author: WARD, Justice.

text:
    ARMSTRONG RUBBER COMPANY, Appellant, v. Conrada URQUIDEZ et al., Appellees.
    No. 6616.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 30, 1977.
    Rehearing Denied Jan. 25, 1978.

      Rassman, Gunter & Boldrick, John E. Gunter, Midland, for appellant.
    Kenneth A. Perez, Dallas, for intervenor.
    Warren Burnett, Associated, W. Ruff Ah-ders, Richard J. Clarkson, Odessa, for appel-lees.
   OPINION

WARD, Justice.

This is a products liability action where a tire alleged to be defective in design and manufacture sustained a blowout and caused a truck to overturn and kill the driver. Trial was to a jury which determined that the tire was defective in its design or manufacture and that the defect was a producing cause of the accident. Based upon all issues submitted, judgment was entered awarding the Plaintiff/widow $75,000.00, the Plaintiff/son $12,000.00, and with the awards being subject to the intervening workmen’s compensation carrier’s subrogation rights. The question of interest on this appeal concerns the application of the doctrine of strict liability where there had been no sale of the product by the manufacturer but a bailment of the tire for mutual benefit. We affirm.

Automotive Proving Grounds, Inc., owns and operates a tire testing facility near Pecos. It contains a test track consisting of a 9-mile oval with asphalt surface, and also a serpentine route through the center area of the track. On January 1,1970, a 10-year contract was entered into between Automotive Proving Grounds, Inc., and the Defendant, Armstrong Rubber Company, whereby the testing facilities and grounds were made available to the Defendant on a part-time basis. The material parts of the agreement were as follows:

“1.3 Automotive will maintain the track and Automotive’s buildings and improvements erected on or contiguous thereto * *
“1.4 Automotive will provide competent drivers and other employees as are necessary for Armstrong’s test purposes.”
“4.1 Armstrong will own or lease and maintain all trucks and vehicles required for Armstrong testing.”
“4.4 Armstrong agrees to abide by all general rules and regulations promulgated by Automotive relating to track scheduling, track usage, safety, vehicle safety, insurance protection, and any and all other rules and regulations promulgated for the proper administration or maintenance of the track.”
“5.1 Automotive will promulgate rules and * * * regulations relating to the number of vehicles and the speed and safety standards for such vehicles as well as all driver qualifications.”
“5.3 Automotive shall hire, pay, account for and supply all drivers and mechanics and other personnel necessary for the testing to be conducted on the track. Automotive shall be the final authority on the retention of any such employee.”

Armstrong owned 10 trucks and 40 cars that were located at the test track facility. Automotive Proving Grounds, Inc., had some 150 employees, some of whom performed all of the maintenance on the Armstrong vehicles, and some of whom did all of the driving at the test track.

The deceased, Clemente Urquidez, was employed by Automotive Proving Grounds, Inc., as a test driver. On April 18, 1972, he was driving an Armstrong truck/tractor and was pulling a Fruehauf trailer. He was performing a standard test on the oval track and was driving 60 miles an hour when the left front tire on the tractor blew out. After the blowout, Urquidez slowed down the truck and had arched into the left inside ground area of the oval track when he hit soft sand, overturned, and was killed. The tire that blew out was an Allstate Express Cargo Nylon 12-ply non-interest spare and was manufactured by the Defendant. The two front tires on the truck he was driving - were both non-interest spares. A “non-interest spare” is a term used for tires that are mounted on the test truck along with the tires being tested, but which are not themselves being tested. The tire in question had never been sold by Armstrong; it had been utilized only at the tire test track and on Armstrong’s own trucks. The tire itself had never been tested and was new when received at the Pecos facility. At the time of the accident, about 50% of the tread on the tire had been worn down. Armstrong representatives testified that the tire was of the same quality as tires manufactured by Armstrong and sold to trucking fleets across the nation.

The Plaintiff’s expert witness testified that the tire was defective, both in its design and manufacture, while the Armstrong experts all testified that such was not the case but that the blowout resulted from a bruise or impact injury to the tire which could have happened at anytime during its use, that is, that it was a road hazard injury and not a manufacturing defect that caused the blowout.

The case was submitted to the jury on four special issues. The jury, in the first, determined that the tire was defective in its design or manufacture; in the second, that the defective design or manufacture was a producing cause of the accident; in the third, that $75,000.00 would reasonably compensate Conrada Urquidez, the widow for her pecuniary loss resulting from the death of her husband; and, in the fourth, that $12,000.00 would reasonably compensate Clemente Urquidez, Jr., the son, for the pecuniary loss resulting from the death of his father. No defensive issue was requested or submitted to the jury.

By a series of points, Armstrong first raises the fundamental issue as to whether or not the doctrine of strict liability should apply to this product which has never been sold, and which caused harm to a person who was not a consumer in the usual sense. The subject is ably briefed in the Houston Law Review article on “The Law of Strict Tort Liability in Texas,” Vol. 14 (1976-77), beginning at page 93, where prospective defendants are discussed, and at page 126, where prospective plaintiffs are discussed. There, it is pointed out that the language of Section 402A, 2 Restatement of Torts 2d, imposes liability on sellers of defective products that are unreasonably dangerous and which cause damage to a user or to a consumer, and that the sellers must be engaged in the regular business of selling products. However, as further pointed out, the meaning of “sellers” has undergone a substantial amount of metamorphosis, “sellers” having been extended in some cases to include sellers of used products, bailors, lessors, and homebuilders. (Page 125).

Thus, in Rourke v. Garza, 530 S.W.2d 794 (Tex.1975), the sales requirement was easily brushed aside where only a lease of equipment was involved, the Court seeing no basis for distinction between a sale and lease of the product so long as one is engaged in the business of introducing products into the channels of commerce.

No sale occurred in Shoppers World v. Villarreal, 518 S.W.2d 913 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.). There, the potential customer recovered when she placed the unreasonably dangerous product in her shopping cart and was injured before checking out of the store. Again, the doctrine of strict liability was extended even to the mere “lookyloo” in Davis v. Gibson Products Company, 505 S.W.2d 682 (Tex.Civ.App.-San Antonio 1973, writ ref’d n. r. e.). There, the Court stated that “strict liability rests on foreseeability, and not on esoteric concepts relating to transfer or delivery of possession.” That foreseeability argument has sometimes been advanced to extend the protection of the doctrine to the bystander who was neither user nor consumer. However, it is to be noted that in Texas the principal basis for giving the bystander the protection of strict liability seems to be that of minimizing risk of personal injury and/or property damage. Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969).

Here, the manufacturer under the bailment furnished the tire on the front wheel of the truck which was to be used by the driver while driving at high speeds testing the tires on the rear of the truck. The tire was one regularly sold by the manufacturer in regular channels of commerce. Either because the manufacturer could reasonably foresee injury to this driver, or because of the policy consideration of loss spreading, or because of the desire to minimize risk of personal injury, the doctrine should be extended to this test driver for any alleged manufacturing or design defect occurring to this non-test tire. The deceased was not there to test the non-test tire. The Defendant’s first six points of error are overruled.

By its next point, the Defendant questions the factual sufficiency of the evidence supporting the jury finding that the defective tire was a producing cause of the accident. The Defendant now takes the position that the soft sand encountered was the sole cause of the accident where it neither requested nor received an instruction on that question in the charge to the jury. Regardless of that, we have considered all of the evidence and that complaint is overruled.

By its last point, the Defendant complains of the jury award made to the son of the deceased. If the point be one complaining of no evidence to sustain the finding, we have reviewed the evidence and the inferences arising therefrom which support the jury finding and overrule the point. If the point be one suggesting a remittitur, then we cannot consider it as the only reference to the issue contained in the motion for new trial in the trial Court is one asserting that there was no evidence to support the finding and that the finding was against the great weight and preponderance of the evidence as to be manifestly unjust. Such language in a motion for new trial does not invoke remittitur power of the Court of Civil Appeals. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943); Bill Hendrix Auto Parts v. Blackburn, 433 S.W.2d 237 (Tex.Civ.App.-Houston [14th Dist.] 1968, no writ). The point is overruled.

The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    S. B. WINGFIELD et al., Appellants, v. Frank G. BRYANT and Anne Newman Gibbs, as Independent Executrix of the Estate of Thomas B. Gibbs, Deceased, Appellee.
    No. 12642.
    Court of Civil Appeals of Texas, Austin.
    Jan. 4, 1978.
    Rehearing Denied Feb. 1, 1978.
    J. Hubert Lee, David B. Wagner, Austin, for appellants.
    James O. Guleke, II, Daugherty, Kuper-man, Golden, Carlisle & Morehead, Austin, for appellees.
   PHILLIPS, Chief Justice.

Appellees, Frank G. Bryant and Thomas B. Gibbs, brought this suit against appellants, S. B. Wingfield, an adjoining landowner, and Solon D. Glosson, to recover damages for the loss of lateral support to their land. Appellees also sued appellant Wingfield to recover damages for trespass upon their property.

Based on the jury’s answers to special issues, the trial court entered judgment for appellees against appellants, jointly and severally, for $15,000.00, for the loss of lateral support. The court also entered judgment against appellant Wingfield for trespass in the amount of $12,360.00.

We reverse this judgment and remand the cause for entry of judgment nunc pro tunc.

Appellees Bryant and Gibbs were the owners of two adjacent tracts of unimproved land, approximately 42.6 acres in size, which Bryant had originally acquired in October, 1972. Bryant then sold an undivided one-half interest in this land to Gibbs in February, 1974. The land adjoining ap-pellees’ land to the southeast was a 23-acre tract of land owned by Wingfield which he acquired in August, 1961. Wingfield subsequently acquired a 22.3-acre tract of land in December, 1972, adjacent to his first tract of land and on the other side of land owned by appellees.

Appellant Glosson’s employees apparently started excavating appellant Wingfield’s original 23-acre tract of land in June or July, 1972, under an oral agreement between Glosson and Wingfield. This agreement allowed Glosson to purchase sandy loam soil from Wingfield, and the record discloses that by June or July, 1972, there had already been considerable excavation done on the tract of land acquired by Wing-field in December, 1972.

Sometime in 1974 and the early part of 1975, Bryant and Gibbs began to develop their land as an industrial subdivision. However, erosion and subsidence to appel-lees’ property in the latter part of 1974 resulted in a portion of the land falling and caving in. This condition allegedly grew worse through December, 1974.

On June 16, 1975, appellees brought this suit against appellants for loss of lateral support and negligent excavation. Appel-lees subsequently amended their original petition to include a cause of action against Wingfield for allegedly trespassing upon their property to dump debris and rubbish. Appellants denied the allegations and Wingfield filed a counterclaim against ap-pellees for injunctive relief against the planned development of appellees’ land and for “anticipatory” damages for any flooding of his property caused by appellees’ proposed development of their property. During the course of the trial, however, Wing-field took a nonsuit on his action for damages.

The case was tried to a jury. In response to special issues, the jury found that appel-lees’ property had been deprived of its lateral support by the excavation done on the Wingfield land. The jury also found that the excavation done by Glosson’s employees was done in a negligent manner and that such negligence was the proximate cause of the damage done to appellees’ land. Damages of $15,000.00 were assessed for the loss of lateral support. In addition, the jury found that Wingfield’s agent or employee trespassed upon appellees’ property causing it to be damaged in the amount of $12,-360.00.

In accordance with the jury’s verdict, the trial court rendered judgment for appellees on October 22,1976. Appellants did not file a motion for new trial. Instead, on November 4, 1976, appellants filed motions to have the judgment withdrawn and to disregard certain issues and enter judgment notwithstanding the verdict. The trial court denied appellants’ motions on November 22, 1976. Thereafter, appellants on July 15, 1977, filed a motion for correction of judgment and entry of judgment nunc pro tunc. This motion was also denied by the trial court.

Appellants attack the judgment of the court below by various points of error. We will address only one point, however, because in our view it disposes of this appeal.

Under their sixth point, appellants contend in effect that the trial court erred in overruling their motion for judgment nunc pro tunc, since the judgment contained a typographical error in the recitation of the jury’s finding to a special issue. The judgment erroneously recited that the jury found “. . .an area encompassing approximately 1.84 acres at a depth of 75'.” The jury’s finding was “at a depth of 25'.”

As set forth above, appellants filed a motion for correction of judgment and entry of judgment nunc pro tunc requesting that the court withdraw its judgment and enter a corrected version. This motion was denied by the trial court and appellants claim that the court erred in denying their request. We agree with this contention. The typographical error, which caused the misrecital of the jury’s finding to a special issue in the judgment, was due to a clerical error in the recordation of the judgment entered. Hence, the misrecital of the jury’s finding was subject to correction by judgment nunc pro tunc and, therefore, it was error for the trial court to deny appellants’ motion. Dikeman v. Snell, 490 S.W.2d 183 (Tex.1973); Love v. State Bank and Trust Co. of San Antonio, 126 Tex. 591, 90 S.W.2d 819 (1936); Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079 (1926); Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912); Hays v. Hughes, 106 S.W.2d 724 (Tex.Civ.App.Austin 1937, writ ref’d).

The judgment of the trial court is reversed and the cause remanded for entry of judgment nunc pro tunc.

      . Thomas B. Gibbs died on February 4, 1976, during the course of this lawsuit. Anne Newman Gibbs was named to replace Thomas B. Gibbs as co-plaintiff.


author: ROBINSON, Chief Justice. REYNOLDS, Justice, ROBINSON, Chief Justice.

text:
    Robert E. BARFIELD, Appellant, v. J. Darrell BROGDON, Appellee.
    No. 8827.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 9, 1978.
    Addendum Jan. 16, 1978.
    Rehearing Denied Jan. 30, 1978.

      Robert E. Barfield, R. C. Hamilton, Amarillo, for appellant.
    Gibson, Ochsner, Adkins, Harlan & Han-kins, Tom Lockhart, Amarillo, for appellee.
   ROBINSON, Chief Justice.

The trial court entered judgment for defendant on a jury verdict on his cross-claim for actual and exemplary damages for wrongful sequestration. Affirmed subject to a remittitur.

Plaintiff, Robert E. Barfield, an attorney, took his lawn mower to Profitt’s Lawn Mower Service owned by defendant, J. Darrell Brogdon, for a tune-up. Barfield testified that the price of the tune-up was agreed to be $14.00. Brogdon testified that (1) the agreed price was $14.50 plus the cost of parts; (2) he wrote “14.50 plus parts” on the repair order in the presence of Mr. Barfield; and (3) a large poster inside the shop showed that the standard tune-up charge was $14.50 plus parts. Barfield returned to pick up his lawn mower after the tune-up had been completed. Barfield refused to pay the $24.32 charges ($14.50 plus $9.82 for parts), and Brogdon refused to relinquish possession of the lawn mower. The following day Barfield filed suit by a sworn petition, alleging that he was the owner and entitled to possession of the lawn mower, seeking return of the lawn mower and $500.00 attorney’s fees. Bar-field later amended his petition to allege that Brogdon withheld the lawn mower for the purpose of defrauding Barfield and extorting money from him and asked for an additional $3,000.00 as exemplary damages. No affidavit for sequestration meeting the statutory requirements for issuance of sequestration as set out in Rule 696, Tex.R. Civ.P. and Art. 6840, Tex.Rev.Civ.Stat. was filed.

Rule 696 provides:

Rule 696. Applicant’s Affidavit

No sequestration shall issue in any cause until the party applying therefor shall file an affidavit in writing stating:
(a) That he is the owner of the property sued for, or some interest therein specifying such interest, and is entitled to the possession thereof; or,
(b) If the suit be to foreclose a mortgage or enforce a lien upon the property, the fact of the existence of such mortgage or lien, and that the same is just and unsatisfied, and the amount of the same still unsatisfied, and the date when due.
(c) The property to be sequestered shall be described with such certainty that it may be identified and distinguished from property of a like kind, giving the value of each article of the property and the county in which the same is situated.
(d) It shall set forth one or more of the causes named in Art. 6840 of the Revised Civil Statutes of Texas, 1925, entitling him to the writ. The writ shall not be quashed because two or more grounds are stated conjunctively or disjunctively.

The relevant part of Art. 6840 at that time provided:

Judges and clerks of the district and county courts, and justices of the peace shall, at the commencement or during the progress of any civil suit, before final judgment, have power to issue writs of sequestration, returnable to their respective courts, in the following cases:
* * * * * *
2. When a person sues for the title or possession of any personal property of any description, and makes oath that he fears the defendant or person in possession thereof will injure, ill-treat, waste or destroy such property, or remove the same out of the limits of the county during the pendency of the suit.

Despite Barfield’s failure to comply with the statute, a writ of sequestration was issued and served. Barfield obtained possession of the lawn mower by filing a re-plevy bond. He has since worn out and discarded the mower. Brogdon answered and cross-claimed for actual and exemplary damages alleging that Barfield acted “willfully, intentionally, unlawfully and maliciously” in causing the writ of sequestration to be issued when he knew or should have known that he was not entitled to it.

Trial was held and the jury answered the corresponding numbered special issues as follows:

(1) Brogdon did not agree to repair the lawn mower for $14;

(2) The reasonable value of parts and labor to repair the lawn mower was $24.32;

(3) $74.32 would compensate Brogdon for his damages as a result of the wrongful issuance and execution of the writ of sequestration;

(4) Barfield knew or should have known that he had no right to possession of the lawn mower;

(5) Barfield knew or should have known that he violated the statutory sequestration procedures in causing the writ to be issued and executed;

(6) Barfield knew or should have known of the uneonstitutionality of the sequestration statute;

An exemplary damage issue was submitted conditioned on an affirmative answer to Issue 4, 5, or 6. The jury found:

(7) Brogdon is entitled to $3,000 as exemplary damages for the wrongful sequestration of the lawn mower.

The trial court entered judgment for Brogdon for $3,074.32 based on the verdict of the jury. Barfield appeals.

On appeal Barfield contends that jury findings on which the exemplary damage issue was conditioned, i. e. that he knew or should have known that he did not have a right to sequester the property, are insufficient to support a judgment for exemplary damages.

It is well settled that to justify the recovery of exemplary damages, the issuance of a writ of sequestration must not only be wrongful, but procured without probable cause and maliciously. O’Hara v. Ferguson Mack Truck Co., 373 S.W.2d 507 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); Mathes v. Williams, 134 S.W.2d 853 (Tex.Civ.App.—Amarillo 1939, no writ). In the case of Hamlett v. Coates, 182 S.W. 1144, 1148 (Tex.Civ.App.—Dallas 1915, writ ref’d) the court discussed the requirement for malice as follows:

Malice is where the facts and circumstances show not only that the grounds upon which the writ of sequestration issued were untrue and that there was no probable cause for believing them to be true, but evidences bad motives or such reckless disregard of the rights of the party against whom it is sued out as satisfies the mind that the unlawful act was willfully and purposely done to the injury of such party.

It is the duty of plaintiff to request the submission of an issue on malice to the jury or else suffer a waiver of that ground of recovery. Scurlock Oil Company v. Joffrion, 390 S.W.2d 526 (Tex.Civ.App.—Tyler 1965, no writ); Rule 279, Tex.R.Civ.P.

A jury issue may be a proper predicate for exemplary damages even though it does not use the words “malice” or “malicious” if it is submitted in terms of the elements constituting legal malice. See Lubbock Bail Bond v. Joshua, 416 S.W.2d 623 (Tex.Civ.App.—Amarillo 1967, no writ).

Brogdon contends that Special Issues Nos. 4, 5, and 6 correctly submitted the required malice issue. In support of his contention, he cites First Security Bank & Trust Co. v. Roach, 493 S.W.2d 612 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.) and Commercial Credit Equipment Corp. v. Elliott, 414 S.W.2d 35 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.).

There is language in each of the cases, which taken by itself, supports Brogdon’s position.

In Elliott the court said:

One who sequesters property when he knows or should know that he has no right to title or possession of the property taken shows such a disregard for the rights of others as will authorize exemplary damages.

414 S.W.2d at 44. And in Roach the court citing Elliott, said:

It is settled law in this state that when one sequesters property when he knows or should have known that he has no right to title or possession of the property so taken, that such action will authorize the recovery of exemplary damages.

493 S.W.2d at 618. However in both Elliott and Roach the trial court had submitted an issue inquiring if the defendant acted with malice. In Roach malice was defined as “ill will, bad or evil motive, or such gross indifference to the rights of a party as will amount to a willful or wanton act done intentionally and without just cause or excuse on the part of the party accused of such acts.”

The jury in each case found actual malice. The question on appeal was whether the evidence was sufficient to support the jury finding of malice. In each case the court held only that facts and circumstances showing that the defendant knew or should have known that he had no right to title or possession of the property in question warranted an inference by the jury that the defendant acted with actual malice. The language relied on in no way relates to the proper submission of issues. We do not construe the cases as holding that an issue couched in terms of “known or should have known” properly submits the question of malice.

We conclude that Issues 4, 5, and 6 were each defective or improper submissions of a controlling issue necessary for an award of exemplary damages.

However Barfield did not object to the charge for its failure to submit an issue expressly inquiring if he acted with malice. He did not object at all to Special Issue No. 4 inquiring if he knew or should have known that he had no right to possession of the lawn mower and he did not object at all to the issue inquiring as to the amount of exemplary damage which should be awarded for wrongful sequestration. He did not object to Special Issue No. 5 or Special Issue No. 6 on the ground that they would not support exemplary damages.

Therefore, we consider Brogdon’s reply point that Barfield waived his right to complain of the issues submitted by his failure to make pertinent objections to the charge as required by Rules 272 and 274.

Rule 274 provides that:

A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections.

In Allen v. American National Insurance Company, 380 S.W.2d 604 (Tex.1964) the insurance company defended against the claim on a life policy on the ground of misrepresentation of the insured’s health. The trial court submitted an issue inquiring if the insured “knew or should have known” that his answer on the application was false. The Supreme Court held that the issue was improper because it did not correctly present the substantive law governing the defense of fraudulent misrepresentations. However, the Court came to the conclusion that the defect in the jury submission could not be urged by the plaintiff because he did not object to the submission of the issue. The Supreme Court stated:

We have, however, come to the conclusion that the defect in the jury submission occasioned by the use of the words “or should have known” may not be urged by plaintiff as grounds for refusing to render judgment for the insurance company.
While Special Issue No. 25 was defective in that it did not correctly inform the jury of the substantive law relating to the controversy, no objection was lodged against such issue. Apparently, in the trial court, plaintiff, as well as defendant, accepted the issues as constituting a correct submission and no objection was made to use of the words “or should have known” until after the Court of Civil Appeals had ordered a remand.

380 S.W.2d at 608. The Supreme Court cited with approval language in Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922 (Tex.Civ.App.-Austin 1936, no writ) as follows:

Where, however, the ground (of recovery or defense) is submitted, however, erroneously or incompletely, the parties are thereby put upon notice that the jury’s answers to the issues actually submitted will form the basis of the court’s judgment thereafter to be rendered thereon. It then becomes the duty of each party to point out errors of omission or commission, or be held estopped from thereafter urging them.

See also Texas Employers’ Insurance Ass’n v. Neuman, 379 S.W.2d 295 (Tex.1964) involving the defective submission of defendant’s issue seeking to limit recovery to a specific injury in plaintiff’s cause of action for a general injury, and Jackson v. Clark, 351 S.W.2d 292 (Tex.Civ.App.-Amarillo 1961, writ ref’d n. r. e.) wherein there was a defective submission of an unavoidable accident issue.

In the case before us Brogdon alleged that Barfield’s acts were done “willfully, intentionally, unlawfully, and maliciously, and therefore Cross-Plaintiff is entitled to exemplary damages in the amount of Three Thousand and No/100 Dollars ($3,000.00).” It is apparent that both plaintiff and defendant submitted the case on the theory that the issues in question submitted Brogdon’s ground of recovery for exemplary damages. We conclude that Barfield’s points of error contending that jury findings in Special Issues Nos. 4, 5, and 6 are insufficient to support a judgment for exemplary damages are not properly before us.

Plaintiff next contends that as a matter of law Brogdon sustained no actual damages because plaintiff had posted adequate sequestration and replevy bonds. We overrule the contention. The filing of a sequestration bond does not preclude actual damages. On the contrary it guarantees the payment of damages and costs in case it is decided that the sequestration was wrongfully issued. Rule 698. See Kelso v. Hanson, 388 S.W.2d 396, 399 (Tex.1965). The undisputed evidence establishes that Brogdon suffered actual damage in that he lost possession of the lawn mower which he was entitled to hold as security for the repair bill. There is no point of error that the jury finding of actual damages is excessive. There was no objection to the charge challenging the elements of damage which the jury was instructed that it could consider in connection with Special Issue No. 3.

Barfield also contends that the trial court erred in instructing the jury that, at the time of the sequestration, the sequestration statutes of the State of Texas had been held unconstitutional. This point is not before us because he did not object to the issue submitted on that ground.

We do not find that error, if there was error in the fact that Special Issue No. 3 assumed a wrongful issuance of the writ, was calculated to cause or did cause the rendition of an improper judgment in the light of other issues and instructions submitted without proper objection, the record as a whole, and the jury’s answers to Special Issues Nos. 1 and 2. There was no objection to the charge specifically addressed to the instruction given with Special Issue No. 3.

After considering the evidence in the light most favorable to the verdict and judgment and in the light of the authorities already cited we overruled plaintiff’s contention that there was no evidence that plaintiff acted with malice, ill will, or reckless disregard for the rights of others in causing the writ of sequestration to be issued.

As above stated, certain of appellant plaintiff’s points of error are not properly before us. We have considered and overrule each point of error before us except for the point of error presenting his contention that the jury finding of $3,000.00 exemplary damages is excessive. After consideration of the record as a whole, we are of the opinion that the verdict and judgment is excessive in the amount of $2,000.00.

If appellee files a remittitur of $2,000.00 within 15 days, the judgment will be reformed and affirmed. Otherwise, the judgment will be reversed and the cause remanded to the trial court for a new trial. Rule 440, Tex.R.Civ.P.

REYNOLDS, Justice,

concurring and dissenting.

Otherwise agreeing with the majority’s disposition of this appeal, I respectfully dissent to the award of exemplary damages. It is my view that, under the circumstances of this cause, J. Darrell Brogdon waived his ground of recovery for exemplary damages.

An unlawful or wrongful act is not of itself ground for an award of exemplary damages; to warrant exemplary damages the unlawful or wrongful act must partake of a wanton and malicious nature. Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803, 805 (Tex.1966); Ware v. Paxton, 359 S.W.2d 897, 899 (Tex.1962). Accordingly, while the wrongful suing out and levy of a writ of sequestration subjects the wrongdoer to actual damages, exemplary damages can be awarded only if the action is malicious. Harris & Fox v. Finberg, 46 Tex. 79, 96 (1876).

Conformably, a finding that the act was either malicious or willfully done is essential to a recovery of exemplary damages. Holland v. Lesesne, 350 S.W.2d 859, 865 (Tex.Civ.App.-San Antonio 1961, writ ref’d n. r. e.). To this extent, the ground of recovery is an independent one which, unless conclusively established, is waived where, as here, the issue on malice is omitted without objection from the jury submission, Scurlock Oil Company v. Joffrion, 390 S.W.2d 526, 532 (Tex.Civ.App.-Tyler 1965, no writ), even though, as here, the jury fixes an amount for exemplary damages. Holland v. Lesesne, supra, at 865.

The jury’s verdict is a mere finding that Robert E. Barfield wrongfully caused the writ of sequestration to be issued and executed, not that Barfield maliciously or willfully did so. Respectable authority holds it to be elementary that the finding that the issuance and execution was wrongful is not a finding that it was done with malicious intent or willfully done to injure. Mathes v. Williams, 134 S.W.2d 853, 858 (Tex.Civ.App.-Amarillo 1939, no writ). This presents a situation far different, I submit, than the situation illustrated by Allen v. American National Insurance Company, 380 S.W.2d 604 (Tex.1964), where there was a defective submission of the controlling issue without objection. My appraisal of the record before us is that no issue on the malicious or willful nature of the act was requested or submitted, even incompletely or defectively, and as a result, Brogdon waived his independent ground of recovery. Rule 279, Texas Rules of Civil Procedure.

Thus, I cannot agree that Barfield waived his right to complain of the award of exemplary damages by failing to object to the charge for the omission of the malice issue. To recover exemplary damages, it was Brogdon’s burden, not Barfield’s, to request, on penalty of waiver, the submission of the proper issue(s). Scurlock Oil Company v. Joffrion, supra, at 532; Holland v. Lesesne, supra, at 865; both citing Rule 279, T.R.C.P. Barfield had no duty to present any issue essential to Brogdon’s recovery and, therefore, no waiver can be imputed to Barfield for Brogdon’s failure to request the proper submission, Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 85 (1940), or for Barfield’s failure to object to the omission. Long v. City of Austin, 265 S.W.2d 632, 637 (Tex.Civ.App.-Austin 1954, no writ).

I, therefore, would hold that Brogdon waived any recovery for exemplary damages and order that the trial court’s judgment be reformed to eliminate the recovery of exemplary damages.

ADDENDUM TO OPINION

ROBINSON, Chief Justice.

Appellees timely made the suggested re-mittitur by filing on January 13, 1978, a release of $2,000.00 of the judgment entered by the trial court. We order that the costs of this appeal be taxed against appellant. Rules 435 and 448, Texas Rules of Civil Procedure.

The judgment is accordingly modified and as modified is affirmed.

      . Definitions of malice are necessarily general and do not provide precise limits for the decision of cases. Ware v. Paxton, 359 S.W.2d 897, 899 (Tex.1962).

      . The peculiarly worded damage issue submitted in this cause is not “necessarily referable” to the independent ground of recovery to the extent that it is a submission of one of the elements so that, under authority of Rule 279, Texas Rules of Civil Procedure, a court finding on the omitted issue of malice is deemed to have been made in support of the judgment rendered. Even generally, the purpose of a damage issue is not to establish liability, but to fix the amount of monetary compensation to which the aggrieved party shows himself entitled; therefore, whether there is any legal liability on the part of the wrongdoer must be determined, unless conclusively established, through the submission of the proper, separate issue(s). But here, the damage issue inquires of the amount of exemplary damages for the wrongful sequestration of the lawn mower. As stated in the text, exemplary damages cannot be awarded for a wrongful act. Consequently, the damage issue, as worded, simply goes to the remedy for, and is separate and apart from, the independent ground of recovery for malice.


author: O’QUINN, Justice.

text:
    Robert F. CHERRY, Appellant, v. Pauline H. TURNER, Appellee.
    No. 12626.
    Court of Civil Appeals of Texas, Austin.
    Jan. 11, 1978.
    Rehearing Denied Feb. 1, 1978.
    Roy Q. Minton, Minton, Burton & Fitzgerald, Inc., Austin, for appellant.
    Robert R. Bradshaw, Coffee, Goldston & Bradshaw, Austin, for appellee.
   O’QUINN, Justice.

Pauline H. Turner, the appellee, brought this action in October of 1975 in county court at law against Robert F. Cherry seeking damages for breach of a contract the parties made in connection with sale to appellee of a residence Cherry owned in Austin.

The contract of sale provided that “lighting and plumbing fixtures” were included in sale of the realty, and, in addition, Cherry warranted that all appliances would be in good working order at the time of closing. The basis for appellee’s suit was that when she took possession of the residence, the dishwasher was in disrepair and two chandeliers had been removed from the house.

Appellee as plaintiff below pleaded (1) breach of warranty for defective dishwasher, (2) an action under the Texas Deceptive Trade Practices Act'for treble damages plus attorney’s fees, and (3) malicious conversion of the chandeliers with claim of actual and exemplary damages.

Trial was before the court without a jury. At the trial it was shown that, prior to vacating the premises, Cherry had allowed appellee to store her furniture in a room in the house. Cherry contended that he had an agreement for storage for a charge, and in his pleadings Cherry named as cross-defendant William H. Bailey, who had made the arrangements for storage.

Cherry testified that he had removed the chandeliers “as security” for the debt under the storage contract. Cherry stated that the chandeliers were worth about five hundred dollars. In the course of trial, plaintiff below moved for production of the chandeliers, whereupon Cherry tendered both light fixtures to plaintiff in open court.

The trial court found there was no contract for storage since Cherry voluntarily permitted the furniture to be stored in the residence. The court further found that upon tender of the chandeliers by Cherry, appellee elected to retain the chandeliers, valued at $500, in specie rather than recover damages. Judgment of the court awarded actual damages of $250 for the defective dishwasher “together with, as exemplary damages, the sum of $3,875,” which included a portion of appellee’s attorney’s fees in the amount of $2,375.

Cherry has appealed and brings four points of error. Under the first three points appellant claims error because of the award of exemplary damages as not supported by the evidence and because no actual damages were awarded on the count for malicious conversion of the chandeliers. The fourth point challenges the award as excessive. Decision in this appeal turns principally upon the question of exemplary damages awarded in the action on conversion of the chandeliers.

The trial court made no award of actual damages for conversion of the chandeliers. In fact, as already observed, the court expressly found that appellee had accepted return of the chandeliers “in specie rather than recover damages for same.” For almost a century the rule in this state has been that exemplary damages may not be awarded unless actual loss or injury has been sustained. The Supreme Court in 1894 stated, in response to certified question, that:

“It has been repeatedly held by this court that, where no actual damage is shown, there can be no recovery for exemplary damages. Flanagan v. Womack, 54 Tex. 45; Trawick v. Martin-Brown Co., 79 Tex. 460, 14 S.W. 564; Jones v. Matthews, 75 Tex. 1, 12 S.W. 823. Without entering upon any discussion of the question, either upon principle or authority, we deem it sufficient to say that we regard the rule laid down by this court as safe and salutary, and that we are not disposed to disturb it.” Girard v. Moore, 86 Tex. 675, 26 S.W. 945, 946 (1894).

An explicit restatement of the rule was made by the Supreme Court in 1934 in this language:

“The rule in Texas is that exemplary damages cannot be recovered unless the plaintiff is shown to have sustained actual loss or injury. There can be no recovery of exemplary damages in the absence of a recovery of actual damages. A verdict of nominal actual damages is not sufficient.” (Emphasis added) Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 409 (1934).

Relying on the holding in Fort Worth Elevators, this Court in 1947 held that under settled law in Texas, “exemplary damages are not authorized in the absence of the recovery of actual damages,” and that “The recovery of exemplary damages is not allowed as a matter of right or as compensation but only as an incident to and enhancement of actual damages.” (Emphasis added) Hughes v. Belman, 200 S.W.2d 431, 434 (Tex.Civ.App. Austin 1947, writ ref’d n. r. e.).

The rule as stated by the Supreme Court in Fort Worth Elevators does not authorize award of exemplary damages even though the record contains evidence that actual damages are recoverable, but not awarded. We are aware of holdings in several cases which appear to imply such deviation from the basic rule. See Texas Electric Service Co. v. Linebery, 333 S.W.2d 596, 599 (Tex.Civ.App. El Paso 1960, no writ); Pan American Petroleum Corp. v. Mitchell, 338 S.W.2d 740, 742 (Tex.Civ.App. El Paso 1960, no writ); Mabry v. Abbott, 471 S.W.2d 442, 446 (Tex.Civ.App. Waco 1971, writ ref’d n. r. e.). These cases were noticed but not followed in Prudential Corporation v. Bazaman, post, in which the court expressly applied the rule as stated in Fort Worth Elevators.

We adhere to the rule as clearly stated in Fort Worth Elevators, and followed by this Court in Hughes v. Belman, supra, that recovery of exemplary damages must be refused in the absence of recovery of actual damages. In accord are Hoffman v. French, Ltd., 394 S.W.2d 259, 262 (Tex.Civ.App. Corpus Christi 1965, writ ref’d n. r. e.); Prudential Corporation v. Bazaman, 512 S.W.2d 85, 95 (Tex.Civ.App.Corpus Christi 1974, no writ).

We hold that plaintiff below, having accepted the chandeliers in specie and being awarded no actual damages for alleged conversion of the chandeliers, is therefore not entitled to recover exemplary damages, and that the award by the trial court of exemplary damages was error.

By disposing of the issue of exemplary damages under appellant’s first three points of error, we do not reach the fourth point claiming excessive award of damages. Ap-pellee has moved to dismiss the appeal because certain exhibits withdrawn by appellant from the record were not returned. The motion is without merit and is overruled.

That portion of the judgment of the trial court by which appellee was awarded exemplary damages is reversed, and judgment is rendered that appellee recover no exemplary damages. The judgment below in all other things is affirmed.


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. John T. TRIBELL, Respondent.
    No. SC-229-KB.
    Supreme Court of Kentucky.
    Aug. 19, 1977.
    Leslie G. Whitmer, Director, John T. Damron, Asst. Director, Frankfort, for movant.
    Daniel J. Tribell, Middlesboro, for respondent.
   ORDER AND OPINION

PER CURIAM.

Respondent was adjudged guilty of unprofessional conduct and disbarred from the practice of law in this Commonwealth. Kentucky Bar Association v. Tribell, Ky., 503 S.W.2d 484 (1972).

On April 19, 1977, the Kentucky Bar Association filed a motion asking that respondent be held in contempt of this court for allegedly engaging in the practice of law. An order was entered directing this respondent to show cause why he should not be punished for contempt. Respondent denies the charge and states that he has not practiced law since January 9, 1973, which was prior to his disbarment.

The acts which allegedly constitute the practice of law are the preparation of nine deeds and one affidavit of descent. Respondent admits preparing each of them, but he contends that he and George F. Tuttle are partners in the purchasing of the three parcels of land which are described in each deed and which came from the James H. and Elizabeth Crawford estate. He contends that since he is part owner of the lands, it is not improper for him to prepare these documents. We are not moved with the same degree of certainty as is the respondent — that he was not engaged in the practice of law.

The practice of law is defined by RCA 3.020, as follows:

“The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor.”

If respondent is a partner with George F. Tuttle, it is not made manifest by any written instrument filed in the record. Certainly respondent is too intelligent a person to enter into such an undertaking without a writing which evidences the agreement, if nothing more than just a memorandum written on a paper bag.

Each deed reflects the payment of a specific sum of money; however, there is nothing in the record to disclose who paid the purchase price or if any was paid, other than the deeds each reflect that the purchase price, ranging from $100,000 to $300,-000, was paid in cash. The total sum of money stated in the deeds to have been paid is $1,631. Was this paid by respondent or by someone else? Has respondent paid any part of the purchase price? Certainly respondent, if he did pay any of the purchase price, would have a receipt, since he advises this court that he has no bank account in any bank. No receipt or evidence of payment by respondent has been filed.

The “Response to Motion for Contempt Order” is accompanied by five affidavits, including one from the Honorable W. R. Knuckles, former judge of the Bell Circuit Court. These affidavits, in some particulars, tend to substantiate respondent’s contentions. We are not persuaded, however, that respondent’s conduct does not constitute the practice of law.

Admittedly, respondent’s interest, if any, was secret and was not disclosed to the sellers. Of the nine deeds, seven showed Irene Tuttle Crawford as the purchaser and the remaining two showed George F. Tuttle and his wife as the purchasers. Respondent’s name does not appear in any of the deeds as a purchaser. It only appears as the scrivener.

This is an onerous task that we are called upon to perform. We dislike the undertaking, as well as the result which is forced upon us. But like it or dislike it, we are reminded that “the moving finger writes and, having writ, moves on.” So, let it be with respondent.

He is guilty of the unauthorized practice of law in violation of RCA 3.020, fined $100, and ordered to pay the costs of these proceedings.

All concur.


author: PALMORE, Chief Justice.

text:
    Randy E. ABRAHAM, Petitioner, v. Talbert TURNER, Breathitt County Jailer, Respondent.
    Supreme Court of Kentucky.
    Oct. 24, 1977.
    Charles W. Curry, Shuffett, Kenton, Curry & Karem, Lexington, for petitioner.
    Robert F. Stephens, Atty. Gen., Frankfort, for respondent.
   OPINION AND ORDER

PALMORE, Chief Justice.

It is considered that an original action for habeas corpus is not appropriately addressed to this court, for which reason the petition in this case is denied.

All concur.


author: CLAYTON, Justice.

text:
    Roger E. GARRETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.
    Rehearing Denied Feb. 21, 1978.
    Jack Emory Farley, Public Defender, Thomas R. Lewis, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

The appellant, Roger E. Garrett, was jointly indicted with Leroy Campbell and John Campbell for the murder of Pearl Campbell. As a result of the trial, appellant was found guilty of aiding and abetting in the murder and was sentenced to 20 years’ imprisonment. The appellant did not testify and no witnesses were called in his behalf. An autopsy was performed on the victim, and the pathologist testified that the death occurred on July 10, 1976, as a result of stab wounds. The body was found lying 30 feet off Clintonville Road in Clark County, Kentucky, in high grass.

Appellant’s first assignment of error is that the trial court erred to appellant’s substantial prejudice by overruling appellant’s motion for a directed verdict.

Woodrow Duff testified that he had known the deceased for 35 to 40 years and that he had seen the victim with the appellant and the two co-indictees on the day of the victim’s killing. He testified that the four men were in an automobile which was later identified as a green Chevrolet Nova, Super Sport, with a white vinyl top and an Indiana license plate. Lee Bryant, in testifying for the prosecution, said that she saw three men helping a man out of the ditch near where a late-model Chevrolet Nova was parked by the road. Lisa Immi, a passenger in the Bryant car, testified that she saw four men at the scene of the crime. Two men were holding a man while one was hitting him. Susan Whitlock testified that she was driving down the Clintonville Road on the day in question and near the scene of the crime. She further testified that she saw a man near a parked automobile. Later at the trial this witness made a positive in-court identification of the appellant as being the same man she saw near the scene of the homicide. Leroy Campbell, appellant’s co-indictee, was also identified at the scene by Tommy Neil, who testified for the prosecution.

One of the better statements applicable to the case at bar is found in Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). In this case it is stated: “If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.”

We cannot say, therefore, that the trial court erred in submitting the case to the jury.

Appellant’s next contention is that his rights were substantially prejudiced by the trial court’s overruling of his motion for change of venue. The record reveals that the trial court held an in-chambers hearing on appellant’s motion prior to trial. The record also reveals that a long and detailed voir dire was conducted. The jury was administered the usual and customary oath to try the case solely on the evidence presented in court. This court has enunciated general guidelines on change of venue for the benefit of the trial judges. For example, in the case of Hurley v. Commonwealth, Ky., 451 S.W.2d 838, 841 (1970), this court said: “In the making of such determination, the trial judge has wide discretion in granting or refusing change of venue and his discretion is given great weight because he is present in the county and presumed to know the situation.” This statement was a quote from Nickell v. Commonwealth, Ky., 371 S.W.2d 849 (1963).

A review of the record convinces this court the trial judge acted properly and did not abuse his discretion in overruling the requested motion for change of venue.

Appellant’s next assignment of error is that he was denied a fair trial by the trial court’s improper comments during voir dire to the entire jury panel. This argument is without merit. In qualifying the prospective jurors, the appellant’s counsel asked the jury if they had any feeling that the appellant might be guilty simply by the fact that he was on trial that day. The trial court interrupted and said:

Well, now, don’t ask any more questions on that order. The man has been accused by a Grand Jury. He wasn’t picked up as a stranger on the street, now. Despite the image television may project, the man has been accused by a Grand Jury. He wasn’t picked up just passing through town and we needed somebody to sit as a defendant in a trial. We don’t want to project that image, and the jury surely don’t think that that’s what happened. There’re some people that have made a very, very serious accusation against the person. That is just a little bit beyond his being a rank stranger.

The trial judge, however, further remarked to the jury as follows:

. But all trials in the American jury system, a person is presumed to be innocent until it is proven by evidence presented in a courtroom to the satisfaction of a trial jury beyond a reasonable doubt that he has been proven guilty. Until that measure of proof is met; that is, to your satisfaction, beyond a reasonable doubt, that he is guilty. But at the start of the trial he is presumed to be innocent and he will be innocent until that burden is met. And the burden is entirely on the Commonwealth to prove it. It is not on the defendant to establish that he didn’t do it; the burden is on the Commonwealth to prove that he did it.

This court said in Rice v. Commonwealth, 278 Ky. 43, 128 S.W.2d 219 (1939): “. . . it is impossible to conceive how such alleged error could prejudice defendant’s rights, since the juror, if he was qualified to act as such at all, is required only to exercise his discretion as permitted under the evidence and the- instructions of the court.” Id., at 222-223.

Appellant’s next assignment of error is: “The prosecution’s introduction of a ‘mug shot’ photograph of appellant which had no probative value in the case at bar, violated appellant’s right to a fair trial as guaranteed by the due process clause of the fourteenth amendment to the Federal Constitution.” The photograph of the appellant was introduced during the testimony of Detective Stephens, who had obtained the picture from the files of the Lexington Metro Police Department during his investigation of the case. It should be remembered that the witness, Susan Whitlock, made a positive in-court identification of the appellant. The record discloses that the trial judge removed all unnecessary markings from the picture and cut away the lower ' part containing the identification numbers used by the police and marked out some notations on the back of the picture. The trial judge was very careful to explain to the jury his actions and advised them that he was only eliminating parts of the photograph. All of the police department notations and markings were either covered or removed. This court concludes that if the photograph was improperly admitted, it was merely harmless error. See Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218, 221-222 (1976).

Appellant’s next contention is that the trial court denied the appellant a fair trial by precluding the cross-examination of a key prosecution witness. During the cross-examination of Woodrow Duff, the witness was asked if he was “aware that the Commonwealth’s Attorney attempted to get some charges dismissed against him.” An objection by the Commonwealth’s Attorney was sustained by the court and the appellant’s counsel was precluded from this line of inquiry. The record reveals that appellant’s trial counsel did not make an avowal. Hence, the alleged error was not properly preserved for appellate review. Queen v. Commonwealth, Ky., 551 S.W.2d 239 (1977).

Appellant’s next argument is that the trial court erred by failing to instruct the jury on manslaughter in the second degree (KRS 507.040). The instructions given by the court were on murder, first-degree manslaughter, and aiding and abetting murder.

In Bartley v. Commonwealth, Ky., 478 S.W.2d 24 (1972), this court held that the trial judge properly refused to give an instruction on involuntary manslaughter (now second-degree manslaughter) where there was no evidence of any act of the defendant which could be characterized as either wanton or reckless. This court also held in Coleman v. Commonwealth, Ky., 501 S.W.2d 583 (1973), that where there was nothing in the record that indicated the death could have been caused by negligent conduct of the defendant, the trial court did not err by not including an instruction on involuntary manslaughter. There is no evidence in the record that appellant acted wantonly or recklessly. Further, there is no evidence that the appellant acted negligently. These elements must be present to constitute crime of manslaughter in the second degree. Hence, this court cannot say that the trial court erred by failing to instruct on manslaughter in the second degree.

Appellant’s next argument is that the prosecutor made improper comments during his closing argument which constituted reversible error. The record reveals, however, that the closing statement of the Commonwealth’s Attorney was within the bounds of propriety.

Appellant’s last assignment of error is that the cumulative effect of the preceding alleged errors substantially prejudiced him and deprived him of his constitutional right to a fair trial. Since we have discussed each assignment of error and have found that they have not substantially prejudiced the appellant, we conclude that he was not constitutionally deprived of his right to a fair trial.

The judgment is affirmed.

All concur.


text:
    Tandy HUNTER, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.

      A. Gene Oliver, Strother, Oliver & Strother, Lexington, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAYTON, Justice.

The appellant, Tandy Hunter, Jr., was convicted of murdering his wife, Martha, and sentenced to 20 years’ imprisonment. We affirm the judgment of conviction.

The evidence shows that the murder took place on November 26, 1976, and that the death was the result of a bullet wound to the head. On the date of her death, Mrs. Hunter was employed as a night watchman. As a part of her job she carried a .38-caliber Smith & Wesson pistol. On the day of the crime the appellant accompanied his wife to work. Mrs. Hunter decided to take a nap while on duty, but she had her husband to keep a lookout for her boss and to awaken her should he appear. Unfortunately, her boss did come by and Mrs. Hunter was asleep. For not awakening her, Mrs. Hunter apparently chastised her husband. After work, appellant and his wife returned home. The appellant testified that while in a bedroom taking a nap he was awakened by a gunshot. He further testified that his wife was sitting on the couch and he “raised up and spoke to her.” She did not reply and he called the state police and the ambulance. When the police arrived, they found Mrs. Hunter slumped over and a gun on her lap. The appellant told the police that his wife had apparently committed suicide. Under the gun on Mrs. Hunter’s lap was blood; however, the police found no blood on the gun. The gun was tested for fingerprints, but none were found. The police also performed a gun residue test on both the appellant and the victim. The tests showed that the appellant had fired a weapon but that the victim had not.

The appellant’s first assignment of error is that he could not be cross-examined from a written statement for impeachment where the statement is denied. During the cross-examination of appellant, the Commonwealth’s Attorney handed the appellant a written statement signed with an X. The prosecutor then asked if he had given a statement to the police. The appellant denied ever having given the statement to the authorities, and the prosecutor proceeded to ask appellant questions using the written statement. It is the opinion of this court that this alleged error was not properly preserved for appellate review, because no objection was made to the questioning by defense counsel. We have said this so many times that it requires no citation of authority.

The appellant’s next assignment of error is that the trial court improperly admitted proof of prior felony convictions for impeachment purposes. The Commonwealth’s Attorney was permitted to ask appellant whether he had been convicted of two prior felonies. These felonies were two convictions for breaking and entering, one in 1964 and the other in 1965. It is our conclusion that this testimony was proper for impeachment purposes under Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970). The record reveals that the trial court adhered to the law as announced in Cotton.

The appellant phrases his next assignment of error as “Did the Commonwealth obtain the results of the gun residue test by a search pursuant to consent?” The problem with this contention is that it was not properly called to the trial court’s attention by a motion to suppress or an objection to the introduction of the evidence. Hence, if the trial judge had no opportunity to rule on the issue, it has not been properly preserved for appellate review.

Appellant’s final assertion of error is that the evidence was insufficient to take the case to the jury. Again we must point out that appellant has not preserved this point for appellate review by failure to make his motion for directed verdict at the close of all the evidence as required under Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977). Further, even if the alleged error had been properly preserved for appellate review, we believe the trial court acted properly in submitting the case to the jury. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). In this case we held that if under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.

The judgment is affirmed.

All concur.


text:
    James Foster JONES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Dec. 9, 1977.

      G. Murray Turner, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Carl Miller, Asst. Atty. Gen., Frankfort, for appel-lee.
   CLAYTON, Justice.

James Foster Jones appeals from a judgment sentencing him to 30 years’ imprisonment for the March 5,1976, murder of Burt Grubbs, whose death resulted from a blow at the base of his skull. The facts of the case are basically as follows.

Jones and Lee Etta Hahn were married in 1970; in January of 1975 they were divorced. For a time after the divorce, Lee Etta lived alone. As her resources dwindled, however, she moved into the home of the 78-year-old Grubbs, a friend of her family for several years. This arrangement upset Jones greatly — so much, in fact, that he threatened to shoot Grubbs and burn his house if Lee Etta remained. This threat caused Grubbs, on January 16, 1976, to file a complaint with the police department. On January 20, a warrant was issued for Jones’ arrest, charging him with terroristic threatening. The warrant was served on the morning of March 5, the day of the killing.

In the meantime, Lee Etta, due to Jones’ threat, left Grubbs’ house and moved back in with Jones. Lee Etta resided with Jones for a few weeks, after which time she moved into the home of her bedfast mother. Also living in her mother’s house were Louise Glasgow, Lee Etta’s sister, and James Kenneth Glasgow, Louise’s only son, who was fathered by Mr. Grubbs when Louise was 15.

On the morning of March 5, Lee Etta and Louise left their mother under the care of Grubbs and went their separate ways, Lee Etta to her place of employment and Louise to do some errands. Louise returned around noon, only to find the glass to the back door broken out and Grubbs lying dead on the kitchen floor, his head in a pool of blood. A check of her mother’s room revealed that her mother was safe. On the bed beside the elderly lady lay a bloodstained hammer; Jones stood by the foot of the bed. According to Louise, when she saw Jones there, she said, “Aren’t you ashamed to do an old man like you did him,” to which Jones replied, “No.”

Jones, testifying in his own behalf, neither admitted nor denied killing Grubbs. According to Jones, he simply could not remember everything that had occurred on that day. He did remember that he had been drinking heavily the night before and that he consumed additional liquor on the morning of the killing. Jones further remembered that he had gone to the Glasgow home to ask why Grubbs caused the warrant to be served on him. When he arrived there, Jones noticed that the back door glass was broken. He went inside, drank a half-pint of whiskey, and threw the bottle into the stove. The next thing he remembered was seeing Grubbs’ body on the floor and a hammer lying nearby. Jones then testified that he picked up the hammer and went to the mother’s room to see if she was all right. When he found that she was safe, he told her what had happened and she suggested that he lay the hammer on the bed. Jones could not remember anything that happened after this time until he awakened the next day in jail.

Jones’ initial contention on appeal is that the trial court erred by admitting testimony about the fact that Grubbs was responsible for the issuance of the arrest warrant for terroristic threatening which had been served on the day of the killing. Had this warrant been issued upon the complaint of anyone other than the victim, it would, of course, have been improper to allow such testimony. Because it was Grubbs who brought these accusations to bear on Jones, however, the testimony was competent to show the state of feeling which existed between Jones and Grubbs and to establish a motive for the killing. Scott v. Commonwealth, Ky., 495 S.W.2d 800 (1972); Powell v. Commonwealth, 308 Ky. 467, 214 S.W.2d 1002 (1948); Word v. Commonwealth, 151 Ky. 527, 152 S.W. 556 (1913). Thus, the trial court acted correctly by allowing this testimony into evidence.

The trial court did err in permitting, over defense counsel’s objection, testimony relating to specific acts of violence and threats made by Jones against third parties. During direct examination by the Commonwealth, Lee Etta Hahn was allowed to testify as follows:

Q Could you, I know this is rather prying, but could you tell us the reason why you divorced James Foster Jones?
A Well, he just drank and gambled, and he was cruel to me and beat me a number of times. I just figured I’d be better off by myself if I had to be treated that way. I could do better by myself.
Q Did he ever threaten you?
A Yes sir. He has beaten me several times .
Q You say the defendant here has threatened you before; he has threatened Mr. Grubbs before, in your presence?
A Yes sir.
Q What did he say to you — if you didn’t get out of Grubbs’s house?
A He was going to kill me.
Q Have there been any other occasions where he has really threatened your life?
A Well, he’s beat me nearly to death several times.

Following this testimony, James Kenneth Glasgow was also permitted to testify about threats on his life which he had received from Jones.

It has long been the rule in this jurisdiction that while a threat to kill or injure someone which is couched in vague terms and directed at no one person in particular is admissible in a homicide prosecution to show a hostility towards mankind in general and hence towards the deceased, a threat to kill or injure someone which is specifically directed at some individual other than the deceased is inadmissible, as it shows only a special malice resulting from a transaction with which the deceased had no connection. Burden v. Commonwealth, 296 Ky. 553, 178 S.W.2d 1 (1944); Fugate v. Commonwealth, 202 Ky. 509, 260 S.W. 338 (1924); Word, supra. In the instant case, the threats and acts of violence were specifically directed at Lee Etta and James Kenneth; they in no way demonstrated hostility on Jones’ part toward Grubbs or the world in general. Consequently, their admission was error.

Jones’ next assignment of error is that the trial court erred by allowing into evidence a confession made by Jones to the police following his arrest, without first determining whether it was voluntarily uttered.

Immediately after Louise discovered Jones in her mother’s room, she called the police. Jones was subsequently arrested and placed in a police car, where he was interrogated by Detective Bobby Shanks of the homicide division. After advising Jones of his Miranda rights, Detective Shanks asked Jones to relate what had occurred at the Glasgow home. According to Shanks, Jones made the following statement which was recorded by Shanks on a “voluntary waiver form” and signed by Jones:

The way it happened is I married Lee Etta Hahn. James Kenneth and Louise had Lee Etta move in with her granddaddy and I told Lee Etta a long time ago that I would kill that son of a bitch if he ever got in a car with her. I got to the house, Grandma, and Granddaddy was there and I kill that son of a bitch with a hammer. I busted the door with a hammer. I come to kill James Kenneth or Louise but they weren’t there. This son of a bitch was there in the spot. They had Lee Etta move in the house with him. I bought [sic] the hammer with me. I walked here. I only know the guy’s name by Granddaddy. He’s James Kenneth’s Daddy.

Prior to trial, defense counsel moved to suppress this confession on the ground that it was not voluntarily given, and requested that the trial court conduct an in-chambers hearing on the matter. The trial court refused to hold such a hearing, however, stating that it could just as easily determine whether the confession was voluntary or not at that point during the trial when the Commonwealth sought to introduce the statement into evidence. When that time arrived, defense counsel renewed his motion to suppress and again asked for a hearing; but the trial court denied the motion and admitted the confession.

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the United States Supreme Court held that before a confession may be constitutionally used as evidence against a criminally accused, the voluntariness of that confession must, if the accused so requests, be determined by someone other than the convicting jury.

In Bradley v. Commonwealth, Ky., 439 S.W.2d 61 (1969), we made this rule a bit more precise as applied in this jurisdiction by stating that the someone who must determine the voluntariness issue must be the trial judge and that this determination must be made at an in-chambers hearing outside the presence of the convicting jury.

The reasons for requiring an in-chambers hearing on the issue of voluntariness are at least threefold. As a practical matter, if the trial court should wait to make its determination until the confession is offered at trial, then conclude that the confession was in fact coerced or otherwise involuntarily uttered, “the cat is already out of the bag.” The jury has already heard the incompetent and highly damaging statement, making the declaration of a mistrial the only proper remedy. If the trial court should determine the confession to be involuntary after conducting an in-chambers hearing, however, the trial can proceed sans confession, saving the time and expense of a new trial. Moreover, a determination of voluntariness based solely on the evidence presented at trial may be a determination based on less than all of the available relevant evidence; for the accused may be hesitant to testify on the issue of voluntariness at trial due to fear of impeachment by proof of prior convictions and of extensive cross-examination in front of the jury that is to decide his fate. See Jackson, supra, 84 S.Ct. at 1787, n. 16. Finally, if the defense counsel moves to suppress, and an in-chambers hearing is held, prior to trial, the trial court will be able to make its determination uninfluenced by evidence pertaining to the truth or falsity of the confession.

In the case at hand, the refusal by the trial court to conduct a Bradley -type hearing was plainly error. Although the Commonwealth concedes this to be so, it contends that Jones’ conviction should nevertheless be affirmed, resting its argument on Henderson v. Commonwealth, Ky., 507 S.W.2d 454 (1974), wherein we declined, in the absence of a showing of prejudice, to overturn the appellant’s conviction despite a similar failure to follow the procedural requirements set forth in Bradley.

Unlike in Henderson, however, there is in the present record on appeal some indication that Jones’ confession might have been involuntary in nature. It was developed at trial that Jones possessed only a fourth-grade education and that he could not read. In addition, there was a great deal of testimony that Jones was highly intoxicated at the time he made his confession to the police: Jones himself said he was so drunk he couldn’t even remember talking to the police; each of the policemen who came in contact with Jones testified that he was obviously intoxicated; and Lee Etta Hahn stated that Jones’ signature at the end of the voluntary statement form looked like the way Jones signed his name when he was drunk.

All of these things — lack of education, illiteracy, and intoxication — are factors which can, under certain circumstances, cause an otherwise valid confession to be suppressed for want of voluntariness. See Allee v. Commonwealth, Ky., 454 S.W.2d 336 (1970); Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974). This is a sufficient showing of prejudice. The record need not contain conclusive proof that Jones’ confession was in fact involuntary, but need only reflect enough evidence to demonstrate the existence of a genuine issue on the matter.

In light of this conclusion, there is no need to consider, insofar as it relates to the merits of the case, Jones’ further contention that the trial court also erred by refusing to submit the question of voluntar-iness to the jury. See Bradley, supra. For such a refusal can only constitute error when a proper determination of this question has already been made by the trial court. Had the trial court in fact allowed defense counsel to carry this issue to the jury without first holding an in-chambers hearing on the matter, it would have been engaging in the very procedure condemned in the Jackson case.

This is not to suggest, however, that the raising of this contention at trial or on appeal was in vain, since the fact that Jones sought a jury determination on the question of voluntariness does have a bearing on the ultimate disposition of this case. If Jones’ sole request at trial had been for an in-chambers hearing on this question, we could have simply remanded the case to the trial court for such a hearing with directions that a new trial be granted only if it should be decided that Jones’ confession was involuntary. See Jackson, supra. Because Jones also requested that the question be submitted to the jury, however, we find it to be in the interest of judicial economy to grant Jones a new trial now. Were we to instead remand for a hearing, a new trial would eventually be required in any event: if the confession were found to be involuntary, its admission into evidence would constitute error; if the confession were found to be voluntary, the failure to submit the question of voluntariness to the jury would constitute error.

We have carefully reviewed Jones’ other assignments of error, but find them to be without merit.

The judgment is reversed, and the cause is remanded for a new trial.

All concur.


author: JONES, Justice.

text:
    Paul Lee BUTLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 10, 1978.
    Rehearing Denied Feb. 21, 1978.

      John Tim McCall, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   JONES, Justice.

On a jury trial, Paul Lee Butler was found guilty of the murder of John F. Smith. In conformity with the jury’s verdict, the trial court sentenced Butler to confinement in the state penitentiary for a term of 20 years. From that judgment Butler prosecutes this appeal.

The events that precipitated this homicide center around a dispute over a $7.00 debt allegedly owed by Butler to Smith. Smith and his nephew, Mallory, accosted Butler in a pool room. They discussed the debt. At Smith’s request, he, Butler and Mallory left the pool hall where the discussion led to physical assault.

At trial, two versions of the homicide were presented. Butler testified that Smith struck him twice and kicked him. Thereupon, Butler, pursued by Smith, went to his truck, obtained his knife and hit Smith a couple of times with the knife, allegedly in self-defense.

On the other hand, Mallory testified that Butler grabbed Smith, whereupon Mallory hit Butler. Butler then crossed the street, went to his truck, obtained a knife, returned to Smith who was sitting in his own car, opened the door and stabbed Smith twice. From the wounds inflicted by Butler, Smith died.

At trial Butler stipulated that he stabbed Smith and he died as a result of the wounds. On cross-examination Butler admitted that the actual stabbing occurred across the street from his truck. He said: “I did come back across the street, that’s right.”

Butler tendered instructions on wanton killing and reckless homicide. These were properly refused by the trial court, who instructed on murder, manslaughter first degree, self-defense and definitions of terms.

Butler moved for a directed verdict at the close of the Commonwealth’s case. He did not renew his motion at the close of all the evidence.

Butler’s first contention of error is that the trial court should have excluded a photograph of Smith because it was not taken at the scene of the stabbing and that the photograph is gruesome. This court rejects Butler’s argument. A photograph that is otherwise admissible does not become inadmissible because it is gruesome and the crime is heinous. Brown v. Commonwealth, Ky., 558 S.W.2d 599 (decided November 18, 1977).

Butler next contends the trial court erred in allowing the Commonwealth’s Attorney to impeach his credibility as a witness with a felony conviction ten years pri- or to his trial.

In Martin v. Commonwealth, Ky., 507 S.W.2d 485 (1974), this court permitted impeachment by prior felonies which occurred in 1961 when the trial was held in 1972. See Bogie v. Commonwealth, Ky., 467 S.W.2d 767 (1971). These cases are dispositive of the issue of remoteness of the prior felony.

Butler’s third argument that the trial court should have sustained his motion for a directed verdict is a “will-o’-the-wisp.” There is ample proof upon which the jury could and did conclude that Butler’s action in stabbing Smith was premeditated. The jury could and did properly conclude from the evidence that Butler went to his truck, obtained the knife, returned to Smith’s car and fatally stabbed him. Although Butler moved for a directed verdict at the close of the Commonwealth’s ease, he did not renew that motion at the close of all the evidence, and thus has waived the right to assert that issue on appeal. Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977).

Butler next contends that a mistrial should have been granted because Mrs. Mallory’s testimony that when she was told by her son that Smith had been stabbed, she replied that she knew who did it. She was allowed to proceed no further. The statement was not prejudicial because Butler admitted stabbing Smith.

There is no merit in Butler’s argument that the trial court should have instructed the jury on manslaughter in the second degree and reckless homicide. There was no evidence that warranted such instructions. It is elementary that “instructions in a criminal prosecution must have a source within the framework of the evidence produced on trial.” Pilon v. Commonwealth, Ky., 544 S.W.2d 228 (1977).

This court has reviewed the entire record, and is of the opinion that Butler had a fair and impartial trial. He should be content that he received the minimum sentence for the offense of murder.

The judgment is affirmed.

All concur.


text:
    Mary Alice WHEELER, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Appellees.
    Supreme Court of Kentucky.
    Jan. 10, 1978.

      James E. Clarkson, Maysville, James M. Todd, Lexington, for appellant.
    Woodson T. Wood, Maysville, for appel-lees.
   PER CURIAM.

Mary Alice Wheeler appeals from a summary judgment dismissing her claim against Charles Jones, an uninsured motorist, and Hartford Accident & Indemnity Company, her insurance carrier.

Mary Alice Wheeler and Joe Fields, Jr., were the parents of Joseph Gregory Fields, born January 13, 1956. The parents were divorced in 1961, and she was awarded custody of their son. On August 3,1972, Gregory, while a passenger in an automobile being driven by Charles Jones, sustained fatal injuries in a collision. Jones had no insurance coverage and, therefore, qualified as an “uninsured motorist.”

At the time of the son’s death, both Mary Alice and Joe, the parents, had “family automobile policies” containing the usual uninsured motorist coverage. Royal Globe Insurance Companies had coverage on Joe, while Hartford Accident & Indemnity Company had coverage on Mary Alice.

On March 30, 1973, Joe Fields, Jr., qualified as administrator of the estate of Joseph Gregory Fields and thereafter, on April 13, 1973, entered into a settlement agreement with Royal Globe by which he, as administrator, accepted $12,500 in full settlement of all claims arising out of the death of Joseph Gregory Fields. Endorsement of the Royal Globe check effected a general release of all claims against Charles Jones. There were no exceptions or reservations of any rights or claims to be later asserted by any interested party.

On April 16, 1973, Mary Alice Fields (Wheeler) executed to Joseph Fields, Jr., a release by which she released him “from any and all claims that I may have on the insurance proceeds he may at any time collect from his insurance carrier.” He, in turn, executed to her a release relinquishing any claim that he might have to proceeds collected from her insurance carrier. (The release executed to Joseph Fields, Jr., is to him individually and not as administrator of the estate of Joseph Gregory Fields, the insured under the Royal Globe policy.)

On July 28,1973, Joe Fields, Jr., executed an affidavit to the effect that he had been appointed administrator of the estate of Gregory Fields on March 30, 1973, and, “that this affiant refuses to file suit as administrator against Charles J. Jones upon behalf of any claim that Mary Alice Wheeler might have under her policy of insurance with Hartford Insurance Company.” This refusal to prosecute, if it may be called such, was executed months after the claim against Jones had been settled and a general release executed.

Subsequent to Joe’s refusing to file an action on behalf of Mary Alice, she, individually, filed one against her insurance carrier and Charles Jones. The trial court sustained a motion for summary judgment and dismissed the complaint filed by Mary Alice Wheeler. The trial court, in granting summary judgment, held that the action of Mary Alice, being one for wrongful death, was in tort and not in contract and, further, that the authority to bring an action for wrongful death was vested exclusively in the personal representative of the deceased. It is from this holding that Mary Alice Wheeler appeals.

The issues are somewhat beclouded and confused by the injection of a corollary question regarding the validity of uninsured-motorist coverage under policies issued by two separate companies. The liability of Royal Globe and Hartford was never in issue. Rather, the concern centered about the procedural aspects of enforcing payment of sums accruing by reason of the wrongful death of Joseph Gregory Fields.

A resolution of Mary Alice’s dilemma turns upon the answer to two questions. First, was her claim for the wrongful death of her son a tort action or a contract action based on the contract provisions of the uninsured-motorist coverage in the Hartford policy? Second, did she have statutory authority to prosecute a wrongful-death action?

All policies of insurance are contracts by which the insured agrees to pay certain sums upon the happening of a particular event. The uninsured-motorist coverage of Mary Alice’s liability policy provided:

“To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident arising out of the ownership, maintenance or use of such uninsured automobile.”

The contract liability of the insurer matures only in the event that bodily injury results from the tortious act of the uninsured driver. Specifically, a claimant must establish entitlement to the benefits of the policy by proceeding in tort against the uninsured driver and proving that his negligent operation of the uninsured automobile brought about the injury or death of the insured.

Mary Alice’s reliance on the contract theory is misplaced. Recovery for the death of her son is predicated on the tor-tious conduct of Charles Jones. Absent a determination of his negligence, there would be no recovery for which Hartford would be liable. Basically, liability upon any claim under an automobile liability policy, including uninsured-motorist coverage, requires that there be established as a prerequisite to recovery the negligence of the (uninsured) motorist. Once tort liability is determined, then the processes of collecting an award might well, in many instances, spawn an action against the insurance carrier on its contract.

KRS 411.130 mandates that all actions for wrongful death be maintained by the personal representative of the deceased. The “wrongful-death statute” has been a part of the general laws of this Commonwealth since 1893. Courts have consistently held that the right of action is in the personal representative exclusively. In Louisville & N.R. Company v. Turner, 290 Ky. 602, 162 S.W.2d 219 (1942), the court said:

“Section 6 [KRS 411.130] of the Statutes authorizes a suit for damages for the tortious death of a person to be prosecuted by his personal representative. The right is exclusive and no one other than a personal representative has the legal capacity to maintain such an action and a settlement made by a personal representative is binding upon the beneficiaries.”

As Mary Alice Wheeler was not the personal representative of her deceased son, she could not maintain this action. The fact that her ultimate claim was against Hartford under its uninsured-motorist coverage contract did not justify her proceeding in her individual capacity.

Contrary to the requirements of KRS 411.130, when a personal representative refuses to bring an action, the beneficiary may do so in her own name. Harris v. Rex Coal Company, 177 Ky. 630, 197 S.W. 1075 (1917). Mary Alice, in claiming a right to bring this action in her own name, relies on Joe’s refusal to bring an action in his fiduciary capacity. Emphasis is placed on the affidavit that Joe filed in this record.

Correlating this affidavit with the facts, this court is persuaded that the administrator’s refusal to file the action requested by Mary Alice did not constitute a refusal to proceed on behalf of the estate of their son. Prior to that date, April 13,1973, Joe, as administrator of his son’s estate, had entered into a settlement agreement with Royal Globe, collected $12,500 on behalf of the estate, and executed a general release. The requested action was tantamount to proceeding as administrator in an effort to collect for the benefit of Mary Alice, and not the estate of Gregory Wheeler, sums which she asserted were due her from Hartford. Finally, Mary Alice had no cause of action to prosecute. The release that Joe had executed, with her knowledge, on April 13, 1973, was binding on her as one of the heirs or beneficiaries of the estate of Joseph Gregory Wheeler. Louisville & N.R. Company v. Turner, 290 Ky. 602, 162 S.W.2d 219 (1942).

The judgment is affirmed.

All concur.