author:
MOREMEN, Judge.
      MONTGOMERY, Judge

text:
    Ruby HANEY, Administratrix of the Estate of Alene Faye Haney, Deceased, Appellant, v. CITY OF LEXINGTON et al., Appellee.
    Court of Appeals of Kentucky.
    May 22, 1964.
    Dissenting Opinion June 5, 1964.
    Rehearing Denied March 5, 1965.
    Darrell B. Hancock, Fowler, Rouse, Measle & Bell, Lexington, for appellant.
    Charles R. Zimmer, Richard S. Smith, Lexington, for appellee.
   MOREMEN, Judge.

Aleñe Faye Haney, age seven, met her death by drowning in the Woodland Park swimming pool in Lexington. The admin-istratrix of her estate filed suit against the City and alleged that the child’s death was caused by negligent operation of the pool by the City of Lexington. The City defended on the ground that maintenance and operation of parks and recreational facilities are classified as governmental— not proprietary — functions and, therefore, a municipal corporation is not liable for the results of negligence in the operation of such facilities. The circuit court, under ample authority, dismissed the complaint. See V. T. C. Lines, Inc. v. City of Harlan, Ky., 313 S.W.2d 573; Baker v. City of Lexington, Ky., 310 S.W.2d 555; and City of Louisville v. Pirtle, 297 Ky. 553, 180 S.W.2d 303.

So, once again, we are called upon to examine this legal anachronism of municipal immunity from liability for tort. In 41 N.C.L.Rev. 290, 291 (1963), this is said:

“There is probably no tenet in our law that has been more universally berated by courts and legal writers than the governmental immunity doctrine. The criticisms are wide-ranging and highly varied. Some common examples are: that it is unfair to impose upon the individual the burden of his damage, rather than upon the entire community where it justly belongs; that by denying a remedy for a wrong, the doctrine results in the deprivation of life, liberty, and property without due process of law; and that the doctrine runs counter to a basic concept underlying the law of torts, that is, that liability follows negligence.”

We pointed out in V. T. C. Lines, Inc. v. Harlan, Ky., 313 S.W.2d 573, that this Court in late years has accepted the theory with reluctance and has seized upon almost any excuse, however flimsy, to grant relief to any person harmed by negligence of a municipal corporation. The acceptance or use of a theory does not prove the truth or validity of the rule of law it supports. If its worth has been proven by extended experience, we can be content with that theory. But when a theory supporting a rule of law is not grounded upon sound logic, is not just, and has been discredited by actual experience, it should be discarded, and with it, the rule it supports. As stated in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal. Rptr. 89, 359 P.2d 457, 460, “The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia.”

Even the origin of this doctrine contains some elements of the mysterious. Some writers assume that it is a direct outgrowth of the divine right of the king who could do no wrong. But insofar as municipal or county or local district communities are concerned, it is generally agreed that the application of the immunity doctrine grew out of Russell v. Men of Devon, 2 T.R. 667, 100 Eng.Rep. 359 (1788), which involved a tort .action against an unincorporated county. In the Muskopf case this analysis of Men of Devon was made:

“The action was disallowed on two grounds: since the group was unincorporated there was no fund out of which the judgment could be paid; and ‘it is better that an individual should sustain an injury than that the public should suffer an inconvenience.’ 100 Eng.Rep. 359, 362. The rule of the Russell case was first brought into this country by Mower v. Inhabitants of Leicester, 9 Mass. '247, 249. There the county was incorporated, could sue and be sued, and there was a corporate fund out of which a judgment could be satisfied. Ignoring these differences, the Massachusetts court adopted the rule of the Russell case, which became the general American rule.”

It is equally hard to determine how this doctrine became imbedded in the law of our Commonwealth. Apparently we started without it because in Prather v. City of Lexington, 52 Ky. (13 B.Mon.) 559, 560 (1852), this was said:

“Where a particular act, operating injuriously to an individual, is authorized by a municipal corporation, by a delegation of power either general or special, it will be liable for the injury in its corporate capacity, where the acts done would warrant a like action against an individual. But, as a general rule, a corporation is not responsible for the unauthorized and unlawful acts of its officers, although done under the color of their office; to render it liable, it must appear that it expressly authorized the acts to be done by them, or that they were done in pursuance of a general authority to act for the corporation on the subject to which they relate. (Thayer v. Boston, 19 Pick. 511.) It has also been held that cities are responsible to the same extent, and in the same manner, as natural persons for injuries occasioned by the negligence or unskillfulness of their agents in the construction of works for their benefit. (Ross v. City of Madison, 1 Smith 98; Mayor of Memphis v. Lasser, 9 Humph., 757.) And where a city corporation is bound to keep the streets and sewers of the city in proper repair, it is liable to damages if any person be injured, by its neglect to have such repairs made, (The Mayor, etc. v. Furze, 3 Hill, 612; Mayor of Linn v. Turner, Cowp., 86.)” Recovery was denied in the foregoing case, however, because the Court determined there was no duty imposed upon a municipal corporation to protect against mob violence. (To remedy this condition a statute fixing liability upon the city was enacted. KRS 411.100.)

We will not trace the history of the attempt of the courts to lessen the severity of the rule of municipal immunity. It is sufficient to say that courts made distinctions between functions of the municipal corporation that purportedly were governmental or public and those thought to be proprietary or private, denying liability in the case of governmental functions, but imposing it in situations involving proprietary actions. At most, the distinctions seem to be contrived and without sensible basis. That which was proprietary in some states was deemed governmental in others. See Annot. 60 A.L.R.2d 1198, 1204 (1958).

The distinction we have made in this state has not resulted from uniform thought.. As early as 1910 this Court stated: “It must be admitted that many of the distinctions that this, court, as well as other courts of last resort, have made between. what are designated the public and private powers, duties, and liabilities of municipal corporations, are difficult to understand.” Kippes v. City of Louisville, 140 Ky. 423, 131 S.W. 184, 30 L.R.A.,N.S., 169. For instance, a city is liable for negligent failure to maintain its streets in a reasonably safe condition for public travel, Lampton & Burks v. Wood, 199 Ky. 250, 250 S.W. 980. It is not responsible for negligent acts which might occur when those same streets are sprinkled with water or oil. Kippes v. City of Louisville, 140 Ky. 423, 131 S.W. 184; and City of Georgetown v. Red Fox Oil Co., 228 Ky. 599, 15 S.W.2d 489. Nor is the city liable for injuries resulting from defects in a pathway (bridle path) located exclusively within a city park. City of Louisville v. Pirtle, 297 Ky. 553, 180 S.W.2d 303. The act of constructing a sewer is governmental in nature, with no liability, Smith’s Adm’r v. Commissioners of Sewerage of Louisville, 146 Ky. 563, 143 S.W. 3, 38 L.R.A.,N.S., 151, but afterwards, if a negligent act of the city causes the basement of a connecting residence to be flooded, the city is responsible in damages. Board of Councilmen of City of Frankfort v. Buttimer, 146 Ky. 815, 143 S.W. 410. When a city owns and operates a cemetery, it functions in a proprietary capacity. City of Hopkinsville v. Burchett, Ky., 254 S.W.2d 333. When it operates a park, the action is governmental. Baker v. City of Lexington, Ky., 310 S.W.2d 555. We see no reason to belabor this point. We believe that all of these contrived devices resulted from the fact that the courts for many years have been repelled by the injustice of the rule of municipal immunity and have attempted to soften, its harsh application by seeking a few escape hatches.

The reason the courts have denied their logical impulses and have continued to enforce an unfair rule of law is because they have been nurtured and sustained by another ancient and firmly fixed doctrine, that is, stare decisis et non quieta movere — to adhere to precedents and not to unsettle things which are established. But when established things are no longer secure in a fast changing world, the courts should re-examine the precedents and determine if they provide a proper standing under present conditions.

The Supreme Court of Florida, in 1957, was the first to pierce the armor of municipal immunity. The reason for that action may he found in the well-reasoned opinion in Hargrove v. Town of Cocoa Beach, Fla., 96 So.2d 130, 60 A.L.R.2d 1193. In 1959, the Illinois Supreme Court, in Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R. 2d 469, abolished the immunity from tort liability enjoyed by school districts. In that opinion are cited many cases and articles which demonstrate the incongruities resulting from attempts to fit particular conduct into one of the categories known as “governmental and proprietary.” In January 1961, the Supreme Court of California, in Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, rejected the doctrine of governmental immunity from tort liability. There, also, may be found a detailed analysis of the reasons why the doctrine arose and the reasons for its decline and subsequent abolition. Michigan followed this trend in Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1. In June 1962, the Supreme Court of Wisconsin, in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, followed by rejecting the doctrine of municipal immunity. In December of the same year, the Supreme Court of Minnesota, in Spanel v. Mounds View School District, 264 Minn. 279, 118 N.W.2d 795, found the doctrine of municipal immunity from tort liability to be archaic.

In November 1957, this Court in V. T. C. Lines, Inc. v. City of Harlan, Ky., 313 S.W.2d 573, criticized the doctrine and quoted with approval certain language from the opinion of the Florida Court, but nevertheless concluded: “We must make a choice as to whether the change in such a rule should be made by the legislature or by us. The majority of the court believes that the change addresses itself to legislative discretion and that we must content ourselves only with criticism of the rule which we have created.” We think we were incorrect in taking such a position. The very foundation upon which such an attitude is based is not a solid one. We have no reason to believe that the members of the legislature approve all existing common law rules concerning tort actions; in fact, many members of that body, when acting in individual capacities as lawyers, have rather forceably indicated in briefs and petitions for rehearing that they do not. It seems to us that an equally reasonable assumption is that the legislature might expect the courts themselves to correct an unjust rule which was judicially created. The very machinery of the short biennial sessions of the General Assembly denies to it the time or, for that matter, the inclination to examine the various doctrines and theories of common law torts. A great number of the legislators are not lawyers nor are they interested in the details of law.

In each of the various jurisdictions rejecting immunity, the Court was concerned as to what application might be given the law. It is within the inherent power of the Supreme Court of any state to give such a decision either prospective or retrospective application without offending constitutional principles. Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360. But that right does not solve the difficult problem of what to do when a change in the law has been made. It must be remembered that we are not dealing here with the law of real property or other fields where stability and predictability are often of utmost concern. The rule of stare decisis is admittedly limited in the field of torts. Molitor v. Kaneland Community Unit District, 18 Ill.2d 11, 163 N.E.2d 89.

The opinions in the cases from the various Supreme Courts which we have discussed above have applied the rule in different ways. The Florida Court in the Har-grove case applied the rule to the instant case without reference to either prospective or retrospective application. In the Molitor case, the rule was applied prospectively except as to the case at bar, thereby rewarding the appellant for affording the Court the opportunity of changing an unjust rule of law. In the Muskopf case, apparently the change in rule was made to apply to cases present and past. In the Williams case it was said: “From this date forward the judicial doctrine of governmental immunity from ordinary torts no longer exists in Michigan.” The rule in the Holytz case was applied to the case at bar and made prospective as to all others. In the Spanel case, as we understand it, the rule would not become effective until after adjournment of the next legislative session. It may be seen, therefore, that there was no unanimity in thought of the courts which have abolished the rule.

Three courses are open to us under such a situation as is presented here: (1) We can merely announce the new rule without applying it and suggest that it should be applied to cases brought to us in the future. (2) We can give relief to the appellant in the instant case, but deny it to any others whose injuries occurred before the date of the opinion; or (3) We can apply the rule in the instant case and permit all others who have been injured, not barred by the statute of limitations, to take advantage of the new rule. In the first instance the announcement of the new rule would be merely obiter dictum, which is frowned upon by some authorities. The second alternative gives the appellant a reward for his industry in again suggesting to the Court that it has been wrong. The third category, of course, permits retrospective relief. We see no particular reason why this third application of the rule is harmful. It is difficult to believe a city or any of its agents ever committed a tort deliberately and in reliance upon the doctrine of governmental immunity. We declare the law applicable not only to this case, but to all cases which may have arisen within the proper time of limitation.

In the V. T. C. Lines, Inc. case, this Court gave warning that it was dissatisfied with the rule of municipal immunity. We now recede from prior decisions which hold municipal corporations immune from liability for ordinary torts. We wish to make it plain, however, that this opinion does not impose liability on the municipality in the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions. We think the scope of abrogation adopted by Wisconsin is a proper one and we adopt it. It is stated in Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, as follows:

“Perhaps clarity will be afforded by our expression that henceforward, so far as governmental responsibility for torts is concerned, the rule is liability — the exception is immunity. In determining the tort liability of a municipality it is no longer necessary to divide its operations into those which are proprietary and those which are governmental. Our decision does not broaden the government’s obligation so as to make it responsible for all harms to others; it is only as to those harms which are torts that governmental bodies are to be liable by reason of this decision.”

It is not our intention at this time to consider the liability of any governmental unit other than that of a municipal corporation and its agents. In October 1963, in Foley Construction Co. v. Ward, Commissioner of the Department of Highways, Ky., 375 S.W.2d 392, the doctrine of state immunity was re-examined and reiterated.

Judgment reversed.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent because I feel it is inappropriate for this Court, in effect, to legislate by changing a long-standing rule of law. This problem was presented squarely to the General Assembly in V. T. C. Lines v. City of Harlan, Ky., 313 S.W.2d 573, in the following language:

“Regardless of how the majority of the personnel of this court may feel at the present time concerning whether we should follow the path marked by the Florida Court, we must recognize that we are faced with a judicial problem which results from the fact that the immunity rule (although never clearly defined) has become so imbedded in the common law of this state over the years that it has become a definite part of our mores. We must make a choice as to whether the change in such a rule should be made by the legislature or by us. The majority of the court believes that the change addresses itself to legislative discretion and that we must content ourselves only with criticism of the rule which we have created.”

The legislative power of the Commonwealth of Kentucky is vested in the General Assembly. Kentucky Constitution, Sections 27 and 29. There is an express prohibition against the exercise of this power by any person or collection of persons other than the General Assembly. Kentucky Constitution, Section 28.

Since the invitation to act was extended to the General Assembly in V. T. C. Lines in 1958, the General Assembly has met in regular session in 1960, 1962, and 1964. Numerous special sessions have been called in which this subject could have been included if any change in this law had been deemed necessary or desirable. No action has been taken on this matter by the General Assembly; not even a bill has been introduced. Inasmuch as the legislative branch of the government is supposed to reflect public sentiment and the changes therein and since this Court recognized municipal immunity as a proper subject for the exercise of the legislative power in V. T. C. Lines, I feel that it is highly presumptuous for the judicial branch of the government now to usurp the recognized prerogative of the legislative branch and to change the law of municipal immunity.

STEWART, J., joins in the dissent.


source: Caselaw Access Project

author: MOREMEN, Judge.

license: Public Domain

text:
    Cecil LANE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Rehearing Denied March 5, 1965.

      Claude Asbury, Catlettsburg, for appellant.
    Robert F. Matthews, Jr., Atty. Gen., David Murrell, Asst. Atty. Gen., for ap-pellee.
   MOREMEN, Judge.

Appellant, Cecil Lane, was arrested in Boyd County by a state trooper for improper passing in an automobile on a public highway. He had no operator’s license. The car was registered in his wife’s name. The trooper, after arrest, searched his person and placed him in a police cruiser which was parked close to Lane’s car. The officer called police barracks and requested a wrecker. He conversed with Lane for a few minutes and then returned to Lane’s car and searched it. He found about seven cases of whiskey in the trunk of the car. All of this occurred in dry local option territory. Appellant was indicted for the offense of transporting alcoholic beverages for the purpose of sale in dry territory, (KRS 242.230).

At the trial appellant moved to suppress all evidence obtained as a result of the search of the automobile on the ground that the search was illegal. The court overruled that motion. Appellant was convicted.

The facts of this case present two questions: (1) Does the arrest for a traffic violation give the officer a right to search the automobile without a search warrant? (2) May only the owner object to a search?

This Court, on many occasions, has examined the facts of particular cases in order to determine whether the search was illegal. The theory expressed in each opinion is not always the same and we believe it necessary to re-examine this doctrine in view of the fact that there appears to be danger in granting an excessively broad scope of search and seizure powers after an arrest for minor, and sometimes innocuous, traffic violations.

In recent years, in order to meet modern conditions, the powers of various police forces to stop motorists on the highway have been extended. At the same time it may be necessary to restrict the powers of search and seizure without warrant which have heretofore existed. For instance, in Commonwealth v. Mitchell, Ky., 355 S.W.2d 686 (1962), it was held that the action of police officers in setting up a road block for motor vehicles for the purpose of requiring drivers to display operators’ licenses is not an unlawful arrest or restraint or an illegal search contrary to the constitution. It is interesting to note, however, that the opinion contains this language:

“Let it be emphasized that we are dealing here with systematic and indiscriminate stopping of all motor traffic on the highway for the good faith purpose of making inspections of drivers’ licenses. Our decision may not be regarded as sanctioning the stopping of cars for the ostensible or pretended purpose stated when in reality it is actuated by an ulterior motive not related to the licensing requirement, or is done as a pretext or as a subterfuge for circumventing the constitutional provision against searches of persons and property without a valid warrant. We shall- continue to condemn such an act. See 5 A, Am.Jur., Automobiles and Highway Traffic § 134; Cox v. State, 181 Tenn. 344, 181 S.W.2d 338, 154 A.L.R. 809.”

Our leading case on the subject of search and seizure is Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303 (1920) which contains this statement:,

“And this broad protection against unlawful search and seizure applies with equal force to the person, and, subject to the exception that an arresting officer has the right to search the person of a prisoner lawfully arrested and take from his person and hold for the disposition of the court any property connected with the offense for which he is arrested that may be used as evidence against him, or any weapon or thing that might enable the prisoner to escape or do some act of violence, it is as great a violation of the Constitution for an officer to search a person or baggage carried about by him, without a warrant authorizing it, as it is to search his premises.”

We believe no one will deny the logic of the exceptions above noted. Hard reality demands that the person in custody be disarmed in order to protect the officer from harm, to prevent the escape of the arrestee, or the destruction of evidence which pertains to the offense for which he was detained. Let us remembr that both the 4th Amendment to the Constitution of the United States, and § 10 of The Kentucky constitution protect only the right of the people to be secure in their persons, houses, papers, and effects from unreasonable search and seizure, and exceptions above noted are based on sound reason.

It is our opinion that when a person is arrested for a traffic or other minor violation, the mere fact of the arrest does not give to the officer absolute right to search the vehicle or the premises indiscriminately. It would be impossible to lay down a rule which would apply to all conditions and all states of facts and this opinion should not be construed to mean that a person in custody may not be searched in order to be disarmed, or to prevent escape or the immediate destruction of evidence for which he was detained.

The case at bar did not offer facts of an extreme emergency. Appellant had been arrested, searched and placed in another car. If the arresting officer was interested in a search of the automobile, he might have obtained, upon proper ground, a search warrant.

Fundamental principles are not difficult to announce or apply in the first cases that appear before a court, but with each succeeding case, as variations and sometimes exceptions are made from the principles, the rules progressively become weakened by their application to diverse states of facts.

We have had this trouble in connection with cases involving the question of whether permission for the search has been given, either actual or implied. In Gilliland v. Commonwealth, 224 Ky. 453, 6 S.W.2d 467 (1928) where a search of the premises was made without an arrest, the facts did not involve strictly a search after an arrest, but this case has often been cited and used as precedent for the proposition that no one may object to a search if he is not the owner of the property searched. In that case the appellants were both adults and lived upon premises owned by their father. About two years before the search the father was stricken with paralysis and from then on the sons were in actual management and control of the farm premises owned by their father. The opinion discusses several theories, but seems to turn upon the fact that consent for the search by the father was not actually given because he was mentally incompetent and the judgment of conviction of the sons was reversed. The whole import of the opinion seems to be that since the sons were in actual management and control of the farm a search without their consent or some consent that could be imputed to them was illegal. Yet this case has been used as precedent for the proposition that only the owner may object to a search of property.

In West v. Commonwealth, 273 Ky. 779, 117 S.W.2d 998 (1938) after a chicken theft the officers approached a parked car belonging to Rex Walls, and occupied by him and Mark West. After the arrest, the officers heard chickens squawking in the rear of the car and, without a search warrant, opened the lid of the trunk and found them. On the trial of West, it was contended that this was an illegal search. The court disposed of that contention by saying: “In any event the evidence was competent as to appellant (West), since he was not the owner of the car which he claims was illegally searched.” The Gilliland case was asserted as authority for that statement.

We perpetuated this theory in Pruitt v. Commonwealth, Ky., 286 S.W.2d 551 (1956) where we said:

“Another sufficient reason why the appellant cannot raise any valid constitutional grounds against the search of the automobile is because it was not shown that he was the owner of the car. Appellant did not testify during trial, nor was it otherwise shown that he was the owner of the automobile which he claims was illegally searched. See West v. Commonwealth, 273 Ky. 779, 117 S.W.2d 998; Gilliland v. Commonwealth, 224 Ky. 453, 6 S.W.2d 467.”

The Pruitt case was cited with approval in Combs v. Commonwealth, Ky., 341 S.W. 2d 774 (1961) and the Combs case was cited in Smith v. Commonwealth, Ky., 375 S.W. 2d 242 (1964). Perhaps the last time this question was discussed by the Court was in Brown v. Commonwealth, Ky., 378 S.W. 2d 608 (1964) where it was said:

“The last point raised is that the search of the automobile was illegal. Although, as heretofore indicated, Brown was driving the car at the time, he was not its owner. Kenneth Locke had borrowed the car for the trip and, as he was in charge of it, he appears to have been the only person, if any, who could have complained of an illegal search; and the record does not reveal that Locke objected to the search of the automobile.
“This Court has held in a long line of cases that an automobile guest, and such was Brown, is not in a position to object to the search of such a vehicle without a warrant. See Smith v. Commonwealth, Ky., 375 S.W.2d 242; Combs v. Commonwealth, Ky., 341 S.W.2d 774; Pruitt v. Commonwealth, Ky., 286 S.W.2d 551.”

We will not attempt to discuss all cases which were based upon the idea that anyone who was not owner of the property was not in a position to object to its search. The opinions which followed the Gilliland case each time became more positive in the assertion that only an owner was entitled to object to the search, but in the Gilliland case where the search was held illegal, the sons were not the owners, but had obtained a proprietary interest in the farm because they managed it. This case has been continuously cited in support of a proposition — that only an owner may object — which it did not announce.

We believe this is a fit time to reexamine the question, since in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081, 84 A.L.R.2d 933 (1961) the right of privacy set forth in the 4th Amendment to the U.S. Constitution has been declared enforceable against the states through the due process clause of the 14th Amendment. In Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 233 (1960) the Court thoroughly examined the question of the amount of interest a person must have in the premises or other possessions before he is in a position to object to a seizure, and subsequently have the evidence obtained suppressed by proper motion. After discussion of tire special problems that had arisen in the past concerning distinctions among various classes of owners, and in some instances proprietors of property, the Court concluded that it was unnecessary and ill-advised to import into the law of the right to be free from unreasonable search and seizure, “subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.” The Court said:

“No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner’s testimony established Evans’ consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated.”

When we return to the facts of the instant case we find that appellant, Cecil Lane, was in complete control and possession of the car searched. There is some secondary proof in the record that the car was registered in his wife’s name, but this proof does not have the high quality of primary evidence. We have concluded therefore that his interest was such that even though he was not the owner, he was entitled to have the evidence obtained by reason of the search suppressed.

The Supreme Court of Wisconsin, in a recent case (Barnes v. State, 25 Wis. 2d 116, 130 N.W.2d 264, October 6, 1964) reached the same conclusion in the points at issue that we have. It also commented upon a problem which has long disturbed lawyers. It said:

“While defendant conceded the lawfulness of the arrest, we deem it advisable to add the observation that the type of search here conducted raises a strong suspicion that the original arrest for the minor traffic offense committed was but a pretext to search defendant for narcotics. Cf. Taglavore v. United States (9th Cir.1961) 291 F.2d 262, 265. As the United States supreme court declared in United States v. Lefkowitz (1932) 285 U. S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877. ‘An arrest may not be used as a pretext to search for evidence.’ ”

We agree.

Judgment reversed.


author: WADDILL, Commissioner.

text:
    Ben M. COMBS, Commissioner, and the Department of Motor Transportation, Appellant, v. DAVE BOSTER, INC., Appellee.
    Court of Appeals of Kentucky.
    Feb. 5, 1965.
    Robert Matthews, Atty. Gen., F. P. Farmer, Sp. Asst. Atty. Gen., Frankfort, for appellant.
    Rudy Yessin, Smith, Reed, Yessin & Davis, Frankfort, for appellee.
   WADDILL, Commissioner.

This appeal presents the question of whether regulation 12-02 of the Department of Motor Transportation contravenes KRS-281.665(7) in that it has the effect of improperly restricting the operations of Dave Boster, Inc. The trial judge answered this affirmatively.

Under the provisions of KRS 281.665 (7), if the Department ceases to designate a certain commodity as “exempted,” a qualified motor carrier “may be entitled to such authority as will thereafter authorize continuation of the same operation which was being conducted at the time of the department’s action in removing the item or items.”

The exempted commodities which Boster, Inc., was previously authorized to transport were removed from exempted status by an order dated November 17, 1959. Prior to this date Boster, Inc., had received shipments originating in zone one of Ft. Campbell, Kentucky. On August 5, 1960, the Department promulgated regulation 12-02 providing that when certificates issued to •carriers, such as Boster, Inc., were reissued they would “restrict the location of the terminal and office facilities to a single designated town or city and its commercial area.”

Subsequently the transportation officer at Ft. Campbell was advised by the Department that Boster, Inc., was not authorized to have a terminal and office at any place except Bowling Green, Kentucky. Accordingly, the transportation officer notified Boster, Inc., that its office in Trenton, Kentucky, was ineligible to receive shipments from zone one of Ft. Campbell.

The Department contends that regulation 12-02 could not possibly restrict Boster, Inc’s, operations since the last sentence of that regulation provides:

“Nothing herein shall be so construed as to limit the points of origin or destination which may be served under such a certificate.”

It appears from the pleadings and exhibits that in order to continue serving zone one of Ft. Campbell Boster, Inc., must have an authorized place of business within 30 miles of zone one. In restricting Boster, Inc., to a terminal and office in a single area the regulation has the effect of preventing it from continuing its zone one, Ft. Campbell operations. It, therefore, does contravene KRS 281.665(7).

The Department further contends that regulation 12-02 does not contravene the statute when read in connection with regulation 12-03, promulgated August 16, 1961, providing that if a carrier had more than one terminal and office prior to January 1, 1961, such a carrier is entitled to have these additional places shown on its ■certificate. However, the record does not disclose that Boster, Inc., operated an office in Trenton prior to January 1, 1961. If it did not, regulation 12-03 would be inapplicable to Boster, Inc. Hence, this contention is unmeritorious.

Under these circumstances we hold that the Department may not restrict Boster, Inc., to a terminal and office in Bowling Green. We do not find it necessary to determine the broader question of the authority of the Department to restrict terminals and offices of carriers generally.

The judgment is affirmed to the extent it is consistent with this opinion.


author: CULLEN, Commissioner.

text:
    Glyndle TABOR, Appellant, v. I. C. LOOMAN et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Rehearing Denied March 5, 1965.

      Val A. House, Jr., Scottsville, for appellant.
    G. D. Milliken, Jr., Bowling Green, for appellees.
   CULLEN, Commissioner.

Glyndle Tabor appeals from a judgment rendered upon a jury verdict rejecting his claim for damages for the alleged contamination of his pond by an oil well dug upon his land by appellee, who holds an oil and gas lease from the owners of the mineral rights in the land.

Appellant has based his appeal on the failure of the lower court to give proper instructions. We do not find it necessary to consider the instructions since there is no proof in the record that the pond was contaminated. According to appellant’s own testimony he had never seen any oil in the pond, although he was afraid that some oil might get into the pond in the future. Also, several other witnesses, including Frank Walker, Director of Oil and Gas Conservation for the Commonwealth of Kentucky, who tested the water, testified that the pond was not contaminated.

Appellant’s failure to produce any evidence that his pond was contaminated is a flaw that is fatal to his case.

Appellant argues that he was entitled to have submitted to the jury the question of damages for a weakening of the retaining wall of the pond caused by the digging of the well. However, the complaint did not ask for damages on that ground and there was only a brief, casual reference to such damage in the plaintiff’s testimony. It cannot be said that the issue was tried by express or implied consent of the parties within the meaning of CR 15.-02.

The judgment is affirmed.


author: PALMORE, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Hattie CONLEY, Widow, et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Rehearing Denied March 5, 1965.

      John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Edmond H. Tackett, Jarvis Allen, Pikeville, for appellant
    Earl R. Cooper, Salyers ville, for appel-lees.
   PALMORE, Judge.

The Commonwealth appeals from a judgment of the Magoffin Circuit Court awarding the owners $3,500 for the taking of three small strips of their land, totalling .84 acres, incident to the widening of a public road.

The case is invested with some degree of confusion by reason of the circumstance that the parties do not agree as to the boundaries of the road prior to the widening and the trial court evidently did not determine that question. Although the plans were not filed as an exhibit, the testimony indicates that the state claimed an existing right-of-way 30 feet wide and is taking an additional 15 feet on each side. As of the time of the taking the pavement of the road was 16 feet in width, so that the claimed right-of-way extended seven feet to each side. A stone wall on one side of the road was located entirely within this seven-foot margin. A frame store building on the same side stood about two feet from the blacktop and was situated directly over the headwall of a culvert running under the highway. Across the road sat a frame garage structure 2J4 feet from the blacktop. All of these, says the state, were on its right-of-way. However, the owners had never before been requested to move them.

The only evidence tending to establish public ownership was testimony to the effect that the road was built in WPA days and the state had title by prescription. Obviously the two wooden structures were erected after the road was built, as each of them is partially on the shoulder and extends out over the toe of the fill. The stone wall seems to have been erected more or less contemporaneously with the building of the road. But in any event, title by prescription does not ripen overnight, and even if the road was completed first, and even if the public possession could be said to have reached to or beyond the extremities of the fills and head walls, there is nothing in this record to warrant a conclusion that a prescriptive title was perfected before the encroaching structures were put up. Under the circumstances it cannot be assumed that they were on the public right-of-way . before the instant taking. .

The two strips on which the wall and buildings were situated were part of a tract of some 20 acres purchased by the owners some time in the 1950’s for $6,500. At the time of that purchase there was a 5-room frame dwelling located behind the stone wall we have mentioned. It had burned down before this case arose, but the site, or “house seat,” was suitable for rebuilding a residence. According to witnesses for the owners, this was the only valuable part of the whole 20 acres, the rest being hill land and unsuitable for profitable development. The taking of 15 feet beyond the 30-foot right-of-way already claimed by the state will, they say, destroy its value because not enough room will be left against the hill for the location of a home.

Lawrence Hall, husband of one of the owners, testified that he had bought, sold, now owns, and is familiar with the value of real estate, had built two homes himself, and is well acquainted with the property in question. He estimated its value before the taking at $5,500 and after the taking at $2,000 to $2,200.

Wess Rowe, who had lived in the neighborhood all his life and had once lived on this particular property, did not presently own any land but had- seen it bought and sold and was of the opinion that the value before was $6,000 and the value after was $2,000. He was an intelligent witness, explaining on cross-examination that the $4,-000 loss lay in the homesite. He admitted, however, that he did not know of any comparable sale as high as $4,000 per acre.

Tom Howard also had resided in the vicinage all his life and was the owner of 7 acres of bottom land and 40 acres of hill land bought in 1958, the same year as the taking in this case. He had bought, sold and traded real estate and was familiar with land values. His opinion was that the fair market value of this property was $5,-500 or'$6,000 before the taking and $1,-500 to $2,000 after. He attributed the loss principally to excessive reduction in size of the residential site.

Under the principles discussed and approved in Commonwealth, Dept, of Highways v. Tyree, Ky., 365 S.W.2d 472, 477-478 (1963), there can be little question that the opinions of these valuation witnesses were competent and of sufficient probative value to withstand the Commonwealth’s motions to strike their testimony.

During the trial, counsel for the Commonwealth moved that the jury be sent to view the property but objected to its being taken by the sheriff, because he was the defendant in another condemnation suit then pending in Magoffin County. Upon the objection’s being overruled the Commonwealth moved that its engineer be permitted to go with the jurors to the property. This too was overruled, and prejudicial error is claimed.

KRS 177.087(1) provides that the jury, “on the application of either party, shall be sent by the court, in the charge of the sheriff, to view the land and material.” The court sustained the motion for a view and charged the sheriff and his guards as follows :

“You and each of you do solemnly swear that you will take these jurors out to the Hattie Conley property; the sheriff, Mr. Holbrook, will show them where the property is located; he will not point out the boundary or the width of the right-of-way taken. The jury will arrive at those things from the evidence and blue prints that is being introduced in court. You will just show where the Hattie Conley property is located and the jury will look it over and you won’t talk to any of them about anything connected with the trial of the case and won’t let anybody else talk to them or attempt to talk to them about anything connected with the trial of this case.”

There is a rebuttable presumption that a sheriff while in custody of a jury on a view performed his duty properly. Southern Ry. Co. in Kentucky v. Alford’s Adm’r, 150 Ky. 808, 150 S.W. 985 (1912). It is not suggested that the trial court’s admonition was not duly observed. Therefore, had the objection been well taken (which we do not say), still there is no showing of prejudice.

As the sheriff knew where the property was, it was not necessary that any of the parties or their representatives go along to point it out. The only function the Commonwealth’s engineer could have performed by accompanying the viewing party was to act as a watchdog. Anything he might have done beyond that would certainly have been impermissible. Keeney v. Commonwealth, Dept. of Highways, Ky., 345 S.W.2d 481 (1961). We do not believe the trial court abused its discretion in refusing to allow a representative of one of the parties to attend the view. Moreover, again in view of the presumption to which we have alluded, there is no indication of actual prejudice.

In the county court proceedings the commissioners appointed to fix the value of the property taken and the amount of resulting damages (KRS 177.083) reported these items substantially as follows:

Land $1070.
Moving buildings
1 Store building 1200.
1 Garage 1200.
1 apple tree, 2 flower shrubs 30.
Total $3500.

The owners did not appeal from the county court award reflecting this report. On the theory that the last three items shown on the commissioners’ report are not allowable under Commonwealth, Dept, of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963), the Commonwealth takes the position that only the value of the land taken was properly in issue on the appeal to circuit court and, since the owners did not appeal, their recovery should have been limited to $1070.

This case was tried in 1962. The Sherrod opinion, announced in 1963, does not apply retrospectively to the separate assessment of “taking” and “resulting” damages. Even if it did, we do not believe the improper manner in which the county court commissioners chose to fix and itemize the damages made it incumbent on the landowners, who evidently were satisfied, to appeal in order to save their right to a proper award in the circuit court, so long as it did not exceed $3,500.

The judgment is affirmed.

      . Which had the practical effect of modifying the procedural aspect of KRS 177.083.


author: HAMILTON, Justice.

text:
    BOARD OF FIREMEN’S RELIEF AND RETIREMENT FUND TRUSTEES OF TEXARKANA, Texas, Petitioner, v. Ozella HAMILTON et al., Respondents.
    No. A-10208.
    Supreme Court of Texas.
    Jan. 27, 1965.
    Rehearing Denied March 3, 1965.
    Sidney Lee, Texarkana, for petitioner.
    Friberg & Parish, Wichita Falls, for respondents.
   HAMILTON, Justice.

This suit involves pension benefits claimed by a widow and minor daughter of a deceased fireman who was employed by the City of Texarkana, Texas, at the time of his death. The respondent, Mrs. Ozella Hamilton, filed a claim with the Board of Firemen’s Relief and Retirement Fund Trustees of Texarkana, Texas, hereinafter called Board of Trustees, seeking pension benefits as provided in Article 6243e of the Vernon’s Ann. Revised Civil Statutes. The Board of Trustees denied said claim and respondent appealed to the Firemen’s Pension Commissioner, who, after hearing, rendered a decision, that the respondents were entitled to benefits tmder the act in the total sum of $150.00 per month payable to respondents in the sums of $110.00 to Mrs. Hamilton and $40.00 to the daughter, subject to certain conditions. The Board of Trustees appealed from said order of the Commissioner to the District Court of Travis County, which court after hearing rendered judgment upholding the order Of the Firemen’s Pension Commissioner. The Board of Trustees appealed to the Third Court of Civil Appeals and that court has affirmed the judgment of the trial court. 378 S.W.2d 361.

The Board of Trustees contended in both courts below, and contends here, that the Firemen’s Pension Commissioner had no appellate jurisdiction over the order of the Board of Trustees. We agree that the Firemen’s Pension Commissioner was without jurisdiction in this matter, as was asserted in the dissenting opinion of the Court of Civil Appeals, which followed Hall v. Board of Firemen’s Relief, etc., 351 S.W. 2d 342, Tex.Civ.App., no writ history. Our conclusion is based simply on the fact that the statute fails to provide for an administrative appeal in this situation.

Section 12 of Article 6243e, V.T.C.S., provides for certain monetary benefits for a surviving widow and children under the age of 18 years or dependent parents in case the deceased fireman’s death was from a cause growing out of or in consequence of the performance of his duty. There is no provision for an appeal by such beneficiaries. There is under Section 18 of said Article 6243e a provision that the fireman himself if aggrieved by an order of the Board of Trustees could appeal. Such provision is in part as follows, to wit:

“Sec. 18. Any person possessing the qualifications herein required for retirement for length of service or disability or having a claim for temporary disability who deems himself aggrieved by the decision or order of any Board of Trustees, whether because of rejection or the amount allowed, may appeal from the decision or order of such Board of Trustees to the Firemen’s Pension Commissioner * *

Section 19 of said Article 6243e provides for the office of Firemen’s Pension Commissioner and also provides that such Commissioner “ * * * shall hear, determine, and/or review all appeals herein provided * * *»

In one of respondent’s cross points in the Court of Civil Appeals she contends that since her claim for compensation as provided by statute involves a property right and that even though the statute made no provision for an appeal, that under the due process clauses of both the State and United States Constitutions she is entitled to an inherent right of appeal. We agree with the respondent on this proposition. This court has so held. Brazosport Savings & Loan Association v. American Savings & Loan Association, 161 Tex. 543, 342 S.W. 2d 747; City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788. We disagree, however, with the respondent in her contention that her right of appeal in this instance is to another administrative agency, to wit, the Firemen’s Pension Commissioner. What the Constitution guarantees her is a judicial review of an order of an administrative agency affecting her property rights. Such a review must be sought in a court of competent jurisdiction, not to some other administrative agency.

We reverse the judgments of the Court of Civil Appeals and the District Court and remand the cause to the trial court.


author: GRIFFIN, Justice. CALVERT, Chief Justice

text:
    Russell LOVELL et al., Petitioners, v. Jessie M. STANFORD et al., Respondents.
    No. A-10172.
    Supreme Court of Texas.
    Jan. 27, 1965.
    Rehearing Denied March 3, 1965.

      Talbert, Giessel, Cutherell, Barnett & Stone and Robert C. Barnett and Don 'Weitinger, Houston, for petitioner Lovell.
    Hicks, Dollahon & Wohlt, Houston, for petitioner Gilbert M. Marcus.
    Hill, Brown, Kronzer, Abraham, Watkins & Steely, Freeman Bullock and W. James Kronzer, and Charles Coussons, Jr., Houston, for respondents.
   GRIFFIN, Justice.

This is a rear-end collision case involving three automobiles. From front to rear, Auto No. 1, driven by Mrs. Jessie M. Stanford, and in which Mrs. Ida Armstrong was a passenger, was proceeding in a westerly direction toward Houston on the Gulf Freeway at approximately 5 :00 o’clock in the afternoon of April 4, 1960. Mrs. Stanford approached the exit by which she was to leave the freeway and pulled over into the far right lane of the three traffic lanes. Due to an accident on an access road the traffic in Mrs. Stanford’s exit lane became congested and began to slow down. Mrs. Stanford slowed down to a complete stop. Very shortly after she had stopped, Car No. 2, driven by Mr. Marcus ran into the rear of Car No. 1, and very shortly thereafter Car No. 3, driven by Mr. Lovell, ran into the rear of Car No. 2, and there was evidence that as a result of this collision Car No. 2 was driven into Car No. 1.

Mrs. Stanford and Mrs. Armstrong filed suit against both Mr. Marcus and Mr. Lovell, alleging, “The above named defendants failed to use due care, such failure amounting to negligence, and such negligence being the approximate (sic) cause of the collision and of the resulting damage to your plaintiffs.” No specific acts of negligence were alleged.

The case was tried to a jury, but at the conclusion of the testimony the trial judge refused to submit to the jury any issues as to negligence or proximate cause, but held both the defendants were guilty of negligence as a-matter of law, which negligence was a proximate cause of plaintiffs’ injuries and damages, as a matter of law. The trial court submitted only damage is■sues as to the joint liability of the defendants, and upon the jury answers as to the amount of damage, judgment was render•ed for the plaintiffs against the defendants for the amount of damages found by the jury. On appeal, the Court of Civil Appeals affirmed the trial court’s judgment. 378 S.W.2d 399.

We reverse the judgments of both courts "below and remand the cause to the trial •court.

It is elementary, and requires no ■citation of authority, that the judgments •of the courts below can only be sustained in the event that the evidence introduced at ■the trial be such that reasonable minds ■could only conclude that defendants were ■negligent as a matter of law and that as .a matter of law this negligence was a proximate cause of the injury and damages suffered by the plaintiffs. To determine this •question we must analyze the evidence.

Mrs. Stanford testified that she saw the •cars ahead of her slowing down and realized she must stop. She put her left hand •out of the car door and gave the hand signal for a stop. Also, she testified that when .she began to slow down for the stop, she ■applied her brakes and that this caused her brake lights at the rear of her car to come •on and thus signal following traffic that ■she was about to stop. Both Mr. Marcus, driving Car No. 2, and Mr. Lovell, driving ■Car No. 3; testified that they were looking at Mrs. Stanford’s car as it was stopping, .and that neither of them saw any hand signal given by Mrs. Stanford, nor did either •see the brake lights come on. Mr. Marcus testified that Mrs. Stanford brought her •car to a quick stop, and that he put on his brakes at once and only lightly struck Car No. 1, and that his car and Mrs. Stanford’s ■car came to rest “bumper to bumper,” and without any appreciable jar. He further ■testified that within two or three seconds after his car had come to rest, Car No. 3 ran into the rear end of Car No. 2 and knocked it violently against Car No. 1, and this caused damage to the rear and the front of his car.

Mrs. Stanford testified that the first collision moved her in the seat and pushed her forward, while the second collision threw her up and over the steering wheel and strained the ligaments of her neck to such a great extent that she has had to wear a neck brace since the injury.

Mrs. Armstrong testified that there were two collisions and that the second was the greater of the two; that the first lick (collision) knocked her purse down and the second lick knocked her off the back seat and onto the floorboard between the front and back seats.

Mr. Lovell testified that he heard the screeching of the tires on Mr. Marcus’ car and Marcus’ brake lights came on, and he heard the noise of the impact of Car No. 2 with Car No. 1. He also testified that although he hit Car No. 2, his impact did not drive Car No. 2 into Car No. 1, and that there was but one collision with Car No. 1, and that was the collision of Car No. 2 with Car No. 1, and immediately prior to Car No. 3 colliding with Car No. 2.

Mr. Marcus further testified that when he saw the car in his lane ahead of him slowing down, he glanced in his rear vision mirror for three-quarters of a second to see if he could safely turn into the lane immediately to his left and avoid the car in front of him; that due to the traffic in this left lane, he could not turn out of the lane he was in, and when he looked back at Car No. 1, it was rapidly coming to a stop, and that he, Marcus, immediately hit his brake and thus caused his brake lights to come on, but due to the rapidity of Car No. 1 in stopping, Car No. 2 was unable to avoid colliding with Car No. 1. He testified that after Car No. 3 collided with Car No. 2, he got out of Car No. 2 and went up to Car No. 1 and opened the door by the driver and saw that Mrs. Stanford had her brake down to the floorboard.

We think a recitation of the above evidence demonstrates that neither negligence nor proximate cause as to either or both of the defendants was established as a matter of law, but were issues of fact to be decided by the jury trying the case.

All testimony as to the facts of the accident came from the parties. This testimony is conflicting in material particulars, as is shown above. Each of the witnesses gave testimony contradicting each of the other witnesses. In such case there are jury issues to be resolved by the jury, and an instructed verdict may not be given. Flack v. First National Bank of Dalhart, 148 Tex. 495, 226 S.W.2d 628 (9,10), 1950, and authorities there cited.

The testimony would support a jury finding that the collision of Car No. 2 with Car No. 1 was not a proximate cause of the injuries and damages suffered by the plaintiffs. In fact, the testimony of plaintiffs would support such a finding. The jury, from the testimony could find that the collision of Car No. 3 with Car No. 2 drove Car No. 2 into Car No. 1, and this caused all the injury or damage. On the other hand, Lovell’s positive testimony that he did not knock Car No. 2 into Car No. 1 when he ran into the rear end of Car No. 2, raised the issue that this last collision was not a proximate cause of the plaintiffs’ injury and damages.

It was error for the trial court to fail to submit to the jury issues inquiring as to the negligence of each of the defendants, and if such negligence, if any, was a proximate cause of the injury and damages suffered by the plaintiffs. For this error the judgment must be reversed and the cause remanded to the trial court.

Defendants pointed out this defect in their separate motions for judgment and to disregard the jury answers to the damage issues.

The judgment of both courts below are reversed, and this case remanded to the trial court for retrial consistent with this opinion.

CALVERT, Chief Justice

(concurring).

I concur in the judgment rendered and entered in this cause, but I do not agree with the Court’s opinion in entirety.

In my opinion, negligence of Lovell and Marcus was established as a matter of law. However, I agree that the evidence does not establish as a matter of law that the negligence of either defendant was a proximate cause (cause in fact) of the plaintiffs’ injuries; and, for that reason, I concur-in the judgment of reversal and remand.

SMITH and NORVELL, JJ., concur in this opinion.


author: PER CURIAM.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Petitioner, v. Farris GENTRY, Respondent.
    No. A-10250.
    Supreme Court of Texas.
    Feb. 3, 1965.

      Joe Resweber, County Atty., and Charles J. Wilson, Asst. County Atty., Houston, for petitioner.
    Donald Lasof and Charles Coussons, Jr., Houston, for respondent.
   PER CURIAM.

Following a determination by the Houston Corporation Court No. 3 that Farris Gentry, respondent, was an habitual violator of the traffic law as defined by Article 6687b, Section 22(b), Vernon’s Ann.Tex. Civ.Stat., the Department of Public Safety ordered his driver’s license suspended for a period of three months. Respondent appealed to the County Civil Court at Law No. 1 of Harris County, and that court rendered summary judgment upholding the suspension. The Court of Civil Appeals reversed such judgment and remanded the cause for a new trial. 379 S.W.2d 114.

The Court of Civil Appeals held: (1) that the judgments convicting respondent of moving traffic violations can be impeached in this proceeding by showing that he did not appear in open court either in person or by counsel and that there was no forfeiture of bail deposited to secure his appearance in court; and (2) that respondent’s affidavit also raises an issue of fact as to whether he is the person who was adjudged -guilty of the violation which occurred on April 4, 1961. We do not agree with either of these conclusions. The first is contrary to our holding in Texas Department of Public Safety v. Richardson, Tex.Sup., 384 S.W.2d 128, and in our opinion respondent’s affidavit does not state or even suggest that he is not the person who was charged in the case involving the violation of April 4, 1961.

This record differs in one significant respect, however, from the one considered in the Richardson case. The motion for summary judgment there was supported by properly authenticated copies of four notices of conviction for moving traffic violations occurring within a period of one year. Since the notices of conviction are admissible in evidence under the provisions of Article 3731a, Vernon’s Ann. Tex.Civ.Stat, the authenticated copies thereof were properly before the court on the motion for summary judgment. We held that the notices of conviction would be presumed to reflect the provisions of the respective judgments upon which they were based.

The present record does not contain copies of either the notices of conviction or the judgments of conviction. Petitioner’s motion for summary judgment is supported only by an affidavit of the Deputy Custodian of Driver Records of the Texas Department of Public Safety. It states that respondent’s operating record shows final convictions of four moving traffic violations and gives the date and nature of each violation, that final judgments of conviction have been entered against respondent as evidenced by notices of conviction certified to the Department of Public Safety by the convicting courts in accordance with law, that each of the notices of conviction shows that respondent was assessed and paid a fine and/or costs for the moving violation shown therein, and that the four violations arose out of different transactions in a consecutive period of twelve months. Even if this affidavit would be admissible in evidence, a question we do not attempt to decide now, it does not purport to be an abstract of the court records covering the cases in which respondent was convicted and therefore cannot be presumed to reflect the terms of the judgments in such cases. It could be and was successfully controverted by respondent’s affidavit stating that he did not have four or more convictions arising out of different transactions in a consecutive period of twelve months. In our opinion the Court of Civil Appeals has entered a correct judgment, and the application for writ of error is accordingly Refused, No Reversible Error. Rule 483, Texas. Rules of Civil Procedure.


text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Petitioner, v. Jack Leroy MILLER, Respondent.
    No. A-10072.
    Supreme Court of Texas.
    Nov. 25, 1964.
    Rehearing Denied Feb. 3, 1965.

      Henry Wade and John J. Orvis, Dallas, for petitioner.
    J. M. Deavenport, Dallas, Tom Upchurch, Jr., Amarillo, for respondent.
   HAMILTON, Justice.

This is a driver’s license suspension case. Pursuant to the provisions of Article 6687b, Sec. 22(a), Vernon’s Ann.Civ.St., as amended, the Texas Department of Public Safety caused Jack Leroy Miller to appear before a justice of the peace of Dallas County, Texas, for a hearing to determine whether Miller was an habitual traffic violator within the meaning of Article 6687b, Sec. 22(b), Par. 4, V.A.C.S. The justice of the peace made an affirmative finding, and the Texas Department of Public Safety suspended Miller’s driver’s license for a period of six months. From this order Miller appealed to the County Court at Law No. 1, Dallas County, Texas, by authority of Article 6687b, Sec. 22(c), V.A.C.S. On this appeal Miller denied he was an habitual violator and prayed for restoration of his driver’s license. As his defense Miller urged that he was not legally convicted in two of the causes relied upon by the Department.

By answer and cross-action the Department alleged that Miller had been convicted of five moving traffic violations occurring within a twelve months’ period of time and that such fact authorized the issuance of the suspension order. Par. 4, Sec. 22(b), Art. 6687b, V.A.C.S. The Department filed its verified motion for summary judgment, supported by certified copies of five notices of conviction from the Clerk of the Corporation Court of Dallas, Texas. Miller filed a controverting affidavit contending that he was not legally convicted in Cause No. 46656-B and Cause No. 25388-B, each being one of the convictions relied upon by the Department, in that he did not appear in open court or plead guilty, nor was he tried in open court either in person or by his attorney, and did not forfeit bail in either of said causes.

The county court sustained the motion for summary judgment of the Department of Public Safety and thereby upheld the order of suspension. This judgment was reversed and remanded by the Court of Civil Appeals. See Miller v. Texas Department of Public Safety, 375 S.W.2d 468.

The recent case of Texas Department of Public Safety v. Richardson, 384 S.W.2d 128 (1964), decided by this court, involving facts in every material respect the same as are involved in this case is controlling. There the notices of conviction were held to be in substantial compliance with the provisions of Article 6701d, Sec. 152, and to be admissible in evidence. Likewise in this case these notices of conviction showing that Miller had been convicted of five moving traffic violations occurring within a twelve months’ period of time were in substantial compliance with said statute and were admissible in evidence. To give consideration to Miller’s claim supported by affidavit of his not being legally convicted would be to allow a collateral attack to be made upon final judgments of a corporation court which were the basis of the Department’s suspension order, and therefore would be contrary to the Richardson case. Hence the Court of Civil Appeals was in error in holding that such affidavit made issues of fact which would prevent summary judgment from being granted.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

ON MOTION FOR REHEARING

Upon rehearing, the respondent urges “that the best evidence of the validity of the alleged convictions and alleged judgments underlying the notices of conviction would be the verifax copies of the Dallas Corporation Court docket themselves regarding each cause or ticket number” * * * and “that the burden of producing such best evidence is on Petitioner and is not incumbent on Respondent to produce such evidence, as it is a part of the burden of proof necessary to support the alleged ‘Notices of Conviction.’ ” It is urged that as the form of report prepared by the Department of Public Safety does not in all particulars comply with the statute, the notice or abstracts of judgments are not admissible in evidence under the provisions of Article 3731a, Vernon’s Ann.Tex.Stats.

There are a number of decisions which have held that notices or abstracts of conviction such as are involved here are admissible in evidence. See cases cited in Texas Department of Public Safety v. Richardson, Tex.Sup., 384 S.W.2d 128 (1964). It does not, however, appear from the face of the opinions that the exact point urged here was passed upon in such cases. The most serious objection raised to the form of the notices of conviction relied upon by the Department of Public Safety is that they do not show the registration number of the vehicle involved in the offense nor the plea of the defendant to the traffic violation charged against him.

In suspending Miller’s driving license, the Department of Public Safety acted under authority of Article 6687b, § 22, ff (b), subdivision 4. The basis of the suspension was that Miller was an habitual violator of the traffic law in that he was a “person with four or more convictions arising out of different transactions in a consecutive period of twelve months * * * such convictions being for moving violations of the traffic laws of the State of Texas or its political subdivisions.”

The registration number of the motor vehicle is not material to the ground of suspension relied upon by the Department. Neither is the nature of the plea of the defendant. What is all-important is that Miller was convicted for four moving traffic violations.

Article 3731a, § 1 provides that:

“Any written statement, certificate, record return or report made by an officer of this State or of any governmental subdivision thereof, or by his deputy or employee, in the performance of the functions of his office shall be, so far as relevant, admitted in the courts of this State as evidence of the matters stated therein, subject to the provisions of Section 3.”

Section 3 of the Article relates to notice and is not relevant here.

The notices or abstracts of judgments are certificates or reports made by public officers or employees. These certificates are “evidence of the matters stated therein,” and the fact that they do not contain certain information which is immaterial to the point of inquiry will not render the recitations in the public report inadmissible in evidence.

Article 3731a is a statute of general application which was adopted in 1951. In discussing the enactment Professor Roy R. Ray in 5 Southwestern Law Journal, 281, 386 (1951) said that:

“The real need for the new statute is to afford a simple and uniform procedure for proving the content of public records. We now have in our state government approximately 200 agencies, departments and institutions administered by some 140 boards or individuals. Most of these officials have special statutes providing that their official records, reports, returns, and certificates or certified copies thereof are admissible in evidence as prima facie proof of the matters therein stated. These numerous acts are scattered throughout the civil statutes and have no semblance of uniformity. It is piecemeal legislation in the wildest form. The new statute provides a single, simple procedure for making proof of the contents of any statement, certificate, record, return or report made by any state official in the performance of his duties. The same procedure with an additional safeguard is applicable to proof of records of the Federal Government or of another state or nation. The adverse party is protected against surprise by the provision for notice.”

The purposes of the statute are not served by giving emphasis to immaterial matters. The suspension of a driver’s license and the duration of the suspension are matters lying within the discretion of the Department of Public Safety. Texas Department of Public Safety v. King, Tex.Sup., 366 S.W.2d 215 (1963). The prerequisite to the exercise of this discretionary power is a proper showing that a license holder is an habitual violator of the traffic law, i.e., that'he has been convicted of four moving traffic violations which violations occurred within a twelve month period. It is the convictions that are of importance and no substantial rights of the respondent were prejudiced by the use of the notices or abstracts to establish such convictions. If the notice of a conviction be inaccurate it may be corrected by the use of properly authenticated copies of the docket of the justice of the peace or the corporation judge as was done in Department of Public Safety v. Guleke, Tex.Civ.App., 366 S.W.2d 662, no wr. hist. (1963). In fact, the notices or abstracts may be corrected by either party but until corrective measures are taken, such notices or abstracts are to be accepted as evidence of “the matters stated therein.”

Other matters brought forward in respondent’s motion for rehearing need no further discussion. The motion for rehearing is overruled.