author: CLEMENS, Commissioner.

text:
    Rose Burns WILLIAMS, Plaintiff-Respondent, v. FORD MOTOR COMPANY, a Corporation, and McMahon Ford Company, a Corporation, Defendants-Appellants.
    No. 32329.
    St. Louis Court of Appeals. Missouri.
    Dec. 20, 1966.
    Motions for Rehearing or to Transfer to Supreme Court Denied Jan. 17, 1967.
    Application to Transfer Denied March 13, 1967.

      Robertson, DeVoto & Wieland, Leo C. DeVoto, Jr., St. Louis, for appellant Ford.
    Melville A. Ochsner, St. Louis, for appellant McMahon.
    Bahn & Saitz, Robert W. Saitz, St. Louis, for respondent.
   CLEMENS, Commissioner.

This appeal by the defendant automobile manufacturer and retailer challenges the sufficiency of plaintiff’s evidence to make a case against them on her theory of implied warranty of fitness; they also challenge instructions given and refused.

Rose Burns Williams, a 24-year-old secretary, selected a new, black, 1961 Ford Thunderbird convertible from the defendant McMahon Ford Company’s showroom. She paid about $4,000 for it. From the start there was trouble with the power steering. On the fourth day after McMahon delivered the car to her, Mrs. Williams was severely injured when she drove the car into a tree. This happened, she says, because the power steering mechanism failed to work. She sued both McMahon and the Ford Motor Company on the theory of implied warranty of fitness, and got a $15,000 verdict and judgment against both. In determining submissibility the evidence will be viewed favorably to plaintiff; she will be given the benefit of any part of the defendants’ evidence favorable to her which is not contradicted by her own testimony or contrary to her own fundamental theory of recovery. We will disregard the defendants’ evidence unfavorable to the plaintiff. Newell v. Peters, Mo.App., 406 S.W.2d 814 [8].

On February 1, 1961, defendant Ford Motor Company manufactured and thereafter delivered the Thunderbird to its St. Louis retail dealer, McMahon Ford Company. Plaintiff bought the car from McMahon on Friday, March 24, 1961, and on the same day McMahon’s salesman Raymond Peto delivered it to plaintiff at her office. Peto went with Mrs. Williams on a trial drive. She drove around the block and they noticed the power steering was “tight” and made “a funny noise.” Peto had first noticed this trouble while driving to Mrs. Williams’ office to deliver the car; but he did not want to lose the sale, so he told her it was just because “the car was new” and “it would work itself out.” Mrs. Williams had experience driving a 1960 Thunderbird owned by her fiance (now her husband). They drove the new car on several short trips over the weekend. The steering trouble kept getting worse — it was noisy, it was tight and binding on turns, and after making turns it wouldn’t come back straight: “You’d have to help it back.”

Monday morning Mrs. Williams phoned Mr. Peto about McMahon’s fixing the steering. Tuesday morning he got the car at her office and drove it to McMahon’s shop. He again noted the steering trouble and reported it to McMahon’s “service writer.” At mid-afternoon Peto saw someone working on the car with the hood up. Later, he tried to drive it but “couldn’t get it off the lot.” Peto then complained to McMahon’s service manager, Arnold Trum-mer, who immediately made some corrections under the hood and filled the steering unit with oil.

The transcript shows that defendants’ mechanics and engineers verbosely described the steering assemblies in minute detail. Their testimony was illustrated by Ford’s exhibits: the steering assemblies, a drawing and a chart. No doubt the jury was aided by these exhibits, but they have not been lodged here. The power steering system used on the 1961 Thunderbird was “full-power, 100% assist” and was described as an “integral power steering system,” in that the hydraulic power system was enclosed in one unit with the steering gear box.

When the service order was written Tuesday morning, the car went to McMahon’s mechanic Joe Schmader with orders from service manager Arnold Trummer to fix a leak in one of the two hydraulic power lines. Schmader found that leak and another one at the oil reservoir. It was after mechanic Schmader had fixed these leaks that Mr. Peto tried to drive the car and again complained to the service manager, Mr. Trum-mer. Trummer drove the car himself and found the steering mechanism was noisy, indicating that the fluid level was low and that there was air in the steering mechanism. His inspection also showed there was a leak in the housing of the steering gear. This was caused by a break in a washer, which allowed the oil to escape when under its operating pressure of 750 pounds per square inch. The valve-sleeve locking screw, where the defective washer was found, is part of the mechanism that controls two ports that feed fluid to either side of a piston through the sleeve; this sleeve moves back and forth approximately 45/1000 of an inch in directing the flow of the fluid to one side or the other of the piston, depending on which way the steering wheel is turned. Trummer replaced the defective washer with one taken from the power steering mechanism of another Thunderbird. The oil was quite low, so the line was cleared and refilled.

Mr. Peto then delivered the car to Mrs. Williams at her office. Enroute, he noticed the power steering still did not respond properly on sharp turns, but he said nothing about it to Mrs. Williams. After work, she drove ten blocks to her home in Webster Groves; she noticed that although the steering was easier it still bound on turns, and after making turns she would have to “help the wheels straighten out.” Shortly after five o’clock she parked the car in the street near her home.

This street was narrow and parking was allowed only on one side. Mrs. Williams parked on the north side, headed east. Thus, the left side of her car was at the curb. About nine o’clock Mrs. Williams started to drive away. Just ahead of her was the entrance to a private driveway, and beyond that was another parked car, 15 to 20 feet in front of her. She drove forward and to the right, turning the wheels to clear the car parked ahead of her. As she cleared the parked car her estimated speed was 10-15 miles per hour. Mrs. Williams then tried to turn the wheels back to the left but they wouldn’t turn. The last thing she remembered was “going for the brakes.” The car continued across the street, jumped the curb, and hit a large tree 52 feet away from her starting point. Mrs. Williams regained consciousness in a hospital. Under direct and cross-examination Mrs. Williams described the incident with these answers:

“I got into the car and I started the motor. I put the car into drive and I turned the wheel to the right to clear the automobile in front of me and I started to accelerate and I couldn’t turn the wheel back to the left.”
“ * * * and when I tried to steer the wheel back to the left to straighten my car, it wouldn’t turn, it just kept going straight * *
“When I tried to turn it back to the left, it was just like it was locked into position.”
“No, I could not turn it.”
“Yes, it kept going straight because I could not turn the car any at all, so it just stayed in the same pattern that I had pulled out.”

On its own initiative McMahon took charge of Mrs. Williams’ car immediately after the collision, and hauled it to its garage. The steering linkage — the mechanism from the power steering unit out to the wheels — had been wrecked by the impact. McMahon’s mechanics disconnected the steering wheel, steering column and the entire power steering assembly. McMahon’s mechanics and a Ford technician made some tests; they found the power steering oil supply was between the “full” and “add” marks. This loss of oil was unexplained. Then, at Ford’s request, McMahon shipped the disconnected parts to Ford at Detroit for further testing, which was done several months later. At time of trial McMahon still had the car and Ford still had the disconnected steering assemblies.

Ford’s service department had published a shop manual for use by dealers and their mechanics in servicing 1961 Thunderbird automobiles. It had a table relating to trouble shooting problems of steering gears, and as one of the problems it described a symptom called “binding or poor recovery” and listed possible causes for this symptom: “incorrect steering gear adjustment, binding steering linkage, incorrect front wheel alignment, insufficient pump pressure, valve spool binding or out of adjustment.” The term “hard steering” was also used in the manual and its possible causes were listed: “front tire pressure low, incorrect front wheel alignment, incorrect steering gear adjustment, binding steering linkage, lack of lubrication, insufficient pump pressure, air in the system, faulty valve spool, obstruction within the steering gear.”

Walter J. Been testified for Mrs. Williams. He had special training and experience in steering mechanisms, including the 1961 Thunderbird. He gave four reasons for failure of the wheels to turn:

“Q. (By Mr. Saitz) * * * Now, Mr. Been, based upon your experience in the field of alignment and steering in the past twenty years, do you have an opinion, based upon that experience and training, as to whether or not — of I should ask it this way, what the competent producing cause of this failure to respond to the operator’s effort to turn the vehicle to the left would be ?
******
“THE COURT: Mr. Been, I said you could give your opinion and then explain it. Let’s have your opinion first. What was the producing cause of this ?
“THE WITNESS: Very good. Well, what I am trying to do, Your Honor, I am trying to explain why wheel alignment—
“THE COURT: I am not asking you about wheel alignment. You said you could express an opinion as to the cause of this failure there and then if there is some explanation that is needed, you may make it.
“THE WITNESS: Your Honor, I believe there is four reasons for failure. One of them is loss of fluid. Two, loss of power. Three, malassembly in the steering column itself. Four, maladjustment.
* * * * * *
“Q. (By Mr. Saitz) Is that your answer, it would be one of any one of the four items?
“A. Any one of the four items.
“Q. All of which pertain to defective steering?
“A. That is correct.”

Mr. Been had not inspected the parts held in the defendants’ custody, so he had no way of knowing which of the four causes he enumerated had actually caused the failure of the steering wheel to respond. He also said it was necessary to adjust the steering mechanism when the wheels were perfectly centered, using tension guages; that if the tension was out of adjustment, fluid would have no place to escape and there would be a locking sensation and necessarily an inability to turn.

Defendants’ testimony denied the severity'of steering difficulties before the collision and gave the results of their observations and tests after they took possession of Mrs. Williams’ car. The weight of this testimony was for the jury, not this court.

Ford and McMahon each contend the plaintiff did not make a case of implied warranty of fitness. They say her evidence failed to show a defect in the steering mechanism, and that such a defect caused the collision. They point to plaintiff’s only expert opinion, that of Mr. Been, and say the witness spoke only of possible rather than probable causes. His quoted testimony is inconclusive on this. But opinion evidence is not the only way of showing a defect in the steering mechanism: the existence of a defect may be inferred, just as negligence may be inferred, from circumstantial evidence. See Frumer and Friedman, Products Liability, § 12.03 [9], and cases there cited. In the usual operation of a new automobile, properly manufactured, it turns in the direction it is steered. The corollary is that if a new automobile is properly operated but does.not turn in the direction it is steered, then the automobile is not properly manufactured. Consider this in the context of all the evidence: (a) Ford’s shop manual showed four ways that its steering mechanism could malfunction; (b) from the time the car first left McMahon’s to the time of injury, the steering mechanism did not operate properly; (c) under normal operation of the car by Mrs. Williams, the steering mechanism did fail to operate and the car went out of control —this within four days of delivery and four hours of re-delivery of the car to Mrs. Williams; and (d) McMahon and Ford had exclusive possession of the steering mechanism after the collision. From all this a jury could logically conclude that from the time Ford delivered the car to McMahon until the moment of impact, there was a defect in the steering mechanism; and that the defect caused her to run into the tree.

Furthermore, by this argument about a precise defect in the steering mechanism, the defendants overlook the gist of Mrs. Williams’ complaint: that Ford and McMahon had warranted the fitness of the Thunderbird. True, she tried to show the car’s unfitness by describing the steering mechanism and its probable defect; but her real complaint was that the Thunderbird itself — the defendants’ product — was unfit for normal use.

The defendants’ liability for a defective product can no longer be measured by the principles of negligence and privity, nor by the intricate law of sales. It is to be measured by the principle of strict liability for breach of warranty of fitness. Notice § 402A, 2 Restatement of Torts 2d (1965) :

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

In the case of Morrow v. Caloric Appliance Corp., Mo. (banc), 372 S.W.2d 41 [6-8], Missouri extended the doctrine of strict liability for implied warranty to nonfood cases. It was applied to a case against the maker of a gas stove that caught fire because of defective valves, without a showing of how the valves were defective. The court held that where an instrument is imminently dangerous if defectively manufactured, the maker is liable for injuries upon proof of a defect in the product and resultant injuries. The court followed the landmark case of Henningsen v. Bloomfield Motors and Chrysler Corp., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960), where the steering mechanism of a new automobile failed while the plaintiff was driving along a smooth highway. That court held the defendant retailer and manufacturer liable because of a defect in operation of a product that would be dangerous if defectively manufactured. In ruling on submissibility of evidence quite similar to ours, that court said (at 1. c. 97), and we say here: “In our view, the total effect of the circumstances shown from purchase to accident is adequate to raise an inference that the car was defective and that such condition was causally related to the mishap.” Plaintiff made a submissible case as to the manufacturer, defendant Ford. We move on to consider McMahon’s challenge of submissibility.

Plaintiff has moved to dismiss McMahon’s appeal for failure to make a jurisdictional statement and to quote a refused instruction in its brief. We granted McMahon leave to supply these by amendment; McMahon has complied, and we deny plaintiff’s motion.

In McMahon’s “Points Relied On” it says the trial court erroneously denied its motion for a directed verdict because “plaintiff’s testimony did not make a submissible case against said defendant.” This is a mere abstract assertion: it does not state why plaintiff failed. Such a sweeping challenge does not comply with Civil Rule 83.05(e), V.A.M.R. Jones v. Farm Bureau Mutual Ins. Co., Mo.App., 284 S.W.2d 11 [3]. We have decided, however, to answer the challenge raised in McMahon’s argument: that a retailer is liable only when the defect in the product is discoverable, and here “nothing was shown which could have caused seller to have realized that the chattel was unsafe, [so] seller had no duty to subject the chattel to a rigid inspection or test for a latent defect. Zesch v. Abrasive Co. of Philadelphia, 353 Mo. 558, 183 S.W.2d 140, 144.” Even if we accept this dubious premise, the Zesch case does not help McMahon; it did not decide the question of a retailer’s liability on an implied warranty of fitness. In Zesch the plaintiff based his case on the seller’s negligence in failing to inspect, and he failed to prove it. Similarly, McMahon’s cited cases of Shroder v. Barron-Dady Motor Co., Mo., 111 S.W.2d 66, and Gibbs v. General Motors Corp., 350 Mo. 431, 166 S.W.2d 575, are not in point. Neither case dealt with a retailer’s implied warranty of fitness; in each, plaintiff charged the retailer with negligent failure to inspect.

Other cases do deal directly with a retailer’s liability on implied warranty of fitness: In Dubinsky v. Lindburg Cadillac Co., Mo.App., 250 S.W.2d 830 [2], we held the defendant retailer liable, saying: “In the sale of an automobile there is an implied warranty that it is reasonably fit for the use intended.” This case was discussed and followed in Mullins v. Sam Scism Motors, Mo.App., 331 S.W.2d 185 [2]. And a retailer’s liability on an implied warranty of fitness was acknowledged in Hays v. Western Auto Supply Co., Mo., 405 S.W.2d 877 [4], citing the Dubinsky case. The reason for this was stated in Vandermark v. Ford Motor Co. et al., (banc, 1964), 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168[8], where the court said: “Retailers like manufacturers are engaged in the business of distributing goods to the public. They are an integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products. [Citing cases]” We hold that the plaintiff made a sub-missible case as to defendant McMahon.

Having determined that the evidence warranted the jury in finding both defendants liable, we now take up their attacks on given and refused instructions.

MAI offers two product liability instructions; neither fits plaintiff’s theory. MAI 25.02 covers food cases. MAI 25.03 is for breach of warranty of fitness for a particular use. It is based on cases preceding Morrow v. Caloric Appliance Corp.; it includes the elements of plaintiff’s reliance on the defendant’s knowledge of fitness for the product’s anticipated particular use by plaintiff. Plaintiff modified these MAI submissions by her given Instruction No. 2:

“Your verdict must be for plaintiff if you believe:
“First, Defendant, Ford Motor Company, manufactured the Thunderbird automobile, and Defendant McMahon Ford Company sold said Thunderbird automobile to plaintiff, and
“Second, the steering gear on said automobile did not work properly, and
“Third, Plaintiff was unable to steer said automobile, and
“Fourth, as a direct result plaintiff was injured.”

Ford challenges this instruction on four grounds. First, Ford says the instruction did not require the jury to find there was a “defect” in the steering gear; second, that it did not require a finding that “a defect in the steering gear” was the cause of “the failure of the steering gear to function properly.” As discussed above, the “defect” in the steering gear was an evidentiary fact. The ultimate fact was whether the steering mechanism worked properly. By her verdict director, plaintiff submitted that “the steering gear on said automobile did not work properly.” By this she submitted the issue of product liability imposed by Morrow v. Caloric Appliance Corp. This part of the instruction reasonably conformed to the language of the other two breach of warranty instructions, MAI 25.02 and 25.03. Further, it conformed to Civil Rule 70.01(e), V.A.M.R., being simple, brief, impartial, and free from argument and detailed evidentiary facts. The instruction would be clearer if paragraph “Third” had read: “Third, plaintiff was thereby unable to steer said automobile.” However, this was not the point Ford raised; its objection goes to paragraph “Second.” Further, the element of causation was supplied by the last paragraph: “Fourth, as a direct result plaintiff was injured.” This followed the language of MAI 25.02 and 25.-03. The instruction was not prejudicially erroneous on the two grounds assigned.

Ford’s third complaint is that plaintiff’s verdict director erroneously omitted a requirement that the defect existed at the time the car left its control. Section 402A, 2 Restatement of Torts 2d, imposes liability on a manufacturer if its product “is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.” Comment g. says that liability exists only where the product is defective when it leaves the seller’s hands; that the burden of so proving is on the plaintiff. This is in accord with Morrow v. Caloric Appliance Corp. supra, where the verdict director required the jury to find that the stove “when sold to plaintiff was in the same condition as when manufactured.” It is in accord with MAI 25.02, which requires that the food or substance was unfit for use “when sold by the defendant.” As said, we believe the total effect of the circumstances shown was enough to raise an inference that the defect which existed at the time of collision existed when Ford delivered the Thunderbird to McMahon. There was no evidence to the contrary. That inference was for the jury, not the court; but by omitting the time element from the instruction, the court compelled an inference that should have been left to the jury’s discretion. (By the same reasoning, the instruction should have based McMahon’s liability on the existence of .a defect at the time the car was sold to Mrs. Williams.) The instruction was erroneous, and requires a new trial.

In reaching this conclusion of separate liability of Ford and McMahon, we are aware that the leading California case of Vandermark v. Ford Motor Co., supra, holds, an automobile manufacturer is liable for ultimate defects even though caused by intervening acts of its retail dealer. This, on the apparent theory of agency. We have no evidence here, as there was in the Vandermark case, that Ford delegated to McMahon the authority to make “final inspections, corrections and adjustments necessary to make the car ready for use.” Absent such evidence, the Vandermark case is not persuasive.

Last, Ford and McMahon each object to plaintiff’s verdict director because it requires a verdict against both defendants. Similarly, each objects to the refusal of its separate converse instruction and the giving of a joint converse instruction. These difficulties flowed from the erroneous assumption in the verdict director that Ford and McMahon were jointly liable, if at all. As said, there is a distinction between Ford’s and McMahon’s liability. On retrial a proper verdict director will indicate proper converse instructions.

On this appeal no issue is raised as to plaintiff’s damages; there is no need to retry that issue. Under authority of § 512.160(3), V.A.M.S., and Mullen v. St. Louis Public Service Co., Mo. (banc), 389 S.W.2d 838[6], the judgment is reversed for a new trial on the issue of liability only. The $15,000 verdict shall be held in abeyance pending determination of that issue.

PER CURIAM:

The foregoing opinion of Clemens, G, is adopted as the opinion of this court. Accordingly, the plaintiff’s motion to dismiss defendant McMahon’s appeal is denied; the judgment against each defendant is reversed and the cause is remanded for a new trial on the issue of liability only. The $15,000 verdict is ordered held in abeyance pending determination of the issue of liability.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Mary N. JORDON, by Her Next Friend, J. D. Jordon, Jr., Plaintiff-Respondent, v. Gary JOHNSON, Defendant-Appellant.
    No. 8562.
    Springfield Court of Appeals. Missouri.
    Feb. 2, 1967.

      Elroy S. Thomas, Buehner & Thomas, Joplin, for defendant-appellant.
    A. L. Shortridge, Joplin, for plaintiff-respondent.
   TITUS, Judge.

Plaintiff Mary N. Jordon was a seventeen-year-old pedestrian on March 27, 1965, when she was struck and injured at 6th and Wall Streets, Joplin, Missouri, by a 1962 Chevrolet driven by Gary Johnson, then sixteen years of age. Gary, as the damage suit defendant disappointed with the trial court’s refusal to sustain his motion for directed verdict at the close of the evidence, and dissatisfied with the $5,000 jury verdict returned for Mary, has appealed. Defendant’s alleged humanitarian negligence in failure to slacken speed, swerve, or sound a warning constituted plaintiff’s sole submission to the jury. The extent of plaintiff’s injuries and the amount of the verdict are not issues on appeal.

Inseparable to every appeal by a defendant on the complaints here voiced is a determination if a submissible case was made, and we are obliged to strain the record through a judicial colander so constructed that only the evidence and the logical conclusions therefrom favorable and advantageous to plaintiff sift for consideration. This sieve, mystically endowed with metamorphic efficacy, also tends to change imprecise estimates, judgments, and assumptions into precise and exact mathematical certainties.

Running north and south, Wall Street is a one-way thoroughfare for northbound traffic with its two traffic lanes divided by an interrupted white line. Parallel parking, except where driveways appear, is permitted on either side of Wall. Sixth Street (running east and west) intersects Wall at right angles and accommodates one-way traffic for eastbound vehicles. Each street is paved, forty feet wide, and from the pictorial evidence looks to be fairly level for at least a block in all directions from the intersection. Pedestrian crosswalks appear on all sides of the intersection. The north lane designed for east or west foot passage across Wall is eight feet wide and outlined by two four-inch parallel stripes. The accident occurred on dry pavement, near noon, and in “broad daylight.” A stop sign located on the southwest corner of the intersection and intended for observance by eastbound traffic on 6th Street was the only traffic control present.

The vehicle driven by defendant is described as being five or six feet wide and sixteen or seventeen feet long. It was equipped with power brakes and power steering said, along with the general mechanical condition, to be in “good” working order.

Plaintiff (who professes to have no remembrance of the accident or the circumstances immediately before and after) and her fiance, Robert Lloyd Provance, were traversing Wall hand-in-hand when plaintiff was struck in the west or left traffic lane on Wall by the northbound Chevrolet. Provance says plaintiff was to his right when they stopped on the curb at the northeast corner of the intersection to permit a car traveling north on Wall to pass and park parallel to the east curb north of their position. Ere stepping from the curb Provance looked south on Wall. He could see at least a block in that direction and observed no approaching traffic. The couple then started crossing Wall (from east to west) “at a continuous pace * * * an average gait * * * a normal walk * * * something like three miles an hour.” Provance related, “I don’t guess I did” look again south after leaving the sidewalk until the pair neared or reached the center of Wall, at which time Provance first sighted defendant’s car. The vehicle was then at “about the middle of the intersection,” its right side was “three or four steps” west of the centerline of Wall, and traveling “somewhere between fifteen and twenty.” Provance stepped “back quickly” and jerked on plaintiff’s hand as fast as he could. He stepped clear of the car but did not succeed in pulling plaintiff to safety. Provance asserts the brakes on the Chevrolet were not applied until after plaintiff was struck. It is agreed defendant did not sound the horn on the Chevrolet or swerve before the collision.

As may be expected, there is a difference among the witnesses on several scores. Some say Provance and plaintiff were crossing Wall in the crosswalk while others place them ten or fifteen feet north of the lane. There is likewise a dispute as to whether plaintiff was north or south of Provance when struck, and the witnesses place her as being near the centerline up to two or three steps west of center of Wall when the casualty occurred. The investigating police officer stated tire marks made by the Chevrolet were eighteen feet long and started “from the north line of the crosswalk to the front of the car, all in the west lane of Wall Street.” Viewing accident scene pictures, a photographer estimated the right tire marks to be five feet west of the centerline, and the left tire marks to be six or seven feet east of the west curb on Wall. The right front corner and front bumper of the automobile struck plaintiff. The only witness interrogated on the subject stated no vehicles were parked in the first two parking spaces north of 6th Street and on the west side of Wall.

Defendant first entered onto Wall a block south of the accident intersection and changed into the left or west traffic lane when he was a half-block away. At about this point a glance at the speedometer indicated he was traveling seventeen to eighteen miles per hour. As he neared the south edge of the intersection and having previously looked right, defendant’s attention was directed (according to him) to a car approaching the intersection from the west on 6th Street. This vehicle stopped when defendant was about even with it and “I guess it would be probably 30 feet, maybe more or less” that separated the defendant’s car and plaintiff when he first observed her. Defendant did not see Provance and plaintiff step off the east curbing, but did “remember seeing them come into the right lane.” When he first saw her, defendant said he was traveling seventeen miles an hour (“I guess”), and “put on the brakes — I knew she wasn’t looking my way.” The car, according to defendant, was “stopped” or “just stopping” when plaintiff was struck, and actually was stopped in eighteen feet after the brakes were applied. From what defendant and the other witnesses related, the jury would have no problem in concluding plaintiff was oblivious to the approach of the Chevrolet.

Confusion abounds as to whether or not there was a vehicle in the east or right traffic lane on Wall at the time of the accident. Provance says there was none. Defendant says there was such a vehicle, but his testimony leaves one uncertain as to where it was. He at one time said this alleged northbound vehicle traveling in the east lane had “not completely” passed through the intersection before he entered it. Another time defendant said, “Well, yes, just as I was leaving the intersection — or not in the intersection, there wasn’t any car.” A third reference was that the car in the right lane “was just leaving” the intersection as defendant entered, and still at another time defendant said, “I remember a car going by fast, on my right, as I saw her.” A witness that had been following plaintiff and Provance testified there was a northbound vehicle traveling in the east lane which stopped in the middle of the intersection to permit Provance and Mary Jordon to pass in front of it before defendant’s car arrived at the scene. An eye-witness, in addition to Provance, did not remember seeing such a car, while still another person swore there was such a car but that it did not stop thereby causing plaintiff to hurry from the east lane into the path of the Chevrolet. This witness also asserted that when plaintiff reacted to avoid being struck by the northbound car in the east lane, defendant’s car was then thirty-five to fifty feet south of the intersection.

The jury was at liberty to believe none, part, or all of the testimony of any witness, and we must disregard defendant’s evidence, except where it benefits plaintiff, and permit plaintiff a choice of the most favorable combination of facts and inferences. See cases in Footnote 2. There is no denial in this case plaintiff was in fact oblivious and apparently oblivious of any danger from defendant’s automobile from the time she left the east curb until she was struck by the car or jerked by Provance. Defendant’s duty to act under the humanitarian doctrine, i. e., call into action every means at hand to avoid injury, arose when plaintiff was at a place where it was or should have been reasonably apparent to defendant she was oblivious to his approach and intent upon entering into his path. The exact place where and the time when plaintiff came into and was in a position of imminent peril were questions for the jury to determine, and with plaintiff oblivious to her peril the jury could find the zone of immediate danger more broad than that set in cases lacking such an element.

Defendant testified the Chevrolet actually stopped in eighteen feet after the brakes were applied, so we need not theorize upon his ability to stop in that or some other distance. Loyd v. Moore, supra, Mo.App., 390 S.W.2d 951, 957(9); Lang v. St. Louis-San Francisco Ry. Co., 364 Mo. 1147, 273 S.W.2d 270, 275. In the absence of proof of some other time, the majority of courts taking judicial notice of reaction time place it at three-fourths of a second. See collection of cases in Annotation, 84 A.L.R. 2d § 3(b), pp. 982-983. As it approached the intersection, the Chevrolet’s speed, according to defendant, was seventeen or eighteen miles an hour, or 24.9 to 26.4 feet per second. Reaction time at such speeds would consume 18.7 to 19.8 feet making the total stopping distance 36.7 to 37.8 feet. So without splitting seconds or dealing in fractions of feet, the jury reasonably may have found defendant could have stopped short of striking plaintiff had he undertaken to do so at any place fifty feet or more south of the point of impact.

Provance testified he and plaintiff were walking three miles an hour as they were crossing the street, or at the rate of 4.4 feet per second. Without affording plaintiff any benefit of elapsed time for deceleration during braking, the Chevrolet would be 1.89 to 2 seconds away from the point of impact when it was fifty feet south of that point and at the same time plaintiff would be 8.3 to 8.8 feet east of the place she was hit. If the jury selected five feet west of the center line of Wall as being the point of impact (which it logically could do under the evidence relating to the place of the right skid-mark), the jury then may have concluded plaintiff was but 3.3 to 3.8 feet east of the centerline when defendant had the ability to stop and was then in a position of immediate danger discoverable by defendant. This would be a permissible conclusion even if there was, in fact, another car in the intersection in the east traffic lane. However, the jury was free to believe, as Provance testified, there was no northbound car in the east traffic lane on Wall at any time before or at the time of the accident, or that if there was such a car it did not impair defendant’s view of the entire intersection. Under such assumption, if plaintiff walked in the street from the east curb a distance of twenty-five feet (half the width of the street plus five feet to the point of impact) she would have taken 5.67 seconds walking at three miles per hour. At the commencement of that period defendant’s car would have been 141.2 to 149.7 feet south of the collision point and plaintiff would or should have been in plain view all the time the Chevrolet was traversing that distance. We do not undertake to speculate why plaintiff did not submit this case to the jury on the failure to stop. Nevertheless, “It follows almost without saying that if in the circumstances of this record [defendant] could have stopped his automobile he certainly could have swerved or slackened speed and thereby avoided striking [plaintiff]. Hendershot v. Minich, Mo., 297 S.W.2d 403. And, ‘[o]f course, a warning could have been given in an even shorter time and distance.’ Hildreth v. Key, Mo.App., 341 S.W.2d 601, 607; De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Schmitt v. Shuplak, Mo.App., 42 S.W.2d 959.” Losh v. Benton, Mo., 382 S.W.2d 617, 619.

Had the jury, which was permissible, believed plaintiff was or should have been visible to defendant from the time she left the curb and entered the street, “the evidence supported a reasonable finding that plaintiff was in imminent peril when she reached a place halfway to the point at which she was struck”. Sperry v. Tracy Dodge-Plymouth Co., supra, Mo., 344 S.W.2d 108, 111. If the total distance walked was twenty-five feet, it took plaintiff 2.84 seconds to cover the last half thereof, and defendant was 74.8 to 70.6 feet south of the point of impact at the time plaintiff was in imminent peril and defendant should have known thereof.

Mike Ryan, a defendant’s witness, was at the northwest corner of the accident intersection at the time of the casualty. Ryan reported that plaintiff stepped westward from the path of the alleged northbound car traveling the east lane (which he says did not stop) when defendant’s Chevrolet was thirty-five to fifty feet south of the intersection. At face value this testimony put plaintiff in full view of defendant when his car was seventy-five to ninety feet south of the north crosswalk, and likewise rid the right lane of traffic at a time when the jury could have found a right swerve by defendant could have avoided plaintiff’s injury.

We could consume more space in reciting calculations on each conceivable set of imaginable factual situations possible under the evidence in this case. The arithmetic heretofore articulated should be sufficient, however, to disclose the jury could reasonably have found defendant had the time and the means to avoid injuring plaintiff by slackening speed, swerving, or sounding a warning.

Defendant’s argument is predicated on his assumption “the front end of defendant’s car was only 30 feet from plaintiff * * * when she entered the zone of imminent peril.” This is based upon the testimony of defendant that he did not see the plaintiff until he was “probably 30 feet, maybe more or less” from her. “It is not enough, in order to exculpate defendant, that he did not see plaintiff until within thirty feet of her. There remains the question whether or not he could and should have seen her in obvious peril sooner and in time thereafter to have avoided striking her.” Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463, 467. The jury was not bound to accept every utterance of defendant to the exclusion of the other evidence, and most assuredly was not required to believe that when defendant first saw plaintiff was the earliest opportunity he had to do so in the exercise of the highest degree of care.

We find the trial court did not err in submitting the case to the jury and the judgment entered on the verdict returned is affirmed.

STONE, P. J., and HOGAN, J., concur.

      . Gibbs v. Bardahl Oil Co., Mo., 331 S.W.2d 614, 620(1); Hart v. Midkiff, Mo., 321 S.W.2d 500, 505(4); Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 77(11).

      . Lowes v. Union Electric Co., Mo.App., 405 S.W.2d 506, 507(1); Newell v. Peters, Mo.App., 406 S.W.2d 814, 819-820 (8); Immekus v. Quigg, Mo.App., 406 S.W.2d 298, 300(1); Miller v. Ranson & Co., Mo.App., 407 S.W.2d 48, 53(3); Montgomery v. Petrus, Mo.App., 307 SW.2d 24, 27 (4); Dillon v. Hogue, MoApp., 381 S.W.2d 599, 602.

      . Kickham v. Carter, Mo., 314 S.W.2d 902, 905(1); Bell v. Pedigo, Mo., 364 S.W.2d 613, 616(4); Rawley v. Eilermann Transfer Co., Mo.App., 390 S.W.2d 937, 940(3); Appelhans v. Goldman, Mo., 349 S.W.2d 204, 208(9); Mayer v. Orf, Mo., 404 S.W.2d 733, 734-735(3, 4).

      . Hendershot v. Minich, Mo., 297 S.W.2d 403, 408(7); Wofford v. St. Louis Pub. Serv. Co., Mo., 252 S.W.2d 529, 531(2); Silver v. Westlake, Mo., 248 S.W.2d 628, 632(1, 2); Newell v. Peters, Mo.App., 406 S.W.2d 814, 821(9).

      . Daniels v. Smith, Mo., 323 S.W.2d 705, 711(6); Loyd v. Moore, supra, Mo.App., 390 S.W.2d 951, 955(5); Sperry v. Tracy Dodge-Plymouth Co., Mo., 344 S.W.2d 108, 111(3); Bafaro v. Pezzani, Mo.App., 376 S.W.2d 631, 633; Kuehn v. Hahn, Mo., 380 S.W.2d 445, 448.


author: WILLIAMS, Chief Justice.

text:
    Abner J. DAVIS, Petitioner, v. John J. WINGO, Warden, Kentucky State Penitentiary et al., Respondents.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Abner J. Davis, pro se.
    Robert Matthews, Atty. Gen., Frankfort, for respondents.
   WILLIAMS, Chief Justice.

Abner J. Davis, who is incarcerated in the State Penitentiary at Eddyville, has petitioned this court to issue a writ of ha-beas corpus. KRS 419.020 provides that a writ may be issued upon petition on behalf of a person who shows by affidavit probable cause that he is being detained without lawful authority, or is being imprisoned when by law he is entitled to bail. The statute further provides that any circuit judge may issue the writ and his power shall be coextensive with the Commonwealth.

The petitioner has filed a proceeding in this court when it properly should be initiated in the circuit court. Accordingly, this petition must be denied.

The petition for a writ of habeas corpus is denied.

All concur.


author: CULLEN, Commissioner.

text:
    Hank NOLAN, d/b/a Manchester Enterprise, Appellant, v. Charles H. WHITE, County Judge, and Members of Fiscal Court, Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.

      T. T. Burchell, Manchester, for appellant.
    Charles C. Smith, Manchester, for ap-pellees.
   CULLEN, Commissioner.

Frank Nolan, owner of a plant which published a newspaper and did job printing, brought this action against the fiscal court of Clay County seeking to recover the cost of certain newspaper advertisements, and the price of certain printing work and office supplies, ordered by the then current sheriff, his predecessor in office, and various other fee officers of the county. The complaint asked for a total recovery of $3,594.95. However, there was a mathematical error in adding the items set forth in one of the detailed accounts attached to the complaint, and another of the detailed accounts showed on its face that two items totalling $150 had been paid, so the true amount sought to be recovered was only $2,429.95. The circuit court allowed a recovery of $742.54. Nolan has appealed, claiming that he should have been awarded the full amount he sued for.

By stipulation Nolan in effect conceded that on two items, totalling $1,575.50, the only amount he was entitled to recover was $253.65. Subtracting the difference in these two sums — -$1,321.85—from the original true amount of $2,429.95 sought to be recovered, and crediting against the remainder the sum of $742.54 for which the court gave recovery, there is left as the real amount in controversy only $265.56. It is true that in an amended complaint Nolan sought punitive damages of $5,000, so probably the amount technically in controversy is enough to entitle him to an appeal as a matter of right. However, the punitive damage claim was utterly frivolous — being based on the proposition that the fiscal court had ceased to buy goods and services from Nolan because he had brought this suit against the court — and it does not merit review.

The whole philosophy of the fee system for county officers is that except for such few items as are specifically authorized by law to be paid out of the county treasury, the expenses of the office shall be paid solely out of fees. See Funk v. Milliken, Ky., 317 S.W.2d 499; Commonwealth v. Nunnelley, 211 Ky. 409, 277 S.W. 506; Barkley v. Gatewood, 285 Ky. 179, 147 S.W.2d 373. In the latter of the cited cases, the county was held liable for telephone expense of the sheriff because a statute required the county to furnish the sheriff an office, and was held liable for tax record hooks because a statute said such hooks should be paid for by the county.

Here, the principal items in controversy are the cost of letterheads, envelopes, etc., for miscellaneous use of the sheriff, and the cost of advertisements and notices from the sheriff to taxpayers urging them to pay their taxes early and receive the discount for early payment. There is no statutory requirement that such urging be done and there is no statutory requirement for payment of any of these particular items by the county. Even if it were to be considered that the fiscal court in its discretion could contract to pay for such things, certainly a sheriff or other fee officer on his own would have no authority to commit the county to an obligation of payment. See Bath County v. United Disinfectant Co., 248 Ky. 111, 58 S.W.2d 239.

The judgment is affirmed.

All concur.


author: PALMORE, Judge.

text:
    Jo Ann ALTMAN, Appellant, v. Joseph ALTMAN, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    J. Wood Vance, Jr., Glasgow, for appellant.
    Morris Butler, Greensburg, for appellee.
   PALMORE, Judge.

Jo Ann Altman (now Ramsey) appeals from an order overruling her motion for an increase from $40 per month to $120 per month in the amount of payments her former husband is required to make for the support of their two children.

The parties were divorced in 1961. The children (now 11 and 7 years old) were awarded to the father, but an agreed order in 1963 transferred custody to the mother and directed Joseph to pay $40 per month for the support of the younger child and Jo Ann to support the older child. The motion for an increase giving rise to the present controversy was filed in August of 1966.

Both Jo Ann and Joseph have remarried. Jo Ann has one child by her present husband, Danny Ramsey, and Danny has a child by a former marriage, so that there are four children in the Ramsey home. Ramsey is totally disabled and does not work. He is drawing social security and workmen’s compensation in the respective amounts of $272 and $152 per month. Social security in the amount of $38 per month is received for each of the two Altman children, but it is not clear from the evidence whether this $76 is part of the $272 or is over and above it. Apparently the social security and workmen’s compensation payments comprise the Ramseys’ entire income.

Joseph Altman and his wife live in a 4-room house trailer in Green County. They have no children. She is employed and earns $80 bi-weekly. He is a cement finisher and concrete contractor. He owns the trailer, a truck, four tile machines and various hand tools. He owes $1400 on the truck, $4500 on the trailer, and an unspecified amount on the tile machines. When he is working on a contract he figures to make $30 per day after labor costs but before other expenses. In the period of eight months preceding the hearing in September of 1966 he says he grossed $10,800 against costs of $9,700, leaving a net $1100 for living expenses. Pressed on cross-examination, he offered to make his records available for inspection, but he did not have them with him and counsel for Jo Ann made no further efforts to have them produced.

According to the testimony of both parties, Joseph actually has been paying Jo Ann $50 per month for the children, and he says that he has paid various medical bills and other items of expense for them.

The trial court overruled the motion without making specific findings of fact.

It was held in Robinson v. Robinson, Ky., 363 S.W.2d 111 (1962), that $20 per week is not sufficient for the support of two children and that the duty imposed by law upon a father to provide at least the minimum amount required for the support of his children is an obligation from which the courts have no authority to relieve him. The minimum amount so required, however, depends on the circumstances of the case, including, for example, the economic situation to which the parties are accustomed. Certainly the amount of support received from outside sources such as social security also is one of the circumstances to be taken into account in determining what is required of the father. Hence in this case we are of the opinion that the governmental contribution of $76 per month could properly have been, and no doubt was, considered by the trial court as in the nature of a credit toward the minimum support otherwise owed by the father.

Altman did not, as in the Robinson case, seek to conceal his financial status. Counsel had the opportunity of having him produce his records and, having declined to do so, is stuck with the bare testimony appearing in the record. From that evidence there is no reasonable basis to conclude that Altman has a net income greater than $1650 per year ($1100 for eight months).

Added together, the payments ordered by the court and the social security benefits total $116 per month. We do not say that would be enough for two school-age children if the father were fairly able to make it more. On the other hand, neither can we hold it was clearly erroneous for the trial court to say it is enough to meet the minimum under the circumstances of the case. Cf. Gamblin v. Gamblin, Ky., 354 S.W.2d 504, 505 (1962).

The order is affirmed.

All concur.


author: CLAY, Commissioner.

text:
    Woodruff HEARON, Appellant, v. John W. WINGO, Warden Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Woodruff Hearon, pro se.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   CLAY, Commissioner.

This is a habeas corpus proceeding brought by appellant, who was convicted of assault with a deadly weapon, against the warden of the Kentucky State Penitentiary. His petition in the Lyon Circuit Court was dismissed. We have before us a most inadequate record, but it raises a question which we believe merits a brief opinion.

Appellant’s sole claim is that he was insane at the time of his trial. Appellant relies on Thomas v. Morrow, Ky., 361 S.W.2d 105, wherein we expressed the view that if a person is incompetent “at the time of arraignment and sentence”, the judgment entered on conviction is void and a habeas corpus proceeding affords the proper remedy. This case was decided prior to the effective date of our Rules of Criminal Procedure (January 1, 1963) wherein RCr 11.42 created a new and more practical postconviction remedy.

In Commonwealth v. Strickland, Ky., 375 S.W.2d 701, Barnes v. Commonwealth, Ky., 397 S.W.2d 44, and McElwain v. Commonwealth, Ky., 400 S.W.2d 212, we recognized that an RCr 11.42 motion is the proper proceeding to attack a judgment of conviction when the prisoner claims that he was insane at the time of his trial. In Ayers v. Davis, Ky., 377 S.W.2d 154, we held that habeas corpus could not be invoked if the prisoner had an adequate remedy under RCr 11.42.

In Conners v. Commonwealth, Ky., 400 S.W.2d 519, we held that RCr 11.42 relief was not available on the ground that “the defendant was insane”. The principal contention of the movant in that case was that he was insane at the time the crime was committed. Such a claim constitutes a defense which must be presented at the trial, and it is not a ground for vacating a judgment under RCr 11.42. However, insanity at the time of trial presents an entirely different question, affecting the prisoner’s constitutional rights, and the only proper postconviction remedy, if any, is an RCr 11.42 proceeding.

Thomas v. Morrow, Ky., 361 S.W.2d 105, is no longer authoritative on the question presented. This habeas corpus proceedings was properly dismissed.

The judgment is affirmed.

WILLIAMS, PALMORE, HILL, MIL-LIKEN, STEINFELD and OSBORNE, JJ-, concur.


author: DAVIS, Commissioner.

text:
    Wayne MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.

      Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, C. Homer Neikirk, Somerset, for appellee.
   DAVIS, Commissioner.

The appellant has been convicted of violation of the local option law (KRS, Chapter 242). His punishment was fixed by the jury at a fine of $100 and confinement in jail for 60 days. KRS 242.990(1). The punishment prescribed falls within the statutory range set for a first or second offender against the local option law.

Four grounds are advanced as bases for reversal: (1) A directed verdict of acquittal should have been granted; (2) it was error to submit to the jury the question whether appellant had been convicted of two prior offenses under KRS, Chapter 242; (3) there was failure of proof to identify this appellant with the person previously convicted; (4) the instructions were erroneous.

The indictment charged the “prime” offense as having occurred on or about the -day of March, 1966. That offense was alleged to have been the appellant’s illegal possession for purpose of sale of eight pints of Old Crow liquor, in local option territory.

The indictment charged that appellant had been convicted of two previous violations of the local option law, one of which occurred on September 28, 1958, and the earlier of which convictions occurred on May 8, 1956. The indictment appropriately alleged that the required sequence of offense and conviction had occurred.

The first assignment of error goes to the validity of the conviction of the “prime” offense, and is rested on the claim that the contraband liquor was not shown to have been in the possession of the appellant.

A search warrant had been obtained pursuant to the affidavit of the sheriff. The warrant directed the officer “ * * * to search the house and premises adjacent thereto now in the possession of Wayne Marcum said premises being located in Pulaski County, Kentucky, and described as follows: On Highway W No. 80, southeast of Gaunce’s Big Store, and at the junction of Hideaway Drive or Oak Hill Road and W No. 80 consisting of lot of ground, House Trailer, cars and out buildings.”

The evidence disclosed that Marcum lived in a house trailer, and that the search warrant accurately described his place of abode. The sheriff related that he went upon Mar-cum’s premises and read the search warrant to him. Then a search was conducted of Marcum’s premises and of an area located across the road from Marcum’s place. The eight pints of whiskey were found in a cabinet of a sink in an unfinished building located across the road from Marcum’s residence. An empty carton for Old Crow whiskey was located just behind Marcum’s trailer. There was no evidence as to who owned the property across the road from Marcum’s where the liquor was found. The immediate question arises as to whether the prosecution adduced evidence sufficient to support a finding that the liquor was in the possession or control of Marcum. We examine the evidence relating to that point.

The sheriff testified that he knew Mar-cum’s reputation as a violator of the local option law. Then the witness gave this testimony :

“Ql. Mr. Hansford, tell the Court and Jury whether or not you had seen or if you had seen the defendant Wayne Mar-cum on these premises that you searched and where you did find this whiskey?
A. Yes, sir.
Q2. Will you tell the circumstance and the time and so on?
A. On the 13th of March there’s a man come out of the trailer, where Mr. Mar-cum lives and across the road and into a building and come back out to a car and handed something in the car.
Q3. You mean you saw a person go to this building that you say was a garage across the road ?
A. Yes, sir.
Q4. And come back where?
A. To the road and hand something in a car.
Q5. Was that somebody Wayne Mar-cum?
A. To the best of my knowledge, yes.
Q6. Now did you ever see him there at any other time?
A. On the 19th there was two — two trips made from that garage to a car parked just off the road.
Q7. Were you observing that?
A. Yes, sir.
Q8. Do you know who that was?
A. Not for sure, he did come out of the trailer where Mr. Marcum lives.
Q9. Was that in the daytime or night?
A. Night.
Q10. Now, on the day that you made this search and secured this search warrant, did you see the defendant Marcum there at any time previous to the time that you obtained the search warrant?
A. He was parked — when we got — just before we got there he was talking to some person in a car in a car on this property, just off the road, probably on the edge of the road of this property where the building is being constructed.
Qll. In other words, he was on that property, there across the road?
A. Yes, sir.”

A deputy sheriff testified of having made a surveillance of the unfinished building on the night before the search was accomplished. When asked what he had observed on that occasion he replied:

“A. There was someone, I can’t say this was Mr. Marcum, but some one came out of his trailer and come over to where this, into this building, and I walked up to the building where I could tell and hear what was kindly going on in there I couldn’t hardly, couldn’t see, but I heard a bottle rattle in there and whoever it was went back to a car that was parked in front of Mr. Marcum’s trailer.”

Appellant points out that evidence must reflect that the contraband liquor was kept for sale and that it was subject to the control and management of the accused. Noble v. Commonwealth, Ky., 295 S.W.2d 343, 345. When liquor is discovered on premises not owned by the accused there must be some evidence of substance “connecting” the accused with it. See Barrett v. Commonwealth, Ky., 390 S.W.2d 654; Powell v. Commonwealth, Ky., 282 S.W.2d 340; McBride v. Commonwealth, Ky., 279 S.W.2d 772; Lorman v. Commonwealth, Ky., 269 S.W.2d 243.

It is our view that the evidence for the Commonwealth did “connect” appellant with the eight pints of Old Crow. It is true that the evidence of the sheriff was weakened when he testified that the individual he saw in the unfinished building was Marcum “to the best of my knowledge.” However, we are not able to say that this qualification of the testimony was such as to utterly destroy its probative value. Certainly this evidence, as well as the other testimony quoted above, “connects” the appellant with the liquor; appellant did not testify nor offer any proof in his own behalf to refute the prima facie case made against him. We are persuaded that the evidence here was sufficient to sustain the verdict and the trial court properly denied appellant’s motion for a directed verdict.

Appellant contends that there was insufficient proof to warrant submission of an issue of his having been formerly convicted. He relies upon Marcum v. Commonwealth, Ky., 398 S.W.2d 886. There we observed that the required sequence of offense and conviction, followed by offense and conviction, should be shown by specific evidence. That observation was not made the basis for reversal of that conviction, however. In the present case the verdict fixed the punishment within the maximum limits for the prime offense only. It is obvious that the jury did not fix the punishment upon the basis of two prior convictions, as the minimum penalty in that circumstance is confinement in the penitentiary for a year. KRS 242.990(1). There was unequivocal testimony by the circuit clerk that this appellant had been convicted of an offense against the local option law prior to the date of the prime offense alleged. If there had been a deficiency of evidence relating to the earliest offense (which we do not decide) it was not prejudicial, and is not a proper basis for reversal. RCr 9.24.

The third assignment of error is that the evidence failed to identify the appellant as the person convicted in the earlier cases. There is no merit in this contention. The circuit clerk did positively identify appellant as the individual convicted in 1958. The identity of names raises a prima facie case of identity of persons. See Foster v. Commonwealth, Ky. (decided October 28, 1966) ; Sullivan v. Commonwealth, 222 Ky. 771, 2 S.W.2d 666.

The final question raised relates to the sufficiency of the instructions. We have read the instructions as given and are not persuaded that they are subject to the criticism levelled upon them by appellant. It would unduly lengthen this opinion and serve no useful purpose to copy the instructions here. In our view they adequately presented the issues within the rule as explained in Marcum v. Commonwealth, Ky., 398 S.W.2d 886, and in Brown v. Commonwealth, Ky., 378 S.W.2d 608.

The judgment is affirmed.

All concur.


text:
    Mary S. AMLUNG, Appellant, v. FIRST NATIONAL LINCOLN BANK OF LOUISVILLE, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.

      Martin J. Duffy, Jr., Edward W. Ben-singer, Louisville, for appellant.
    John T. Ballantine, Odgen, Robertson & Marshall, Louisville, for appellee.
   GEORGE O. BERTRAM, Special Commissioner.

Appellant instituted this action against appellee bank for return of her 297 shares of the common stock of Falls City Brewing Company. On December 9, 1960, appellant and her husband, Bertram W. Amlung, borrowed $24,109.74 from appellee, for which they executed their promissory note on the same date, in order to pay a debt owing another bank by the husband. On the same date appellant executed a pledge or hypothe-cation agreement pledging her 297 shares as security, together with a power of attorney in blank for the sale of the collateral if it became necessary to satisfy the indebtedness. By stipulation it was agreed that the husband at the time of the hypothecation agreement had previously incurred indebtedness at appellee bank (or a bank it merged with) in the sum of $3,000 evidenced by note dated July 7, 1958, and also $1,200 evidenced by note dated April 15, 1959. Both notes were the individual debt of the husband, and neither was included in the $24,-109.74 note. On December 12, 1961, the husband executed a note for $3,200 to appel-lee bank, which represented consolidation of the $1,200 and $2,000 borrowed by him from appellee July 14, 1961, and on May 18, 1961, he borrowed $12,088 from appellee and executed his note for same. On February 23, 1962, he borrowed $1,-500 from appellee and executed his note for same, which later was reduced by payments leaving a principal balance of $1,255. The notes for $3,000, $24,109.74 and $12,088 were consolidated on July 13, 1961, into a note for $39,109.74 executed by the husband (the record does not reflect what happened to the $88). All notes after December 9, 1960, and a new hypothecation agreement, bore the signature of appellant forged by her husband, and all notes listed as collateral the 297 shares. We are not concerned with the forgeries in this action if the original pledge agreement authorized the additional loans on the signature of the husband.

Appellee by counterclaim seeks recovery against appellant on all notes for the total sum of $46,642.24, and for authority to sell the stock pledged as collateral.

Appellant testified at the trial that all three instruments signed by her on December 9, 1960, were so executed by her for the following reason:

“I just thought, Judge, it was a loan for my husband. I had faith in him and I wanted to help him, that was my only reason.”

The terms of the pledge or hypothecation agreement provided that:

“In consideration of your making, renewing or extending a loan or loans to Bertram W. Amlung for which (297 shares of Falls City Brewing Company common stock) standing in my name and by me endorsed in blank have been tendered to you as collateral security * * * and for the purpose of enabling said borrower to obtain credit therefor, I * * * hereby expressly authorize said borrower to pledge or hypothecate all or any part of said securities for indebtedness aforesaid and all renewals and extensions thereof; and also for any and all other indebted-: ness of the said debtor to you, created at any time before this authorization shall have been revoked in writing, and all renewals and extensions thereof, and I waive notice of all or any such other indebtedness or extension or renewal thereof.
“Furthermore, I request that you give, or continue to give to said borrower, credit in the form of loans or renewals or extensions as aforesaid, and in consideration of all or any such credit so granted by you, I agree that all or any property pledged or hypothecated as aforesaid, shall be subject in your hands * * * to all powers which would apply thereto by contract or otherwise if said property in fact so pledged or hypothecated stood in the name of said borrower himself and not in my name. * *

The trial judge by his Memorandum of Findings and Conclusions determined that:

“So, until the executed hypothecation instrument had been revoked, the bank clearly had authority under that agreement to attach that collateral to any subsequent debts of the husband. The fact that the note of July 1961 may have extinguished the obligation evidenced by the note of December 1960 would not limit the possession of the bank as far as the allocation of this collateral as security to its current account with plaintiff’s husband.”

A judgment was accordingly rendered in favor of appellee bank for $46,260.27 instead of $46,642.24. However, there is no cross-appeal.

Appellant contends the renewal note given by her husband on July. 13, 1961, for a larger sum with a different rate of interest, and containing new and different provisions, operates as payment of the first note; and that where the new note and new hypothecation agreement contain the forged signature of appellant, it operates to limit the liability of the surety to the amount of the original note. We cannot agree with either contention. See Morehead v. Citizens Deposit Bank, 130 Ky. 414, 113 S.W. 501, 23 L.R.A.,N.S., 141; and Marshall’s Adm’r. v. Corinth Bank & Trust Co., 226 Ky. 361, 10 S.W.2d 1076, where this Court said, “[t]he rule that a collateral security can be held or applied only upon the obligation which it was given to secure does not, however, prevent its retention for and application to the satisfaction of that obligation in any changed form.”

We agree with the trial judge in his findings when he says:

(1) “It is fairly strictly held in this state that a person who has the capacity and opportunity to read the contract and is not misled as to its contents, cannot avoid the contract on the ground of mistake. Clark v. Brewer, Ky., 329 S.W.2d 384;” and (2) “although I sympathize with the plaintiff in her plight.”

Therefore, as we view it the question is simply what are the terms of the hypothecation agreement. The agreement clearly authorizes appellant’s husband to pledge or hypothecate all or any part of the 297 shares as security for the indebtedness of $24,109.74 and all renewals and extensions thereof; and also for any and all other indebtedness created by him before it was revoked. The notes of $3,000 and $1,200 were signed only by Mr. Amlung prior to the hypothecation agreement. By consolidating the notes of $3,000 and $1,200 with other notes after the hypothecation agreement was executed in no wise was a debt created after the agreement. We are unable to find in the pledge agreement any authorization for appellee bank to use the security, or allow it to be used, as such for an indebtedness of appellant’s husband created by him prior to the execution of the agreement. By this we mean, any prior debt that was not included in the $24,109.74 note on December 9, 1960. The including of the $3,000 and $1,200 notes in other notes executed after December 9, 1960, was not a renewal or extension of the $24,109.74 indebtedness nor were they debts created after December 9, 1960.

Applying the foregoing principles of law to the facts presented, we think the judgment should be reduced by $4,200 to $42,-060.27.

The judgment is affirmed in part and reversed in part, with directions to enter a judgment consistent with this opinion.

All concur.


author: STEINFELD, Judge.

text:
    C. M. ELAM, Appellant, v. ACME WELL DRILLING COMPANY, Inc., Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.

      R. B. Bertram, E. G. Bertram, Jr., Bertram & Bertram, Monticello, for appellant.
    Ruben Hicks, Monticello, Joe S. Feather, Williamsburg, for appellee.
   STEINFELD, Judge.

Appellee, Acme Well Drilling Company, Inc., filed suit in the McCreary Circuit Court against L. P. Roe, seeking to recover $5,945.00. A general order of attachment was issued and levied upon certain oil well drilling equipment owned by Roe. Thereafter Roe executed a forthcoming bond, with appellant C. M. Elam as surety thereon. The bond provided: “That the Defendant shall perform the judgment of the Court in this action, or that the property herein which has been attached in this action or its complete value thereof at this time shall be forthcoming and subject to the order of the Court.” After execution of the bond and due appraisal of the property, the sheriff redelivered possession of the property to Roe.

The case went to trial on September 18, 1963, and upon the failure of Roe to make an appearance judgment was entered against him. Thereafter notice was served on both Roe and appellant as surety that motion would be made on September 27, 1963, for the production of the attached property. Pursuant to that motion the court ordered the property produced by January 15, 1964. On the latter date all of the property had been returned to the sheriff except one set of drill jars, one small hole stem and one rope socket. It was apparently necessary to file a claim and delivery action against the alleged agent of the appellee in the Circuit Court of Clinton County to secure possession of the set of drill jars and small hole stem. On March 10, 1964, those two items, along with the rope socket, were returned to the sheriff of McCreary County.

It appears the trial judge was not apprised to the fact that all the attached property had been returned to the sheriff by March 10, 1964. At any rate, on March 16, 1964, the court entered a supplemental judgment directing the sheriff to sell the property at public auction, and providing that appellant as surety was liable for any deficiency in the sale price from the original appraised value of the property. This appeal is prosecuted on the supplemental judgment.

The designation of record was not filed for more than 100 days after the day the notice of appeal was filed. The appel-lee maintains that the filing was not done promptly as required by CR 75.01, which is true. However, failure to seasonably move for a dismissal effectively waives any right appellee may have had to demand such dismissal. The principles stated in Bardill v. Bird Well Surveys, Inc., Ky., 310 S.W.2d 265 apply here.

The second point broached by appellee is that this appeal is premature because he contends that it is not from a final order or judgment. The supplemental judgment of March 16, 1964, provided that appellant as surety would be liable for any deficiency between the appraised value and the sale price of the property which had been surrendered to the Court. It directed that “the property delivered to and now in the hands of the sheriff be sold by said sheriff of McCreary County to satisfy the judgment entered herein and the costs of this action, such sale to be subject to the following terms and conditions, to-wit:” It then made provision for advertising, time and place of sale and the terms of sale. It provided that the proceeds of sale should “be applied toward the satisfaction of the judgment herein” and adjudged that Elam should “pay any deficiency herein, not exceeding the sum of $5,885.00, the appropriate value of said property, for which deficiency plaintiff shall have immediate execution ⅜ ⅝ A

That judgment not only “definitely settled the issues between the parties, * * * but also specifically ordered the property sold in satisfaction of the * * * judgment.” Johnson v. Beattie et al., 265 Ky. 264, 96 S.W.2d 762. It was a final judgment since it determined the rights and authorized enforcement. McCormack v. Moore, 273 Ky. 724, 117 S.W.2d 952. There was nothing more for the Court to adjudicate, therefore, the judgment put an end to the controversy between the parties. Adkins v. Carol Mining Company, 281 Ky. 328, 136 S.W.2d 32. The order to the sheriff to sell the property was a direction to perform an administrative act. The necessity to enter his report did not prevent the judgment from being final and appealable.

There is no claim asserted by plaintiff for damage to the property or because of unreasonable delay in returning it. It claims that Elam is responsible for the appraised value of the property when the bond released it from the possession of the sheriff.

The judgment was erroneous in, providing that a public sale should be had and the deficiency, if any, be made up by the surety. That is not the accepted method of determining the liability of a surety under a forthcoming bond given pursuant to KRS 425.280. The bond provided in the alternative that the surety would produce the property or pay the appropriate value. The surety produced the property. This fulfilled his obligation under the bond.

In Royal Collieries Co. et al. v. Picklesimer, 240 Ky. 686, 42 S.W.2d 907, 908 we said:

“By the terms of the bond executed under section 214 of the Civil Code of Practice, the appellant United States Fidelity & Guaranty Company undertook to bind themselves in double the value of the property that the defendant shall perform the judgment of the court, or that the property or its value shall be for the company in the action. The possession of the property under the bond was released. The lien upon the property attached was not released by reason of execution of this bond, and the power of the court over the property remained in full force, notwithstanding the release of the possession of the property. Hudson Engineering Company v. Shaw, 167 Ky. 27, 179 S.W. 1083. The only undertaking assumed by the surety company by execution of this bond was that the property attached would be forthcoming, or that the judgment of the court would be satisfied. Bell v. Western River [Improvement & Wrecking] Company, 3 Metc. 558; Hobson v. Hall, 14 S.W. 958, 13 Ky.Law Rep. 109; Lee v. Newton, 87 S.W. 789, 27 Ky.Law Rep. 1004.”

The judgment is reversed for further proceedings consistent with this opinion. All concur.


author: WILLIAMS, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Roy L. RICE et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 11, 1966.
    Rehearing Denied March 10, 1967.

      Robert F. Matthews, Atty. Gen., H. C. Smith, Asst. Atty. Gen., Dept, of Highways, Frankfort, Edmond H. Tackett, Dept, of Highways, Pikeville, for appellant.
    J. K. Wells, G. C. Perry, III, Paints-ville, for appellee Rice.
    M. O. Wheeler, Paintsville, for appellees Minton and Harrington.
   WILLIAMS, Judge.

In 1950 Fred Hager conveyed to appellee Roy L. Rice a strip of land upon which a road was to be constructed providing access to Rice’s farm. Sometime thereafter Fred Hager died, and his property descended to appellees Minton and Harrington. The latter two conveyed by general warranty deeds a tract of land to appellant Commonwealth of Kentucky, Department of Highways, for the purpose of constructing a highway. Included in the tract conveyed to the Commonwealth was a portion of the property owned by Rice. Construction of the highway severed Rice’s access road.

Rice filed a reverse condemnation action against the Commonwealth in the Johnson Circuit Court. The Commonwealth in turn filed a third-party complaint against appellees Minton and Harrington. The case was submitted to the court on the question of law and to the jury on the amount of damages. Judgment was entered awarding damages to Rice against the Commonwealth in the amount of $5,000, and dismissing the third-party complaint. The Commonwealth appeals.

The pertinent portion of the 1950 deed from Hager to Rice is as follows:

“WITNESSETH, that the parties of the first part for and in consideration of the sum of $200.00 two hundred in hand paid, and a 4 stran brab wire fence on both sides of road the receipt of which is hereby acknowledged has bargained and sold, and by these presents does bargain, sell and convey unto the said parties of the second part, a certain tract or parcel of land, lying in Johnson County, Kentucky, and described as follows: A strip of land for a hall road leading up the branch located from the trail to limestone branch along the road now located and it is agreed and understood that party of the first part is to have gates coming out of this field in the road mentions here in above and it is further agreed that first parties is to have free excess to said road at all times. It is further agreed that parties of the second party is to maintain sed fencing, and his successors or this deed and contract is nul and voyd, * * *»

The $200.00 consideration was paid and a road was built on the property but no fence was constructed.

It was provided in the deed that Rice would erect and maintain fencing along the property he purchased, and in the event he failed to maintain it the deed and contract were to be considered null and void. It is conceded, at least by the Commonwealth and Rice, that that language in the deed amounts to a “condition subsequent”. The concession is well founded. See Board of Councilmen of City of Frankfort v. Capital Hotel Co., 188 Ky. 754, 224 S.W. 197 (1920). There’ is no doubt that the grantor intended the deed to become inoperative and void in the event the fence was not maintained. However, even though the condition was broken, the result is not ipso facto a forfeiture of the estate. Upon a breach of a condition subsequent there must be some affirmative act manifesting the intention of the grantor to effect a forfeiture before the breach will result in a forfeiture of the estate. A reentry or other positive act is necessary on the part of the grantor. Smith v. City of Kuttawa, 222 Ky. 569, 1 S.W.2d 979 (1928); Hoskins v. Walker, Ky., 255 S.W.2d 480 (1953). Forfeitures are not favored by the law and must be construed most strongly against the grantor. Although there was a breach of the condition subsequent, there was no action taken by the grantor or his successors either by re-entry or by any other positive act. We concur with the finding of the circuit court that the instrument was not voided by the failure to perform the condition subsequent.

The circuit court further found that Rice was damaged and entitled to recover, which is correct. However, we cannot concur in the conclusion that the ap-pellees Minton and Harrington are in no way liable under their general warranty deed. Although the 1950 deed to Rice was recorded, and the access road built by him was “visible, apparent and known” to the Commonwealth, the covenant of warranty was nonetheless fully operative. A grantee is entitled to rely upon a covenant of warranty even though he knows at the time of the purchase that the grantor has no title. Dotson v. Blankenship, 224 Ky. 638, 6 S.W.2d 1073 (1928); Jones v. Hodgkins, 233 Ky. 491, 26 S.W.2d 19 (1930); Berry v. Crisp, Ky., 247 S.W.2d 384 (1952). For a discussion on measure of damages for breach of covenant, see Cox’s Heirs v. Strode, 5 Ky. (2 Bibb) 273 (1811); Inman v. Coburn, Ky., 249 S.W.2d 816 (1952) ; also Copeland v. McAdory, 100 Ala. 553, 13 So. 545 (1893).

Proof of the amount of damage suffered by Rice was offered as in a direct condemnation action. It was brought out in cross-examination that some of Rice’s witnesses placed separate values on minerals, timber, surface and house sites. One witness was permitted to base his judgment of the market value on what the property was worth to him. Without going into detail of the testimony of each witness, it seems sufficient to say that objections and motions to strike the objectionable portions should have been sustained. We refer to the many cases recently decided by this court delineating the proper scope of examination of valuation witnesses. For example, Commonwealth, Department of Highways v. Tyree, Ky., 365 S.W.2d 472 (1963); Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844 (1963); Commonwealth, Department of Highways v. Gearhart, Ky., 383 S.W.2d 922 (1964); and Commonwealth, Department of Highways v. Riley, Ky., 388 S.W.2d 128 (1965).

The judgment is reversed.


text:
    Amon ARNDELL, Amos Arndell and Ervin Arndell, Appellants, v. Mary Evelyn PEAY and her husband, J. G. Peay, and N. A. Arndell, Appellees. Amon ARNDELL, Amos Arndell and Ervin Arndell, Appellants, v. David MARTIN, Executor under the purported Will of N. A. Arndell, Mary Evelyn Peay, J. G. Peay, Eunice Cottrell, Bonnie McPherson, and Riverside Missionary Baptist Church, Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.

      J. Granville Clark, Russellville, for appellants.
    C. Terry Earle, Greenville, for appellees.
   CULLEN, Commissioner.

In these consolidated actions, one involving the will of N. A. Arndell, deceased, and the other involving a deed executed by him before his death, the principal issue was whether Arndell had sufficient mental capacity to execute the instruments. A secondary issue was whether a trust, prevailing over the terms of his will, could be imposed on Arndell’s property on the ground that mutual wills previously made by Arndell and his wife were contractual in nature. The actions were tried together before a jury, which after several hours of deliberation was unable to agree. Thereupon the judge directed a verdict in favor of the deed and will and against the existence of a trust. The contestants of the deed and will, who are the three sons of Arndell, have appealed.

Arndell had three sons (the contestants-appellants) and two daughters (who are some of the contestees-appellees). By the deed Arndell and his wife, both in their early eighties, conveyed his farm to one of the daughters and her husband, in consideration of their caring for the grantors for the rest of their lives. Mrs. Arndell died two months after the deed was executed and Mr. Arndell died ten months later. By his will Arndell left the remainder of his property, consisting of cash and investments, to the two daughters, except for bequests of $1.00 each to the three sons.

Around one year before the deed was executed Arndell and his wife had executed separate but identical wills, by which each left his entire estate in fee simple to the other if surviving, otherwise to the five children in equal shares. The wife’s will was not probated after her death and there is no showing that she had any appreciable estate. Mr. Arndell’s later will of course had the effect of revoking his mutual will, but the argument is made, as here-inbefore mentioned, that the first wills created a trust for the benefit of the five children which is enforceable despite the revocation.

We shall first consider the issue of lack of mental capacity.

The lay evidence for the contestants was that prior to his undergoing a hernia operation, about one month before the deed was executed, Arndell was on excellent terms with his sons, he enjoyed their attentions and services, and he had equal affection for all five children. However, shortly after the day of the operation he became imbued with the idea that the sons had mistreated him and his wife, he complained to other people that the sons had never done anything for him, and he brought up alleged misdeeds of the sons which happened 20 or 25 years previously. He gave a deposition in the suit involving the deed (brought before his death), in which he accused the sons of being “liars,” “thieves,” “cheats,” and “murderers”. .The general import of the lay testimony was that Arndell suffered serious delusions as to the kind of relationships that had prevailed between him and his sons.

The doctor who performed the operation testified upon the basis of his personal observation and hypothetical facts with reference to Arndell’s conduct and attitudes after the operation, embracing the times when the deed and will were executed, that Arndell was suffering from senile dementia and did not have mental capacity to execute either document. The appellees argue that use of the hypothetical facts was improper because some of them were controverted. However, the rule is that hypothetical questions may be based on facts as to which there is conflicting testimony. Vogt v. Keller, 289 Ky. 486, 159 S.W.2d 29. The appellees suggest also that the doctor was not qualified to testify as to mental condition because he was simply a general practitioner, but it has been held that the lack of specialized training by a doctor goes only to weight and not to competency. See Kabai v. Majestic Collieries Co., 293 Ky. 783, 170 S.W.2d 357.

Another doctor who examined Arndell after the deed and will had been executed testified that on the basis of his examination he believed Arndell had capacity to execute the instruments. However, when Arndell’s deposition was brought to the doctor’s attention, on cross examination, he said that considering the statements made by Arndell in the deposition he would be of the opinion that Arndell did not have the capacity to execute the deed or the will.

We think the evidence for the contestants clearly was sufficient to create a jury issue as to mental capacity and that the trial court erred in directing a verdict in favor of the deed and will. See Prichard v. Kitchen, Ky., 242 S.W.2d 988; Hollon’s Executor v. Graham, Ky., 280 S.W.2d 544; Pardue v. Pardue, 312 Ky. 370, 227 S.W.2d 403.

We come now to the question of whether the mutual wills that had been executed by Arndell and his wife were contractual in nature so as to create a trust. They did not contain contractual language and there is no direct evidence of a contract, so if a contract is to be found it must be by inference. The facts relied upon by the appellants to raise such an inference are that the wills were reciprocal in their terms, and were executed by husband and wife at the same time.

According to the great weight of authority, the fact that separate wills drawn by the same scrivener and executed by husband and wife at the same time, contain reciprocal or similar provisions and indicate a common purpose is not alone sufficient evidence of a contract between the testators. See 57 Am.Jur., Wills, sec. 732, p. 498; Annotation, 169 A.L.R. 74; 97 C.J. S. Wills § 1367bb, p. 321.

The decision of this Court in Gilliam v. Gilliam, 306 Ky. 102, 206 S.W.2d 199, is in accord with the general rule. The opinion said, 206 S.W.2d at p. 200:

“ * * * Mr. and Mrs. Gilliam may have made similar wills on the same day, but there is nothing whatever in the will offered by Mrs. Gilliam which would indicate on its face any evidence of a contract to make joint wills.”

A departure from the general rule seems to have been made in Boner’s Adm’x v. Chesnut’s Ex’r, Ky., 317 S.W.2d 867. Perhaps the fact that the wills in that case specifically referred to each other, and the fact that the wills made equal provision for the heirs of the husband and those of the wife, added enough extra weight to the scale to warrant the inference of a contract. See Annotation, 169 A.L.R. 74. In any event, we are not disposed to extend the application of that case beyond its particular fact situation.

Wright v. Wright, 215 Ky. 394, 285 SW. 188, relied upon by the appellants, is not in point because there the finding of a contract rested on direct testimony of a specific contract, and not on inference.

It is our conclusion that the trial court correctly ruled that the mutual wills were not contractual.

To the extent that it denies the existence of a trust the judgment is affirmed; otherwise it is reversed with directions for further proceedings in conformity with this opinion.

All concur.


text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Sue H. SHIELDS, Widow et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Robert Matthews, Atty. Gen., H. C. Smith, Robert J. Beale, Frankfort, Tildón H. McMasters, Elizabethtown, for appellant.
    W. R. Gentry, Jr., Bardstown, for ap-pellees.
   CLAY, Commissioner.

Appellant Highway Department condemned approximately 15 acres of appellees’ 262-acre farm in Nelson County. This resulted in landlocking an additional 15 acres of tillable land. The jury awarded appel-lees $11,000.

Appellant’s first contention is that the court should have stricken the testimony of two of appellees’ witnesses (one of whom was the landowner) on the ground that these witnesses, in fixing an after value, duplicated the damages by allowing full value for the land taken and then depreciating the value of the remaining land by reason of its lesser acreage.

The highest and best use of this land was for farming and dairy purposes. The witnesses emphasized the fact that the land taken was that closest to the barns and other improvements, and that their physical location on the remaining land impaired its farming and dairying capabilities. The Commonwealth contends these witnesses were fixing damages on the basis of the injury to appellees’ particular farming operations, but we think the testimony was designed to establish that the smaller farm, with the fixed physical location of the improvements, no longer had the per-acre value of the original farm. This is a proper consideration and in our opinion it was not an attempt to duplicate damages such as appeared in Commonwealth, Dept. of Highways v. Blanton, Ky., 352 S.W.2d 545, and Commonwealth, Department of Highways v. Raybourne, Ky., 364 S.W.2d 814.

It is next contended the trial court erred in not permitting the Commonwealth to further examine one of the landowners, who appeared as a witness, with respect to the basis of his acreage valuation. The trial judge was of the opinion that the question had been answered, and it does appear that this witness had been over the factors he had taken into consideration. In view of the fact that this was a landowner testifying, and his valuations were in excess of those shown by comparable sales, we are inclined to believe the court erred in closing the cross-examination on this point so abruptly. However, we are of the opinion that this line of cross-examination would not have improved the Commonwealth’s position or affected the weight given this testimony by the jury. On the whole record, this error was not prejudicial.

It is finally contended that the verdict is clearly excessive. It does not so strike us.

The judgment is affirmed.

All concur.


text:
    J. H. ASHER, Appellant, v. Anna Lee RADER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.

      Roy W. House, Manchester, for appellant.
    D. G. Boleyn, Hazard, for appellees.
   CULLEN, Commissioner.

Eugene Asher, who held record title to a tract of land and lived in the residence on the tract, conveyed it to the appellee Anna Lee Rader for a consideration of $6,000. Thereafter the appellant J. H. Asher, father of Eugene, asserted that he was the true owner, holding under an unrecorded deed from Eugene’s grantor which predated Eugene’s deed. J. H. offered to pay to Anna Lee the amount of her purchase price and the sums she had expended for improvements, in return for a conveyance of the land to him, but she rejected the offer. J. H. then brought the instant action seeking to recover the land, asserting that Anna Lee (1) had constructive notice of his title, (2) had actual notice of his title, and (3) was not a purchaser for value. The trial court entered judgment denying relief and J. H. has appealed.

The claim that Anna Lee had constructive notice of J. H.’s title is based on the fact that at the time of, and for a substantial period of time prior to, the conveyance by Eugene to Anna Lee, various materials and equipment owned by J. H. were stored or kept on the premises. J. H. argues that this should have put Anna Lee on notice that he was in “possession.” The trouble is that Eugene, who held record title, was living on the premises and was, from all appearances and in fact, in possession. Any use of the premises by J. H., he being Eugene’s father, was to an observer perfectly compatible with Eugene’s ownership and was not calculated to give notice of any claim of ownership by J. H. We find no merit in the claim of constructive notice.

The claim of actual notice rests upon testimony of a witness that he overheard a conversation between Eugene and Anna Lee, before she bought the land, in which Eugene told Anna Lee that his father had an unrecorded deed to the land, predating Eugene’s deed. The conversation was denied by Eugene and Anna Lee, creating an issue of fact which the trial court resolved against J. H. The finding was not clearly erroneous.

The claim that Anna Lee was not a purchaser for value arises out of the fact that she paid only $6,000 for the property whereas there was evidence that the property was worth from $12,000 to $14,000. However, there was evidence also that $6,000 was a fair price. The savings and loan association which helped Anna Lee finance the purchase would not lend more than $4,000 on the security of the land. Here again there was a simple fact issue which the trial court was entitled to, and did, resolve against J. H. (We do not mean to suggest that a purchaser must pay full price in order to be a bona fide purchaser for value. See 77 C.J.S. Sales § 290 c, p. 1099.)

The judgment is affirmed.

All concur.