author: MOORE, Justice.

text:
    CHAMPION MOBILE HOMES, Appellant, v. Don RASMUSSEN and Rahmberg Mobile Homes, Inc., Appellees.
    No. 1021.
    Court of Civil Appeals of Texas, Tyler.
    June 23, 1977.
    Rehearing Denied July 14, 1977.

      David Stephenson, Clark, Thornton & Summers, San Antonio, for appellant.
    Jerry A. Gibson, Wiley, Plunkett, Gibson & Allen, Daniel R. Rutherford, San Antonio, Lawrence J. Madigan, Moriarty & Ma-digan, Houston, for appellees.
   MOORE, Justice.

This is a products liability case which also involves the right of contribution or indemnity between a retailer and a manufacturer. In December 1971 the plaintiff, Don Rasmussen, purchased a new mobile home from Rahmberg Mobile Homes, Inc. (Rahmberg), which had been manufactured by Champion Mobile Homes (Champion). The mobile home was destroyed by fire on March 13, 1972. The plaintiff instituted suit against Champion and Rahmberg, the retailer, alleging that the fire was caused by the defective installation of the electrical wiring system in the mobile home. Plaintiff alleged a breach of warranty and further alleged that the mobile home was defective and dangerous. He sought to impose liability under the doctrine of strict liability for placing a defectively manufactured product into the stream of commerce. Plaintiff further alleged that Rahmberg was guilty of negligence in failing to inspect and repair the mobile home after having been notified by the plaintiff that the electrical system was not functioning properly. By way of a cross-action Champion sought indemnity or, in the alternative, contribution from Rahm-berg in the event the plaintiff recovered a judgment and Rahmberg likewise sought contribution or indemnity from Champion in the event the plaintiff recovered a judgment against it. Trial was before a jury. In response to the special issues the jury found that (1) the electrical system on the mobile home was defective at the time it left the hands of Champion; (2) the electrical system was defective at the time the mobile home was sold to the plaintiff by Rahmberg; (3) such defect was a producing cause of the fire and destroyed the mobile home; (4) Rahmberg through its agents, servants and employees was (a) negligent in failing to inspect and (b) negligent in failing to repair the mobile home, each of which acts of negligence was a proximate cause of the fire; and (5) the market value of the plaintiff’s personal property destroyed by the fire was $12,250.00. It was stipulated that the plaintiff’s loss, caused by reason of the destruction of the mobile home itself, amounted to the sum of $4,300.00. Pursuant to the jury’s verdict and the stipulation, the trial court entered judgment in favor of the plaintiff against both Champion and Rahmberg, jointly and severally, for the sum of $16,550.00. The judgment further decreed full indemnity in favor of Rahmberg over against Champion. From such disposition Champion alone perfected this appeal.

We affirm.

Under its first point, Champion urges that the trial court erred in admitting into evidence, over its objection, an unsigned copy of plaintiff’s answer to a certain interrogatory which Champion had propounded to the plaintiff requesting the plaintiff to list the items of personal property destroyed by the fire together with the value thereof. The interrogatory in question was propounded under Rule 168, Texas Rules of Civil Procedure. Plaintiff responded with a verified list containing several hundred items. After testifying on direct examination that he and his family had lost all of their clothing, jewelry and other personal effects as a result of the fire and that shortly after the fire he and his wife compiled a list of all the items destroyed along with the fair-market value of each item (the total of which was $16,438.50), plaintiff was then handed an unsigned, unsworn copy of his reply to the above-mentioned interrogatory and was asked to identify it. He testified that it was a list of the contents of the household and personal effects destroyed in the fire. Counsel for appellant, Champion, registered no objection to the foregoing testimony. When counsel for the plaintiff offered the same as an exhibit, counsel for Champion objected on the ground that no proper predicate had been laid in that it had not been established that the list of items was prepared by the plaintiff from a personal inspection of the property. Thereupon the plaintiff testified that the list of items on the exhibit was a typewritten list of an original list which he and his wife had prepared soon after the fire. Champion did not re-urge its objection that the proper predicate had not been laid, but then objected to the exhibit on the grounds that (1) it was an attempt to reduce oral testimony to writing and (2) the list was not admissible because the items listed thereon were in response to the interrogatory theretofore propounded to the plaintiff and was therefore self-serving. The objection was overruled and the instrument was admitted into evidence.

Champion argues that the trial court’s ruling constituted a violation of Rule 168, Texas Rules of Civil Procedure, prohibiting the answering party from using his answers to an interrogatory in his own behalf. The complaint here bears little resemblance to the grounds of its objection made in the trial court. Nowhere in the objection did Champion object on the ground that the exhibit was violative of Rule 168. It now appears that Champion is attempting to add to or broaden its objection so as to encompass what might have been a proper objection if made in the trial court.

The general rule is that objections which are not made are waived. Specific objections which have been overruled by the trial court are effective as grounds for complaint on appeal only to the extent of the grounds named in the objection. No new grounds of objection may be asserted on appeal. Eubanks v. Winn, 469 S.W.2d 292, 296 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.); Rule 373, Tex.R.Civ.P.; 1 McCormick & Ray, Texas Evidence, sec. 22-26 (2d Ed. 1956). Having failed to properly preserve an objection on the ground that the exhibit offered was violative of Rule 168, Champion waived its right to complain. In any event, we do not believe that the admission of the unsworn, unsigned copy of the answer to the interrogatory would constitute a violation of Rule 168. The rule certainly does not prohibit the answering party from offering proof of the same facts found in his answer where proof of such facts is necessary to establish his cause of action. The rule merely prohibits the answering party from using his own sworn answers in his own behalf.

Champion further contends that the trial court erred in admitting the instrument because the written list prepared by the plaintiff amounted to a self-serving declaration. We find no merit in this contention. The method followed by the plaintiff in presenting his evidence in this manner is not the approved method. The proper method would have been for plaintiff to have presented his evidence item by item using, if necessary, the itemized list as a memorandum to refresh his memory. However, in view of the testimony of the plaintiff concerning his personal knowledge of each item and the value thereof, we do not believe that the court abused its discretion in allowing the introduction of such an itemized list over the objection that it was self-serving. Dodson Bros., Builders v. Adkins, 275 S.W.2d 143, 145 (Tex.Civ.App.—El Paso 1954, no writ); Franklin Fire Ins. Co. v. Orr, 36 S.W.2d 576, 577 (Tex.Civ.App.— Texarkana 1931, writ dism’d); 82 A.L.R.2d 582. It must be remembered that at the time the trial court admitted the exhibit into evidence, the plaintiff had already testified, without objection, as to the general category of the items destroyed by the fire and that the reasonable value of all items totaled $16,438.50. Thus, insofar as the value is concerned, the exhibit in question was merely cumulative of the plaintiff’s previous oral testimony. In view of the fact that Champion had an opportunity to cross-examine the plaintiff as to each item and did so with regard to many items, we think the error, if any, in admitting the instrument was harmless. Rule 434, Tex.R.Civ.P. Appellant’s first point is overruled.

Under the second point of error, Champion contends that the trial court erred in granting Rahmberg a judgment for indemnity over against it and erred in refusing to grant Champion a judgment of contribution against Rahmberg. We are not in accord with this proposition.

Since the right of contribution or indemnity depends on the facts, a statement is necessary. The record reveals that Rahm-berg purchased the mobile home in question from the manufacturer, Champion Mobile Homes, Inc., who warranted the electrical system to be in accordance with American National Standard Institute A1191.1. After testifying that Rahmberg Mobile Homes, Inc., had no written contract with Champion to inspect or repair the mobile homes manufactured by it, Gene Rahmberg, owner of Rahmberg Mobile Homes, Inc., gave the following testimony explaining the arrangement between the parties with regard to repairs:

“Q. This Kidder bill, some thirteen months after the sale, do you call and get permission before you send that service man out to do that warranty work?
“A. Not normally. The factory agreements are nothing in writing, but it’s just a very good agreement with them.
“Q. Okay. So' that in this particular situation if, for example, Mr. Rasmussen called you and said thus and so, and in your mind you feel like that may be a warranty claim, you have the authority to call out a service man, do the repair work, send the bill to the factory and they pay it?
“A. Right.
“Q. And that’s what happened in this instance here?
“A. That’s correct.”

The foregoing testimony is undisputed. The servicemen sent by Rahmberg were not regular employees of Rahmberg but were independent servicemen engaged in the electrical business.

Rahmberg sold the mobile home to the plaintiff on December 23, 1970. Shortly after he and his family had moved into the mobile home, they began to have trouble with the electrical system. The lights would occasionally flicker and dim for no apparent reason. Plaintiff complained to Rahmberg on several occasions. On each occasion Rahmberg would call a serviceman to check and make the necessary repairs. Although the evidence shows that some minor repairs were made by various repairmen sent by Rahmberg, they were never able to determine why the lights would flicker and dim. The problem continued until March 10,1972, when the plaintiff and his family locked their home and left on a trip. When they returned several days later, they found that their home had been destroyed by fire.

According to the testimony of George Green, Jr., a mechanical engineer, the fire started because a metal staple used in hanging the inside paneling had rubbed against and finally penetrated the electrical wire running immediately behind the paneling. The penetration of the staple caused an electrical short which in turn caused an electrical spark or intense heat sufficient to ignite the paneling. He testified that the staple was able to penetrate the electrical wiring because the manufacturer failed to place a metal plate over the notches in the wooden studs through which the electrical wiring was placed and that the failure to place such metal plates over the wires was in violation of the rules promulgated by the National Fire Protection Association, as well as the American National Standard Institute. He further testified that if the metal plates had been installed, they would have caused the staples to bend or spread out and would have prevented the staples from penetrating far enough to reach the electrical wire. He testified that the failure to install the metal plates constituted a latent defect and that such a defect could only be detected by the use of a magnetic sensoring device which would show the location of the wiring so that an electrician could trace the wires and find and remove any staples that were placed near the wire. He testified that the failure of the manufacturer to install the metal plates, when coupled with the fact that the staples eventually penetrated the electrical wire, was the producing cause of the fire. Finally, Green testified that he found no evidence that the fire was caused by any other source other than the heated staple.

There is no evidence that any of the servicemen sent by Rahmberg ever made any electrical repairs in the area where the fire started and there is no evidence that any of the minor repairs made by them contributed in any way to cause the fire. As stated, the jury found that the electrical system was defective both at the time it left Champion’s factory and at the time the mobile home was sold to the plaintiff and that the electrical defect was a producing cause of the fire. The jury also found that the agents, servants or employees of Rahm-berg were negligent in failing to properly inspect and repair the electrical defect and that such was a proximate cause of the fire.

Except for Champion’s complaint with regard to the admissibility of certain evidence as discussed in the first point, neither Champion nor Rahmberg complains of the judgment in favor of the plaintiff, Rasmussen, holding them liable as joint tortfea-sors. As between themselves they each simply attempt to shift the liability to the other. Rahmberg argues that the judgment in its favor for full indemnity was proper because Champion breached a duty owed to it by placing the mobile home in commerce with a dangerous electrical defect. Champion maintains that Rahmberg breached a duty owed to it by failing to properly inspect and repair the defect and that it is therefore entitled to contribution from Rahmberg under the provisions of Art. 2212, Tex.Rev.Civ.Stat.Ann., which reads, in part, as follows:

“Any person against whom, with one or more others, a judgment is rendered in any suit on an action arising out of, or based on tort, except in causes wherein the right of contribution or of indemnity, or of recovery, over, by and between the defendants is given by statute or exists under the common law, shall, upon payment of said judgment, have a right of action against his co-defendant or co-defendants and may recover from each a sum equal to the proportion of all of the defendants named in said judgment rendered to the whole amount of said judgment. . . . ”

While the foregoing statute confers a right of contribution between tortfeasors, it will be noted from a careful reading thereof that the statute does not apply in situations where a recovery of contribution or indemnity was permitted at the common law. Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449 (1941); see also 140 A.L.R. 1301. Thus, in order for Champion to claim the benefits of the statute, Champion had the burden of establishing that Rahmberg would not have been entitled to contribution or indemnity under the common law.

Generally speaking, at common law, there is no right to contribution or indemnity among joint tortfeasors. That rule, however, is subject to many exceptions and its operation has been confined within very narrow limits. Oats v. Dublin Nat’l Bank, 127 Tex. 2, 90 S.W.2d 824, 829 (1936). One of the recognized exceptions to the common law rule that there may be no contribution or indemnity between wrongdoers is the situation where the injury forming the basis for the judgment against joint tort-feasors results from a violation of a duty which one of the joint tortfeasors owes to the other, the latter at common law being entitled to contribution or indemnity from the former. Strakos v. Gehring, 360 S.W.2d 787 (Tex.1962); Humble Oil and Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995 (1949); Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949); Wheeler v. Glazer, supra; Hodges, Contribution and Indemnity Among Tortfeasors, 26 Texas L.Rev. 150 (1947).

In order to determine whether the loss should be shifted from one tortfeasor to another, the proper approach is to consider the one seeking indemnity as though he were a plaintiff suing the other in tort, and then to determine whether one such as plaintiff, though guilty of a wrong against a third person, is nevertheless entitled to recover against his co-tortfeasor. Austin Road Co. v. Pope, supra; Heil Co. v. Grant, 534 S.W.2d 916 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). As between the joint tortfeasors, the alleged tort of the indemnitor against the indemnitee is distinct and independent from any tort committed by the indemnitor and indemnitee against the injured third party. Consequently, if under the facts in the present case, Champion violated a duty owed to Rahmberg and Rahmberg violated no duty owed to Champion, then Rahmberg would be entitled to full indemnity and the judgment of the trial court must be sustained. If, on the other hand, the facts show that each code-fendant violated a duty owed to the other, then each must bear its proportionate burden under the provisions of Article 2212, supra, and Champion would be entitled to contribution.

Champion does not challenge the finding that the electrical system was defective when it left its factory, nor does Champion challenge the finding that a manufacturing defect was a producing cause of the fire which resulted in Rahm-berg’s liability to the plaintiff.

The Restatement provides that where a person (such as a manufacturer) has supplied to another (such as a dealer) a chattel which, because of the supplier’s negligence or other fault, is dangerously defective for the use for which it is supplied, and both the supplier and the second party have become liable in tort to a third person injured by such use, the supplier or manufacturer is under a duty to indemnify the second party (dealer) for expenditures properly made in discharge of the third person’s claim. Restatement (Second) of Restitution, sec. 93(1) (1937).

Consequently as between Champion and Rahmberg, Champion must be held to have breached a duty toward Rahmberg. Under these circumstances, Rahmberg would be entitled to full indemnity unless Rahmberg breached a duty owed to Champion. Champion argues that Rahmberg breached a duty to it by failing to properly inspect and repair the electrical defect.

The evidence shows that the defect created by Champion was a latent defect. It was located at a point between the walls of the mobile home and was such that it could not have been discovered except by extensive tests using specialized equipment or by removing the paneling.

We have found no Texas cases, and have been cited none, holding that a vendor has a duty to inspect or test a product manufactured by another for latent defects either before or after it has been sold to a third party. The weight of authority seems to be that the vendor has no such burden. Roberts v. Richland Mfg. Co., 260 F.Supp. 274 (W.D.Mich.1966), citing 2 Frumer & Friedman, Products Liability sec. 1803 (l)(a); Restatement (Second) Torts sec. 402 (1965). See 6 A.L.R.3rd 12. Accordingly, we hold that the vendor owes no duty to the manufacturer to inspect for latent defects. It therefore follows that Rahmberg breached no duty toward Champion in this respect.

Champion argues that Rahmberg is not entitled to indemnity because Rahmberg negligently breached a contractual obligation owed to it by failing to inspect and repair the mobile home. In this connection, Champion contends that since Rahmberg agreed to call out a serviceman when a customer’s complaint appeared to involve a warranty defect, Rahmberg agreed to undertake to inspect and to make the necessary repairs. Based on this premise Champion argues that under the doctrine of re-spondeat superior, Rahmberg was charged with the negligence of the servicemen and therefore Rahmberg breached a duty to Champion by negligent nonperformance of the contract. We find no merit in this contention.

In the first place, we find no evidence that Rahmberg promised to inspect and repair warranty defects created by Champion. The agreement was that when a customer complained of what appeared to be a warranty defect, Rahmberg was authorized to “call out a serviceman” to make the repairs and send Champion the bill. Under this agreement, it appears that Rahmberg agreed only to act as a sub-agent for Champion for the limited purpose of “calling out a serviceman.” Thus, we do not believe the evidence raises an issue on the question of whether Rahmberg contracted to inspect and repair. Even if the issue was raised there is no finding that Rahmberg entered into a contract to that effect. In the absence of a contractual obligation, Rahmberg had no duty to inspect and repair. Since breach of a contract would constitute independent grounds of a defense to Rahm-berg's claim for indemnity, it was incumbent on Champion to request and obtain jury findings establishing a contractual relationship. Having failed to request or obtain findings with regard to the alleged contract, such defense was waived. Rule 279, Tex.R.Civ.P.; Wichita Falls & O. Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940); Enlow v. Brown, 357 S.W.2d 608 (Tex.Civ.App.—Dallas 1962, no writ).

As we view the record Champion failed to establish that Rahmberg violated a duty to inspect and repair the latent defect in the mobile home which Champion itself negligently created. In these circumstances, Champion was a wrongdoer to Rahmberg, but Rahmberg was not a wrongdoer to Champion. Wheeler v. Glazer, supra; Humble Oil and Refining Co. v. Martin, supra. Consequently, under the common law, Rahmberg was entitled to indemnity. It follows that the statute relied on by Champion is not applicable to this situation and therefore Champion is not entitled to contribution.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HALL, Justice.

license: Public Domain

text:
    TAMSCO, INC., Appellant, v. Edward A. JANUS, Appellee.
    No. 5694.
    Court of Civil Appeals of Texas, Waco.
    June 23, 1977.
    Rehearing Denied July 14, 1977.

      Stephen C. Porter, Dallas, for appellant.
    Joe Burnett, Howell, Johnson, Mizell, Taylor, Price & Corrigan, Dallas, for appel-lee.
   HALL, Justice.

Appellee Edward A. Janus brought this suit in April, 1976, against appellant Tam-sco, Inc., to recover on a $10,000.00 promissory note payable to him which was executed by Tamsco on August 15,1972. Tam-sco answered Janus’s suit with only a general denial. Additionally, insofar as pertinent here, Tamsco filed a cross action against Janus alleging that he has been a director and shareholder of Tamsco since 1971; that he was Tamsco’s president and chief executive officer from May 6, 1971, until March 15, 1976; and that his mismanagement and misappropriation of corporate funds during that time caused Tamsco financial losses for which it sued.

Janus moved for summary judgment on the note. He supported the motion with his affidavit which had the original note attached to it. If facing only a general denial, these instruments (which we need not detail) entitled Janus to the summary judgment.

Tamsco contested the motion for summary judgment with pleadings that on September 12, 1974, Janus and Ted M. Akin “acting in their capacities as officers, directors and sole shareholders of [Tamsco]” each executed an Individual Guaranty Agreement with Texas Western Financial Corporation guaranteeing any indebtedness owed by Tamsco to Texas Western; that under the terms of the guaranties Janus and Akin individually agreed any indebtedness owed to either of them at that time or thereafter were subordinated to any indebtedness owed by Tamsco to Texas Western; that Tamsco is indebted to Texas Western in an amount “far in excess of $10,000.00; that on the same day (September 12, 1974) Tamsco executed a Loan And Security Agreement with Texas Western; and that if Tamsco pays Janus on the note he sues upon it will be in default under the terms of the Loan And Security Agreement by reason of violating the subordination clause in the guaranty agreements and will thereby subject Tamsco to the rights and remedies available to Texas Western under the default provisions of the Loan And Security Agreement which include a declaration by Texas Western that Tamsco’s indebtedness is immediately due and payable and a foreclosure under the security agreement. These pleadings were supported and established by Akin’s affidavit which had attached copies of the Guaranties and the Loan And Security Agreement.

The motion was granted and summary judgment was rendered in Janus’s favor on the note on July 27, 1976. Thereafter, on Janus’s motion his cause on the note was severed from the remainder of the ease. The order of severance provided that payment of the judgment should be made into the registry of the court “to be withdrawn by [Janus] upon the posting of a good and sufficient surety bond guaranteeing that should Tamsco, Inc., prevail on its cross action against [Janus] that said funds would be available to pay such judgment; or said proceeds may be withdrawn upon further order of the Court.”

Tamsco first asserts that under the well-settled rule that dealings between an officer or director and his corporation involving corporate property are presumptively invalid, the pleadings in its cross action that Janus was its officer and director over a span of time which included the date the note was executed cast upon him the burden of showing as a part of his summary judgment proof that the note transaction sued upon was entirely fair, which he did not do. We disagree. There is no evidence in the record that Janus was an officer or director of Tamsco when the note was executed. Tamsco’s pleadings are not proof of it. “Pleadings simply outline the issues; they are not evidence, even for summary judgment purposes.” Hidalgo v. Surety Savings And Loan Association, 462 S.W.2d 540, 543 (Tex.Sup.1971).

Next, Tamsco says that Janus was not entitled to the summary judgment because it violates the subordination clause in the Guaranty Agreement by him and, in effect, would jeopardize Tamsco’s credit status with Texas Western. We overrule this contention. The subordination agreement is for the sole benefit of Texas Western Financial Corporation which is not a party here. If the agreement is to be used as a defense to Janus’s suit on the note, then it was Tamsco’s burden to come forward with proof that Texas Western would treat the collection of the note as a breach of the Guaranty Agreement and not merely that it could do so, but this was not done. In Seale v. Nichols, 505 S.W.2d 251, 254 (Tex.Sup.1974), the Court said, “In a summary judgment proceeding, the necessity of supporting a non-movant’s affirmative defense by proof raising a fact issue is well established in Texas. Mere pleading of the defense is not sufficient to withstand a properly evidenced motion for summary judgment.”

Tamsco’s remaining point and contentions are overruled.

The judgment is affirmed.


author: RALEIGH BROWN, Justice.

text:
    Raford HARGROVE et al., Appellants, v. The CITY OF ROTAN, Texas, Appellee.
    No. 5050.
    Court of Civil Appeals of Texas, Eastland.
    June 23, 1977.
    Rehearing Denied July 14, 1977.

      David C. Cave, Spur, for- appellants.
    Norman Arnett, Rotan, for appellee.
   RALEIGH BROWN, Justice.

This is a summary judgment case. Ra-ford Hargrove, Individually and on behalf of Raford Stanley Hargrove, Jr. and Mark R. Hargrove, instituted proceedings against the City of Rotan contending various employees and officers of the City and other agents and servants who were unknown to plaintiffs wrongfully took and destroyed certain personal property belonging to the plaintiffs, namely, the family’s pet Collie dog, Lassie. The City of Rotan’s motion for summary judgment was granted. Plaintiffs appeal. We affirm.

One point of error is presented:

“The District Court abused its discretion and erred by entering summary judgment and finding that the doctrine of governmental immunity shielded the City defendant from liability for wrongful taking of personal property.”

Appellants alleged that the pet dog who had wandered away from home was shot by officers, agents or employees of the. City of Rotan with the knowledge and with the instruction from the officers of the city government and without first impounding the dog. Appellants pleaded an ordinance of the City provided for the impoundment of dogs running loose or at large. Specifically, appellants contend Section 5 of the ordinance provides for the right to redeem the animal impounded by paying the chief of police or health officer or poundmaster the sum of one dollar for each day the animal is detained in addition to any tax or fine provided such redemption is made within three days after the impoundment. Appellants allege this right of redemption was denied them. Because of this wrongful taking of property by the government entity or this taking of property without just compensation, appellants argue the doctrine of governmental immunity does not shield the City of Rotan. We disagree.

In the early case, Whitfield v. City of Paris, 84 Tex. 431, 19 S.W. 566 (1892), an ordinance providing for the destruction of dogs was held to be a proper exercise of the police power of the municipality because it was designed to secure the safety, health and welfare of the public.

The court in Beville v. City of Longview, 131 S.W.2d 313 (Tex.Civ.App.—Texarkana 1939, writ dism’d) said:

“. . . defendant had established a public pound and duly passed an ordinance to restrain and prohibit mules and other live stock to roam at large within its corporate limits. The enactment of this ordinance was an exercise by the city of its police power, in the discharge of its governmental function. It was enacted in the interest and welfare of the public at large . . .”

The court in Smith v. Arnold, 251 S.W. 315 (Tex.Civ.App.—Beaumont 1923, no writ) considering the liability of a municipality for the negligence of its poundmas-ters in carrying out the municipal ordinance regulating, restraining and prohibiting certain animals from running at large and impounding them said:

“. . . Such ordinances arise out of the police power conferred upon cities and towns and are enacted for the public good. A municipal corporation is not liable in damages for the careless and negligent execution of a city ordinance, made and passed in the exercise of its police powers, by one of its police officers or agents on whom it imposes the execution of such ordinance. In the instant Case, Smith, the city marshal, whose act in impounding the cow is complained of, was not a mere servant or employee of the city, but occupied the attitude of a policeman engaged in the enforcement of an ordinance of the city. In such cases it is well settled that the rule of respondeat superior does not apply. Whitfield v. City of Paris, 84 Tex. 431, 19 S.W. 566, 15 L.R.A. 783, 31 Am.St.Rep. 69; Givens v. City of Paris, 5 Tex.Civ.App. 705, 24 S.W. 974; Gregg v. Hatcher, 94 Ark. 54, 125 S.W. 1007, 27 L.R.A. (N.S.) 138, 21 Ann. Cas. 982; Wilks v. Caruthersville, 162 Mo.App. 492, 142 S.W. 800; Swanson v. City of Nacogdoches (Tex.Civ.App.) 161 S.W. 83; Rusher v. City of Dallas, 83 Tex. 151, 18 S.W. 333; Stinnett v. City of Sherman (Tex.Civ.App.) 43 S.W. 847; Dillon on Municipal Corporations (5th Ed.) vol. 4, § 1656; McQuillin on Municipal Corporations, vol. 5, § 2667, p. 5496; 20 A. & E. Ency. of Law (2d Ed.) 1193; 19 R.C.L. §§ 390-399.

McQuillin, supra, says:

‘The keeping of a pound conserves the public good by removing from the streets what might otherwise become a nuisance. Hence a municipality is not liable for the negligence of its poundkeeper which causes the death or injury of an animal which he has taken up.”’

We hold the doctrine of governmental immunity does shield the City of Rotan from liability although the individual or individuals who destroyed the dog may not be so protected. As this court stated in Eubanks v. Wood, 304 S.W.2d 567 (Tex.Civ.App.—Eastland 1957, writ ref. n. r. e.) considering the individual liability of a police officer:

“The evidence is conclusive, as Eubanks contends, that he was at the time of the accident engaged in the course of his employment with the City of Big Spring as a police officer. Although cities are not liable for the negligent acts of their police officers in the discharge of their duty, a police officer is not immune from liability for his own negligence while so engaged. Even though he is engaged in the performance of a public duty as a police officer, he is civilly liable when he acts in a wrongful, oppressive or illegal manner . . ”

Appellants pleaded facts which affirmatively negated their cause of action against the City of Rotan and the court correctly granted the motion for summary judgment. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974); Siegel v. McGavock Drilling Company, 530 S.W.2d 894 (Tex.Civ.App.—Amarillo 1975, writ ref. n. r. e.).

The judgment is affirmed.


author: SHANNON, Justice.

text:
    Alvin L. HEWITT, Appellant, v. John NIELSEN, Appellee.
    No. 12627.
    Court of Civil Appeals of Texas, Austin.
    June 29, 1977.

      Frank D. Kerbow’, Austin, for appellant.
    William C. Davidson, Jr., Campbell & Davidson, Austin, for appellee.
   SHANNON, Justice.

This is an appeal from a partial summary judgment entered in a bill of review proceeding. A preliminary question concerns the finality of the summary judgment. We have concluded that the judgment is not final, and, as a result, we will dismiss the appeal.

In March, 1976, appellee, John Nielsen, filed a petition in the nature of a bill of review to set aside a previous judgment in a trespass to try title suit and for a determination on the merits in the trespass to try title suit. On February 15, 1977, the district court entered the partial summary judgment for appellee.

The summary judgment set aside the previous judgment and vested title to certain land in appellee. The judgment also granted relief for appellee against appellant, Alvin L. Hewitt “ . . . in an amount equal to the proceeds received by the said Alvin L. Hewitt . . ” from the sale of the lots, “ . . . the amount of the sales price of the lots above described to be determined at a subsequent hearing.” (Emphasis added) That part of the cause of action was not severed.

To be final, a judgment must determine the rights of the parties and dispose of all issues involved so that no future action by the court will be necessary in order to settle and determine the entire controversy. Wagner v. Warnasch, 156 Tex. 335, 295 S.W.2d 890 (1956). A judgment is interlocutory when it determines less than all issues as to all parties thereby leaving “something further to be determined and adjudicated by the court in disposing of the parties and their rights.” 4 McDonald, Texas Civil Practice, § 17.03.1 (1971). The ultimate determination of whether a judgment is interlocutory depends upon whether the judgment leaves any issues remaining which require judicial examination or re-examination. Campbell v. Campbell, 550 S.W.2d 164 (Tex.Civ.App. 1977, no writ).

A summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not ap-pealable unless a severance of that phase of the case is ordered by the trial'court. In the absence of an order of severance, a party against whom such an interlocutory summary judgment has been rendered will have his right of appeal when, and not before, the same is merged in a final judgment disposing of the whole case. Pan American Petroleum Corporation v. Texas Pacific Coal and Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959).

In determining the finality of a judgment, the reviewing court looks to the judgment itself. Clabaugh v. City of Tyler, 531 S.W.2d 152 (Tex.Civ.App.1975, no writ), Gregory v. Lytton, 422 S.W.2d 586 (Tex.Civ.App.1967, writ ref. n. r. e.). The summary judgment in the case at bar, on its face, shows that the district court reserved an issue for determination at a later time. The amount of the judgment entered against appellant was “ . . . to be determined at a subsequent hearing.” The express postponement of the determination of that part of the case rendered the summary judgment interlocutory.

The appeal is dismissed.


author: HOGGE, Judge.

text:
    David AUXIER, Appellant, v. COMMONWEALTH of Kentucky, BOARD OF EMBALMERS AND FUNERAL DIRECTORS and Robert Stephens, Attorney General, Appellees.
    Court of Appeals of Kentucky.
    April 15, 1977.
    Rehearing Denied July 8, 1977.
    James W. Bryant, Schaefer & Airhart, Louisville, for appellant.
    Joseph J. Leary, Frankfort, for appellees.
    Before HOGGE, COOPER and REYNOLDS, JJ.
   HOGGE, Judge.

This appeal arises out of an action wherein appellant sought to permanently enjoin appellees from taking administrative action under KRS 316.150(l)(c) so as to revoke his license as an embalmer and funeral director on the grounds that the statute is unconstitutional. Appellant asked for both temporary injunction and permanent injunction. The circuit court granted a temporary restraining order preventing appellees from taking any administrative action against appellant pending a hearing on his motion for a permanent injunction. The circuit court made certain findings based on mem-oranda submitted by the parties, and entered an order denying appellant’s motion for permanent injunction and dissolving the temporary restraining order. This appeal followed.

Appellant is a licensed embalmer and funeral director. By a letter dated July 15, 1976, appellant was notified that the State Board of Embalmers and Funeral Directors had voted not to renew his license upon its expiration on July 31, 1976 for certain alleged violations of the statute controlling the activities of such licensees. The letter advised appellant he was entitled to a hearing on the matter before the board, if he requested it. On July 27, 1976, appellant filed his complaint alleging the notice and hearing were not constitutionally sufficient and that the statute under which the action of the board was threatened was unconstitutionally vague and overbroad.

On July 27, 1976 the Franklin Circuit Court entered an order restraining the board from refusing to renew appellant’s license. On August 2, 1976 appellant filed an amended petition asking that the board be permanently enjoined from enforcing KRS 316.150 and ásking that the court declare the statute unconstitutional. The board then gave appellant notice, setting forth, with particularity, the charges, and that a hearing was scheduled for August 18, 1976. Upon appellant’s motion the court issued an order staying all administrative proceedings until after the court had considered the claims of the appellant. Upon the briefs and record, the court entered an order dissolving the restraining order and denying appellant’s petition for permanent injunction. An accompanying opinion stated: 1) The statute was not unconstitutional. 2) The second notice was sufficient to apprise the appellant of the charges against him. 3) The burden of proof concerning the charges would rest on the board. 4) A suspension or revocation by the board is appealable to the Franklin Circuit Court. This appeal challenges only the first finding.

Appellant contends that KRS 316.-150(l)(c) is unconstitutional for vagueness and overbreadth, and as applied. Appellant’s argument concerning vagueness and overbreadth is essentially that certain terms in the statute are vague and the board has not adopted regulations that would clarify the statute. The statute herein challenged provides that the board may refuse or revoke the license of an embalmer or funeral director for: “A solicitation of business in any way by offering or giving any service which is not a normal function of a licensed funeral director or embalmer in a regular service.”

Appellant submits that a licensee can only guess at the meaning of terms “normal function” and “regular service”. It is true that the words “normal” and “regular”, standing alone, have very little meaning. However they are not standing alone; they are an integral part of the provision. Kentucky courts have long taken the position that the courts will “draw all inferences and implications from the act as a whole and thereby, if possible, sustain the validity of the act.” Folks v. Barren County, 313 Ky. 515, 232 S.W.2d 1010, 1013 (1950). Id. at 1013, the court stated: “Where the lawmaking body, in framing the law, has not expressed its intent intelligibly, or in language that the people upon whom it is designed to operate or whom it affects can understand ... the statute will be declared to be inoperative and void.” [Emphasis ours.] There can be no doubt that the licensed embalmers and funeral directors are well aware of what constitutes the normal functions and regular services of their profession. Appellant even admits his action was not normal or regular. We, therefore, find that KRS 316.150(2) is not unconstitutionally vague or overbroad.

Although not briefed, in oral argument before this court appellant put forth his position that a statute conferring authority on an administrative agency is fatally defective if such statute does not provide for a mandatory due process hearing in all cases involving revocation or suspension or refusal to grant or renew an occupational license. Appellant contended that such a defect could not be cured by the actual granting of a due process hearing.

We have found no authority to indicate this position is an accurate statement of the law. A number of Kentucky statutes do, indeed, provide for mandatory due process hearings. However, a number do not.

It is the opinion of this court that a licensee’s constitutional right to the protection of due process of the law is fulfilled when the agency grants and conducts a hearing that affords the licensee all his constitutional rights. The wording of the statute cannot be used as a gauge to determine whether or not the appellant’s constitutional rights were violated.

Appellant also sought to have the circuit court declare the KRS Ch. 316 unconstitutional, as applied, for the reason that the board has called him to defend against alleged violations of KRS Ch. 216 and KRS Ch. 281 and certain ordinances of the City of Louisville.

The law in Kentucky is well settled. The subject-matter jurisdiction of an administrative agency is limited solely to that granted by Legislature. Department of Conservation v. Sowders, Ky., 244 S.W.2d 464 (1951); Johnson v. Correll, Ky., 332 S.W.2d 843 (1960).

The board, however, has not yet held appellant accountable for violations of those statutes or ordinances, nor has the board penalized appellant for any violations thereof. Furthermore, KRS 316.160 specifically provides that direct appeal to the Franklin Circuit Court may be had from an unfavorable action of the board upon an allegation that the board acted in excess of its powers. We, therefore, find it unnecessary to pass on this constitutional objection of the appellant.

Injunctive relief is proper only where the party seeking such relief has made a clear showing that his rights will be violated and that, as a result, he will suffer immediate and irreparable injury. This court is of the opinion that appellant has made no such showing, and that the statutory safeguards adequately protect the rights of the appellant in this matter.

Accordingly, the judgment of the Franklin Circuit Court is hereby affirmed.

All concur.


author: VANCE, Judge.

text:
    Raymond E. JONES, M.D., et al., Appellants, v. M. L. HEADY and Willia Heady, his wife, et al., Appellees.
    Court of Appeals of Kentucky.
    April 15, 1977.
    Rehearing Denied July 8, 1977.

      Frank W. Burke, George S. Sehuhmann, Louisville, for appellants.
    Joseph C. O’Bryan, O’Bryan & Darnell, Louisville, for appellees.
    Before HOWARD, REYNOLDS and VANCE, JJ.
   VANCE, Judge.

This appeal presents a novel question as to the admissibility in evidence of out-of-court statements of an employee adverse to the interest of the employer.

The appellant visited appellees’ farm to view some cattle in which he had an interest which were being kept by appellees. To gain access to the farm appellant attempted to walk across a cattle guard made of 2 X 6 oak boards suspended on edge above a shallow pit. Appellant fell while attempting to cross the cattle guard and this action was instituted on his claim that the cattle guard contained a hidden defect (in the form of a broken 2X6) of which appellee, M. L. Heady, had knowledge and failed to repair or warn of the defect.

At the trial appellant, by objection of appellees, was prevented from relating the substance of statements he said were made at the time and place of the accident by Ernest Day, an employee of appellees. An avowal was made that appellant would testify that Mr. Day said to him that the cattle guard had been broken the day before by a truck and that Day had told appellee Heady that it should be fixed.

The alleged statement of Day clearly related to appellees’ knowledge of the hidden defect and testimony by Day that he had informed appellee Heady of the defect would clearly have been admissible. But the appellant, not Day, was the witness and he was attempting to prove Heady’s knowledge of the defect with testimony objected to by Heady as hearsay.

Wé think the trial court erred in excluding the testimony. The statement of the employee, if it was actually made and if it was true, would show that appellee, Heady, had knowledge of the defect. The employee, in the course-of the trial, denied making the statement. The denial presented a direct conflict on a question of fact and it was a proper fact-finding subject for the jury to determine if the statement was made.

The statement, if the jury accepts the fact that it was made, is an admission against the interest of the employer and as such constitutes an exception to the rule against hearsay. A statement made by an employee concerning a matter within the scope of his employment soon after an accident which is against the interest of his employer is inherently trustworthy for the reason that the interest of the employee in continued employment would ordinarily prevent him from making a false statement against the interest of the employer. See McCormick, Evidence (2nd Ed. 1972), Section 267.

The advisory committee note to Rule 801(d) 2(D) of the Rules of Federal Procedure recognizes a substantial trend favoring admission of statements of employees related to a matter within the scope of employment. See also Redden & Saltzbury, Federal Rules of Evidence Manual, p. 2.60 (1975); Preston v. Commonwealth, Ky., 406 S.W.2d 398 (1966).

Having decided that it was initially an error to exclude Dr. Jones’ testimony as to what the employee allegedly told him, we must face the fact that the employee was called as a defense witness and denied making the statement. Following such a denial Dr. Jones could have taken the witness stand and again offered testimony that the statement was made. Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969).

Appellee contends the failure of appellant to offer the testimony a second time, after it became competent under the rule in Jett constituted a waiver of the initial error in excluding the evidence. We do not agree. Appellant had properly sought to introduce the evidence but it was erroneously excluded. We find no fault in his abiding by the ruling of the trial court.

. Because our decision will necessitate a new trial we will comment briefly upon two other errors alleged by appellant. The instruction as to appellees’ duty should present the duty to exercise ordinary care to discover hidden defects and either repair the same or give adequate warning thereof. We see no error in the instruction on contributory negligence.

We do not think the photographs of the cattle guard which were taken after the alleged defect was repaired served any useful purpose and on retrial they should not be admitted in evidence.

The judgment is reversed for further proceedings in conformity with this opinion.

All concur.


author: HAYES, Judge.

text:
    Eula COBB and James Edward Cobb, Appellants, v. Maurice CARPENTER, Commissioner of Department of Revenue, Commonwealth of Kentucky, W. B. Shirley and Audrey Shirley, his wife, Appellees.
    Court of Appeals of Kentucky.
    May 13, 1977.
    Rehearing Denied July 8, 1977.

      William R. Knapp, Jr., Dry Ridge, William M. Johnson, Frankfort, for appellants.
    Paul J. Schachter, Covington, William P. Sturm, Dept, of Revenue, Robert F. Stephens, Atty. Gen., Commonwealth of Kentucky, Frankfort, for appellees.
    Before HAYES, HOWERTON, and REYNOLDS, JJ.
   HAYES, Judge.

This is an appeal from an order entered in Owen Circuit Court denying the appellants’ motion for a thirty day extension of time in which to take an appeal from a final judgment.

On September 25, 1975, appellees, Carpenter and Owen County, Kentucky, filed suit against appellants, an unmarried brother and sister. The complaint alleged unpaid property taxes of appellants for nine years since 1966. The complaint asserted the necessary and proper statutory procedures in regard to tax claims and certificates of delinquency were taken and plaintiff prayed the property be sold to satisfy the tax liens against the property. The Cobbs jointly owned a farm of about 243 acres.

The same date the complaint was filed, the Cobbs were duly served with summons. On October 14,1975, an answer and demand for jury was filed by the Cobbs. This legal document was obviously prepared by someone with legal training; however, it was not signed by an attorney, but was signed by the brother of the appellants, Charlie Cobb. Typed on the last page of this legal document were the words, “Attorney in the above mentioned case: William H. “Bill” Bixler, 115 Park Place, Covington, Kentucky.”

On November 18,1975, notice and motion for a summary judgment was filed by ap-pellees, Carpenter and Owen County. This pleading was mailed to each of the appellants and to attorney William H. “Bill” Bixler.

The order of the court shows that on the set date of December 1,1975, a hearing was held on the motion for summary judgment, and there being no one present for appellants, the motion on behalf of appellees, Carpenter and Owen County, was granted. The summary judgment was entered in the Owen County Circuit Court Clerk’s records on December 8, 1975.

The next action was on December 22, 1975, when the Owen Circuit Court entered a judgment granting recovery to the appel-lees, Carpenter and Owen County, on their complaint and further ordering the land of the Cobbs sold at public auction. In accordance with the judgment, the Master Commissioner of Owen Circuit Court, who is also the Circuit Court Clerk, posted notice of sale and advertised the sale of the Cobb property in the local newspaper. These notices stated the property was to be sold at the Owen County Courthouse at 2:00 p. m. on January 31, 1976.

As evidence the appellants well knew what was happening, a pleading was filed January 22, 1976, on their behalf, (signed again by Charlie Cobb individually, pro se, jointly and severly (sic) and as attorney in fact for the captioned defendants), asking the Owen Circuit Court to vacate, stay and abate the Commissioner’s notice of sale. Again this pleading was obviously prepared by one with legal training and was received by the circuit clerk in an envelope bearing the return address in the left upper corner of William H. “Bill” Bixler, Attorney at Law, P.O. Box 843, Covington, Kentucky, 41012.

The farm was sold on January 31, 1976, to the appellees, W. B. and Audrey Shirley for $51,200.00, which sum the Shirleys paid to the commissioner in cash. After the report of sale was tendered and laid over some three days for the filing of exceptions thereto, the report of sale was ordered filed on February 2, 1976. A deed was prepared by the commissioner and an order to surrender possession of the property was entered on February 6,1976. On February 16,1976, an order of final distribution was entered.

Thereafter things began to happen in this case that are difficult to comprehend. An attorney, William F. Knapp, Jr., was apparently employed under written contract by the Cobbs, even though the first action by Knapp was to advise the Owen Circuit Court that both Cobbs were of unsound mind and incompetent to handle their own affairs. The record indicates a report of a guardian ad litem which states that the Cobbs are competent. Many motions were filed on behalf of the Cobbs; insinuations of misconduct on the part of the Shirleys, offers of a bribe, false swearing, and finally misconduct on the part of the trial court and the Master Commissioner. These matters, serious in nature, are the fit subject for another forum, and not for the lines of this written opinion. The end result of all the motions and commotions of the Cobbs is that a motion filed by them on April 3, 1976, to grant a thirty day extension of time in which to take an appeal was denied by the Owen Circuit Court on May 4, 1976. A writ of possession was entered the same date and on May 25,1976, a notice of appeal was filed by the attorney for the Cobbs. By order of the Kentucky Supreme Court on May 28, 1976, the writ of possession was stayed pending this appeal.

The appellees, Shirleys, filed a motion to dismiss the appeal under authority of CR 73.02 which the Supreme Court denied on September 28, 1976. This case was then transferred to the Court of Appeals.

We believe the motion of appellees to dismiss the appeal as not timely filed should be sustained.

KRS 21.056 which was repealed with the enactment of the Judicial Amendment to the Constitution effective January 1, 1976, had stated the method of appeal and that the appeal was to be perfected as provided by the Rules of Civil Procedure.

Effective January 1, 1976, section 115 of the Kentucky Constitution as amended reads:

In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court. Procedural rules shall provide for expeditious and inexpensive appeals.

The present case was practiced under this law and CR 73 before it was amended in July, 1976.

CR 73.02(1), before July 1, 1976, stated: When an appeal is permitted by law as a matter of right, the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from . . . except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment or an order which affects the running of the time for taking an appeal, the Circuit Court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.

CR 73.02(2) states: “A party may appeal from a judgment by filing a notice of appeal with the Circuit Court . . ..”

There is only one means to appeal a matter to this court and that is by notice of appeal which must be filed within 30 days (20 days as of July 1, 1976) of the final judgment or final order as determined by CR 54.01. This 30 day time limit is mandatory and jurisdictional, see Electric Plant Board of Hopkinsville, Kentucky v. Stephens, Ky., 273 S.W.2d 817 (1954). Using either the date the summary judgment was entered or the date the order of distribution was entered, it is apparent that appellants’ notice of appeal was not timely.

The appellants, in an attempt to take advantage of the one exception to the 30 day rule, filed a motion for extension of time under CR 73.02(1) on April 3, 1976, to take an appeal from the court’s order of February 16, 1976, the final order of distribution of the proceeds of the judicial sale. The circuit court denied this motion on May 4, 1976. The appellants on May 25, 1976, filed his notice of appeal not from the order of distribution entered February 16, 1976, or the summary judgment entered December 27, 1975, for appellants obviously knew the time for appeal of those orders had long since passed. They appealed the order of May 4, 1976, denying their request for a 30 day extension of time to file an appeal. This would put them within 30 days of an order, but one that is not a final order under CR 54.01 and therefore, not appeala-ble. For that reason this appeal is dismissed.

In fact, the reading of the entire record would indicate to this court the appeal may be one of delay only. It is a matter of record that appellants are still in possession of the land, the Shirleys have not had the benefit of a 6,000 pound tobacco base, and the clerk of Owen Circuit Court is holding the $51,200.00 purchase price. It would obviously be very disadvantageous to the Shirleys if the case should drag on to where they would be denied the benefits of another tobacco crop.

The appellants state they have filed a supersedeas bond. There is some indication in the record that this is untrue. We feel the appellants would not deliberately mislead this court; therefore, the following damages under CR 73.04(1) are assessed against the supersedeas bond. The appellants shall be assessed not only the costs of this appeal, but under authority of Moss v. Smith, Ky., 361 S.W.2d 511 (1962), the fair and reasonable rent of the property during the time the Shirleys have been kept out of possession. If it is true that a super-sedeas bond has not been executed, then the cost and damages above are to be deducted from the amount presently held by the circuit clerk for distribution to the appellants. We might further add that a reading of the record in this case does not indicate any error on behalf of the trial court in granting the summary judgment.

Appeal is dismissed.

All concur.


author: COOPER, Judge.

text:
    GALIGHER TRUCKS, INC., Ford Motor Company and Ford Motor Credit Company, Appellants, v. Ervin Wade McKENZIE, Appellee.
    Court of Appeals of Kentucky.
    May 13, 1977.
    Rehearing Denied July 8, 1977.
    Harris S. Howard, Howard & Howard, Prestonsburg, Michael J. Schmitt, Wells, Porter & Schmitt, Paintsville, for appellants.
    W. B. Hazelrigg, James A. Knight, Paintsville, for appellee.
    Before COOPER, HOGGE and REYNOLDS, JJ.
   COOPER, Judge.

In June 1971, the appellee, Ervin Wade McKenzie purchased two coal trucks from the Galigher Trucks, Inc. of Pikeville, Kentucky. The price of the coal trucks was about $25,000 with finance charges. Immediately, upon using these coal trucks in hauling coal from strip mine operations, the trucks started giving the Appellee trouble. One truck, according to the record, was severely out of line while the other truck had starting problems. Upon apprising the Galigher Trucks, Inc. and the Ford Motor Company that the trucks were not running properly, the Appellee was directed to take the trucks to various garages around eastern Kentucky and West Virginia to have the trucks repaired. Apparently the truck with starter problems was repaired, but the truck which was out of line was never repaired to the satisfaction of Mr. McKenzie. In June of 1972 he parked both his trucks and ceased his payments to the Ford Motor Credit Company, who had purchased the installment sales contract for the trucks from the Galigher Trucks, Inc. The trucks were then repossessed in November of 1972, by the Ford Motor Credit Company. It is clear from the record that at no time in his communications with the Galigher Trucks, Inc., the Ford Motor Company, or the Ford Motor Credit Company, did the Appellee ever reject the trucks or revoke his acceptance of them. According to his testimony, he informed the Appellants that the trucks were going to sit idle and he was going to cease payments until the trucks were sufficiently repaired.

The pertinent expressed warranty made by the Ford Motor Company covering the two trucks in question reads as follows:

“Ford and the selling dealer jointly warrant with the respect to each 1971 model medium and heavier truck built by Ford that the selling dealer will repair or replace any of the following parts that are found to be defective in factory material or workmanship on the following basis:
Any part during the first twelve months or during the first 12,000 miles of operation, whichever occurs first (except tires and diesel engines manufactured by others than Ford, which are separately warranted by their manufacturers); without charge for parts and labor.”

The Appellants would contend that there was no proof that this express warranty was breached. It is apparent from the record that from the very outset the trucks were defective. Consequently, we hold that there was ample evidence to warrant sending the question of a breach to the jury.

However, the dispositive issue is whether or not a proper instruction for damages was given to the jury. The lower Court gave instructions which stated that if the jury believed that the warranty for the trucks had been breached by the Appellants, then the Appellee could recover his damages in a sum equal to the down payment made by him for the two trucks, for the payments made to the Ford Motor Credit Company, for any loss of profits which he may have sustained, and for other equipment which the Appellee had to furnish because of the defects in the trucks. We hold that these instructions were erroneous under this set of facts. In a situation where a buyer has not revoked acceptance or rejected goods when the goods are not as warranted, damages shall be given pursuant to KRS 355.2-714(2) which reads as follows:

“The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.”

Since the Appellee did not revoke acceptance or reject the trucks because of their nonconformity, evidence should have been offered by the Appellee as to the difference in the reasonable market value of the trucks in June of 1971, and their contract price. KRS 355.2-714(2); Cox Motor Company v. Castle, Ky., 402 S.W.2d 429 (1966).

The Appellee contends that the instructions for damages are proper because of the Appellant’s assurances that the trucks would be repaired. These assurances would be more significant if the question were whether or not the rejection of the trucks or the revocation of acceptance was within a reasonable time after the breach. In this case, we find no evidence that there was ever a revocation or a rejection; but that the Appellee merely parked the trucks, ceased payments on the trucks pursuant to the sales contract, and waited for the Appellants to repair the trucks so that they might conform as warranted. Under these circumstances, KRS 355.2-714 must be applied in allowing damages for the breach of warranty.

We reverse and remand the case to the lower Court for action consistent with this opinion.

All concur.


text:
    PREFERRED RISK MUTUAL INSURANCE COMPANY and Arvel Long, Appellants, v. Bill FAULKNER, Appellee.
    Court of Appeals of Kentucky.
    June 24, 1977.
    Benjamin J. Hays, Winchester, for appellants.
    Thomas S. Miller, Jackson, for appellee.
    Before COOPER, HOWERTON and REYNOLDS, Judges.
   COOPER, Judge.

This is an appeal from the Wolfe Circuit Court involving a subrogation claim against an uninsured motorist where the insurance company was substituted as the real party in interest by the trial court.

On December 7, 1971, the appellant, Arv-el Long, and the appellee, Bill Faulkner, were operating their motor vehicles on Kentucky Highway # 746 in Wolfe County, Kentucky. They were traveling in opposite directions and collided.

The appellant, Arvel Long, who was insured by the Preferred Risk Mutual Insurance Company filed a complaint against the appellee, Bill Faulkner, who was an uninsured motorist, seeking damages for personal injuries in the sum of $10,000.

An Agreed Order was entered on June 13, 1974, settling the lawsuit with prejudice to Arvel Long, but specifically reserving the right of subrogation in favor of Preferred Risk Mutual Insurance Company against the defendant, Bill Faulkner.

On April 12,1976, the appellee moved the trial court to substitute the appellant, Preferred Risk Mutual Insurance Company, as the real party in interest in place of the appellant, Arvel Long. The trial court sustained this motion on April 15, 1976, which was the day of the trial. On the same date the appellants tendered to the court a “Loan Receipt” executed by Arvel Long, undated and obtained after the lawsuit was tentatively settled on June 13, 1974. The Preferred Risk Mutual Insurance Company became the plaintiff and remained so throughout the trial. The jury found for the appellee.

The question of law to be determined by this appeal is:

DID THE TRIAL COURT ERR IN SUBSTITUTING PREFERRED RISK MUTUAL INSURANCE COMPANY FOR ARVEL LONG PRIOR TO THE TRIAL, WHEN THE “LOAN RECEIPT” WAS EXECUTED BY SAID ARVEL LONG SUBSEQUENT TO ENTRY OF THE AGREED ORDER SETTLING ON JUNE 13, 1974?

In the case of Ratcliff v. Smith, Ky., 298 S.W.2d 18 (1957), and other Kentucky cases, it has become the well established law that a properly executed “Loan Receipt” permits an insurance carrier to prosecute a subrogation action in the name of its insured.

An Order dismissing the case settled appears on page 19 of the Record on Appeal a part of which is as follows:

Entered June 13,1974
Jean T. Smith, Clerk
WOLFE CIRCUIT COURT
CIVIL ACTION NO. 829
AEVEL LONG PLAINTIFF
V. AGREED ORDER DISMISSING SETTLED
BILL FAULKNER and
SILAS BRASHEARS DEFENDANTS
Come counsel for the parties herein and state to the Court that this cause has been settled by the agreement of Preferred Risk Mutual Insurance Company to pay to plaintiff the sum of Six Thousand Dollars ($6,000.00) under an Uninsured Motorists Insurance provision and reserving its right of subrogation against the defendant, Bill Faulkner, and the Court being duly advised.
It is hereby considered, ordered and adjudged that this cause is settled at the cost of the defendants with prejudice to the plaintiff, Arvel Long, but specifically reserving the right of subrogation in favor of Preferred Risk Mutual Insurance Company against the defendant, Bill Faulkner.
This 11 day of June . 1974.
/s/ J. Douglas Graham
JUDGE

It will be noted that an Agreed Order dated June 11, 1974, and entered on June 13, 1974, had dismissed Arvel Long as a party to the suit. The “Loan Receipt” produced by the appellants on April 15, 1976, was undated and was obtained after the lawsuit was tentatively settled on June 13, 1974.

It does seem even more obvious that in none of the “Loan Receipt” cited cases had an Agreed Order been entered dismissing settled prior to the time the “Loan Receipt” was executed. In the Agreed Order in this case, the language is couched in terms of payment and settlement rather than in terms of a loan.

For the reasons stated the trial court was correct in substituting the Preferred Risk Mutual Insurance Company as the real party in interest.

The judgment is affirmed.

All concur.


author: PARK, Judge.

text:
    Alvis LONG, Administrator of the Estate of Ray Long, Deceased, Alvis Long, his wife, Mrs. Alvis Long, and Johnnie Long, Appellants, v. Etta SHORT, Mattie Davidson, Florence Taylor and her husband, Johnnie Taylor, Lottie Huff and her husband, Orville Huff, Marietta Pierce and her husband, Everett Pierce, Virginia Barrow and her husband, Eugene Barrow, and Harold Guthrie and his wife, Glenna Guthrie, Appellees.
    Court of Appeals of Kentucky.
    June 24, 1977.

      Joe L. Travis, Travis, Ropp & Davis, Glasgow, for appellants.
    Abe P. Carter, Tompkinsville, for appel-lees.
    Before MARTIN, Chief Judge, and GANT and PARK, Judges.
   PARK, Judge.

Under the provisions of two separate deeds from their parents, Ray Long and Alvis Long possessed life estates in two tracts of land. Following the death of Ray Long, a dispute arose with respect to the ownership of the two tracts. Alvis Long contended that he possessed a life estate in the whole property following the death of Ray. On the other hand, the heirs of Ray Long contended that their undivided one-half remainder interest in the property became possessory immediately upon Ray Long’s death. The Cumberland Circuit Court upheld the claim of the heirs of Ray Long adjudging that they owned an undivided one-half interest free of any claim of Alvis Long. The trial court further ordered a partition of the larger tract and a sale of the smaller tract for purposes of partition. Alvis Long appeals, contending that he possesses a life estate in the whole property following the death of Ray Long, and that as a result it was error for the trial court to order a partition and division of the property-

The property was conveyed to Ray Long and Alvis Long by deeds from their father and mother, I. N. Long and Ellen Long. The first deed, dated July 19, 1934, conveyed a tract of approximately 125 acres. Immediately following the description of the property and immediately preceding the habendum clause, the first deed provided:

“It is further stated that the party of the first part [I. N. Long] is to have full control of said described land as long as he lives and at his death his wife Ellen Long is to have a one-third interest in said described land as long as she lives and at her death to go to her two sons Ray Long and Alvis Long and it is further stated that Alvis Long is to have full control/management of said described land and at their death said described land is to go to their heirs.” (Emphasis added)

The second deed, dated June 20, 1934, conveyed a smaller tract of 20 acres. Following the description of the 20 acre tract and immediately before the habendum clause, the second deed provided:

“It is further agreed that the party of the first part [I. N. Long] is to have full control of said described land as long as he lives and said described land is to go to the heirs of the second party [Ray Long and Alvis Long] at their death.” (Emphasis added)

Alvis Long contends that the heirs of Ray Long were to have no possessory interest until the death of both life tenants.

When deeds, wills or other instruments create two or more life estates and there is no express provision governing the disposition of the property following the death of the first life tenant to die, the courts have adopted a number of different constructions. In some cases, cross-remainders have been implied in favor of the surviving life tenants. Alvis Long urges this construction of the two deeds. In a second line of cases, similar instruments have been construed to create estates pur autre vie, that is, an estate for the life of the survivor of the income beneficiaries. Under such a construction, Ray Long would have possessed a right to one-half of the income from the property for the remainder of the life of Alvis Long, and at his death, such interests would have passed as personal property to the personal representative of Ray Long. This construction was adopted in Anderson v. Simpson, 214 Ky. 375, 283 S.W. 941 (1926), but neither party urges this construction in this case. In a third line of cases, courts have rejected any construction that the remainder becomes possessory only at the termination of all of the life interests. The trial court, accepted the argument of the heirs of Ray Long and adopted this last construction. Por a thorough discussion of the construction problem presented, see 5 American Law of Property § 21.35 (1952); 2 Powell on Real Property § 324 (Rohan Ed. 1977); Annotation, 140 A.L.R. 841 (1941), supplemented 71 A.L.R.2d 1332 (1960).

No hard or fast rule can be adopted. The particular language used in each instrument must be considered in adopting the proper construction. The phrase “at their death” used in the two deeds is ambiguous. It can be construed to mean at “their respective deaths” or it can be construed to mean “at the death of the last survivor.” If the deeds are construed to mean “at their respective deaths,” the one-half remainder interest of Ray’s heirs would become posses-sory immediately on his death. On the other hand, if the phrase is construed to mean “at the death of the last survivor,” this court must still determine whether a cross-remainder is to be implied in favor of Alvis Long or whether Ray Long possessed an estate pur autre vie which passed to his personal representative.

We conclude that the trial court was correct in construing the language in question to mean “at their respective deaths.” Dills v. Deavors, Ky., 266 S.W.2d 788 (1953). There is nothing in the deeds which indicates that I. N. Long intended that either of his two sons receive more than one-half of the income from the property during his life. See Struss v. Fidelity & Columbia Trust Co., 182 Ky. 106, 206 S.W. 177 (1918). It is true that Alvis Long was granted full management and control of the 125 acre tract. However, according to the testimony of Alvis Long, his brother Ray was not capable of managing the farm. With the death of Ray Long, the reason for granting Alvis Long management and control of the larger tract also ceased. The provision for the management and control of the 125 acre tract does not indicate an intention to confer any special benefit or interest on Alvis Long. Had Alvis Long been the first to die, there is nothing in the deeds to indicate that the remainder interest of his heirs should not become possessory until the death of Ray.

In support of his contention that a cross-remainder should be implied, Alvis Long relies upon the decision in McCallister v. Folden’s Assignee, 110 Ky. 732, 62 S.W. 538 (1901). However, that decision involved a special rule of construction applicable only to conveyances of life estates to a husband and wife. Based upon the questionable theory that a husband and wife are but one grantee, the survivor was held to hold a life estate in the whole property following the death of the other spouse. This rule of construction would have no application to a deed to two brothers.

For the foregoing reasons, the judgment of the circuit court is affirmed.

All concur.


text:
    Marjorie B. DAUGHERTY, Administratrix of the Estate of John C. Burton, Deceased, and Marjorie B. Daugherty, Individually, Charles Hugh Burton II, and Marsha Burton, his wife, Mary Elizabeth Hays and William M. Hays, her husband, and Anna Ruth Holmes, Appellants, v. Carrie B. BREEDING, Appellee.
    Court of Appeals of Kentucky.
    June 24, 1977.

      Daniel A. Canning, Somerset, for appellants.
    Bruce Phillips, Randall Bertram, Monticello, for appellee.
    Before MARTIN, Chief Judge, and GANT and PARK, Judges.
   PARK, Judge.

This case involves the ownership of a stagecoach, which is claimed to be the last stagecoach operated east of the Mississippi River. The plaintiff-appellee, Carrie B. Breeding, asserts that she is the owner of an undivided five-twelfths interest in the stagecoach. The defendants-appellants are the ■ ersonal representatives and heirs of John C. Burton, the brother of Carrie B. Breeding. The appellants contend that the stagecoach was owned solely by John C. Burton at the time of his death. In a carefully considered opinion containing detailed findings of fact and conclusions of law, the trial court adjudged that Carrie B. Breeding owned an undivided five-twelfths interest in the stagecoach, that the heirs of John C. Burton owned an undivided five-twelfths interest, and that the remaining two-twelfths interest was owned by the heirs of John Milton Burton, a first cousin of John C. Burton and Carrie Breeding.

C. H. Burton, the father of Carrie B. Breeding, and John C. Burton, operated a stagecoach line between Monticello and Burnside, Kentucky, for many years. C. H. Burton died intestate in December 1923, survived by his widow, Anna, and his two children Carrie Breeding and John C. Burton. The parties stipulated that C. H. Burton was the owner of the stagecoach at the time of his death. The widow, Anna Burton, qualified as administratrix of the estate of C. H. Burton. However, no mention of the stagecoach was made in the final settlement filed by Anna as administratrix of the estate of C. H. Burton.

Following the death of C. H. Burton, the stagecoach was stored in a barn immediately behind the family residence in Monticello which was occupied by Anna until her death in 1954. Sometime during the early 1930’s, the stagecoach was exhibited by John C. Burton at a bridge dedication in Burnside. When the stagecoach was returned to Monticello, it was placed in a building which John C. Burton operated a garage. This garage building was situated adjacent to the family residence occupied by Anna Burton. The stagecoach remained in the garage building until the death of John C. Burton in May 1973. With respect to John C. Burton’s possession of the stagecoach, the trial court made the following findings:

“It appears from the evidence that the Burton family took pride in the ownership of this stage coach and it was kept in this garage building by the said John C. Burton in a place where the public generally could see and admire it when visiting Mr. Burton’s garage. It further appears that he took care of this coach and maintained it in a good condition over all these years.
******
“It appears from the evidence that the decedent, John C. Burton had kept this coach which was a family heirloom stored in his garage for the benefit of [the family], for the pleasure he got out of exhibiting and displaying same in his place of business and for no other reason. There is no evidence that he did anything other than store this coach, nor is there any evidence that he charged for this or requested to be paid.”

These findings are not clearly erroneous. CR 52.01.

Anna Burton died testate in 1954. Under her will, her estate was devised and bequeathed equally to her two children, Carrie Breeding and John C. Burton, and a nephew, John Milton Burton. Carrie Breeding and John C. Burton qualified as personal representatives of the estate of Anna Burton. The final settlement filed by them did not indicate that the stagecoach, or any interest therein, was administered as a part of the estate of Anna Burton. The estates of C. H. Burton and Anna Burton contained adequate assets to pay all debts and claims against the estates. There was no necessity to sell the stagecoach or any interest therein for the purpose of paying debts or costs of administration.

Following the death of John C. Burton in 1973, the stagecoach was moved from the garage building to the armory in Monticello where it was stored for over a year. After a dispute arose with respect to the ownership of the stagecoach, it was moved by the defendant-appellant, Marjorie B. Daugherty, to her home in Falmouth where it is presently stored. Marjorie B. Daugherty is a daughter of John C. Burton and adminis-tratrix of his estate.

The trial court concluded that title to the stagecoach was held by Anna Burton, John C. Burton and Carrie Breeding as tenants in common following the settlement of the estate of C. H. Burton. Because we believe it to be a correct statement of the law, this court adopts the following portion of the opinion of the trial court:

“This stage coach being an item of personal property under the laws of the Commonwealth of Kentucky, passed first to the Administrator of the estate of John C. Burton, for the purpose of administration only. The title to this personal property in the administrator of C. H. Burton’s estate was obviously not absolute, but fiducial for purpose of administration only. At this point, this property belonged to Anna Burton, John C. Burton, and Carrie Breeding, but was held by the Administrator of the Estate of C. H. Burton until said estate was finally settled and could have been used for the payment of debts and other expenses of administration. Gibson, Admr. vs. Gibson, 241 Ky. 74, 43 S.W.2d 343; Broom’s Adm’r., vs. National Auto Sales [Ky.], 246 S.W.2d 1008; Scheinman vs. Marx [Ky.], 437 S.W.2d 504.
“This Court concludes that under the laws of this Commonwealth, title to personal property [vests] in the Administrator or Executor of an estate, but only until the estate is finally settled. In event any personal property is left undis-posed by the Administrator or Executor, upon the final settlement of the estate, [such personalty] becomes the property of the heirs or devisees of the estate. Any personal property that may be left, after settlement of an estate, will be held jointly by the heirs or devisees for as long as they may desire. In this ease, it appears from all the records and evidence that it was not necessary to sell this stage coach to settle C. H. Burton’s estate. Therefore, this item of personal property was preserved in specie which is not only permitted, but encouraged by the laws of this Commonwealth. This item of personal property was therefore jointly owned by these three parties and there could be no other conclusion but the fact that they elected to keep this property, which they did and were the joint owners of same.”

The trial court reached a similar conclusion with respect to the title to the stagecoach following the death of Anna Burton. Because it contains a correct statement of the law, this court also adopts the following additional portion of the opinion by the trial judge:

“At the death of Anna Burton in 1954 she at that time owned a one-half undivided interest in this coach, Carrie B. Breeding owned a one-fourth in the same, and John C. Burton owned the other one-fourth undivided interest. * * * At her death, Anna Burton left a Will in which she devised all of her property, which would have included her interest in the subject property, equally to her son, John C. Burton, her .daughter, Carrie Breeding, and a nephew John Milton Burden. This specific item of personal property was not mentioned in Anna Burton’s Will nor was it mentioned in any inventory or settlement of her estate. It further appears from the records in this matter that it was not necessary to sell this coach in order to settle her estate. Therefore, the only conclusion that could be drawn from the evidence in this case is that these parties elected to keep this item of personal property in specie. Therefore, after the settlement of the estate of Anna Burton, this coach was jointly owned as follows:
“1. John C. Burton, a ¾2⅛ interest that he had received from the estate of his father, C. H. Burton, and a ¾2⅛ interest that he had received from the Will of his mother, Anna Burton.
“2. Carrie Breeding — a ¾2⅛ interest she received from her father’s estate and a ¾2⅛ interest that she received from the Will of her mother, Anna Burton.
“3. John Milton Burton — a ¾2⅛ interest that he received from the Will of Anna Burton.”

As all of the debts and claims against the estates of C. H. Burton and Anna Burton have been paid, title to the stagecoach vested in the heirs and legatees even though that asset had not been administered as a part of either estate. There no necessity for the appointment of a successor administrator by the county court. Cf., Anderson v. Smith, 60 Ky. (3 Metc.) 491 (1861). The circuit court had jurisdiction of this dispute with respect to the ownership of personal property. Furthermore Carrie Breeding was not estopped or barred from asserting her interest in the stagecoach because of the previous settlements in the estates of her father and mother. In neither settlement was the stagecoach treated as an asset of the estate distributed to John C. Burton. There is nothing inconsistent between her claim to an interest in the stagecoach and her acceptance of a distributive share in the estates of her father and mother. Carrie Breeding was not compelled to make an election between her distributive share in the settlement of the estates of her father and mother and her interest in the stagecoach.

The appellants’ main assertion of error is based upon John C. Burton’s undisturbed possession of the stagecoach for approximately forty years. The appellants argue that Carrie Breeding’s claim is barred by the statute of limitations and adverse possession. The trial court rejected this argument, holding that the possession of the stagecoach by one cotenant, John C. Burton, was not adverse to the interest of another cotenant, his sister Carrie Breeding. This court adopts as a correct statement of law the following portion of the trial judge’s opinion:

“The Defendant has made a plea of limitations and adverse possession against the other co-owners. However, this Court is of the opinion that the necessary elements of adverse possession against a co-owner [have] not been proven. It appears from this entire record that the heirs of C. H. Burton have always considered this stage coach a Burton Heirloom to be owned by the heirs of C. H. Burton. This Court concludes from the evidence in this case that John C. Burton’s possession of this property was amicable and not hostile with his co-owners. It is a well established rule of law that one joint tenant cannot acquire title by adverse possession against his co-tenants by mere possession, no matter how long it continues, for he has a right to occupy the premises and his occupancy thereof is not to be presumed hostile, but is presumed to be amicable. In fact, the statute of limitations will not begin to run in favor of a co-tenant in possession until notice of his adverse holding is brought home to his co-owners. See Miller vs. Powers, 184 Ky. 417, 212 S.W. 453; Hannah et al. vs. Littrell et al., [304 Ky. 304], 200 S.W.2d 729; May vs. Chespeake [Chesapeake] & Ohio Ry. Co., 184 Ky. 493, 212 S.W. 131; This principle has been upheld by our Court of Appeals by a long line of decisions.”

The cases cited in the opinion of the trial judge involve possession by a cotenant of real property. -The same principle applies to possession by one cotenant of personal property. It is well settled that one coten-ant of personal property cannot maintain an action for replevin of jointly owned personalty against another cotenant who is in possession. The cotenant’s remedy is a judicial sale of the personalty and a division of the proceeds. Baum v. Baum, 200 Ky. 424, 255 S.W. 71 (1923).

This is not a case in which heirs have informally divided family heirlooms among themselves without formal administration or distribution by the personal representative. If it were shown that each heir possessed items of unadministered personalty for a significant period of time, there would be a strong presumption that the heirs had made a division of the assets and that each heir held items in his or her own right rather than as cotenants. Cf. Adie v. Cornwall, 19 Ky. (3 T.B.Mon.) 276 at 283 (1826). There is no evidence that Carrie Breeding possessed any comparable unadministered personal property from either estate which would support a finding that John C. Burton received the stagecoach as a result of an informal division.

This action is controlled by the statute of limitations relating to actions for the recovery of specific personal property. KRS 413.120(6). As John C. Burton’s possession of the stagecoach was not inconsistent with his sister’s rights as cotenant of the stagecoach, the statute of limitations did not begin to run against Carrie Breeding until the stagecoach was removed to Falmouth by John C. Burton’s administratrix following his death in May 1973. As this action was commenced in August 1975, the action was clearly within the five year period of limitations provided by KRS 413.120(6).

Finding no error in the judgment of the circuit court, that judgment is affirmed.

All concur.


author: REINHARD, Judge.

text:
    Carolyn J. ROBERTS, Petitioner-Appellant, v. William L. ROBERTS, Defendant-Respondent.
    No. 37965.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 24, 1977.
    Donald R. Rhodes, Bloomfield, for petitioner-appellant.
    Alice L. C. Kramer, Hillsboro, for defendant-respondent.
   REINHARD, Judge.

Petitioner Carolyn J. Roberts appeals from the decree dissolving her marriage to respondent William L. Roberts. There is no challenge by her as to that part of the order dissolving the marriage, providing child custody, or dividing the marital property. She contends the court erred in the amount it awarded her for child support; in awarding respondent the income tax deduction for the three children; and in failing to allow her attorney’s fees.

The trial court set off the following marital property to petitioner: 1974 Maverick (subject to lien), all the household furnishings, and one-half the proceeds of the sale of the house. The husband was awarded by the court: one-half the proceeds of the sale of the house, a 1970 Ford pickup, camping equipment, a boat, motor and trailer. The court gave primary custody of the minor children to petitioner. Respondent was given temporary custody twenty-six weekends per year, every other holiday, and two weeks during the summer vacation period. He was ordered to pay child support in the amount of $20.00 per week per child.

The trial court’s judgment must be sustained by this court “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo.banc 1976). We affirm.

The parties were married in 1959. Three children were born of the marriage, ages 14, 10 and 4 at the date of trial. The wife worked outside the home during most of the marriage.

In 1973 the petitioner became a real estate sales person and in early 1975 received her Real Estate Broker’s license. She was employed by Ozark Realty and for 1975 received gross real estate commissions in the amount of $8,402.17. Out of this she was required to pay her own Social Security, State and Federal Income Taxes. The husband is a production artist for CoMun Company in Fenton, and his take-home pay was $11,256.00 a year.

Section 452.340, RSMo., provides:

“ * * * the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support, * * * after considering all relevant factors including:
(1) The father’s primary responsibility for support of his child;
(2) The financial resources of the child;
(3) The financial resources of the custodial parent;
(4) The standard of living the child would have enjoyed had the marriage not been dissolved; ■
(5) The physicál and emotional condition of the child, and his educational needs; and
(6) The financial resources and needs of the noncustodial parent.”

The statute provides that among the factors to be considered is the father’s primary responsibility to support- the children, but the mother may also be called upon to provide support. The award of child support is a matter properly within the sound discretion of the. trial court. Larison v. Larison, 524 S.W.2d 159, 161 (Mo.App.1975).

Respondent’s total monthly expenses were approximately $550.00 not including child support. Petitioner testified to total monthly expenses for her and the children in the amount of between $814.00 and $833.00. She stated that the. children’s share of the expenses was “probably about half”; however, included in her total expenses were her own medical insurance premiums, auto insurance premium, transportation expenses, car payments and medical expenses. (Husband carries medical insurance on children.)

The court’s award of $20.00 per week -per child instead of $25.00 as requested by petitioner was not an abuse of discretion.

Petitioner requested that the trial court allow her to take the income tax exemption for the minor children; however, the court made this award to the respondent. She claims on appeal that the court was without jurisdiction to adjudicate which of the two parents is entitled to the allowable income tax exemption and that on making the order it abused its discretion. 26 U.S.C.A. § 152(e)(2), which was in effect at the time of the trial of this case, provides as follows:

“(2) Special rule.—The child of parents described in paragraph (1) shall be treated as having received over half of his support during the calendar year from the parent not having custody if—
“(A)(i) the decree of divorce or of separate maintenance, or a written agreement between the parents applicable to the taxable year beginning in such calendar year, provides that the parent not having custody shall be entitled to any deduction allowable under section 151 for such child, and
“(ii) such parent not having custody provides at least $600 for the support of such child during the calendar year, or * *."

This statute contemplates and gives recognition to a state court’s order decreeing that the non-custodial parent shall be entitled to the allowable deduction for a child if the other requirements are made. This deduction is simply another factor in the financial relationship between the parties. The New Dissolution of Marriage Act contemplates our courts having jurisdiction over such matters in order to promote an orderly disposition of the financial relationship and help prevent further disputes between the parties.

This issue is one of first impression in Missouri; however, similar court orders have been approved in other states. Cromwell v. Cromwell, 261 So.2d 690 (La.App.1972); Rabinovich v. Rabinovich, 276 So.2d 206 (Fla.App.1973). Circuit courts of Missouri routinely approve marriage settlements where the parents have agreed as to which one should take the income tax deduction. The court had jurisdiction to make the order as to the dependency exemption and did not abuse its discretion.

Finally, appellant complains of the court’s failure to award attorney’s fees. Section 452.355, RSMo, provides: “The court from time to time after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under sections 452.300 to 452.415 and for attorney’s fees, * * (Emphasis added.)

The court ordered that both parties shall bear the cost of their own attorney’s fees. The court further ordered that the respondent pay the court costs in the action. The trial court is given broad discretion in the matter of attorney’s fees. Larison v. Larison, supra; Carrell v. Carrell, 503 S.W.2d 48 (Mo.App.1973). Based upon the evidence, we find no abuse of the court’s discretion.

The decree of the trial court is affirmed.

McMILLIAN, P. J., and STEWART, J., concur.

      . 26 U.S.C.A. § 152(e)(2) was amended by the 1976 Tax Reform Act § 2139(a). By this amendment, the non-custodial parent must provide $1,200.00 per child.


author: SHANGLER, Presiding Judge.

text:
    In re Kelly BLANKENSHIP and Kerry Blankenship, minor children. Dianna R. CARROLL, Petitioner-Appellant, v. Curtis BLANKENSHIP, Respondent.
    No. KCD28459.
    Missouri Court of Appeals, Kansas City District.
    May 31, 1977.
    Motion for Rehearing and/or Transfer Denied June 27, 1977.

      G. Raymond Speckman, Plattsburg, for petitioner-appellant.
    Robert F. Sevier, Sevier & Burnett, Liberty, for respondent.
    Before SHANGLER, P. J., and WEL-BORN and HIGGINS, Special Judges.
   SHANGLER, Presiding Judge.

This appeal comes from the denial by the court to order a civil contempt against one parent on the motion of the other for disobedience of a decree of custody.

On dissolution the custody of the two boys of the marriage was given to the father subject to the right of the mother to keep them the first and third weekends of every month. The boys soon wearied of this exchange and refused to be delivered to the custody of the mother. The mother saw this as defiance of the court order by the father and moved the court to punish him for contempt.

The father, on his part, complained that on one date the mother had come for and then delivered the children at irregular hours in violation of the custody order and moved the court to adjudge her in contempt.

The court heard evidence on both motions and denied relief altogether. The wife only appeals.

A civil contempt is the means to compel on behalf of one party to the litigation compliance by the other party with the judgment of the court. The proceeding provides a remedy for the injured suitor to coerce compliance with an order adjudged in his favor. Mechanic v. Gruensfelder, 461 S.W.2d 298, 304[1] (Mo.App.1970); 17 Am. Jur.2d Contempt, § 4. Where — as in this case — the contempt proceeding is brought by a party to enforce a civil remedy, it assumes the nature of an adversary proceeding and the decision of the court, for or against the contemnor, becomes a final judgment which affects a substantial right and may be appealed. State ex rel. Thatcher v. Horner, 16 Mo.App. 191, 195 (1884); Popsicle Corporation v. Pearlstein, 168 S.W.2d 105, 107[1] (Mo.App.1943). These principles of civil contempt apply to domestic relations disputes. Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976).

The inherent power of a court of general jurisdiction to punish for contempt of its proceedings and disobedience of its lawful orders [Zeitinger v. Mitchell, 244 S.W.2d 91 (Mo.1951)] has been codified in subsections three and four of § 476.110, RSMo 1969:

Every court of record shall have power to punish as for criminal contempt persons guilty of

(3) Willful disobedience of any process or order lawfully issued or made by it;
(4) Resistance willfully offered by any person to the lawful order or process of the court . , ..

See, Bender v. Young 252 S.W. 691, 693[3] (Mo.1923). The disobedience or resistance which results in a punishable contempt must be willful — that is, intentional. Bender v. Young, supra; McMullin v. Sulgrove, 459 S.W.2d 383, 388[3] (Mo. banc 1970).

This appeal contends that the evidence of a contempt by the husband was shown as a matter of law. The court found expressly that there had been no intentional disobedience of his orders and denied both motions for contempt. The contumacy ascribed to the husband by the motion of the wife simply was not proved. The refusal of the children on that one occasion to accompany the mother appears to have been from their own pique and not the doing of the father.

A court has the duty to protect the integrity of its orders, but whether a noncompliance shall be punished as a contempt lies within the discretion of the court. That determination becomes final in the absence of a plain abuse of discretion. Clark v. Francis B. Freeman Const. Co., Inc., 535 S.W.2d 531, 533[1, 2] (Mo.App.1976).

The judgment is affirmed.

All concur.