author: McKAY, Justice.

text:
    BELGER CARTAGE SERVICE, INC., Appellant, v. SIMON LEASING COMPANY et al., Appellees.
    No. 869.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 8, 1976.

      David Carlock, Williford & Carloek, Dallas, for appellant.
    E. D. Forbes, Dallas, for appellees.
   McKAY, Justice.

This appeal arises from a suit for breach of contract. Appellant, Belger Cartage Service, Inc. appeals from a judgment awarding damages of $4,406.88 to Jack Simon and Sons and Simon Leasing Company, appellees.

During the period of February 10,1970 to August 13, 1970, appellees leased four trucks to appellants. Four separate lease contracts were executed, one for each truck, but the agreements were basically identical. The leases provided for a duration of one year from their respective dates and monthly thereafter unless cancelled by 30-days’ written notice. The monthly rental payments were computed by applying a fixed rate per mile to the actual mileage driven by the respective trucks each month.

In August of 1971, after all four leases had been in effect for at least one year, disputes arose between appellant and appel-lees concerning proper performance under the lease agreements. The facts concerning these disputes will be further discussed insofar as necessary to this opinion. Subsequently, appellees filed suit in district court alleging breach of contract by appellant and seeking monies allegedly due under the leases and damages. The suit was tried before a jury and the jury found that appellant owed appellees $2,434.41 under the contracts for services rendered prior to August 31,1971, which sum should be offset against $2,500.00 owed by appellees to appellant. The jury also found that appellees should receive $4,472.47 as compensation for “down time” (the period the trucks were not in operation) of their trucks for 30 days. The jury’s verdict resulted in a net judgment for appellees of $4,406.88.

Appellant’s first point reads as follows:

“The district court erred in submitting Special Issues Number Three and Number Four to the jury and in entering judgment on Special Issue Number Three for the reason that Plaintiff Simon was not entitled to said submission or to judgment on same as a matter of law.”

In subpoints under this point, appellant contends that appellees terminated the contracts and that appellees failed to mitigate their damages. This point is multifarious and general and is not entitled to our consideration. Rule 418, T.R.C.P. Following a liberal policy concerning the briefing rules, however, we will consider the point.

In subpoint one appellant contends that appellees terminated the contracts and that such contention is germane to portions of appellant’s motion for instructed verdict, objections to the court’s charge, motion for judgment non obstante veredicto, motion for new trial, and amended motion for new trial. From looking at the foregoing instruments and the brief, it appears that appellant is arguing that a telegram sent by appellees to appellant on August 31, 1971, establishes as a matter of law that appel-lees, not appellant, breached the contracts.

The telegram from appellees was as follows:

“Unit 270 and trailer 101 reported back to Dallas. Being stopped several times by your people or police worried him. I am ready to carry on dispatch with another driver at your direction if you so advise. Units 280-277-270- and 258 are still available for dispatch for next thirty days with proof of insurance coverage for units. You have already terminated our leases by several breachfm (sic). I am hereby advising you that I do not elect to renew our leases on units 280-277-270-258, effective this date August 31, 1971.”

Clause eleven of each of the four lease agreements provides, “It is agreed that this agreement shall continue for one year from the date of this agreement and monthly thereafter, unless cancelled by thirty (30) days written notice by either party.” The telegram in question appears to be an election on the part of appellees to give thirty-days notice of cancellation under clause eleven. The telegram does not establish as a matter of law that appellees breached the contract.

In subpoint two under point one appellant contends that appellees failed to attempt to mitigate or diminish their damages and, therefore, were not entitled to submission of issues pertaining to damages or to judgment on same. This subpoint is improperly directed to the submission of appellees’ damage issues. Rather than complaining of the submission of appellees’ damage issues, appellant should have requested the submission of issues concerning mitigation of damages and has, therefore, waived any complaint on those grounds. Rule 279, T.R.C.P. Moreover, the only evidence in the record concerning mitigation of damages is the testimony of Jack Simon, one of the appellees, to the effect that he made no efforts to re-let the trucks subsequent to August 31,1971. Appellant failed to discharge the burden of showing that appellees could have minimized or mitigated their damages to some extent. LTV Aerospace Corporation v. Bateman, 492 S.W.2d 703 (Tex.Civ.App.—Tyler, 1973, writ ref’d, n. r. e.).

Accordingly, appellant’s first point is overruled.

By point two appellant contends that the jury’s answer to Special Issue No. 3 is supported by factually insufficient evidence. Appellant argues that the evidence of ap-pellees’ loss of profits for the thirty-day period of August 31,1971, to September 31, 1971, consisted of speculative opinion and was too weak to sustain the award of $4,472.47 given by the jury.

Appellant asserts that point two is germane to objections made during the trial to the testimony of Jack Simon, one of the appellees, concerning lost profits for the thirty-day period in question. None of appellant’s objections, however, stated sufficient legal grounds to aid this court in considering appellant’s point two.

To recover loss of profits appellees had the burden of showing the amount of the loss by competent evidence with reasonable certainty. Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938). In General Supply and Equipment Co., Inc. v. Phillips, 490 S.W.2d 913 (Tex.Civ.App.—Tyler, 1972, writ ref’d, n. r. e.), this court stated, “It is not necessary that profits should be susceptible of exact calculation; it is sufficient that there be data from which they may be ascertained with a reasonable degree of certainty and exactness.” In considering appellant’s second point, it is our duty to examine all of the evidence and, if we find the verdict to be clearly unjust, to remand for a new trial. In re King’s Estate, 150 Tex. 662, 244 3.W.2d 660 (1951).

The testimony of Jack Simon as to profits lost by appellees subsequent to August 31, 1971, was based on a projection of the mileage recorded on the four trucks during the last two weeks of their use by appellant. Appellant does not contest the use of the two-week period as a basis for the projection of appellees’ future lost profits. Rather, appellant argues that Jack Simon made errors in the computation of the figures presented to the jury concerning lost profits. The evidence shows, however, that in computing lost profits, appellees deducted all expenses incurred in operation and maintenance of the trucks. The jury was given figures on each truck showing the net profit per mile for each vehicle together with the mileage recorded during the two-week period. This evidence gave the jury sufficient data from which to compute the lost profits of appellees for the thirty-day period. After careful examination of all of the evidence, we are of the opinion that the evidence was competent and of sufficient certainty to support the jury’s award of $4,472.47. Appellant’s second point is overruled.

In its third point appellant asserts error on the part of the trial court in overruling appellant’s amended motion for new trial because appellees failed to request special issues to determine which party terminated the lease agreements. Appellant did not request the submission of any issues or instructions and the only objection made by appellant to the charge of the court was to the submission of issues three and four “for the reason that these issues were not raised by credible evidence and for the further reason that under no theory of law is Plaintiff entitled to a recovery under said grounds.”

Appellant’s objection to the court’s charge is found in the statement of facts and not in the transcript. Furthermore, the statement of facts is not signed by the trial judge. Appellant has failed to comply with Rules 272 and 274, T.R.C.P. In addition, Rule 279, T.R.C.P., provides:

“Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party.” (Emphasis added.)

Appellant made no objection to the failure to submit issues inquiring as to which party terminated or breached the contract and the objection actually made by appellant is insufficient to raise the point on appeal. For the reasons stated appellant’s complaint made by its third point was waived, and the point is overruled.

The judgment of the trial court is affirmed.

      . “SPECIAL ISSUE NO. 3: What amount of money, if any, do you find from a preponderance of the evidence will fairly compensate the Plaintiffs for ‘down time’ of their trucks for thirty (30) days?
      Answer in dollars and cents, if any.
      Answer: $4,472.47
      SPECIAL ISSUE NO. 4: What amount of money, if any, do you find from a preponderance of the evidence will fairly compensate the Plaintiffs for ‘down time’ of their trucks for one hundred and twenty days (120)?
      Answer in dollars and cents, if any.
      Answer: None, except expressed in Special Issue # 3.”


source: Caselaw Access Project

author: .SPURLOCK, Justice.

license: Public Domain

text:
    Alfred MANZ et ux., Appellants, v. P. R. JOHNSON et ux., Appellees.
    No. 17666.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 9, 1976.

      Rohne & Hoodenpyle, and Jerry R. Hoo-denpyle, Arlington, for appellants.
    W. B. Woodruff, Jr., Decatur, for appel-lees.
   OPINION

.SPURLOCK, Justice.

Our judgment rendered in the above numbered and entitled cause dated December 12, 1975, is hereby vacated and set aside. Our opinion of that date is withdrawn. The following opinion is substituted therefor.

This is an appeal from a summary judgment granted in favor of the defendants, P. R. Johnson and wife, Minnie H. Johnson, in a suit brought by plaintiffs, Alfred Manz, and wife, Esther L. Manz, to foreclose an alleged equitable lien. Plaintiffs claimed a purchase money lien against certain realty against the defendants, who were subsequent purchasers of the realty involved.

In November, 1972, the plaintiffs conveyed a lot to Mr. and Mrs. Robert Ross, by general warranty deed. No vendor’s lien was reserved in the deed and no lien was recorded. The terms of the written contract of sale between Albert Manz and P. R. Johnson provided that the purchase price of the property was $1,500.00, that $40.00 had been paid as a down payment and the bal-anee of the purchase price was payable at the rate of $40.00 a month, bearing interest at 8% per annum. The contract described the real estate here involved and the seller further obligated himself to deliver to the buyer a general warranty deed to said property. After this sale plaintiffs observed a newspaper advertisement advertising the lot for sale. Mr. Manz proceeded to the lot and met the defendant, P. R. Johnson, on the premises. Plaintiff, Manz, informed Johnson at that time that Ross owed him the $1,500.00 purchase price money for the sale of the lot and that the first monthly payment was made by check which was hot. The defendant Johnson told plaintiff that he was buying the property and that there would be a “closing” that month and suggested that plaintiff Manz be present at the title company for the closing. On December 29, 1972, plaintiff attended the closing at the title company’s office. Immediately prior to the closing and in the title company’s office and in the presence of the defendant Johnson, the Rosses, and a representative of the title company, plaintiff, Alfred Manz, again advised all parties that he had not been paid the balance of the purchase price money for the sale of the lot to the Rosses. Ross, at that time, in the presence of all parties, admitted that he owed the purchase price money to Manz and said he would “settle up”. The representative of the title company stated that she could find no recorded encumbrance and proceeded to issue a title policy and delivered a deed to the Johnsons, executed by the Rosses, and made out a check to the Rosses in the amount of approximately $2,500.00.

The above facts are reflected by the depositions and are without dispute.

When Manz kept demanding his money, Ross told him to follow him to the bank and he would get his money. Manz followed Ross on the purported trip to the bank but Ross sped up and disappeared. No one has been able to find him since. He was originally a party to this suit but was non-suited because he could not be found for service of process upon him.

The Johnsons filed their motion for summary judgment contending that (1) there is no lien enforceable as against them because they are not indebted to the Manzes, and (2) even if there was an equitable lien favoring the Manzes, it is subject in this case to certain equitable defenses, including waiver, estoppel, and the Johnsons were bona fide purchasers without notice. The trial court granted the motion for summary judgment on the basis of the pleadings and the depositions of Mr. Manz, Mr. Johnson and Mrs. Gresham, the title company representative.

We reverse and remand for a new trial.

Appellants’ second point maintains that the granting of the summary judgment was error because there was a material fact issue as to whether an equitable lien was created in their favor due to the unpaid purchase money.

The Johnsons do not contend either in their motion for summary judgment nor in their brief that an equitable lien never existed in favor of plaintiffs as against the Rosses. We therefore accept, as far as this appeal is concerned, the statement made in appellants’ brief that an equitable lien was created as between appellants and the Ross-es securing the original purchase price of $1,500.00. Rule 419, T.R.C.P.

The real question under this point is whether the equitable purchase money lien in question can be foreclosed against the defendants under the facts in this case. Rule 418, T.R.C.P. In addressing that question we should also consider appellants’ point number three, restated as follows: Was there a material fact question as to whether or not the appellees were bona fide purchasers for value without notice, i. e., did they take the property subject to the lien if they knew the Rosses still owed the original purchase money to the Manzes?

Cases involving equitable liens are rather infrequent but the remedy has been recognized in this state for over a century. As a general rule, “ . . .a vendor has a lien upon the thing sold for the purchase money, without any special agreement for that purpose; . . the vendee holds in trust for the vendor until the purchase money is paid; and . . . this trust attaches to the land or thing sold, and follows it into the hands of subsequent purchasers with notice.” McLain v. Quinn, 4 S.W.2d 121 (Fort Worth Civ.App., 1928, no writ hist.) citing Briscoe v. Bronaugh, 1 Tex. 326 (1846). See also United States v. Morrison, 247 F.2d 285 (5th Cir., 1957).

We hold that, given the foregoing, there was a question of material fact as to whether Mr. Johnson qualified as a bona fide purchaser without notice. Since the deposition evidence does present a serious question with regard to a material issue of fact, the motion for summary judgment must be resolved against movants. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

Points of error numbers two and three are sustained.

Appellants’ fourth point of error complains of alleged error by the trial court in granting a summary judgment since a material fact question existed as to whether or not the equitable lien was nullified by the actions of Mr. Manz subsequent to its origination.

We sustain the fourth point of error.

In most cases where an equitable lien has been found nullified by the actions of its holder, it has been held that such person waived any right to foreclose the lien due to his actions under the facts of the particular case. Irvin v. Garner, 50 Tex. 48 (1878); Frye v. Frye, 239 S.W.2d 406 (Waco Civ.App., 1951, refused). Waiver has been defined as an intentional release, relinquishment, or surrender of a right that is known to the party making it. The Praetorians v. Strickland, 66 S.W.2d 686 (Tex.Com.App., 1933). As a general rule, the existence of waiver in a particular case is a question of fact. Adams v. A. A. Paton & Co., 173 S.W. 546 (Texarkana Civ.App., 1915, no writ hist.); Futrell v. Martin, 40 S.W.2d 946 (Texarkana Civ.App., 1931, no writ hist.). However, waiver becomes a question of law where the facts and circumstances are admitted or clearly established. Smith v. Northwest National Bank, 403 S.W.2d 158 (Texarkana Civ.App., 1966, ref., n.r.e.).

It is our opinion that the deposition testimony as a whole and particularly the deposition testimony of Manz discloses that a fact issue is presented on the issue of waiver.

Mr. Manz testified by way of deposition that he had made no agreement with anyone to release or forego any claim on the property for the $1,500.00 purchase price money. He testified that he told Mr. Johnson that he wanted his $1,500.00 and did not care whether he paid it, the title company paid it, or Ross paid it. He thought the title company would take care of it but when they said they could not do it he did not care where the money came from. Mr. Johnson was buying the property and in the long-run he was the one who would be trying to pay for it. Manz testified that his claim was against the property and he would hold that claim against the property until such time that someone paid for it, whether it was Ross or whoever.

The fact that Manz attempted to follow Ross to the bank for the cashing of the check in order that he might get his money is not a waiver as defined above. He had no intention of releasing his lien until someone paid him the balance of the purchase price.

We hold that the Johnsons, as movants, failed to meet the burden of proof imposed upon them by law, in that they failed to establish that there were no issues of fact and that the Johnsons were entitled to judgment as a matter of law.

We have also examined the defenses of laches, estoppel, extinguishment, and payment, and find them inapplicable to the facts of this case.

The fourth point of error is sustained.

We have considered appellants’ point of error number one which is a general complaint of the trial court’s error in granting summary judgment because “several issues of material fact” exist. Since all of the points of error were briefed together and the argument confined itself solely to the complaints more specifically enumerated in subsequent points, we find point of error number one to be surplusage.

The judgment of the trial court is reversed and the case remanded for trial.


author: PALMORE, Justice.

text:
    COLUMBIA GAS OF KENTUCKY, INC., Appellant, v. Everett MAYNARD et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 14, 1975.
    Rehearing Denied Feb. 20, 1976.

      J. K. Wells, Wells, Porter & Schmitt, Paintsville, E. D. Gerwig, Columbus, Ohio, for appellant.
    R. Coleman Endicott, Lexington, for ap-pellees.
   PALMORE, Justice.

Columbia Gas of Kentucky, Inc., appeals from a judgment entered pursuant to a jury verdict awarding Everett Maynard and various members of his household a total recovery of $16,172.00 for the destruction by fire of his house and outbuildings, together with their contents. The questions before us on the appeal are confined to the matter of damages and sufficiency of evidence in that respect.

The house was built in 1956 and was destroyed in 1971. It consisted of two stories, with four rooms and a utility room downstairs and two rooms upstairs. Excluding porches, its outside dimensions were 28'x26'. It had pine floors, an asbestos shingle exterior, and a tin roof. There was no plumbing and no central heating system. After the fire a new house was built at a cost of $17,000. During the interim of some 10 months the family lived in part of a grocery store owned and operated by Maynard. $1172 of the judgment represented this item of recovery. The remaining $15,-000 was awarded for loss of the house, a wash house, furniture, clothing, and other personal property.

A most unusual aspect of the controversy is that Maynard neither owned the land on which the house was located nor had any rental or other kind of contract entitling him either to possess or to purchase it. Ordinarily, of course, a permanent structure becomes a part of the real estate, but in this instance the landowner disclaimed any ownership interest in the building, so they must be considered as moveable personal property.

Maynard and his only other valuation witness (the friendly landowner) expressed opinions as to the “fair market value” or “fair and reasonable market value” of the house at the time it was destroyed. The term “market value” connotes, of course, sale value as distinct from intrinsic value or value to some particular person. On that basis, the market value of this particular building was the price it would have brought if sold by a willing seller to a willing .buyer, separately from the land. However, neither witness gave any testimony that would qualify him to express an opinion as to the value of the buildings if sold separately from the land on which they were situated. Hence the appellant’s motions to strike their testimony relating to the value of the buildings should have been granted. The evidence had no probative value and therefore was insufficient to support a verdict.

Actually, according to previous decisions of this court it appears that “when a building has been destroyed by fire the measure of damages is not the market value of the building destroyed, because a building apart from the ground on which it stands cannot be said to have a market value, but is the fair and reasonable value of the building destroyed as it was when and where destroyed.” Prestonsburg Superior Oil Gas Co. v. Vance, 215 Ky. 77, 284 S.W. 405, 408, 47 A.L.R. 483 (1926). See also Kentucky & West Virginia Power Co. v. Kilburn, 304 Ky. 635, 201 S.W.2d 896, 900 (1947), and Louisville & Nashville R. Co. v. Howe, Ky., 243 S.W.2d 905, 908 (1951). We are not satisfied, and do not hold, that as against market value this is the proper criterion of recovery for the destruction of a building situated on real estate in which the owner of the building has no more interest than a tenancy at will, but even if it were, the valuation testimony produced in this case was not premised upon it and would not have supported an instruction on that basis.

Maynard himself gave the only evidence concerning the value of the various contents of the building. His experience in buying and selling similar property probably qualified him to express an opinion as to their market values (that being the criterion stated in the instructions), but he admitted that his estimates were based only on what the various items were worth to him, as follows:

“Q. 438 I noticed this morning when Mr. Endicott was asking you about these figures, he asked you if this was what it was worth to you. I believe that’s what these figures are, isn’t it?
“A. Yeah.
“Q. 439 How much the stuff was worth to you?
“A. That’s right.
“Q. 440 And that’s the full basis of these figures?
“A. What it’s worth to me.
“Q. 441 What it’s worth to you, not what it’s worth to the jury, not what it’s worth to me, or anybody else, but just what it’s worth to you?
“A. That’s right. It might not be worth two cents to you.”

The measures of damages stated in the trial court’s instructions to the jury were (a) “reasonable market value of his home, and wash house and contents thereof” and (b) “such reasonable amount, if any, you find was necessary to provide them sufficient housing facilities from November 8, 1971 to August 30, 1972,” neither award to exceed the amount demanded on that account in the complaint. Market value was defined as “the price which the building and contents would have brought, if offered by one who desired to sell, -and was not compelled to do so, and was bought by one who desired to purchase, but was not compelled to have it.”

By separate instruction the jury was advised as follows:

“Plaintiff, Everett Maynard, did not own the land his house and wash house set on [sic], and did not have a legal and forcibly [sic] right to keep them there, except at the will and sufferance of the land owner, Edgar Castle, who could tell him to remove them on a thirty-day notice, if he so desired. In determining a fair market value of the house, you will take into consideration that the purchaser would have known that he could be compelled by the land owner to remove the house and wash house on a thirty-day notice, to some other location.”

Since the instructions relating to the building and contents were given substantially as offered by the defendant, which is the appealing party, we cannot consider whether they set forth a proper measure or measures of damages, but are confined to the narrow issue of whether the evidence was sufficient to support recovery under any valid theory. Cf. Com., Dept. of Highways v. Merrill, Ky., 383 S.W.2d 327, 331 (1964); Clifton Land Co. v. Reister, 186 Ky. 155, 216 S.W. 342, 343 (1919); Dickerson v. Martin, Ky., 450 S.W.2d 520, 523-524 (1970). That issue was preserved for review by the appellant’s motion for a directed verdict on the ground that the plaintiffs had offered no competent evidence on damages.

Regardless of the kind of property or type of proceeding, when the criterion of recovery is fair market value, what the property may have been worth to the owner is irrelevant. Cf. Com., Dept. of Highways v. Roberts, Ky., 390 S.W.2d 155, 158 (1965). So, if market value had been the correct measure of damages for all of the property lost by Maynard, his evidence of what it was worth to him would not have raised a submissible issue of damages. However, this court has recognized that market value is not a fair basis of compensation for the loss of “household goods and wearing apparel,” the proper measure being “the actual value in money ... to the owner for the purpose for which they were intended and used . . . excluding sentimental or fanciful value which for any reason he [the owner] might place upon them.” Davis v. Rhodes, 206 Ky. 340, 266 S.W. 1091 (1925).

Under this rule of damages we think that the owner’s estimate of what the items were worth to him, unless so obviously preposterous as to be devoid of probative value, is enough to support an award by a properly instructed jury. That the award must represent what the property was actually worth to him in money, excluding any sentimental or fanciful value that for any reason he might place upon it, is a qualification to be incorporated in the instructions.

We conclude from the foregoing analysis that Maynard’s testimony was sufficient to raise an issue with respect to the value of his household goods and wearing apparel. It was therefore sufficient to defeat the gas company’s motion for a directed verdict. It did not, of course, support any of the instructions actually given, but as we have pointed out, the case is not before us on objections to the instructions pertaining to property values. If a plaintiff’s evidence is sufficient to support a proper instruction under any theory fairly encompassed by the pleadings, a motion for a directed verdict by the defendant is not sustainable. “A party may plead much and prove less and yet be entitled to go to the jury on the issues established by his proof.” Watson v. Bailey, 279 Ky. 671, 132 S.W.2d 53, 55 (1939). See also Scudamore v. Horton, Ky., 426 S.W.2d 142, 146 (1968). In short, when the plaintiff has enough evidence to support a verdict in his favor on any issue, the appropriate procedural means for excluding other issues from the jury’s consideration is by objection to any and all instructions that depend upon or purport to submit those issues.

The gas company did specifically object to the instruction authorizing an award of “such reasonable amount, if any, you find was necessary to provide them sufficient housing facilities from November 8,1971 to August 30, 1972, not to exceed $15.00 per day,” etc. The grounds of the objection were that “this, is not a proper element of recoverable damages and because there was a complete absence of evidence of the amount reasonably necessary for this purpose.”

In the instance of real estate, an owner-occupant who is wrongfully forced to vacate the premises for a temporary period of time is entitled to damages measured by “the diminution in the value of the use of the property” during that time. Adams Construction Company v. Bentley, Ky., 335 S.W.2d 912, 913 (1960). As we have said in the beginning, however, a house cannot be considered as real estate while under an ownership different from that of the land on which it was situated. The closest analogy to it is a house trailer or “mobile home.”

It has been held that damages for the loss of a commercial vehicle may include compensation for the loss of its use during such time as was reasonably necessary for the owner to replace it, and that reasonable rental value is admissible as a relevant factor in determining the value of such “use.” Pope’s Adm’r v. Terrill, 308 Ky. 263, 214 S.W.2d 276, 277-278 (1948). Compare also Adams Construction Company v. Bentley, Ky., 335 S.W.2d 912, 913 (1960), supra. We consider that the same principle should apply to the loss of a home owned and occupied by one who has no permanent interest in the land on which it is situated. Hence the instruction given on that issue not only was erroneous, but had no evidentiary support. The gas company is correct also in its contention that the damages for loss of use must be confined to a reasonable rather than the actual time required for replacing the structure. Howard v. Adams, Ky., 246 S.W.2d 1002, 1003 (1952); Towles v. Perkins, 266 Ky. 25, 98 S.W.2d 27, 28 (1936).

The judgment is reversed with directions for a new trial limited to the issues of damages. .

All concur.


author: CULLEN, Commissioner.

text:
    Wilburn McMICHAEL, Appellant, v. AMERICAN RED CROSS, Appellee.
    Court of Appeals of Kentucky.
    Dec. 12, 1975.

      Joe G. Leibson, Louisville, for appellant.
    Lively M. Wilson, Stites, McElwain & Fowler, Louisville, for appellee.
   CULLEN, Commissioner.

This is an appeal from a judgment of the Jefferson Circuit Court dismissing the complaint of the plaintiff, Wilburn McMichael, in accordance with a directed verdict granted for the defendant, American Red Cross. The essential facts were stipulated by the parties. While hospitalized for severe burns at St. Anthony’s Hospital, McMichael received whole blood and plasma from five different donors who had been screened by the best available manner by the American Red Cross, which furnished the blood in a sterile condition to the hospital for a service charge of $9.95 per unit. Forty-seven days later, which is within the normal incubation period, McMichael was diagnosed as having serum hepatitis.

McMichael brought the action to recover for the damages he suffered due to his encounter with this illness based on alternative theories of breach of implied warranty of merchantability and fitness under the Uniform Commercial Code, KRS 355.2-314 and 355.2-315, and of strict liability in tort as set out in section 402A of the American Law Institute’s Restatement of Torts 2nd. Although he argues on this appeal that he also made a claim of ordinary negligence, the record shows that negligence was not pleaded.

In his opening statement counsel for McMichael stated the stipulated facts and in addition stated that he would have witnesses to prove causation. At the conclusion of the opening statement the court directed a verdict in favor of the defendant, relying upon KRS 139.125 which states “the procurement, processing, distribution or use of whole blood, plasma, blood products, blood derivatives and other human tissues . is declared not to be a sale . . ” The court held that a sale is essential to a cause of action under strict liability or under an implied warranty, and under the broad public policy expressed in the statute the Red Cross cannot be held liable in this sort of situation.

McMichael contends on this appeal that KRS 139.125 is not applicable to the present controversy due to the fact that it is compiled in the chapter of the statutes relating to sales and use taxes and therefore applies only to tax liabilities. Failing that contention, McMichael argues that the statute is unconstitutional under Saylor v. Hall, Ky., 497 S.W.2d 218 (1973).

We do not find it necessary to discuss the applicability or constitutionality of the statute, or the questions of whether, without regard to the statute, the transfer of donor blood by Red Cross to a hospital for a service fee is a sale under the Uniform Commercial Code, KRS 355.2-314 and 355-2-315, so as to give rise to an implied warranty, and whether Red Cross is a seller under Section 402A of the Restatement of Torts 2nd so as to be subject to strict tort liability. Our conclusion is that even if the statute be inapplicable or unconstitutional, and even if the transfer be deemed a sale and Red Cross a seller, the directed verdict in the instant case was proper because under the stipulated facts there were no methods available at the time in question by which hepatitis virus could effectively be excluded from blood or the presence of the virus determined. Therefore, the blood involved in the instant case, to the extent it may have contained hepatitis virus, was unavoidably unsafe as discussed in Comment (k) under Section 402A of the Restatement and for that reason it was not unreasonably dangerous within the terms of Section 402A and it did not fail to be fit within the terms of the warranties provided for in the Uniform Commercial Code, KRS 355.2-314 and 355.2-315.

Comment (k) under Section '402A reads:

“Unavoidably unsafe products. There are some products which in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of the lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.”

Hereinafter noted are decisions from other jurisdictions on the question of unavoidable unsafeness under Comment (k), with their reasoning.

In Jackson v. Muhlenberg Hospital, 96 N.J.Super. 314, 232 A.2d 879 (1967), the court said:

“One underlying assumption in most if not all strict products liability cases is that the producer or an employee must have made a mistake in either the design, production or inspection of the product, or it would not have been defective and dangerous. In effect the courts have taken judicial notice of this and have relieved the injured party of the impossible burden of proving where the mistake occurred. Certainly a painstaking effort to avoid a defect does not excuse and should not excuse the error of oversight which has actually occurred. Where, as here, the harmful agent may be present without any error or oversight, the conclusive presumption of fault on the part of the producer is inapplicable. The producer is in no position to know or control the condition and there is no implied representation that the blood is free of the virus. * * * This, then, is a highly useful and desirable product attended with a known but reasonable risk. The marketing and use are justified. The blood is not defective or unreasonably dangerous.”

That court later (53 N.J. 138, 249 A.2d 65 (1969) reversed its position somewhat due to the “wholly inadequate record” before it. The court did not reverse on the merits, however, but merely requested that a “detailed testimony as to the nature of the defendants’ operations” be made along with expert testimony as to any tests to ascertain the presence of the hepatitis virus in the blood, relevant economic factors, and respective incidences of hepatitis in commercial and noncommercial blood.

Brody v. Overlook Hospital, 127 N.J.Super. 331, 317 A.2d 392 (1974), which reversed that court’s earlier decision in a case by the same name, concluded that blood should be considered “unavoidably unsafe” and thus not “unreasonably dangerous” or a proper subject for the doctrine of strict liability. The court opined that the view of Comment (k) in Cunningham (hereinafter mentioned) was far too narrow in limiting the applicable items to those that are “not impure”. The court further distinguished Russell (also hereinafter mentioned) because the majority opinion did not refer to 402A, it being discussed only in the concurring opinion by Justice Roberts.

Although decided essentially due to a statute recently enacted in that state, the court in Hines v. St. Joseph’s Hosp., 86 N.M. 763, 527 P.2d 1075 (1974), severely criticized Cunningham in reference to its rationale dealing with Comment (k). After quoting that portion of the comment dealing with new or experimental drugs which states in part that “there can be no assurance- of safety, or perhaps even of purity of ingredients,” the court said

“Although blood cannot be considered a ‘new or experimental’ drug it is new in the sense that no adequate test had been devised to detect the hepatitis virus and even if detected, there is no process to destroy it without damage to the blood. More importantly the Cunningham court, by categorically limiting the applicability of the exception to ‘pure’ products stultified the flexible policy behind the exception. Instead of balancing the dangers of a particular product against its benefits, Cunningham would categorize a large segment of products as vulnerable to strict liability without regard to social benefits.”

A contrary view had been taken by Justice Roberts in his concurring opinion in Community Blood Bank v. Russell, Fla., 196 So.2d 115 (1967). In regard to Comment (k) Justice Roberts stated:

. . the seller of a product intended for human consumption is liable for injurious consequences resulting from the consumption of a defective or adulterated product, even though it was at the time of the sale and consumption of such product practically or scientifically impossible to discover the defect in or adulteration of such product.
“There’is a clear distinction between a product which is not adulterated — one which meets all the standards established for a particular product but which is attended with a known risk to the consumer — and a product which is, in fact, adulterated and defective — that is, which does not meet the standards established for this particular product — and which would, because of such unknown and undetectable defect, produce a harmful effect upon any consumer thereof.”

Cunningham v. MacNeal Memorial Hospital, 47 Ill.2d 443, 266 N.E.2d 897 (1970), decided to follow the view of Justice Roberts. After citing extensively from the Russell concurring opinion the court stated

“To allow a defense to strict liability on the ground that there is no way, either practical or theoretical, for a defendant to ascertain the existence of impurities in his product would be to emasculate the doctrine and in a very real sense would signal a return to a negligence theory. * * * If the article left the defendant’s control in a dangerously unsafe condition, the defendant is liable whether or not he was at fault in creating that condition or in failing to discover and eliminate it.”

The court continued in the same vein by pointing out that the Comment (k) exception applied only to “pure” items or, in the words of the court, “not impure and which, even if properly prepared, inherently involve substantial risk of injury to the user.”

The Colorado court in Schmaltz v. St. Luke’s Hospital, Colo.App., 521 P.2d 787 (1974), after acknowledging that there exist certain products that present a justifiable risk, concluded that Comment (k) should be construed strictly and blood should not be included among the exceptions.

After weighing the merits of the conflicting views above noted we have concluded that under the stipulated facts of the instant case the blood in question, in respect to the presence of hepatitis virus, was unavoidably unsafe and thus was not unreasonably dangerous nor unfit.

We recognize that the concept of unavoidable unsafeness was developed only as an exception to strict tort liability under Section 402A as an interpretation of the term “unreasonably dangerous” as used in that section, and has not in terms been utilized by any court as a basis for an exception to liability under the implied warranty of fitness provided for in the Uniform Commercial Code. Nevertheless, we view strict liability under Section 402A and implied-warranty liability under the Uniform Commercial Code as being expressions of a single basic public policy as to liability for defective products. If the policy as to Section 402A is that unavoidable unsafeness of the character involved in the blood in the instant case is a basis for denying strict liability, it would seem that the same policy should prevail with respect to liability under implied warranty.

Prosser,. in The Law of Torts (4th ed. 1971), sec. 99, pages 658 to 662, in discussing strict liability as to unsafe products, treats the policy considerations as being the same “whether on warranty or in tort,” and he says that in either case there must “be something wrong with the product which makes it unreasonably dangerous to those who come in contact with it.” Further, that the prevailing interpretation of “defective” is that “the product does not meet the reasonable expectations of the ordinary consumer as to its safety,” which “amounts to saying that if the seller knew of the condition he would be negligent in marketing the product.” He questions whether there should be liability on the seller under any theory, with respect to products that are unavoidably unsafe, such as the vaccine for the Pasteur treatment for rabies, and he refers without criticism to the cases which have held that blood containing hepatitis virus is unavoidably unsafe.

In Balkowitsch v. Minneapolis War Memorial Blood Bank, Inc., 270 Minn. 151, 132 N.W.2d 805 at 811 (1965), the court said:

“ * * * Moreover, it seems to us that under the facts in the case before us it would be unrealistic to hold that there is an implied warranty as to qualities of fitness of human blood on which no medical or scientific information can be acquired and in respect to which plaintiff’s physician has the same information, knowledge, and experience.”

We refer again to Jackson v. Muhlenberg Hospital, 96 N.J.Super. 314, 232 A.2d 879 (1967), its expression of the view that the concept of strict liability, whether in tort or on implied warranty, rests in substantial part on the theory of the existence of an implied representation by the seller that the product is safe, and its holding that in the case of blood containing hepatitis virus, where the producer could not know or control the condition, “there is no implied representation that the blood is free of the virus.”

Our ultimate conclusion is that the trial court properly directed a verdict for Red Cross, but for the reasons herein stated rather than the reasons relied on by the trial court.

The judgment is affirmed.

All concur.


text:
    Drexell DAVIS, Treasurer of the Commonwealth of Kentucky, as Custodian of the Uninsured Employers’ Fund, Appellant, v. John COMER et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 12, 1975.

      Ed W. Hancock, Atty. Gen., Frankfort, Lloyd R. Edens, Thomas A. Ainley, Asst. Attys. Gen., Frankfort, for appellant.
    C. Kilmer Combs, Kelsey E. Friend, Law Firm, Pikeville, William 0. Windchy, Louisville, Earl M. Cornett, Dept, of Labor, Frankfort, for appellees.
   PALMORE, Justice.

This is a workmen’s compensation case in which the employer’s compensation insurance had expired before the date of the disability out of which the workman’s claim arose. The question is whether the claimant’s failure to make the Uninsured Employers’ Fund (KRS 342.760) a party to the proceeding before the Workmen’s Compensation Board is a defense to his claim asserted against it after the Board had entered a final award. We affirm the judgment of the circuit court to the effect that it is not.

It was stipulated in the circuit court action that on January 8, 1973, the claimant became permanently and totally disabled as the result of pneumoconiosis arising out of and in the course of his employment as a coal miner, the last injurious exposure having occurred on that date incident to his employment with Miller & Tackett Trucking Company; that the employer and employe were working under the Workmen’s Compensation Act; that the employer was a secured employer under KRS 342.340 until October 15, 1972; and that after the latter date the employer continued to operate under the Act but did not carry insurance coverage or qualify as a self-insurer as required by KRS 342.340.

The claimant’s application for benefits was filed with the Board on March 21,1973. The employer and the Special Fund (KRS 342.120) were named as defendants, and each filed a notice of resistance. On May 21, 1973, pursuant to a motion by the Special Fund, the Director of the Board filed a certificate that the employer had accepted the provisions ’of the Act but that no insurance coverage was in effect on January 8, 1973. During the ensuing months evidence on the merits of the claim was adduced by both the claimant and the employer, following which the case was briefed by the claimant and the Special Fund, but not by the employer. On June 17, 1974, the Board entered an opinion and order awarding compensation on the basis of permanent total disability and apportioning 75% against the Special Fund and 25% against the employer.

Two months later, in August of 1974, the claimant filed with the Board and served upon the Uninsured Employers’ Fund a motion asking that the Fund be made a party defendant and that it be required to make the payments theretofore awarded against the employer. This motion was vigorously resisted and eventually was denied by an opinion and order of the Board entered on November 18, 1974. The claimant then filed an action in the circuit court against the Uninsured Employers’ Fund, the Board, and the parties named as defendants in the compensation proceeding, demanding that the Uninsured Employers’ Fund be required to pay. The Uninsured Employers’ Fund now appeals from a judgment granting the relief demanded.

The circuit court action was so pleaded by the claimant as to present an appeal under KRS 342.285 and an original proceeding to enforce the award. The employer having failed to answer, a default judgment was taken against it, a writ of execution was issued and returned nulla, bona, and the trial court thereafter entered its judgment against the Uninsured Employers’ Fund.

The Uninsured Employers’ Fund’s contention in this court that under the principle of Traveler’s Insurance Company v. Cole, Ky., 336 S.W.2d 583, 584 (1960), KRS 342.305 does not authorize a judgment against a defendant not named in the Board’s award is answered by our opinion in Fruchtenicht v. United States Fidelity & Guar. Co., Ky., 451 S.W.2d 835, 837-838 (1970), citing the difference between an original action in the circuit court as a court of general jurisdiction and an ex parte proceeding brought in that court under KRS 342.305.

As against the Uninsured Employers’ Fund, which is the only appellant in this court, the trial court treated the proceeding before it as an independent action not brought under KRS 342.305. It was of the further opinion, and so held, that the position of the Uninsured Employers’ Fund, which had not been made a party to the Board proceeding prior to the final award, was comparable with that of an employer’s insurance carrier under the principles set forth in Fruchtenicht v. United States Fidelity & Guar. Co., Ky., 451 S.W.2d 835, 838 (1970). That is, although the Uninsured Employers’ Fund may be, there is no statutory basis for a requirement that it must be, made a party to the Board proceeding. Indeed, as pointed out in Davis v. Turner, Ky., 519 S.W.2d 820, 823 (1975), the Uninsured Employers’ Fund’s liability actually does not arise until there is a default in payment of the compensation due under an award. We recognize, of course, that there are differences between the respective relationships of an insurer and the Fund toward the employer, but they do not obscure the stubborn fact that there is nothing in the statutes to suggest an intention that the Uninsured Employers’ Fund be joined in the compensation proceeding before the Board. The most plausible hypothesis is that in enacting KRS 342.760 the legislature never thought of it.

We perceive no due process problem. Whatever defenses the Uninsured Employers’ Fund may have had could have been litigated in the circuit court action. Certainly it has never been necessary that one who is secondarily liable to satisfy an obligation upon default of the principal obligor be joined in an action against the principal. To the contrary, in the traditional guaranty or back-up situation there was no assertable cause of action against the guarantor until the principal had defaulted.

We are fully aware that in the shark-infested waters of workmen’s compensation litigation there may be fraud and collusion between claimants and non-covered or otherwise judgment-proof employers. However, we did not write this law, and it is neither our responsibility nor our prerogative to shore it up against the tides of iniquity. The legislature opened the door, and it is up to the legislature to close it if it so desires.

Finally, the Uninsured Employers’ Fund cites an administrative rule of the Board providing that “all persons must be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative.” To this the same answer applies. Until there is a default by the employer there can be no cause of action the claimant is bound to assert.

The Board, either by rule or on a case-by-case basis, may permit the Uninsured Employers’ Fund to appear in or be made a party to the proceeding before it. When, as in this instance, it is discovered that the employer is not covered, or might not be able to satisfy an award, it seems to us that the Board of its own initiative ought to make the Uninsured Employers’ Fund a party in order that it may defend against any unmeritorious claim.

The judgment is affirmed.

All concur.


author: STERNBERG, Justice.

text:
    James R. YOCOM, Commissioner of Labor and Custodian of the Special Fund, Appellant, v. Orris ONEY et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 12, 1975.
    Earl M. Cornett, Gen. Counsel, Joe A. Newberg, Dept, of Labor, Frankfort, for appellant.
    G. C. Perry, III, David LeMaster, Perry & LeMaster, Paintsville, Fred G. Francis, Pres-tonsburg, for appellees.
   STERNBERG, Justice.

This is a workmen’s compensation case. On August 19, 1974, the board made findings of fact and entered an award which provided that appellee Orris Oney recover from the Special Fund compensation at the rate of $56 per week, and further that Oney recover from his employer, or its insurance carrier, his medical, surgical, and hospital expenses.

On September 6, 1974, the Special Fund filed an appeal in the Johnson Circuit Court seeking to have set aside the order of the full board. Procedural practices of the Special Fund were challenged in the circuit court by a motion to dismiss the appeal. On November 1, 1974, the circuit judge signed an order sustaining the motion to dismiss and on the same date the order was entered by the clerk. No further proceedings were had until January 23, 1975, when the circuit judge signed an order identical in all respects to the November 1, 1974, order. This latter order, however, was not entered by the clerk until February 14, 1975.

On February 26, 1975, counsel for the Special Fund filed a notice of appeal from what he identified as the final judgment entered on January 23, 1975. On May 23, 1975, appellee Orris Oney filed in this court a motion to dismiss the appeal on the grounds that the notice of appeal was not filed within thirty days from the entry of the order of January 23, 1975. The parties practiced the case in this court as if the order of January 23, 1975, was the final order. The notice of appeal actually was filed within thirty days from the entry of the January 23, 1975, order by the clerk; however, it was not filed within thirty days from the date it was signed by the judge.

When the motion to dismiss this appeal came on before this court, it appeared that the notice was filed within thirty days from the entry of the order dated January 23, 1975; therefore, the motion to dismiss was promptly overruled. However, upon submission of this appeal in chief and upon a careful analysis of the entire record, we find that the final order from which the appeal properly should have been taken is the order of November 1, 1974, and not the order of January 23, 1975.

The circuit court lost jurisdiction of the case ten days from the date the order was signed and entered on November 1, 1974. James v. Hillerich & Bradsby Company, Ky., 299 S.W.2d 92; CR 59.02. The order thus signed by the judge on January 23, 1975, which was entered by the clerk on February 14, 1975, is void as the court was without jurisdiction at the time it was signed and entered.

Under such circumstances this court has at least two alternatives. One, we may entertain the appeal, declare the order void, and reverse the case (Epling v. Ratliff, Ky., 364 S.W.2d 327), or second, we may sua sponte dismiss the appeal. We elect to follow the latter alternative, because to reverse would accomplish nothing. The order of November 1,1974, will still remain in full force and effect and from which no appeal has been taken.

This appeal is from a void order and is dismissed.

All concur.


author: VANCE, Commissioner.

text:
    PLANTERS BANK & TRUST COMPANY OF HOPKINSVILLE, Kentucky, etc., et al., Appellants, v. Glendel Ray DEASON et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 12, 1975.

      John P. Kirkham, Keith, Scent, Kirkham & Walton, Hopkinsville, for appellants.
    Wendell H. Rorie, Hopkinsville, for appel-lees.
   VANCE, Commissioner.

This is an appeal from a judgment entered pursuant to a directed verdict which dismissed appellant’s claim against the ap-pellee Glendel Ray Deason. A summary judgment which disposed of a third-party claim against appellee J. Robert Meece is not challenged by either party.

The two and one-half year old daughter of Gary and Tralucia Chastain was struck and killed by an automobile operated by the appellee Glendel Ray Deason. The accident occurred upon the driveway and parking area of a Dairy Queen Drive-In Restaurant in Hopkinsville, Kentucky, at approximately 6:30 p. m., October 27, 1970.

The Dairy Queen Restaurant fronts to the east upon U.S. Highway 41-A, a north-south highway. The building is approximately sixty feet from front to back. A sidewalk runs from the front to the back on the north side of the building and a customers’ entrance is located near the front of the building on the north side. A drinking fountain is located on the north side approximately thirty feet west (toward the rear) of the entrance.

The restaurant is located near the center of a paved lot 100 feet wide and approximately 360 feet deep. Parking spaces are marked on the pavement surface at the front and on both the northern and southern extremes of the lot in such a manner that the space between the building and the parked cars is utilized as a driveway on which vehicles are able to drive completely around the restaurant. The distance from the sidewalk on the north side of the building to the north edge of the parking lot is 39 feet. The area is well lighted.

Mr. and Mrs. Chastain were traveling through Hopkinsville to Nashville in separate cars. When they stopped at the Dairy Queen to eat they parked their cars angled toward the northwest in the parking spaces on the north side of the parking lot just opposite the entranceway. As they left the restaurant Mr. Chastain and the little girl proceeded across the driving area and went between the parked cars. Mrs. Chastain went down the sidewalk to the drinking fountain to wet a napkin to clean the child’s face.

Mr. Chastain asked his daughter if she wanted to ride the rest of the way with him or with her mother. She answered “Mommy” and proceeded to run from between the parked cars at an angle across the driveway toward Mrs. Chastain who was then at the fountain. In doing so she ran into the path of appellee’s car which had entered the Dairy Queen lot from Highway 41-A and was proceeding at a speed of 5 to 10 miles per hour around the building to a drive-in window on the other side.

Appellee said the area around the restaurant was a congested area; that he knew that young people and children were frequent patrons of the business; that he was carefully watching where he was driving; that the little girl ran from a place of concealment into the front of his car and that he did not see her, her father or her mother before the accident.

Mr. Chastain testified that when his daughter ran from between the cars he grabbed at her and ran after her two or three steps before she was struck by the car. Mrs. Chastain testified that appellee had his head turned ninety degrees to his left and was looking toward the Dairy Queen when the accident occurred. A police officer who immediately was called to the scene testified that appellee stated he was looking into the Dairy Queen at the time of the accident.

The principal issue is whether the evidence of negligence on the part of appel-lee was sufficient to take the case to the jury. The accident occurred on private property in a congested area known by the appellee to be frequented by young people and children. Worrix v. Rowe, Ky., 428 S.W.2d 187 (1968), and Louisville Taxicab & Transfer Co. v. Warren, 305 Ky. 861, 205 S.W.2d 695 (1947), are not applicable because a question of fact exists as to whether appellee was keeping a proper lookout in the operation of his vehicle and if not, could he, by the exercise of ordinary care, have seen the child and managed to avoid the injury.

The child had run across the driveway to a point approximately nine feet from the sidewalk on the north side of the restaurant when struck. The right front and right rear wheels both passed over the child.

We think a jury could reasonably find from the testimony that the appellee was not watching where he was driving but had he done so he could have seen the child in time to have avoided striking her. The distance the child ran across the driveway in front of the car before being struck would permit an inference that appellee had time to avoid the accident had he kept a proper lookout. The directed verdict for appellee was erroneous.

A witness who saw the accident was permitted to express an opinion that appel-lee stopped his car as soon as he could. On a new trial this testimony should be excluded. Goins v. Slusher, 282 Ky. 710, 140 S.W.2d 363 (1940).

Appellant further contends the trial court erred in refusing to permit his counsel upon voir dire to question prospective jurors whether they carried insurance with Farm Bureau Mutual Insurance Company. This contention is based upon the assumption that some of the jurors drawn from a rural area probably were so insured and had a financial interest in the case because rates and dividends are affected by the loss ratio of the company.

Appellant relies upon Hoagland v. Dolan, 259 Ky. 1, 81 S.W.2d 869 (1935) and Ewing-Von Allmen Dairy Co. v. Godwin, 304 Ky. 161, 200 S.W.2d 103 (1947). In those cases we recognized the propriety of such a question where counsel for plaintiff has information that the defendant has indemnity insurance, and that some member of the jury is interested in the insurance company, and the question is asked in good faith.

Our cases are uniform in condemning abuse of the voir dire as a subterfuge to inform jurors of liability insurance coverage. The only permissible use of the question is in a good faith effort to expose possible bias of a juror. Even if the possibility of higher rates or lower dividends determined by the loss ratio of the company be considered a sufficient interest upon which to infer bias on the part of a policy holder who serves as a juror, the bias would not ordinarily occur unless the juror had knowledge that the defendant was insured by his particular company.

There was no suggestion in this case that appellant in good faith believed that a prospective juror with an interest in Farm Bureau Mutual Insurance Company knew that the defendant carried liability insurance with that company. It may be that in this day and age prospective jurors realize that liability insurance is the rule rather than the exception but the rule which requires exclusion from the jury of information relating to liability insurance coverage is a salutary one which should not be circumvented upon the showing made by appellant.

That part of the judgment which dismissed the claim against appellee J. Robert Meece is affirmed. That part of the judgment which dismissed the claim against ap-pellee Glendel Ray Deason is reversed for further proceedings consistent with this opinion.

All concur except CLAYTON, J., not sitting.

As to the insurance issue REED, C. J., concurs in the result only.