text:
    Oby Mendel COLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    June 17, 1966.
    Rehearing Denied Sept. 23, 1966.
    Leland Logan, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   WADDILL, Commissioner.

Appellant was convicted of storehouse breaking as denounced by ICRS 433.190. Since it was shown and the jury found that he had been previously convicted of committing two felonies his punishment was fixed at life imprisonment under the habitual criminal statute, KRS 431.190. On this appeal-he urges that the indictment was defective, the instructions were erroneous and that certain evidence the jury was permitted to consider deprived him of a fair trial.

The evidence reveals that, during the night of October 22, 1964, while patrolling the business district of Russellville, certain police officers observed that a forcible entry had been made into the Russellville Wholesale Company building. Upon a search by the officers the appellant and a person later identified as George Shoemake were found in the building. They were thereupon placed under arrest and searched. Appellant had two cartons of cigarettes in his possession and Shoemake had several cartons of cigarettes and a sack filled with money in his possession, all of which was later identified as belonging to the Russell-ville Wholesale Company. Appellant did not testify nor did he produce any witnesses in his behalf.

Appellant contends that the indictment is fatally defective because it does not contain the dates on which he committed the former offenses nor the dates of his former convictions. The record discloses that no objection was raised to the indictment. In these circumstances the question concerning the legal sufficiency of the indictment has not been preserved for appellate review. Cf. Stewart v. Commonwealth, Ky., 389 S.W.2d 910; Piper v. Commonwealth, Ky., 387 S.W.2d 13. Moreover, appellant waived his opportunity to have the indictment made more definite and specific by failing to file a motion challenging the sufficiency of the indictment, RCr 8.18, and by failing to seek a bill of particulars, RCr 6.22. We observe, however, that the trial court had jurisdiction of the person and subject matter of this prosecution and that the indictment adequately stated that appellant had committed the offense of storehouse breaking. Hence, the indictment was not subject to a motion to dismiss even if such a motion had been timely filed. Ross v. Commonwealth, Ky., 384 S.W.2d 324.

Appellant next contends that the court erred in failing to instruct the jury on the whole law of the case in that the instructions given did not include a reasonable doubt instruction covering the entire case.

The instructions given to the jury were as follows:

“INSTRUCTION NO. 1
“If the jury believe from the evidence beyond a reasonable doubt that the defendant, Oby Mendell Cole, on or about October 22, 1964, in this county and before the finding of this indictment herein either alone or in company with George Shoemake, willfully and feloni-ously broke and entered into the storehouse of the Russellville Wholesale Company with the felonious intention of stealing therefrom or did feloniously take, steal, and carry away from said storehouse and from the possession of said Russellville Wholesale Company some cigarettes or any merchandise, the personal property of said Russellville Wholesale Company of any value with the felonious intention of willfully depriving the owner thereof and converting the same to his own use and benefit, then the jury shall find the defendant, Oby Mendel Cole, guilty as charged in the indictment and fix his punishment at confinement in the penitentiary for not less than one year nor more than 5 years in your discretion.
“INSTRUCTION NO. 2
“The word felonious or feloniously means proceeding with an evil heart or purpose.
“INSTRUCTION NO. 3
“If you find the defendant guilty of storehouse breaking under Instruction No. 1 and (a) if you shall further believe from the evidence beyond a reasonable doubt that in May, 1953, the defendant was convicted in the Logan Circuit Court of Dwelling House Breaking, a felony, and (b) if you should further believe from the evidence beyond a reasonable doubt that in March, 1962, the defendant was convicted in the Muhlen-berg Circuit Court of Burglary, a felony, and that said offense was committed after defendant’s conviction in May, 1953, then you shall find the defendant guilty as charged in the indictment and fix his punishment in the penitentiary for life.
“INSTRUCTION NO. 4
“If you find the defendant guilty of storehouse breaking under Instruction No. 1 but have a reasonable doubt that it has been proved that he was convicted of the felonies as set out in Instruction No. 3, you should merely fix his punishment as provided in Instruction No. 1.
“INSTRUCTION NO. 5
“If the jury have a reasonable doubt of the defendant having been proved guilty under Instruction No. 1, you shall find him not guilty.
“INSTRUCTION NO. 6
“All 12 members of the jury must agree to find a verdict.”

It is obvious to us that Instruction #5 is a reasonable doubt instruction on the whole case because it, in effect, told the jury that appellant was entitled to an acquittal upon the charges contained in the indictment unless it believed beyond a reasonable doubt that he had been proven guilty of storehouse breaking. See Stanley’s Instructions to Juries, Volume 3, Sections 950, 951, 956, 957; RCr 9.56.

Appellant further urges that we abandon our policy of permitting the jury to hear evidence concerning appellant’s former convictions and to adopt the procedure indicated in Harrison v. State of Tennessee, Tenn., 394 S.W.2d 713 (1966), whereby a jury must first determine the guilt of the accused on the most recent felony charge before any of his earlier convictions may be shown. We have heretofore rejected the suggested procedural change, Wilson v. Commonwealth, Ky., 403 S.W.2d 705, (decided May 6, 1966), and upon the reconsideration of it we have decided to adhere to the established policy of permitting the jury to consider prior convictions along with the current felony charge.

We find no reason to reverse this conviction.

The judgment is affirmed.

      . Upon trial the evidence established the dates of the commission of the former offenses as well as the dates of the former convictions.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    William J. MANNING et al., Appellants, v. FISCAL COURT OF JEFFERSON COUNTY, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    June 24, 1966.
    Rehearing Denied Sept 23, 1966.

      James W. Stites, James W. Stites, Jr., Louisville, for appellants.
    E. P. Sawyer, Jefferson County Atty., Marlow Cook, Louisville, Robert Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Frankfort, for appellees.
   CULLEN, Commissioner.

In this action for a declaration of rights the circuit court entered judgment upholding the validity of a resolution of the Jefferson County Fiscal Court providing for the acquisition by purchase of an industrial plant, with machinery and equipment, and the leasing of it to a truck equipment company. Revenue bonds in an amount up to $400,000 would be issued to finance the acquisition, and the rentals during the original term of the lease would be sufficient to amortize the bonds. The plaintiff in the court below, a truck equipment company that will be in competition with the one to whom the plant is proposed to be leased, is the appellant here.

The unusual feature of the proposal here involved, distinguishing it from the other industrial building revenue bond projects that have been approved by this court, is that the plant proposed to be acquired is owned by, and would be purchased from, the company to which it thereafter would be leased. That company, the Fontaine Equipment Company of Alabama, purchased the site for the plant in 1962. In 1963 its representative had some discussions with members of the Jefferson County Fiscal Court with reference to the prospects of financing the construction and equipping of the proposed new plant through a county revenue bond project. In 1964 the fiscal court adopted the resolution here contested, providing for the acquisition of the plant through issuance of revenue bonds, and the leasing of the plant to Fontaine. Shortly thereafter the instant lawsuit was brought.

The evidence introduced on the hearing of the case showed that during the pending of the suit in circuit court Fontaine had proceeded with the construction and equipping of its plant with private financing. The evidence further showed that the fiscal court had held out no promise or assurance to Fontaine that revenue bonds would be issued to finance the project; that the site was purchased by Fontaine around a year before the fiscal court ever heard of Fon-taine ; that it appeared that Fontaine would proceed to set up operations in the new plant even if the revenue bond project did not materalize; that “the action of the Fiscal Court really had .no influence on his being here;” that the practical effect now, of issuing the revenue bonds, would be simply to substitute public financing for private financing of an existing industrial venture; and that Fontaine will stay in Jefferson County even if the revenue bonds are not issued.

The circuit court in its judgment found as a fact that the revenue bond resolution “does encourage the increase of industry in this State and County and the financing plan which has been established under this ordinance was instrumental in having the defendant Fontaine Truck Equipment Company, Inc. locate in Jefferson County, Kentucky.” The difficulty is that there is no evidence to support that finding. In fact, the evidence is that the financing plan was not instrumental in having Fontaine locate in Jefferson County. In a written opinion preceding the entry of judgment the trial judge said:

“ * * * Fontaine has come to Louisville, that is proven. What it will do if it is unable to participate in the proposed plan is * * * conjectural. It is equally consistent with the record now before the Court to assume that the proposed financing plan did have something to do with their coming here and that it may have well been the cause of their locating in Jefferson County.” (Our emphasis)

The foregoing opinion cannot be justified in view of the fact that the only evidence in the record was that Fontaine would stay in Jefferson County and operate the plant even without the revenue bond financing, and that the proposed revenue bond financing plan “had no influence on his being here.”

Under the evidence we must consider the case as being one in which the county proposes to issue revenue bonds simply to finance the routine continued operations of an existing industrial plant. The objections voiced to this by the appellant are that Fon-taine thus would be given a competitive advantage through lower interest, costs and through property tax exemptions, with no resulting public benefit.

Our decided cases make it quite clear that public revenue bond projects can be undertaken only for a public purpose. See Faul-coner v. City of Danville, 313 Ky. 468, 232 S.W.2d 80; Chrisman v. Cumberland Coach Lines, Ky., 249 S.W.2d 782; Dyche v. City of London, Ky., 288 S.W.2d 648; Industrial Development Authority v. Eastern Ky. Regional Planning Commission, Ky., 332 S.W. 2d 274. Also, the statutes providing for revenue bond projects clearly require the existence of a public purpose. For example, KRS 58.010, which is part of the general “public project” statute, defines a public project as one for public purposes. And KRS 103.210, which is the statute relating specifically to industrial buildings, requires the existence of at least one of four named public purposes, i. e., promotion of reconversion to peacetime economy, relief of conditions of unemployment, aiding in the rehabilitation of returning veterans, and encouraging the increase of industry in this state.

The only public purposes purporting to be served by the project here in issue are relief of unemployment and encouragement of increase of industry. However, there is no evidence that the revenue bonds would cause Fontaine to hire even one person, or to increase in any respect its industrial operations. In fact, the evidence is to the contrary. The two purported public purposes thus are not served.

Of the cases relied upon by the county, the closest in factual situation is Massey v. City of Franklin, Ky., 384 S.W.2d 505. There the bonds were for the purpose of acquiring an existing plant and constructing new expanded facilities. Assuming that the added facilities were of significant proportions, it was reasonably to be anticipated that there would be new employment and increased production, thus creating a community benefit. But in the instant case there is no basis for a finding that the revenue bonds will themselves cause new employment or increased production.

We are forced to the conclusion that the project here proposed will not serve a public purpose, and therefore is not authorized by statute or permitted by constitution. The resolution should have been declared invalid.

The judgment is reversed with directions to enter judgment in conformity with this opinion.


author: HILL, Judge.

text:
    Ann CHASTAIN, Appellant, v. Jack CHASTAIN, Appellee.
    Court of Appeals of Kentucky.
    June 10, 1966.
    Rehearing Denied Sept. 23, 1966.
    G. Wm. Clements, Louisville, for appellant.
    Glenn L. Schilling, Louisville, for appel-lee.
   HILL, Judge.

Appellant filed this suit for divorce, alimony and custody of three children, whose names need not be recorded here, now ten, nine, and five years of age. The two older children are boys and the youngest one is a girl. The judgment appealed from awarded appellant only the privilege of having the three children for two months during the summer. Divorce was granted appellee, a dentist, on his counterclaim. He was also awarded custody of the three children.

It is contended by appellant that she is entitled to the custody of the children and alimony.

This tragically ending marriage began the day before Christmas 1954. At that time, appellant was employed by the Louisville Medical Depot, and appellee was a dental student. He was graduated from dental college in 1957.

The chancellor’s findings of fact indicate appellant was interested in “cultural activities, particularly music”; that she was a poor housekeeper, but a fair cook; that she “is inconsistent and careless with handling the truth”; that she worked a large part of the time of their marriage, earning about $3,232 which was contributed to living expenses ; that she did not believe in physical punishment of the children and allowed them considerable freedom in selecting their bedtime. It is also said in the findings of fact that: “She is an imaginative, artistic, highly intelligent person on whom the duties of raising a family obviously grate.”

In the record there is inconclusive evidence that appellant once said at a party of mixed sexes that she believed in “free love.” Other evidence hinted that she is an atheist although she attended church and Sunday school with the children and, in fact, took an active part in church work.

It is clear from the evidence and findings of fact that appellee is an able dentist increasing his earnings annually; that he has a “sports car hobby,” which was contagious to appellant for a time; that appel-lee is careful with his money, so much so, in fact, that he has perhaps earned the reputation of being “stingy” and a “tightwad.” During most of their married life, the parties lived in a small, modest home on Cochran Hill in Louisville, Kentucky. Appellant repeatedly complained of its insufficiency, and appellee repeatedly complained that his wife was a poor housekeeper.

According to appellee’s own testimony, he did little in the way of attending to the necessary, but menial, physical needs of the children. There is evidence, however, that he played with them at times.

Appellant contended appellee was not affectionate with or considerate of her or the children as evidenced by his neglect of their living conditions; and that appellee saved about $5,000 during their marriage, which he ostensibly paid to his father for money advanced for appellee’s education. Each party has found a great many faults and few merits in the other. The large record in this case is replete with real and imaginary shortcomings of these hostile litigants; but boiled down, they are insignificant and unimportant ripples that may be found in most marriages. What we are concerned with now is the best interest of the three small children, who are in no way responsible for the good or bad qualities of their parents. The supreme consideration in determining the question of custody is the welfare of the children. Cf. Newby v. Newby, Ky., 275 S.W.2d 779 (1955).

Ordinarily, unless the mother is unfit, she will be -awarded the custody of small children. Cf. Preston v. Preston, 227 Ky. 561, 12 S.W.2d 751 (1929).

The determination of custody of children is perhaps the most important and difficult function of the courts. Necessarily, great weight must be given the findings of the chancellor, and his conclusions will not be disturbed except where his discretion is abused. Cf. Newby v. Newby, supra.

In the present case, we find no substantial evidence that appellant is immorally or otherwise unfit to have the custody of her three small children. Indeed, the chancellor did not find her so unfit because he awarded her custody of the children for two months during each summer. We doubt the children will find the ideal condition with either the mother or father, but it is our conclusion the mother, appellant, is entitled to their custody. Considerable time having passed since the judgment was entered by the chancellor, the amount for maintenance of appellant and the three children on remand of this case should be determined in the light of the most recent earnings of appellee and other circumstances that may bear upon the question.

Finally, appellant asserts she is entitled to alimony. The judgment granting an absolute divorce to appellee was based upon a finding by the chancellor that appellant was wholly at fault. In neither the findings of fact nor the judgment has appellant been found guilty of any moral delinquency. Ap-pellee plead six months cruel and inhuman treatment by appellant as grounds for divorce. Under KRS 403.020, the husband is not required to allege and prove he was “without like fault,” although subsection (3)(b) of this statute requires the wife to do so.

There is no specific finding by the chancellor that appellee was guilty of any fault during their marriage, but we have no difficulty in finding appellee was not without fault.

The general rule is that permanent alimony will not be awarded to a wife when her husband is granted a divorce because of her fault or misconduct. Cf. Damron v. Damron, 301 Ky. 649, 192 S.W.2d 473, and Humphress v. Humphress, Ky., 240 S.W.2d 625. But there are exceptions to the general rule. In Coleman v. Coleman, Ky., 269 S.W.2d 730, the wife was allowed alimony where her fault was more firmly established than in the present case. It was said in Coleman, supra: “It has also been held that if the wife is not wholly at fault and is not guilty of any moral delinquency she may be entitled to alimony although a divorce is granted to the husband.”

The parties have accumulated little money or property during the marriage, but appellee has enjoyed a rising annual income up to the judgment. Appellant has produced and nurtured three children for appellee. In the absence of proof of immorality, we consider it inequitable that appellant be “turned out” with only eight weeks visitation with the children her sole recompense for the years and effort devoted to the marriage.

It is our conclusion appellant is entitled to a reasonable allowance of alimony based on the income of appellee, the amount of which must be left to the sound discretion of the chancellor.

In his findings of fact, the chancellor cited and relied on the authority of Donoho v. Donoho, Ky., 357 S.W.2d 665. Appellee leans heavily on the same authority. The facts of the Donoho case do not justify the application of the rule therein announced to the facts of the present case.

The judgment is reversed with directions to modify it consistent herewith.


text:
    Maria Faye THARP, an infant, by Leon Tharp, as her next friend, Leon Tharp, Individually, Norma Jean Tharp, Appellants, v. SECURITY INSURANCE COMPANY OF NEW HAVEN, CONNECTICUT, Appellee.
    Court of Appeals of Kentucky.
    June 24, 1966.
    Rehearing Denied Sept. 23, 1966.

      Robert T. Schneider, Horse Cave, for appellants.
    Harold D. Ricketts, Harlin & Orendorf, Bowling Green, for appellee.
   WILLIAM BRECKENRIDGE AR-DERY, Special Commissioner.

Appellants, plaintiffs in the lower court, brought suit in Barren County against the appellee insurance company to enforce judgments previously returned in their favor against Clinton Arthur Goad for damages resulting from an automobile accident. Goad was the named insured in a “non-owned motor vehicle policy” or “operator’s policy” issued to him by appellee pursuant to the provisions, of the Kentucky Financial Responsibility Law. The trial court dismissed the action on the grounds that the policy contained an endorsement that its coverage did not apply to any automobile owned by the named insured and that, at the time of the accident in question, the automobile driven by Goad was owned by him within the meaning of Chapter 187 of the Kentucky Revised Statutes.

Goad was convicted of operating a motor vehicle while under the influence of intoxicating beverages and his operating privilege was revoked on October 9, 1958. On July 1, 1959, he made application for an operator’s policy of liability insurance under the Kentucky Automobile Assigned Risk Plan.

The application was received by the agent of another insurance company and forwarded by him to the manager of the Kentucky Assigned Risk Plan, Louisville, Kentucky. On July 2, 1959, the risk was assigned to appellee, which issued to Goad its standard operator’s policy, containing an endorsement that the insurance coverage in the policy did not apply: “(a) to any automobile owned by the named insured or a member of the same household * * The policy period was from July 2, 1959, to July 2, 1960.

On August 3, 1959, appellee filed Kentucky Financial Responsibility Insurance Certificate, SR — 22, with the Department of Public Safety, Frankfort, Kentucky. This form certified that there was in force on its effective date, July 2, 1959, a motor vehicle liability policy as defined in Section 21 of the Kentucky Motor Vehicle Safety— Responsibility Act (Kentucky Financial Responsibility Law), which policy had been issued by the appellee to Goad. The insurance coverage, to which certification was thereby made, was bodily injury liability and property damage liability under a non-owned policy or operator’s policy.

This coverage, as certified, was in effect from July 2, 1959, to July 2,1962. On July 2, 1960, and July 2, 1961, upon the payment by Goad to appellee’s Connecticut office of the premium required, the policy, together with the endorsement, was renewed and forwarded to Goad through the agent who had presented his application.

On July 5, 1961, while the policy was in effect, pursuant to the requirements of the Kentucky Financial Responsibility Law, Goad negotiated for the purchase of the automobile driven by him at the time of the accident out of which appellants’ claims arose. Although he paid the purchase price, at his direction the seller transferred title to Goad’s mother, and the automobile was subsequently registered in Kentucky in her name.

On September 16, 1961, Goad collided with an automobile in which appellants were riding. They filed an action against him, of which appellee had adequate notice. However, on the ground of lack of coverage, appellee elected not to defend against their claims.

The Barren Circuit Court adjudged that appellant Leon Tharp recover the sum of $5,294.55, appellant Norma Jean Tharp $500. and Marla Faye Tharp $500. from Goad, each with interest thereon at the rate of 6% per annum from October 1, 1962, until paid, together with costs. Appellants caused an execution to issue from the Barren Circuit Court on their judgments. A return of “no property found” was made by the Sheriff of Monroe County, where Goad resides.

Appellants then instituted their action in the lower court against appellee. On joint motion of the parties it was ordered that the case be submitted for judgment on the pleadings, requests for admissions, proof taken by depositions, and exhibits filed of record, subject to oral objections relating to competency and relevancy.

Appellants complain on appeal that ap-pellee’s failure to plead in response to their properly amended complaint within ten days after service of their amended pleading constituted an admission of the allegations contained therein. These allegations set forth a purported estoppel to deny coverage as to Clinton Arthur Goad as of the time of the accident from which their claims arose.

A default under the Rules of Civil Procedure does not operate automatically against the party responsible for it. One seeking to take advantage of an opposing party’s omission must take affirmative action thereon. It is then within the discretion of the trial court, guided by the Rules, to determine the effect of the default.

Nothing in the record indicates that appellee’s failure to respond to appellants’ amended complaint was specifically and affirmatively brought before the trial court. Having failed to present the question in a timely manner, the appellants cannot first raise it on appeal.

Appellants further argue that the trial court erred in ruling that the vehicle driven by Goad at the time of the accident was owned by him within the meaning of the Kentucky Financial Responsibility Law so as to be excluded from coverage under the endorsement to the operator’s liability insurance policy issued by the appellee to him. In other words, can an insurer, operating under the provisions of the Kentucky Financial Responsibility Law, set up as a defense a policy provision excluding any automobile owned by the named insured or a member of the same household, as a defense to a direct action against the insurer by one who has obtained a judgment against the insured, and can the insurer escape liability by proof that, although record title is in another, the insured is the true owner of an automobile involved in an accident from whence the judgment derived?

Appellee certified in Form SR — 22 that it had issued its policy to Goad as proof of his ability to respond in damages under the Kentucky Financial Responsibility Law. The policy was in effect on the day of the accident and had not been cancelled pursuant to KRS 187.500. The accident occurred within the three-year period, after the original issuance of the policy, during which time KRS 187.570(1) (a) required that proof of financial responsibility be maintained.

It is clear that appellee issued the policy to Goad under the “Assigned Risk Plan.” Therefore, the applicable provisions of KRS Chapter 187 are read into and become a part of the policy.

If any of the provisions contained in the policy are contrary to law, the provisions in the law will prevail. The Financial Responsibility Law did not authorize appel-lee to exclude from the coverage of its policy an automobile owned by a member of its insured’s household. That clause is repugnant to the provisions of the law, and as such is void.

KRS 187.490(6) (d) states, “The policy, the written application therefor, if any, and any rider or endorsement which does not conflict with the provisions of KRS 187.290 to 187.620 shall constitute the entire contract between the parties.” KRS 187.490(1) says, in part, that, “A ‘motor vehicle liability policy’ as said term is used in KRS 187.-290 to 187.620 shall mean an owner’s or an operator’s policy of liability insurance * * * ” KRS 187.490(3) provides, “Such operator’s policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed on him by law for damages arising out of the use by him of any motor vehicle not owned by him * *

KRS 187.290(8) and (9) define “operator” and “owner” as follows:

“(8) ‘Operator’ — Every person who is in actual physical control of a motor vehicle.
(9) . ‘Owner’ — A person who holds the legal title of a motor vehicle, or in the event a motor vehicle is a subject of an agreement for the conditional sale or lease thereof with right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purposes of KRS 187.290 to 187.620.”

The same statute in sub-section (11) defines proof of financial responsibility as, “Proof of ability to respond in damages for liability, on account of accidents occurring subsequent to the effective date of said proof, arising out of the ownership, maintenance or use of a motor vehicle * *

Words such as owner and ownership are consistently used with reliance upon their assumed concreteness and ability to express in all situations the same concepts. Unfortunately, their apparent synonimity often is illusory.

Legal title, paper title, record title and similar terms are sometimes used to differentiate among various bundles of rights and obligations. On occasion, they may be used as synonyms for each other within the same context. In some instances they may be definitive of a legal relationship between person and property. At other times their vagueness in meaning is illustrated by using them to denominate certain types of indicia of “ownership” in attempting to ascertain the “true owner.”

This court has recognized the problem. In Campbell County Bd. of Education v. Boulevard Enterprises, Inc., Ky., 360 S.W. 2d 744, 746, we said:

“The word ‘owner’ invokes many images. It is elastic and its color changes to match the context. A neat statement of its chameleonic character may be found in Warren v. Lower Creek Drainage District, 316 Ill. 345, 147 N.E. 248, where it is written: ‘The word “owner” is nomen generalissimum, and its meaning is to be gathered from the connection in which it is used and from the subject-matter to which it is applied, and when used in a statute the obvious nature and purpose of the statute may indicate its meaning.’ ”

Counsel have cited decisions of this court defining the word “owner” with regard to its technical meaning within the law of real and personal property and within certain regulatory statutes. The concern of the court in this case is to determine what was intended by the legislature by the use of the word “owner” in the Kentucky Financial Responsibility Law.

In cases involving policies of voluntary insurance this court has followed the majority rule that, since an injured party generally stands in the shoes of the insured with regard to his rights against the insurer, the right of the injured person to recover against the insurer is dependent upon the terms and limitations of the policy. However, the Financial Responsibility Law is remedial in nature and should be broadly construed.

The purpose of the law is fundamentally to provide compensation for innocent persons injured through faulty operation of motor vehicles. The Commonwealth has a valid interest in promoting safety on the highways by protecting the users against financially irresponsible persons, particularly where those persons have previously demonstrated lack of competence and care in the use of the roads.

The legislature has expressed its intent by providing in KRS 187.490 that:

“ (6) Every motor vehicle liability policy shall be subject to the following provisions which need not be contained therein:
(a) The liability of the insurance carrier with respect to the insurance required by KRS 187.290 to 187.620 shall become absolute whenever injury or damage covered by said motor vehicle liability policy occurs; said policy may not be cancelled or annulled as to such liability by any agreement between the insurance carrier and the insured after the occurrence of the injury or damage; no statement made by the insured or on his behalf and no violation of said policy shall defeat or void said policy.
⅜ * * Jj< * *
(8) Any motor vehicle liability policy may provide that the insured shall reimburse the insurance carrier for any payment the insurance carrier would not have been obligated to make under the terms of the policy except for the provisions of KRS 187.290 to 187.620.”

The legislature intended that all those using the highways of this Commonwealth be protected against the financially irresponsible. In accomplishing this aim the legislature has provided for the suspension or revocation of operator’s privileges and motor vehicle registration for those unable to establish financial responsibility after having been involved in an accident or having been proved to be incompetent or careless in their use of the highways.

It has further determined that no motor vehicle shall be, or continue to be, registered in the name of any person required to file proof of financial responsibility unless such motor vehicle is so designated in a certificate to be filed with the Department of Public Safety by an insurance carrier duly authorized to do business in this Commonwealth certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility. KRS 187.470. The insurance companies are permitted to issue two types of policies, an operator’s policy for those not owning a motor vehicle and an owner’s policy for those having legal title to one.

All persons required to furnish proof of ability to respond in damages under the law are included in the statutory classification of “operator” or “owner.” To allow any ambiguity to exist in the meaning of these words under the Kentucky Financial Responsibility Law would defeat its purpose.

The ultimate beneficiary of a policy issued under the Financial Responsibility Law is the general public, not the insured. To achieve the protection of the public intended by the legislature and to efficiently administer the law it is necessary that legal responsibility be fixed with reasonable certainty. This principle has been controlling with the courts of those jurisdictions having statutes similar to those of Kentucky. Cf. Indiana Lumbermen’s Mutual Insurance Company v. Parton, 147 F.Supp. 887 (N.Carolina, 1957); Van Erem v. Dairyland Mutual Insurance Company, 5 N.W.2d 450, 93 N.W.2d 511 (Wisconsin, 1958) ; Annotation, 88 A.L.R.2d 995; Annotation, 83 A.L.R.2d 1104.

Record title or legal title is an indicia sufficient to raise a presumption of true ownership. It was a reasonable basis for the legislature to use in fixing legal responsibility under the law.

Before an automobile can be registered in this Commonwealth a bill of sale, or certificate of title, showing “ownership” or “legal title” in the person in whose name the vehicle is to be registered, must be presented to the County Clerk.

The objective of the Financial Responsibility Law to protect the public against irresponsible persons would be defeated by permitting an insurer under the law to deny coverage on the basis of interests of ownership not of public record. There would be no certainty in fixing legal responsibility and the law would be incapable of administration were an insurer allowed to set up equitable, or other, interests of third parties in a motor vehicle registered in the name of its insured, or to set up any equitable interest of its insured in a vehicle registered in the name of another, in order to defeat the claim of the innocent statutory beneficiary of its policy.

Goad’s operator’s license was revoked. Before a new license could be issued to him it was necessary that proof be furnished of the existence of an “owner’s” policy covering all motor vehicles, if any, registered in his name, or, proof of the existence of an “operator’s” policy issued to him, if there were no motor vehicles registered in his name.

The appellee issued Form SR — 22 to the Department of Public Safety, certifying to the existence of the “operator’s” policy issued by it to Goad. The appellee’s certificate certified that under the law the policy covered any situation in which Goad’s negligent operation of any motor vehicle not registered in his name caused injury to another.

The legislature has determined that as between the insurer and an innocent injured member of the'general public the risk is upon the insurer. This is made evident by the fact that KRS 187.490(8) provides, “(8) Any motor vehicle liability policy may provide that the insured shall reimburse the insurance carrier for any payment the insurance carrier would not have been obligated to make under the terms of the policy except for the provisions of KRS 187.290 to 187.620.”

For the purposes of the Kentucky Financial Responsibility Law the owner of a motor vehicle, having legal title to it, is the person in whose name the vehicle is registered. Therefore KRS 187.490(3) means that an operator’s policy of liability insurance shall insure the person named as insured therein against loss from the liability imposed upon him by law for damages arising out of the use by him of any motor vehicle not registered in his name.

The automobile driven by Goad at the time of the collision in which appellants were injured was not an automobile owned by him under the provisions of the Kentucky Financial Responsibility Law so as to be excluded from insurance coverage under the endorsement to the policy issued to him by the appellee.

The cause is reversed with directions to enter judgment for the plaintiffs.


author: GRISSOM, Chief Justice.

text:
    Fred H. THUMANN, Appellant, v. COOPER LAND COMPANY, Appellee.
    No. 4092.
    Court of Civil Appeals of Texas. Eastland.
    July 29, 1966.
    Rehearing Denied Aug. 26, 1966.
    Jack C. Blakley and Dick R. Clark, Houston, for appellant.
    Bailey & Blum, Houston, for appellee.
   GRISSOM, Chief Justice.

Cooper Land Company sued Fred H. Thumann in trespass to try title. Thumann answered as follows:

“Now comes Defendant, Fred H. Thu-mann, in the above entitled and numbered cause, and for answer to Plaintiff’s Petition, would respectfully show the following :
I.
Defendant is not guilty of the injury complained of in the petition filed by Plaintiff against him.
II.
And for further plea in this behalf, the Defendant says that Plaintiff ought not to have and maintain his action against him, because he says that he, the Defendant, and those whose title he holds, have had peaceable and adverse possession of the lands and tenements claimed in Plaintiff’s Petition, cultivating, using and enjoying the same for more than ten years after Plaintiffs alleged cause of action accrued, and before the commencement of this suit; wherefore he says that, if Plaintiff ever had such right of action, which is not admitted, but denied, the same is barred by the statute of limitation of ten years.
WHEREFORE, premises considered, Defendant prays that Plaintiff take nothing by his suit and that Defendant go hence with his costs without day.”

At the close of plaintiff’s testimony the defendant filed a motion for a directed verdict, contending that the plaintiff had not proved the common source of title alleged. Plaintiff moved for a non-suit before the court ruled on defendant’s said motion. Plaintiff’s motion for a non-suit was granted and a docket entry thereof was made. The defendant contended the court should not grant plaintiff’s motion for a non-suit because his answer, above quoted, constituted a counterclaim for affirmative relief and that he should be allowed to prove his cause of action “in the affirmative before a jury”. The court overruled defendant’s motion and rendered' judgment granting plaintiff leave to take a non-suit and dismissing his case without prejudice. Thumann has appealed.

The defendant’s points are that the court erred in (1) dismissing plaintiff’s case without prejudice, because defendant was thereby denied the right to present his suit for affirmative relief, seeking title to said land; (2) the court erred in refusing to permit defendant to proceed with his cause of action “affirmatively claiming title under the ten year statute of limitation”; (3) the court erred in refusing to grant defendant’s motion for judgment that “plaintiff take nothing” and because (4) plaintiff failed to prove his case and the court erred in refusing to grant defendant’s motion for a directed' verdict, because plaintiff failed to prove the common source of title, or to trace his title to the sovereign. The defendant here summarizes his contentions as follows:

“Appellant contends that in a trespass to try title action where the Defendant answers with a plea of not guilty, and alleges that title vests in the Defendant because of the ten year statute of limitation coupled with a prayer that Plaintiff take nothing by his suit, that such an answer is in fact a plea for affirmative relief, precluding the Plaintiff from taking a non-suit so as to prejudice the right of Defendant to be heard on his claim for affirmative relief.
Appellant does not deny the right of Appellee to take a non-suit as to Ap-pellee, but does deny the authority of the trial court to dismiss the cause as to Appellant and to deny Appellant his right to be heard on his cause of action. Appellant has been denied his day in court.”

The only question presented is whether the plaintiff, under the circumstances shown, had a right to take a non-suit and have the case dismissed without prejudice. Texas Rules of Civil Procedure, rule 164 provides that when a case is tried by the judge, the plaintiff may take a non-suit any time before the decision is announced, but he shall not thereby prejudice the right of an adverse party to be heard on “his claim for affirmative relief”. In this trial to the court, before the judge announced his decision, the plaintiff filed a motion for a non-suit. Therefore, the only thing that could have prevented appellant from taking a non-suit, as a matter of right, would have been for the defendant to have by cross action sought affirmative relief. Smith v. Columbian Carbon Company, 145 Tex. 478, 198 S.W.2d 727; Brooks v. O’Connor, 120 Tex. 121, 39 S.W.2d 22.

The defendant’s answer did not contain allegations of a cross action or seek affirmative relief. Therefore, the court did not err in granting plaintiff’s motion for a non-suit and dismissing his case without prejudice. In Thomason v. Sherrill, 118 Tex. 44, 10 S.W.2d 687, the plaintiff sued in trespass to try title. The defendant alleged that plaintiff was indebted to him and that he had a lien on the land sued for by plaintiff to secure payment of his debt. He prayed that plaintiff take nothing. Our Supreme Court said that, although the defendant alleged defensive matters upon which a cross action could have been based,' his answer was not a cross action and contained no prayer for affirmative relief. A defendant’s prayer that plaintiff take nothing in a trespass to try title suit cannot be construed as a prayer for affirmative relief. In Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427, 428, the Supreme Court of Texas said:

“The defendant must not only pray for affirmative relief, but he must state facts showing that he has a cause of action. If the defendant is doing no more than resisting the plaintiff’s recovery, the statutes recognize the right of the plaintiff, for his own protection, to dismiss the suit.”

In Haley v. Brown, Tex.Civ.App., 70 S.W.2d 348, the court discussed some of the cases cited by the appellant. It held that it was only when a defendant by a counterclaim sought affirmative relief that a plaintiff’s right to a non-suit was lost. To prevent a plaintiff .from taking a non-suit and obtaining dismissal of his case, a defendant must seek some specific recovery that he could not have been awarded under his defensive pleadings and, what is of importance here, the defendant must allege facts showing he has a cause of action. Our Supreme Court so held in Short v. Hepburn, 89 Tex. 622, 35 S.W. 1056.

In this case the defendant’s pleading is defensive only. He alleged that plaintiff’s cause of action was barred by the ten year statute of limitation. He pleaded not guilty. His pleading contained no prayer that he recover the title. He asked only that the plaintiff recover nothing. He sought no affirmative relief. The court did not err in granting plaintiff’s motion and dismissing plaintiff’s case without prejudice. The judgment is affirmed.


author: WILSON, Justice.

text:
    Allene ROBERTS et al., Appellants, v. E. Hastings ACKLEY et al., Appellees.
    No. 4490.
    Court of Civil Appeals of Texas. Waco.
    Aug. 4, 1966.
    Rehearing Denied Aug. 25, 1966.
    Warwick H. Jenkins, Richard J. Jones, Waxahachie, for appellants.
    Strasburger, Price, Kelton, Miller & Martin, A. D. Bynum, Dallas, for appellees.
   OPINION

WILSON, Justice.

Defendant’s plea of privilege in this automobile personal injury action was sustained. Plaintiffs’ chief contention is that the defendants, landlord and tenant, were engaged in a joint enterprise so that the alleged negligence of the driver of a tractor which collided with plaintiffs is imputed to the non-resident defendant.

The non-resident defendant was the owner of farm land; the resident defendant worked the land, and had done so for thirty years. Their oral share-crop agreement was that the tenant would perform all work and the landlord would receive one-third of the grain and one-fourth of the cotton produced on the land as rent. The driver of the tractor which collided with plaintiffs’ car was employed and paid by the tenant. At the time of the accident he was hauling the tenant’s feed to the tenant’s house to feed the tenant’s cows, driving the tenant’s tractor, according to the only evidence in the record. There is nothing of probative force to indicate the relationship was other than that of the typical “third and fourth” share-crop arrangement.

This relationship is not one of joint enterprise or partnership, Ogus, Babinovich & Ogus Co. v. Foley Bros. Dry Goods Co., Tex.Com.App., 252 S.W. 1048, 1051 ; Fink v. Brown, Tex.Com.App., 215 S.W. 846; Johnson v. Murray Co., Tex.Civ.App., 90 S.W.2d 920; 923, writ dism.; Texas Produce Exchange v. Sorrell, Tex.Civ.App., 168 S.W. 74, 76, and cases cited, so as to make the negligence of the tractor driver imputable to the land owner. There is also nothing to show the parties agreed to share losses. See Brown v. Cole, 164 Tex. 624, 291 S.W.2d 704, syl. 9, 59 A.L.R.2d 1011.

In our opinion the trial court correctly sustained the plea of privilege of the nonresident defendant. Appellants’ points are overruled. Affirmed.


author: McDONALD, Chief Justice.

text:
    INDUSTRIAL OXYGEN COMPANY, Inc., et al., Appellants, v. Seth E. CAMPBELL, Individually and as Next Friend of Anita Ann Campbell, Appellee.
    No. 4477.
    Court of Civil Appeals of Texas. Waco.
    July 28, 1966.
    Rehearing Denied Aug. 25, 1966.

      Dan E. Mayfield, Jr., Waco, for appellants.
    Bradley & Geren, Carl Cannon, James L. Bradley, Groesbeck, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant from a judgment for plaintiff in a collision case.

Plaintiff Campbell, individually and as next friend of his minor daughter, Anita Ann, sued defendant for damages for personal injuries to his daughter and property damages to his car, sustained when his car driven by his daughter collided with the rear of defendants’ parked truck in downtown Mexia on the night of August 17, 1964.

Trial was to a jury which found defendants guilty of negligence in having reflectors on the rear of the truck which wére not visible, and that such was a proximate cause of the collision. The jury acquitted Anita Ann Campbell of several acts of. contributory negligence, including failure to keep a proper lookout; and fixed plaintiff’s damages at $5962 ($850 damage to car; $694.30 hospital and medical expense; and $4417 personal injuries to Anita).

The trial court entered judgment for plaintiff on the verdict. Defendants appeal, contending:

1) The trial court erred in submitting Issue 6 for the reason such issue is multifarious, duplicitous, a comment on the weight of the evidence, and assumes a controverted factual issue.
2) Anita Ann Campbell failed to keep a proper lookout as a matter of law.

Defendants’ first contention complains of the form of submission of Issue 6:

“Do you find from a preponderance of the evidence, if any, that at the time and on the occasion in question the defendants’ reflectors on the rear of their truck-tractor-trailer had mud or dirty water on same so that the reflectors were not visible? Answer ‘Yes’ or ‘No.’ “ANSWER: Yes.”

(Issues 7 and 8 found such was negligence and a proximate cause of the collision).

Defendants - assert that such issue inquires as to whether there was mud, or dirty water on the reflectors on defendants’ truck, and whether such were there to such a degree as to cause the reflectors to inadequately reflect; and that such is duplicitous and multifarious.

Miss Campbell was driving south on Sherman Street in downtown Mexia about 10:00 o’clock at night; she turned left onto Carthage Street; it was dark; defendants’ truck-tractor-trailer was parked out from the south curb of Carthage Street about 30 feet from the intersection; Miss Campbell hit the back of the truck as soon as she turned the corner; her lights were on. Miss Campbell testified that if the truck had reflectors on it they were not visible; that if it had reflectors they were covered with mud; that there were, no reflectors on the rear of the trailer maintained so as to be visible at night; and that she did not see the truck “because there were no lights reflecting in order for me to know there was an object there.” Inspection of the truck shortly after the collision by other witnesses revealed the reflectors were covered with mud or dirty water. It had been raining earlier.

An issue is not to be condemned as multifarious or duplicitous merely because it groups more than one fact element therein, so long as it involves only one ultimate or controlling issue. Howell v. Howell, 147 Tex. 14, 210 S.W.2d 978; Cloer Gen. Contractor, Inc. v. Brown, CCA, (nwh), 331 S.W.2d 426; Rodman Supply Co. v. Parker, CCA (nwh) 363 S.W.2d 838; Gray County Gas Co. v. Oldham, CCA (nwh), 238 S.W.2d 596; Jones v. Scott, CCA (nre), 266 S.W.2d 534.

We think Issue 6 submits only one ultimate issue, and that is if the reflectors were not visible.

In any event, under the record, the form of submission of Issue 6 does not constitute reversible error. Rule 434 Texas Rules of Civil Procedure.

Defendants’ second contention is that under the record, Anita Ann Campbell failed to keep a proper lookout as a matter of law. Contributory negligence and proper lookout are ordinarily jury questions. Texas & P. Ry. v. Day, 145 Tex. 277, 197 S.W.2d 332; Irvin v. Ralston, CCA (nwh) 379 S.W.2d 111; Langford v. Pearson, CCA (nre), 334 S.W.2d 473; Hipfner v. Anderson, CCA, (nre) 258 S.W.2d 357.

Under the record we cannot say there was no evidence from which the jury could properly conclude that Miss Campbell did not fail to keep a proper lookout.

Defendants’ points and contentions are overruled.

Affirmed.


author: COLLINGS, Justice.

text:
    Louie A. FALSETTI, Successor Administrator, Appellant, v. Stella Marie LOWMAN et al., Appellees.
    No. 4093.
    Court of Civil Appeals of Texas. Eastland.
    July 29, 1966.
    Rehearing Denied Aug. 26, 1966.

      Andress, Woodgate, Richards & Condos, Dallas, for appellant.
    Erwin, Wagner & Hodson, Bryan, Suhr & Bering, Houston, Barber & Seale, Jasper, Sneed & Vine, Austin, for appellees.
   COLLINGS, Justice.

This is a bill of review brought in the District Court of Brazoria County by Louie A. Falsetti, successor administrator with the will annexed of the estate of B. F. Guido, deceased, against Stella Marie Low-man and her husband, Lawrence Gilbert Lowman, John Frank, individually and as trustee, and numerous other members of a class, joined as defendants. Plaintiff sought to set aside a final judgment entered in the same court on October 18, 1960, enforcing a constructive trust against the estate of B. F. Guido, deceased, his surviving spouse (now Mrs. Falsetti) and the beneficiaries under the decedent’s duly probated last will and testament. Both plaintiff and defendants filed motions for summary judgment. The plaintiff’s motion was denied and that of the defendants was granted. Louie A. Falsetti has appealed.

Appellant urges two points in which it is contended that the court erred (1) in granting the Lowmans’ motion for summary judgment and (2) in denying appellant’s motion for summary judgment. Appellant states that under the undisputed facts he was entitled to relief under the bill of review and to judgment as a matter of law because: (a) appellant administrator is without fault regarding the judgment attacked, (b) the judgment attacked violated Article 1982 of the Vernon’s Ann. Texas Civil Statutes and is invalid as to all parties, and (c) the claim of the appellees Lowman to enforce the constructive will fails because there was no such will.

This is the third suit between the parties concerning the subject matter involved. Knowledge of the background facts and relationship between the parties is essential to an understanding of the questions presented. The record shows that appellee Stella .Marie Lowman is the daughter and sole heir of Dora Frank Guido, deceased, and appellee Lawrence Gilbert Lowman is her husband; that Dora Frank Guido and B. F. Guido were husband and wife from July 31, 1931, until her death in 1949. The property involved herein was owned by Dora Frank Guido as her separate property. She died testate survived by her husband, B. F. Guido, and her only child and sole heir, appellee Stella Marie Lowman. Her last will executed in 1942 devised the residue of her estate to her husband, B. F. Guido, but if he predeceased her, it devised her entire estate in trust with directions that the income be paid to her daughter Stella Marie Lowman for her life and thereafter, under certain circumstances, to her daughter’s husband for life with one-half in remainder to her collateral heirs and one-half in remainder to the collateral heirs of B. F. Guido. The will among other things provided as follows:

“This WILL is made in consideration of the making on this same day, by my husband, B. F. Guido, of a will with the same terms and provisions, and it is our intention to create a TRUST ESTATE as herein provided for the benefit of Mrs. Stella Marie Lowman and her husband, after her death, and for the distribution of the Trust Estate after termination of the Trust in the manner and terms herein set forth.”

After the death of Dora Frank Guido her surviving husband, B. F. Guido, offered her will for probate. He qualified as representative thereof, took possession of and appropriated the entire estate to his benefit until his death. In April of 1951, B. F. Guido married Doris C. M. Guido (now Doris C. M. Falsetti, wife of appellant). In 1957 B. F. Guido died testate leaving a subsequent will executed by him bearing date of July 3, 1951. This will devised 49% of the estate of B. F. Guido to his surviving widow (now Mrs. Falsetti), 49% to Stella Marie Lowman and 2% to designated churches. The will was admitted to probate and Doris C. M. Falsetti was appointed -and qualified as foreign and ancillary representative of his estate.

On September 8, 1958, the first suit was filed in the District Court of Brazoria County. On or about February 4, 1960, upon the motion of Stella Marie Lowman, Doris C. M. Guido was removed as ancillary administratrix by order of the County Court. No successor administrator was appointed until June 6, 1961. At a hearing in the District Court on September 16, 1960, on the motion of the Lowmans, Mrs. Guido was dismissed in her representative capacity. Mrs. Guido remained a party to the suit individually and as devisee. There was ample evidence to the effect that Mrs. Guido’s dismissal as administratrix was the result of misconduct on her part. On' October 18, 1960, the court rendered a final judgment disposing of all parties, subject matters and issues therein. The judgment decreed and established mutual and reciprocal wills or contracts therefor of Dora Frank Guido and B. F. Guido, both deceased, and as against the subsequent will of B. F. Guido, impressed a trust upon the property in favor of appellees, and denied any relief to any of the parties not specifically granted. No motion for new trial or appeal or writ of error was ever perfected therefrom. Such judgment is the one that appellant now seeks to review by this bill of review.

After the entry of the above mentioned judgment appellant and Doris C. M. Guido were married. After the judgment had become final appellant was on June 6, 1961 appointed successor administrator of the estate of B. F. Guido, deceased, for the limited purpose of attacking such judgment. Appellant thereupon filed suit in the Federal court, hereinafter designated as the second suit, wherein he and his wife collaterally attacked the final judgment in the first suit. The Federal District Court held that the State court judgment of October 18, 1960, was void on its face because the estate was not a party to the judgment as required by Article 1982, V.A.T.C.S. On appeal the United States Court of Appeals for the Fifth Circuit reversed the lower Federal Court, holding that the judgment of October 18,1960, was not void on its face and thereby subject to collateral attack. Lowman v. Falsetti, 5 Cir., 335 F.2d 632. The Supreme Court denied certiorari. Falsetti et al. v. Lowman, 379 U.S. 966, 85 S.Ct. 659, 13 L.Ed.2d 560.

The present bill of review was then filed by appellants. The general rules in regard to granting a bill of review are that before a litigant can successfully set aside a final judgment he must timely allege and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by fraud, accident or wrongful act by the opposite party, (3) unmixed with any fraud or negligence on his part. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996; Hanks v. Rosser, Tex., 378 S.W.2d 31.

A person who seeks to set aside a judgment by a Bill of Review must comply strictly with the rules providing for such relief. In Smith v. Ferrell, Tex.Com.App., 44 S.W.2d 962, it was held that it was not enough that the petitioner for such relief plead and prove a meritorious defense but that he must go further and show that he was diligent and free from negligence. We overrule points contending that it is established that appellant and the prior adminis-tratrix, Mrs. Guido (now Falsetti) are without fault regarding the judgment attacked. Appellant contends that since the estate can act only through its authorized representative the estate and the successor administrator, Louie A. Falsetti, could not have been at fault for the judgment of October 18, 1960, at which time administration of the estate was open and pending but when no successor administrator had been appointed; that, although, Mrs. Doris C. M. Guido (Falsetti) was the estate’s representative her authority to represent the estate in Texas ended with her removal as Texas administratrix on February 4, 1960, prior to the judgment on October 18, 1960.

Appellant’s position is not well taken. The record shows that Mrs. Falsetti (then Guido) was a party to the suit individually and as a devisee; that she had full knowledge of the judgment and of her prior dismissal from the suit in her representative capacity. The remedy of Mrs. Guido (now Falsetti) was to appeal. There was no appeal. There is no showing that appellees were in any way responsible for Mrs. Guido’s failure to appeal, nor is there any showing of any reason or excuse for such failure to appeal. Appellant, the successor administrator stands in the same position as his wife the former representative of the estate. It is held that “an equitable Bill of Review may not be substituted for an appeal.” Moncus v. Grace Oil Company, Tex.Civ.App., 284 S.W.2d 375, (1955, no writ history), and cases cited therein. To be entitled to a Bill of Review a litigant must show that he has exhausted all adequate legal remedies. Moore v. Mathis, Tex.Civ.App., 369 S.W.2d 450, CCA 1963, ref. n. r. e.

Appellant contends that the question of whether the failure of the other defendants, particularly Mrs. Guido (now Falsetti), to seek a new trial or to appeal therefrom precludes the present successor administrator from obtaining relief by bill of review depends upon whether the judgment in question was joint or several; that if several and divisible the other defendants are bound by the former judgment and the mere invalidity as to the estate would not aid the other parties or warrant the present bill of review. Appellant urges, however, that said judgment against the estate and beneficiary under the last will of B. F. Guido, deceased, was joint and not several. Appellant relies upon Article 1982, V.A.T.C.S. which provides as follows:

“In every suit against the estate of a decedent involving the title to real estate, the executor or administrator, if any, and the heirs shall be made parties * *

Appellant cites several cases in support of his contention that since the suit sought to impose a trust against the estate because of an alleged contractual will that an administrator of the estate was a necessary party and that, although the beneficiaries were represented, the judgment in the absence of an administrator representing the estate was void.

We overrule appellant’s contention that the judgment is void. That question has already been decided against appellant in a prior suit. In June of 1961, appellant brought suit in the Federal District Court, Northern District of Texas, Dallas Division, seeking to have the judgment in the first suit declared void and to permanently enjoin the enforcement of the judgment alleging that no representative of the estate of B. F. Guido was before the court in the first suit, that the repersentative of the estate had been dismissed as a party to the suit prior to the time of judgment, and that the estate was not duly, properly or adequately represented in such suit. The Federal District Court rendered judgment in favor of appellant, holding in effect that there was not a representative of the estate of B. F. Guido, deceased, before the court at the time judgment was rendered in the first suit and that such judgment was, therefore, wholly void. On appeal to the United States Court of Appeals for the Fifth Circuit the Federal District Court case was reversed and the cause was remanded with instructions to enter judgment in favor of appellees, Stella Marie Lowman et al. The Supreme Court of the United States denied certiorari in this second suit on January 18, 1965. On February 2, 1965, the Circuit Court of Appeals issued its mandate instructing the Federal District Court to enter judgment in favor of appellees. Thereafter, on April 1, 1965, the Federal District Court, pursuant to such mandate, entered judgment for appellees and against appellant, expressly holding the judgment in the State Court to be final and valid and by reference incorporated the orders and provisions of the State court judgment as the orders and judgment of the Federal District Court. The judgment of the District Court is binding on the parties, including appellant. It is res judicata of all issues involved, particularly the question of whether the judgment in the State court is void. 34 Tex.Jur.2d, § 372, Pages 390-391, and cases cited. Mayfield Co. v. Rushing, 133 Tex. 120, 127 S.W.2d 185, 124 A.L.R. 1210; Eastern States Petroleum Co., Inc. v. Gilliland Ref. Co., Tex.Civ.App., 151 S.W.2d 933, writ dism., judgm. cor.; Hollums v. Hicks, Tex.Civ.App., 179 S.W.2d 824, writ ref., w. o. m.; Hayward v. City of Corpus Christi, Tex.Civ.App., 195 S.W.2d 995, writ ref. n. r. e.; Harris v. Elm Oil Co., Tex.Civ.App., 183 S.W.2d 216, writ ref., w. o. m.

Appellant further asserts in his bill of review and urges as a meritorious defense that the evidence shows the absence of a contractual will. This issue was also litigated on the merits in the Federal District Court and decided against appellant. The determination of that issue by the Federal District Court is also binding on appellant and is res judicata.

Appellant’s points are overruled. The judgment is affirmed.


author: COLEMAN, Justice.

text:
    HOUSTON BANK & TRUST COMPANY, Guardian, et al., Appellants, v. Francis M. AUGUSTE et al., Appellees.
    No. 14828.
    Court of Civil Appeals of Texas. Houston.
    June 23, 1966.
    Rehearing Denied Sept. 8, 1966.

      Fred W. Moore, Houston, for contestant and appellant Houston Bank & Trust Co., Guardian of estate of Pinkie Taylor, NCM.
    Percy Foreman, William W. Kilgarlin, guardian ad litem, Levert J. Able, Miller B. Walker, Jr., Houston, for appellees.
    W. Ervin James and Lew W. Harpold, Houston, and Hofheinz & James, Houston, of counsel, for appellants Nettie Taylor Williams, a feme sole, and Mollie Taylor Stevenson and husband.
    William W. Kilgarlin, Houston, guardian ad litem for minor petitioners, Susan Au-guste, Burt Auguste and Bieryl Williams.
   COLEMAN, Justice.

This appeal grew out of an application to probate an instrument alleged to be the will of Burt F. Taylor, Deceased, filed in the Probate Court of Harris County, Texas. Pleadings were filed by collateral relatives resisting the application to probate. The proponents of the will then filed an instrument challenging the right of the Bank, and the other parties resisting probate, to participate in the trial of the matter by filing pleadings or otherwise, alleging that none of them were “interested parties,” as that term is defined in the Probate Code, V.A.T.S., and requesting that they be required to prove their interest in a preliminary hearing. It was specifically alleged that one of the proponents, Francis M. Auguste, was the adopted son of the decedent by reason of estoppel; that in absence of a valid will he would inherit all of the decedent’s property; and that as collateral kindred those proposing to resist the probate of the will had no interest in the estate and no right under the Probate Code to resist the probate of the will.

Because several parties are represented by counsel in this matter and the pleadings are prolific, we mention only representative pleadings such as may be necessary for an understanding of the questions presented.

The Bank filed a plea to the jurisdiction of the Probate Court on the ground that the court lacked jurisdiction to determine the question of adoption.

The Probate Court heard all the contentions on the same day, sustaining the plea to the jurisdiction, and denying the application for probate of the will. Separate orders were entered. Notices of appeal to the District Court of Harris County were given, and appeal bonds posted, both from the judgment and the order.

The proceedings were forwarded to the 11th District Court of Harris County, Texas, and were given one number and docketed as a single case. Amended pleadings were filed by various parties and the Bank filed a motion to dismiss the appeal from the order of the Probate Court sustaining the plea to its jurisdiction. This motion was granted by the District Court. A motion to reconsider was promptly filed and, after a hearing, the amended order was entered from which this appeal was taken.

At the hearing preliminary to the order in question, the trial court considered several matters, including the motion to reconsider its previous order of dismissal, a motion for judgment on the pleadings, a motion in limine filed by proponents requesting a separate trial to determine whether contestants have an interest in the estate, and a motion to strike this pleading. The court then held that the order of the Probate Court sustaining the plea to its jurisdiction was an ancillary order and not appealable to the District Court apart from the appeal of the judgment denying the application to probate and dismissed the purported appeal without prejudice to the right of proponents to introduce evidence on the question of adoption in connection with the motion in limine and plea in abatement questioning contestants’ standing to appear in opposition to the application for probate of the will for the reason that contestants lacked the requisite interest in the estate of Burt F. Taylor, Deceased. The order required a preliminary trial on this issue before a jury and dealt with other issues not pertinent to this appeal.

We are presently concerned only with proponents’ motion to dismiss this appeal for the assigned reason that it is an appeal from an interlocutory order.

The matter of adoption first entered the case in Francis M. Auguste’s amended application to probate the will. The petitioner alleged in general terms that he was the only heir of decedent in that he had been adopted by agreement and reared, educated, treated and recognized by deceased as a son and that no children were born to or adopted by deceased after the execution of the will. There was no prayer that he be adjudged the adopted son of the testator, and, as the case then stood, no necessity for adjudication on that issue. This amended application evidently was filed in response to the contest previously filed by Nettie Taylor Williams and Mollie T. Stevenson alleging that they, and certain other named relatives of the testator, but for the purported will, would be entitled to a portion of testator’s estate.

The allegations concerning adoption found in the amended application constituted the facts relied on by petitioner as the basis for the motion to dismiss the contest filed by him on the same date. Evidently it was the theory of petitioner that since contestants had alleged facts showing a prima facie interest in the estate, it was his burden to allege matters in rebuttal if he desired to introduce proof of such matters on the hearing to establish contestants’ justiciable interest in the controversy. While the inclusion of the allegation concerning adoption might be considered unnecessary in the application to probate, the relationship of petitioner to deceased is an issue which could be decisive on the question of the capacity of contestants to oppose the application to probate. It is unnecessary to determine on this appeal whether evidence of equitable estoppel could be considered at the preliminary hearing ordered by the District Court and we express no opinion on that question.

In Fischer v. Williams, 1960, 160 Tex. 342, 331 S.W.2d 210, the Court said:

“Under Section 28 of the Probate Code, formerly Article 3698, Revised Civil Statutes of Texas, in order to authorize an appeal in a probate matter, it must be an appeal from a decision, order, decree, or judgment which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding was brought. See Halbert v. Alford, 82 Tex. 297, 17 S.W. 595. We interpret Section 28, supra, to mean that it has application only to such decisions, orders, or judgments as at the end of a term would be held to have conclusively adjudicated some controverted question or right, unless set aside by some proper appellate or revisory procedure. See Lehman v. Gajewsky, 75 Tex. 566, 12 S.W. 1122. If the motion to dismiss the contest on the ground that contestants had failed to show an interest in the estate had been sustained, the order would have finally disposed of the controverted question involved, and would have been appealable. Since the order overruling respondents’ motion to dismiss failed to finally dispose of the controverted issue, it, therefore, amounts to no more than an interlocutory order, inconclusive in its nature, made in the progress of the trial, and, therefore, not appeal-able. See Thomas v. Hawpe, 25 Tex.Civ.App. 534, [535] 62 S.W. 785, wr. ref. The trial procedure, as outlined in the case of Kelley v. Barnhill, supra, may be appropriately followed in the instant case.”

The judgment of the Probate Court, denying the application to probate the will, entered January 15, 1965, after reciting the appearances and announcements of ready “for the trial of the contest of the alleged will of Burt F. Taylor” on the 5th day of January, 1965, reads:

“This court having taken said plea to the jurisdiction with the case, and having duly considered same in connection with the pleadings, evidence and argument of counsel, has concluded that said plea to the jurisdiction should be granted.

“It is therefore ORDERED that said plea to the jurisdiction filed in connection with the supplemental petition and answer of Houston Bank & Trust Company, Guardian and contestant, objecting to this court hearing the evidence and issues pertaining to said alleged adoption in this proceeding, be and the same is hereby sustained and such claim of adoption as far as this proceeding is concerned is hereby dismissed without prejudice to the right of said Francis Auguste to assert such claim of adoption in the proper court and in the proper manner; this court has no jurisdiction of same in this proceeding and same shall not therefore be considered by this court in this action in connection with the contest of said alleged will filed herein for probate to which action of the court the said Francis Auguste excepted.

“SIGNED this 25th day of January, 1965.”

At the time this order was signed the entire proceeding, of which it was a part, had been disposed of by a judgment from which an appeal was subsequently perfected. It would seem that this appeal would carry the entire proceeding to the District Court.

In any event, the order in question did not dispose of the issue or controverted question for which that particular part of the proceeding was brought. It was a ruling incident to the question of whether contestants had such an interest in the estate as to authorize them to appear in opposition to the application for probate. The effect of the order was to deny proponents the right to offer evidence which they contend would show that contestants have no pecuniary interest in the estate even though the will should be denied probate.

The order from which this appeal was taken is an interlocutory order, inconclusive in its nature, made in the progress of the trial, and is, therefore, not appealable. Fischer v. Williams, supra; Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385.

The appeal is dismissed.