960, and told him I would have to depend on him to prepare such findings and conclusions because I had no knowledge of the same. I made notation of such call in my own handwriting on said letter and thereupon had the Clerk file said letter on said date of March 1, 1960.”

It will be observed that this affidavit does not attempt to change or contradict any document shown in the transcript. It merely makes clear that which could not be clear from the typewritten copy of appellant’s, letter as shown in the transcript, that is, that the notation “3-1-60 called Mr. Don-osky” was written there by the Judge in his own handwriting. Certainly it shows that the letter was brought to the attention of the Judge.

Over appellee’s objection we sustained appellant’s motion for leave to file the Supplemental Transcript. We think our action was proper under Tucker v. Boyd, 156 Tex. 262, 293 S.W.2d 841, 843, in which case our Supreme Court under Rule 428, T. R.C.P., permitted the filing of a certificate by a District Judge in order to make the record speak the truth.

Appellee’s motion for rehearing is overruled.


source: Caselaw Access Project

author: CLAY, Commissioner. MONTGOMERY, Judge

license: Public Domain

text:
    Elmer CROWE, Appellant, v. Bishop TAULBEE, Appellee. Elmer CROWE, Appellant, v. Dorsie CABLE and Neville Hobbs, Appellees.
    Court of Appeals of Kentucky.
    Sept. 22, 1961.

      Stoll, Keenon & Park, Lexington, for appellant.
    J. Douglas Graham, Campton, Jesse S. Hogg, Winchester, for appellees.
   CLAY, Commissioner.

This is a motor vehicle collision case. The appellees (plaintiffs below) recovered substantial sums for personal injuries and property damage. The appellant (defendant below) appeals on numerous grounds, many of which were not treated in appellant’s brief as required by RCA 1.210(a).

The first contention is the trial court erred in denying appellant’s petition for a change of venue. The grounds alleged were that one of the appellees and his attorney were prominent and influential citizens of Wolfe County and were members of large families in the community. The petition was controverted and it appears from the record witnesses were heard in opposition thereto. Though their testimony was stenographically reported, the appellant failed to have a transcript thereof made a part of the record on appeal. Under these circumstances we must assume the •testimony heard supported the court’s ruling. In any event, even in the absence of •controverting evidence, we fail to find an .abuse of the broad discretion accorded the trial court in civil - cases. See Hodge v. Sharpe, Ky., 287 S.W.2d 596.

The next principal contention is that the ■physical facts entitled appellant to a directed verdict. The accident occurred on a’ blind curve on Highway 15 between Winchester and Campton. Appellees’ pickup1 truck was traveling on the inside of the curve to the right proceeding toward Camp--ton. Appellant’s loaded coal truck was mov-’ ing in the opposite direction on a downgrade. According to appellees’ testimony, appellant’s truck was rounding the curve (to its left) on the wrong side of the road. The driver of the pickup truck, conceiving he would not be able to pass on his right hand side (because of a steep embankment), cut his vehicle to the left in front of the coal truck and then swung back and struck the coal truck on its right side. (It is difficult to conceive why the operator of a motor vehicle can imagine that this procedure will avoid a collision — but they sometimes do.)

Appellant contends that the physical evidence, i. e., photographs and certain testimony concerning the absence of skid marks and the position of debris on the road, shows conclusively that the appellant’s truck was on its right side of the road when the collision occurred. There are two answers to this contention. The first is that the only true physical fact in this case, i. e., the position of the vehicles after the accident as shown by photographs, does not unerringly lead to this conclusion. Definitely appellees’ pickup truck ended up on its wrong side of the road. Appellees admit this, even insist upon it. Appellant’s coal truck is shown to be overturned crosswise, occupying practically the entire paved surface of the highway. Its front wheels are on .its right side but its rear wheels are completely over on its left side. The position of the cars at the time of impact cannot be definitely determined.

In this particular case, however, the position of the cars at the time of impact is not necessarily the controlling consideration. Appellees’ theory, substantiated by .proof, is .that appellant’s big, heavy coal truck when first observed was so far over in appellees’ driving lane that emergency action on the part of the appellee driver .was required. Even though the latter made a poqr choice of alternatives, appellant was ¡liable if (1) the coal truck was on the wrong side of the road immediately before the-collision, and (2) its position there at that time was the proximate cause of the collision. There are neither physical facts nor irrefutable evidence which would justify our determining' as a matter of law that this chain of causation could not reasonably have been found to exist. Had we been on the jury we might have taken a different view, but we cannot usurp its function. Appellant was not entitled to a directed verdict.

A number of other questions are raised. We have examined them all carefully and find no reversible error.

The judgments are affirmed.

MONTGOMERY, Judge

(dissenting).

The physical facts, evidenced by the photographs and unusual circumstances, taken with the evidence of intoxicants, show that the Taulbee truck in which Hobbs and Cable were riding was as a matter of law operated negligently, thus barring any recovery by appellees. For this reason I dissent.


author: MOREMEN, Judge.

text:
    COMMONWEALTH of Kentucky DEPARTMENT OF HIGHWAYS, Appellant, v. Wurts CHINN, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.
    John J. Blackburn, Legal Section, Dept, of Highways, Covington, Hafford E. Hay, Asst. Atty. Gen., for appellant.
    Bates & Nicholls, Greenup, for appellee.
   MOREMEN, Judge.

Appellee, Wurts Chinn, filed a complaint with the Board of Claims (KRS 44.070-44.990) by which he sought to recover damages from the commonwealth resulting from alleged negligence on its part in constructing and maintaining U. S. Highway 23, which abuts a small tract of land owned by him.

The testimony offered by appellee Chinn is vague and uncertain and it is impossible to gather from the record the exact nature of his complaint. We surmise that this is the real basis: Many years ago, Highway 23 was a plain gravel country road. In 1923 the state blacktopped it and periodically raised the surface by additional blacktopping so that the road became sufficiently high as to change the natural flow' of the water and divert it onto appellee’s property. This water stood on the ground and under a fifty-year-old, frame building on the lot with the result that the accumulation of water caused the structure to rot and deteriorate. Appellee also testified that at •one time the Highway Department stopped up a drain which had helped control the flow of water and this action also contributed to cause the damage.

After a hearing the Board of Claims awarded damages in the sum of $3,835. The commonwealth appealed 'to the Green-up Circuit Court where the action of the Board was affirmed — hence this appeal.

The decisive question here is whether ap-pellee’s claim, which was filed with the Board on June 2, 1959, was timely. KRS 44.110 provides that a claim must be presented to the Board within one year from the time it first shall have accrued. We find nothing in the record which indicates that this claim accrued within one year before it was presented to the Board.

The last re-surfacing of the road was had in 1957. As to the alleged negligence of the Highway Department in filling up the tiled drain, appellee testified:

“A. I understand the question, but I couldn’t say exactly when this tile was stopped up.
“Q. Was it just a short time ago, •or several years ? A. Several years.
“Q. Several years? A. Yes.
“Q. Has it been as many as ten years ago? A. I wouldn’t say, but it’s been several years ago they were working building that highway, doing something to it, and they stopped that tile up.
“Q. Do you personally know the State stopped up anything, or is that your best judgment — what you think happened? A. Well, they were working on the highway.
“Q. You don’t know whether the State stopped it up or not? A. They were working on the highway.”

The commonwealth failed to plead that the claim was barred under KIRS 44.-110. Ordinarily under CR 12.03 a statute of limitation must be pled and a failure so to do constitutes a waiver of that defense.

The commonwealth argues, however, that it is incumbent upon the claimant to establish by proof that-his cause of action accrued not earlier than one year from the date his claim was filed and that this step is a condition precedent to any payment by the Board.

This argument presents for decision a question of first impression in this state, but similar questions have arisen concerning claims against the federal government and we do not lack general precedent on this point.

Title 28 U.S.C.A. § 2501, provides that with certain exceptions “every claim of which the Court of Claims has jurisdiction shall be barred * * * within six years after such claim first accrued.” The use of the word “barred” is somewhat stronger than the language used in KRS 44.110 which reads: “A claim must be presented to the board within one year from the time it [first] shall have accrued * * The difference is small and cases construing the first section may properly be used as guides in interpreting our own statute.

It has been held that the statute governing procedure in the federal Court of Claims (28 U.S.C.A. § 2501) is not only a statute of limitation, but is jurisdictional in character and the Court of Claims is without power to act on a claim which is barred under its provisions and that the court is not permitted to ignore them. 36a C.J.S. Federal Courts § 343(1).

The reason for the rule is explained in Finn v. United States, 123 U.S. 227, 8 S. Ct. 82, 85, 33 L.Ed. 128.

“The general rule that limitation does not operate by its own force as a bar, but is a defense, and that the party making such a defense must plead the statute if he wishes the benefit of its provisions, has no application to suits in the court of claims against the United States. * * * Since the Government is not liable to be sued, as of right, by any claimant, and since it has assented to a judgment being rendered against it only in certain classes of cases, brought within a prescribed period after the cause of action accrued, a judgment in the court of claims for the amount of a claim which the record or evidence shows to be barred by the statute, would be erroneous.”

In Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306, it was again stated that limitations and conditions upon which the government consents to be sued must be strictly observed.

In the case at bar, from the vague, uncertain evidence offered as proof for ap-pellee we have failed to find even a suggestion of an act of negligence which occurred within one year from the time the complaint was filed.

The Board of Claims may pay damages only where they result from acts of negligence. Appellee is not contending that the action of the commonwealth in connection with the highway was a “taking” of property under § 242 of the Kentucky Constitution, sometimes called “reverse eminent domain” because in such suits negligence is not the basis of recovery. See City of Newport v. Rosing, Ky., 319 S.W.2d 852.

Since we have found that the claim was not filed in time, it is unnecessary to decide the other questions presented.

The judgment is reversed.


author: MILLIKEN, Judge.

text:
    Smiser WEST, Appellant, v. Kelly HEDGER et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.

      L. T. Grant, Boehl, Stopher, Graves & Deindoerfer, Lexington, for appellant.
    Max M. Smith, Frankfort, for appellees.
   MILLIKEN, Judge.

This appeal involves the construction of conflicting provisions of the Workmen’s Compensation Act. One section excepts agriculture from coverage under the Act unless the agricultural employer and his agricultural employees jointly apply for coverage. When an agricultural employer accepts the Act unilaterally, is he protected by Workmen’s Compensation coverage when his employees have not joined in applying for coverage or signified their acceptance of the Act? Is an injured agricultural employee entitled to a Workmen’s Compensation award in such a situation?

Kelly Hedger, 67 years of age, had worked a few days housing tobacco on the farm of Smiser West where he received a broken arm on August 27, 1959. The disputed point in the case is whether Hedger was covered by the Workmen’s Compensation Act. The Board held that he was and the Circuit Court affirmed the Board.

Smiser, the employer-appellant, a farm owner, accepted coverage under the Act in 1954 without having his employees jointly apply, but the Board held that KRS 342.395, a section of general application, was applicable and that Hedger was covered by the Act. The two sections declare in pertinent parts:

“KRS 342.005(4). Any employers or employes who are, by the provisions of this section, excepted from the provisions of this chapter (theretofore agriculture being listed as excepted) including employers having less than three employes, may subject themselves thereto by joint voluntary application to the board, in writing, for such period as may be stated in the application, which shall be irrevocable during such period and effective thereafter until a written revocation be filed with the board or the employment be terminated. * * *
“KRS 342.395. In the event an employer elects to operate under this chapter, then every employe of such employer, as part of his contract of hiring * * * shall be deemed to have accepted all the provisions of this chapter and shall be bound thereby unless he shall have filed, prior to the injury or incurrence of occupational disease, written notice to the contrary with the employer; and such acceptance shall include all of the provisions of this chapter with respect to traumatic personal injury, silicosis and any other occupational disease.”

Although KRS 342.005, adopted in 1942, was re-enacted in 1960 as amended, there was no change whatever in its subsection (4), so its re-enactment in 1960 afforded subsection (4) no added or superseding effectiveness. Dillon v. Stubbs, 267 Ky. 17, 100 S.W.2d 823. On the other hand, the amendment to KRS 342.395 in 1952, which created the presumption that an employee in covered employment had accepted the Act regardless of whether he signed a compensation register to that effect, was enacted later and hence is susceptible to the construction that it superseded KRS 342.-005(4) in that subsection’s limited application.

It is noteworthy that KRS 342.005 (4) provides that employers and employees in the agricultural field may by joint application to the Board in writing qualify for compensation coverage for a limited period of time “which shall be irrevocable during such period and effective thereafter until a written revocation be filed with the board or the employment be terminated.” In other words, when the employee in agricultural employment is covered by the Act for an agreed limited period of time, he is presumed to stay covered by the Act, even after the expiration of the agreed limited period of time, unless he files a written withdrawal with the Board “or the employment be terminated” KRS 342.395 carries this principle further by declaring that an employee of an employer who has accepted the Act is presumed to have accepted the Act and must notify his employer if he wishes to withdraw.

The legislative intention, or trend of intention, is thus to protect the employee with compensation coverage whenever his employer is operating under the Act. In May of 1954 the appellant-employer elected to accept the Workmen’s Compensation Act and his acceptance on Workmen’s Compensation Board Form No. 1 stated, “Kind of business being conducted — farm employees.” Thus, the employer clearly intended to put his farm operations under the Workmen’s Compensation Act. However, it is now contended that the present employee (the appellee) is not protected because KRS 342.005 excepts agricultural employment from the coverage of the Act unless both the employer and employee jointly apply to the Board in writing for coverage in conformity with KRS 342.005(4) afore-quoted. Carried to its logical conclusion this would mean that this agricultural employer who had accepted the Act has not been protected by it because he failed to have his agricultural employees join in his application for coverage and acceptance of the Act. Such a result could prove disastrous to an employer if substantial common-law liability could be proved by an injured employee in lieu of a claim under the Workmen’s Compensation Act. Acceptance of the Act offers protection to both employer and employee; it exchanges limited liability for the employer for limited, but assured, recovery for an injured employee regardless of negligence.

It is our conclusion, therefore, that the acceptance of the Act by the employer was effective to protect him and also effective to protect his employees — that the provisions of KRS 342.395 were properly applied by the Board. This conclusion conforms to the liberal construction on questions of law required by KRS 342.004. See, also, Dick v. International Harvester Company, Ky., 310 S.W.2d 514.

The judgment is affirmed.


author: STEWART, Judge.

text:
    Glenn ROBERTS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.

      John J. Tribell, Pineville, for appellant.
    John B. Breckinridge, Atty. Gen., William A. Watson, Asst. Atty. Gen., for ap-pellee.
   STEWART, Judge.

Glenn Roberts was indicted for armed assault with intent to rob as denounced by KRS 433.150. Upon his trial in January, 1961, he was found guilty of ordinary robbery under KRS 433.120 and received a sentence of five years in the penitentiary. He appeals.

Several grounds are urged for reversal of the judgment of conviction. Of these we believe two have merit, namely, (a) that an erroneous instruction was given; and (b) that incompetent and prejudicial evidence was admitted over appellant’s objection.

This is a second appeal. In a previous opinion of this Court (Roberts v. Commonwealth, Ky., 339 S.W.2d 640), the facts are fully recited, and it will be unnecessary to repeat them in order to develop and resolve the two points we shall consider.

The trial court submitted an instruction covering assault with intent to rob as defined by KRS 433.150 and, in addition, one embracing robbery as set forth in KRS 433.120. It is contended the last-mentioned instruction should not have been given. We agree. The indictment charged only assattlt with intent to rob; and appellant was convicted of that crime at the first trial at which the jury was instructed to find him guilty or not guilty solely as to that offense. Appellant when tried relied upon an alibi as a defense, with the result that his presence at the time and place of the alleged offense was denied. The evidence shows conclusively that if any crime was committed it was a completed act of assault with intent to rob. Therefore, the jury should have been allowed to pass upon the single question of whether appellant did or did not perpetrate the crime of which he was accused. See Tackett v. Commonwealth, Ky., 275 S.W.2d 433, and Reed v. Commonwealth, 281 Ky. 189, 135 S.W.2d 867.

The instruction under ordinary robbery was objectionable for another reason. The trial judge no doubt concluded this offense was a lesser degree of the crime of assault with intent to rob. The crime of robbery, which is punishable within the purview of KRS 433.120, is a separate offense and not a lesser degree of the crime of assault with intent to rob described in KRS 433.150. See Adams v. Commonwealth, Ky., 264 S.W.2d 283. For this reason, also, it was error to allow the jury to determine under the evidence whether or not appellant may have perpetrated an act of ordinary robbery.

Another complaint we conclude is well founded concerns the testimony of two police officers of Cincinnati, Ohio, which the trial court allowed to be introduced over appellant’s objection. Appellant, as a part of his defense, produced evidence which tended to establish he possessed a good reputation. After he was indicted, he was arrested in Cincinnati and returned to Kentucky, and at the trial the Commonwealth had these two officers take the stand as rebuttal witnesses to testify as character witnesses against him.

Neither of the two officers knew appellant personally and both admitted they had never seen him prior to the time they testified. Then, too, they were permitted to identify him from a “mug” photograph they had brought with them; they were asked in this connection: “The picture that has been introduced here is that the person about whom you have been testifying?” The photograph, however, was never shown to the jury but the trial judge allowed it to be filed as an exhibit and made a part of the record of this case. With this factual background before him, and over appellant’s objection, the trial judge allowed both of these officers to state, when asked about appellant’s reputation as a law-abiding citizen in and about Cincinnati, that it was bad.

This evidence, standing alone, would require a reversal of the judgment rendered in this case. Under the facts presented neither of the officers qualified himself to give reputation or character testimony against appellant. The rule applicable to evidence of this kind is stated in 20 Am.Jur., Evidence, sec. 329, p. 308:

“Generally speaking, the assumption upon which the admissibility of evidence as to character or reputation rests and upon which its value depends is that such evidence originates from the experience of those who have come directly in contact with the person in question and who have the means of knowing his general character. * * * Accordingly, evidence which tends to establish the general character or reputation of a person gathered from all those who have had an opportunity regularly and for a sufficient period of time to make a reasonably comprehensive estimate should be admissible.”

Aside from what we have said in respect to the inadmissibility of the rebuttal evidence of the two police officers, we are also of the opinion that the introduction of a “mug” photograph (which was the standard type that is kept in the files of the police department of practically every city) had a damaging effect upon appellant’s case. The photograph would unquestionably convey to the jury the clear inference that it had been made while appellant was in a police line-up or was in the toils of the law in some manner. There was utterly no excuse for using it at the trial in the way it was employed.

Other questions are raised which we deem it unnecessary to answer, for the reason that they will either not recur at another trial or because we have considered them and determined no error was committed.

Wherefore, the Judgment is reversed with directions that a new trial be granted.


author: CULLEN, Commissioner.

text:
    BOARD OF EDUCATION OF FLOYD COUNTY, Kentucky, Appellant. v. Walter L. HOOPER et al., d/b/a Eastern Construction Company, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.
    Joe Hobson, Prestonsburg, for appellant.
    W. W. Burchett, Prestonsburg, for appel-lees.
   CULLEN, Commissioner.

Appellees Hooper and Burchett, partners, submitted a bid to the Board of Education of Floyd County for the construction of a school building. As required by the specifications, the bid was accompanied by a bid bond, with appellee Travelers Indemnity Company as surety, conditioned that if the bid be accepted the bidders would execute a contract for the work in accordance with their bid and the specifications. Upon the opening of the bids the Hooper-Burchett bid, in the amount of $73,978.90, was found to be the lowest and was accepted by the board of education. The following day Hooper and Burchett notified the board that by inadvertence the price of the steel required in the construction, amounting to $12,000, had been omitted from their bid, and by reason thereof they could not execute a contract for their bid price. Three days later, without readvertising for bids, the board let a contract to the next lower bidder, whose bid was $78,000. Thereafter the board brought this action against Hooper and Burchett and the surety on their, bid bond, seeking to recover the amount of the bond (which was five percent of the bid price). The court entered judg-. ment for the defendants and the board has appealed.

Hooper and Burchett testified that the mistake in their bid arose from the fact that they had divided between them the work of preparing the bid estimates and each had assumed that the other had included the price of the steel in his estimates.

The facts in this case cannot be distinguished from those in Board of Regents of Murray State Normal School v. Cole, 209 Ky. 761, 273 S.W. 508, where in submitting a bid of $207,787 the bidder by inadvertence omitted the cost of cut stone in the amount of $21,066. It was held that the bidder was entitled to be relieved from his bid and would not forfeit a $10,000 certified check which by requirement of the specifications he had deposited with his bid, notwithstanding a provision of the specifications that if the successful bidder failed or refused to execute a contract the amount of his deposit would be forfeited.

While the opinion in the Cole case uses some language with reference to there having been a failure of a meeting of the minds of the parties, it is clear that the decision was based upon strictly equitable principles. The rationale of the case is that even though the mistake is unilateral, the bidder may be relieved from his contract if the mistake is one of material substance and of such consequence that enforcement of the contract would be unconscionable; if the mistake involved mere ordinary negligence and not gross carelessness; if the other party will suffer no damage other than the loss of the bargain; and if the bidder gives prompt notice of the mistake.

As disclosed by the annotation in 52 A.L.R.2d 793, the principles of the Cole case are supported by practically unanimous authority. The fact that notice of the mistake is not given until after acceptance of the bid will not preclude relief. 52 A.L.R. 2d 803. Nor is relief barred by a provision of the specifications (such as there was in the instant case) prohibiting withdrawal of bids. 52 A.L.R.2d 806.

It is our opinion that the trial court properly denied recovery on the bid bond.

There is no merit in the contention of the appellant that the testimony of Hooper and Burchett as to how their mistake occurred was not acceptable because they did not produce in evidence the working papers on which their estimates were made.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    Earl MEADOWS et al., Appellants, v. Willie BAILEY, Adm’r, of the Estate of Bobby Bailey, Deceased, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.

      Boyd F. Taylor, Hamm, Taylor & Milby, London, for appellants.
    Calvert C. Little, London, for appellee.
   PALMORE, Judge.

Bobby Bailey, while driving an automobile, was fatally injured in a sideswipe collision with a truck driven by Earl Meadows, a 17-year old boy. In this wrongful death action Bailey’s administrator recovered judgment on a $5,000. jury verdict rendered jointly and severally against Meadows and against Earl Bowling and wife, Ethel Bowling. The case against the Bowlings rests on the theory that they owned the truck, permitted Meadows to use it, and are liable under KRS 186.590(3). All three defendants appeal.

The accident happened on Kentucky Highway 30 a mile or so east of East Bern-stadt in Laurel County. It was late afternoon, “right at the edge of dark.” The road was a two-lane pavement with a broken white line marking its center. It was dry. Bailey, driving east, was either rounding or emerging out of a slight curve to his right when he met the Meadows truck coming west. The left front portions of the two vehicles collided. Evidently both spun counterclockwise, the truck coming to rest off the highway on the north, headed back toward the east, and the car crosswise in the road, headed slightly northwest. There were no tire marks.' Dirt and debris were deposited all over the pavement. Some of the witnesses said that “most” of it was in the south or east-bound lane. A piece of Bailey’s clothing was found on the left front corner of the truck bed. These are the physical facts.

There were four passengers in the Bailey car, one of whom apparently had passed out drunk in a pool room at East Bernstadt and was being driven home by Bailey. Of the occupants of this car the only one to testify was Charley Houston, who was sitting in the back seat directly behind Bailey, the driver. He said that there was whiskey in the car but he had not drunk any, nor, so far as he knew, had Bailey. According to his account the Bailey car was going 35 to 40 m. p. h. and remained within the right-hand lane at all times. Admittedly, however, he could not see the center line but “was just kindly judging.” He first noticed the truck when it was 40 to 50 feet away and “it looked like he was coming right at us,” whereupon he called out a warning to “watch it” and Bailey swerved to the right, but to no avail. Houston was knocked out and remembered no more about the accident. This witness had been twice convicted of felonies.

The only other eyewitnesses were Meadows, who was driving the truck, and Charles Gurley, who was riding with him. They were following a car driven by Charles’ half brother, Herschel Ward. Both Meadows and Gurley testified that the truck was on its right side of the road. According to Meadows, the Bailey car nearly crowded Ward off the road before it hit the truck, and Ward testified to the same effect. Ward heard the crash, stopped his car and ran back to the scene of the accident. Meadows and Gurley got out of the truck, evidently unhurt, and proceeded to leave the scene in Ward’s automobile before any other witnesses arrived. It was claimed that the purpose of Meadows and Gurley in leaving was to call the police. Ward stayed behind and pretended to have been driving the truck himself. Since all of the occupants of the Bailey car had been rendered insensible, either by the force of the collision or by extraneous influences, this ruse had an early success. However, the truth was unearthed through the diligence of the state trooper who investigated the accident, and Meadows, after denying it for several days, finally pleaded guilty in county court to a charge of driving without an operator’s license. His explanation was that he did not have permission from the Bowlings to drive the truck and did not want them to know it.

The facts summarized thus far are sufficient for decision of whether the evidence supports a finding of negligence against Meadows. We think it does.

To nullify the testimony of Charley Houston appellants cite the rule expressed in Davis v. Bennett’s Adm’r, 1942, 289 Ky. 516, 159 S.W.2d 39, that when the physical facts point so unerringly to the truth that there is no room for a reasonable difference of opinion they will override testimony to the contrary. But in this case there was no such physical evidence. Certainly the relative positions of the two vehicles afterward do not, of themselves, tell us where they were with respect to the center of the road when they met. Steely v. Hancock, Ky.1960, 340 S.W.2d 467, 470. Therefore, the question is whether there was enough credible evidence to sustain the burden of proof.

On this point the plaintiff’s case consists of the testimony of Houston, the testimony that “most” of the debris was deposited in the east-bound traffic lane, and the conduct of Meadows following the accident. When a collision has occurred near the middle of a highway, evidence that a preponderance of the debris fell on one side or the other of the center line has little or no probative force. For example, it may well indicate no more than which of the vehicles was the dirtier, or the more easily shattered. Nor do we attach any great significance to the conduct of Meadows following the accident. Ordinarily a party’s attempt to conceal or suppress a relevant fact has probative value, and is thus admissible, because it is in the nature of an admission of the weakness of his case. See II Wigmore on Evidence § 278, p. 118. But quite aside from the matter of who was at fault in the accident, there were other circumstances furnishing so much more probable a motivation for the attempted concealment that it would hardly be fair to give his equivocal conduct much weight on the question of negligence. So we come to the testimony of Houston as the real basis for the verdict.

Some of the witnesses said that Houston was drunk or had been drinking. Fie denied it. That was for the jury to decide. He had been convicted of felony, but again it was the jury’s prerogative to judge his credibility. That he could not actually see the center line of the road reflects upon the exactitude of his judgment, yet we are loath to say that the occupant of an automobile cannot judge whether it is or is not wholly within its proper lane of traffic simply because he does not see the center stripe. That too falls in the jury’s province. We hold that the eyewitness testimony of Houston was enough to take the case to the jury and permit a finding of negligence.

'There was a conflict in the evidence as to whether Bobby Bailey had been drinking just before the accident. Among the instructions offered by the appellants were the following:

“9-A ‘Negligence’ as used in these instructions means the failure to exercise ordinary care. ‘Ordinary care’ as used in these instructions means that degree of care that an ordinarily prudent person would exercise under the conditions and circumstances similar to those proven in this case, and if you believe either driver was intoxicated, the phrase ‘ordinary care’ means that degree of care which ordinarily prudent persons, if sober, usually exercise under the same or similar circumstances to those proven in this case.”
“12-A If the jury believe from the evidence that at the time of the accident, the plaintiff’s decedent, Bobby Bailey, either through intoxication or otherwise, failed to exercise such care for his own safety as an ordinarily prudent person, if sober, would have exercised under the same or similar circumstances, and that such failure, if any, so contributed to his death, but for which he would not have been killed, the law is for the defendants and you will so find.”

The latter of these, 12A, is substantially the same instruction offered by the defendant in Louisville & N. R. Co. v. Payne, 1907, 104 S.W. 752, 31 Ky.Law Rep. 1173, in which case a bibulous passenger, after getting off on the wrong side of a train, fell down and had his fingers crushed under the wheels. The trial court’s refusal to instruct to the effect that the law exacts from a voluntarily intoxicated person the same degree of care as is expected of a sober person of ordinary prudence under like circumstances resulted in reversal of a judgment for the plaintiff. To the same effect see Wootton v. Dixon, 1950, 312 Ky. 521, 228 S.W.2d 428, another falling down case. In neither of these two cases, however, had the trial court given any instruction at all on the subject of intoxication, whereas in the instant case the court did instruct as follows:

“The phrase ‘ordinary care,’ if you believe either driver was intoxicated, means that degree of care which ordinarily prudent persons, if sober, would duly exercise under same or similar circumstances to those proven in this case.”

As we see it, this instruction covered the subject adequately. Since there was no evidence that Meadows was intoxicated it might better have followed the form set out in Stanley’s Instructions, § 589, and omitted the reference to “either driver,” but this phraseology was invited by appellants’ use of it in their offered instruction 9A. There is, however, a more cogent reason why they were not entitled to their offered instructions. In this case, as in the recent case of Barker v. Sanders, Ky.1961, 347 S. W.2d 529, the whole issue of negligence hung on the determination of one fact: Which party invaded the right-of-way of the other? In such a case there is no necessity for cluttering the instructions with enumerations and definitions of duties other than the particular duty involved, which necessarily covers all the others. In this case it was the duty of each driver in meeting the other to keep his vehicle to the right hand side of the highway. The evidence disclosed no reason or excuse for any failure to do so. Neither party was incapable of negligence. Therefore, on that question it was unnecessary that the instructions go beyond saying simply that it was the duty of each of the two drivers, on meeting the vehicle of the other, to keep his vehicle to the right hand side of the highway; if Bobby Bailey failed to do so and his automobile was not wholly on its right hand side of the highway at the time of the collision, then the jury should find for the defendants; but if, on the other hand, Earl Meadows failed in this duty and the truck being driven by him was not wholly on its right hand side of the highway at the time of the collision, then the jury should find for the plaintiff unless neither one of these two vehicles was wholly on its right hand side of the highway at the time of the collision, in which event the jury should find for the defendants.

We come now to the question of whether there was sufficient evidence to support the verdict against the Bowlings under KRS 186.590(3), which provides as follows:

“Every motor vehicle owner who causes or knowingly permits a minor under the age of eighteen to drive the vehicle upon a highway, and any person who gives or furnishes a motor vehicle to the minor shall be jointly and severally liable with the minor for damage caused by the negligence of the minor in driving the vehicle.”

The truck being driven by Meadows at the time of the accident was registered in the name of Ethel Bowling but actually was used and managed exclusively by her husband, Earl Bowling. Ethel did not even have a driver’s license. The Bowlings lived on a farm at Dog Patch, two miles from East Bernstadt on U. S. 25. Earl Meadows, their nephew, lived with his parents in the same neighborhood and did various chores for Bowling, who, in addition to farming, operated a taxi, owned two trucks in which he engaged in the hauling of coal, and held the elective office of constable. On the afternoon of January 10, 1959, just before Bowling was to depart from East Bernstadt on a daily scheduled taxi run to London, Herschel Ward, another nephew, asked for the loan of one of his trucks in order to start Ward’s car, which was stalled at Ward’s mother’s place in East Bernstadt. Bowling took Ward and the latter’s wife to the Bowling farm, where the truck involved in this case was then parked, and immediately left on his taxi trip to London. It happens that at this time Earl Meadows was in Bowling’s barn feeding the livestock, but Bowling did not see him. Ethel Bowling was at her place of employment in London. After Bowling left, and while Ward was “warming up” the truck, Meadows came up from the barn. Instead of going on home, he accompanied the Wards in the truck to East Bernstadt to help get Ward’s car started. This was done by hitching the car behind the truck and pulling it. At Ward’s suggestion Meadows drove the truck and Ward occupied the car. Ward’s half brother, Charles Gurley, rode with Meadows. They drove east on Kentucky Highway 30 until they succeeded in starting the car, after which the tow-line was detached and they turned around and started back to East Bernstadt, the car preceding the truck. It was during this journey that the collision with Bailey occurred. Neither of the Bowlings had any foreknowledge of Meadows’ participation in these events.

There was no evidence that either of the Bowlings ever had given Meadows express permission to make such use of the truck as would cover this occasion. The appel-lee contends, however, that such permission was implied from previous conduct and that his authority to use it in this instance was further perfected by ratification.

Both Bowling and Meadows testified that Meadows had been allowed to drive the truck on the farm but had never been permitted to drive it on the highway and had never done so with Bowling’s knowledge. On the other hand, witnesses for the plaintiff said that on several occasions within four months or so prior to the accident they had seen Meadows, sometimes accompanied by Bowling himself, driving the truck to or from the coal tipple at East Bernstadt, and that he had driven Bowling’s other truck on various occasions after the accident. In his argument for ratification appellee attaches considerable significance to the fact that following the accident Bowling made no complaint and took no punitive measures against Meadows for having driven the truck without his consent but, on the contrary, assisted in his defense. Asked why in his capacity of constable he did not cause criminal charges to be placed against Meadows, Bowling replied, “He got permission from Herschel Ward to drive the truck, and that’s all right. * * * He wasn’t stealing it.”

Construing KRS 186.590(3) according to its plain meaning, liability would attach to Earl Bowling only if Meadows had his actual permission, express or implied, to use the truck on the occasion of the accident. Since this liability is purely statutory, not resting on the principle of re-spondeat superior, it seems doubtful that the theory of ratification could apply, but we need not decide the point, because we find nothing in the evidence to indicate that Bowling obtained or accepted any benefit from the use of his truck by Meadows or in any way evinced his approval of it. Surely his disinclination to pursue punitive measures against his young nephew could not reasonably be so construed. Meadows’ subsequent operation of Bowling’s other truck is simply irrelevant.

We are of the further opinion that even though Bowling may customarily have authorized Meadows to drive the truck for the purpose of Bowling’s business, this circumstance alone would not support the inference that he had general permission to use it otherwise, and especially on a mission not for Bowling’s benefit. Cf. United States Fidelity & Guaranty Co. v. Brann, 1944, 297 Ky. 381, 180 S.W.2d 102, 104.

Appellee cites a number of decisions from the federal and other courts construing the omnibus clause of liability insurance policies to cover sub-permittees. It must be recognized, however, that an insurance contract, written by the company and for which it is paid, is strictly construed against the insurer. What might be the result if this were an action on the omnibus clause of an insurance policy is a question not before us. Suffice it to say that the evidence does not establish a case of permissive use under KRS 186.590(3).

The judgment is affirmed as to the appellant Meadows. As to the appellants Earl and Ethel Bowling it is reversed with directions that judgment be entered dismissing the action.


text:
    Tyler F. GAUEN et al., Appellants, v. S. T. WELCH, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.
    William P. Donan, Donan & Vick, Greenville, for appellants.
    W. D. Bratcher, Greenville, for appellee.
   CULLEN, Commissioner.

S. T. Welch brought action against Tyler F. Gauen and wife to recover around $1,100 alleged to be owed by the Gauens as their share of the expenses of operating certain oil wells on a lease in Muhlenberg County, Kentucky, in which lease the Gauens held a working interest and of which Welch was the operator. An attachment was issued against the Gauens’ interest in the lease. Tyler F. Gauen counterclaimed for $1,925 claimed to be due him from Welch for services Gauen had rendered to Welch in connection with the operation of an oil lease in Illinois, of which lease Welch was the operator and in which Mrs. Gauen had a working interest.

Judgment was entered awarding Welch $1,103 on his claim, sustaining the attachment, and denying Mr. Gauen any recovery on his counterclaim. The Gauens have appealed.

As to the judgment on Welch’s claim the only contention of the appellants is that the court erred in sustaining the attachment. The verified complaint upon which the attachment was issued alleged that the Gauens did not have sufficient property in Kentucky subject to execution to satisfy Welch’s claim, and that the claim would be endangered by delay arising before judgment or a return of no property found. The appellants maintain that these grounds were not sustained by the evidence, and that in fact they had ample property in Kentucky to satisfy the claim. However, the verified complaint further alleged that the Gauens were nonresidents of Kentucky, and this fact was not denied. The claim being one on contract, it was sufficient to sustain the attachment that the defendants were nonresidents. KRS 425.-185; Bates Machine Co. v. Norton Iron Works, 113 Ky. 372, 68 S.W. 423. The other alleged grounds for the attachment may be considered to have been mere sur-plusage. It is our opinion that the court properly sustained the attachment.

As concerns Mr. Gauen’s counterclaim, the contention is that the evidence established the existence of an implied contract for payment by Welch of the reasonable value of Gauen’s services, under the principle that where one renders valuable services to another under such circumstances as to indicate that the one expected to be paid and the other expected to make payment, a contract is implied.

The claim for services covered a period from 1952 to 1958. During this period Mrs. Gauen owned a working interest in the Illinois lease, as did Welch and several other persons, and Welch was the operator employed by the group of owners to have charge of operating the lease. The owners not only reimbursed Welch for their shares of the operating expenses but they also paid him a monthly fee for his services. During the entire period in question the Gauens paid their share of the expenses and of Welch’s fee, without objection. Mr. Gauen’s alleged services consisted of local supervision of the pumping operations and production and certain “hy-drofracing” work on the wells. Admittedly there was never any express agreement that he be paid for his services.

Prior to 1958, when the Illinois lease was sold, Mr. Gauen had submitted only one claim to Welch for compensation for his services, that being in 1955. He did not remember the amount of the claim. Welch refused to pay the 1955 claim and offered at that time to turn over operation of the lease to Mr. Gauen. No further claim was made by Mr. Gauen until after the sale of the lease in 1958.

In view of the facts that Mr. Gauen’s wife had a working interest in the Illinois lease which he naturally was interested in protecting, that during the entire period in question the Gauens paid their share of Welch’s service fees without objection, and that upon the one occasion when Mr. Gauen submitted a claim for his services Welch refused to pay it, it is our opinion that the trial court was justified in finding that the circumstances were not such as to raise the inference of an expectation by Mr. Gauen to be paid and an expectation by Welch to pay him, as is necessary to establish an implied contract.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Everett HIMES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.

      Harvey Parker, Jr., Vanceburg, for appellant.
    John B. Breckinridge, Atty. Gen., Wayne J. Carroll, Asst. Atty. Gen., for appellee.
   WADDILL, Commissioner.

At his trial upon an indictment accusing him of the crime of rape, appellant was convicted of detaining a woman against her will as denounced by KRS 435.110, a lower degree of the offense of rape. In seeking a reversal of the judgment sentencing him to prison for a term of 5 years, he contends that the court erred in failing to instruct upon the whole law of the case.

For the purpose of this opinion it is sufficient to relate that the prosecutrix testified that appellant forced her into submission and that appellant testified she voluntarily consented to having sexual intercourse with him.

The only question raised by appellant on this appeal is whether he was entitled to have the jury specifically instructed to find him not guilty if the jury believed from the evidence that the prosecutrix had voluntarily consented to the act of sexual intercourse.

It is the rule in this jurisdiction that, if the instruction submitting the Commonwealth’s theory of the case is couched in language that ordinary laymen, who sit on a jury, can easily understand and comprehend, and its negative adequately presents the defense of the accused, it is unnecessary to give an affirmative instruction on the defendant’s theory of the case. Duvall v. Commonwealth, 225 Ky. 827, 10 S.W. 2d 279. In certain types of criminal prosecutions, this rule has been relaxed. For example, where the defendant admits facts constituting the offense with which he is charged but interposes an excuse therefor having legal effect to exonerate him of criminal intent, his excuse should be submitted to the jury in concrete form. Morgan v. Commonwealth, 242 Ky. 116, 45 S.W. 2d 850. However, in prosecutions for rape we have specifically pointed out that it was not reversible error to fail to give an affirmative instruction with respect to the alleged victim’s having voluntarily consented if the instructions required the jury to believe beyond a reasonable doubt that the act was committed forcibly and without the consent of the prosecutrix as the instructions do in the instant case. Webb v. Commonwealth, 223 Ky. 424, 3 S.W.2d 1080; Stanley’s Instructions to Juries, Vol. 3, Sec. 771, p. 16. In Grigsby v. Commonwealth, 299 Ky. 721, 187 S.W.2d 259, 159 A.L.R. 196, the opinion in Neace v. Commonwealth, 62 S.W. 733, 23 Ky.Law Rep. 125, was criticized to the extent it held that an affirmative instruction should have been given in a prosecution for the crime of rape. Therefore, we hold that appellant’s objection to the instructions given in this case is without merit.

Judgment affirmed.


author: WILLIAMS, Judge.

text:
    David E. WEAVER, Appellant, v. William Hardin BROOKS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.
    Charles W. Morris, Morris & Garlove, Louisville, for appellant.
    Edward Ewen, Jr., Cecil Davenport, Louisville, for appellee.
   WILLIAMS, Judge.

The appellee, William Hardin Brooks, was injured in an accident involving a motorcycle which he was driving and an automobile driven by appellant, David E. Weaver. The case was brought to trial in the Jefferson Circuit Court and judgment for appellee was entered on a verdict of $20,000. This appeal is prosecuted from that judgment.

According to appellant’s testimony, he was traveling south on Orell Road looking for Elizabeth Avenue, which intersects Orell Road from the east. Approximately 150 feet south of the Elizabeth Avenue intersection Orell Road divides into a “Y” intersection — one branch being designated as Orell Road and the other as Old Dixie Highway. Upon reaching Elizabeth Avenue, appellant looked south, saw no vehicle approaching from that direction, activated his turn signal indicator, and proceeded to tarn left preparatory to entering Elizabeth Avenue. After getting almost across the left lane of Orell Road he glanced over his right shoulder and saw appellee on a motorcycle approaching him at a high rate of speed. Appellee struck the right rear fender of his car after it had gone off the black top surface of Orell Road.

Appellee stated that he was proceeding north on Old Dixie Highway and at the “Y” intersection he looked north and no traffic was in sight. He then turned his head to the right and looked south to determine if any traffic was coming from that direction. He continued north on Orell Road at a speed of 35 miles per hour and was within about 60 feet of appellant’s car before he saw it. Appellant’s car at that time was angling into Elizabeth Avenue. Appellee immediately applied his brakes and attempted to “lay down” his motorcycle but was unable to stop in time to avoid a collision.

A witness driving an automobile immediately behind appellant testified that after appellant started the left-hand turn he saw appellee, who was then approximately 145 feet from the point where the collision occurred.

Appellant argues that he was guilty of no negligence and that appellee was negligent as a matter of law, (1) in failing to keep a proper lookout ahead, and (2) in failing to have his motorcycle under control. It must be remembered, however, that appellee stated when he reached the “Y” intersection he looked north and no traffic was in view. It was established that from the above-mentioned intersection it was possible to see 150 feet, which would have been to the point of the collision but no further. Appellant testified that appellee was not in sight at the time he started to negotiate the left turn but later approached at a tremendous rate of speed. Appellee testified that he was driving at a reasonable rate of speed and kept a proper lookout. The fact that ap-pellee was unable to stop his motorcycle within a distance of about 60 feet is not sufficient reason to assume as a matter of law that he failed to have the motorcycle under control. There was conflicting evidence concerning who kept a proper lookout, and concerning the other duties of each of the drivers. In such case it was proper to submit the issue to the jury.

The trial court gave a general instruction to the effect that it was the duty of each driver to operate his vehicle at a reasonable rate of speed. There was no proof that appellant was traveling at an unreasonable rate of speed, so technically an instruction on his speed should have been omitted. A similar objection was made concerning the instructions given in an automobile accident case which was decided in 1933 and this court held that no material prejudice arose therefrom. E. L. Martin & Co. et al. v. Hurt’s Adm’r., 250 Ky. 235, 62 S.W.2d 465. It was pointed out in Miller v. Miller, Ky., 296 S.W.2d 684, 65 A.L.R.2d 589, that technically incorrect instructions are not grounds for reversal where the rights of the losing party are not prejudiced.

The trial court also instructed the jury in part as follows:

“It was the further duty of the defendant, Weaver, to see that there was sufficient time and space to make a left turn into Elizabeth Avenue in reasonable safety, and before turning to first see that there was sufficient space for the turn to be made in safety, and to pass to the left of the center point of the intersection in making the turn (that is the meeting of the medial lines of the two streets, Elizabeth Avenue and Orell Road) keeping as far to the right as possible and still passing to the left of the center point. * * * ”

Appellant claims it was error to instruct the jury that it was his duty to see that the left turn could be made in safety, and to refuse to instruct that if he first reached and entered the intersection beyond the center point, he had the right of way and it was the duty of appellee to yield the right of way to him. This question was recently discussed in Rankin v. Green, Ky., 346 S.W.2d 477. In that case we considered a similar instruction and held that priority shall be given to the vehicle proceeding in a straight course. The instruction questioned here was not erroneous.

The judgment is affirmed.


text:
    John LEDFORD et al., Appellants, v. Levi OSBORNE, Administrator of the Estate of Rufus Osborne, Deceased, et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 27, 1961.
    J. W. Knippenberg, Lexington, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellants.
    No appearance for appellees.
   MOREMEN, Judge.

This is an appeal from a judgment of the Leslie Circuit Court in the amount of $10,-000 in favor of Levi Osborne, administrator, and against John and Luther Ledford. The trial was held on July 14, 1959, and appellants contend they were given no notice that the case would be assigned for trial, no notice of the date it was to be tried and no subsequent notice that the case had been tried.

On February 4, 1957, appellees filed suit to recover damages for the death of Rufus Osborne resulting from a collision between an automobile in which he was riding as a passenger and an automobile owned by Luther Ledford and driven by John Led-ford.

After service of summons appellants filed their joint answer denying that they were negligent and asserting affirmatively contributory negligence of the driver of the automobile in which decedent was riding. The answer was contained in a cross complaint of appellants against said driver.

The entire record has been certified to us on this appeal.

The first notation we find in the record about trial assignment is a minute under the caption of the case which reads: “This case continued to July 1959.” It is not signed by the circuit judge.

The next order which was signed by the circuit judge and entered on July 7, 1959, reads: “It is ordered that this case be passed to July 14, 1959.” Upon this date in the absence of appellants or counsel, the case was tried before a jury and a verdict returned. On July 15, a judgment was entered on the verdict.

On July 29, 1959, counsel for appellants upon proper notice to opposing counsel moved the court for an order vacating and setting aside the judgment, and for an order setting the case for a day certain for trial. In support of the motion he filed an affidavit which may be summarized simply by saying that he had never received any of the notices mentioned above. The circuit court overruled the motion and in a memorandum stated that it was the practice of that court to call all civil cases at the regular motion day preceding each term of court at which time actions were placed upon the trial calendar without request from the parties. The court said:

“The case was assigned for trial at the March, 1959, term of this court and was ordered continued because defendants and their counsel failed to appear. The case was again assigned for trial on July 7, 1959, and was passed to July 14, 1959, because of the fact that neither the defendants nor their counsel appeared. When the case was called on July 14th., the plaintiff announced ready as he had on the two previous occasions, and it was then ordered that the case proceed to trial in the absence of the defendants and their counsel.”

It may be noted that the court made no finding that appellants had received notice of the original assignment or any subsequent ones. CR 40 — since amended, but as it existed in 1959 — reads:

“The circuit courts shall provide by rule for the placing of actions upon the trial calendar (1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the courts deem expedient. Precedence shall be given to actions entitled thereto by any statute of Kentucky.”

Under the old code and before the enactment of the Civil Rules, the service of summons, the filing of pleadings and the commencement of a term of court determined when an action should stand for trial or be assigned to a day for trial. The above quoted rule was a departure from that practice because under the new rules it was impossible to determine in each instance when the issues might be joined. Some method other than an automatic assignment on a rule day had to be found. As pointed out in Clay on Practice and Procedure, page 373: “The Rule leaves the matter to the discretion of the circuit courts. It does no more than suggest a method by which cases may be placed upon the trial calendar. However, a local rule is required.”

Under CR 83, rules adopted by circuit courts must be certified to the Chief Justice of the Court of Appeals. The purpose of this rule is to make available to the Kentucky Bar the local rules in various circuit courts. The only rule which has been certified by the Leslie Circuit Court reads: “Rule day, Leslie Circuit Court, Hyden, Kentucky, shall be on the first Wednesday of each month commencing at the hour of 9 a. m., Central Standard Time.” It is apparent that the above rule merely fixes a rule day, but does not fulfill the mandate of CR 40 of fixing definite means by which a case may be placed upon the trial calendar so that proper notice may be had by all parties.

By an amendment which became effective June 1, 1960, CR 40 now reads: “No case shall be assigned for trial without giving reasonable notice to all parties not in default of the day on which a trial date will be fixed.” It is no longer necessary for the circuit courts to formulate rules for placing actions on the trial calendar because the amended rule is general in its terms and applies everywhere. As stated in the 1960 Supplement to Clay on Kentucky Practice:

“The Rule simply recognizes a principle inherent in all procedure that steps in a lawsuit which might prove prejudicial to a party should not be taken without notice to such party. Consequently, the burden will be upon the court, or a litigant wishing his case assigned for trial, to make sure that a party who might possibly object to a trial date be advised of the time when that case will be assigned.”

We believe it is readily apparent that a major attempt was made in the formulation of our Kentucky Civil Rules to prevent any step in a case being taken without notice to the opposing party.

However, the failure of some circuit courts to enact rules providing for adequate notice to the parties before a case was set for trial required the amendment which we have quoted above.

The Leslie Circuit Court had not formulated a definite rule for the assignment of cases for trial and that failure has resulted in the injustice caused in this case.

We are convinced under the facts of this case that the court should have granted the motion to set aside the judgment and grant a new trial. The judgment is therefore reversed for that purpose.

Judgment reversed.