author: BARROW, Justice.

text:
    F. W. WOOLWORTH COMPANY, Appellant, v. Tomas GARZA, Individually and as Next Friend of Maria Albeza Garza, a Minor, Appellee.
    No. 14367.
    Court of Civil Appeals of Texas. San Antonio.
    March 24, 1965.
    Rehearing Denied May 12, 1965.
    Ewers, Toothaker, Ewers, Byfield & Abbott, McAllen, for appellant.
    Philip A. Kazen, John Noyola, Laredo, for appellee.
   BARROW, Justice.

This is a products liability case. Judgment was rendered upon a jury verdict whereby appellee, Maria Albeza Garza, a minor, recovered the sum of $1,325.00 and her father, Tomas Garza, recovered-medical expenses in the sum of $143.80, for damages allegedly sustained as a result of the minor plaintiff’s eating a hamburger which was unfit for human consumption when served at appellant’s lunch counter in Laredo, Texas.

It is well-settled law in Texas that parties who sell food or drink intended for human consumption may be held liable, upon an implied warranty, for damages caused to a person who eats or drinks the same, if such food or drink is unfit for human consumption. Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479; Campbell Soup Co. v. Ryan, Tex.Civ.App., 328 S.W.2d 821; no wr.hist.; Sweeney v. Cain, Tex.Civ.App., 243 S.W.2d 874, no wr. hist.

Appellant urges that there is no evidence, or, in the alternative, insufficient evidence, to support the jury’s finding that the hamburger eaten by Maria Garza was unfit for human consumption. Under these points, appellant asserts that the only evidence in support of this finding is that Miss Maria Garza became violently ill shortly after eating a hamburger and drinking a soda at appellant’s lunch counter.

In determining the “no evidence” point we are required to view the record in the light most favorably in support of the jury verdict, to disregard all evidence adverse to the findings of the jury, and consider only the evidence favorable to such findings, indulging every legitimate conclusion which tends to uphold the same. On the other hand, appellant’s alternative point requires this Court to consider all the evidence in the record, including that which is contrary to the verdict. Fisher Const. Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126; Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas Law Review 361.

An examination of the record in the light required under the “no evidence” test, shows evidence in addition to the undisputed fact that shortly after eating at appellant’s lunch counter Maria sustained a severe anaphy-lactic reaction which was defined by Dr. Morales as a very acute allergic reaction.

On March 9, 1963, Maria, who was fifteen years old, went from her home in San Ygnacio, Texas, with a friend, Lilia Garcia, and her friend’s mother, Mrs. Alicia Garcia, to Laredo, Mexico, where Mrs. Garcia had a tooth pulled. This took nearly three hours, and during that time the two girls waited in the car, with the exception of one look in the dentist’s office. After Mrs. Garcia’s tooth was pulled, they went to Laredo, Texas, and parked the car about six blocks from appellant’s department store. Mrs. Garcia remained in the car while the two girls went to appellant’s store to eat lunch. They sat at the lunch counter and each ate a hamburger and drank a soda. On their return walk to the car, Maria started to feel very sick in her stomach and broke out in a rash. Her condition was such that on reaching the car Mrs. Garcia took her immediately to Dr. Morales’ office.

Dr. Morales testified that when Maria arrived she fainted, her face and body were swollen and had red spots over them. She had no pulse, no blood pressure and was turning blue. He gave her a shot of adrenalin, as he believed she was dying. She was subsequently transferred to a hospital and stayed there three days. Dr. Morales testified that food poisoning can cause an allergic reaction such as suffered by Maria, and that a severe reaction like she had would come soon after eating. He testified on redirect examination as follows:

“Q But from a medical certainty and in your opinion as a doctor it (this allergic reaction) was caused by harmful bacteria in the hamburger, that was your opinion at the time?
“A In my opinion after gathering all the data that I possibly could, it was food poisoning but that does not mean it was 100% sure.
“Q We are not asking for that, I don’t think anybody is entitled to that kind of an opinion. All that we are entitled to is a reasonable certainty from a medical standpoint and your opinion as a doctor, and that is your reasonable opinion as a doctor, that it was food poisoning.
“A Yes.”

There was testimony from Maria and her parents, that although she had eaten hamburgers before and did so again after this incident, she had never had a reaction from same, and in fact they denied any prior illness. All she had eaten that day, prior to this incident, was a piece of white bread for breakfast about 6:30 A.M.

It is our opinion that this is evidence, more than a scintilla, that the hamburger eaten by Maria was unfit for human consumption at the time it was sold to her by appellant. Appellant’s first point is overruled.

Appellant’s second point presents considerably more difficulty. Under the undisputed evidence, Maria had a severe allergic reaction. The question presented is whether there is sufficient evidence that it was caused by an unwholesome hamburger. Dr. Morales testified that there are many causes of an allergic reaction other than food poisoning. He admitted that a food product could cause an allergic reaction although it was wholesome and did not have any harmful bacteria in it. Further, that Maria did not have some of the usual symptoms of food poisoning, such as nausea and diarrhea. He testified it usually takes from three to four hours for the bacteria to result in food poisoning.

In the final analysis, his diagnosis was based on Maria’s history of having taken no drugs and having eaten only the hamburger since the slice of white bread for breakfast. Although this was a typical novocain reaction, Dr. Morales testified that it was very unlikely Maria could have breathed enough from being in the car with Mrs. Garcia.

There is no evidence that the meat in the hamburger was contaminated or unwholesome, and, to the contrary, an analysis by the State Health Department of a sample of meat used by appellant that day showed: “No significant organisms isolated.” Cf. Decker & Sons v. Capps, supra; Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424. There is no evidence of any foreign or deleterious substance in the hamburger. Cf. Sweeney v. Cain, supra. The hamburger had no unusual odor, taste or appearance. Cf. China Doll Restaurant, Inc. v. MacDonald, D.C.Mun.App., 180 A.2d 503; Johnson v. Kanavos, 296 Mass. 373, 6 N.E.2d 434. There were no laboratory tests made of Maria’s vomit. The nature of her illness was not such that it could be traced to any particular cause or to a particular type of food. Cf. Nelson v. West Coast Dairy Co., 5 Wash.2d 284, 105 P.2d 76, 130 A.L.R. 606; Hamilton v. Madison Water Co., 116 Me. 157, 100 A. 659. Although appellant sold from five to six hundred hamburgers and many sandwiches on this date, no other illness was reported to appellant or the Laredo health authorities. In fact, the young lady with Marie also ate a hamburger and had no ill effects whatsoever. Cf. Turner v. Wilson, 227 S.C. 95, 86 S.E.2d 867; Johnson v. Kanavos, supra; Barfield v. F. W. Woolworth Co., 329 Mass. 641, 110 N.E.2d 103.

It is our opinion that the Texas rule of implied warranty does not justify a recovery on the part of a user who shows only that an injury followed the consumption of the food. See Keeton, Products Liability, 41 Tex. Law Review 855. In discussing allergic reactions, Dean Keeton said: “Proof merely of an injurious reaction without evidence as to ingredients and as to allergies some people have to an ingredient may well be regarded as insufficient evidence of a defect. It merely shows a sensitivity of the plaintiff on the particular occasion and perhaps not even this because something else could well have brought about the reaction.” It is there said that cases involving an allergy or hypersensitivity on the part of a particular plaintiff with respect to' food and drink are not available, however, three cosmetic cases are cited as illustrative of the quoted rule. See Bennett v. Pilot Products Co., 120 Utah 474, 235 P.2d 525, 26 A.L.R.2d 958; Ray v. J. C. Penney Co., 10th Cir.Ct., 274 F.2d 519; Crotty v. Shartenberg’s-New Haven, Inc., 147 Conn. 460, 162 A.2d 513.

It is seen that the predicate for Dr. Morales’ opinion and the jury’s finding that the hamburger was unfit is based entirely upon the fact that Maria sustained an allergic reaction. There is nothing independent of this result which in any way suggests that the hamburger or any of its ingredients were unwholesome. The jury was required to speculate or surmise that the food poisoning caused the allergic reaction and that the hamburger caused the food poisoning. It cannot be said that the finding of the jury is established by circumstantial evidence. Big Three Welding Equipment Co. v. Reeh, Tex.Civ.App., 301 S.W.2d 504, no wr.hist.

It is our opinion, from an examination of the entire record, that the evidence is not factually sufficient to support the jury’s finding that the hamburger was unfit for human consumption at the time it was served to Maria. The judgment is reversed and the cause remanded.

On Appellees’ Motion for Rehearing.

Appellees urge, by motion for rehearing, that we erred in construing appellant’s second point as invoking our fact finding jurisdiction. Appellant’s second point is as follows: “There is insufficient evidence that the hamburger eaten by Maria Albeza Garza was unfit for human consumption, by reason of which the trial court erred in refusing to grant defendant’s motion for instructed verdict and motion for judgment non obstante veredicto. Sickness alone is insufficient evidence that the hamburger was contaminated.” Appellant’s only other point is identical except that the first four words are: “There is no evidence.”

It is our opinion, upon reconsideration of appellant’s brief, that both of appellant’s points are “no evidence” points and we, therefore, have no jurisdiction to remand this case. In McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545, 548 (1964), the Supreme Court considered very similar points and held that they did not seek relief from the jury findings on the ground that they were not supported by sufficient evidence or that they were against the great weight of the evidence, but related only to the type of judgment that the trial court entered. In that case, as in ours, a motion for new trial was filed. See also Schafer v. Stevens, Tex.Civ.App., 352 S.W.2d 471, no wr.hist.; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. Law Review 361.

Appellant apparently recognized that both of its points were “no evidence” points, in that its brief states: “Appellant has couched the point of error in this case in terms of ‘no evidence, or in the alternative, insufficient evidence’ because of the fact that in a case of this type there is a line of distinction which is not readily apparent. Although the courts speak in terms of insufficient evidence to warrant submission of the issue to the jury, it appears that such language might be equivalent to a statement that there is no evidence that the food was unwholesome or unfit for human consumption. In either event, however, whether the Court considers it a no evidence case or an insufficient evidence case, the result is the same.” Appellant prayed only that the judgment be rendered for it.

Our judgment reversing and remanding this case is therefore set aside and the judgment of the trial court is affirmed.

      . The jury returned a verdict substantially as follows:
      No. 1. The hamburger which Maria Albeza Garza ate was unfit for human consumption at the time it was served to her.
      No. 2. The hamburger eaten by her was the proximate cause of the siekness which she suffered on March 9, 1963.
      No. 3. Her sickness was not the result of an allergy.
      No. 4. She sustained damages of $1,-325.00.

      . “ ‘The Court erred in overruling defendant’s motions for instructed verdict and judgment n. o. v. and in entering judgment on the jury’s verdict because there was insufficient evidence that the damage to plaintiff’s beach house was covered by the policy sued upon in that there was insufficient-evidence that the damage was caused by the wind and insufficient evidence that it was not caused by water or the concurring action of wind with rising water and wind driven water’.”


source: Caselaw Access Project

author: NORTHCUTT, Justice.

license: Public Domain

text:
    Dena L. MYRICK et al., Appellants, v. PIONEER NATURAL GAS COMPANY, Appellee.
    No. 7459.
    Court of Civil Appeals of Texas. Amarillo.
    April 19, 1965.
    Stovall & Stovall, Plainview, for appellants.
    Gibson; Ochsner, Harlan, Kinney & Morris, Amarillo, for appellee.
   NORTHCUTT, Justice.

This case is based upon common law negligence. On the night in question Henry Myrick, in attempting to turn from a dead-end street, backed into and against a gas meter maintained by appellee. As a result thereof, the gas from the meter escaped, caught fire and exploded. Henry Myrick was fatally burned and died a few days later. The surviving widow, Dena Myrick, joined by the surviving children brought this suit against appellee in the District Court of Floyd County. In a jury trial, the jury found that the ap-pellee was not guilty of any negligence and that the deceased, Henry Myrick, was con-tributorily negligent and that such negligence was a proximate cause of the damage. Judgment was entered for the ap-pellee denying the appellants any recovery. From that judgment appellants perfected this appeal.

For convenience, the plaintiffs will hereafter be referred to as appellants and the defendant as appellee. It was appellants’ contention that appellee was guilty of negligence in locating its gas meter where it did as to create a dangerous hazard to the people using the driveway of Mrs. King and also using Menefee Street; in failing to place a guard around the meter; in failing to install and maintain the meter and pipes carrying gas thereto in a manner that would prevent a vehicle hitting the meter with sufficient force to cause the gas to escape therefrom; in failing to place visible warning devices upon said meter; in failing to relocate said meter; in locating the meter in a manner hazardous to the general public and in failing to provide a light or luminous markings to make visible to persons traveling the street and driveway so they could avoid contact with the same.

The case was submitted to the jury upon eleven special issues. The jury found the gas meter was not so located with reference to the roadway and driveway around the King property as to create a dangerous condition to vehicles using such roadway and driveway; that the condition as it existed at the time of the occurrence was open and obvious; that the deceased did not know the location of the meter and appreciate the danger of running into it, but by the use of ordinary care he should have known the location of the meter and in the exercise of ordinary care should have appreciated the danger of running into it; that appellee failed to place a guard around the meter but that was not negligence; that appellee failed to relocate the meter after the change in Menefee Street but that such failure was not negligence; that appellee failed to paint the meter with luminous paint so as to make the same visible to persons driving upon Menefee Street, but such failure was not negligence; that the deceased failed to keep a proper lookout and that same was a proximate cause of the accident; that deceased failed to have his automobile under proper control and that negligence was a proximate cause of the accident; that the deceased at the time of the accident had sufficient control of his faculties and that the event was not the result of an unavoidable accident. The jury also found appellants were not entitled to any damage.

Appellants present this appeal upon three points of error. The first point contends the court erred in permitting counsel for appellee to interrogate Mrs. Myrick pertaining to the intemperate habits of her husband, Henry Myrick, since there were no pleadings and no competent evidence raising an issue whether Mr. Myrick was intoxicated at the time of the occurrence in question; no connecting facts, circumstances, or reasonable inferences that prior intemperate habits or drinking by Mr. Myrick had any bearing or influence on his physical condition at the time of the occurrence in question and that the same was prejudicial, inflammatory, remote in time and probably did cause the rendition of an improper verdict. Point two was the same as point one except the objection was as to interrogating certain witnesses concerning specific actions of intoxication by Mr. Myrick. The trial court sustained appellants’ objections to the admissibility of the evidence offered concerning Mr. Myrick’s drinking habits, but later permitted such evidence to be introduced on the question of damages.

No objections were made as to the issues submitted to the jury. Special Issue 10 is as follows: “Do you find from a preponderance of the evidence that prior to and at the time of the event in question the deceased, H. D. Myrick, failed to have sufficient control of his faculties?” The jury answered, “No.” We are unable to see how this record shows the jury could have been influenced by the testimony offered as to his previous drinking because the effect of the finding by the jury that he had sufficient control of his faculties is contrary to the contention that his condition did or might have contributed to the accident in question.

There is no question raised in this case as to the sufficiency of the evidence to support the findings of the jury that appellee was not guilty of any negligence but that Mr. Myrick was guilty of negligence and this negligence was a proximate cause of the accident here in question. Considering this entire record as to Mr. Myrick’s intemperate habits as shown by the evidence introduced, we hold the testimony complained of herein under Rule 434 Vernon’s Ann. Texas Rules of Civil Procedure did not amount to such denial of the rights of appellants as was reasonably calculated to cause and probably did cause the, rendition of an improper judgment in the case. Lane v. Dallas Transit Company, 331 S.W.2d 821 (N.R.E.). Appellants’ first and second points of error are overruled.

As to appellants’ point of error three that the court erred in permitting counsel for appellee to produce, waive and exhibit before the jury a divorce petition filed by Mrs. Myrick against Mr. Myrick in 1945, we believe all that is necessary to say is that the court refused to permit counsel to introduce into evidence the petition. We find nothing in the record to show the jury was informed of the divorce petition. The third point of error is overruled.

Judgment of the trial court is affirmed.


author: HILL, Judge.

text:
    KRAUSS WILLS COMPANY, Inc., Appellant, v. PUBLISHERS PRINTING COMPANY, Inc., et al., Appellees.
    Court of Appeals of Kentucky.
    March 19, 1965.
    Rehearing Denied June 4, 1965.
    Thomas B. Givhan, Shepherdsville, Ky., for appellant.
    D. Paul Alagia, Jr., Brown & Alagia, C. E. Schindler, Louisville, for appellees.
   HILL, Judge.

This is an appeal from a judgment awarding appellant $1,770.80 and disallowing its claim for damages for alleged interference by appellee, Publishers Printing Company, with appellant’s employees causing them to terminate their employment with appellant. Appellant claimed it should have recovered a sum “closer” to $4,901.64.

For convenience, appellant will be referred to herein as “Krauss; ” appellees, Publishers Printing Company, will be referred to as “Publishersand H. J. Whitaker, Walter Diersing, George Strickland and Joe Bernzweig, will be designated “The Operators.”

On May 29, 1958, Krauss and Publishers entered into a contract under the terms of which Krauss agreed to furnish typesetting equipment to be delivered to and used by Publishers in its trades magazine printing establishment at Shepherdsville, Kentucky. Krauss furnished the necessary men to operate this equipment. These men are “The Operators” in this case.

On December 22, 1958, Publishers filed CA 651 against Krauss, alleging failure of Krauss to perform its contract to provide typesetting. This suit was dismissed with prejudice on December 27, 1958.

On December 10, 1959, Publishers filed the second suit, CA 781, again alleging failure to perform its contract, and failure to provide equipment detailed in the contract. A restraining order was asked and later obtained.

On December 11, 1959, Krauss filed action CA 784 against “The Operators,” seeking to restrain them from operating the equipment. Other pleadings and amendments were filed, but on March 14, 1960, the two last named actions were consolidated, a conference was held, and the trial court entered an order defining the issues. They are thus defined:

“1. Claim of wages due from Krauss by Whitaker, Strickland, Bern-zweig and Diersing.
“2. Claim of Publishers for damages and breach of contract from Krauss.
“3. Claim of Krauss for account due from Publishers.
“4. Claim of Krauss against appellees for lost profits, breach of contract, and punitive damages.
“5. Claim of Krauss against Simon and Publishers Printing Company for interference with its contract of employment with Whitaker, Strickland, Bernzweig and Diers-ing, punitive damages.”

With the exception of a short hearing held by the trial judge December 19, 1959, the case was tried by deposition. In all, the parties have taken and now have before us 26 volumes of depositions. Appellant has filed its 36-page brief, the ap-pellees filed one containing 98 pages.

The arguments relied on by appellant for reversal are as follows:

“1. The account.
“2. Krauss breach of contract induced by Publishers Printing Company or Simon.
“3. The conspiracy.
“4. Wrongful interference with contract of employment.
“5. Right of Krauss to jury trial.
“6. The injunction.
“7. Whitaker wages due from Krauss.”

It should be noted that Frank Simon, referred to above, is the principal owner and manager of Publishers.

We first discuss Argument 1.

The account involves many credits and numerous billings; some for work done before billing, others for billings for “over-matter and typesetting ahead of billing.” At issue, also, is the period the amount should cover. Appellant contends the period commenced December 23, 1958. The order dismissing was dated December 27, 1958. Appellant does not deny that on more than one occasion it did not give ■credit for payments by Publishers. The evidence concerning the account was conflicting. The finding of fact on this issue is not “clearly” or at all erroneous. It is affirmed in this respect. Cr 52.01.

Arguments 2, 3 and 4 may well be discussed together. Krauss admits it breached its contract in Argument 2, but maintains' it was induced to and excused by the first breach of the contract by Publishers. So, we go directly to the major question presented in Argument 3, “the conspiracy ,”.,and Argument 4, alleged wrongful interference with contract of employment.

To review, the two suits here involved were filed December 10 and 11, 1959. The employees of Krauss left Krauss December 9. Some suspicion may be aroused by the close relations and working conditions of The Operators with /Publishers from the very beginning of -.the contract involved. This was made necessary by the very nature of the contract itself. The equipment was leased to Publishers to be used in its Shepherdsville plant and operated by Krauss’ selected personnel, The Operators.

At the outset it should be kept in mind/tKát a conspiracy is difficult of proof. Notwithstanding that difficulty, the burden if upon the jjarty charging it — Krauss in this case. Withers v. Berea College, Ky., 349 S.W.2d 357 (1961). Let us look at the situation and circumstances of the parties at the time and previous to the alleged conspiracy and alleged interference with The Operators by Publishers.

The record contains the testimony of Frank Simon, manager of Publishers. Here are some of the high lights of his voluminous testimony: He says Krauss misrepresented, at the very beginning, his experience in typesetting work; that Krauss misrepresented the number and standing of its customers; that its finances were seriously misrepresented; that a very short time after commencing -work for Publishers, Krauss constantly nagged Publishers for advances and weekly payments; that there was no accounting “whatsoever,” and that Krauss “had over a thousand dollars a' week in advance.” We quote further from Simon:

“Now this attitude is the most serious thing of all. Of course, when a company has the attitude that they will gouge the customer for all they can and charge everything that the traffic will bear with no regard for the customers’ needs, that is a critical thing that drives customers away and forces you into a one shot arrangement in getting new customers every day. Nobody would do business that way. That was his attitude. I had no inkling of this attitude before toward our customers and in December of 1958 the (Air Pollution Control Association of Pittsburg) — a $25,000.00 a year contract — cancelled the contract with me because Krauss-Wills Co., Inc., refused to complete copy in forty days for receipt. In thirty days it should have been finished, even in ten days. Mr. Harry cancelled the contract with me by registered letter. That was a $25,000.00 account we lost. Now, following that, in February of 1959 ■' the Who’s Who Directory, which we had a three-year contract with to print for $60,000.00 a year— the customer quit us and cancelled the year at. the end of the first issue because 'of the nightmare, they said— the nightmare of our experience with the Krauss-Wills Co., Inc., from the Chicago operation.”

The substance of this testimony is denied by Krauss.

Evidence of difficulties between Krauss and Publishers is clearly demonstrated by a telegram dated September 30, 1959, from the former to the latter. We quote from it:

“Yours overtures of purchase to John Whitaker disrupting operations and morale. Proof reading capabilities determined at Johns Level run your operation allow us to run ours. Dixons services so desirable suggest you contact Dixon. Let us agree to disagree as gentlemen and arrange a divorce.”

The relationship between Krauss and The Operators, at the time The Operators quit Krauss and went to work for Publishers, is highly important as furnishing a motive for quitting Krauss. True, that relationship may likewise have provided a fertile soil into which Publishers could plant the seed of discord and thereby “interfere” with the employer and employee relationship between Krauss and The Operators. We think from the evidence that Krauss planted the seed of discord.

By letter from Krauss dated May 18, 1959, to Whitaker, one of the Operators, the salary of the latter was reduced. In this letter Krauss admitted having financial trouble. Whitaker also testified that: “We collected several thousand of dollars in October 1959, in catching up with the over-matter and the typeset ahead of billing and my salary stayed at this low side of $100.00 a week even though Mr. Krauss realized that I was going heavily in debt due to sickness of my wife.”

Then again, on November 21, 1959, Krauss wrote another letter to Whitaker that demonstrates all was not well between Krauss and the Operators. We quote from this letter:

“Dear John: Your tremendous imagination, built up by your self-delusion, as indicated by your letter, is as fantastic as your lack of application to the duties you were to perform. The beliefs as to what you are entitled to are strictly the results of the hyptonism and auto-suggestion for which you are so famous, so that you may keep your ego bolstered, and put on a grandiose and boastful appearance for your neighbors and friends and also for your associates. Your letter is strictly filled with ‘bull roar/ ”

Again on December 4, 1959, Krauss did not pay the weekly salary to Whitaker. On December 8, 1959, Mr. Krauss and Mr. Laff, owners of Krauss, entered the Shep-herdsville plant, at which time Mr. Laff stated in a loud voice that he told Mr. Krauss “eight” months ago that the whole crew should be “fired.”

It may be noted in concluding this phase of the case that the Operators quit in the same month a year before, incapacitating the machinery on orders of Mr. Krauss. Again, on November 21, 1959, Mr. Krauss signed a letter to Whitaker in which he said:

“You have been incompetent, lazy, disloyal, and a complete undermining factor in the operation.”

On an appeal from a finding of fact, Cr 52.01 provides:

“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

We deem it unnecessary to cite opinions in support of this proposition. This was a well-recognized rule before its codification. We find no error in the trial court’s finding there was no conspiracy. Massachusetts Bonding & Insurance Company v. Huffman, Ky., 340 S.W.2d 447 (1960).

Appellant insists in Argument 5 that it was entitled to a jury trial on the “remaining” issues after a trial of the condition of the account. We think this contention is without merit under Cr 39.01, the pertinent part of which provides:

“The trial of all issues so demanded shall he by jury, unless * * * (3) the court upon motion or of its own initiative finds that because of the peculiar questions involved, or because the action involves complicated accounts, or a great detail of facts, it is impracticable for a jury intelligently to try the case.”

Appellant complains of the granting of the temporary restraining order. In view of the peculiar nature of the contract, and the possible loss to all parties if the plant had been closed, it was proper for the court to maintain the status quo for a brief time.

Finally, Krauss “takes the strongest exception” to the finding of the chancellor awarding Whitaker judgment for $50.00 wages. We find the judgment not to be “clearly” or at all erroneous under Cr 52.01, in this respect.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    Robert EASTHAM (with aliases), Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 26, 1965.
    Rehearing Denied June 4, 1965.
    Robert Eastham, pro se.
    John M. Williams, Gray, Woods & Cooper, Ashland, for appellant.

      Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WADDILL, Commissioner.

The appeal is from a judgment sentencing appellant to imprisonment for five years for breaking and entering a storehouse with intent to steal. KRS 433.190. This case has previously been before this Court when appellant was without counsel. We concluded that counsel should be appointed to prosecute and brief the appeal. Eastham v. Commonwealth, Ky., 383 S.W.2d 684. The events leading to appellant’s conviction are stated in the former opinion. Subsequently, the trial court appointed Honorable John M. Williams to represent appellant on this appeal, and he has presented an able and thorough argument.

As grounds for reversal appellant alleges prejudicial error in the use of an accomplice’s confession, in the exhibiting of certain tools to the jury and in remarks made by the Commonwealth’s Attorney.

Rondall Moses, who was apprehended with appellant and charged with the same crime, pleaded guilty. Subsequently he testified as a witness for appellant upon the instant trial. In an attempt to impeach Moses’ testimony the Commonwealth introduced his signed confession wherein he had implicated appellant and himself. Appellant contends the court erred in failing to admonish the jury to consider Moses’ confession only for impeachment purposes. The alleged error must be considered waived since appellant’s trial counsel did not request an admonition. Ferguson v. Commonwealth, Ky., 373 S.W.2d 729.

It is next contended that prejudicial error was committed in exhibiting certain tools before the jury without establishing a proper foundation for their introduction. Appellant objected to the introduction of these tools which were referred to as “burglary tools.” The record does not reflect that these tools were identified as the same ones found at the scene of the crime. Under these ciircumstances it was error to produce them at the trial. Hall v. Commonwealth, Ky., 276 S.W.2d 441. We do not believe this error was prejudicial upon consideration of the whole case since the uncontradicted testimony of the owner of the storehouse and the police officers was that a window of the store building was pried open, the cash register was broken into, a bag of burglary tools was found inside the building and the appellant was discovered hiding in the back of the building at about midnight. RCr 9.26; Montgomery v. Commonwealth, 313 Ky. 415, 231 S.W.2d 72.

Finally, it is urged that certain statements in the Commonwealth’s Attorney’s closing argument to the jury prevented appellant from obtaining a fair trial. In view of the fact that the record does not contain this argument nor does it show that any objections were interposed, the alleged error is not preserved for review. Maise v. Commonwealth, Ky., 380 S.W.2d 230.

The judgment is affirmed.


author: CLAY, Commissioner. PALMORE, Judge MONTGOMERY, Judge

text:
    LEXINGTON COUNTRY CLUB, Appellant, v. Mary Elizabeth STEVENSON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 12, 1965.
    Rehearing Denied June 4, 1965.

      Denney & Landrum, Charles Landrum, Jr., Lexington, for appellant.
    Donald P. Moloney, Moloney & Moloney, Lexington, for appellee, Mary Elizabeth Stevenson.
    Ben L. Kessinger, Jr., Harbison, Kes-singer, Lisle & Bush, Lexington, for ap-pellee, Henry O. Newman.
   CLAY, Commissioner.

Plaintiff appellee Stevenson was awarded a judgment of $25,000 against defendant appellant, Lexington Country Club. She had sustained personal injuries when struck by a golf ball while riding as a passenger in an automobile being driven on the private driveway of the Club. Plaintiff also sued the golfer, appellee Newman, and the driver of the car in which she was riding. The claim against the latter was severed and continued for a separate trial, and the jury found for Newman. Many alleged errors are asserted.

The private driveway to the clubhouse crosses, at approximately a right angle, the fairway on the golf course which leads to the No. 7 hole. The automobile in which the plaintiff was riding had just turned onto the driveway from a public highway when a golf ball, hit by Newman in making an approach shot to the No. 7 green, entered the rear car window and struck plaintiff in the eye (causing its loss).

The purpose of plaintiff’s trip was to enjoy the luncheon facilities of the Club. The driver of the car was a member. She and another lady had been invited by plaintiff to have lunch.

Ten days before the trial date, the circuit court, as authorized by CR 42.02, ordered a separate trial of the claim against the driver of the automobile and continued that case indefinitely. The basis of this ruling was that the illness of the driver would not permit her to attend the trial and her availability for such purpose could not be definitely determined. (Apparently she would not be available for at least a year.) On the other hand, the plaintiff was an elderly woman with an obvious interest in a reasonably prompt trial against the other defendants (the Club and the golfer). Appellant contends it was prejudicial error to thus remove the driver from the case for two reasons. The claim is made that she was an “indispensable party” under CR 19.01, which of course is untenable. The other objection seems to be that her testimony was important and that it would impair appellant’s defense if she was not present as a defendant upon whom the jury could impose liability. It may be noted that the appellant obtained an affidavit from that defendant detailing her knowledge of the occurrence, which was read in evidence.

This is a matter within the judicial discretion of the trial court. Though claims of this sort should ordinarily be tried together, the exceptional circumstances justified the court’s action. The case of Caldwell v. Hoskins, Ky., 312 S.W.2d 616, is distinguishable on the grounds of (1) surprise and (2) absence of any justification for the court’s ruling.

Appellant next contends plaintiff was a bare licensee and it owed her no duty to keep the premises reasonably safe. It seems clear the plaintiff was an invitee. The driver of the car was a member of the Club. The plaintiff was her guest. The Club is maintained for the use of members and guests. The fact that the plaintiff planned to pay for the lunches obviously does not take her out of the classification of a guest. In addition, the relationship was one of mutual benefit. Appellant owed her the duty to maintain its premises in a reasonably safe condition. Standard Oil Co. v. Hagan, 309 Ky. 767, 218 S.W.2d 969; Rojo, Inc. v. Drifmeyer, Ky., 357 S.W.2d 33.

Appellant next contends the acts of the driver of the automobile and defendant Newman (the golfer) were independent intervening causes of this accident, thereby relieving it of liability. It is said appellant merely created the “condition” and the conduct of others constituted the proximate cause. An intervening agency which insulates from liability must be an independent force, not naturally arising out of or related to the negligently created condition. United Fuel Gas Company v. Thacker, Ky., 372 S.W.2d 784.

The golf course was built to be played upon with golf balls. The driveway was constructed and maintained for the passage of automobiles approaching the clubhouse. The normal and planned use of the premises was for golfers to play and motorists to traverse the driveway. Their acts were integral elements of the condition created by appellant. The danger only arose from their simultaneous use of the grounds. Not only could this be anticipated but it would be inevitable in the usual course of events over a period of time. Clearly the conduct of the golfer and the driver were not independent intervening acts. Being reasonably foreseeable, they did not insulate the Club from liability. Ambrosius Industries v. Adams, Ky., 293 S.W.2d 230; Greyhound Corporation v. White, Ky., 323 S.W.2d 578. See also Westborough Country Club v. Palmer, 8 Cir., 204 F.2d 143, which involved a golf course accident similar to the present one.

It is next contended the trial court erroneously admitted testimony of an expert golf course architect to the effect that this was a poorly laid out golf hole from the standpoint of safety. This witness also said that a hazardous and unsafe condition was created when there were no warning signs or special regulations with respect to its use. This evidence was relevant and admissible. The ordinary juror, if a non-golfer, would not necessarily be familiar with the hazard of soaring golf balls on a fairway. The witness was an expert in the design of golf courses. His opinion was that good designers would not incorporate such a hazard.

This witness was not, as appellant contends, expressing an opinion on the ultimate issue in the case. That issue was whether appellant was negligent in maintaining the potentially hazardous condition. The evidence pertained to a most significant factor relative thereto. See annotation in 62 A.L.R.2d 1426. As we will discuss hereafter, this witness simply confirmed the obvious.

Appellant next contends the trial court erred in refusing to admit testimony of Newman with respect to how he possibly could have played the hole in a different manner and avoided this accident. Ignoring the speculative character of this evidence, it was obviously irrelevant on the issue of appellant’s liability. The proof established that Newman was playing under accepted golf rules and in accordance with the normal method of making his shot. He was playing as appellant had designed the course to be played. The issue of appellant’s negligence must be determined in the light of that circumstance. The offered evidence had no bearing on that issue.

We now reach the problem of the instructions. It is contended that Instruction No. 1 was in effect a directed verdict for the plaintiff because it required appellant to give “reasonable warning” to motorists about the condition, and admittedly no warning was given. We are inclined to agree with appellant, but assuming the instruction to have been erroneous, it did not constitute reversible error. Under the facts of this case the plaintiff was entitled to a directed verdict.

We do not think reasonable minds could differ on the question of whether the design and maintenance of this private driveway, cutting across a much used golf fairway, without special regulations for the play of a hole or special warnings to motorists, constituted a continuing hazard to occupants of automobiles being driven thereon. This is particularly true with respect to the driveway near the entrance to the premises because a large post, a panel fence and a line of trees substantially impair the respective views of both the golfer and the motorist.

Appellant’s own witness estimated that 20,000 golf balls a year would be hit across this driveway, and a substantial number of them would be traveling at a speed of 170 miles an hour. There was also evidence that automobiles had been struck on the driveway.

It is true that witnesses for appellant stated they did not consider the condition “extremely dangerous” or “a dangerous zone” and it appears other golf courses have somewhat similar conditions. There are, of course, so many degrees of “danger” that (assuming these witnesses were qualified to give such an opinion, which is open to question) their conclusions were ambiguous and of little value. The physical conditions, about which there is no dispute, convincingly established the existence of a built-in hazard. Plaintiff’s expert witness, to whose testimony appellant strenuously objects, did no more than explain the obvious reasons why this was so.

We may concede that the condition was not one of extreme peril, and in that sense it was not “dangerous”. Because of the small size of a golf ball and other factors, the odds as to any particular person’s being injured are long indeed. However, the possibility of being struck in a car on this driveway during golf playing hours was an ever-present- hazard. No one could deny this. The question is whether it was negligence on the part of appellant to subject its members and guests to such hazard.

We have considered a number of cases involving injuries to persons on or near golf courses, baseball stadiums, and other playing fields. See Westborough Country Club v. Palmer, 204 F.2d 143; Brooks v. Bass, La.App., 184 So. 222; 23 A.L.R. 447 ; 69 A.L.R. 741; 16 A.L.R.2d 1458 ; 82 A.L.R.2d 1183; Louisville Baseball Club v. Hill, 291 Ky. 333, 164 S.W.2d 398. Courts generally recognize the liability of the owner of such premises for injuries inflicted by players participating in games thereon regardless of whether the person striking the ball could likewise be held liable for negligence. Juries in those cases (many of which involve persons injured outside the playing field) have consistently returned verdicts against the owners or operators thereof. We think the undisputed facts here are such that we can properly reach, as a matter of law, the same conclusion the jury reached in this case. That is, appellant violated its duty to plaintiff to maintain its premises in a reasonably safe condition for her use. We are aware that the total elimination of this hazard might not be feasible. Nor do we suggest appellant is not justified in maintaining its premises in their present condition. From a practical standpoint, the probability of accidents may be such that appellant is willing to risk the chance. These considerations, however, do not relieve it of the charge that it was negligent in exposing the plaintiff to an unnecessary risk of serious injury which resulted from the concurrence of clearly foreseeable circumstances.

This brings us to the question of whether the trial court erred in failing to instruct the jury on the issue of plaintiff’s contributory negligence. She was a passenger on the back seat of an automobile driven by a member of the Club. Though she was generally familiar with the grounds, there is no evidence whatsoever that she was aware of any danger, or did or failed to do anything which could constitute negligence on her part. As far as she is concerned, this was literally a bolt .put of the blue. She was not familiar with the game of golf and had no knowledge of the hazard. What was obvious to appellant, knowing all of the conditions, was not obvious to her. She certainly had the right to assume that no such hazard existed. She could not have been contributorily negligent, and the court properly declined to submit such issue.

Appellant further contends the trial court erred in not instructing the jury on the issues of “contribution” and “indemnity” which it had raised by cross-claim against Newman, the golfer. Both of these issues were effectively eliminated by the jury verdict which exonerated that codefendant.

It is vitally important as a matter of pleading, trial, and legal effect that we keep firmly fixed in mind the very significant distinction between contribution and indemnity. They involve entirely different concepts and considerations, which if ignored may lead to confusion.

The theory of contribution is that a party required to pay more than his pro rata share of a common liability to an injured party has a right of recovery for one-half the amount paid against a joint tort feasor in pari delicto, that is, one equally at fault from the standpoint of concurrent negligence of substantially the same character. KRS 412.030; 18 Am.Jur.2d, Contribution, section 50 (page 72); Consolidated Coach Corporation v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086; Deatley’s Adm’r v. Phillips, Ky., 243 S.W.2d 918; Campbellsville Lumber Co. v. Lawrence, Ky., 268 S.W.2d 655; Employer’s Mutual Liability Insurance Company v. Griffin Construction Company, Ky., 280 S.W.2d 179, 184, 53 A.L.R.2d 967. On the other hand, a right to total indemnity may exist if the joint tort feasors are not in pari delicto and the party secondarily negligent asserts a claim against the one primarily negligent. Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165. With these distinctions in mind, we will examine the problems that are presented in this case.

Where a plaintiff sues two joint tort feasors who are in pari delicto, there cannot properly be a separate issue of contribution between them. This is so because, when the jury returns its verdict allowing the plaintiff recovery against one or the other, or against both jointly, or against each in different amounts, it thereby resolves the issue by finally fixing the relative cul-pabilities and the respective liabilities to the plaintiff. Neither defendant could rightfully claim in such a suit (or a separate suit) that he had been required to pay more than his pro rata share of the common liability since the jury has determined the fair share of each. See Elpers v. Kimbel, Ky., 366 S.W.2d 157. When, as here, the jury exonerates one codefendant of negligence, that effectively denies the right of the other to contribution. There is simply no separate issue to submit to the jury on this question.

It may be observed that while CR 13.07 authorizes a cross-claim for contribution between codefendants, it is an illusory right as between joint tort feasors in pari delicto against both of whom the plaintiff has asserted his claim. In such case it is unnecessary and pointless to plead such a crossclaim.

It must be noted that what we have just said is limited to an action in which a claim is made against two or more defendants in pari delicto in the same action. If one defendant brings in a third party defendant under CR 14.01 to claim contribution and the plaintiff asserts no claim against such third party, a different situation arises. Unless the plaintiff consents to a trial of the issue of contribution between the two, in which case the jury should be instructed on this issue, a separate trial thereof may be required.

Appellant asserts that if it could not claim contribution, it was entitled to indemnity against Newman on the ground that his liability was primary and its liability was secondary. In the pleadings appellant made this cross-claim against its codefendant and in the proper case this issue should be separately submitted to the jury under the principles set forth in Brown Hotel Co. v. Pittsburgh Fuel Co., 311 Ky. 396, 224 S.W.2d 165.

That case was tried prior to the adoption of our Civil Rules, and except for certain procedural differences which now prevail, the opinion contains an excellent analysis of the indemnity problem. It was there held that even though a plaintiff recovers a judgment against two joint tort feasors, if one is primarily liable and the other secondarily liable, the latter may in a subsequent suit assert a right to indemnity against the former. It was observed in that case that under the prevailing practice the issue could not be tried in the original suit because cross-claims between codefendants were not authorized. In our present practice, under CR 13.07, such a cross-claim is now permissible and in the case before us appellant sought indemnity against both of its code-fendants, the driver of the automobile and Newman.

This issue was properly triable in this case and appellant would have been entitled to an instruction on it if the facts had tended to prove Newman primarily liable. The difficulty with appellant’s argument is that, if this was a case of primary and secondary liability (which we do not decide), it could be said appellant was the party primarily responsible and consequently would have no right to indemnity from any of its codefendants. As in the Brown Hotel case (311 Ky. 396, 224 S.W.2d 165), appellant negligently created the condition which ultimately resulted in injury to the plaintiff. Consequently the trial court did not err in declining to submit this issue.

Even if the court should have submitted the issue of indemnity (and ordinarily it should be submitted in a separate instruction or interrogatory which must be correlated with the basic finding of liability to the plaintiff), its failure to do so in this case could not have been prejudicial. The jury verdict which exonerated Newman of negligence effectively extinguished any cross-claim appellant could have had against him for indemnity. Newman could not be primarily liable if he was not liable at all. It will be noted in the Brown Hotel case (311 Ky. 396, 224 S.W.2d 165) the question of indemnity only arose after a jury had found negligence on the part of the party against whom such claim was asserted.

The conclusions we have reached above with respect to the instructions dispose of appellant’s other objections thereto.

Appellant further objects to a part of the closing argument of plaintiff’s attorney relating to the possible liability of the driver of the automobile. Whatever the meaning of this rather confusing single statement, even if improper, it could not have been prejudicial.

Appellant finally contends the verdict of $25,000 is excessive. We do not find it so.

The judgment is affirmed.

MONTGOMERY, J., dissenting.

PALMORE and HILL, JJ., dissenting in part

PALMORE, Judge

(dissenting).

In the absence of assumed risk or contributory negligence it seems to me that a guest using a private road crossing a golf course is in the same position as a member of the general public using a public road running through a golf course. I therefore agree that the club which maintains such a golf course should be liable as a matter of law to the unsuspecting victim struck by a golf ball while he is using the road for its intended purpose. But I believe also that the golf player ought to be held equally liable. He is just as aware of the danger to innocent third parties as the club is. He is not forced to play on the course, and if the course is so laid out that he is invited to play his ball close to or across a road, public or private, I think he should do so at his own risk, always. This viewpoint is not based on precedent, because I am aware that the golfer’s negligence is generally held to be a matter for the jury to decide. But perhaps the courts that have written the law that way have been country club oriented. I think the average man in the street, by and large, would feel differently. And he is the only true source of the common law.

It follows that I would hold the golfei and the country club in pari delicto and require contribution,

HILL, J., joins in this dissent.

MONTGOMERY, Judge

(dissenting).

The ground for my dissent is that the trial judge was guilty of an abuse of discretion in permitting a separate trial for the driver of the car in which Mrs. Stevenson was riding. As I see it, the negligence of the driver, Mrs. Davis, was the primary and possibly the sole cause of the injuries suffered.

The following uncontradicted statements made by Mrs. Davis in an affidavit filed show her negligence, to-wit:

“I drove my car, a Cadillac automobile, to the Lexington Country Club, at the specific request and direction of Mrs. George Stevenson. Since she was the hostess I was pleased to drive wherever she desired to take us to lunch * * * I slowed down to make a right hand turn into the Country Club entrance. * * * I did not stop at the entrance to the Country Club to look for golfers on fairway number seven over which the driveway crosses as I turned into the Country Club. All three of us were talking and engaged in idle conversation * * * And I did not look to either my left or to my right in the fairway to the seventh hole for golfers and do not know whether there were any golfers there or not, though I did know this was Sunday afternoon and that golfers would likely be on the seventh hole * * * I could have seen golfers anywhere on the seventh fairway as I entered the Country Club if only I had looked for them. Golfers using fairway No. 7 are not difficult to see as you enter the driveway entrance. However, on this occasion I did not look for golfers * * * I was aware that golf players playing No. 7 hole drive their golf balls across the driveway and across the roadway * * * I knew of the custom among members of the Club for automobiles to yield to tbe golfers. But on this occasion we were talking and I didn’t think about it.”

In the complaint filed against the country club, the golfer, and the driver, Mrs. Davis, it was alleged that the negligence of the three defendants “acting independently, jointly and concurrently” brought about the injuries of the plaintiff. The issue as to which party or parties were liable should have been determined by the jury in one trial. To try the issue piecemeal almost inevitably would result in an unfair trial and an injustice to one or more of the parties. Here, the country club has been immeasurably prejudiced by the absence on the trial of the submission of the issue of Mrs. Davis’ negligence. I am sure that Mrs. Davis’ counsel was equally as cognizant of this advantage as appellant’s counsel was conscious of the disadvantage.

The fact that Mrs. Davis might not have been able to attend the trial is not sufficient justification for a separation. The evidence could have been presented in her behalf, and the issue of her liability could and should have been submitted at the same trial in which this issue as to the country club and the golfer was determined.

The only suggested justification for the separation was that Mrs. Davis could not by reason of her health be present at a trial for a year and her friend, Mrs. Stevenson, the plaintiff, could not wait for a later trial on account of her (Mrs. Stevenson) health. In fairness, the appellant should not be made to suffer to the advantage of either Mrs. Davis or Mrs. Stevenson. Additionally, the questions raised as to the instructions, contribution, and indemnity emphasize the error.

Accordingly, I dissent.

      . See Gladden v. Cia De Commercio Y Vapores S. A., 26 F.R.D. 155.

      . Appellant sought to introduce evidence to prove that the Club lost money on the sale of food. This evidence was, of course, inadmissible as irrelevant. If a person uses offered facilities in the manner and purpose for which they are intended, we must presume that use is beneficial to the person furnishing the facility.

      . No question seems to have been raised as to the admissibility of evidence with respect to the proper design of private golf clubs and golf links in Westborough Country Club v. Palmer, 204 F.2d 143, heretofore cited.

      . This is permissible under KRS 454.040, and constitutes a recognition of comparative negligence. Inconsistently, in a claim for contribution, such prorating apparently is not authorized.

      . In the event there was a joint judgment against both joint tort feasors in a single amount, if satisfied by one of them, he would have a right to contribution from the other. From a practical standpoint, this subsequent claim could better be asserted in another lawsuit (where in all probability the plaintiff would be entitled to a summary judgment).

      . See Clay, Kentucky Practice, Vol. 6, CR 13.07, Comment 3 (page 240).

      . See footnote 5.

      . Ordinarily the plaintiff has a right to have his suit tried without becoming involved in a cross action between defendants. Consolidated Coach Corporation v. Wright, 231 Ky. 713, 22 S.W.2d 108.

      . In Gish Realty Co. v. Central City, Ky., 260 S.W.2d 946, an indemnity case, the real question was whether that issue had been tried in a prior federal court suit.


author: MILLIKEN, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Morris B. VAUGHN et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.

      John B. Breckinridge, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., George S. Clay, Henderson, Dandridge F. Walton, Madisonville, for appellant.
    Leonard T. Mitchell, L. B. Lawton, Henderson, for appellees.
   MILLIKEN, Judge.

This highway condemnation proceeding was tried before Com., Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844, and involves the taking of a strip of land for the widening of U. S. 41 about a mile south of the City of Henderson. Both parties had appealed to the Circuit Court from a county court judgment awarding the landowners $9,400 pursuant to the appraisal of commissioners appointed by the county court for that purpose. On the trial the Circuit Court judgment for $12,625 was entered pursuant to the verdict — $9,500 for the land taken and a temporary easement, and $3,125 as damage to the remainder. The Department’s sole appraisal witness had appraised the land taken at $7,200 with no damage to the remainder. The frontage along the highway (U. S. 41) was the same after the taking as it was before.

The appellees’ undeveloped land fronted approximately 630 feet on the west side of U. S. 41 and extended westwardly 593 feet on the northern side and 383 feet on the southern side, the remaining or western line extended 705 feet along State Highway 136. A high pressure gas line on a 30-foot easement ran southeasterly diagonally across the land, from north to south, cutting the southern (383-foot) line in two, with 202.5 feet east of the pipeline to U. S. 41 and 108.6 feet west of the pipeline to State Highway 136. The condemnation took 71 feet from the 202.5-foot portion of the line east of the pipeline which left a shallow 116 feet on this southern boundary from U. S. 41 to the nearer or eastern side of the easement, making that area of the tract too shallow for commercial purposes according to the landowners. The landowners had graded the area between the pipeline and U. S. 41 to prepare it for commercial development, and as long ago as 1955 had filed a subdivision plat of lots in the Henderson County clerk’s office covering the area between the pipeline easement and State Highway 136. This division of the property by the pipeline into a portion intended for residential development and a portion intended for commercial usage was a factor which was considered in appraising the land.

The Department took 37,905 square feet of land along U. S. 41 or .87 acres. Along this frontage, 71 feet in depth was taken for the south 175 feet and 56 feet in depth along the northern 455 feet, the difference being caused by an offset in the prior right of way. As heretofore pointed out, the greater depth was taken from the shorter or shallower side- of the tract. The Department contends that the judgment was excessive and was not based upon adequate evidence.

In determining whether the judgment is excessive and whether it is based upon adequate evidence, the qualifications of the landowners’ witnesses as well as as what they say must be considered. One of the owners, Morris B. Vaughn, was in the insurance business, had taught school, had bought and sold various pieces of property in the county and had appraised property for the State Highway Department and for the Municipal Housing Project. The other owner, B. U. Barnett, had bought and sold more than ten parcels of real estate in the county, so necessarily had acquired some knowledge of property values. Another witness for the landowners had been in the real estate and insurance business in the county for fifteen years and had appraised thousands of pieces of real estate in that area during the period. Another witness had been a real estate broker in the county for eighteen years, had developed a number of subdivisions, and had made appraisals for the Department of Highways, local banks, large national corporations and the RFC. It would be difficult to find an array of witnesses better qualified by experience to appraise real estate in that community.

Without encumbering this opinion with detailed data, suffice it to say that the total amount of the judgment is approximately two-thirds of the amount of estimated damage of the lowest of the landowners’ appraisals and about one-half that of the others. Only the $7,200 estimate of the Department’s sole appraisal was lower, and that made no allowance whatsoever for damage to the remainder. The gist of the testimony supports the landowners’ contention that the portion of the land along U. S. 41 is suitable for commercial purposes and should be so considered in appraising it because of the trend of commercial development along the highway. A service station is being built across the road from the property, and an implement sales business is not very far away.

The Department contends that certain comparable sales mentioned by the condemnees’ witnesses are not comparable. Comparability is a variable which ordinarily is better left to local authorities to apply to local conditions. An analogy is really no proof of anything; it is a guide and no more. Fortunately, this Court has recognized that the valuation placed upon property by competent witnesses is sufficient in itself without reference to genuinely comparable sales which so often are not available. Com., Department of Highways v. Prather (1963), Ky., 369 S.W.2d 118; Com., Department of Highways v. Mann (1965), 387 S.W.2d 848, 850.

The most serious question raised by the Department in our opinion pertains to the $3,125 allowed for damage to the remainder. The Department’s sole appraiser allowed nothing. As we have heretofore pointed out the commercial portion of this tract was disproportionately reduced on its shallower side because it was there that the taking was 71 feet in depth instead of the 56 feet taken along the greater portion of the frontage. The condemnees’ appraisers opined that this made the southerly portion of the commercial area unsuited for most commercial purposes because parking space would not be available on account of the lack of depth of the lot. In Com., Department of Highways v. Priest (1965), Ky., 387 S.W.2d 302, we concluded that was not a proper factor to consider unless it is shown that it directly affects market value.

However, we think the present factual situation justifies distinguishing that case from this, because here the southerly portion of the commercial area is left palpably shallow by the taking while in the Priest case an adequate space remained for most commercial purposes. We realize that some degree of parking space is necessary and that the highway itself is no place to park. The allowance for damage to the remainder in the case at bar was approximately one-half of the lowest estimate of the landowners’ witnesses and, since we believe there obviously was damage to the remainder, we conclude further that the amount allowed was not unreasonable.

Because of the difficulty of finding suitable standards or precedents for the trial of highway condemnations, this Court deviated from the common law principle of deciding one case at a time and delivered a text for general guidance of practitioners in Com., Department of Highways v. Sherrod (1963), Ky., 367 S.W.2d 844, rendered subsequent to the trial of the present case. The difficulty of applying general propositions (so ably stated by Commissioner Cullen in Sherrod) to particular situations led Justice Holmes to wryly observe in a letter to Pollock in 1920, “I daresay that I have worked off my fundamental formula on you that the chief end of man is to frame general propositions and that no general proposition is worth a damn.” The general propositions formulated in Sherrod have proved most helpful, but they do not offer a magic formula in these cases. We still must form value-judgments of our own in applying the general propositions, and counsel, courts and juries have always had to make such value-judgments and always will have to make them. We may question the amount of a jury award, but we should not intrude on the jury’s constitutional prerogative (Const., Sec. 242) to make it unless the amount allowed is shockingly excessive or obviously based upon improper factors. In the present case we think there was evidence to sustain the award for the land actually taken, and that the award in that respect was liberal but not shockingly so. Since damage to the remainder as such was allowable separately by our pre-Sherrod procedure, it necessarily was allowable on the facts of the present case.

In nearly all litigation errors occur which blemish the record and they did here, but they were not dwelt upon or pushed to the point where they obviously prejudiced or misled the jury. The reasonableness- of the judgment is the dominant question, and not the tangential errors or miscues which may have occurred during the trial. Trial errors are persuasive only when they strongly indicate that the verdict is unreasonable or is based upon noncompensable factors.

The jury here reached a reasonable verdict on the opinion testimony of qualified appraisers. Had we been the jury, we might have given less. But we were not members of the jury, and we will not now act as if we were.

The judgment is affirmed.

PALMORE, J., not sitting.


author: CLAY, Commissioner.

text:
    Sam BIVENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 7, 1965.

      John Y. Brown, William H. McCann, Brown, Sledd & McCann, Lexington, for appellant.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, William Gant, Commonwealth Atty., Owensboro, for appellee.
   CLAY, Commissioner.

This is a proceeding under RCr 11.42 on the ground appellant was denied his constitutional right to be adequately represented by counsel and participate in his own defense. He has been here before in a habeas corpus proceeding. Bivens v. Jones, Ky., 350 S.W.2d 165. The trial court denied his motion to vacate or reduce his sentence.

Appellant was tried on the charge of wilful murder in 1961. He was then represented by counsel employed by him. He originally pleaded not guilty, but during the course of the trial changed that plea to guilty. He was convicted and sentenced to life imprisonment.

At the trial there was overwhelming evidence that appellant had committed the crime with which he was charged. His version of the killing, given on the hearing of the motion before us, did not differ substantially except that he suggested the possibility of self-defense.

The basis of appellant’s motion to vacate the sentence is keyed to the following facts. About three years prior to the commission of the crime he had an emotional and mental disturbance and in 1958 entered the Evansville State Hospital in Indiana on a voluntary temporary commitment. He was there for approximately three months, receiving treatment for what was diagnosed as a “sociopathic personality” and “alcoholism”. After marked improvement, he was discharged February 15, 1959. The crime was committed about a year and a half later and the trial took place four months thereafter.

Though appellant suggests the possibility that he may have had a defense of insanity to the charge of murder, the facts shown in this record would not permit such an inference. Appellant in his brief nowhere asserts that he was at any time insane.

Appellant undertook to prove that after his arrest he was “nervous and upset” and that during the trial he was in a somewhat dazed condition. However, he does not contend that his mental or physical condition was such that he was incapable of standing trial.

The real basis of appellant’s argument is that his lawyer was unaware of the past history of his mental health and treatment, and because of this lack of knowledge he was not in a position to furnish adequate representation. The lawyer testified that prior to the trial he had no information that appellant had received treatment or medication for an emotional or mental disorder and did not know that he had been in a mental hospital. He further testified that he had been unable “to adequately confer” with appellant before and during the trial, and that he did not believe appellant understood the gravity of the proceedings against him.

To stretch these facts into a claim of inadequate or ineffective representation puts a terrific strain on the concept. In Rice v. Davis, Ky., 366 S.W.2d 153, we held in substance that ineffective representation by counsel means representation so lacking in competence that the defendant has actually been deprived of his legal rights under such circumstances as to shock the conscience of the court. We of course have nothing of the sort here.

What we do have is simply a lack of collateral information which may or may not have been utilized by appellant’s lawyer, if it could have been, in defending his case. Certainly counsel’s lack of knowledge could not in itself constitute inadequate representation. Assuming without deciding that the failure of a lawyer to obtain certain facts regarding his client’s case could constitute inadequate or ineffective representation, clearly (1) those facts must be relevant and material, (2) there must be a reasonable probability that they would be introduced in evidence, and (3) the lawyer must have some reason to inquire into their existence. The facts disclosed by this record fulfill none of these conditions.

With respect to (1), it is highly speculative that appellant’s history of mental or emotional disturbance had any bearing on this crime. See Wagner v. Commonwealth, Ky., 379 S.W.2d 731. It is doubtful that it would have been admissible in evidence for any purpose. Finally, neither the appellant himself nor the members of his family thought it sufficiently material to give the information to appellant’s lawyer.

With respect to (2), assuming the evidence admissible, it is very questionable that appellant’s attorney would have introduced it because it would have opened the door to unfavorable aspects of defendant’s background.

With respect to (3), there is nothing in this record which would have put appellant’s lawyer on inquiry concerning the existence of these facts. The homicide itself did not involve unusual or extraordinary circumstances. Neither appellant nor members of his family even intimated to appellant’s lawyer that an unstable background had anything to do with it. Appellant’s conduct after his arrest and during his trial, while “apathetic”, was not of such a nature as to cause any of a number of people who observed him to suspect any mental problem was involved. We cannot say, and in fact appellant does not even contend, that there was any dereliction in his counsel’s failure to inquire about his past mental condition. It follows that counsel’s failure to obtain this collateral information did not constitute inadequate representation.

It is unnecessary for us to determine whether a convicted person may under any circumstances, in a proceeding of this sort, raise the question of inadequate representation which resulted solely from his own failure to disclose possibly helpful information. See Douthitt v. Guardian Life Ins. Co., 235 Ky. 328, 31 S.W.2d 377; Tompsett v. State of Ohio, 6 Cir., 146 F.2d 95.

Appellant’s intimation that he was denied any right to participate in his defense is wholly unsupported. He has shown no violation of any constitutional right and his motion was properly denied.

The judgment is affirmed.


text:
    Richard H. HINES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Douglas E. Robertson, Bowling Green, for appellant.
    Robert Matthews, Atty. Gen., Joyce Ferris Nedde, Asst. Atty. Gen., Frankfort, Otto Martin, Hartford, for appellee.
   CLAY, Commissioner.

Appellant was convicted of the crime of arson under KRS 433.010 and sentenced to the penitentiary for a term of two years.

His first claim of error on this appeal is that the indictment was defective in failing to charge a criminal offense, particularly since it did not allege that the act was done “wilfully and maliciously”. The indictment alleged appellant had committed “the crime of arson” and cited the statute proscribing the offense. It also charged the offense was committed “by setting fire to a dwelling house”. Under RCr 6.10(2) and in the light of RCr 6.12, this sufficiently informed appellant of the nature of the criminal charge against him. Runyon v. Commonwealth, Ky., - S.W.2d - (rendered February 26, 1965).

It is next contended the evidence was insufficient to establish the commission of the crime since it was circumstantial and raised no more than a suspicion. The dwelling involved was on a farm owned by appellant’s wife. It had been unoccupied for some time. Appellant, with two friends, had driven out to the house for the ostensible purpose of getting some tomato slips, which they did not pick up. Appellant went into the house when they arrived, and when he and his friends were ready to leave he returned to the house alone to lock it up. Ten or fifteen minutes after they left a fire was discovered. Appellant, who was still in the immediate vicinity and was aware of this fire, did not return to investigate it nor did he make any attempt to extinguish it. Appellant’s wife had substantial insurance on the house and its contents.

These circumstances raise more than a suspicion. The reason appellant went to the house in the first place was a flimsy one. He had the opportunity to start the fire. It was discovered almost immediately after he left the premises. The house was not in use and was insured. Appellant showed an amazing lack of concern after the fire was discovered. The evidence was amply sufficient to support an inference that appellant wilfully set fire to the dwelling.

Appellant finally contends the Commonwealth’s attorney was guilty of misconduct in asking incompetent questions and making an improper argument to the jury. Without deciding whether the questions asked or the statements made were improper, we do not find that appellant raised the question by objection. We cannot review these matters presented here for the first time. Browning v. Commonwealth, Ky., 351 S.W.2d 499. We find no errors prejudicial to appellant’s substantial rights. RCr 9.24.

The judgment is affirmed.


text:
    Chris CHRISTOFF et al., Petitioners, v. Hon. Wallis DOWNING, Judge, Jefferson Circuit Court, Respondent.
    Court of Appeals of Kentucky.
    May 7, 1965.
    C. M. Leibson, Louisville, for petitioners.
    John P. Sandidge, Woodward, Hobson & Fulton, Louisville, for respondent.
   HILL, Judge.

Petitioners, Chris Christoff and Grace Christoff, his wife, filed suit in the Jefferson Circuit Court against William Murion, Thomas E. Rice and Abe Pozitzer, d/b/a Moon Cleaners, for personal injuries. The case was assigned for trial on March 22, 1965.

On February 4, 1965, Murion filed motion to require the plaintiff, petitioner here, to “execute a signed authorization” to the Veterans Administration permitting and consenting to taking of deposition of a representative of the Veterans Administration. Apparently the VA has a regulation against giving its deposition or disclosing its medical records and history without the consent of the person involved. This motion was first overruled, but the motion was later renewed, supported by affidavit. Presumably at a hearing on the motion, the attorney for Christoff stated: “I know of no civil rule which requires either our office or our client to consent to your request.”

On February 16, 1965, the respondent entered the following order:

“The plaintiff has declined to give his consent for the defendant to examine the records of the Veterans Administration.
“The case is assigned for trial March 22, 1965. The plaintiff is given until March 2, 1965, to give his consent, or the reason why he will not give his consent for the examination of the records.
“If the plaintiff does not comply with the within order by March 2, 1965, then the court will stay all further proceedings, pursuant to Rule 37.03.”

After the entry of this order petitioner, by counsel, filed a response in which he stated the plaintiff would not give his consent for examination and use of the records in question.

On February 26, 1965, the respondent entered the following order:

“This matter coming on to be heard before the court, and arguments having been heard, the defendant’s motion to remand this case from the trial docket is sustained. The trial of this case is remanded from the trial docket until such time as the plaintiff authorizes the depositions of the custodians of the records at the Veterans Administration, Louisville, Kentucky, to be taken.”

Petitioner promptly filed this original action in this Court seeking a writ of mandamus directing the respondent to set aside the order complained of.

The lone question involved here is the propriety of that order. CR 37.03, among other things, provides:

“If any party * * * refuses to obey an order * * * made under Rule 34, to produce any document * * * or to permit it to be done, * * * the court may make such orders in regard to the refusal as are just, and among others the following: * * * (c) * * * or staying further proceedings until the order is obeyed, or dismissing the action * *

As noted above, the petitioner’s action in the circuit court is for personal injuries. His physical condition, obviously, was material to the defense of Murion and the other defendants, or they thought so, and the trial judge, the respondent, concurred.

Rules 33 to 37, including 37.03, were intended, not only to expedite the determination of issues and the final disposition of law suits, but to provide for full and frank disclosure of material evidence and situations to assist the courts to do justice. The rules are calculated to save time and money for litigants and lawyers alike.

This Court has concluded the evidence sought was competent, proper and material to defendants; that the order and action of the respondent was just, reasonable and authorized by CR 37.03.

Hedges v. Neace, Ky., 307 S.W.2d 564 (1957), cited by petitioners, contains no comfort for them. In that case, demand was made on a party at the trial to produce a copy of his income tax return. He testified he did not keep a copy. The court refused to require the party to file same. In upholding the ruling of the trial court, this Court said:

“Several federal courts have ruled that where a party has retained a copy of his income tax return, his adversary in a discovery proceeding under Fed. Rules Civ.Proc. rule 34, 28 U.S.C.A. (like Kentucky Rule 34) is entitled to have him file the copy or otherwise obtain one and file it. See Reeves v. Pennsylvania Railroad Co., D.C., 80 F.Supp. 107. We think it was proper under the circumstances for the court to have sustained the objections. In the first place, the party testified he had not retained a copy of his return and in the second place, it was too late to have required him to obtain and produce a copy as a matter of discovery.”

Petitioner relies on Bender v. Eaton, Ky., 343 S.W.2d 799 (1961), which is not a parallel case. In the Bender case, the lower court was attempting to require a party to produce writings prohibited by CR 37.02, which were “writing[s] obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent, in anticipation of litigation or in preparation for trial.”

By way of reminder, we should note that Bender is the landmark case interpreting CR 37.02 and similar provisions. It is also an interesting case on the power of this Court in original actions to prohibit a trial judge from proceeding in cases similar to the present case. We quote further from the Bender case:

“By section 110 of the Kentucky Constitution the Court of Appeals is given very broad supervisory control of lower courts. The exercise of this authority has no limits except our judicial discretion, and each case must stand on its own merits. Renshaw v. Cook, 129 Ky. 347, 111 S.W. 377; Rush v. Denhardt, 138 Ky. 238, 127 S.W. 785; Ohio River Contract Co. v. Gordon, 170 Ky. 412, 186 S.W. 178; Harrod v. Meigs, Ky., 340 S.W.2d 601.
“Relief by way of prohibition or mandamus is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief. This careful approach is necessary to prevent short-circuiting normal appeal procedure and to limit so far as possible interference with the proper and efficient operation of our circuit and other .courts. If this avenue of relief were open to all who considered themselves aggrieved by an interlocutory court order, we would face an impossible burden of nonappellate matters.”

Wherefore, the relief sought is denied and the petition dismissed.


author: DAVIS, Commissioner.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Luther F. ROBERTS et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.

      Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant.
    C. Homer Neikirk, Somerset, for appel-lees.
   DAVIS, Commissioner.

Appellees obtained judgment, pursuant to the jury’s verdict, for $11,000 as the compensation due them incident to this highway condemnation action. The appellant Department of Highways assails the judgment (1) as palpably excessive and unsupported by sufficient evidence of probative value, and (2) because witnesses for appellees recited value estimates computed from irrelevant measures of damage.

The right-of-way taken is for reconstruction and relocation of a portion of Kentucky Highway 90 between Burnside and Monticello. Prior to the taking the farm of appellees consisted of a tract of 106 acres, having frontage along the east side of existing Highway 90 for a distance of about 2300 feet. The improvements on the farm included a one-story, five-room frame residence, a tobacco barn, a stock barn, a chicken house and a drilled well. About 71 acres of the farm were level to rolling, tillable land, and the remaining 35 acres, situated along the rear or eastern portion of the farm, were hilly and rocky timberland. A small branch traversed the farm, in the rear of the improvements, running in a northwardly course. The evidence shows that the entire farm, with all improvements, had been assessed for taxation by appellees at the sum of $4,800. There is no showing as to the average percentage ratio of assessed value to fair cash value in Wayne County.

The permanent right-of-way taken consists of 6.51 acres, which is comprised of a strip extending south to north through the entire farm; the right-of-way strip is 2780 feet in length and its width varies from 80 to 120 feet. The new road severs the original boundary into two tracts: one of about 35 acres, containing all of the improvements and the drilled well, which is west of the new road; the other tract, lying east of the new road, has no improvements and contains about 29 acres of tillable land and the 35 acres of hill woodland.

Beginning at the southern boundary of the farm, the new highway is on a fill, the height of which varies from two to five feet; the remaining course of the new road is partially at grade level, then into a shallow cut, and finally upon a three-foot fill as it leaves the farm on the north. The new road is a free access road. In addition to the permanent right-of-way, three permanent easements aggregating 0.51 acres, and a temporary easement of 0.08 acres are required. None of the improvements is taken.

There were eight valuation witnesses for appellees and four for appellant. The range of the before valuations expressed by appel-lees’ witnesses was from $35,000 to $43,000; for the appellant the before values were estimated as between $30,000 and $30,300. There was less difference between the two sets of witnesses with respect to the after value. For appellees the after values were said to be from $23,000 to $32,000, whereas the appellant’s witnesses placed after values from $23,500 to $24,225. From these witnesses the respective differences between before and after values were computed as being between $10,000 and $18,750 for ap-pellees, and for appellant as between $5,775 and $6,500. As noted, the jury’s verdict was for $11,000, and well within the range of the testimony.

There was evidence that about an acre of the land remaining on the east side of the new road will be so situated as to present some difficulty in reaching it with farm machinery; this is because of the branch. The evidence reflects that some additional or new fencing will be required if the land is used for livestock, although the exact amount of it was not disclosed.

The valuation witnesses for both sides used sales of other properties deemed by them to be comparable to the subject property. It may fairly be said that the Department’s witnesses used a figure of about $300 per acre as the overall before value of the land, whereas the witnesses for the appellees used $400 per acre as the average before value figure. This, of course, accounts for the wide variance in their estimates of the farm’s value before the taking. It appears, however, that the appellees’ witnesses changed their views as to overall value when they came to the matter of reckoning the after value; in this phase of the case the witnesses for appellees appear to have employed per acre valuation, less than $300. It is difficult to find any substantial basis for this radical change in the before and after values.

The witnesses for both sides recognized that dividing the tract in two has some adverse effect upon the overall market value. However, it was shown by all witnesses that each tract may be farmed, and that the two tracts may be farmed, as a unit, albeit with less convenience than had obtained when it was in one tract. The element of the inconvenience to appellee Luther Roberts is clearly not a compensable item as such; only as the division of the land may affect market value of what remains may it be considered compensable. See Com., Dept. of Highways, v. Sherrod, Ky., 367 S.W.2d 844, where it is said:

“Evidence of factors bearing on diminution of value should be addressed to how they will affect market value and not how they will hurt the owner or make less advantageous the use of the property for his particular purposes, or create conditions that he would like to remedy. And no price should be put on the individual factors.”

The present case was tried after the decision in the Sherrod case, supra, and the matter of separating the amount allowed for land taken and resulting damages was handled as prescribed therein. However, one may not read the evidence for appellees and escape the conclusion that each witness for appellees did in fact place considerable emphasis on the inconvenience to “Uncle” Luther Roberts. It was suggested that Mr. Roberts was 77 years of age when the case was tried, and that he was not able to get into the fields to do much personal work; as the land had been situated before the taking, he was able to “farm” it from the homesite, but after the taking he will not be able to do so. Cf. Com., Dept. of Highways v. Herndon, Ky., 378 S.W.2d 620.

It was shown that after this reconstruction the appellees will have substantial frontage, as to the 35 acres with the improvements, both on the old and new roads; additionally, there will be the substantial frontage afforded the severed 64-acre tract on the new road. For the appellant there was testimony that the land remaining to the appellees would have some enhancement in value due to the availability of the frontages for building sites. This was countered for the appellees by evidence that since the property is about six miles north of Monticello there is no indication of a reasonable demand for building sites.

Appellant points to Louisville & N. R. Co. v. Burnam et al., 214 Ky. 736, 284 S.W. 391 (1925), wherein this court analyzed a verdict in its relation to the tax assessment on the entire farm. In the Burnam opinion the court pointed out that if the amount of the award were loaned at 6% interest it would result in an annual income of $7.60 per acre for every acre of the entire farm. Utilizing that same formula, appellant suggests that the amount awarded, placed at 6% interest, would produce an income in excess of $5.50 per acre. Appellant further argues that since the total land taken (about 7 acres) is slightly less than 7% of the original 106 acres, and the award equals $11,000, if this figure should be projected as applicable to the entire farm, it would produce a value in excess of $163,000—more than 34 times as great as the tax assessment evaluation. Additionally, it is noted that none of the improvements have been taken by the right-of-way. While we do not consider these arguments as controlling here, they do have some persuasive value.

One of the witnesses for the ap-pellees gave the highest estimate of the difference between the before and after values; namely, $18,750. This witness related that he had arrived at his before value by placing an overall value of $400 per acre on all of the farm. Then, in fixing, his after value, he reassigned $400 per acre for the 35 acres and improvements on the west side of the new road, to which he added $300 per acre for 26 acres of tillable land in the tract on the west side of the new road, and finally added only $50 per acre for 37 acres of hill land in the west tract. It is quite incredible, and supported by no other witness or evidence, that the hill land could have had $400 per acre value before—and certainly there is no reason assigned to account for putting the hill land back into the after value minus 87.5% of its before value. Neither are we able to conclude that the figure which this witness fixed as the difference in before and after values was harmless error, merely because the jury’s verdict was substantially less than the sum he suggested. When the incredible evidence of this witness is coupled with the recurring injection of the personal inconvenience to Mr. Roberts, and considered with the liberality of the verdict, we must assume that the high figure as to difference in before and after values played a significant part in the ultimate verdict of the jury. We have another instance wherein the evidence of the witness was of some probative value, but failed to possess sufficient probative value to support the estimate he made. To a lesser degree the same may be said of the other witnesses for appellees. There is simply no adequate showing that the greatly depressed after values to which they testified could reasonably flow from the factual situation at hand. In such cases, we are impelled to reverse the judgments based on inadequately supported verdicts. Com., Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; Com., Dept. of Highways v. Gearhart, Ky., 383 S.W.2d 922.

Since there may be another trial, we observe that it was not appropriate for the appellee Luther Roberts to premise his testimony of market value on “what the property is worth to me.” Com., Dept. of Highways v. Begley, 272 Ky. 289, 114 S.W.2d 127. In the event of a new trial, the rule announced in Com., Dept. of Highways v. Fister, Ky., 373 S.W.2d 720, will apply to the owner of the land.

Neither was it appropriate for the witness Hudson to express his value testimony in terms of what he had considered offering for the property. Com., Dept. of Highways v. Combs, 229 Ky. 627, 17 S.W.2d 748. Upon another trial care will be taken to avoid repetition of this incident.

The judgment is reversed for new trial and further proceedings consistent with this opinion.


text:
    Orville Lee MOORE, Petitioner, v. Honorable J. Miles POUND, Judge, Jefferson Circuit Court, Louisville, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    May 7, 1965.
    Orville Lee Moore, pro se.
   DAVIS, Commissioner.

Orville Lee Moore, a convict confined at Eddyville, has instituted this original action in this court pursuant to Ky. Constitution, § 110. In it he seeks an order of mandamus directing the respondent judge to grant him a hearing on his motion to vacate the judgment sentencing him to prison. RCr 11.42.

The petitioner asserts that his 11.42 motion was filed “nearly five weeks ago” and that he has had no notice of any action taken thereon. The present proceeding was begun here on April 13, 1965; the respondent judge was duly notified to make response herein within ten days, but has not done so.

Under these circumstances the case is ruled by Wahl v. Simpson, Judge, Ky., 385 S.W.2d 171; Helton v. Stivers, Judge, Ky., 385 S.W.2d 172; Flatt v. Wilson, Judge, Ky., 385 S.W.2d 172, and the order for mandamus must be granted.

The order of mandamus is granted and the respondent judge is directed to take steps forthwith to dispose of petitioner’s RCr 11.42 motion as may appear proper in the premises.


author: CULLEN, Commissioner.

text:
    Herman SANDERS and Myra Sanders, Appellants, v. Harry C. STAFFORD et al., Appellees.
    Court of Appeals of Kentucky.
    May 7, 1965.

      William G. Reed, Carrollton, for appellants.
    John G. Wright, Warsaw, for appellees.
   CULLEN, Commissioner.

Claiming fraud, Herman Sanders and wife brought action to set aside a deed by which they had conveyed certain real estate to Harry Stafford and wife. (By way of incidental relief the action also sought to set aside a subsequent deed of the property from the Staffords to Raymond Skirvin and wife.) The court entered summary judgment dismissing the action. The Sanderses have appealed.

The record shows that by virtue of certain documents executed by the Staffords simultaneously with the execution of the deed to them (to which documents the deed to the Skirvins expressly was subordinated), the Sanderses now have all of the ownership rights in their land that they had before they gave the deed to the Staf-fords, except that (1) they do not have paper title (however, it will be restored to them in 1967) and (2) their tobacco base is gone.

The depositions of the Sanderses (taken on the motion for summary judgment) show beyond question that the specific and sole objective of the transaction between the Sanderses and the Staffords was to transfer the tobacco base to the Staffords (who later sold it to the Skirvins). It is clear that the complicated paper maneuvers that were engaged in, including the transfer of paper title to the Staffords, were to get around federal regulations prohibiting a direct sale of a tobacco base.

The Sanderses testified in their depositions that the Staffords represented to them that the deed they were executing was only a six-year lease of the tobacco base. However this testimony can be given no credence in view of the other testimony of the Sanderses that their aim and purpose was to sell the tobacco base, that they sought out Mr. Stafford and asked him to buy the base, and that they fixed the sale price of $300 which the Staffords paid.

We think the trial judge was correct in his findings that the Staffords “did only those things which were necessary to transfer ownership of the tobacco acreage allotment,” that the Staffords made no misrepresentations to the Sanderses, and that the consideration paid was that requested by the Sanderses.

We think also that a summary judgment was proper, because there was no indication that the Sanderses would have any evidence to offer in support of their claim other than their own depositions, which instead of supporting their claim showed it had no merit.

The judgment is affirmed.