author: COLLINGS, Justice.

text:
    Danny ODOM et al., Appellants, v. Chester L. LACY, Appellee.
    No. 4081.
    Court of Civil Appeals of Texas. Eastland.
    July 29, 1966.
    Rehearing Denied Aug. 26, 1966.

      Heath & Robinson, Arthur Petry, J. Robert Harris, Houston, for appellants.
    Carey Williams, Houston, for appellee.
   COLLINGS, Justice.

Chester L. Lacy brought suit against Ronnie Allen Odom and Danny Odom for damages sustained to plaintiff’s automobile in a collision. Plaintiff alleged that Ronnie Allen Odom was guilty of negligence in the operation of the car belonging to Danny Odom and that Danny Odom was guilty of negligence in entrusting his automobile to his brother, Ronnie Allen Odom; that Ronnie Odom was the agent, servant or employee of and engaged in the scope and course of his employment for Danny Odom at the time of the collision and that Danny Odom had admitted liability for plaintiff’s loss and paid $100.00 to be applied thereon. The defendants filed a general denial and alleged that Mrs. Chester L. Lacy, the driver of plaintiff’s car, was guilty of contributory negligence. The trial was before the court without a jury and judgment was entered against both defendants, jointly and severally, for $1346.00. Danny Odom and Ronnie Allen Odom have appealed.

Appellants urge various points of error based upon the contention that there is no evidence to support implied findings by the trial court and that said findings, and the judgment- based thereon, are so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Appellants urge such points in connection with the implied findings that Ronnie Odom was an agent, servant or employee of Danny Odom, acting in the scope of his employment for Danny Odom at the time of the collision, in connection with the findings that Danny Odom negligently entrusted his automobile to Ronnie Odom, that Ronnie Odom was an unskilled, inexperienced and unqualified driver, and that Danny Odom had, or should have had, knowledge that Ronnie Odom was an unskilled, inexperienced and unqualified driver.

Appellee contends there is ample evidence to support the implied findings that Ronnie Odom was guilty of negligence proximately causing the collision. We agree with appellee’s contention concerning the sufficiency of the evidence to show that Ronnie Odom was guilty of negligence proximately causing the collision. Appellants admit such negligence and proximate cause concerning the actions of Ronnie Odom, but contend that the judgment was improperly entered because Mrs. Lacy was guilty of contributory negligence as a matter of law in failing to keep a proper lookout for cars to her right when approaching the intersection; in failing to yield the right-of-way to an automobile approaching from her right, and driving her automobile at an excessive rate of speed when approaching an uncontrolled intersection. Appellants also contend that the failure of the court to find that Mrs. Lacy was driving her automobile at an excessive rate of speed as she approached the uncontrolled intersection is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We overrule appellants’ points urging the above contentions. Concerning the matter of speed a disinterested eye witness estimated Mrs. Lacy’s speed just prior to the collision to be as low as 10 miles and not more than 20 miles per hour. The evidence indicates that Ronnie Odom was operating the automobile in which he was traveling at a speed of 35 to 45 miles per hour. The evidence also shows that Ronnie Odom applied his brakes at quite a distance from the intersection. Concerning the alleged failure of Mrs. Lacy to yield the right-of-way Ronnie Odom admitted that when he first saw Mrs. Lacy she was in the intersection and he was not. One witness testified that he didn’t “know of anything the lady could have done to get away from the other vehicle.” There was evidence to the effect that if Mrs. Lacy had looked at and just prior to the time she entered the intersection, which was the only position from which she could have seen appellants’ approaching vehicle, she could not have avoided the collision.

In appellants’ 8th point it is contended that the court erred in entering judgment against appellant Danny Odom for the reason that there is no evidence to establish liability on the part of Danny Odom under any theory of law. In appellee’s pleadings a recovery was sought against Danny Odom on the theory that his brother was his agent, servant or employee and while acting in the course of his employment was guilty of negligence proximately causing the collision in question, that Danny Odom negligently entrusted his automobile to his brother, whom he knew to be incompetent, and that Danny Odom admitted liability and agreed to pay the damages. Appellee admits that the judgment against Danny Odom is not based or supported on any theory of vicarious liability or negligent entrustment, although those grounds were urged in his pleadings. He contends that Danny Odom is liable because of (1) his written admission of liability and (2) promise to pay the full amount of appellee’s damages in the sum of $1346.00, which promise and agreement was performed to the extent of actually paying $100.00 and agreeing to pay the balance in monthly installments of $50.00 each. The evidence urged by appellee in support of his contention consists of requests to Danny Odom for admissions of liability, the responses thereto and two letters signed by Danny Odom. The requests for admission apparently refer to the letters in question, which are as follows:

“Plaintiff’s Exhibit No. 1
March 14, 1962
Cavalier Insurance Corporation
P. O. Box 834
2301 N. Akard Street
Dallas 21, Texas.
Dear Sirs:
I am answering the letter pertaining to claim number KH-49972. I was not covered by liability insurance and do not have any large amount of money. I would like to pay you the damages to the amount of $1446.00. I would like to pay this off, but I don’t have the money.
I will wait for your reply. I would like for you to go along with me and let me pay it on monthly terms.
Very truly yours,
Danny Odom
/s/ Danny M. Odom”
Plaintiff’s Exhibit No. 2
2514 Lawrence
Houston 8, Texas
March 28, 1962
Cavalier Insurance Corp.,
P. O. Box 834
Dallas 21, Texas
Attn: Mr. Herman T. Harvell
Re: Chester L. Lacy
Policy No. W-400-10261
Claim No. KH 49972
Date of Accident, 1-12-62
Dear Sir:
I am sending a money order for $100.00 attached to this letter. I am sorry I did not answer sooner, but I had to secure the money. I will be able to send you $50.00 each month. If this is not agreeable, please let me know.
Thank you for going along with me as you have.
Yours very truly,
Danny M. Odom
/s/ Danny M. Odom.”

In appellee’s request for admission number 2 Danny Odom was requested to admit that he had on “March 14, 1962, — admitted liability for the damages to plaintiff’s automobile in the sum of FOURTEEN HUNDRED FORTY-SIX AND NO/100 ($1,446.00) DOLLARS and requested the privilege of paying said sum in monthly installments.” Appellee’s request number 3 sought an admission that on “March 28, 1962, — Danny Odom paid ONE HUNDRED and NO/100 ($100.00) DOLLARS to apply on the damage to plaintiff’s automobile and agreed to pay the balance in monthly installments of FIFTY AND NO/100 ($50.00) DOLLARS per month.” In answer to these requests for admissions, appellant Danny Odom objected to request number 2 concerning the first letter to the insurance company, contending that it was a request to admit a legal conclusion as to who was liable for the damages to ap-pellee’s car, and that any claimed admission by Danny Odom was merely an attempt to compromise the controversy. In answer to request number 3 it was admitted by Danny Odom that he had paid $100.00 to apply on the damage to plaintiff’s automobile but he denied there was any agreement to pay the balance in monthly installments of $50.00 each.

Generally specific declarations or admissions against interest are admissible in civil cases against the party making them. Such declarations, however, should be declarations of facts as distinguished from interpretation of facts, and should not consist of mere opinions or conclusions. 24 Tex.Jur.2d, pages 166-169. Likewise, “admissions” are acknowledgments of the existence or truth of certain facts. Words and Phrases, Vol. 2A Permanent Edition page 30. It is held that statements or admissions relating to questions of law, or which are mere conclusions of law are not admissible. Texas Reciprocal Insurance Association v. Stadler, 140 Tex. 96, 166 S.W.2d 121. Appellee admits, in effect, that there is no evidence of any negligence upon which to base Danny Odom’s liability. The only basis of appellee’s claim that Danny Odom is liable is Danny Odom’s claimed admission. The two letters which appellee relies upon to show an admission of liability were not written to appellee Chester L. Lacy, but were addressed and sent by Danny Odom to Cavalier Insurance Corporation. An examination of the letters in our opinion indicates that Danny Odom admitted no fact showing liability. Danny Odom did not state that he admitted liability for the damages resulting from his brother’s negligence. He stated only that he would like to pay the damages and that he would like to make the payments on monthly terms. It is undisputed that Danny Odom did pay the Cavalier Insurance Corporation $100.00. Danny Odom further stated in one of the letters to Cavalier Insurance Corporation that he would “be able to send you $50.00 each month.” The letters do not show an admission of liability to appellee on the part of Danny Odom, nor do they show that he promised to pay to appellee the full amount or any portion of appellee’s damages. The letters show only an offer by Danny Odom but not a promise to pay such damages to Cavalier Insurance Corporation. There was no promise or offer to make any payment to appellee, and ap-pellee admits that there is no evidence upon which to base Danny Odom’s liability on the theory of his responsibility as an employer for his brother’s negligence, or on the theory of negligent entrustment. The offer to pay to a third party the damages resulting from his brother’s negligence under these circumstances was not an admission of facts showing Danny Odom’s liability, even though a partial payment was made. The admission, if any, related to the question of law concerning Danny Odom’s liability under undisputed facts which showed there was no liability. See Texas Employers Ins. Ass’n v. Sewell, Tex.Civ.App., 32 S.W.2d 262, 1930, writ ref.; Traders & General Ins. Co. v. Stanaland, Tex.Civ.App., 202 S.W.2d 702, 1947, Ref. n. r. e.; Wade v. Superior Insurance Co., Tex.Civ.App., 244 S.W.2d 893, 1951, writ ref. There was no promise by Danny Odom to pay any amount to appellee Chester Lacy, upon which the latter is entitled to recover.

For the reasons stated, the judgment against Ronnie Allen Odom is affirmed. The judgment against Danny Odom is reversed and judgment is rendered in his favor.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    ANGLO MEXICANA de SEGUROS, S.A., Appellant, v. Diane Kaiser ELIZONDO, Individually and as next friend of Keith Walter and Kent Dennis Elizondo, Appellee.
    No. 195.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 9, 1966.
    Rehearing Denied Aug. 31, 1966.

      Barnes & Elick by Charles Elick, McAl-len, for appellant.
    Cox & Patterson, McAllen, for appellee.
   OPINION

SHARPE, Justice.

This case reaches this court by petition for Writ of Error filed by Anglo Mexi-cana de Seguros, S.A., defendant below, seeking relief against Diane Kaiser Eli-zondo, Individually and as next friend for two sons of her deceased husband, plaintiff below, to set aside a default judgment against petitioner. The parties will be referred to as in the lower court.

Plaintiff brought suit upon an automobile insurance policy issued by defendant providing for payment of damages resulting from collision and upset on a 1964 Rambler Classic Automobile while operated within the Republic of Mexico. The petition alleged that her husband Nicandro Elizondo, the named insured, was accidentally killed on January 17, 1965, in an automobile wreck in Madero, Mexico, and the Rambler automobile then being driven by him was a total loss, for which she was entitled to recover $2450.00. Default judgment was rendered in that amount against the defendant.

Plaintiff has filed a written motion to dismiss this cause for want of jurisdiction. Defendant opposes that motion and contends by nine points of error that the default judgment should be reversed. The first five points assert in substance that the trial court did not acquire jurisdiction over defendant and that the judgment is void because process was not served on it in accordance with Article 8.24(d), Insurance Code, V.A.T.S., the applicable statute, and, particularly, that the record does not affirmatively show valid service. Points 6 and 7 assert that there was no pleading or competent evidence to support the award nor to establish appellee’s entitlement to recover $2450.00 individually and as next friend, or in either capacity. Points 8 and 9 assert that Article 8.24, Insurance Code, and particularly Section (d) thereof, is unconstitutional.

Plaintiff’s motion to dismiss this writ of error proceeding for Jack of jurisdiction in this court is overruled. Defendant did not participate in the trial in the lower court which resulted in default judgment against it on June 21, 1965. No attempt was made to take a regular appeal. On September 1, 1965, defendant filed proper petition for writ of error and bond in the trial court and thereafter timely filed the record in this court. Defendant has fully complied with the statutes and rules concerning this writ of error proceeding and we have jurisdiction of it. Articles 2249, 2249a, 2255, Vernon’s Ann.Civ.St.; Rules 359-363, Texas Rules of Civil Procedure; McEwen v. Harrison, et al, 162 Tex. 125, 345 S.W.2d 706, 711 (1961), (Mandamus Proceeding); Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.1962, wr. ref., n. r. e., Writ of Error proceeding); White Motor Company v. Loden, 373 S.W.2d 863, n. w. h.); Investors Diversified Services, Inc., v. Bruner, 366 S.W.2d 810 (Tex.Civ.App.1963, wr. ref., n. r. e.); Appellate Procedure in Texas, Chapter 5.

Defendant’s contention that the record herein does not affirmatively establish that service of process was made on it in accordance with the applicable statute is well taken and must be sustained. Absent such a showing, the trial court was without jurisdiction and the default judgment is void.

Art. 8.24(d), Insurance Code, V.A.T.S., provides two methods for service of legal process upon a Mexican Insurance Carrier of the kind involved here: (1) by serving the agent, which the Carrier is required to designate, (2) alternatively, in the event process cannot be served upon the designated agent, service may be made upon the Chairman of the Board of Insurance Commissioners of Texas. The latter is a different official than the Insurance Commissioner of the State of Texas. The alternative method of service is not actually involved in this case.

Plaintiff alleged that appellee “was a foreign insurance company, duly authorized to do business in the State of Texas, and upon whom service may be had by serving J. M. Nutt, Commissioner of Insurance of the State of Texas, 1110 San Jacinto, County of Travis, City of Austin, Texas.” The return on the citation states that it was served on “Anglo Mexicana de Seguros, S.A., by delivering to J. M. Nutt, Insurance Commissioner of State of Texas, as agent for service.” The record further reflects a certificate by the Commissioner of Insurance, dated June 16, 1965, stating that citation and copy of the petition were served on him April 29, 1965, that they were forwarded on the same date to defendant in Mexico City by registered mail with return receipt requested, and that a letter of acknowledgment from defendant had been received by his department. The dates of the receipt and the letter from defendant were not given. The judgment recites that “though duly served with process in said cause, the said defendant, as at all times heretofore, failed to appear or answer in this behalf, but wholly made default.” The judgment further recites that the trial judge heard evidence on the unliquidated cause of action and that plaintiff was entitled to recover $2450.00.

It appears that the precise point here involved under Art. 8.24(d), Insurance Code, has not been passed upon in any reported Texas case. However, the guiding principles relating to service of process on foreign corporations have been recognized and applied under similar statutes, particularly Articles 8.08 and 8.10, Texas Business Corporation Act, V.A.T.S. See, also Articles 2031, 2031a and 2031b, V.A. C.S. It is well settled that in order to obtain jurisdiction over a foreign corporation, the record must show a strict compliance with the provided method of service of process. Whether the person served was in fact the agent for service of process must be affirmatively established before default judgment can be proper. White Motor Company v. Loden, 373 S.W.2d 863 (Tex.Civ.App.1964, n. w. h.) ; Investors Diversified Services v. Bruner, 366 S.W.2d 810 (Tex.Civ.App.1963, wr. ref., n. r. e.) ; Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.1962, wr. ref., n. r. e.); Sharp & Dohme, Inc. v. Waybourne, 74 S.W.2d 413 (Tex.Civ.App.1934, n. w. h.). In the last-cited case the court held that a default judgment against a foreign corporation should be vacated unless there was proof, independent of the allegations in the petition, the citation, and the statement in the sheriff’s return, to show service on some officer or agent of the corporation designated by the applicable statute. The record herein fails to establish that the Insurance Commissioner of the State of Texas has been designated by defendant as its agent for service. However, plaintiff states in her original brief that there is on file in the office of the State Board of Insurance Commissioners a written appointment of the Commissioner of Insurance as the defendant’s agent for service of process, and offers to furnish a certified copy of same to this Court as well as to opposing counsel. In White v. Loden, supra, a similar offer of proof was made to the Dallas Court of Civil Appeals. We agree with the holding there that such fact should have been proved in the trial court, and that such evidence, which was necessary to make out a prima facie case to support a default judgment in the trial court, cannot be permitted for the first time on appeal.

The judgment of the trial court must be reversed and the cause remanded for the reasons stated. Under this holding, discussion of appellant’s points 6 through 9 is deemed unnecessary. The question relating to service of process will no longer be present in this case because the defendant by prosecuting this writ of error proceeding has entered its appearance not only in this Court but for future proceedings in the trial court as well. Rule 123, T.R.C.P.; Bonanza, Inc. v. Lee, 337 S.W.2d 437, 440 (Tex.Civ.App.1960, n. w. h.).

Reversed and remanded.


author: WILSON, Justice.

text:
    Mrs. Mary Oliver LYLES, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 4460.
    Court of Civil Appeals of Texas. Waco.
    July 21, 1966.
    Rehearing Denied Aug. 25, 1966.

      See also Tex.Civ.App., 365 S.W.2d 819.
    Phelps, Kilgarlin & Snell, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Jerry V. Walker, Houston, for appellee.
   OPINION

WILSON, Justice.

The points in this workmen’s compensation death case relate to the court’s charge to the jury on “producing cause” of death, a comment by the trial judge concerning whether medical text books had been “accepted in evidence”, and refusal to place witnesses “under the rule” as authorized by Rule 267, Texas Rules of Civil Procedure. Judgment was rendered against the carrier for temporary total incapacity benefits and medical and hospital expenses prior to the employee’s death.

The cause of death was controverted. Other facts were not in issue, and the court submitted one special issue: “Do you find from a preponderance of the evidence that the accidental injury of Monroe Lyles on July 13, 1959 was a producing cause of the death of Monroe Lyles?” The jury answered, “We do not.”

The court defined “injury” as damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom, or the incitement, acceleration or aggravation of any disease previously or subsequently existing by reason of such damage or harm to the physical structure of the body.” The term “producing cause” was defined as:

“That cause which in a natural and continuous sequence produces the death and without which the death would not have occurred.”

There are no objections to the charge.

Plaintiff’s requested definition: “By the term ‘producing cause’ is meant a cause which in a natural and continuous sequence, by itself, or in connection with other cause or causes, produces disability or death of a person, and without which such disability or death would not have occurred. There may be more than one producing cause”, was refused.

Failure to object to a charge before submission waives the objection, under Rule 274, Texas Rules of Civil Procedure. Texas Emp. Ins. Ass’n v. Neuman, Tex.Sup., 379 S.W.2d 295; Allen v. American Nat. Ins. Co., Tex.Sup., 380 S.W.2d 604.

Although it is now well established, we repeat that under Rules 273, 274, 276, and the first paragraph of Rule 279, a request for submission is the method of preserving the right to complain of omission of, or failure to submit an issue which is relied on by the complaining party. Objection, however, is the proper method of preserving complaint as to (1) an issue actually submitted, but claimed to be defective; or (2) failure to submit, where the ground of recovery or defense is relied on by the opposing party.

In the case of explanatory instructions and definitions: if they are omitted, under Rule 279 a request is prerequisite to complaint of the omission by any party, irrespective of reliance on an issue. Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, syl. 4; Yellow Cab and Baggage Company v. Green, 154 Tex. 330, 277 S.W.2d 92, 93. If the definition is given, but is claimed to be defective, under Rule 274 objection is the means of preserving the complaint. Angelina Casualty Company v. Holt, Tex.Sup., 362 S.W.2d 99, 101. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002.

A request for submission is not an available alternative to an objection as a means of pointing out a defect in, or preserving a complaint to a submitted definition or instruction. The request embodying an element omitted will not be given effect as an objection under Rule 274; City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176, 179, syl. 4; Texas Employers’ Insurance Ass’n v. Neuman, Tex.Sup., 379 S.W. 2d 295, 296; Stuckey v. Union Mortgage & Investment Company, Tex.Civ.App., 383 S.W.2d 429, 439, writ ref. n. r. e.; Foley, v. Foley, Tex.Civ.App., 350 S.W.2d 890, 892; Southwestern Settlement & Develop. Corp. v. State, Tex.Civ.App., 282 S.W.2d 78, 85, writ ref. n. r. e.; White v. Southwest Coaches, Tex.Civ.App., 292 S.W.2d 823; Hodges, Special Issue Submission, 154, 162. Appellants’ complaint as to the element asserted to be omitted is not preserved by objection, and the points are overruled.

In response to an inquiry from the jury during deliberation as to which medical textbooks had been accepted in evidence, the court answered: “You are instructed that none of the textbooks were accepted in evidence.” Excerpts from books had been read to medical witnesses on cross-examination by appellant’s counsel to discredit their testimony, and they had been asked whether they agreed with the statements read. In many instances they testified they did agree. In some cases they declined to recognize works as authoritative. The books had not been “accepted in evidence”, and the answer given to the jury was correct. The point does not reflect error. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779; Texas Employers’ Insurance Association v. Nixon, Tex.Civ.App., 328 S.W.2d 809, 811, writ ref. n. r. e.

Refusal to invoke “the rule” as to medical witnesses under Rule 267 was not an abuse of discretion. Stedman Fruit Co. v. Smith, Tex.Civ.App., 28 S.W.2d 622, 630, writ dism.; Medrano v. City of El Paso, Tex.Civ.App., 231 S.W.2d 514; Texas Roofing Co. v. Whiteside, Tex.Civ.App., 385 S.W.2d 699, writ ref. n. r. e.; McDonald, Texas Civil Practice, Sec. 11.17.

Affirmed.

      . Cf. City of Austin v. Powell, 156 Tex. 610, 299 S.W.2d 273, where the issue omitted instruction on the burden of proof.


author: BLAIR, Judge.

text:
    STATE of Missouri ex rel. Clyde R. CHRISTIAN, Relator, v. Ralph M. LAWRY, County Clerk of DeKalb County, Missouri, Respondent.
    No. 24618.
    Kansas City Court of Appeals. Missouri.
    July 20, 1966.
    Robert H. Frost, Plattsburg, for relator.
    Robert L. Ross, Albany, for respondent.
   ORIGINAL PROCEEDING IN MANDAMUS

BLAIR, Judge.

Original proceeding in mandamus. Relator, Clyde R. Christian, filed his petition for the writ in this court alleging that on Monday, February 28, 1966, he legally filed with Ralph M. Lawry, County Clerk of DeKalb County, as a Democratic candidate for the nomination for the office of Presiding Judge of the County Court of that county at the approaching August 2, 1966, Democratic primary, and that he did so in compliance with all requirements of law; that notwithstanding the respondent asserts that he did not legally file, or even try to file at any time, and therefore refuses to place his name on the ballot. We issued our alternative writ directed to respondent commanding him to place relator’s name on the Democratic primary ballot for the approaching August 2, 1966, primary election as a Democratic candidate for nomination for the office of Presiding Judge of the County Court of DeKalb County as relator prays or to appear before this court and show cause for his refusal to do so. Respondent in due course made return to the alternative writ admitting that he has refused to place relator’s name on the ballot, and still does, specifically denying that relator ever filed his candidacy as he alleges, and denying every other averment set forth in the alternative writ. Relator filed his reply to the return denying all averments in the return except the averment that respondent has refused to place his name on the ballot. With the proceeding thus at issue, the evidence presented by both relator and respondent was heard by the entire membership of the court. For clarity and brevity we hereafter refer to the relator as Christian and to the respondent as the the clerk.

The parties to this controversy are quite rightly in agreement that Christian could not legally become a candidate for the Democratic nomination for the office of Presiding Judge of the County Court or be entitled to have his name placed on the ballot in the approaching August 2, 1966, primary unless he (1) paid to the treasurer of the Democratic County Central Committee the sum of $25.00 and took his receipt for such payment, (2) filed a declaration of his candidacy with the county clerk stating his full name, residence, the office for which he proposed himself as a candidate, the party upon whose ticket he was to be a candidate and that if nominated and elected to the office he would qualify, (3) filed with such declaration his receipt from the treasurer of the Democratic Central Committee, and (4) did so on or before 5 P.M. prevailing local time on the last Tuesday of April, April 26, 1966, preceding the primary to be held on August 2, 1966. Secs. 120.340, 120.350, 120.370, V.A.M.S.

The clerk argues that he is entitled in this controversy to the benefit of the presumption that public officers properly discharge their duties and that he has properly discharged his own in this instance. He cites 76 C.J.S. Records § 34, p. 132, which states his position: “The law presumes that a public officer will properly perform his duty, and it has been held that if a particular paper is not found in a public office where, if in existence, it ought to be, it will be presumed that it never existed.” Since Christian’s candidacy is not on file in his office, as he says, he argues that we must presume it never was filed and never existed in his office. There is such a presumption but it is a rebuttable one and not conclusive just as all other rebuttable presumptions are not conclusive. “In civil cases we hold that a presumption is a rule of law (unless it is a conclusive presumption, i.e., a rule of substantive law) which puts the burden of producing some substantial evidence on the party presumed against; that when substantial evidence, however slight” appears, “the presumption disappears and the triers of fact receive the issue free from any presumption; * * (Emphasis supplied.) State v. Martin, 364 Mo. 258, 260 S.W.2d 536, 541; Bridle Trail Assn. v. O’Shanick, Mo.App., 290 S.W.2d 401, 408; Sowders v. St. Louis & S. F. R. Co., 127 Mo.App., 119, 104 S.W. 1122, 1123; Western Advertising Co. v. Star Pub. Co., 146 Mo.App. 90, 123 S.W. 969, 973; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89, 97; 12 Mo. Digest, Evidence,. Dealing with the precise presumption invoked in this controversy, and exactly in point, are: Miller v. Town of Canton, 112 Mo.App. 322, 87 S.W. 96, 98; State ex rel. Ball v. State Board of Health, 325 Mo. 41, 26 S.W.2d 773, 777; State ex rel. DeWeese v. Morris, 359 Mo., 194, 221 S.W.2d 206 209. Moreover, the rule that the rebuttable presumption that public officers properly perform their duties disappears on the appearance of substantial evidence to the contrary, applies with equal force in mandamus proceedings. State ex rel. Herriford v. McKee, 150 Mo. 233, 51 S.W. 421, 423; State ex rel. Rawlings v. Kansas City, 213 Mo.App. 349, 250 S.W. 927, 931; State ex rel. Consolidated School Dist. No. 3, etc. v. Smith, 341 Mo. 807, 109 S.W.2d 857, 858. Sufficient it is to say here that Christian presented substantial evidence contrary to the presumption with which this proceeding commenced and it was not slight substantial evidence, although substantial evidence of that weight would have sufficed to destroy the presumption. Accordingly, we “receive the issue free from any presumption” (State v. Martin, supra) and we must adjudge it just as if there had never been any presumption in the beginning.

The clerk argues that in this proceeding we must proceed with “great caution” and not rule that Christian filed his receipt for the statutory fee and his declaration in his office on Monday, February 28, 1966, except upon “clear and satisfactory proof”. Of course, the burden of proof rests on Christian. By the term “burden of proof”, as we now use it, we mean Christian’s duty to establish the truth of his contention by the quantum of evidence the law demands in a case of this nature. Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28; Nelson v. Hammett, Mo., 189 S.W.2d 238. The true measure of the quantum of evidence the law demands in mandamus proceedings is that a litigant seeking the writ must prove that he has a clear and specific right to what has been refused him and he must show himself possessed of a clear legal right to the remedy of mandamus. Mandamus does not issue in doubtful cases. State ex rel. Phillip v. Public School Retirement System of City of St. Louis, 364 Mo. 395, 262 S.W.2d 569; 19A Mo. Digest, Mandamus,. But this rule governing mandamus proceedings does not require us to approach the issue we must resolve in a state of trepidation that will lead us to deny Christian relief unless he has established his right to it as a mathematical certainty. If, on this record, we are clearly convinced, and have no tenable doubt, that Christian filed his receipt for the statutory $25.00 fee and his declaration of candidacy with the clerk on Monday, February 28, 1966, he is entitled to our peremptory writ and we cannot deny it merely because the evidence is conflicting and others arguing the case are able to evolve arguments against the result our own views constrain us to reach.

Before discussing what is really in controversy between Christian and the clerk, it is worthwhile to notice what cannot be the subject of controversy as we view this record. On Monday, February 28, 1966, the day Christian claims he legally filed his candidacy with the clerk, he paid the statutory $25.00 fee to Kenneth Wright, Treasurer of the Democratic Central Committee of DeKalb County, and took his receipt for this payment. This payment was made by check and this check was paid by the bank on that same day and it is before us. Before us also is an affidavit of the treasurer that the duplicate receipt on file in his office shows that Christian “filed his payment on February 28,1966, and the notation appearing thereon ‘filing fee — presiding judge’ ”. This affidavit is in the record with no objection. A duplicate copy of the original receipt is also before us. The record also establishes, and it is not denied, that on the following day, Tuesday, March 1, 1966, Christian delivered to the DeKalb County Record-Herald, a weekly newspaper published in that county on each Thursday, a written announcement that he had filed as a candidate for Presiding Judge of the County Court of DeKalb County. A copy of this newspaper carrying Christian’s announcement, and published on Thursday, March 3, 1966, is before us, and it is in the record with no objection. We regard all of these facts as established beyond argument. Accordingly, the only controversy remaining is whether Christian legally filed with the clerk as a Democratic candidate for nomination for the office of Presiding Judge of the County Court of DeKalb County in the approaching August 2, 1966, Democratic primary by delivering to the clerk on Monday, February 28, 1966, his written declaration of his candidacy and the receipt of the treasurer of the Democratic County Central Committee of DeKalb County showing that he had paid that officer the statutory fee of $25.00. Christian swears that he did so and the clerk swears that he did not.

On Monday, February 28, 1966, the day Christian paid the treasurer the statutory $25.00 fee and took his receipt, and the day he says he filed his declaration of candidacy, the county court was in session. Christian had been elected Presiding Judge of the County Court in 1962 and was then serving in that capacity. He says that immediately upon paying the statutory fee and taking the receipt he went to the county court to participate in the transaction of the court’s business of that day. The minutes of the court admittedly show that the court was in session that day and that Christian and his associate judges and the clerk were all present. He says that when the court’s business was finished he followed the clerk into his office, and laid his receipt for the statutory $25.00 fee on the clerk’s desk and told him he wanted to file for Presiding Judge of the County Court. The clerk then placed a blank form of declaration in his typewriter, filled in all the blanks and handed it to Christian who signed it and laid it with the receipt on his desk. When Christian left the county clerk was still sitting at his desk with the receipt and declaration on the desk before him. This was the last time Christian saw his documents. During this entire procedure, only Christian and the clerk were present. The clerk in his own testimony stated that the procedure described by Christian on this occasion was the procedure he always followed in accepting declarations of candidacy from all candidates and that it had never varied during the eleven and one-half years he had been county clerk.

The clerk advances the theory that Christian did not know that he was required to file a declaration of his candidacy and that he thought his candidacy was legally established when he paid the statutory $25.00 fee to the treasurer and took his receipt. This theory leaves us a little more than incredulous. In the first place, Christian testified to an amazing familiarity with the procedure employed by the clerk in accepting declarations of candidacy from candidates for one totally ignorant of the requirement for a declaration. In the next place, Christian testified emphatically and repeatedly that he did not think that all he needed to do to become a candidate for presiding judge was to pay the county committee treasurer $25.00 and take his receipt. Questioned about this on cross-examination, here is one sample of his answers: “Oh, no, no, no, no, I filed back in ’62 (for Presiding Judge of the County Court), I had been on the Democratic Committee now for years. I had to file every two years. I knew I had to file a declaration of filing, or whatever you call it, candidacy.” While he was cross-examined rigorously on this subject, his testimony still stood unshaken when he was dismissed from the stand. We cannot adopt the theory that he was not aware that he was required to file a declaration of his candidacy. He is a seasoned politician with years of experience, a frequent candidate, and he is now finishing his fourth year as Presiding Judge of the County Court. To hold that he did not know he needed to file a declaration of his candidacy with the clerk is to belie his clear and persuasive testimony, uncontradicted by any witness, and his appearance and demeanor on the stand before us as a man who could not have had his quality and length of political experience and still remain in ignorance of this rudimentary fact of politics. He may not be a total political sophisticate but he is certainly not a political neophyte. On this record, we must reject this theory, and we do.

The next theory suggested is that Christian, if he knew he was required to file a declaration of candidacy, simply forgot to do so. We have already set forth the admitted steps Christian took on Monday, February 28, 1966, and on the following day. We repeat that on that Monday he paid the $25.00 statutory fee to the treasurer of the Democratic County Central Committee and took his receipt. The following day he delivered to the local newspaper a written announcement that he had filed as a candidate for Presiding Judge of the County Court. To us it seems incredible that Christian would do these admitted things, knowing he was required to file a declaration of candidacy with the clerk — and we hold he knew he had to do it — and forget to file that declaration on Monday, February 28, 1966, while in the court house with the county clerk available, and then continuously fail to remember thereafter that he had not filed until the statutory deadline for filing declarations, the last Tuesday of April preceding the primary, April 26, 1966, had arrived and gone by and until the clerk advised him on the following day, April 27, 1966, after the deadline for filing, that he had failed to file. On this record we must reject this theory, and we do. On the other hand, to us it is quite credible, as Christian argues, that he did file his declaration and receipt with the clerk on Monday, February 28, 1966, and that the clerk simply lost or misplaced it and forgot the whole occurrence under the press of his other affairs. We notice that Christian makes no charge of wrongdoing against the clerk. In his brief he expressly exonerates him.

This is an unfortunate controversy between two respected public officials of De-Kalb County. As we view this record, neither of these officials charges the other with deliberate falsification. Each does charge the other with statements prior to the trial inconsistent with his testimony at the trial. In our view, no useful purpose would be accomplished by analyzing in detail the force and effect of these inconsistent statements in this opinion, thereby increasing the ill-feeling between these officials which the record discloses already exists because of this controversy. As observed, all of the evidence presented by both officials was heard by the full membership of this court. We were in a position to weigh the force and effect of the inconsistent statements as we observed the witnesses for both sides giving their testimony. Since that time we have been furnished with a complete transcript of all of the evidence presented and we have had a further opportunity to analyze the entire record and the force and effect of these inconsistent statements. Our analysis supports the ruling we make.

We hold that Christian has sustained the burden of proof resting on him in this controversy and established the truth of his contention by the quantum of evidence the law requires in a case of this nature, that is to say, he has clearly convinced us, on this record, and left us with no tenable doubt, that he filed his receipt for the statutory $25.00 fee and his declaration of candidacy with the clerk on Monday, February 28, 1966, both in compliance with all legal requirements.

He is entitled to our peremptory writ of mandamus and it is ordered that it issue. The costs of this proceeding are taxed against respondent.

All concur.


author: WADDILL, Commissioner.

text:
    Willard HICKS, Appellant, v. GENERAL REFRACTORIES COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 6, 1966.
    Rehearing Denied Sept. 23, 1966.
    Ora F. Duval, Olive Hill, for appellant.
    Howard Vanantwerp, III, Vanantwerp & Vanantwerp, Ashland, for appellee.
   WADDILL, Commissioner.

Appellant, Willard Hicks, seeks to reverse a judgment which approved the allowance of a discount of a lump sum commuted, from Hicks’ prior award of workmen’s compensation, for the payment of his attorney’s fee.

The Workmen’s Compensation Board awarded Hicks $13,600 against his employ■er-appellee, General Refractories Company. Payment was at the rate of $32.00 per week for 425 weeks. Hicks’ attorney asked the Board to approve his fee and to commute sufficient payments in a lump sum from Hicks’ award. KRS 342.320. The Board awarded Hicks’ attorney a fee of $2329.60, the payment of which was to be commuted from the final payments of Hicks’ award.

General Refractories commuted sufficient payments to pay the $2329.60 attorney’s fee, plus $614.40 as a 5% discount per annum. KRS 342.150. When General Refractories ceased making compenation payments to Hicks he brought this action to recover $614.40 as the balance owed him under the Board’s award. The trial court decided the case against him.

Appellant contends that since KRS 342.-320(2) does not specifically authorize a discount of the amount to be commuted it indicates a legislative intent that no discount be allowed and that the provisions of KRS 342.150 allowing a 5% discount for commuting of a lump sum are not applicable to an attorney’s fee. We do not agree.

The provisions of KRS 342.320(2) direct that the attorney’s fee be paid as a lump sum and that the Board shall pay it directly to the attorney “commuting sufficient of the final payments of compensation” for that purpose. To “commute” is to “exchange” or “alter.” Webster’s Third International Dictionary. As used here we believe the word refers to an exchange of a series of greater, future payments for a lesser, immediate payment. See Bethlehem Steel Co. v. Jackson, 199 Md. 642, 87 A.2d 841, wherein the Maryland Court reached a similar conclusion. This is economically sound for under the award General Refractories was entitled to the use of the money until it was due and payable to Hicks. To require General Refractories to prepay a portion of Hicks’ compensation award without the allowance of a discount would have the effect of increasing the amount of the award, without the benefit of legislative sanction, to the extent that the payment exceeded the present value of the future payments.

When Hicks hired his attorney to prosecute his claim before the Board he obligated himself to pay for the legal services rendered. Since he received an award from the Board, Hicks’ financial obligation to his attorney was paid as a lump sum in accordance with KRS 342.320. Moreover, KRS 342.150 provides that a lump sum award be discounted at 5% per annum. If Hicks’ award had been commuted to a lump sum and his attorney’s fee then paid from such sum, the financial effect on Hicks would be the same as what actually occurred. The attorney’s fee was commuted on behalf of Hicks and was properly discounted. Cf. Citation Coal Company v. Lewis, Ky., 365 S.W.2d 730, 731, involving the payment of an attorney’s fee and tacitly approving a 5% discount of the award.

Our only criticism is that the Board did not compute the discount to be credited against the award but permitted General Refractories to do it. The statute requires the Board to make the commutation. Thus, if there were any objection by Hicks or his attorney it could be resolved before the Board. Commonwealth, Dept. of Highways v. Combs, Ky., 357 S.W.2d 316. However, the mathematical computation is not questioned in this appeal.

The opportunity for judicial review of the attorney’s fee and the computation of the discount refutes Hicks’ claim that KRS 342.320 is unconstitutionally arbitrary. We further observe in this connection that the election to operate under the provisions of the Workmen’s Compensation Act is voluntary.

There is no merit to the contention that the total credit against Hicks’ award contravenes KRS 342.320(2) because it exceeds 20% of his award. The attorney’s fee may not exceed 20% of the award, but by its nature this statutory limitation does not also apply to the credit allowed the employer. The amount of this credit is a purely mathematical computation.

The judgment is affirmed.


author: MILLIKEN, Judge.

text:
    Jesse SMITH, Appellant, v. The KLARER COMPANY and Workmen’s Compensation Board of Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    June 17, 1966.
    Rehearing Denied Sept. 22, 1966.
    William G. Lehnig, Duncan & Lehnig, Louisville, Cyril Shadowen, Frankfort, for appellant.
    Robert Matthews, Atty. Gen., for appel-lees.
    Armer H. Mahan, Louisville, for The Klarer Co.
   MILLIKEN, Judge.

This is an appeal from a judgment setting aside an award of the Workmen’s Compensation Board for injuries received by the appellant-employee when she fell on a sidewalk in front of her employer’s meat packing plant about 5:40 a. m. on January 30, 1961, while on her way to work in the plant.

The sidewalk was used by the general public, was owned and maintained by the employer whose trucks ran across it to a loading dock by the employees’ entrance, and the employee-claimant, a fifty-five year old woman, Jesse Smith, fell at a defective place in the sidewalk where another employee had fallen. In fact, the north property line of the employer’s property was located between the edge of the plant and the curb line but the line of demarcation was not visible on the sidewalk itself. The Board found that it was conceded the sidewalk was on the Klarer property, and the claimant fell 240 feet east of the employees’ entrance and about 2½ feet south of the survey line bisecting the sidewalk.

In an extensive, well-reasoned opinion granting compensation, the Board ruefully commented, “Again, we find ourselves confronted with this nebulous judicial creation —the coming and going rule whereunder the generalization has been made — that injuries sustained by employees on their way to or from work are not compensable,” and then proceeded to discuss and attempt to distinguish and apply our case law to the facts. Impressed by the fact that the employees, as a class, necessarily used the sidewalk as a means of access to the employer’s premises and their work, and that the sidewalk, including its defect, was in the control of the employer who had the power to correct any defects and thus reduce the hazard to its employees, the Board concluded there was “a risk exposure related to work, to route and to the dereliction of the employer for which compensation must be granted.” One member of the Board dissented on the ground that the employer was not exercising any control over the employee at the time and place of her injury.

On appeal to the Circuit Court, the able trial judge set aside the Board’s award, apparently with reluctance, after taking his turn at attempting to decipher from our many opinions what the Kentucky law was in this nebulous area. We are most sympathetic, for we too have recently canvassed the field and have adopted what is denominated the “operating premises” test declaring in Ratliff v. Epling, Jr., et al., Ky., 401 S.W.2d 43, decided March 25, 1966, that “ * * * the ‘operating premises’ test is a fair one and most consistent with the trend of our decisions, and we hereby adopt it,” and in that case we concluded that the place where the employee was killed (173 feet from the drift mouth of the mine) a considerable time after he had finished work and while delayed by the failure to start of the automobile in which he had arranged to ride home, was “within the ‘operating premises’ of the employer.” We refer the reader to the Ratliff opinion for the extensive review and analysis of our case law in this field, but for the sake of conveniently supplying some conception of what is meant by “operating premises” we quote from that part of the Ratliff opinion which follows our rejection of the boundary line of the employer’s property as the proper point to differentiate between liability and non-liability, where we said:

“The Pennsylvania courts have taken what appears to be a fairer and more practical view of what constitutes ‘premises.’ In Young v. Hamilton Watch Co., 158 Pa.Super. 448, 45 A.2d 261, a distinction was made between the ‘premises’ and the ‘property’ of the employer. It was held that where the injury did not occur on the ‘operating premises’ of the employer, compensation would be denied. The same general principle was followed in Connecticut (Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244, 38 A.2d 801) and Tennessee (Bennett v. Vanderbilt University, 198 Tenn. 1, 277 S.W.2d 386).
“The ‘operating premises’ concept is somewhat related to the idea expressed by this Court in Barker v. Eblen Coal Company, Ky., 276 S.W.2d 448, where the test applied was: ‘work connected activity*. If we interpret ‘work connected activity’ as including ‘work connected place’, we really reach the concept of ‘operating premises’. See Kentucky Law Journal, Cooper, ‘Workmen’s Compensation — The “Going and Coming” Rule and Its Exceptions in Kentucky’, 47 Ky. L.J., pages 420, 424. (This might be considered a justifiable extension of the ‘industrial hazard’ theory.)
“The ‘operating premises’ principle appears implicit in the following cases: Phil Hollenbach Co. v. Hollenbach, 181 Ky. 262, 204 S.W.152, [13 A.L.R. 524]; Barres v. Watterson Hotel Co., 196 Ky. 100, 244 S.W. 308; Big Elkhorn Coal Co. v. Burke, 206 Ky. 489, 267 S.W. 142; Wilson Berger Coal Co. v. Brown, 223 Ky. 183, 3 S.W.2d 199; Stearns Coal & Lumber Co. v. Smith, 231 Ky. 269, 21 S.W.2d 277; Black Mountain Corporation v. Vaughn, 280 Ky. 271, 132 S.W.2d 938; Clear Fork Coal Company v. Roberts, Ky., 279 S.W.2d 797; King v. Lexington Herald-Leader Co., Ky., 313 S.W.2d 423.
“The cases of United States Steel Co. v. Isbell, Ky., 275 S.W.2d 917, and Barker v. Eblen Coal Company, Ky., 276 S.W.2d 448, appear inconsistent with this concept.
“Two cases involving injuries on a parking lot seem directly in conflict. Compensation was allowed in A. C. Lawrence Leather Co. v. Barnhill, 249 Ky. 437, 61 S.W.2d 1, and denied in Bickel v. Ford Motor Company, Ky., 370 S.W.2d 193. In the Pennsylvania case we have above cited (Young v. Hamilton Watch Co., 158 Pa.Super. 448, 45 A.2d 261) it was held that a parking lot (located on the property of the employer, though not contiguous with the work area) was not a part of the ‘operating premises’. Since we reached the same conclusion in the Ford Motor Company case, Barnhill in effect has been overruled.”

It is apparent that whatever language is used in articulating a test, it canhot be so incisive and decisive as to assure a sort of mental automation on the part of the Board or the courts, or by able counsel. The property line as a decisive factor for determining liability lends itself to harsh results. We are inclined to believe the reasoning of the Board brings the facts of this case within the purview of the “operating premises” concept because the employees, more than other segments of the public, necessarily had to use the sidewalk or part of it to personally gain access to the place of their work, and the sidewalk was in the control of the employer, thus making a fall upon it a risk peculiar to the employment. We think this view properly conforms to the statutory admonition that the Workmen’s Compensation law be liberally construed on matters of law. KRS 342.004; Brewer v. Millich (1955), Ky., 276 S.W.2d 12, at page 15.

The judgment is reversed.

Rehearing denied.

STEWART and MONTGOMERY, JJ., dissenting.


text:
    Eula Mae NOCE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 27, 1966.
    As Modified on Denial of Rehearing Sept. 16, 1966.

      J. Ervin Sanders, Sanders & Redwine, Pikeville, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., for appellee.
   MILLIKEN, Judge.

The appellant, Eula Mae Noce, was convicted of possessing alcoholic beverages for sale in local option territory, second offense, fined $200 and sentenced to 120 days in jail.

For reversal of the judgment, the appellant contends that evidence obtained by a state trooper in the search of her property should not have been admitted because the affidavit upon which the search warrant was based did not state sufficient facts “to show probable cause in the issuing officer.” The affidavit stated:

“That he knows the following facts: The affiant was informed by Raymond Craig on June 8, 1965, that Raymond Craig at 3:10 p. m. on June 8, 1965, purchased 3 cans of Budweiser Beer for $1.50 from June Goff, an employee of the Cash and Carry, which is owned and operated by Eula Mae Noce and is described above. Raymond Craig of Pike County, Kentucky, states that liquor is now stored and being sold in violation of the local option on the above described premises which are located in Pike County, Kentucky, a territory where the local option law is now in full force and effect, and that said Eula Mae Noce has the reputation of being in the liquor business.”

We think the affidavit sufficiently shows how and when Raymond Craig learned that alcoholic beverages were stored for sale on appellant’s premises, and we think it is implicit in the affidavit that June Goff, as an employee of the appellant, sold the beer at the place of her employment. In Buckley v. Commonwealth, Ky., 383 S.W.2d 349, cited by appellant as authority for condemning the present affidavit, the affidavit failed to state that it was an alcoholic beverage which was purchased on the premises but merely described the purchase as a “half pint,” and we held that description was too indefinite saying “it could have been milk or orange juice.”

The appellant also complains that proof of the prior conviction was not complete because the quarterly court showed that the conviction there had been appealed to the Circuit Court. The quarterly court record, however, did have a notation upon it, “appeal dismissed.” The appellant contends the Commonwealth should have produced the Circuit Court record to show the disposition of the appeal, and that its failure to do so resulted in its not proving the prior conviction. “It is not necessary for the Commonwealth to show that the former judgment of conviction has not been vacated, set aside or reversed. It will be presumed to be in force, unless the defendant shows otherwise.” Dunnington v. Commonwealth (1929), 231 Ky. 327, 21 S.W.2d 471, 473. Perhaps a better way to say it is; that in the absence of conclusive proof to the contrary the record of a former conviction is enough to permit a jury to infer that it has not been vacated, set aside or reversed. In this case the evidence to the contrary was not sufficient to remove the question from the province of the jury. See, also, Tall v. Commonwealth (1908), 110 S.W. 425, 428, 33 KLR 541.

The judgment is affirmed.


author: MONTGOMERY, Judge.

text:
    Otis BLACKBURN et al., Appellants, v. John W. HAYES et al., Appellees.
    Court of Appeals of Kentucky.
    May 20, 1966.
    Rehearing Denied Sept. 23, 1966.
    Joe Hobson, Prestonsburg, for appellants.
    W. A. Daugherty, Jean L. Auxier, Pike-ville, for appellees.
   MONTGOMERY, Judge.

Otis Blackburn and his wife, Eleanor, seek to appeal from a judgment in favor of John W. Hayes and his wife, Genevieve. The action was brought by the Hayeses to secure a determination of the respective rights of the parties to the use of a water well located on the Blackburn property. It was adjudged that a purported conveyance of the appellees’ right to the water be held for naught and that the appellees were entitled to use of water from the well.

It is unnecessary to discuss the grounds urged for reversal by appellants in view of our determination that the appeal must be dismissed. Although this action has been denominated a declaratory judgment action, in essence it is a suit to reform a portion of a deed inserted allegedly by fraud. It involves the ownership and use of water from a well which admittedly cost $650. Appellants say that appellees’ interest in the well is now worth $300. The appeal has been perfected as a matter of right, no motion for an appeal having been made. The judgment recites that the amount in controversy exceeds the sum of $2,500.

In Commonwealth, Department of Highways v. Barker, Ky., 379 S.W.2d 481, it was held that “ * * * this recital may not serve to establish as fact that which is fiction.” KRS 21.070 provides that a trial court may fix the value of the thing in controversy which is conclusive if the judgment does not certainly fix the value when construed in connection with the pleadings. Neither the pleadings nor judgment indicate the value of the thing in controversy, except the recitation of $2,500. In Kayrouz v. Joiner, Ky., 377 S.W.2d 890, it was held that “ * * * the trial court may not create an absolute right of appeal to this court by reciting a value that has no basis when the judgment is construed in connection with the pleadings.” In view of the absence of any value in the pleadings and in view of the admitted values by the appellants which are sustained by the evidence, the amount in controversy here manifestly is $300. This is insufficient to justify an appeal as a matter of right. An examination of the record on the merits does not indicate a meritorious appeal.

Appeal dismissed.


author: WILLIAMS, Judge.

text:
    Minnie ROGERS, Appellant, v. Daniel KAREM, dba Daniel Karem Market, Appellee. Daniel KAREM, Cross-Appellant, v. COCA COLA BOTTLING COMPANY, Cross-Appellee.
    Court of Appeals of Kentucky.
    May 20, 1966.
    Rehearings Denied Sept. 23, 1966.
    Edward T. Ewen, Jr., A. Walter Redmon, Louisville, for appellant.
    James H. Frazee, Frazee & Frick, Louisville, for appellee Daniel Karem.
    Joseph E. Stopher, A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, John P. Ryan, Louisville, for Coca Cola Bottling Co.
   WILLIAMS, Judge.

The appellant, Minnie Rogers, filed suit against the appellee, Daniel Karem, dba Daniel Karem Market, to recover for injuries caused by the alleged negligence of Karem in providing defective merchandise on the premises. Karem in turn filed a third-party complaint against the cross-ap-pellee, Coca Cola Bottling Company, in which he asked for judgment against Coca Cola for all sums adjudged against him in favor of the appellant. At the close of appellant’s evidence the court directed a verdict in favor of Karem. Judgment was entered in favor of Karem and also in favor of Coca Cola on the third-party complaint. There is before us an appeal from that judgment by Minnie Rogers, and a cross-appeal by Karem.

The appellant went into Karem’s self-service grocery store and picked up a six-pack carton of Coca Cola. The bottom of the carton gave way, bottles of Coca Cola fell to the floor, and several broke, causing appellant to suffer a laceration on her leg.

In Dealers Transport Company, Inc. v. General Dynamics Corporation et al., Ky., 402 S.W.2d 441 (petition for rehearing overruled and modified opinion delivered May 13, 1966), this Court recognized the principle of “strict liability” in products liability cases. See Allen v. Coca-Cola Bottling Company, Ky., 403 S.W.2d 20, decided May 20, 1966. Therein we held that the plaintiff was entitled to litigate her case on the “strict liability” theory, notwithstanding the fact that she had based her claim on breach of implied warranty.

The same rationale shall apply in this case. The appellant is entitled to have her case go to the jury on the “strict liability” theory, and on the same theory Karem is entitled to have his third-party complaint against Coca Cola litigated.

The judgment is reversed on the appeal and on the cross-appeal, with directions for further proceedings in conformity with this opinion.


author: PALMORE, Judge.

text:
    MODERN BAKERY, INC., and James Combs, Appellants, v. Nathan BRASHEAR, Administrator of the Estate of Michael Brashear, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1966.
    Rehearing Denied Sept. 23, 1966.

      Willis W. Reeves, Reeves, Barret & Cooper, Hazard, for appellants.
    Scott E. Diiff, Duff Arnett, Hazard, for appellee.
   PALMORE, Judge.

Michael Brashear, 7 years of age, was killed by a bread truck while attempting to cross a highway near his home in Perry County. His father, alleging himself to be the administrator of Michael’s estate, filed this suit in the Perry Circuit Court seeking damages for wrongful death against the owner and operator of the truck. The case eventually went to trial before the court without a jury and resulted in a judgment for plaintiff in the amount of $37,200 and costs. Defendants appeal.

The fatal accident occurred on November S, 1962, and the suit was filed on September 24, 1963. On January 10, 1964, before answering, defendants moved to dismiss on grounds of no jurisdiction over the plaintiff, no jurisdiction of the subject matter, and failure to state a claim. The motion was supported by affidavits showing that there was no order of record in the office of the Perry County Court Clerk appointing Nathan Brashear as administrator of his son’s estate. By amended motion it was asserted specifically that Brashear lacked capacity to maintain the action. The motion was sustained with leave to amend the complaint. Plaintiff then filed an amended complaint alleging that he had been appointed as administrator by the Perry County Court on September 17, 1963, but that through inadvertence the order was not entered of record until January 22, 1964. It was alleged also, with copies of the various documents attached as exhibits, that on the latter date the county court entered further orders amending the original September 17.order and directing its entry of record nunc pro tunc. Defendants then renewed their mo-' tion to dismiss and submitted a further affidavit showing that the records of the county court clerk contained no written application whatever for administration of the estate of Michael Brashear. The motion was overruled, following which defendants answered, pleading among their defenses plaintiff’s lack of capacity and the one-year statute of limitations. KRS 413.140. A motion by defendants for a summary judgment also was overruled.

It was the opinion of the circuit court that whatever may have been plaintiff’s status theretofore, the orders entered by the Perry County Court in January of 1964 effected a valid appointment as administrator of the estate and that the amended complaint related back to the filing of the original complaint so as to defeat the plea of limitations.

In Vassill’s Adm’r. v. Scarsella, 292 Ky. 153, 166 S.W.2d 64 (1942), a wrongful death action was brought in this state by an administrator appointed in Ohio. Later, an ancillary administratrix was duly appointed in this state, and she joined with the original plaintiff and tendered an amended petition in the wrongful death suit. The anniversary of the fatal accident fell between the filing of the suit and the tender of the amendment. This court held that for the purposes of limitations the action had not been commenced within one year after the cause of action accrued. However, under the Rules of Civil Procedure, which became effective July 1, 1953, we think there can be little doubt that the amendment in the case now before us relates back to the original filing. CR 15.03 provides as follows:

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”

CR 15-.03 is the same as F.R.C.P. 15 (c). “If the opposing party is reasonably informed of the general wrong complained of and the background out of which the claim arose, then he may begin preparation of his defense when the original claim is asserted against him. Under such circumstances the statute of limitations should not constitute a bar * * * Under the same Federal Rule it has been held that where the real party in interest was substituted as a plaintiff after the statute of limitations had run on the original cause of action, the amendment related back and the cause of action by the new plaintiff was not barred.” Clay’s Kentucky Practice, CR 15.03, Comment 3.

“Rule 15(c) is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitation are intended to afford * * * Where plaintiff seeks to change the capacity in which the action is brought * * * there is no change in the parties before the court, all parties are on notice of the facts out of which the claim arose, and relation back has been allowed.” Moore’s Federal Practice, R 15(c), pars. 15.15 [3] and [4], pp. 1021, 1039. See, for example, Rejsenhoff v. Colonial Nav. Co., 35 F.Supp. 577 (S.D.N.Y.1940); Fierstein v. Piper Aircraft Corporation, 79 F.Supp. 217 (M.D.Pa.1948). See also Missouri, K. & T. R. Co. v. Wulf, 226 U.S. 570, 33 S.Ct. 135, 57 L.Ed. 355 (1913).

The case of Totten v. Loventhal, Ky., 373 S.W.2d 421 (1963), is inapplicable because, as noted in the opinion, the attempted amendment asserted “a new and different cause of action.”

This means, of course, that even if to this date Nathan Brashear has not secured a valid appointment as administrator of his son’s estate, and if the judgment were set aside for that reason, he could still remedy the omission and proceed by further amendment notwithstanding the statute of limitations. Cf. Rejsenhoff v. Colonial Nav. Co., 35 F.Supp. 577 (S.D.N.Y.1940). As a practical matter, therefore, subjecting the order of appointment to a collateral attack on the ground that there was no written and verified application as required by KRS 395.015 would simply call for a repetition of the trial for the sake of a procedural technicality that has no bearing on the merits of the controversy. The decedent having been an unmarried infant, any recovery under the wrongful death statute goes to his father and mother. KRS 411.130(2). They are the persons with first priority in the appointment. KRS 395.040. The county court order shows that Nathan Brashear took the proper fiduciary oath and executed bond, thus subjecting himself to the jurisdiction of the court if he had not done so theretofore by the filing of a formal written application. Under these circumstances we are unwilling to say the appointment was void.

Coming now to the merits of the case, the principal issue is whether there was enough evidence of negligence on the part of James Combs, the truck driver, to support a verdict.

The accident occurred on a level stretch of two-lane paved highway running in a north-south direction in a rural section of Perry County. Michael had alighted from a school bus at a country store on the west side of the road. His father, Nathan Brash-ear, operated a garage some distance to the south and on the other side of the road. There was a beaten path along the west shoulder of the highway two feet or so from the pavement. Michael walked southward on this path until he was within “a few feet” of being opposite the garage. Combs, the only eyewitness, was driving his truck northward at a speed, he said, of about 40 m. p. h. He first observed the boy walking toward him along the west shoulder of the highway when they were “several hundred feet” apart. He did not apprehend any reason to slacken his speed or take any other precaution against the event that the child might dart into the road until it actually happened. Michael suddenly ran straight across the road toward a culvert a little north of his father’s garage, and Combs immediately applied his brakes and swerved to the right in an effort to avoid striking him. He was not successful. Michael was hit by the front of the vehicle, around its left headlight, at a point very near the east margin of the pavement. Both he and the truck went on over the culvert head and into a water-filled ravine. There was no other traffic in the vicinity at the time of the accident.

The truck left skid marks some 70 to 80 feet along the highway and shoulder before going off the embankment. The left mark began at a point six feet farther along than the one on the right, in view of which the plaintiff, who qualified as an expert, theorized that the brakes were defective because they took hold on the right side before the left and that this caused the truck to swerve to its right. Even, however, if this hypothesis is accepted, it would require a prohibitive degree of speculation to conclude that the condition of the brakes was a proximate causal factor in the accident. It seems to us that the sufficiency of the evidence to sustain the verdict must be tested on the strength of what, if anything, the circuit court acting in lieu of a jury could reasonably have determined that the driver of the truck should have done, but did not do, before the child made his precipitate move to cross the highway.

It was held in the recent case of Thomas v. Gates, Ky., 399 S.W.2d 689 (1966), that if a small child is in a position along or near a street where in the exercise of ordinary care a motorist should see him, “the motorist has the duty to anticipate that the child may suddenly dart into the street and he must be prepared for that contingency.” In this respect the same laws of human nature apply in the country as in town, and the duties of the motorist are no different. The appellant Combs frankly admitted he saw Michael walking near the edge of the road while they were still an ample distance apart. In his testimony he made no claim that he took any measures, such as slackening his speed, in anticipation that the boy might suddenly indulge the well-recognized disposition of young children to run heedlessly across roads and streets. He explained that he was proceeding at a “reasonable” speed, but a speed that is otherwise reasonable may not be so when a child or children are along the roadside. Our conclusion is that the evidence was sufficient to authorize a verdict; hence the finding of negligence was not clearly erroneous. CR 52.01.

The life expectancy of the decedent was 63 years. We cannot accede to the contention that $37,200 was an excessive award.

The judgment is affirmed.

      . The record does not disclose whether the response was timely, but in any event the question was not raised.

      . Hence it becomes unnecessary to consider the efficacy of the county court’s nunc pro tunc order.


author: CLAY, Commissioner. STEWART, Judge

text:
    The SEELBACH, INC., et al., Appellants, v. Gail Elizabeth CADICK, An infant who sues by her father and next friend, Denby E. Cadick, Appellee. Gall Elizabeth CADICK, An infant suing by her father and next friend, Denby E. Cadick, Appellant, v. PIEDMONT AVIATION, INC., and Sheraton-Midcontinent Corporation, Appellees.
    Court of Appeals of Kentucky.
    July 1, 1966.
    Rehearing Denied Sept. 23, 1966.

      Joseph E. Stopher, A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, Louisville, for Seelbach, Inc., Oscar G. McDonald, and Eppley Hotels Co.
    John S. Greenebaum, Louisville, Greene-baum, Barnett, Wood & Doll, Louisville, of counsel, for Sheraton-Midcontinent Corporation.
    Hogan, Taylor, Denzer & Bennett, John L. Bennett, Louisville, for Piedmont Aviation, Inc.
    Joe G. Leibson, Louisville, Gerald Kirven, Louisville, Leibson, Leibson & Leibson, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, of counsel, for Gail Cadick.
   CLAY, Commissioner.

Gail Cadick, an infant, was awarded $56,-500 by a jury against The Seelbach Hotel, and other parties, for personal injuries sustained in a hotel room when she was eight months old. The parties against whom judgment was entered seek reversal on several grounds, and she appeals from so much of the judgment as summarily dismissed her claim against two other defendants.

During November 1951, Gail accompanied her parents on an airplane flight, scheduled by Piedmont Aviation, Inc. The flight was cancelled in Louisville and her father received a voucher from Piedmont’s reservations clerk authorizing The Seelbach Hotel to furnish the Cadicks accommodations for the night at the expense of Piedmont. The family thereupon checked into the hotel. Mr. Cadick testified he requested a baby bed for Gail but was told that the hotel did not have one available.

The family was admitted to a room containing two double beds. The parents pushed one of the beds against the outer wall and attempted to enclose the child’s sleeping place with chairs, pillows and luggage. She was of an age when she could crawl, sit up, and pull up in a crib or playpen.

The bed did not fit flush with the outer wall its entire length because, near the foot, there was an opening created by a projection of the wall near a covered radiator. In this open area (approximately one foot long and eight inches wide) was a hot radiator pipe just above floor level. The parents placed on the bed near this opening a light travel case.

Gail was put in the middle of this bed near the headboard and went to sleep. About 1 a. m she either crawled or fell off the bed into the opening. Her neck, shoulder and the lower right side of her face came in contact with the hot pipe, causing severe burns.- Her claim is based on negligence in failing to furnish reasonable accommodations. The court gave the following instruction, to which no party objected:

“It was the duty of the defendants, the Seelbach Inc. and Oscar G. McDonald, in the operation of the hotel, to use ordinary care to provide the plaintiff as an occupant and guest thereof with sleeping accommodations reasonably suitable for the purpose for which they were intended, and if you shall believe from the evidence in this case that the defendants negligently failed in said duty, and by reason of their failure, if any, and as a direct and proximate result thereof, the plaintiff was thereby caused to fall and received the injuries of which you have heard evidence, then the law is for the plaintiff and you will so find. But unless you so believe the law is for the defendants and you will so find.”

While this instruction broadly covers the law of the case, the more specific duty owed to an infant is thus stated in 29 Am.Jur.2d, Innkeepers, section 58 (page 46):

“With regard to the duty of an innkeeper to a minor child guest, in distinction from his duty to an adult, it has been said that when a child is accepted as a guest, the experience and the natural tendencies of such a child become a part of the situation and must be considered by the innkeeper; that extraordinary care may be required of innkeepers in the protection of infants too young to take care of themselves. This does not mean that the innkeeper becomes the nurse of the child, or assumes its control when accompanied by its parents, but only that he is bound to consider whether his premises, though safe enough for an adult, present any reasonably avoidable dangers to the child guest.” (Emphasis added.)

This language was taken almost verbatim from Baker v. Dallas Hotel Co., 5 Cir., 73 F.2d 825, 827, which case has many similarities with the one before us.

The parties against whom the judgment was rendered (whom we will hereafter designate appellants), while conceding the duty to furnish reasonable accommodations, vigorously contend they were entitled to a directed verdict because they breached no duty owed this child. They seek to narrow the issue to the question of whether the hotel was required, in the exercise of ordinary care, to furnish a baby bed or crib. The issue cannot be so restricted under the facts of this case. Before examining another significant factor which vitally affects the question of negligence in the furnishing of accommodations, we will consider the baby bed question.

It is stated in 29 Am.Jur.2d, Innkeepers, section 67 (page 55) that the hotel owes its guest a “duty to provide articles of furniture which may be used by them in the ordinary and reasonable way without danger”. It is common knowledge that a double bed is not the type of furniture generally utilized as a sleeping place for very young infants able to move about. The evidence establishes that the hotel recognized this.

The general manager of the hotel at the time of the accident testified that the hotel had 36 baby beds available and that “these cribs were always a thing foremost in our minds”. The room clerk who registered the Cadicks testified that there was no substitute for a crib. The executive assistant manager stated that “according to the rules and regulations” the room clerks were instructed to furnish a crib upon request if one was available. He also testified that proper accommodations for an infant of this age meant furnishing a baby bed if one was requested, and that he did not know of an incident when the hotel did not have plenty of cribs available to accommodate infants.

It was therefore shown that the hotel, according to its own standards of proper accommodations, considered baby beds as fitting furniture for use of young infants and had an established policy to furnish these beds if requested. The evidence would also support the conclusion that on the night in question a baby bed was available, though for some undisclosed reason it was not furnished.

In this case, however, it is not necessary to determine whether the failure to furnish a baby bed, standing alone, could constitute such negligence as to impose liability for the injuries sustained by this infant. An additional and most significant factor was the presence of an exposed hot radiator pipe in the room to which the Cadicks were assigned. It was an inseparable component of the situation that must be taken into account when determining whether the hotel could be found negligent in assigning the infant a room without such furniture. If, as appellants contend, “there was no baby bed available that night”, then it is only reasonable to say the hotel should have taken extra precautions to protect the infant from what was to her a dangerous and hidden hazard. Could not a jury fairly find that the hotel failed to furnish reasonable accommodations when it assigned this child to a room, without a baby bed, wherein there was an instrumentality of potential danger to her if she was not confined ?

During the course of the trial the significance of this exposed pipe was somewhat minimized because the trial court ruled that, under Greater Louisville First Federal Sav. & Loan Ass’n v. Stone, Ky., 242 S.W.2d 739, its maintenance was not negligence. Whether this ruling of that case applies under all circumstances may be questioned. It will be observed that there is an appreciable difference between a large office and a small hotel room, particularly with respect to the persons accommodated, the nature of the use, the care required, and the potentiality of danger. However that may be, the question here is not whether appellants were specifically negligent in having an exposed pipe in the room, but whether they were generally negligent in failing to furnish reasonable accommodations.

The presence of the hot pipe was certainly a condition which had a material bearing upon that issue. If this condition presented a special hazard to a particular guest, surely the innkeeper could be reasonably required to exercise special care (which is ordinary care under the circumstances) to protect the guest. The necessity for a baby bed becomes more important in the light of the hazard, and conversely, the hazard assumes more importance because of the lack of the baby bed. It is the combination of these two factors which clearly created a jury issue as to whether, considering all the circumstances, the hotel failed to exercise reasonable care in the furnishing of adequate accommodations for this infant.

It is appellants’ contention that even if they were negligent, the acts of the parents constituted an intervening and superseding cause of the accident which absolved them of liability. They insist the parents were negligent, but whether they were or not, appellants’ position would be sound if what they did was the sole proximate cause of this unfortunate event. An intervening cause or agency which insulates from liability is “an independent force, not naturally arising out of or related to the negligently created condition.” Lexington Country Club v. Stevenson, Ky., 390 S.W.2d 137, 141. The question of foreseeability enters the picture but it is not necessary that the party negligently creating the condition foresee the specific subsequent act in the chain of causation. United Fuel Gas Company v. Thacker, Ky., 372 S.W.2d 784, and cases cited therein. The subsequent act of another which grows out of and naturally flows from the condition is not an intervening cause.

Let us examine the conduct of the parents. As heretofore noted, they did rearrange the room to the extent of pushing a bed against the outer wall, which was adjacent to the exposed area. This was done to create a barrier on one side of the bed. They also undertook to barricade the bed at other points so that Gail would not crawl or fall off. They placed her in the middle near the headboard. Everything they did constituted a natural attempt to remedy a precarious situation created by being furnished only an adult bed for the baby to sleep on. Nothing they- did caused Gail to fall, which, after all, was the ultimate event which resulted in her injury.

Appellants contend the parents could have made better improvisions to protect the child. The very suggestion that they could have done such things as placing the child in a chair or a bureau drawer is an admission that what the hotel had furnished for the child to sleep on was not an adequate accommodation. Had the hotel furnished the type of accommodations they customarily furnished in the way of a baby bed, there would have been no problem. The very necessity for making a different arrangement indicates the inadequacy of the accommodations. More than that, this very necessity was created by appellants, and the parents’ acts (whether negligent or not) naturally flowed therefrom.

As we have said, the acts of the parents could constitute an intervening and superseding cause whether they were negligent or nonnegligent. On the other hand, even if they were negligent, this does not necessarily insulate appellants from liability. If their attempt to rectify the inadequacy of the double bed was reasonably foreseeable and naturally arose out of a condition negligently created by appellants (which we are at this point assuming), appellants may still be found liable by a jury. Assuming the parents were negligent, a jury could fairly determine that their negligence concurred with that of appellants to produce the injury and the parties would be in the position of joint tort feasors. The applicable principle is quoted in Watson v. Kentucky & Indiana Bridge & R. Co., 137 Ky. 619, 126 S.W. 146, 150, 129 S.W. 341:

“It is also a principle well settled that when an injury is caused by two causes concurring to produce the result, for one of which the defendant is responsible, and not for the other, the defendant cannot escape responsibility. One is liable for an injury caused by the concurring negligence of himself and another to the same extent as for one caused entirely by his own negligence.”

See also Roberts v. Taylor, Ky., 339 S.W.2d 653.

The primary duty to furnish reasonable accommodations rested upon the hotel. Having failed to furnish what was customarily furnished, they could reasonably anticipate that the parents would take some precautions to correct the deficiency created by the lack of a baby bed. They could reasonably foresee that, regardless of what the parents did, the possibility that Gail might fall out of a double bed would expose her to this hot pipe hazard. It was equally dangerous to her whether she fell on it or crawled upon it. For appellants to say that it was the sole duty of the parents to protect this child from this hazard is to close one’s eyes to the fact they would not have been put in this position had the hotel furnished proper accommodations. Truly this would be transferring the hotel’s responsibility to the parents, and would ignore the natural flow of events.

We are not undertaking to decide these issues of proximate or intervening cause because we think it clear that reasonable minds could differ in their determination. As in the matter of negligence, our basic question is whether there was sufficient evidence for a jury fairly to find against appellants on these issues. In Pros-ser on Torts, 3rd Ed., section 52 (page 330) it is said:

“In any case where there might be reasonable difference of opinion as to the foreseeability of a particular risk, the reasonableness of the defendant’s conduct with respect to it, or the normal character of an intervening cause, the question is for the jury, subject of course to suitable instructions from the court as to the legal conclusion to be drawn as the issue is determined either way. By far the greater number of the cases which have arisen have been of this description, and to this extent it may properly be said that 'proximate cause is ordinarily a question of fact for the jury to be solved by the exercise of good common sense in the consideration of the evidence of each particular case.’”

We have concluded that appellants were not entitled to a directed verdict.

It is next contended by appellants that the court erred in failing to instruct the jury that (1) appellants were not liable if the parents were negligent, and (2) appellants were not negligent in maintaining an exposed radiator pipe in the hotel room. What we have said above disposes of these contentions. Assuming the parents were negligent and such negligence was a contributing rather than an intervening cause of the accident, this would not absolve appellants of liability since the parties would be in the position of joint tort feasors. With respect to the exposed radiator pipe,' we have pointed out that though its maintenance may not have independently constituted negligence, it created a condition' which, combined with other circumstances, could constitute negligence. Consequently the court did not err in giving the unwarranted instructions.

It is further contended that no judgment should have been entered against the Eppley Hotels Company, the sole stockholder of appellant The Seelbach, Inc. at the time of the accident. Though suit had been brought against this holding company, at the request of appellants it was not treated as a party during the trial and no verdict was returned against it. However, it was sued on the same ground as appellant The Seelbach, Inc., and there was ample proof that it acted as the employer of appellant McDonald, who was the night clerk in charge at the time of the accident. The holding company’s liability under the respondeat superior rule was the same as that of appellant The Seelbach, Inc. Under the peculiar circumstances of this case, we believe the' court properly entered judgment against this appellant.

The final contention of appellants is that the verdict of $56,500 is excessive. Quoting from appellee’s brief, the verdict was:

“ * * * based upon uncontradicted proof of four past operations, eight future operations, twelve years of past physical and emotional suffering, 62 years of expected physical and emotional suffering, permanent facial, neck,- chin and mouth disfigurement, permanent psychological damage, and medical expenses exceeding $7,000.00.”

In our opinion the proof amply supports these damages, and they do not strike us at first blush, or at all, as being excessive.

We now turn to the other appeal, which has been consolidated with this one. It is the contention of Gail Cadick, as appellant, that the trial court erred in summarily dismissing her claim against defendants Piedmont Aviation, Inc., and Sheraton-Midcontinent Corporation. We feel that these questions are really moot since the judgment we are affirming gives her adequate and secure relief. However, we have carefully examined the contentions of the parties and it is evident that Gail had no cause of action against Piedmont Aviation, Inc., or Sheraton-Midcontinent Corporation.

We can find no obligation on Piedmont to furnish safe hotel accommodations for this child regardless of what duty it had. It committed no act which could have been a proximate cause of this child’s injury. The hotel was not acting as its agent. The claim against this defendant was properly dismissed.

The claim against Sheraton-Mid-continent Corporation is based upon the purchase of it of The Seelbach Hotel some four years after this accident happened. It is contended that by virtue of the contract of purchase this defendant assumed this liability. The simple answer is that under the contract of purchase such a liability was not assumed.

The judgment is affirmed on both appeals.

STEWART, Judge

(dissenting).

I dissent from the majority opinion.

There is no claim in the instant case that the Seelbach Hotel breached its duty concerning the accommodations it furnished the Cadicks, other than to make available a baby crib to them. It is not contended the hotel was negligent in maintaining an unprotected hot radiator pipe in the room in which they were placed. The question is thus narrowed to whether this hotel exposed to danger Gail Cadick, the infant guest, by not providing special sleeping facilities for her.

There is nothing in the record to indicate that anything furnished the Cadicks was defectively constructed or was below the standard of accommodations customarily provided for infants. I repeat that the sole basis of the alleged dereliction of duty is that the hotel failed to provide a special bed, such as a baby crib.

Obviously a child eight months of age is utterly incapable of caring for itself and is completely under the care and control of its parents. Consequently, it would be unreasonable to impose upon a hotel the absolute duty to anticipate an infant’s needs when the hotel must negotiate solely with the parents who know better than anyone else the facilities which are required for their child’s safety.

In determining whether the hotel’s premises were reasonably safe for Gail Cadick, the infant guest, it is uncontradicted that her parents made that determination because they accepted the room for her even though there was no baby crib in it. Furthermore, they assured the bellboy that the accommodations were acceptable. Far from considering the room “unsafe”, the Cadicks, after the accident and after returning from the hospital with the child, placed her back in the same bed situated in the same position, and Mr. Cadick went on back to sleep.

The parents instead of the hotel were the immediate and primary custodians of the child in the privacy of the assigned hotel room which they accepted as satisfactory. It is my view that the conduct of the parents of Gail Cadick in rearranging the beds and furniture in the room constituted the immediate and proximate cause of the injury. As has been pointed out, the parents accepted the accommodations with no crib for their child and then proceeded to move the bed, on which the child would sleep, next to the hot radiator pipe and into a potentially dangerous place. Could the hotel have envisioned that they would do this rearranging?

It is fair to say that if the Cadicks had taken the small night table from between the two beds and then moved the beds together and placed the child between them on the beds, the child would have been in a place of comparative safety. It is apparent the child would have been far removed from the hot radiator pipe and would have been less likely to fall from the bed.

Such conduct of the parents in moving the child’s bed near the hot radiator pipe was not reasonably foreseeable by the hotel. This act of the parents constituted the sole negligence that produced the injuries, which negligence superseded the claimed negligence of any one else. See American Home Fire Assurance Company v. Louisville Gas & Electric Company, Ky., 307 S.W.2d 562.

It is my opinion it would be unrealistic to hold that the Seelbach Hotel stands in loco parentis to the child of the Cadicks and that it must assume the risk of the infant’s care under the circumstances shown in this case.

MONTGOMERY, J., joins in this dissent.