author: O’QUINN, Justice.

text:
    The SUPERIOR OIL COMPANY, Appellant, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 12766.
    Court of Civil Appeals of Texas, Austin.
    Aug. 30, 1978.
    Rehearing Denied Oct. 4, 1978.

      Philip F. Patman, Patman & Patman, Austin, for appellant.
    John L. Hill, Atty. Gen., Ralph T. Aldave, Asst. Atty. Gen., Austin, for appellee Railroad Commission.
    William T. Hall, Hall & Laden Assoc., Austin, for intervenor Atlantic Richfield Co.
    C. C. Small, Jr., Small, Craig & Werken-thin, Austin, for intervenor General American Oil Co. of Texas.
    Robert C. McGinnis, Dean M. Kilgore, McGinnis, Lochridge & Kilgore, Austin, for intervenors Exxon Corp. and Sun Oil Co.
   O’QUINN, Justice.

This appeal is from judgment of the district court affirming action of the Railroad Commission in refusing The Superior Oil Company a permit to drill an additional well on its lease in the East Texas Oil Field under an exception to Rule 37. We will affirm the trial court’s judgment that The Superior Oil Company take nothing by its suit.

Superior Oil acquired the Helen Pritchard “A” Lease by an assignment dated April 11, 1931, which stated that the lease contained 99.56 acres, determined by survey made in 1931 by the county surveyor. Sixteen years later, in 1947, Superior commissioned another surveyor to survey the tract who found it to contain 100 acres.

It is undisputed that Superior lawfully operated twenty-one producing wells on its Helen Pritchard lease until 1973, when its No. 10 well “went to water.” To replace the well, Superior applied to the Railroad Commission for permit to drill a new well.

By memorandum approved July 1, 1957, the Railroad Commission established exceptions statewide to Rule 37 and the density policy for East Texas Field applications. In this lawsuit the standard density policy of one well to five acres and the exceptions contained in paragraphs four and five of the memorandum are the rules under consideration.

Paragraph four of the memorandum provides that permits to drill additional wells will be granted for a tract completely surrounded by production which has sufficient acreage to comply with the five acre density rule, and further provides that the new well must be located in the most sparsely drilled area of the tract.

Paragraph five provides that when a tract has been legally developed in excess of the five acre density rule (that is, developed prior to the 1957 memorandum), a new drilling permit will be granted only for a substitute well for an existing well that has encountered mechanical difficulties. The substitute well must be located “. as close as is mechanically practical to the existing well . . . [and] such distance will generally be considered as being 50 feet.”

Superior’s first effort to obtain authority to drill a new well was made pursuant to paragraph five, inasmuch as Superior, from the time of its acquisition of the lease had claimed the tract contained either 99.56 or 100 acres. But the location proposed for the substitute well was 1,180 feet from No. 10 well and in the most sparsely drilled area of the lease. Superior claimed this location was necessary because “. . . location as near to the existing well as fifty feet provided in paragraph five would not accord it reasonable opportunity to complete the new well as an oil producer

At the close of testimony before the Commission parties protesting the application asked that the permit be denied, since Superior had failed to locate the substitute well fifty feet or less from No. 10 and in addition had proposed a location in the most sparsely drilled area of the lease. Protestants took the position that Superior could not attempt to comply with the more liberal location requirements of paragraph four because Superior did not have sufficient acreage to justify an additional well, and was entitled to a new well only if Superior complied with the more stringent location requirements of paragraph five.

Superior at this point retained services of a surveying firm to survey the lease tract, after which it was claimed the tract contained 106.48 acres. When Superior sought to reopen the hearing before the Commission to permit introduction of the new evidence, objection was made and Superior withdrew its application and subsequently filed a new application to drill an additional well, to be its twenty-first on the lease tract, which Superior represented in the new application to contain 106.48 acres.

At the conclusion of the hearing on Superior’s application to drill an additional well on the lease tract now claimed to comprise 106.48 acres, the hearing examiners filed their proposal for decision, containing findings of fact and conclusions of law which the Railroad Commission subsequently adopted in its order dismissing the application without prejudice.

The findings of fact consisted of findings (1) that proper notice had been given all offset operators and (2) that the greater percentage of the testimony pertained to boundaries of the Superior lease “and to the enlargement of the Superior lease from 99.-56 acres to 106.48 acres.”

The conclusions of law were (1) that Superior “made a good faith claim to the Commission in the drilling of 21 wells on less than 100 acres,” and (2) that “the enlargement of the tract ... by establishing new boundary lines, which were disputed ... is a title question over which the Commission has no jurisdiction.”

In district court the parties were in agreement that the effect of the Commission’s order was to conclude that Superior had failed to prove a good faith claim to 106.48 acres in the lease tract. Without objection the case was tried on the issue of sufficiency of evidence to support the Commission’s inferred finding and conclusion that Superior did not show a good faith claim to 106.48 acres. In its judgment the trial court found that the order of the Commission . .to the effect that The Superior Oil Company . . . failed to make a reasonably satisfactory showing of a good-faith claim to 106.48 acres . was reasonably supported by substantial evidence, and that . . . [Superior] should take nothing by its suit.”

On appeal Superior for the first time challenges the legal sufficiency of the findings of fact by the Commission in support of the order. It is evident that the findings and conclusions adopted by the Commission, for clarity and relevance, are unlikely models for drafting administrative orders, but we find in the record no pleadings or objections directed at the deficiencies and that the case was tried on the theory, accepted by all parties, that the Commission dismissed Superior’s application because a reasonably satisfactory showing had not been made of a good faith claim to 106.48 acres. The issue on appeal is simply whether there was substantial evidence to support that conclusion.

Superior brings four points of error which in their most essential aspect claim there was not substantial evidence to support the Commission’s decision because “. . . a contemporary survey by a State-licensed land surveyor showing its LEASE . . to be composed of 106.48 acres of land constitutes as a matter of law a reasonably satisfactory showing of a good-faith claim in and to such amount of acreage.” (Emphasis added).

At the hearing upon which the Commission based its order Superior sought through the testimony of two surveyors as experts to show that the lease tract actually contained 106.48 acres, although from 1931 to 1947 Superior had claimed 99.56 acres and after 1947 had claimed 100 acres, both claims based on surveys made by or for Superior. The survey offered at the hearing was a new survey made by Hart Engineering of Longview, and the first witness was a licensed surveyor employed by that company, but not the surveyor who performed the field work.

Protestants at the hearing did not offer witnesses, but limited their evidence in the main to cross examination of Superior’s expert witnesses. On cross examination the surveyor for Hart Engineering conceded that he “didn’t pay any attention” to calls and distances in some instances as shown by the survey of 1931 under which Superior took the lease originally and explained, “At that time, I figure some attorney set back in his office and wrote those things and I didn’t pay any attention to them.” The witness also testified that he paid “not too much” attention to field notes of the surveys of 1931 and 1947, although he sought at the hearing to impeach validity of these earlier surveys. It is clear that the witness made no attempt to locate the lease on the ground by its description, but instead based the recent survey on what “occupation” the witness could use.

The recent survey, based on occupation of the land, was not performed by the witness but was made from field notes of surveyors under his supervision. Description in the new survey began from a three-quarter inch iron pipe, but the witness did not know whether the pipe was called for in the field notes. To obtain a bearing from the iron pipe, the surveyor relied on hack marks on a ten-inch “fig [pig] nut tree,” the origin of which was unknown to him and which he conceded probably was not standing when the lease was surveyed in 1931 by the county surveyor.

In the last part of the hearing it was disclosed that the witness had gone to the lease tract himself in an attempt to locate the lease on the ground by use of metes and bounds description which made reference specifically to the field note descriptions of three surrounding tracts, but the witness abandoned the field notes for description whenever found inconsistent with his first survey based on occupation. Thus it became evident that no attempt had been made in behalf of Superior to retrace the steps of the surveyors who performed the surveys of 1931 and 1947 in order to test or determine accuracy of these earlier surveys.

The conclusions of this witness, that the tract contained more than 100 acres, were corroborated by a second surveyor who, without field investigation but by using a planimeter (an office device employed to estimate an area by tracing its boundaries on a map), testified that the tract certified in 1947 as comprising 100 acres appeared to contain 112.94 acres.

The record reflects no effort made to show that either the survey of 1931, calling for 99.56 acres, or the survey of 1947, calling for 100 acres, contains calls or distances which are inconsistent or otherwise ambiguous. Generally the boundaries of a tract are to be determined by the lines and corners actually run and marked on the ground by the surveyor who made the survey in accordance with which the deed was made. In this case the rule would apply to the survey made in 1931 when Superior took the lease. The footsteps of the survey- or must be followed when ascertainable in determining the true boundary lines. See 9 Tex.Jur.2d Boundaries, sec. 12, pp. 522 et seq., and authorities cited (1969).

By claiming ownership of 106.48 acres, Superior sought to impeach its forty-five year-old claim to not more than 100 acres, under the survey made when Superior acquired the lease, and the subsequent survey in 1947 which Superior made. Superior’s surveyors of 1976 made no attempt to trace the steps of the earlier surveyors whose descriptions are specific and unambiguous as to the boundaries of the lease.

Under the record the Commission could have concluded that a reasonably good faith claim begins to falter and fail when recognized standards for ascertaining known boundaries of a lease, as a basis for a new calculation of the area within the boundaries of the deed, are not employed but are consistently avoided. Moreover, Superior repeatedly resisted attempts by opposing parties to have produced at the hearing field books and working sketches used by Superior’s witness by whom the applicant sought to prove that past surveys erroneously showed no more than 100 acres in the lease tract.

Some foremost precepts for surveyors, called upon to establish the actual boundaries and the area within the boundaries of a tract acquired by deed, are stated in this language:

“The cardinal principle guiding a surveyor who is running the lines of a previous survey is to follow in the footsteps of the previous surveyor. The essential rule of a resurvey is to follow the steps of the first survey . . . It is the extensive duty of the retracing surveyor to see what the first surveyor did, not what he should have done. No matter how inaccurate the original survey may have been, it will be conclusively presumed to be correct and, if there is error in the measurements or otherwise, such error is the error of the last surveyor . . . ” Grimes, Clark on Surveying and Boundaries, Sec. 275, p. 339 (4th ed. 1976).

The second surveyor testifying for Superior at the hearing undertook to impeach the company’s own certified survey of 1947, not by resurvey on the ground, but by using a planimeter, which at best merely estimates the area within boundary lines of a tract delineated on a map. The witness employed the planimeter, not on an original map as compiled from field notes, but upon a Xerox copy, which the witness admitted might have been distorted in the copying process. From this presumption upon a presumption the witness arrived at 112.94 acres, which was in conflict with any other acreage attributed to the lease tract.

In bringing suit Superior invoked provisions of Section 19(e) of Article 6252-13a (Administrative Procedure and Texas Register Act), and review in district court was under the substantial evidence rule. The question below and on appeal is whether there was substantial evidence before the administrative agency in support of the Commission’s finding that Superior failed to make a good faith claim in 106.48 acres in the lease tract.

The established rule guiding the Railroad Commission was stated in 1943, by the Supreme Court in this language: . the Railroad Commission should not do the useless thing of granting a permit to one who does not claim the property in good faith. The Commission should deny the permit if it does not reasonably appear to it that the applicant has a good-faith claim in the property.” Magnolia Petroleum Co. v. Railroad Commission, 141 Tex. 96, 170 S.W.2d 189, 191 (1943). The rule was reaffirmed by the Supreme Court in Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 437 (1946).

Superior mistakenly contends that the Commission may not inquire into validity of a survey by a state-licensed surveyor because any such survey constitutes a good faith claim as a matter of law. For more than forty years Superior maintained a good faith claim to 100 acres, a claim supported by the surveys of 1931 and 1947. After failing to obtain a permit for a substitute well, as authorized under the 1957 memorandum, Superior sought a permit to drill an additional well by rejecting its good faith claim of the past and advancing a new claim that the lease tract comprised 106.48 acres.

It seems obvious that as a part of its new claim Superior had the burden to show how the good faith claim already established and recognized by the Commission was defective and the new claim was without imperfection. The Commission evidently concluded that Superior was unable to overcome the presumption of correctness of its previous claims of ownership. We find there was substantial evidence to support the Commission’s order denying the permit.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    Helen Jodie McGUFFIN, Appellant, v. The STATE of Texas, Appellee.
    No. 12891.
    Court of Civil Appeals of Texas, Austin.
    Aug. 30, 1978.
    Jim Ashby, Fisher & Ashby, Austin, for appellant.

      James L. McMurtry, Travis County Atty., Timothy M. Sulak, Asst. County Atty., Austin, for appellee.
   PHILLIPS, Chief Justice.

The question for determination is whether the appellant, at a jury trial held on application for her temporary hospitalization, can be called as a witness by the State over the objection of her attorney. The trial court held that she could and we affirm.

An application for temporary hospitalization for appellant was filed on June 1,1978. On that same day she was committed to the hospital under an order of protective custody. While confined at the hospital she was examined by two psychiatrists who submitted certificates of examination stating that appellant was mentally ill, that she required treatment in a mental hospital and that she was likely to cause injury to herself or to others if not restrained.

On June 13,1978, a jury trial was held on an application for appellant’s temporary hospitalization. At the trial one of the examining psychiatrists testified at length as to her mental condition and her need for confinement in a mental hospital.

Following this testimony the State, out of the jury’s presence, indicated its intention to call appellant as an adverse witness, whereupon her attorney objected on the grounds that such procedure would violate her right of due process under the Fifth and Fourteenth Amendments to the United States Constitution. The court overruled the objection, the jury was called back, she took the stand and was interrogated by the State. Some of her responses to the questions of the State’s attorney clearly indicated that she was mentally ill.

At the end of appellant’s testimony both sides closed and in response to special issues answered by the jury, the court entered its judgment that appellant be committed to a mental hospital.

The Fifth Amendment to the Constitution of the United States provides that no person shall be compelled in any criminal case to be a witness against himself, and the Fourteenth Amendment to the United States Constitution provides that the State shall not deprive any person of life, liberty, or property, without due process of law. Fifth Amendment protection applies to the states by virtue of the due process clause in the Fourteenth Amendment in a criminal prosecution. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Appellant maintains that the state has abridged both of these provisions in requiring her to testify at the commitment trial.

We think not. In State v. Turner, 556 S.W.2d 563 (Tex.1977), the Supreme Court in distinguishing the standard of proof necessary in a civil commitment case from that in a criminal proceeding found several distinctions. The court found that the involuntary mental patient is entitled to treatment, to periodic and recurrent review of his mental condition, and to release at such time as he no longer presents a danger to himself or others. The mental patient’s loss of liberty is, therefore, less severe than that suffered by the convicted criminal. In addition, there is a significant difference between the retrospective assessment of conduct made by a jury in a criminal case, and the determination of future conduct and future need made by a jury in a civil commitment. The court recognized that rules of law are subject to alteration when problems inherent in methods of proof so require, citing Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977).

The court also pointed out that the State is required to act as parens patriae for the mentally ill, i. e., to exercise its sovereign power of guardianship over persons under disability. Black’s Law Dictionary 1269 (4th ed. 1968).

We hold that in its status as par-ens patriae the State is under the duty to ascertain appellant’s mental condition at the time of her trial and make a reasonable assessment of what that condition is likely to be in the immediate future. We are not concerned here with punishment or guilt for past conduct and should evidence of some illegal act surface through the interrogation in question, appellant’s Fifth and Fourteenth Amendment rights against self-incrimination would be applicable. In any event, that question is not before us.

We are not impressed with appellant’s contention that, granting for purposes of argument, the State has a right to abridge a person’s constitutional right against self-incrimination through the pretrial psychiatric examination, see Moss v. State, 539 S.W.2d 936 (Tex.Civ.App.1976, no writ), a lay jury requires expert guidance on the subject of the proposed patient’s mental illness and is not qualified to make a determination of that question based solely on its own observations.

Moss states that a person suspected of mental illness ought not to be deprived of liberty on the basis of expert opinion alone. Such an expert opinion, although constitutionally required in Texas, is not enough to deprive a person of his liberty. Section 32 of the Texas Mental Health Code requires examination by two physicians, but under §§ 37 and 38, if temporary hospitalization is opposed, the court must hear testimony and make its own findings. Trial by jury is required if demanded by the patient. Tex. Const, art. I, § 15-a; Texas Mental Health Code, art. 5547-36(e) (Vernon’s Supp.1978). The jury’s own observation of the patient may indeed prove to be valuable evidence of her mental condition.

Nevertheless, as appellant contends, in Gault, the Supreme Court of the United States made the statement that under the Fifth and Fourteenth Amendments no person shall be compelled to be a witness against himself when he is threatened with deprivation of his liberty. The Court further stated that this is so whether the proceeding is called “criminal” or “civil.”

Gault concerned a proceeding to determine whether a minor was a “delinquent” where such a determination could result in commitment to a state institution. A specific question therein was whether, in such a proceeding, an admission by the juvenile may be used against him in the absence of clear and unequivocal evidence that the admission was made with knowledge that he was not obliged to speak and would not be penalized for remaining silent.

Gault involved a juvenile’s constitutional rights in a criminal matter, whether or not the proceeding was termed “juvenile” or “civil.” The Court was concerned with the minor’s rights when faced with possible incarceration in an institution, which, when stripped of euphemism, is penal. The Court then scrutinized the procedural aspects of Gault’s incarceration with an eye to due process and also compared such process with the safeguards afforded an adult in a criminal proceeding. The Court, however, was careful to state that it did not mean to hold that an adjudication of delinquency must conform to all the requirements of a criminal trial, but merely “that the hearing must measure up to the essentials of due process and fair treatment.” 387 U.S. at 30, 87 S.Ct. at 1445, 18 L.Ed.2d at 548 (1967).

The Supreme Court’s unwillingness to apply criminal due process requirements inflexibly to all proceedings is demonstrated in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), where the Court held that due process does not require trial by jury in a juvenile delinquency case. Also in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), a case that involved the application of due process guarantees to proceedings for revocation of parole, the Court reaffirmed previous declarations that due process is flexible and calls for such procedural protection as the particular situation demands, and that a determination of what process is due requires a determination of the precise nature of the government function involved and the private interest affected.

Indeed, the Supreme Court of the United States has lately further clarified its broad admonition against self-incrimination stated in Gault in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281,47 L.Ed.2d 556 (1976), where the right to counsel in a court martial proceeding was denied. The Court observed that “even in a civilian context the fact that a proceeding will result in loss of liberty does not ipso facto mean that the proceeding is a ‘criminal prosecution’ for Sixth Amendment purposes.” And further, “even in the civilian community a proceeding which may result in deprivation of liberty is nonetheless not a ‘criminal proceeding’ within the meaning of the Sixth Amendment if there are elements about it which sufficiently distinguish it from a traditional civilian criminal trial.” Id. at 37-38, 96 S.Ct. at 1289, 47 L.Ed.2d at 566.

We are not concerned here with past guilt, the trustworthiness of a confession, self-incrimination, or for that matter, criminal conduct of any kind such as was the basis for the decision in Gault. We are concerned with the State’s right under our statutes to have a jury observe the patient to determine her mental health to consider the possibility of treatment and/or the prevention of harm to herself or others.

In balancing the precise nature of the governmental function involved with the private interest affected, we affirm the judgment of the court below.

Affirmed.

      . See Tex.Const. art. I, § 15-a.

      . The Sixth Amendment guarantees to an accused in a criminal prosecution the right to a speedy public trial with additional safeguards on fairness. These include an impartial jury trial in a proper district, confrontation of adverse witnesses, assistance of counsel, compulsory process for obtaining witnesses and the right to be informed of the accusation.


author: DUNAGAN, Chief Justice.

text:
    G. P. COTTLE et ux., Appellants, v. Ollie Mae KNAPPER, Appellee.
    No. 1161.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 31, 1978.
    Rehearing Denied Sept. 21, 1978.

      J. R. Patterson, Jr., Bath, Turner & Patterson, Henderson, for appellants.
    B. J. Wynne, Wynne & Wynne, W. Bruce Monning, Wills Point, for appellee.
   DUNAGAN, Chief Justice.

Ollie Mae Knapper, appellee, brought suit for cancellation of deed from Flora Miller dated April 24, 1975, conveying certain property located in Overton, Texas, to G. P. Cottle and wife, Mary Cottle, the appellants, “for and in consideration of the love and affection,” because of undue influence and mental incapacity. By a warranty deed dated June 26, 1970, G. P. Cottle and wife, Mary Cottle had conveyed to Flora Miller the same property in question for the consideration of $4,500.00. G. P. Cottle and wife, Mary Cottle, brought suit in the nature of cross-action in trespass to try title and action to set aside deed from Flora Miller dated December 8, 1975, conveying the same property to Ollie Mae Knapper. The trial court sitting without the aid of a jury set both deeds aside and G. P. Cottle and wife, Mary Cottle, have appealed from the judgment. Appellee did not appeal from the decretal portion of the judgment adverse to her.

No requests for findings of fact or conclusions of law was made and none was filed. The court, however, in its judgment found “that Flora Miller did not have sufficient mental capacity to understand the nature and effect of her act in executing and delivering a deed to G. P. Cottle and wife, Mary Cottle, . . dated April 24, 1975, . .

The appellants have brought forward three points of error contending therein that the trial court erred in setting aside the deed from Flora Miller to the Cottles because there was (1) no evidence or, (2) the evidence was insufficient to establish that Flora Miller did not have mental capacity to execute said deed and (3) because the. finding of the trial court that Flora Miller did not have sufficient mental capacity to execute the deed in question is contrary to the great weight and overwhelming preponderance of the evidence and is manifestly wrong.

When the assignment is that there is “no evidence,” the reviewing court may consider only that evidence, if any, which, viewed in its most favorable light, supports the findings of the trier of the facts, and we must disregard all evidence which would lead to a contrary result. Cartright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957). When the contention is made that the evidence is “insufficient” to support the findings of the trier of the facts, or the findings are “against the great weight and preponderance of the evidence,” a Court of Civil Appeals must examine all of the evidence and reverse and remand for a new trial if it concludes that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

Mrs. Knapper is a half sister to Mrs. Miller and Mr. Cottle is her nephew.

The three parties were the only witnesses to testify. Ollie Mae Knapper, the appellee, unfortunately was without legal representation at the trial. She undertook the very difficult task of representing herself. Mrs. Knapper’s direct testimony consisted of a narrative statement. She testified that pri- or to and at the time of the execution of the deed in question that Mrs. Miller was old and in failing health and declining mentally rapidly (The record is not clear as to the age of Mrs. Miller at the time of the execution of the deed to the Cottles. Mrs. Cottle testified that she was probably 72 or 73. Mrs. Knapper said she was 77 and that she was born in 1898.); she was losing weight rapidly; she was not eating a balanced meal; and she was not eating meals that were prepared for her by an employee but fed them to her dog; that she was not herself; her weight had gone down from her usual weight of over 200 pounds to less than 100 pounds; that she (Mrs. Knapper) was very worried about her condition and “kept asking that the Cottles would get some cafe to take out a warm meal a day”; “nothing was done”; then in January 1976 she contacted the Welfare Department in Henderson and “got a welfare worker to come out, and through that then — they had an employee to come out six days a week for three hours a day and take care of Mrs. Miller’s house and provided her the meal”; Mrs. Miller was still asking me (Mrs. Knap-per) to help her to get her things back from the Cottles. She (Mrs. Miller) didn’t understand what was going on; at the time the deed was signed, she would have signed anything he (Mr. Cottle) asked her to sign; Mrs. Knapper was in regular contact with Mrs. Miller; and that Mrs. Miller was declining mentally as well as physically.

Upon executing the deed in question Mr. Cottle, an appellant, testified Mrs. Miller was to be allowed to live in the house and be cared for by appellants for the rest of her life.

Mrs. Cottle, one of the appellants, testified that Mrs. Miller’s “health was failing her”; she lost a lot of weight but her mental condition was normal; that in the early part of 1976 “someone started coming in and cooking meals for her”; “that Mrs. Miller would forget to cook her meals and forget to eat”; that there was one major repair of the property since she and her husband acquired it that cost $400 of which sum $300 was paid out of Mrs. Miller’s funds; this repair was made in the latter part of 1975; that at the time of trial of this case Mrs. Miller was in a nursing home where she had been placed by the Cottles. In response to a question by the court directed to him, appellants’ attorney said he assumed her nursing home care was being paid from her social security checks. This was before the evidence was closed. The Cottles were present and did not dispute the statement of their attorney. It appears from the undisputed evidence that Mrs. Miller was to a great extent having to care for herself.

Appellee’s attorneys in their brief point out to us the following testimony given by Mrs. Knapper on cross-examination:

“Q. Are you saying that she [Mrs. Miller] did not have the mental capacity to make a deed?
“A. At the time that she made the deed to the Cottles, I would say she did not.”

It is well settled that such question may not be asked and such testimony is inadmissible because whether Mrs. Miller had mental capacity to execute the deed in question involved a legal definition and a legal test. Fox v. Lewis, 344 S.W.2d 731 (Tex.Civ.App.—Austin 1961, writ ref’d n. r. e.); Carr v. Radkey, 393 S.W.2d 806 (Tex.1965); Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, 852 (1952); Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (Tex.Com.App.1941); Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621 (1895). Such inadmissible testimony could not be considered on appeal in determining the sufficiency of the evidence even though it was received without objection or that it was elicited on cross-examination of a party litigant. An appellate court in applying the law to the testimony constituting the facts of the case, can only base its conclusion upon such testimony as is under the law competent. That testimony which is not competent should be given no probative force. Robinson v. Risinger, 548 S.W.2d 762, 767 (Tex.Civ.App.—Tyler 1977, writ ref’d n. r. e.); Hines v. Nelson, 547 S.W.2d 378, 383 (Tex.Civ.App.-Tyler 1977, n. w. h.); Engineered Plastics v. Woolbright, 533 S.W.2d 906, 909 (Tex.Civ. App.—Tyler 1976, n. w. h.); The State of Texas v. Wilson, 439 S.W.2d 134, 139 (Tex.Civ.App. — Tyler 1969, n. w. h.). The trier of facts in such cases as the one before us should be given all relevant and competent testimony with regard to the mental condition of the grantor and competent evidence about his or her mental condition and mental ability or lack thereof which does not involve legal definitions, legal tests, or pure questions of law. A witness may be asked, assuming he or she knows or is a properly qualified expert, whether the grantor knows or had capacity to know the object of his or her bounty, the nature of the transaction in which he or she was engaged, the nature and extent of his or her estate, and similar questions. Carr v. Badkey, supra. No such admissible testimony appears in the record.

While imbecility or weakness of mind in itself does not necessarily incapacitate one from conveying his or her property, yet when there is evidence tending to show imposition of a material fact, weak understanding of the transaction in which such person is engaged may be considered by the trier of facts in estimating the fairness of the transaction. Klindworth v. O’Connor, 240 S.W.2d 470, 475 (Tex.Civ. App.—Dallas 1951, writ ref’d n. r. e.).

Appellee relies upon the rule of law that the absence of findings of fact requires an appellate court to treat such fact issue as resolved in favor of the judgment cancel-ling the deed in controversy. It is further contended that, if the judgment can be sustained under any theory in the case, it should be affirmed by this court. The trial court’s judgment, however, contains a specific finding of fact or recital, stated above, and the court rendered judgment based solely thereon. The fact that findings of fact and conclusions of law are not filed separately from the judgment as provided for by Rule 296, T.R.C.P.,' does not affect their validity. Davis v. Davis, 507 S.W.2d 841, 843 (Tex.Civ.App.,1974) reversed on other grounds 521 S.W.2d 603.

Prior to January 1, 1971, Rule 306, T:R. C.P., reads:

“The entry of the judgment shall contain the full names of the parties, as stated in the pleadings, for and against whom judgment is rendered, and shall carefully recite the findings of the jury, or the several findings, if more than one, upon which the judgment of the court is based.”

The emphasized language of the original rule was deleted by amendment effective January 1, 1971. Rule 306, as it now reads does not provide for, or require, the judgment to recite the finding or findings upon which it is based.

Before the 1971 amendment to the rule, it was well established that it was not necessary to request and secure findings of fact, if they were substantially contained in the judgment. As the court said in Warren v. Haverkorn, 191 S.W.2d 793, 797 (Tex.Civ.App.—Fort Worth 1945, no writ history):

“It is quite apparent from the findings of fact recited in the judgment that the decree of the court is based solely upon the statute of limitation pleaded and sought to be established by plaintiffs. Under the cited rule, ‘The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery ... no element of which has been found by the trial court; . . . ’ We can see no difference in the application of the rule to a situation where the court has filed findings of fact upon request of a party and where, as in this case, he files the necessary findings of fact to the judgment to support it. It could hardly be assumed that if he had filed fact findings upon a request that they would have been different from those he did find as contained in the judgment. ... If the judgment as entered had been a general one and had not attempted to recite the facts found by the court, the situation might have been different.”

See also: City of Dallas v. Haworth, 218 S.W.2d 264, 266 (Tex.Civ.App.—Dallas 1949, writ ref’d n. r. e.).

In the Warren case, as here, no findings of fact were filed at the request of either party as none was requested, but the judgment recited the fact found by the court and which was the sole basis for the judgment. It was contended that if the judgment can be sustained under any theory in the case it should be upheld on appeal.

The same construction has been given the rule subsequent to the 1971 amendment as evidenced by the holding in Davis v. Davis, supra.

We believe that Davis represents the proper interpretation of Rule 306 and hold that even though Rule 306 does not now provide for or require the judgment to contain findings, where the findings of fact are recited and the decree of the court is based solely thereon, the judgment may not be supported on appeal by a presumption of finding upon any ground of recovery, no element of which has been found by the trial court. Warren v. Haverkorn, supra; City of Dallas v. Haworth, supra.

The fact that the judgment contained a finding of fact did not preclude appellants from requesting separate findings of fact and conclusions of law under Rule 296, T.R.C.P., and associate rules. This they chose not to do. Appellants elected to challenge the lack of probative evidence or the sufficiency thereof to support the sole finding of the trial court upon which the judgment was based.

It is quite apparent in the case at bar that the judgment of the court is based solely upon the finding that Mrs. Flora Miller did not have sufficient mental capacity to execute the deed in question.

The preferable practice is to file findings of fact and conclusions of law in a separate instrument, but Rule 296, T.R.C.P., does not specifically so require. The trial court was authorized to amend the judgment in question to incorporate specific findings of fact and conclusions of law if requested to do so. Payton v. The Hurst Eye, Ear, Nose & Throat Hospital & Clinic, 318 S.W.2d 726, 735 (Tex.Civ.App. — Texarkana 1958, writ ref’d n. r. e.); 57 Tex.Jur.2d p. 348, see. 587. No such request was made in the instant case. In a nonjury trial the judge is not required to state his findings or conclusions in the judgment since they usually are incorporated in a separate instrument filed after formal request by a party. If the judge, however, prefers they may be stated in the judgment. McDonald, Texas Civil Practice, Vol. 4, sec. 16.05, p. 10 and sec. 17.09.2, p. 68. Where findings of fact and conclusions of law are set forth as recitations in the judgment appealed from, they shall be treated as findings of fact and conclusions of law filed in accordance with Rule 296. June Glover Simmonds v. James Eugene Glover, 283 S.W.2d 808 (Tex.Civ.App. — San Antonio 1955, n. w. h.); Stahl v. Westerman, 250 S.W.2d 325, 326 (Tex.Civ.App. — San Antonio 1952, n. w. h.); 57 Tex. Jur.2d p. 348, sec. 587.

Viewing the evidence most favorable to the judgment we believe there is some evidence which supports the judgment. Appellants’ first point of error is overruled. An examination, however, of all the evidence, as required by the insufficient evidence points, leads us to the conclusion that the evidence is not of sufficient strength to support the judgment.

The judgment of the trial court is reversed, and the cause is remanded for further development.

      . All references herein are to Texas Rules of Civil Procedure unless other indicated.


text:
    SUN OIL COMPANY (DELAWARE), Appellant, v. RENSHAW WELL SERVICE, INC., Appellee.
    No. 1163.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 31, 1978.
    Rehearing Denied Sept. 21, 1978.

      Eugene W. Brees, Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
    John M. Smith, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for ap-pellee.
   DUNAGAN, Chief Justice.

This is a third-party action for indemnity brought by Sun Oil Company (Delaware), appellant, hereafter referred to as “Sun,” against Renshaw Well Service, Inc., appel-lee, hereafter referred to as “Renshaw.” Sun seeks to recover $10,000.00 which it paid in settlement of the claim of plaintiff, David Durbin, plus attorneys’ fees and court costs. The third-party indemnity action was submitted to the trial court solely on stipulations of fact. This appeal follows the rendition of a take nothing judgment against Sun, which denied indemnity under the provisions of the contract between appellant and appellee.

Sun was the operator of the Shamburger Lake Unit (Paluxy) Field, Smith County, Texas, pursuant to a unit agreement entered into by its predecessor in interest, dated August 17, 1962. In April, 1972, Sun and Renshaw entered into a contract by v/hich appellee was to perform certain well servicing and other work on wells located within the Shamburger Lake Unit. The contract contained a provision granting Sun a right to indemnity from Renshaw, as follows:

“INDEMNITY: Contractor [Renshaw] agrees to protect, defend, indemnify and hold Sun and the employees of Sun free and harmless from and against any and all claims, demands and causes of action of every kind and character (except underground damage) arising out of, incident to, or in connection with this agreement or performance of work or services hereunder or breach of the terms hereof, regardless of whether the liability therefor is based upon some alleged act or omission of Sun or of Contractor or of some third or other party, and including without limitation by enumeration all taxes, claims, debts, fines, penalties, forfeitures, patent infringements, loss of use, death, injury and damages to all persons and property, together with the amount of judgments, penalties, interest, court costs, legal and other fees and expenses in connection therewith. With respect to liability based upon some alleged act or omission of Sun or some such third or other party, not an agent or subcontractor of Contractor, this indemnity shall be limited to the kinds and amounts of insurance Contractor agrees to carry under this Contract and Services Agreement, or such greater amounts as Contractor does in fact carry.”

The contract and accompanying rate schedule provided that there would be a charge for the work performed by Renshaw, plus an additional charge for road time. Under terms of the contract, Sun had no authority to direct, supervise or control Renshaw in the manner or method of performance of the work thereunder. On the date of the accident giving rise to plaintiff’s suit herein, the contract and rate schedule were in full force and effect and covered the well servicing work which had been performed by Renshaw.

On June 19,1973, appellee performed certain well servicing operations at the well known as M.S. Shamburger Well 2-1, which included fishing out a broken sucker rod, replacing worn rods and replacing the entire string of sucker rods back into the hole. The specific work which Renshaw had contracted to perform at M.S. Shamburger Well 2-1 was completed, to the satisfaction of appellant, and no further work remained to be done at that well site. Renshaw’s employees were in the process of returning to appellee’s headquarters to park the equipment when the accident occurred. Plaintiff, a Renshaw employee named David Durbin, was driving a well service truck on the dirt access road leading away from the well site. Approximately 585 yards away from M.S. Shamburger Well 2-1, plaintiff drove off the road while attempting to cross an earthen dam. The accident occurred within the Shamburger Lake Unit and it is undisputed that Sun was responsible for maintenance of the access road. At the time in question, this was the only access road that Sun provided for Renshaw’s equipment to go to and from this particular well site. On the occasion in question, no Sun employee was present at either the well site or on any portion of the access road.

David Durbin received benefits of over $17,000 from the Workmen’s Compensation carrier for Renshaw and thereafter, Durbin brought suit against Sun, alleging negligence in the maintenance of the access road. Subsequently, Sun filed a third-party action against Renshaw based on the indemnity agreement. Sun settled Durbin’s negligence claim for $10,000, plus costs, while continuing to assert its third-party action against appellee. It was stipulated that the settlement was made in good faith and was fair and reasonable, and there is no dispute as to the propriety or amount thereof.

In support of its take nothing judgment against Sun, the trial court made the following conclusions of law:

“1.
The third-party Plaintiff, SUN OIL is not entitled to indemnity from the third-party Defendant RENSHAW, because of monies it paid to DAVID DURBIN.
2.
The injuries received by DAVID DUR-BIN did not arise out of nor incident to, nor in connection with the agreement by RENSHAW to perform services for SUN OIL or in performance of work or services by RENSHAW for SUN OIL.
3.
DAVID DURBIN’s injury did not grow out of any work undertaken by REN-SHAW for SUN OIL, but on the other hand grew out of the overturning of the truck that DAVID DURBIN was driving on a road owned by SUN OIL and for which SUN OIL was responsible for its maintenance.
4.
SUN OIL and RENSHAW did not intend by the indemnity agreement given by RENSHAW to protect, defend, indemnify, and hold SUN OIL harmless against any and all liability and damages resulting from injury to RENSHAW’s employees regardless of how it arose or whose act allegedly caused it.”

Appellant predicates its appeal upon two points of error which complain that the trial court erred (1) in concluding that Sun and Renshaw did not intend the indemnity agreement to protect Sun against the consequences of its own negligence and (2) in refusing to apply the indemnity agreement to the facts of this case. Appellee first responds that appellant is procedurally barred from invoking the indemnity agreement against appellee because appellant has failed to prove facts rendering it liable to plaintiff. Since this issue was not addressed in its original brief, a reply brief was filed by appellant which contends that no judicial determination of Sun’s liability to plaintiff was necessary where (1) the indemnitor was notified of the claim, (2) the indemnitor denied any liability thereunder, and (3) subsequently a good faith, reasonable and prudent settlement of the claim was made by the indemnitee.

An indemnitor waives the right to insist upon a judicial determination of the indemnitee’s liability by denying any obligation under the indemnity agreement. The indemnitor may not, however, be held liable for a purely voluntary payment by the indemnitee. Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, 779 (Tex.Sup.1957). The Supreme Court of Texas, in addressing the point raised here by appellee, has said:

“As to the status of the indemnitee in a case wherein a settlement was made with the injured party, after denial of liability-on the part of the indemnitor, we said: [quoting Mitchell’s, Inc. v. Friedman, supra.]
‘ . . . Having settled the claim without obtaining a judicial determination of its liability, petitioner [indemni-tee] assumed the risk of being able to prove the facts which might have rendered it liable to the plaintiff as well as the reasonableness of the amount which it paid. It will be necessary, therefore, for petitioner to establish that from its standpoint the settlement was made in good faith and was reasonable and prudent under the circumstances.’

Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492, 495 (Tex.Sup.1958).

In the instant case, however, appel-lee lacks the proper predicate to present this complaint on appeal. The court below was never afforded an opportunity to rule on this question and no motion for new trial was filed by either party. Rule 324, T.R. C.P., clearly states that “ . . .it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon.” Having raised this issue for the first time in its appellate brief, appellee has failed to properly preserve this point and we will not consider it.

The substance of appellant’s first point of error asserts that the indemnity agreement between Sun and Renshaw clearly indicates an intention to protect Sun against the consequences of its own negligence. It is a well-settled rule in Texas that in order for an indemnitee to be shielded against the consequences of his own negligence, it is necessary that the obligation be expressed in unequivocal terms. Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, 490 S.W.2d 818, 822 (Tex.1972); Joe Adams & Son v. McCann Construction Company, 475 S.W.2d 721, 723 (Tex.1971); Spence & Howe Construction Company v. Gulf Oil Corporation, 365 S.W.2d 631, 633 (Tex.1963). It is a matter of defining, in terms of physical or legal responsibility, the cause of the injury or damage for which indemnity is promised. It is unnecessary for us to address this question in order to dispose of this case. Therefore we will assume, without deciding, that (1) the indemnity agreement was intended to indemnify Sun against damages or injuries resulting from its own negligence and (2) Sun was liable to David Dur-bin for negligent maintenance of the access road.

The issue remaining is raised by appellant in its second point of error; whether the indemnity provision entered into by Sun and Renshaw is applicable to the facts in this case. The key terms of the indemnity agreement which are controlling are, “ . . . all claims . . . arising out of, incident to, or in connection with this agreement or performance of work or services hereunder . . . .” Such terms are employed to define the scope of the area within which the indemnity provision is applicable.

Appellant contends that such language should be given a broad interpretation and allowed to provide Sun with expansive protection. A question relating to the construction of the indemnity provision is presented. The rules relating to the construction of contracts in general are applicable to indemnity contracts.

“In construing contracts we must seek the intention of the parties from the language used in the contract. All of the language used is to be considered. Too, consideration may be given to the subject matter of the contract and the surrounding facts and circumstances, not for the purpose of varying or adding to the contract but in order to find out the intention with which words are used.”

Spence & Howe Construction Company v. Gulf Oil Corporation, supra at 637. After the intent of the parties is determined, the doctrine of strictissimi juris is applied to prevent the indemnitor’s liability from being extended beyond the terms of the agreement. Mitchell’s, Inc. v. Friedman, supra; Ohio Oil Company v. Smith, 365 S.W.2d 621, 627 (Tex.1963).

In support of its position, appellant relies on the case of Red Ball Motor Freight, Inc. v. Employers Mutual Liability Insurance Company of Wisconsin, 189 F.2d 374 (5th Cir.1951), in which the court gave the phrase “arising out of” a broad connotation in construing an automobile liability insurance policy. The words were construed as having “ . . much broader significance than ‘caused by.’ They are ordinarily understood to mean ‘originating from’ ‘having its origin in,’ ‘growing out of’ or ‘flowing from’ . . . .” (189 F.2d at 378) However, in Red Ball Freight the indemnitor was an insurance company in the business of writing insurance contracts wherein indemnity was provided for a premium. Such a situation is clearly distinguishable from the problem presented in this case where there exists an agreement in which indemnity is not the principal purpose but only an incidental provision of a contract between parties whose main purpose is something else. Employers Casualty Company v. Howard P. Foley Company, Inc., 158 F.2d 363, 364 (5th Cir. 1946) (applying Texas law).

Appellant’s reliance on Amarillo Lodge No. 731, A. F. & A. M. v. City of Amarillo, 473 S.W.2d 264 (Tex.Civ.App. — Amarillo 1971, rev’d on other gr’ds, 488 S.W.2d 69 (Tex.1972), is also misplaced. Appellant cites that case as supporting an expansive interpretation of the phrase “incident to.” The Court of Civil Appeals in Amarillo Lodge was construing “incident to” in the context of an ad valorem tax case and the interpretation employed therein is not controlling in the circumstances and context of the instant case. It is our duty to apply the rules of construction as outlined in Spence & Howe and determine whether the accident in question comes within the scope of the indemnity agreement made between Sun and Renshaw.

When dealing with the application of an indemnity agreement, the fact that an employee was injured while “at work” does not necessarily answer the question whether his injury arose out of performance of that work, or resulted from or in connection with the work contemplated under the indemnity provision. Brown & Root, Inc. v. Service Painting Company of Beaumont, Inc., 437 S.W.2d 630 (Tex.Civ.App. — Beaumont 1969, ref’d); Westinghouse Electric Corporation v. Childs-Bellows, 352 S.W.2d 806 (Tex.Civ.App. — Fort Worth 1961, ref’d); Martin Wright Electric Company v. W. R. Grimshaw Company, 419 F.2d 1381 (5th Cir. 1969), cert. denied, 397 U.S. 1022, 90 S.Ct. 1263, 25 L.Ed.2d 532 (1970) (applying Texas law). The fact that the injured employee or his dependents have received workmen’s compensation benefits is, also, not a controlling factor. Brown & Root, Inc. v. Service Painting Company of Beaumont, Inc., supra; Martin Wright Electric Company v. W. R. Grimshaw Company, supra; Employers Casualty Company v. Howard P. Foley Co., Inc., supra. The disposition of a case of this nature necessitates a thorough review of all the surrounding facts and circumstances.

After conducting an exhaustive review of relevant Texas jurisprudence, the Fifth Circuit discerned a pattern in the approach taken by the Texas courts in cases of this nature and concluded that:

“ . . . when the accident or injury is caused by the negligence of the indemni-tee, the circumstances of the cause of the accident, the negligent acts or omissions, are examined by the courts to determine if they had any connection with, involvement with or relation to the performance of the work of the indemnitor. If they had none, the injuries are not considered as having any ‘connection with’ the work, ‘arising out of’ it, or ‘resulting from’ it under language of contracts having such broad connotation.”

Martin Wright Electric Company v. W. R. Grimshaw Company, supra at 1385. The propriety of such a scope of inquiry into the circumstances of the accident is clearly set forth in the cases of Westinghouse Electric Corporation v. Childs-Bellows, supra, and Brown & Root, Inc. v. Service Painting Company, supra.

In Childs-Bellows, the subcontractor for installation of elevators agreed to indemnify the general contractor against all loss “growing out of, or incident to or resulting from the performance, or failure to perform the Work or the provisions of this Subcontract.” (352 S.W.2d at 807-808) Two employees of the subcontractor were injured while in the course and scope of their employment, in furtherance of the work under the subcontract, when employees of the general contractor negligently dropped objects down the elevator shaft upon them. The Court of Civil Appeals held that the general contractor was not entitled to indemnity and said:

“In the instant case, however, in view of the provisions of the indemnity agreement, it is clear that indemnity was intended to extend only to injuries to persons growing out of or incident to or resulting from performance, or the failure to perform, on the part of Westinghouse [subcontractor], the work of installing the elevators. The agreement does not show an intent by the parties to indemnify Childs-Bellows [general contractor] for injuries to persons resulting from work which was under the exclusive jurisdiction of Childs-Bellows as general contractor. The injuries sustained by the Westinghouse employees were not injuries growing out of any work undertaken by Westinghouse but, according to the stipulations, were due solely to negligence of employees of the general contractor, Childs-Bellows, in work which in so far as the stipulations show had no connection whatever with the installation of the elevators, and work with which Westinghouse had no connection.” (352 S.W.2d at 808)

The Texas Supreme Court has recognized Childs-Bellows as standing for the proposition that the particular injuries sustained by the indemnitor’s employees were not covered by the indemnity provision agreed upon by the parties. Spence & Howe Construction Company v. Gulf Oil Corporation, supra at 635-636. The Supreme Court has noted that the rationale of Childs-Bellows was that the actions resulting in injury, the dropping of objects upon the subcontractor-indemnitor’s employees, “was in no way related to the installation of elevators called for by the Westinghouse contract.” Spence & Howe Construction Company v. Gulf Oil Corp., supra at 637; Ohio Oil Company v. Smith, supra at 626.

In Brown & Root, Service Painting Company entered into a subcontract for painting work with the general contractor, Brown & Root, Inc. The subcontract provided that Service Painting Company indemnify Brown & Root against all claims which may be “caused or alleged to have been caused in whole or in part by, or which may occur or be alleged to have occurred in connection with, the performance of the Sublet Work.” (437 S.W.2d at 631) Brown & Root was the general contractor for installation of a conveyor system requiring an automatic handling system for large rolls of paper, which included a bumper device that could be raised or lowered below floor level. A leak occurred in the air line controlling the bumper thereby making it necessary to bleed the air from the line. An employee of Service Painting was in the pit underneath the bumper when a Brown & Root pipefit-ter negligently bled the line and lowered the bumper. The indemnitor’s employee was crushed to death while actually engaged in painting work called for by the subcontract. The raising and lowering of the bumper was totally unrelated to the painting activities. After settling the claim against it, Brown & Root sought indemnity from Service Painting under thé provisions of the subcontract.

The trial court denied indemnity and Brown & Root appealed. The Court of Civil Appeals said of Brown & Root’s argument:

“Appellant’s argument is deceptively simple and, at first blush, seems unanswerable. It proceeds along these lines: Carpenter [subcontractor’s employee] was killed at a time when he was painting under the bumper which descended upon him. Not only was he acting in the scope of his employment, but also it was the very work which he was doing which placed him in the position of danger wherein he met his death. Thus, in painting the area beneath the bumper, Carpenter was clearly effectuating the object of the sub-contract. It then follows, according to appellant, that ‘he met his death in connection with work which he was performing under the sub-contract’ and appellants are entitled to indemnity.” (437 S.W.2d at 632)

After a thorough analysis of Childs-Bellows, Spence & Howe, and Alamo Lumber Company v. Warren Petroleum Corporation, 316 F.2d 287 (5th Cir. 1963), a case relied upon by Sun in the instant case, the court rejected Brown & Root’s argument. In affirming the trial court’s decision to deny indemnity to Brown & Root, the Court of Civil Appeals concluded:

“Carpenter’s death did not grow out of any work undertaken by Service Painting Company; but, according to the undisputed evidence and the findings of the court, was due solely to negligence of employees of Brown & Root performing work under the general contract. This work had no connection with the painting and was work with which Service Painting Company had no connection.” (437 S.W.2d at 634)

Sun’s reliance on Alamo Lumber Company v. Warren Petroleum Corporation, supra, and Richmond v. Amoco Production Company, 390 F.Supp. 673 (E.D.Tex.1975), aff’d, 532 F.2d 1374 (5th Cir.1976), is unavailing. Both are cases wherein the indemnitor was found to be liable to the indemnitee but a close reading convinces us that neither is inconsistent with Brown & Root and Childs-Bellows.

In Alamo Lumber, Alamo contracted with Warren to build cabinets in a chemical laboratory on Warren’s plant site. Alamo agreed to indemnify Warren from any claim “which arises out of or in connection with the activities of Contractor [Alamo], Contractor’s servants, agents and employees.” (316 F.2d at 288) During the course of Alamo’s construction work, it was found to be necessary to remove a sink and the sewage pipe was disconnected but left unplugged by Alamo’s employees. Through the negligence of Warren, waste gas from a natural gasoline plant backed up in the sewage line and was discharged into the lab while two of Alamo’s employees were working there. Both men were overcome by the poisonous gas.

Alamo sought to rely on Childs-Bellows in resisting Warren’s claims for indemnity, but the Fifth Circuit noted that the cases were not comparable and distinguished Childs-Bellows from the case then before the court. The Fifth Circuit concluded that the claim in Childs-Bellows did not come within the scope of the indemnity agreement since the injury was not sustained “in connection with” the work required by the contract. (316 F.2d at 289-290) The court in Brown & Root discussed Alamo Lumber and also distinguished it from the problem presently before them. They reasoned that in Alamo Lumber it was conclusively shown that:

“[T]he work of installing the cabinets under the sub-contract — the subject of the sub-contract — necessitated the removal of pipes leading to a sink, and the gas backed up in the open pipe, injuring the men. It was the act of Alamo’s employees which created the very condition causing their injury. No such situation exists here” [Emphasis added.] (437 S.W.2d at 634)

Richmond v. Amoco Production Company, supra, is equally unavailing and is not apposite to the situation existing in the present case. The court in Richmond found the factual situation to be remarkably similar to that found in Alamo Lumber and upheld the indemnitor’s liability as a result. (390 F.Supp. at 677)

The purpose of the indemnity agreement between Sun and Renshaw was to require Renshaw to carry on the performance of this contract, specifically certain well servicing work, so that there would be no responsibility on the part of Sun for injuries or damages “arising out of, incident to or in connection with” the performance of that work. According to the stipulations of facts submitted by Sun and Renshaw,

“The specific well servicing work that Renshaw had contracted to perform for Sun Oil at M.S. Shamburger Well 2-1 was completed by Renshaw, to the satisfaction of Sun Oil, prior to the accident, and no further work remained to be done at the well site.”

Any liability on the part of Sun towards plaintiff, David Durbin, was due to the negligent maintenance of the access road. Such road maintenance was the responsibility of Sun and was unrelated to and had no connection with the well servicing work, the subject of this contract.

This case, in our opinion, is therefore ruled by Childs-Bellows and Brown & Root, and so holding, appellant's points are overruled. The judgment of the trial court is in all things affirmed.


author: HALL, Justice.

text:
    Marvin REITER, Appellant, v. CITY OF KEENE, Appellee.
    No. 5922.
    Court of Civil Appeals of Texas, Waco.
    Sept. 7, 1978.
    Rehearing Denied Sept. 28, 1978.
    Marvin Reiter, pro se.
    David B. Anderson, Anderson & Anderson, Cleburne, for appellee.
   HALL, Justice.

Summary judgment was rendered in this case granting a mandatory injunction sought by appellee-plaintiff City of Keene to prevent an asserted violation of City’s zoning laws by appellant-defendant Marvin Reiter, and decreeing that Reiter take nothing on his counterclaim for loss of business income allegedly caused by City. Reiter appeals. We reverse the judgment.

City’s action for permanent mandatory injunction was based upon pleadings that in April, 1974, Reiter moved a building onto his premises located within City’s limits; that the building fronts on U.S. Highway 67 and is located approximately nine or ten feet from the highway; that the property and building are in District M-l, Industrial District, under City’s comprehensive zoning ordinance adopted in 1968; and that Section 9 of the ordinance requires a minimum distance of 50 feet for a front yard between any building and a state or federal highway upon which the building fronts.

Reiter’s counterclaim, originally filed in October, 1977, was based upon pleadings to the effect that his building is located on the corner of Eastern Street and U.S. Highway 67 in City’s limits; that the building fronts on Eastern Street and is not in violation of City’s zoning ordinance; that he operates a retail produce business on the premises; that in June, 1974, City denied him a building permit and a concomitant water line tap; that in May, 1976, and again in February, 1977, City denied his application for a variance to the provisions of Section 9 of the zoning ordinance; and that as a result of City’s refusal to grant him the building permit, water line tap, and zoning variance, he lost the use of his building and has annually lost particularized business income in a sum exceeding $125,000.00.

After Reiter had answered City’s interrogatories and requests for admissions, City moved for summary judgment. The motion was supported by the affidavit of City’s mayor, in which he stated that Reiter’s property is located at the intersection of U.S. Highway 67 and Eastern Street; that the building in question faces the highway and is less than ten feet from the highway right-of-way; and that he was present at the meeting of the Board of Adjustment in February, 1977, when Reiter presented his application for a variance to the setback requirements, and that “[a]t this time Mr. Reiter recognized that the building fronted on Highway 67 and that Highway 67 was the front line to his property.”

Reiter contested City’s motion for summary judgment on the ground that material fact questions existed in the case. In answer to City’s request for admissions, Reiter conceded that his property was zoned “M-1” and that it was located less than 20 feet from the right-of-way line of U.S. Highway 67; but he denied that his property has its front line along the highway, and denied that his building is located less than twenty feet from the front line of the property. In his controverting affidavit Reiter stated that his building fronts on Eastern Street and that its front yard is on Eastern Street.

It is settled that on review of a summary judgment all conflicts in the evidence are disregarded, the proof which tends to support the position of the party opposing the motion is accepted as true, and all doubts as to the existence of a genuine issue of material fact are resolved against the movant. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.Sup.1972). Under those rules, a fact question exists in the record as to whether Reiter’s property fronts on U.S. Highway 67. That question is critical to the City’s right to the injunction it seeks.

City argues that the take-nothing summary judgment on Reiter’s counterclaim is proper because City is immune from liability under the theory of governmental immunity. However, City could be liable if it acted arbitrarily or unreasonably in denying the permits sought by Reiter. City of Austin v. Teague, 570 S.W.2d 389 (Tex.Sup.1978). Reiter, not a lawyer, has represented himself throughout this ease, and drafted his pleadings. City has not excepted to Reiter’s pleadings, and without such exception the pleadings should be liberally construed in Reiter’s favor. Rule 90, Vernon’s Tex. Rules Civ.Proc.; Scott v. Gardner, 137 Tex. 628, 156 S.W.2d 513, 515 (1941). We shall not set forth the lengthy counterclaim, but in it Reiter alleged that he is not in violation of City’s zoning ordinance, and inferentially pleaded that City acted arbitrarily and unreasonably when it denied him the permits he sought, and thereby denied him the use of his property.

City pleaded the two-year statute of limitation in defense of Reiter’s counterclaim. Although it may develop on the trial that a part of Reiter’s claim is barred by the statute, it is plain under the pleadings that all of it is not. Accordingly, the take-nothing judgment in question is not supported by the plea.

The judgment is reversed and this cause is remanded for trial.


author: HAYES, Judge.

text:
    Jimmy Leroy LUNA, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 9, 1977.
    Grant of review vacated, Sept. 19, 1978.
    Jack Emory Farley, Public Defender, Com. of Kentucky by Timothy T. Riddell, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for appellee.
    Before GANT, HAYES, and HOWER-TON, JJ.
   HAYES, Judge.

Appellant, Jimmy Leroy Luna, was indicted for trafficking in a schedule I nonnarcotic (Hashish). He was convicted of trafficking in a schedule I non-narcotic, second offense, and was sentenced to ten years in the penitentiary.

The only alleged error, of any substance, is whether the trial court erred in submitting the case to the jury as a second offense, thereby enhancing the penalty, when such was not charged in the indictment.

The defendant, Luna, was indicted for a violation of KRS 218A.050 for trafficking in a controlled substance, a non-narcotic— hashish. No mention was made in the indictment that this was Luna’s second offense. When Luna testified on direct examination he volunteered he had been convicted previously of trafficking in a controlled substance. The Commonwealth Attorney then sought and received permission to reopen the prosecution’s case and proved the previous conviction in the McCracken Circuit Court in 1973.

The only comment from Luna’s attorney to all this was that he stipulated the previous conviction. Also there were no objections made to the court’s instructions.

Enhanced penalty provisions are not uncommon to Kentucky criminal law. Some of the more common offenses which have enhanced penalty provisions are as follows:

(1) Drug offenses, KRS 218A.990.
(2) Persistent felony offenders, KRS 532.080.
(3) Local option violations, KRS 242.990.
(4) Driving while intoxicated, KRS 189.-990(10).

Appellant argues that KRS 218A.990(2) is a separate offense from KRS 218A.050(3) and therefore, the indictment was improperly “amended” by the trial court after the trial had begun. We do not agree. We interpret the enhancement provision of KRS 218A.990(2) to mean that this provision is not a separate or additional offense under the Kentucky Penal Code, but is merely a means that permits evidence to be entered that may be helpful to the court or jury in fixing the term of punishment. In the case of Wolford v. Buchanan, 313 Ky. 512, 232 S.W.2d 1016 (1950), the defendant Wolford was indicted for the offense of housebreaking and the second and third counts of the indictment charged former felony convictions pursuant to the Habitual Criminal Act as it then existed. The law of this Commonwealth, at that time, was that the indictment could charge only one offense, and if the defendant was accused of two or more offenses, the Grand Jury must return a separate indictment for each offense. Wolford claimed, therefore, the indictment was defective since two offenses were charged in the single indictment. The court there, as we do here, held that the inclusion of the counts in the indictment pursuant to the Habitual Criminal Act were not charges of an offense, but addressed themselves only to the penalty. See also McIntyre v. Commonwealth, 154 Ky. 149, 156 S.W. 1058 (1913) and Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757 (1938).

RCr 6.12 states that an indictment is not “. . . invalid . . . for any defect or imperfection which does not tend to prejudice the substantial rights of the defendant upon the iperits. (Emphasis added). RCr 6.16 states:

The Court may permit an indictment or information to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

The defendant’s substantial rights were not prejudiced since the defendant himself brought up the prior offense and stipulated its accuracy. Defendant is presumed to know his previous record. In no way was he prevented from preparing his defense more adequately, nor were there any surprises. Appellant states if he had known he would be tried as a second offender, he would have “entered his plea” more intelligently. It is noted from the transcript of record that the appellant turned down a one year offer from the Commonwealth before trial. As further noted from the trial transcript he had “back-up” time to do if convicted on the present charge, so apparently appellant could not “take” any time on the present charge. It was very unlikely that the fact he could get ten years instead of five years had anything to do with his “plea bargaining”, under the circumstances.

The Kentucky cases cited by appellant involved violation of the Rash-Gullion Act (1922) which provided for enhanced penalties upon second convictions of the Act, Alford v. Commonwealth, 216 Ky. 405, 287 S.W. 937 (1926) and Spencer v. Commonwealth, 221 Ky. 166, 298 S.W. 389 (1927); and enhanced penalties for being an habitual criminal, Stewart v. Commonwealth, 2 Ky.Law Rep. 386, 11 Ky.Opin. 138 (1881) and Carter v. Commonwealth, 2 Ky.Law Rep. 311, 11 Ky.Opin. 92 (1881). These cases stand for the proposition that to sustain a conviction for a second offense of the local option law, it must be alleged and proven that the defendant had been previously convicted of a violation of that act or, in the case of a violation of the habitual criminal statute, that the defendant had been convicted of a previous felony or felonies. We have no quarrel with the rule in those old cases. However, RCr 6.12 or RCr 6.16 did not exist at the time of those cases. The law that existed prior to the enactment of the Rules of Criminal Procedure in 1962, was generally that an indictment, if for a statutory offense, had to follow the wording of the statute, and if for a common law offense, had to state in detail all the elements of the crime, or else the indictment was fatally defective upon demurrer, Mitchell v. Commonwealth, 88 Ky. 349, 11 S.W. 209 (1889); Commonwealth v. Grinstead, 108 Ky. 59, 55 S.W. 720 (1900); Carroll v. Commonwealth, 164 Ky. 599, 175 S.W. 1043 (1915). Also Commonwealth v. Adams, 92 Ky. 134, 175 S.W. 276 (1891).

Previous to the enactment of the Criminal Rules of Procedure in 1962, the law of this Commonwealth was that an indictment could not be amended. In the case of Commonwealth v. International Harvester Company of America, 147 Ky. 735, 145 S.W. 400 (1912), the indictment is set forth in detail and indicates an attempt by the Commonwealth to charge the International Harvester Company with violating the Kentucky Anti-trusts Laws of 1890, when in fact the laws that governed the misconduct were enacted in 1906. The legal maneuver by the International Harvester Company was to file a general demurrer to the indictment. The Commonwealth then offered to file a bill of particulars which the court refused to permit and the court sustained the demurrer and dismissed the indictment. The Court stated:

The effect of filing a bill of particulars would be to amend the indictment. This can not be done. A defective pleading may be amended, but an indictment can not, and when it is defective the only remedy open to the Commonwealth is to resubmit the questions to the grand jury and have another indictment returned. Id. at 736, 145 S.W. at 401 (Emphasis ours).

Obviously, then, the law as it was when Alford v. Commonwealth, supra; Spencer v. Commonwealth, supra; Stewart v. Commonwealth, supra, and Carter v. Commonwealth, supra, were decided is not the law today as it exists under RCr 6.16.

We are of the opinion further that Luna has not properly preserved this issue for appeal since he entered no objection at the trial level. Salisbury v. Commonwealth, 556 S.W.2d 922 (1977) and Eversole v. Commonwealth, Ky., 550 S.W.2d 513 (1977).

Appellant also argues that the trial court erred in permitting the Commonwealth’s Attorney to ask a police officer witness if the defendant made any statements. Appellant believes this is a violation of the rule in Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976). We, again, disagree. If there was error, and we feel there was not, it was waived by the defendant when he failed to object, Eversole v. Commonwealth, supra.

Judgment is affirmed.

All concur.


author: HOGGE, Judge:

text:
    Mary JACKSON, Appellant, v. Walter Ray JACKSON, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1978.
    As Modified April 21, 1978.
    Discretionary Review Denied Sept. 12, 1978.

      Paul F. Fauri, Appalachian Research and Defense Fund of Kentucky, Inc., Prestons-burg, for appellant.
    Eugene C. Rice, Paintsville, for appellee.
    Before WHITE, HOGGE and PARK, JJ.
   HOGGE, Judge:

In this appeal from a judgment of the Johnson Circuit Court in a dissolution of marriage proceeding, the appellant, Mary Jackson, contends that the court below erred in its findings with regard to real estate value and in issuing a decree of dissolution without incorporating therein certain provisions of the parties’ separation agreement.

At the time of the divorce proceedings, Walter Ray Jackson was forty years of age and his wife Mary was thirty-nine. The couple had two children, a son and a daughter. The daughter was married and the son, who was ten years of age, resided with his father in a rented trailer.

The marital relationship had been a stormy one. Walter stated that his wife had left him, and had lived with other men. He testified that she had forged checks on him, and was under indictment for forging checks. Mary testified that she had lived with other men in order to have a place to stay when she left, but had not slept with them. She stated that her husband had disturbed her and beat her after their separation.

All the testimony in the case with regard to the financial condition of the parties, which appears in the record, comes from the depositions taken from Mary and Walter. Walter made an income of around $19,000, during the year prior to the divorce, in his employment with Adams Construction. Mary had started work in a restaurant, dishwashing and working in the kitchen. She was being paid $1.50 an hour for working from 5:00 a. m. until 1:00 p. m. She testified that she has had a colostomy and a hysterectomy and because she still has pain and medical problems, it is necessary for her to take medicine to get through a day of work.

Walter testified that he owns a 1975 Buick Century which is financed through General Motors Acceptance Corporation. A sum of $4,200 is still owed on the home in which the couple lived, and in which Mary now resides. The record before this court contains no testimony or other evidence to definitely establish the value of the property. In addition to monthly house and car payments, and utility bills, monthly payments are due on six loans from financial institutions in the following amounts: $24.78; $31.73; $63.88; $13.27; $55.00; and, $26.25.

After the parties began living apart, but prior to the divorce, they entered into a separation agreement. This agreement provided that the parties’ home would be divided evenly between husband and wife in the event of a divorce, and that Walter would pay Mary $45 per week for her support and maintenance as well as all monthly payments on indebtedness of the parties and all utility bills and property taxes. Mary was to live in the residence and have custody of the parties’ son, Tony.

The Divorce Commissioner issued his Findings of Fact and Recommendations to which the appellant excepted, but same were later adopted by the Johnson Circuit Court. The Commissioner recommended that Mary Jackson be awarded no support or alimony, that Mary be allowed $7,500 as her interest in the property, and that appel-lee have custody of parties’ son.

The appellant contends that this was erroneous, on the grounds that, pursuant to KRS 403.180(2), the provisions of the separation agreement were binding on the court and should have been incorporated into the judgment. Said statute provides as follows:

In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

The appellant contends that the trial court failed to make a finding that the separation agreement was unconscionable, that it in fact was not unconscionable, and was therefore binding on the court.

In his findings of fact and recommendations, the Divorce Commissioner found that Mary Jackson left the home and the son and daughter (who is now married), although the agreement provided she was to make a home there for the son, and lived with two men at their residences; that Walter Jackson moved into the home and took care of the son and the daughter and that the best interests of the son would be served by granting the father custody. He further found that Walter owed $4,200 on the parties’ home as well as certain other debts, and that Mary Jackson’s spendthrift ways had contributed to this indebtedness.

Although no specific finding of uncon-scionability was made, the substance and effect of the statements of the Divorce Commissioner, which were adopted by the Johnson Circuit Court, were that the agreement was unconscionable. In Mandelstam v. Mandelstam, Ky., 458 S.W.2d 786 (1970), it was required that the chancellor find that the parents were unfit to have custody of their child before awarding custody to strangers. The chancellor had made the finding that it would be in the “best interests” of the child for neither parent to have custody. The Court of Appeals held that although it would be preferable that the chancellor use the specific word “unfit”, the finding could be expressed by use of other terms, and that the language used by the Chancellor was in substance and effect that neither parent was “fit for custody.”

We feel that the situation in the case before us is similar. While the use of the specific word “unconscionable” would be preferable, the wording of the Divorce Commissioner’s Findings and Recommendations in this case substantially complies with the requirements of KRS 403.180 as to a finding of unconscionability. We cannot say that a finding of unconscionability was clearly erroneous. The term unconscionable has been defined as “manifestly unfair or inequitable.” Wilhoit v. Wilhoit, Ky.App., 506 S.W.2d 511 (1974). The trial court may have reasonably determined on the basis of the record in this case that it would be inequitable to provide the wife with the financial benefits conferred by the separation agreement when the extent of property rights and money given was based on the understanding that the wife was to provide a home for the son of the parties, which she did not do, and now, will not be allowed to do, in view of the fact that it has been determined that it is in the best interests of the child that the father have custody-

In Williams v. Williams, Ky.App., 554 S.W.2d 880 (1977), this court held a contract, executed in contemplation of divorce and later incorporated into the divorce decree, unconscionable, within the meaning of KRS 403.250(1), where the circumstances had changed so that the terms of the contract had become unreasonably favorable to the ex-wife, and there was likelihood that the present status of the parties would continue. We feel that the shift of financial and other responsibilities to the husband in this case would result in a similar inequity if the terms of the separation agreement were to remain binding.

The second issue before this court is whether the findings of fact of the Johnson Circuit Court in regard to the value of the real estate owned by appellant and appellee were clearly erroneous. The Findings of Fact and Recommendations of the Divorce Commissioner adopted by the Johnson Circuit Court included a statement that the evidence “was that the present market value of the property was around $19,000”, which, in view of the $4,200 owed, “would leave approximately $14,800 equity in the property.”

After examination of the record, we can find no evidence on which such a finding, or any other finding with respect to the value of the real property, can be based. The appellee contends there have been many hearings in this case which, due to the great expense involved “and the lack of necessity of doing”, were not transcribed, and therefore, the substantial evidence which has been heard with respect to the value of the premises is not reflected in the record. We are not persuaded by this argument. Matters not disclosed by the record cannot be considered on appeal. Montgomery v. Koch, Ky., 251 S.W.2d 235 (1952); Garrison v. Garrison, Ky. 253 S.W.2d 626 (1953). If testimony as to the value of the property existed, the appellee could have preserved it for the record by exercising his right pursuant to KRS 28.480 to request the services of a reporter. We hold that the decree of the court which adopted and incorporated the findings of the Commissioner as to the value of the real property in this case were not supported by the substantial evidence of probative value and clearly erroneous.

The judgment is affirmed in part and reversed in part and remanded to the Johnson Circuit Court for further proceedings consistent with this opinion.

ALL CONCUR.


author: GANT, Judge.

text:
    William N. RUEFF, Appellant, v. INVESTOR ASSOCIATES, INC., Individually and/or d/b/a Lake Tower Apartments, 500 Central Bank Building, Lexington, Kentucky 40507, Investor Associates, Inc., Individually and/or d/b/a Lake Tower Apartments, 10 South LaSalle Street, Chicago, Blinois, Investor Associates, Inc., Individually and/or d/b/a Lake Tower Apartments, 718 Empire Central Building, Dallas, Texas 75247, Appellees.
    Court of Appeals of Kentucky.
    Aug. 18, 1978.
    Rehearing Denied Sept. 29, 1978.

      Fred E. Fischer, Stuart N. Pearlman, Louisville, for appellant.
    Gregory K. Jenkins, Nolan Carter, Jr., Boehl, Stopher, Graves & Deindoerfer, Lexington, for appellees.
    Before GANT, LESTER and VANCE, JJ.
   GANT, Judge.

The only question before us is whether a summary judgment was properly granted to defendant in this action because plaintiff was contributorily negligent as a matter of law.

On November 11, 1975, Rueff attended a dinner party at the apartment of a co-worker which was located on the second level of an apartment building. He had never been to this apartment complex before. Rueff arrived while it was still daylight and climbed some steps from the parking lot, traversed a level walkway to a landing area, and then climbed another set of steps to the apartment. When he left the apartment at approximately 10 o’clock, it was dark outside. The light bulb above the stairway was burned out, but Rueff testified that there was sufficient light to see the parking lot some 30 to 40 feet away. Rueff successfully negotiated the stairs in the apartment but did not see an irregular step in the walkway and fell, breaking his ankle.

The trial court issued no Findings of Fact or Conclusions of Law so we assume, as appellee argues, that the court found Rueff to be contributorily negligent as a matter of law, based on the evidence before it, which consisted solely of the deposition of Rueff. We disagree.

Parker v. Redden, Ky., 421 S.W.2d 586 (1968), is relied upon by appellees in this action to stand for the proposition that the plaintiff is contributorily negligent as a matter of law unless there is a “substantial necessity or urgency” for subjecting himself to a known defect or danger created by defendant. That is not what Parker says, and a more careful analysis of that oft-cited case is necessary to eliminate the confusion surrounding it.

In Parker, plaintiff Redden had stopped to assist a Mrs. Melton in repairing her flat tire. Her car was stopped on the side of the road but was still somewhat in the traffic lane. Redden’s auto was parked facing hers and was even farther into the traffic lane. It was after dark, and Parker’s approaching auto ran into the Melton’s auto, pushing it into the Redden auto and injuring Redden.

The court took the opportunity in this case to abolish the doctrine of assumption of the risk in Kentucky. In doing so, it anticipated that there would be a danger of permitting recovery by plaintiffs where a defendant’s negligence created a situation of which plaintiff was aware. In dicta the court answered this hypothetical question by offering guidelines for judging the reasonableness of a plaintiff’s action in these circumstances: “We think any problem can be eliminated by weighing the reasonableness in the light of the necessity or urgency for the action and the difficulty of removing the risk before acting . . Id. page 593.

In giving its reasons for abolishing the doctrine of assumption of the risk, the court said,

First, we think that the pure assumption of risk doctrine, under which the plaintiff is barred even though he acted reasonably, should no longer be recognized or applied, because reasonableness of conduct should be the basic consideration in all negligence cases. So we think in the instant case Redden’s admitted awareness of the risk does not ipso facto bar his recovery; the controlling question is whether he acted reasonably. Id. page 592. (Emphasis added).

So “urgency” and “necessity” are not the controlling elements in determining contributory negligence; they are merely factors to be considered in ascertaining the reasonableness of plaintiff’s conduct, which is the ultimate question.

Thus Rueff is not automatically barred from recovery because he should have remembered that one step he had to negotiate in the darkness to reach his car. The question in this action is whether Rueff acted reasonably, with consideration given to the necessity for his action and the ease of eliminating the risk.

Unless reasonable minds could not differ, it is for the jury to determine whether Rueff exercised that degree of care that an ordinarily prudent person would have exercised under the circumstances. Under the facts of this case, it cannot be said that his actions were unreasonable as a matter of law, so the granting of a summary judgment was error.

For the foregoing reasons, this case is reversed and remanded for further proceedings consistent herewith.

All concur.