author: MASSEY, Chief Justice.

text:
    Thomas P. READ, Jr., et al., Appellants, v. Ruth GEE, Independent Executrix, et al., Appellees.
    No. 18070.
    Court of Civil Appeals of Texas, Fort Worth.
    April 5, 1979.
    Rehearing Denied May 3, 1979.

      William A. Nobles, Decatur, for appellant Thomas P. Read, Jr., Independent Executor of the Estate of Ruth Cole, Deceased.
    Melton & Hamric and Wayne A. Melton, Dallas, for individual appellants.
    Andress, Woodgate & Lodewick, and William Andress, Jr., Dallas, Stark, Barnhart & Moore, and Richard S. Stark, Gainesville, for appellees.
   OPINION

MASSEY, Chief Justice.

The question presented by the appeal is presence or absence of ambiguity or uncertainty in the provisions of the will of Ruth Cole, deceased. If there was ambiguity or uncertainty parol evidence would be admissible for the purpose of ascertaining the intent of the testatrix in the construction of the will (distinguishable from evidence which would serve to supply only sufficient background information). If there was not ambiguity or uncertainty such evidence by parol would be inadmissible.

Summary judgment was granted upon the motion of defendant Ruth Gee, individually and as independent executrix of the estate of Laura Freeland, upon the holding of the trial court that there was not ambiguity or uncertainty in the language of the will; that by a construction of the language alone, unaided by any evidence, the interest of Ruth Gee, in her individual capacity and as independent executrix, included right to take all and every interest as beneficiary to the estate of Ruth Cole. Therefrom Thomas P. Read, Jr., et al., have appealed.

We reverse the judgment and remand the cause for trial at which parol evidence, if presented, should be admitted and considered in the construction of the Cole will.

The material portions of the Cole will appear below; emphasis is supplied by the court:

I, Ruth Cole, resident of Paradise, Wise Co. Texas declare this to be My Will. I direct that all my just debts be paid by my Executor, herein after named, as soon after my death as may conveniently be done.
2
After the payments of all my just debts I give, devise and bequeath all of my property and interests of every kind and character and from whatever source derived to my sister, Laura Freeland, if deceased, to Ruth Gee, her daughter, (author’s note; this could be either a period or a comma) nephews & nieces, namely Thos P. Read Jr. Carl Read Jr. W. T. Read, Tennessee Sendok, Doris Bogart, Marie Elliott, Iva Ruth Rhodes.
3
(Not copied; merely named independent executor, etc.).
4
Laura Freeland, if deceased, to Ruth Gee $2,000—
Thos P Read Jr — 200 acres of Johnson place.
W. T. Read — 134 acres of Home place.
Carl Read Jr — 97 acres bottom land.
Tennessee Sendok, Thos P Read Jr. W. T. Read, Doris Bogart, equal shares of Savings Bonds.
Marie Elliot (sic) and Iva Ruth Rhodes $100.00 each.
House & Lots to Thos P. Read Jr. contents of which are to be divided among nephews and nieces.
Haynes place 65½ acres to be sold for support and expenses as needed in Hospital or Nursing care.
Provided my bank account does not exceed expenses, 60 acres of royalty can be disposed of.
(There was no residuary clause in the will.)

The will was a holographic will which was entirely in the handwriting of Mrs. Cole, the testatrix.

At time Mrs. Cole made the will all her brothers were deceased; (likewise, all her sisters except Laura Preeland). Thomas P., and T. Read were surviving sons of Thomas P. Read, Sr., and Tennessee Sendok and Doris Bogart were their sisters; Carl Read, Jr., was son of Carl, Sr., deceased; Marie Elliott and Iva Ruth Rhodes were children of Walter Read, deceased. The children of three deceased brothers and one deceased sister were not mentioned by the will. Ruth Gee was one child of Laura Freeland, the sister Mrs. Cole named in her will. All the “nephews and nieces” mentioned by the will were common both to Mrs. Cole and Mrs. Freeland.

By the construction given the will by the trial court, on the theory that its provisions were plain so that the aid of parol evidence was neither necessary nor proper, paragraph 1 provided, in substance (according to the trial court):

“I give, devise and bequeath all of my property ... to my sister Laura Freeland, (and) if (she be) deceased, to Ruth Gee, her daughter, (and others of my) nephews & nieces, namely . . .”

Treated as surplusage in the construction by the court was the following language in paragraph 4:

“Laura Freeland, if deceased, to Ruth Gee $2,000, — ”.
Or, alternatively, the court construed it to say:
“(if) Laura Freeland (be) deceased, to Ruth Gee $2,000, — ”.

and also the language which follows relative to nephews and nieces.

From April 9, 1976 when Thomas P. Read, Jr., (as independent executor of the estate of Ruth Cole) filed his suit for declaratory judgment in this case, he, individually as well as an independent executor, along with all the other “nephews and nieces” (except Ruth Gee) named as such by the Cole will, have taken the position that there was necessity for a construction of the language and provisions of the will. Indeed, to secure that was the objective of the suit for declaratory judgment; and this was the same case in which Ruth Gee, (in her individual capacity coupled with her capacity as independent executrix of the estate of Laura Freeland, deceased), sought and secured the summary judgment. Thomas P. Read, Jr., (as independent executor of the estate of Ruth Cole), did obtain a declaratory judgment, not what was desired nor by the kind of trial alleged as necessary, but by the summary judgment sought by Ruth Gee. That judgment was not satisfactory to Reed either in the capacity in which he brought suit nor to himself nor to any of his interested cousins, all of whom were parties to the suit. They have ever been insistent that the court should hear and consider parol evidence bearing upon the meaning and intent of the language used in the holographic will.

In Kennard v. Kennard, 84 S.W.2d 315, 320 (Tex.Civ.App.—Waco 1935, writ dism’d), Justice Alexander, later Chief Justice of our Supreme Court, wrote the following:

“Where the meaning of a will is doubtful, evidence of the circumstances surrounding the testator are admissible so as to put the court as nearly as possible in the same position as was the testator at the time the language was used, for the purpose of enabling the court to read the will in the light of the circumstances under which it was written and thereby discovering the meaning attached by the testator to the words used by him. Such evidence is admissible only for the purpose of explaining the meaning of the language used in the will, for the intent of a testator must be ascertained from the meaning of the words used by him in his will and from those words alone. In other words, the intent must always be drawn from the will, but never the will from the intent. As it is sometimes expressed, it may be shown in certain cases what was intended by the testator by what he actually said, but it is always incompetent by such extraneous circumstances to show what the testator intended to say but did not say. Before such evidence is admissible there must appear on the face of the will sufficient indication to justify the application of the evidence, and the intention as evidenced by such extraneous circumstances must be in harmony and not in conflict with the language of the will. It is never proper to admit extrinsic evidence as to the direct oral declaration of the testator for the purpose of supplying an intention that is not reasonably and legitimately deducible from or that is contrary to or inconsistent with the language used in the will. (Citing many cases)”.

The cardinal rule to be followed in construing a will is to seek and enforce intention of the testator, and if intention of testator be not clearly expressed by particular language used it may be found by looking to provisions of the will as a whole and to circumstances surrounding its execution. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955); Atkinson v. Kettler, 372 S.W.2d 704, 710 (Tex.Civ.App.—Dallas 1963, aff’d at 383 S.W.2d 557, (1964)); 95 C.J.S. 767 “Wills” § 592 (1957), “(Intention of Testator) — Surrounding Facts and Circumstances”.

In the instant case, particularly relevant to the language of the will at its paragraph 4, is the legal requirement that in attempting to reconcile apparent inconsistencies a later clause in a will must be construed in harmony with an earlier clause if such construction can fairly be given. 95 C.J.S. 866 “Wills” § 621 (1957), “(Separate Parts or Clauses) — Inconsistent and Repugnant Provisions.

In the event of necessity there may be reference to other parts of a will for explanation of a different part where there is a provision by language of doubtful meaning. 95 C.J.S. 864 “Wills” § 620 (1957), “(Separate Clauses or Parts) — Construction as Whole”, sub. (b) “Reference to Other Parts.”; and under sub. (d) “Consideration of Invalid or Inoperative Parts” is to be observed that under the general rule, even as applied to a void or inoperative part of a will, such may be considered in the attempt to ascertain the testator’s intention in the valid part sought to be construed.

Bearing in mind all of the foregoing we are of the opinion that there is ambiguity and uncertainty in the will. Indeed, contrary to the construction of the trial court, the will could as well be read so that it was subject to a construction according to Thomas P. Read, Jr., et al. as follows:

“I give, devise and bequeath all of my property ... to my sister Laura Freeland . . . (and to) nephews & nieces, namely .... (to) Laura Freeland . . . $2,000.00 — (,) Thos. P. Read, Jr. — 200 acres of Johnson place (,) . . ..”

In other words, we have concluded that there is uncertainty by the language used by Mrs. Cole in drafting her will as to whether she intended to give the whole of her estate to her sister, Laura Freeland, in the event Mrs. Freeland should survive her; or, whether — in the event Laura Freeland did not survive her — to Ruth Gee in her place and stead (a contention which does not appear to have ever been made), and/or to Ruth Gee along with her cousins as named in the will (all as might be qualified by the very questionable language of paragraph 4 of the will relative to which there is not express disposition of any kind). Again, observing the language in paragraph 4, “Laura Freeland, if deceased, to Ruth Gee”, coupled with the list of Mrs. Cole’s same nephews and nieces named in paragraph 2, a possible construction might be that paragraph 2 provided (in the event Mrs. Freeland predeceased Mrs. Cole), that all nephews and nieces named by the will participate — on basis of share and share alike. (Mrs. Freeland was alive at the death of Mrs. Cole; she afterward became deceased before the litigation over the Cole will was instituted.)

This court also had for consideration a motion to dismiss as party to the appeal Thomas P. Read, Jr., in his capacity as Independent Executor. To do so would leave him in the case only in his individual capacity but not as executor of the Cole will. On presentation, adverse counsel conceded that he really didn’t care one way or the other whether there be such dismissal or not. Because of the concession, the motion is dismissed.

We reverse the summary judgment because there were issues of fact which should have been tried. The court was' correct in denying such to Thomas P. Read, Jr., et al., but erred in granting the judgment to Ruth Gee, et al.

Judgment is reversed, with the cause remanded for trial.

HUGHES, J., not participating.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    PHILLIPS PIPE LINE COMPANY, Appellant, v. O. B. McKOWN, J., et al., Appellees.
    No. 1165.
    Court of Civil Appeals of Texas, Tyler.
    April 12, 1979.
    Rehearing Denied May 3, 1979.

      Kent M. Rider, Stayton, Maloney, Hearne & Babb, Austin, for appellant.
    H. Lee Godfrey, Graves, Dougherty, Hearon, Moody & Garwood, Austin, for ap-pellees.
   MOORE, Justice.

The opinion delivered on January 11, 1979, is withdrawn and the following opinion substituted in lieu thereof.

Plaintiffs, O. B. McKown, Jr., and 1826 Associates, Ltd., brought suit against Phillips Pipe Line Company, Inc. (Phillips), and Panhandle Construction Company, Inc. (Panhandle), for damages arising out of the construction of a pipeline across plaintiffs’ land on which Phillips owned a right-of-way easement. As grounds for a cause of action plaintiffs alleged: (1) that Phillips and its contractor, Panhandle, were guilty of negligence in the manner in which the land was used which resulted in damages to the land; (2) that they had trespassed on more land than was reasonably necessary for the construction of the line; (3) that Phillips breached its contract to restore the land to its original condition after the pipeline had been laid; and (4) that Phillips breached its agreement not to encroach, in any degree, on that portion of the lands which had been designated as a cemetery area. Plaintiffs further alleged that Phillips was responsible for the acts and omissions of its contractor, Panhandle, and prayed for a judgment against both defendants jointly and severally-

Phillips answered with a general denial and affirmatively alleged that it owned a right-of-way easement across plaintiffs’ property, and therefore had a right to use the land for the purpose of constructing the pipeline. Phillips further denied that it contracted to pay plaintiffs for damages to the land and specially denied that either it or its agents, servants or employees were guilty of negligence in the construction of the pipeline across plaintiffs’ land.

On the day of the trial plaintiffs settled with Panhandle for the sum of $22,500.00 and dismissed its cause against Panhandle with prejudice. Phillips then filed a petition alleging Panhandle was an independent contractor and therefore Phillips was not liable for the acts and conduct of its independent contractor in constructing the line. Phillips further alleged that Panhandle was Phillips’ indemnitor and that the conduct of the plaintiffs in releasing and dismissing Panhandle from the suit, also had the effect of releasing Phillips from any and all liability for plaintiffs’ claim for damages. After a trial before a jury, the trial court entered judgment on the verdict, awarding plaintiffs damages in the amount of $33,293.39, from which Phillips perfected this appeal.

We affirm in part and reverse and render in part.

The evidence shows that the plaintiffs were the owners of two adjoining tracts of land in Travis County lying to the southwest of the city of Austin. Mr. McKown individually owned 82.01 acres and 1826 Associates, Ltd., owned an adjoining tract consisting of approximately 280 acres.

By instruments dated December 5, 1928, and February 25, 1929, plaintiffs’ predecessor in title conveyed to Shell Pipe Line Corporation an easement across the property in question. Effective April 30, 1953, Phillips acquired all rights to this easement and to a 10-inch diameter pipeline located thereunder. Shell Pipe Line Corporation also maintained another pipeline under the easement so that at the time of this suit plaintiffs’ property was burdened with two pipelines a short distance apart. The easement did not restrict the width of the pipeline right-of-way nor did it restrict the width in which the easement owner was permitted to work in the course of repairing, replacing or relocating any of the pipelines thereunder. Under the terms of the easement the grantee agreed to pay only for such damages as might arise to “crops, timber, fences, and buildings” caused by the construction of pipelines across the land.

In 1973, Phillips commenced replacing a 47-mile long stretch of pipeline through Hayes, Travis, and Bastrop counties. The work on the pipeline located on plaintiffs’ land was performed between April and August of 1973. Prior to the time of the commencement of the pipeline, Phillips entered into a written contract with Panhandle to do the construction work. Under the terms of the contract, Panhandle was to do all of the construction work for a fixed price and no part of the work was to be performed by Phillips. It was agreed between Phillips and Panhandle that the maximum width of the right-of-way in which Panhandle would construct the line would be 50 feet. Panhandle further agreed to indemnify and hold Phillips harmless from any and all damages resulting from the construction of the pipeline. The evidence shows that Panhandle performed all of the construction work. There are no findings that Phillips was guilty of any independent negligence apart from Panhandle or of any concurrent acts which contributed to the damages complained of by plaintiffs.

The cause was submitted to the jury on twenty-eight special issues, each of which assumed that Phillips was the principal actor and was primarily liable to the plaintiffs. The judgment recites that the total amount of damages awarded to plaintiffs was based exclusively on the jury’s findings to Special Issues 14, 16, 23, 27 and 28. Although the jury made other findings that Phillips breached its contract to pay plaintiffs for damages to the land and awarded damages therefor, the court refused to enter judgment on those findings (Special Issues 5 and 26).

Since the trial court did not render judgment based on Phillips’ alleged breach of its contractual agreement to pay damages for injury to the land, and since plaintiffs failed to complain of this on appeal, the questions to be determined are whether, when the plaintiffs released Panhandle, Phillips may be held liable to plaintiffs for (1) the acts and conduct of Panhandle, its independent contractor and indemnitor, for injury to the land; and (2) the acts and conduct of Panhandle in trespassing on plaintiff O. B. McKown’s cemetery area, causing him physical pain and mental anguish.

Phillips contends under its first point of error that by the conduct of the plaintiffs in releasing and promising to protect Panhandle, its independent contractor and indemnitor, plaintiffs are precluded from recovering any further damages to the land from Phillips because the release of Panhandle also had the effect of releasing Phillips. Therefore, Phillips takes the position that the court erred in awarding plaintiffs a judgment for permanent damages to the land and damages for restoration of the land as found by the jury in response to Special Issues 14,27 and 28. As we view the record, this contention must be sustained.

Instead of constructing the line itself, Phillips employed Panhandle to do the work. The line was to be constructed according to detailed plans and specifications as set forth in a lengthy written contract. Panhandle was to do all the work at a fixed price and repair and restore the land after the completion of the work. Under the terms of the contract, Phillips had no concern for the undertaking except the finished product. Although Phillips had a right to have its inspectors on the job see that the contract was complied with, the contract recited that Panhandle was an independent contractor. There is nothing in the record showing that Phillips exercised any control over the work or had a right to exercise any control over the details of the work. Under the holding in Lone Star Gas Co. v. Kelly, 46 S.W.2d 656 (Tex.Comm’n App.1932), we are convinced that the record conclusively establishes that Panhandle was an independent contractor as a matter of law.

The general rule relative to the liability of an employer for acts of an independent contractor is stated as follows in 30 Tex. Jur.2d, p. 500 sec. 17: “An employer is not responsible for the acts or omissions of an independent contractor and his subcontractors or servants, committed in the prosecution of the work that is not unlawful or attended with damages to others.” It is also said that “The doctrine of respondeat superior has no application.” Plaintiffs do not contend that the work contracted for was unlawful or inherently dangerous, and it has been repeatedly held that the laying of a pipeline is not inherently dangerous. Lone Star Gas v. Kelly, supra; Weeks v. Texas Illinois Natural Gas Pipe Line Co., 276 S.W.2d 321 (Tex.Civ.App.—Galveston 1955, no writ history); Intratex Gas Company v. Burkholder, 506 S.W.2d 342 (Tex.Civ.App.—El Paso 1974, no writ history). Phillips, having performed none of the work on the land and having retained no right to control the details of the work, cannot be liable to plaintiffs for injury to the land caused by its independent contractor, Panhandle.

Further, there are other reasons why Phillips may not be held liable to plaintiffs for injury to the land caused by Panhandle. It is undisputed that Panhandle agreed to indemnify and save Phillips harmless from any and all claims made by third parties for injury or damages resulting from the construction of the pipeline.

Plaintiffs settled their suit against Panhandle by written agreement which was styled “Release of all Claims and Waiver.” Under the terms of the settlement agreement, plaintiffs recited that it was their intention to release Panhandle from any and all claims, demands, liability, suits and causes of action by whomsoever caused, solely, jointly or otherwise for property damages, permanent and temporary damages to trees, vegetation and soil, damage due to loss of crops, diminution in market value of land, mental anguish and physical pain and suffering and all other losses resulting from or in any way attributable to the construction of the pipeline in question. Significantly, the release also recited that plaintiffs agreed to “protect” Panhandle from any claims which Phillips might have against Panhandle and to take nothing as to those damages which Phillips would be entitled to indemnity as shown by the following stipulation:

“It is the express intention of the parties hereto to release any and all claims which O. B. McKown, Jr., Betty McKown, or 1826 Associates, Ltd., have against Panhandle Construction Company and Panhandle Construction Company, Inc., . as well as to protect such parties from any and all claims which Phillips Pipe Line Company might have against Panhandle Construction Company, and Panhandle Construction Company, Inc., ... as the result of claims made against Phillips Pipe Line Company by 0. B. McKown, Jr., Betty McKown, or 1826 Associates, Ltd., in Cause No. 236,-032, in the 53rd Judicial District Court of Travis County, Texas (or any other causes in which claims are asserted as the result of claims made by O. B. McKown, Jr., Betty McKown, or 1826 Associates, Ltd., arising from the aforesaid pipe line construction).
“It is expressly acknowledged that 0. B. McKown, Jr., Betty McKown, and 1826 Associates, Ltd., believe that Phillips Pipe Line Company is not entitled to indemnity or contribution from Panhandle Construction Company as to any amounts that the said McKowns and 1826 Associates, Ltd., might recover from said Phillips Pipe Line Company, it is further expressly recognized that, by virtue of principles of contribution and indemnity, Phillips Pipe Line Company, may, in some instances, be entitled to indemnity from Panhandle Construction Company in which case, based upon the determination of the trial court (or the last of any successive courts to make such a determination), O. B. McKown, Jr., Betty McKown, and 1826 Associates, Ltd., will take nothing as to those items of dam ages regarding which Phillips Pipe Line Company would be entitled to indemnity from Panhandle Construction Company." (Emphasis supplied.)

Although plaintiffs stipulated in their release of Panhandle that they were reserving their right to sue Phillips, we are of the opinion that the reservation was rendered ineffective when plaintiffs also undertook to protect and save Panhandle harmless from any and all claims which Phillips might have against Panhandle. As a result, any cause of action which plaintiffs might have had against Phillips was extinguished. Nevertheless, plaintiffs pursued their suit against Phillips and recovered a judgment. Upon the entry of the judgment, Phillips’ liability became fixed and certain even though at that time Phillips had suffered no actual loss because Panhandle agreed to indemnify Phillips from any and all liability. Texas Auto Services, Inc. v. Kemp, 478 S.W.2d 646, 648 (Tex.Civ.App.—Austin 1972, no writ, citing Pope v. Hays, 19 Tex. 375 (1857). Phillips then had a right of indemnity from Panhandle and Panhandle had a right of indemnity over against the plaintiffs. Thus, if plaintiffs’ release of Panhandle did not also have the effect of releasing Phillips, a useless circuity of action would result. In order to prevent a circuitous action such as this, the courts will disregard the reservation not to sue the third party and will hold that the third party was also released. Panhandle Gravel Co. v. Wilson, 248 S.W.2d 779, 784 (Tex.Civ. App.—Amarillo 1952, writ ref’d n. r. e.); Simpson v. Townsley, (Ca. 10 Kan.) 283 F.2d 743, 92 A.L.R. 526, 553. This result is reached because it is obvious that it could not have been the intention of the parties to the settlement agreement that Panhandle, in order to recover the loss from a judgment based on its indemnity provision if sued by Phillips on the contract, would then be entitled to turn around and sue McKown in a circuitous action.

Further, if the release executed by the plaintiffs is construed to mean that plaintiffs reserved a right to sue and recover judgment against Phillips, then there would be nothing to prevent Phillips from recovering the amount of the judgment over against Panhandle in accordance with the indemnity contract. Thus, Panhandle’s release would become meaningless since the release would not be effective as a complete discharge of liability as contemplated by the parties to the settlement agreement. Spradley v. McCrackin, 505 S.W.2d 955 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Smith v. South & W. R. Co., 151 N.C. 479, 66 S.E. 435 (1909). Obviously, the parties had no such intention.

Accordingly, we conclude that the release executed by the plaintiffs embracing an agreement to protect and hold Panhandle harmless constituted a complete exoneration of Phillips and removed any foundation on which plaintiffs could base a claim against Phillips for injury to the land. It follows that the portion of the judgment awarding plaintiffs a recovery based on Special Issues 14, 27 and 28 cannot stand.

Plaintiffs seek to avoid the effect of the settlement agreement by arguing that the damages awarded them based on Special Issue 14 can be sustained on the theory (1) that Phillips breached its contract to pay damages to the land; and (2) that there was no indemnity agreement between Phillips and Panhandle for damages to the land within the right-of-way.

We cannot agree with the contention that the award of $27,625.00 for negligent injury to the land, as found by the jury in Special Issue No. 14, may be sustained on the basis of other findings made by the jury that Phillips breached its agreement to pay damages for injury to the land. While the jury did find that such an agreement was made and awarded damages therefor, the trial court disregarded all of those findings and refused to enter judgment for damages thereon. Plaintiffs registered no complaint of the action of the trial court in this regard. Thus, those findings are no longer viable. For this reason, among others, those findings cannot now be utilized to support findings that plaintiffs were entitled to damages for negligent use of the land as found in response to Special Issue 14.

Nor can we agree with plaintiffs’ contention that the judgment awarding them damages for negligent use of the land as found by the jury in Special Issue 14 may be sustained on the basis that the indemnity agreement between Phillips and Panhandle was not applicable to the land lying within the right-of-way. Plaintiffs take the position that under Paragraph XXII, section A.l the construction contract between Phillips and Panhandle must be construed to mean that the indemnity provisions of the contract did not obligate Panhandle to indemnify Phillips for any damages resulting to the land in the right-of-way established by the jury in the finding to Special Issue No. 10. Hence, they argue that since Panhandle had no obligation to indemnify Phillips for damages to the land in the right-of-way, Phillips was primarily liable for injury to that portion of the land. Therefore, they take the position that their settlement agreement does not constitute a bar to their right to recover damages to the land within the right-of-way. Based on this premise, they contend that the judgment for damages to land may be at least partially sustained based on the jury’s finding to Special Issue No. 11 in which the jury found that the damage to the land within the right-of-way amounted to $18,562.50. We do not agree.

The section of the construction contract (Paragraph XXII, Section A.l) on which plaintiffs rely does not alter the indemnity agreement between Phillips and Panhandle. It merely means that as between Phillips and Panhandle, Phillips was authorized to compromise and settle all claims for damages within the 50-foot right-of-way delineated in the contract before Panhandle’s liability to the injured party had been judicially determined and to charge the same to Panhandle’s account. It was further agreed that if any dispute arose regarding Phillips’ settlements, Panhandle would not be liable provided it was subsequently determined that the work was performed in a reasonable and workmanlike manner. Such contractual provisions are sometimes inserted in construction contracts. 30 Tex.Jur.2d Indemnity p. 459, sec. 14. Contrary to plaintiffs’ contention, the contractual provisions relied upon do not have the effect of discharging Panhandle from its obligation to indemnify Phillips. For this reason, the reservation in the release was not effective to preserve their right to sue Phillips.

Under the second point, Phillips asserts that the court erred in awarding plaintiff, O. B. McKown, a recovery on damages for physical pain and mental anguish because there is no evidence to support such finding.

In response to Special Issues 19 through 23, the jury found: (19) Phillips agreed not to place dirt, rock, or equipment on O. B. McKown’s cemetery area; (20) Phillips placed dirt, rocks, etc., on land that it knew or should have known was the cemetery area; (21) it was not reasonably necessary to place dirt, rocks, etc., on the cemetery area in laying the line; (22) McKown sustained physical pain and mental anguish as a result of Phillips placing dirt, rocks, etc., on the cemetery area; and (23) that McKown suffered damages in the amount of $25,000.00.

The evidence shows that the cemetery area was situated near the area where the pipeline was to be constructed. It consisted of approximately one acre. Although it was not fenced, McKown testified he kept it mowed, and because of this, the boundaries were visible on the ground. He testified his daughter was buried in the north end of the one-acre plot which the evidence shows was some 175 feet away from the alleged encroachment. It is not contended that any desecration of the grave occurred. The testimony shows that when Phillips’ engineers contacted McKown to advise him that the pipeline would be laid across his land, he advised them of the cemetery and told them that the cemetery area was not to be disturbed in any manner whatsoever. He testified they agreed that they would not interfere with the cemetery area. In constructing the line, Panhandle encroached on a small area at the south end of the area by allowing some dirt and rock from the excavation to fall thereon. McKown testified that Panhandle placed some of its equipment in the area.

Under the contract between Phillips and Panhandle, it was agreed that Panhandle was to do the work within a 50-foot right-of-way as set forth therein. Although the North boundary of the right-of-way was near the south end of the cemetery area, the right-of-way did not embrace any part of the cemetery. Had Panhandle not breached its agreement to stay within the 50-foot right-of-way, this phase of the controversy would not have arisen.

It appears from the briefs that the parties disagreed as to whether plaintiff McKown’s recovery of physical pain and mental anguish is based on tort or contract. Phillips argues that the finding establishes a cause of action for a breach of contract and briefed the point on that basis. In reply, McKown argues that the recovery here is in tort as shown by the following quotation in his brief:

“Mr. McKown pleaded and offered proof that Phillips trespassed on the cemetery. * * * No objection was made to the omission of the word ‘trespass’ from the charge. * * * Phillips now, somewhat astonishingly (and contrary to the statements made by its counsel in open court at the time of preparation of the charge), takes the position that only a cause of action for tortious breach of contract and not for trespass was submitted to the jury.
“The cemetery area belonged to Mr. McKown. Phillips placed rock, dirt, and equipment in the cemetery area. In answering Special Issue No. 21 the jury found that this invasion of the cemetery was not reasonably necessary in laying the line. This submission of Special Issue No. 21 would have been superfluous if Mr. McKown had been submitting only a ‘breach of contract’ theory as now claimed by Phillips. Conversely, Special Issue No. 21 alone, since it was submitted without objection, would support a judgment for damages for trespass. Even if some element of the trespass pleaded and proved by Mr. McKown had not been submitted, which is denied, Phillips has not preserved any alleged error in the submission of the trespass. * * * Phillips had no right, even under its own theory of this case, to occupy any unreasonable, unnecessary part of Mr. McKown’s property. As to any such area that it did use, Phillips was a trespasser. See 56 Tex.Jur.2d, Trespass, Sections 1-8; Phillips v. Clear Creek Properties, 553 S.W.2d 389 (Tex.Civ.App.—Austin, 1977, writ ref’d n. r. e.) (Phillips has no right to use a ‘temporary working space’ outside its easement and was a trespasser outside the easement).”

In view of the foregoing statements, it is clear that McKown takes the position that his recovery here is based on tort rather than contract. Accordingly, we will adopt his theory. Proceeding on this theory, and remembering that plaintiffs released and agreed to protect Panhandle, Phillips’ in-demnitor, plaintiff here is in no position to recover damages for pain and anguish against Phillips for the same reason he was ruled to be unable to recover damages for injury to land as explained in our discussion under the first point of error.

Perhaps we should stop here; however, we feel there is another reason why the judgment on this phase of the case cannot be sustained.

The general rule sustained by authorities is that, where the negligence of two or more produces liability for a single indivisible injury and settlement in full for said injury is made by the aggrieved party with one of the parties liable, the same inures to the benefit of all other parties responsible for the injury. Hunt v. Ziegler, 271 S.W. 936, 938 (Tex.Civ.App. — San Antonio 1925), 280 S.W. 546 (Tex.Comm’n App. 1926, jdgmt adopted); Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (Tex. Comm’n App.1935, opinion adopted); Pearce v. Hallum, 30 S.W.2d 399, 401 (Tex.Civ.App.—Dallas 1930, writ ref’d). While we recognize that the relationship of master and servant or principal and agent does not exist in the present case, as it did in the cases just cited, we think the relationship between Phillips and its independent contractor is analogous in view of the fact that the independent contractor had a contractual duty to indemnify Phillips.

In Spradley v. McCrackin, supra, we quoted from 76 C.J.S. Release § 50b, p. 689, as follows:

“ ‘In a situation where several persons are not actively joint tort-feasors, but one person commits the tort and is primarily liable while the liability of the other person is derivative or secondary, as where it arises under the doctrine of respondeat superior, the releasor’s acceptance of satisfaction from one, discharges the other as well, as in the case of master and servant or principal and agent; and it has been held that this is true despite an attempted reservation of rights against the person secondarily liable, since if the rule were otherwise, such person would be liable without having recourse against the person primarily liable, the latter having been released, . ” (Emphasis supplied.)

In the instant case, plaintiffs sought judgment against Phillips and Panhandle, jointly and severally. It is undisputed that the encroachment on the cemetery area was caused by Panhandle. Therefore, Panhandle was primarily liable to McKown. Panhandle was liable to Phillips for trespassing on the cemetery area under the terms of its express indemnity contract. McKown released Panhandle and thereby accepted satisfaction in full for his physical pain and mental anguish as shown by the release. The satisfaction accepted by him was for the entire injury, for the single cause of action, and although it moved from only one of the alleged wrongdoers, no foundation remained for any claim against the other. The cause of action was extinguished. Hunt v. Ziegler, supra (citing cases).

It follows that the portion of the judgment subjecting Phillips to liability for McKown’s physical pain and mental anguish cannot stand.

Only one thing remains. In response to Special Issue No. 16, the jury found that the plaintiffs were entitled to recover the sum of $134.40 to compensate them for their crop damage. Since Phillips concedes that plaintiffs are entitled to judgment for their crop damage, it follows that the judgment in this respect must be affirmed. Accordingly, that portion of the judgment awarding the plaintiffs a recovery for the sum of $134.40 for crop damage is affirmed, but that portion of the judgment awarding plaintiffs damages for injury to the land and awarding O. B. McKown damages for mental pain and suffering, is reversed and judgment is hereby rendered that the plaintiffs take nothing on their claim for damages to the land and that O. B. McKown take nothing on his claim for physical pain and mental anguish.

In view of the ruling we have made, we do not reach the remaining points of error briefed by Phillips.

Affirmed in part and reversed and rendered in part.

      . A partnership owned by McKown.

      . Although the verdict was for twice this amount, the amount was reduced by one-half, apparently on the theory that Phillips was enti-tied to contribution pursuant to the release agreement between plaintiffs and Panhandle.

      . “12. Insurance and Indemnity:

      “Contractor [Panhandle Construction Company] shall indemnify and hold [Phillips Pipe Line] Company harmless from any and all claims, liabilities, and causes of action of, to, or by third persons, including Contractor, his subcontractors, or the employees of either, for injury to or death of any person and for damage to or destruction of any property resulting directly or indirectly from any and all acts or omissions of contractor, his subcontractors, or of anyone directly or indirectly employed by either of them in connection with the performance of any work provided for herein and regardless of whether such injury, death, damage and/or destruction is contributed to by the negligence of Company, its agents, servants and/or employees, and on behalf of Company and in Company’s name will handle or defend at his own expense any claim or litigation in connection therewith. The indemnity provided for in this paragraph shall have no application to any claim, liability or cause of action resulting from the sole negligence of Company, its agents, servants, and/or employees.”

      . Paragraph XXII of the contract provides as follows:
      “XXII. DAMAGE CLAIMS
      “A. Any damages or expenses incurred or occasioned by any acts of omission or commission of the contractor and connected with or growing out of the performance of the contract shall be settled in the following manner.
      “1. Company right of way division will settle all claims for property damage within the right of way. Contractor shall not be liable for any damages to land, pasture, shrubs, trees, crops or vegetation of any kind occasioned by reasonable and workmanlike performance under the contract within the right of way.”


text:
    Shirley ROCKETT et vir., Appellants, v. Ernest OWEN, Appellee.
    No. 18126.
    Court of Civil Appeals of Texas, Fort Worth.
    April 12, 1979.
    Dennis G. Brewer, McGuire, Levy, Collins & McCurley, and John E. Collins, Irving, for appellants.
    Marks & Black, and Keith Marks, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

This is a venue case where the appeal was by plaintiffs Shirley Rockett, et vir., from order sustaining the plea of privilege filed by defendant Ernest Owen. On the venue hearing the only parties adversary were plaintiffs and Mr. Owen; the resident defendants sued along with Owen awaited the outcome for purposes of trial of the merits of plaintiffs’ suit. These resident defendants were M. I. Watkins, Don Kidd, and Claude Arnold.

We affirm the order of transfer.

Without discussion we will state that the affirmance is not related to the presence of Watkins and/or Kidd as defendants, and they will no longer be noticed. Issues considered incident to the affirmance were related to resident defendant Arnold, in that the plaintiffs relied upon Tex.Rev.Civ.Stat. Ann. art. 1995 (1964) “Venue”, sub. 4, “Defendants in different counties.” In a subdivision 4 case the issuable venue facts are stated in 1 McDONALD, TEXAS CIVIL PRACTICE, “Venue”, § 4.10.2, “(Art. 1995(4). One Defendant Resident in County of Suit. . . .) — Venue Facts.” (1965).

One of these venue facts which the party desiring to retain venue in the county of suit must establish by a preponderance of the evidence on hearing is the liability of the resident defendant who has been sued along with the non-resident who has filed the plea of privilege and who is in the position of plaintiff’s adversary on the hearing.

In this case the suit is for personal injury damages resulting from negligence. (Noted is that to be disregarded are any affirmative defenses the resident defendant might have at a trial on the merits. Noted also that, the resident defendant, not being the adversary at the plea of privilege hearing, there would not be availability of claim of benefit of issues tried without objection as by Tex.R.Civ.P. 67, “Amendments to Conform to Issues Tried Without Objection”. In a subd. 4 case the plaintiff, in discharging the obligation to prove the liability of the resident defendant, must prove the case alleged by his pleading as against such resident defendant; the independent or vicarious liability of the non-resident defendant is unimportant to decision by provisions of the subdivision.)

We are bound to affirm the judgment of the trial court on any theory by which that court might have correctly rendered judgment. In this case, there being no findings of fact and conclusions of law, we view the allegations of plaintiff as against the resident defendant, and in light thereof test the evidence.

Assuming that the trial court failed and refused to find that the resident defendant Arnold had been proved liable (by the evidence proper to be considered by the pleadings of a cause of action against him), the only proper points of error would be that plaintiffs had proved their case as a matter of law whereby retention of venue would be mandatory, or, that the failure and refusal of the trial court to find for the plaintiffs (as against the resident defendant Arnold) amounted to a finding so contrary to the greater weight and preponderance of the evidence as to be clearly wrong. The second of these is to be found as the only proper contention, among others obviously improper, by one of the points of error.

It was after the brief of plaintiffs had been filed in this court that defendant/ap-pellee Owen made what we will term the “admission” which, in our opinion, should not have been made. It had not been made before the trial court at the venue hearing. (If it had, such defendant would have been bound so that there would not have been necessity for plaintiffs to introduce evidence on the facts and circumstances of the motorcycle colliding with Mrs. Rockett and causing her injuries.) The “admission” was that plaintiffs had discharged their burden of proof and had established by their evidence, conclusively, the liability alleged against the resident defendant Arnold.

Under subd. 4, Owen proceeded to rely for affirmance of the order of transfer upon the sole ground that plaintiffs’ allegations in their petition in their suit in chief, as same existed at time of the venue hearing, were insufficient. Essentially Owen’s contention was that plaintiffs had not plead a cause of action against him which would be a joint cause of action with that plead against the resident defendant Arnold, nor a cause of action growing out of the same transaction as that with Arnold which was so intimately connected therewith that they should be joined to prevent a multiplicity of suits.

Our holding and conclusion is that Owen errs in reliance on insufficiency of the pleadings. The evidence on trial might seem to establish the contrary, but in a test by subd. 4 the court does not consider evidence in relation to the allegations of pleadings. (Of course the rule is different where the defendant seeking to have the case removed has plead “want of good faith in the allegations of pleadings for the purpose of conferring venue”. Here the defendant Owen has made no such charge.)

Necessarily do we revert to the “admission” that defendant Owen has made for the first time in the appellate court. This admission, if honored, would cause us to treat the plaintiffs’ burden of proof in this subd. 4 case as having been discharged; indeed to go even further than would be necessary to find that the court’s findings were so contrary to the greater weight and preponderance of the evidence that the court’s finding and conclusion were clearly wrong. Plaintiffs’ point of error complains of the findings as contrary to the greater weight and preponderance of the evidence, a point which, if sustained would require that we remand the case. In other words, if honored, the “admission” would require that we reverse the trial court when it has not committed any error and render judgment retaining venue in the county of suit, even though the plaintiffs’ only cogent point of error be one which would require a remand should it be sustained.

We decline to honor the “admission”. We deem it contrary to public policy to permit the trial courts of this state to have their judgments reversed when the judgments are not erroneous by agreement of the litigants in a ease such as this. It necessarily follows that if parties acting in concert could not accomplish exactly that by their agreement, neither could they accomplish the same result by independent action. 4 Tex.Jur.2d Rev. Part 2, “Appeal & Error-Civil Cases”, § 797 at 316 (1974), “Agreement or admission of counsel in appellate court.”; Riley v. Commissioners’ Court, 12 S.W.2d 1072 (Tex.Civ.App.—Amarillo 1929, no writ).

By our opinion, hereinabove, we hold the trial court not to have erred in transferring venue of the case as applied to defendant Owen upon a holding that exception to the general venue rule did not exist by subd. 4.

Furthermore, we hold there not to have been error by Tex.Rev.Civ.Stat.Ann. art. 1995 (1964) subd. 9a, “Negligence”. The burden of proof upon a plaintiff under that venue exception is to prove by a preponderance of evidence that negligence, amounting to a proximate cause of the event from which flowed a plaintiff’s injuries and damages, occurred by act or omission chargeable against the non-resident defendant himself. We hold plaintiffs’ proof not to have even raised issues of fact under the exception. Certainly the trial court did not err in declining to make findings which would support retention of the suit in the county in which it was filed under the 9a exception.

On presentation plaintiffs/appellants waived points of error unrelated to those discussed. Not necessary to be discussed, in our opinion, are the facts and circumstances of the events whereby plaintiffs’ damages were sustained as result of a motorcycle accident.

Judgment is affirmed.


author: LUKOWSKY, Justice.

text:
    Beverly D. BOLIN, Movant, v. Stephen GRIDER, Respondent.
    Supreme Court of Kentucky.
    March 20, 1979.
    Wayne J. Carroll and William Clifton Travis, Ewen, MacKenzie & Peden P.S.C., Louisville, for movant.
    Erwin A. Sherman and William H. Ballard, Lynch, Sherman, Cox & Fowler, Louisville, for respondent.
   LUKOWSKY, Justice.

This case provides us with our first opportunity to examine the mechanics of presenting to the jury the question of whether the threshold requirements of the Motor Vehicle Reparations Act have been met so that recovery of damages in tort may be had. KRS 304.39-060(2)(b).

Grider’s right to recover depends upon his establishing that his “medical expense” exceeds $1,000.00. At trial he introduced bills representing “medical expense” in the amount of $1,028.00. Bolin introduced no evidence to show that any of the charges were excessive in amount. However, medical history and testimony created a conflict in the evidence as to whether the “medical expense” resulted from the collision which gave rise to this suit.

The trial judge submitted the following question to the jury.

“Do you believe from the evidence that the necessary and reasonable medical expenses incurred by Stephen Grider as a direct result of this collision on July 7, 1975, exceed $1,000.00?”

The jury answered “no”. The Court of Appeals reversed the case and granted a new trial because the interrogatory presented to the jury the issue of the propriety of the size of the charges for “medical expense” when this factor was not in dispute and the effect of this submission on the negative answer could not be measured.

KRS 304.39-020(5)(a) provides in pertinent part:

“ ‘Medical expense’ means reasonable charges incurred for reasonably needed products, services, and accommodations, including those for medical care, physical rehabilitation, rehabilitative occupational training, and other remedial treatment and care. . . . There shall be a presumption that any medical bill submitted is reasonable.”

This statute reflects a legislative judgment that:

A. “Medical expense” must be reasonable in the amount of charges.

B. “Medical expense” must be reasonably needed as a result of the collision in issue.

C. Once medical bills have been introduced they place on the defendant the practical necessity of going forward with impeaching proof if he would avoid a directed verdict on these issues. See Lee v. Tucker, Ky., 365 S.W.2d 849, 852 (1963).

In this case Bolin did nothing to impeach the reasonableness of the amount of charges for “medical expense”, however, she did strenuously attack the thesis that the “medical expense” was reasonably needed as a result of the collision which is the basis of this suit. Under such circumstances the probative force of the medical bills is so persuasive on the issue of the reasonableness of the amount of charges for “medical expense” that there is nothing for the jury to decide and the issue should not have been submitted to them. See Louisville & I. R. Co. v. Frazee, 179 Ky. 488, 200 S.W. 948, 950 (1918).

We are unable to determine whether the jury’s negative answer to the submitted question was based on their failure to be satisfied on the illusory issue of amount or on the real issue of causation or both. Because we can not rule out amount as a basis, we agree that a new trial is required.

In this type of case the question submitted to the jury should follow the language of the statute insofar as good English syntax and the facts of the case will permit. Assuming that on retrial the evidence will be substantially the same the question should read:

“Are you satisfied from the evidence that Grider incurred charges in excess of $1,000.00 for reasonably needed products, services, and accommodations, including those for medical care and physical rehabilitation, as a result of the collision of July 7, 1975?”

The decision of the Court of Appeals is affirmed, the judgment of the Jefferson Circuit Court is reversed, and the cause is remanded to the trial court for further proceedings consistent herewith.

All concur.


text:
    CESSNA FINANCE CORPORATION, Movant, v. SKYWAYS ENTERPRISES, INC. and First Security National Bank and Trust Company, Respondents.
    Supreme Court of Kentucky.
    March 20, 1979.

      Gardner L. Turner and Stephen L. Barker, Lexington, for movant.
    William L. Montague, Stoll, Keenon & Park, Lexington, for respondents.
   LUKOWSKY, Justice.

Cessna Finance seeks a reversal of a decision of the Court of Appeals affirming a judgment of the Fayette Circuit Court. The trial court held that Cessna Finance’s perfected security interest in a Cessna 414 aircraft could not be enforced against Sky-ways, a subsequent purchaser of the aircraft in the ordinary course of business from Du Page, a Cessna dealer, and First Security which subsequently acquired a perfected security interest in the aircraft from Skyways. We affirm.

Cessna Finance bank-rolled the sale of a Cessna 414 by Aviation Activities, a Cessna distributor, to Central States, a Cessna dealer, controlled by Brooks. Central States gave Cessna Finance a mortgage supported by a promissory note to secure the loan. The mortgage provided that Central States could not sell the aircraft without the prior consent of Cessna Finance. Cessna Finance recorded its mortgage with the Federal Aviation Administration (F.A.A.) pursuant to 49 U.S.C. Sec. 1403, which provides for the centralized recording of all title and security documents for civil aircraft.

On June 18, 1973 Central States transferred the aircraft without consideration to Du Page, another Cessna dealer controlled by Brooks. Cessna Finance was not notified of nor did it consent to this transfer. On the same day Du Page sold the aircraft to Skyways, a recently formed aircraft dealership, which failed to make a title search of F.A.A. records and did not have actual knowledge of the Cessna Finance security interest. Skyways recorded its title to the aircraft with the F.A.A. on November 8, 1973, nearly five months after the sale.

In January, 1974 First Security acquired a security interest in the aircraft from Sky-ways. First Security had no actual knowledge of the Cessna Finance security interest and also failed to make a title search of F.A.A. records. On April 12, 1974, First Security perfected its security interest by filing with the F.A.A. First Security was aware of the F.A.A. records facility. Sky-ways was not.

Cessna Finance did not consent to the sale of the aircraft by Du Page to Skyways. However, Cessna Finance was notified of a proposed sale by Du Page of the Cessna 414 to Skyways on May 23, 1973. It was the practice of the parties to treat such a notification as a commitment to sell the aircraft to the named buyer within four (4) months and during this period the loan would run interest free. Cessna Finance also knew that Du Page was selling other aircraft in which it held a security interest without its consent, and without satisfaction of the security interest until after consummation of the sale.

On September 25, 1973, in accord with the Cessna Finance lending policy and three months after Du Page sold the aircraft to Skyways, Central States requested that Cessna Finance rewrite the note it held on the aircraft from Central States. Cessna Finance did so while allegedly unaware of the consummation of the sale of the aircraft to Skyways. The rewritten note was for a forty-eight (48) month period.

In November, 1973, Cessna Finance became aware of the sale of this aircraft out of trust without pay-off of its security interest. Cessna Finance made several searches of the title of the Cessna 414 before discovering on November 27,1974, that Skyways had been sold the aircraft. Cessna Finance informed Skyways of its security interest and requested that Skyways surrender the aircraft to it, because Central States had defaulted on its note. Skyways refused to comply with the request. Cessna Finance filed suit in April, 1974, to replevy the aircraft. First Security intervened in a timely manner to protect its security interest in the aii’craft.

Cessna Finance contends that the Federal Aviation Act, 49 U.S.C. Sec. 1403, preempts all state laws governing priorities among perfected security interests. We do not agree. The purpose of Congress in enacting the Federal Aviation Act was to establish a single national filing system for the recording of documents evidencing title and security interests in civil aircraft and not to legislate priorities among holders of various interests in aircraft. H.R. Rep. No. 2360, 85th Cong., 2d Sess., reprinted in (1958) U. S. Code & Admin. News, pp. 3741, 3750, 3755; H.R. Rep. No. 9738, 75th Cong., 3d Sess., 405 — 407 (1938). E. g., Henson, Secured Transactions 22 (1979). Congress did not intend to supercede state laws that would otherwise govern the priorities between perfected security interests. Haynes v. General Elec. Credit Corp., W.D.Va., 432 F.Supp. 763, 765-767 (1977), affirmed C.A. 4th, 582 F.2d 869 (1978) (per curiam); Sanders v. M. D. Aircraft Sales, Inc., C.A.3d, 575 F.2d 1086 (1978); see also Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978).

Kentucky has adopted the Uniform Commercial Code and its provisions govern priorities between conflicting security interests. KRS 355.1-101 — 355.10-102. The general rule under the Uniform Commercial Code is that a perfected security interest “continues in collateral notwithstanding sale, exchange, or other disposition by the debtor unless his action was authorized by the secured party in the security agreement or otherwise . . ..” KRS 355.9-306(2). However, there are many cases where by operation of statute a purchaser of collateral will take free of a perfected security interest under the “or otherwise” exception in KRS 355.9-306(2) and the secured party’s only right will be to proceeds of the sale held by the debtor. U.C.C. Sec. 9-306, comment 3 (1962).

KRS 355.9-307(1) is one of the statutory “or otherwise” exceptions to KRS 355.9-306(2). U.C.C. Sec. 9-306, comment 3 (1962). It provides that a buyer in the ordinary course of business takes free of a security interest created by the seller even though the secured party has perfected its interest and the buyer knows of it and even though the disposition was not authorized. U.C.C. Sec. 9-306, comment 3 (1962). A buyer in the ordinary course of business is defined as a “person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.” KRS 355.-1-201(9). Under these two statutory provisions a buyer will purchase goods free of any security interest created by the seller if he knows that there is a security interest which covers the goods, but will be subject to the claims of the secured party if he knows, in addition, that the sale is in violation of some term in the security agreement not waived by the words or conduct of the secured party. U.C.C. Sec. 9-307, comment 2 (1962).

Du Page was in the business of selling aircraft. The sale to Skyways occurred in the ordinary course of its business. Clearly, Skyways was a buyer in the ordinary course of business. It purchased the aircraft in good faith without knowledge that the sale was in violation of any security interest held by Cessna Finance. Contrary to the contention of Cessna Finance the fact that Skyways was also a dealer in aircraft does not prevent it from being a buyer in the ordinary course of Du Page’s business. The only person excluded from being a buyer in the ordinary course of business by the character of his business is a pawnbroker. A dealer may be a buyer in the ordinary course of business from another dealer in the same goods provided he meets the other requirements of KRS 355.-1 — 201(9). Medico Leasing Co. v. Smith, Okl., 457 P.2d 548 (1969).

Because Skyways was a buyer of the aircraft in the ordinary course of business from Du Page, a person in the business of selling aircraft, and did not know of the restriction on the sale of the aircraft in Cessna Finance’s mortgage, it took title to the Cessna 414 free of the security interest held by Cessna Finance. KRS 355.9-307(1); U.C.C. Sec. 9-307, comment 2 (1962). First Security has a superior security interest in the aircraft because Cessna Finance no longer had a valid security interest in the aircraft after its sale to Skyways. KRS 355.9-307(1).

The decision of the Court of Appeals and the judgment of the Circuit Court are affirmed.

All concur.

      . It is implicit in the factual findings of the trial court that the relationship among Brooks, Central States and Du Page was so intertwined that for all practical purposes they were one and the same and that Cessna Finance had to be aware of this pooling of interests. See note 4, infra.

      . Perfection of the First Security lien occurred just prior to the filing of this action by Cessna Finance.

      . First Security did not conduct a title search because Skyways had purchased the aircraft new, from a dealer, in the ordinary course of business. It assumed no security interest could survive such a sale.

      . This was prior to Central States’ purchase of the Cessna 414 from Aviation Activities and also prior to its transfer of the aircraft to Du Page. See note 1, supra.

      . Cessna Finance relies on Dowell v. Beech Acceptance Corp., Inc., 3 Cal.3d 544, 91 Cal. Rptr. 1, 476 P.2d 401 (1970), cert. denied, 404 U.S. 823, 92 S.Ct. 45, 30 L.Ed.2d 50 (1971) for the proposition that, because of the federal preemption of the priority issue, a buyer in the ordinary course of business from a retail dealer does not take free of a prior federally recorded security interest created by that dealer. This is the only case to so hold. Sigman, The Wild Blue Yonder: Interests in Aircraft Under Our Federal System, 46 So.Cal.L.Rev. 316, 339-348 (1973). Because it misapprehends the Act’s legislative history and misapplies the standards for application of the preemption doctrine, we choose to allow it to remain one of a kind.

      . See notes 1 and 4 supra.

      . Skyways had no duty to examine the title of the Cessna 414 to determine if anyone held a security interest in it in order to have acted in good faith under KRS 355.1-201(9). Northern Illinois Corp. v. Bishop Distributing Co., W.D. Mich., 284 F.Supp. 121 (1968); White and Summers, Uniform Commercial Code 948 (1972).

      .Even if we were to assume that Skyways had notice of the restriction on the sale of the Cessna 414 in the mortgage, it would take title to the aircraft free of the Cessna Finance mortgage under the “or otherwise” exception in KRS 355.9-306(2). The trial court found that Cessna Finance had countenanced the sale of aircraft by Du Page, even though its consent had not been given. Such acquiescence by Cessna Finance was sufficient to waive the restriction in the mortgage. See U.C.C. sec. 9-307, comment 2 (1962).


author: PALMORE, Chief Justice.

text:
    Mable ARNETT and Arthur Kennard, Movants, v. Maude KENNARD, Respondent.
    Supreme Court of Kentucky.
    April 10, 1979.

      Robert J. Greene, Paintsville, for mov-ants.
    Scott Collins, Prestonsburg, for respondent.
   PALMORE, Chief Justice.

This is a boundary dispute in which the movants brought suit against the respondent to quiet their title. The principal question to be decided by this court is whether CR 6.05, which adds three days to the time in which a party may or must act when he has been served by mail, applies to the 10-day limit prescribed by CR 59.05 for motions to amend or vacate a judgment. The answer is “No.”

The salient procedural events were as follows:

January 29, 1974 Judgment entered for movants.
February 5,1974 Respondent served motion to amend judgment and reopen proceedings for further evidence.
February 25,1974 Motion granted.
October 11,1974 Judgment entered for respondent. Respondent served motion to substitute personal representative for deceased plaintiff. Respondent served motion for leave to file amended answer and counterclaim.
October 14,1974 Respondent served memorandum brief on merits.
December 14,1974 Respondent served motion to set aside judgment of October 11, 1974, as having been entered by error. In this motion respondent said that the October 11 judgment had been retyped and altered, was different from the one he had tendered, and did not settle the dispute between the parties, and that respondent’s counsel had not discovered the variation until December 6, 1974.
February 27, 1975 New judgment entered in favor of respondent.
February 28, 1975 Movants served motion to vacate judgment and to enter judgment for movants.
December 23, 1975 New judgment entered, this time in favor of movants.
January 5, 1976 Respondent served motion to set aside or alter judgment of December 23,1975.
November 18, 1976 Respondent served renewed motion to set aside judgment of December 23, 1975, supported by affidavit of counsel that delay in mailing motion of January 5, 1976, resulted from excusable neglect, in that the motion had been prepared and was ready to be mailed on January 2, 1976, but for some inexplicable reason did not go out with the mail and was discovered still in counsel’s office on January 5, 1976.
August 30, 1977 New judgment entered by special judge, this time in favor of respondent.
September 6, 1979 Movants appealed.

In both the circuit court and the Court of Appeals respondent successfully argued that CR 6.05 gave her three additional days to file a motion to vacate, despite the requirement of CR 59.05 that the motion be served “not later than 10 days after entry of the final judgment.” Respondent claims she is entitled to invoke the benefit of CR 6.05 because under CR 77.-04(1) the clerk is required to serve notice of entry of the judgment on every party by mail. We reject this theory.

We have consistently held that CR 59 motions served 13 days after entry of judgment are not timely. Ford Motor Credit Co. v. Swarens, Ky., 447 S.W.2d 53, 55 (1969); Coca-Cola Bottling Works, Inc. v. Hazard Coca-Cola Bottling Works, Inc., Ky., 450 S.W.2d 515, 519 (1970): Under CR 59.05 the 10-day period runs from the date of entry of the judgment on the docket by the clerk, whereas CR 6.05 applies only to periods measured from date of service. The imperative nature of CR 59.05 is exemplified by its specific exclusion from the enlargement provision of CR 6.02. It might be observed also that if the clerk had failed to serve any notice whatever of the entry, the judgment would nevertheless have been effective and the time for taking an appeal would not have been affected by the omission of notice. CR 77.04(4). Respondent surely can be in no better position by having received such notice.

Respondent argues, however, that by virtue of the same principle the judgment of October 11, 1974, must still be in effect, because there was no motion to amend or vacate it within 10 days following its entry, hence the trial court had no jurisdiction to enter any of the subsequent judgments. Perhaps this would be true if we were speaking of true “jurisdiction,” in the sense of the raw power of a court to enter a legally enforceable order, but the status of a judgment that has not been attacked within 10 days after its entry, even though it be entirely valid and enforceable, is not “final” in a truly jurisdictional context. If it were, the reopening provision of CR 60.02 could not have any validity. “Applied to questions of time, it [jurisdiction] is a convenient label to mark a requirement as ultra-mandatory.” Commonwealth v. Berryman, Ky., 363 S.W.2d 525, 526 (1963).

Having been the moving party in bringing about the amendment or setting aside of the October 11, 1974, judgment, respondent is not in a favorable position to claim now that the court did not have the right to do it. It seems to be generally accepted that one who procures the entry of a judgment is estopped to question its validity. 28 Am.Jur.2d Estoppel and Waiver, Sec. 73. Moreover, it will be recalled that her motion represented, among other things, that the judgment did not settle the dispute between the parties. If we are to accept this representation at its word, it must not have been a final judgment anyway.

Yet another argument is that respondent’s tardy motion to set aside the judgment of December 23, 1975, should be treated as a CR 60.02 motion stating grounds sufficient to justify relief. That cannot be done, for the simple reason that the inexplicable failure to see that the CR 59.05 motion was put into the mails promptly after it had been prepared and signed does not constitute excusable neglect or “any other reason of an extraordinary nature justifying relief.”

The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court with directions to reinstate the judgment of December 23, 1975.

All concur.


author: REED, Justice.

text:
    The LOUISVILLE TRUST COMPANY, Ancillary Administrator of the Estate of William Virgil Sampson, Deceased, and Queen Products Company, Inc., Movants, v. JOHNS-MANVILLE PRODUCTS CORPORATION, Respondent.
    Supreme Court of Kentucky.
    April 10, 1979.

      Allen Schmitt, James M. Graves, Boehl, Stopher, Graves <& Deindoerfer, Louisville, Thomas W. Henderson, Pittsburgh, Pa., for movants.
    Lively M. Wilson, Stites, McElwain & Fowler, Louisville, for respondent.
   REED, Justice.

The issue presented is whether this court should extend the so-called “discovery” rule applicable to malpractice cases in this jurisdiction to actions for personal injury from a latent disease caused by exposure to a harmful substance so far as computing the proper commencement date of the statute of limitations is concerned.

I

William Sampson died from malignant mesothelomia, a rare type of lung cancer, caused by breathing asbestos dust and fibers. Sampson had been an asbestos worker at Queen Products Company from 1957 to 1967 during which years he was exposed to asbestos fiber dust. In 1962 Queen Products became the exclusive agent of Johns-Manville and fabricated asbestos boards purchased from Johns-Manville, the manufacturer. From 1962 until he voluntarily terminated his employment with Queen in October 1967, he was exposed to asbestos fiber dust which resulted from sawing and planing Johns-Manville asbestos boards.

From October 1967 until his death in February, 1972, Sampson was not exposed to asbestos dust. He did not become ill until 1971 and lung cancer was not diagnosed until August 26,1971. Sampson was told of the diagnosis in September 1971.

He was again hospitalized on February 5, 1972 and died later that day. Louisville Trust was appointed his administrator on August 24, 1972 and an action for personal injuries and wrongful death was commenced August 25, 1972.

The administrator’s suit sought recovery from Johns-Manville on a theory of products liability arising from an alleged failure to adequately warn of known dangers associated with the inhalation of asbestos dust. Queen Products intervened as a plaintiff to secure reimbursement for workmen’s compensation benefits paid to Sampson. The suit was tried. The jury verdict was in favor of Sampson’s estate. The jury awarded $10,000 for pain and suffering and $80,000 as damages for wrongful death. From a judgment in conformity with this verdict, Johns-Manville appealed to the Court of Appeals. Although several grounds of error were asserted, the Court of Appeals found it necessary to deal with only one. It held that our decision in Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276 (1954), required the dismissal of the action as barred by the applicable one-year statute of limitations. Sampson’s estate moved this court for discretionary review which we granted. Our review is limited, of course, to the limitations issue which is the only assignment of error discussed and decided by the Court of Appeals.

II

The Court of Appeals had no alternative but to decide the case as it did. Columbus Mining Co. v. Walker, supra, is directly controlling unless we decide to overrule it. The Court of Appeals noted:

“The disease which caused Sampson’s death is one which develops only after long exposure and he did not and could not have known of his illness until a year from the date of his last exposure had already passed. The logic of the decisions cited by [Sampson’s estate] is therefore appealing.”
The opinion concluded:
“In our opinion the resolution of the issue presented here is a matter of policy. It is the function of this court to follow the decisions of the highest court of the state and not to attempt to make new policy by overruling those decisions. This is especially true when the policy established by the highest court is of such recent vintage.”

We agree that these statements correctly reflect the proper role of the Court of Appeals in our judicial system. We have concluded to extend the discovery rule of our medical malpractice cases to tort actions for injury resulting from a latent disease caused by exposure to a harmful substance.

Ill

Columbis Mining Co. v. Walker, supra, was decided by this court in 1954. In that case a worker contract silicosis which was not diagnosed until four years after his last exposure to silica dust. The worker could not be compensated under the Workmen’s Compensation Act then in effect because neither he nor his employer had accepted coverage of the Act. He sued his employer in a common law action for failure to provide a safe place to work. This court held that

“. . . since the basis of the action is the employer’s wrongful conduct in not maintaining a safe place of employment, the commencement of the running of the statute should not be delayed beyond the date upon which the employee was last exposed. To hold otherwise would promote the prosecution of stale claims against the intent and spirit of statutes of limitations.” Id. at 278.

This disposition was not in accord with the analysis adopted by the United States Supreme Court in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Urie involved a locomotive fireman who contracted silicosis from inhalation of silica dust over a thirty-year period. The defendant argued that the action was barred by the three-year statute of limitations prescribed in the Federal Employers’ Liability Act. In considering the limitations issue the Supreme Court held that the cause of action did not accrue until the plaintiff either knew or had reason to know of the disease. The adoption of any other rule, the court stated

“would mean that at some past moment in time, unknown and inherently unknowable even in retrospect, Urie was charged with knowledge of the slow and tragic disintegration of the lungs; under this view Urie’s failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute a waiver of his right to compensation at the ultimate day of discovery and disability.” Id. 337 U.S. at 169, 69 S.Ct. at 1024, 93 L.Ed. at 1292.

The thrust of Urie is that when an injury does not manifest itself immediately the cause of action should accrue not when the injury was initially inflicted, but when the plaintiff knew or should have known that he had been injured by the conduct of the tortfeasor. An action accrues only at the time the plaintiff suffers an actionable wrong. In Saylor v. Hall, Ky., 497 S.W.2d 218, 225 (1973) we stated: “A cause of action does not exist until the conduct causes injury that produces loss or damage.”

We followed the rationale just stated in concluding to reject previous case law and to apply the so-called “discovery” rule to actions for medical malpractice when in 1970 we decided Tomlinson v. Siehl, Ky., 459 S.W.2d 166, and in 1971 when we decided Hackworth v. Hart, Ky., 474 S.W.2d 377. These cases announced a discovery rule in medical malpractice cases in these terms: An action for medical malpractice accrues, and begins the running of the limitations period “on the date of the discovery of the injury, or from the date it should, in light of ordinary care and diligence, have been discovered.” Hackworth v. Hart, supra, at 379 (italics omitted).

The requirement of discovery of injury by a plaintiff is no stranger to Kentucky law. “It has long been a part of our workmen’s compensation law, and it is applied, subject to a ten-year limitations period, to actions based on fraud or mistake.”

Caudill v. Arnett, Ky., 481 S.W.2d 668 (1972) contains language which the Court of Appeals noted in its opinion. In Caudill the plaintiff was injured when a school bus in which he was passenger left the highway and overturned. Although his injuries appeared to be minor, from that time on he complained of continuous chest and back pain. Plaintiff was a minor at the time of the accident and failed to commence his action within the required time after he reached his majority. He contended that the rule of Tomlinson should be applied so that limitations did not start to run until the diagnosis derived from an exploratory operation was communicated to him. We held: “The appellant’s cause of action came into existence or accrued on the day he was injured in the school-bus [sic] accident, and limitations began to run from that date even though he was not made fully aware of the extent of his injury until several years later.” The opinion went on to add this gratuitous statement:

“Appellant insists that the rule of Tom-linson v. Siehl [citation omitted] is controlling and, therefore, the date of the exploratory operation is the date of discovery of the cause of action from which event limitations begin to run. The rule of Tomlinson is an exception to the general rule with its limitation being limited to malpractice cases.

The extent of the application of Tomlin-son was irrelevant to the decision. It was undisputed that on the occasion of the accident plaintiff knew that he was injured as a result of the conduct of the defendant’s employee, the school bus driver. Plaintiff’s lack of knowledge of the extent of his injury does not toll a statute of limitations to which the discovery rule is applied. We, therefore, regard this statement in Caudill concerning the extent of applicability of Tomlinson as obiter dictum.

IV

We see no compelling policy-based reason for a distinction between when a plaintiff injured by medical malpractice and when a plaintiff injured by latent disease caused by exposure to a harmful substance must bring a lawsuit or be barred by limitations.

Our own review of foreign authorities convinces us that this statement in Birn-baum’s article in Forum is correct: “The clear trend, in most jurisdictions in cases dealing with drugs, chemicals and asbestos has been to apply some variation of the discovery rule which is based on equitable considerations. Courts have felt that the injured party should be allowed to have his day in court when his injury was of an inherently unknowable nature.”

The New Hampshire Supreme Court in an exhaustive opinion rendered in 1977 explained its concept of the discovery rule’s application to a case where the plaintiff ingested an oral contraceptive which caused hemorrhages in her optic nerves causing her to become legally blind. In this diversity action the federal court asked the Supreme Court of New Hampshire whether its discovery rule applicable to medical malpractice based on leaving a foreign object in a patient’s body should apply to a case where injury was caused by a drug and the plaintiff, exercising reasonable diligence, did not learn of the possible causal connection between the drug and her injury until two or three years after her injury occurred.

The New Hampshire court replied that the discovery rule did apply to this case based on a products liability theory. The court said:

“In a case, such as the one before us, in which the injury and the discovery of the causal relationship do not occur simultaneously, it is important to articulate exactly what the discovery rule means. We believe that the proper formulation of the rule and the one that will cause the least confusion is the one adopted by the majority of courts: A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.”

We think that declaration is a workable and just application of our Tomlinson rule. We find support that this is the just result in a products liability case involving exposure to asbestos in Karjala v. Johns-Manville Products Corp., 523 F.2d 155 (8th Cir. 1975) (construing Minnesota law) and in Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978) (certifying the law of Maryland in a diversity action).

We therefore overrule Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276 (1954) and extend the Tomlinson rule as explicated herein to tort actions for injury from latent disease caused by exposure to a harmful substance whether the action be based on negligence or on a products liability theory. As there is no dispute concerning the operative facts concerning the time elements involved, we conclude as a matter of law that the Sampson estate’s action was timely filed and not barred by limitations.

V

Although Johns-Manville concedes that the component claim for recovery for wrongful death was filed within one year from the date of death as required by statute, it asserts that it is a prerequisite to a wrongful death action that the decedent would have been able to sue for his personal injuries had he lived, (brief for respondent p. 16). We need not either consider or decide the contention because it is premised on the proposition that the decedent’s claim for personal injuries was barred by limitations at the time of his death. Our decision that it was not so barred renders Johns-Manville’s contention in this respect purely academic.

YI

We intimate no opinion on other claims of error by Johns-Manville. Those assignments of error properly presented will be considered by the Court of Appeals on remand.

The decision of the Court of Appeals on the issue of limitations is reversed, and the cause is remanded to the Court of Appeals for its consideration of such other assignments of error as are properly presented.

All concur.

      . KRS 413.140(1).

      . The three-judge panel was unanimous in holding that the recovery for personal injuries was barred by limitations. One judge, however, dissented from that part of the decision which operated to deny recovery for wrongful death as also barred by limitations. The dissenting judge concluded that the claim for wrongful death was timely in his view because it was filed within one year from the date of death which was when the cause of action accrued.

      .Cooper, Kentucky Law Survey — Civil Procedure, 66 Ky.L.J. 531, 534-35 (1978) (footnotes omitted).

        . Caudill v. Arnett, Ky., 481 S.W.2d 668, 669 (1972).

        .Id. at 670.

      . Bimbaum, “First Breath’s” Last Gasp: The Discovery Rule in Products Liability Cases, 13 FORUM 279 (1977).

      . Id. at 285 (footnote omitted).

      . Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170.

      . Id. 371 A.2d at 174 (italics supplied).

      . Cf. Hall v. Musgrave, 517 F.2d 1163 (6th Cir. 1975) (construing the Ky. Tomlinson rule in a diversity action).


author: HOWARD, Judge.

text:
    Dr. Owen B. MURPHY, Appellant, v. LUMBERMENS MUTUAL CASUALTY CO. and the Lincoln National Life Insurance Co., Appellees. LUMBERMENS MUTUAL CASUALTY CO., Appellant, v. Dr. Owen B. MURPHY, Appellee.
    Court of Appeals of Kentucky.
    March 9, 1979.
    Rehearing Denied May 4, 1979.

      Phillip D. Scott, Greenebaum, Doll & McDonald, Lexington, for Dr. Owen B. Murphy-
    Ben L. Kessinger, Jr., Robert E. Reeves, Harbison, Kessinger, Lisle & Bush, Lexington, for Lumbermens Mut. Cas. Co.
    Robert H. Measle, Fowler, Measle & Bell, Lexington, for Lincoln Nat. Life Ins. Co.
    Before HOWARD, VANCE and WIN-TERSHEIMER, JJ.
   HOWARD, Judge.

This is a case involving a suit by Dr. Owen B. Murphy against two insurance companies, and arising out of a group policy which insured the Fellows of the American College of Surgeons of which Dr. Murphy was a member. This action was to recover benefits as a result of Dr. Murphy’s illness and disability.

The Lumbermens Mutual Casualty Company policy covered Dr. Murphy from November 15,1970, until it was terminated on or about April 1, 1974. On the latter date, the Lincoln National Life Insurance Company issued a policy covering the American College of Surgeons. In the trial court, Dr. Murphy claimed that both of the companies afforded coverage to him or in the alternative, each of them were solely responsible.

The facts that gave rise to this lawsuit and which are demonstrated by the evidence and exhibits in the record show that on July 10, 1971, Dr. Owen B. Murphy suffered a heart attack diagnosed as a coronary occlusion with a myocardial infarction. The most disabling feature of his illness was arrhythmia, a condition where the heart does not beat with the proper rhythm. In an effort to combat the arrhythmia, Dr. Murphy was given a drug called Pronestian which apparently controlled the arrhythmia for several years. Dr. Murphy was initially hospitalized for about six weeks and he was off work for about eight months.

In the spring of 1972, Dr. Murphy returned to work on a part-time basis, starting with a very limited office practice, seeing two to five patients a day and gradually building up to seeing ten to fifteen patients a day. However, he was never able to do any more surgery. He referred his surgical patients to other orthopedic surgeons who were in a Public Service Corporation with Dr. Murphy.

In October, 1973, presumably due to his inability to return to his former productivity by reason of being unable to perform surgery, Dr. Murphy severed his relationship with the Professional Service Corporation with which he had been associated and took some time off to assess his situation insofar as continuing his practice of medicine.

On or about April 16, 1974, Dr. Murphy suffered a severe attack of arrhythmia which required that he go into the hospital for approximately a week. It was determined that the Pronestian was not doing the job and therefore he was given Quini-dine. It appeared from the record that the difficulty on April 16, 1974, was a recurrence of the arrhythmia that he had had after his heart attack in 1971 and was not a new or different heart attack. It appeared from the deposition of Dr. Murphy that the recurrence of the problem came about because of his resistance to the drug Prones-tian after its prolonged use. It is conceded by all of the parties that Dr. Murphy was totally disabled from April 16, 1974.

In the trial court, all parties made motions for summary judgment. An Agreed Order was signed by all the parties upon submission of the case and it reads as follows:

The parties having submitted Briefs herein, and it having been stipulated and agreed that the Court shall find and render a judgment relative to:
1. Liability, if any, on plaintiff’s complaint against Lumbermen’s Mutual Casualty Company; and
2. Liability, if any, on the plaintiff’s complaint against The Lincoln National Life Insurance Company; and
3. The amount of said liability, if any, it is hereby
ORDERED that the case shall stand submitted on this the_day of August, 1977.

(Signatures omitted)

Thereupon, the trial court made findings of fact and conclusions of law and found that Dr. Murphy was an orthopedic surgeon, actively engaged in his practice prior to July 10, 1971, when he suffered the heart attack referred to above. The trial court also found that after the heart attack the plaintiff was never able to return to active practice of his profession even though he was able to perform some of the duties of his profession. The trial court found, also, that the Lincoln National Life Insurance Company was entitled to a summary judgment because its policy did not take effect until April 1, 1974, long after Dr. Murphy had become disabled. We agree with the trial court’s finding on this point and affirm the judgment on the appeal of Dr. Murphy from the judgment in favor of the Lincoln National Life Insurance Company. Prudential Insurance Company of America v. Howard’s Assignee, 258 Ky. 366, 80 S.W.2d 21 (1935); Aetna Life Insurance Company v. Gullett, 253 Ky. 544, 69 S.W.2d 1068 (1934).

Lumbermens Mutual Casualty Company appeals from the judgment of the trial court which found that it was liable to Dr. Murphy for benefits pursuant to the provisions of its policy. The pertinent policy provision is as follows:

When, commencing while the Policy is in force as to the Insured, sickness wholly and continuously disables and prevents the Insured from performing all the duties of his profession, the Company will pay for the period the Insured shall be so disabled, not to exceed the following limits .. .
Successive periods of disability, due to the same or related causes, separated by return to active practice for six months or more shall be considered as a new period of disability.

Lumbermens Mutual Casualty Company raises these points on its appeal:

1) That the trial court erred in granting a summary judgment since it wanted to introduce additional evidence;

2) That the appellee was not entitled to summary judgment since he was not totally disabled under the above cited provisions; and

3) That the trial court erred in granting an excessive amount on the policy and too much interest.

As to the appellant’s first contention, we refer to the Agreed Order set out previously in this opinion. It is apparent that at the time this case was submitted, the appellant was satisfied with the state of the record. It was only after the trial court had taken the case under submission and had decided the case adversely to the appellant that it raised this issue. While the record is sparse, we feel that it amply supported the court’s findings, and in any event, any error in this regard was plainly waived by the appellant when it entered into the Agreed Order of submission.

We feel that the trial court correctly decided the issues of Dr. Murphy’s disability. It is apparent that Dr. Murphy was a well-known and respected orthopedic surgeon in the City of Lexington, who had practiced his profession for many years, and that the heart attack he suffered in 1971 precluded him from actively engaging in his profession as an orthopedic surgeon inasmuch as he was never able to do surgery after this illness. The fact that Dr. Murphy saw a few patients in his office for a brief period of time in an attempt to get back to work, does not in our opinion militate against his claim that he was covered under this policy. It is clear that his attempt to return to practice was short-lived and that he was just unable to continue even a limited practice because of his heart condition.

Lumbermens Mutual Casualty Company had the coverage on this Surgeon’s policy at the time of Dr. Murphy’s heart attack, and it cannot be heard now to say that Dr. Murphy does not come within the disability provisions.

It is our opinion that the trial court was correct in finding that Dr. Murphy was totally disabled by reason of his heart attack and was covered by the disability coverage provided by the appellant. Prudential Insurance Company of America v. Harris, 254 Ky. 23, 70 S.W.2d 949 (1934). The trial court was also correct in finding that Dr. Murphy has been and continues to be totally disabled since suffering a heart attack during the period of disability coverage provided by the appellant. Prudential Insurance Company v. Harris, supra.

The appellant argues that the findings made by the trial court were not supported by the evidence. It claims that there was a conflict in the evidence and that this conflict precluded a judgment in favor of Dr. Murphy.

We have examined the record and do not find a dispute as to the evidentiary facts. There may be a dispute as to the legal conclusions to be drawn therefrom, but this does not preclude a summary judgment. Holladay v. Peabody Coal Co., Ky., 560 S.W.2d 550 (1977).

The court’s findings of fact should not be disturbed or modified if supported by probative evidence in the record. Morrison v. Trailmobile Trailers, Inc., Ky., 526 S.W.2d 822 (1975).

The last argument of the appellant, Lumbermens Mutual Casualty Company, is that the court’s calculations were in error. We have examined the record and find that the court’s calculations were correct.

The judgment of the trial court in both cases is affirmed.

WINTERSHEIMER, J., concurs.

VANCE, J., concurs in the result.